Rehabilitation of Nazism as a crime under the criminal legislation of the Russian Federation: objective signs

Bagandova Leila Zakirovna ORCID: 0000-0001-5060-9015 Junior Researcher of the Scientific and Organizational Department; Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10, room 207 leyla.bagandova@mail.ru Other publications by this author

The ban on the rehabilitation of Nazism was enshrined in the legislation of the Russian Federation in 2014. The new norm raised a number of questions regarding its correct interpretation and enforcement, and there is still no comprehensive approach to solving them. At the legislative level, the terminological apparatus has not been developed, such definitions as "rehabilitation of Nazism", "symbols of military glory" are not fixed, and in a few scientific studies this is not given due attention. The foreign experience of states with normative legal acts on this issue has not been sufficiently analyzed and needs to be systematized, in this regard, difficulties arise in identifying trends in the field of legal regulation of the public relations in question and the possible reception of the most positively proven legal models in the Russian legal system. Insufficient attention has been paid to the study of objective factors criminalizing this act as a crime against the peace and security of mankind.

Many works of domestic and foreign authors are devoted to understanding Nazism, where this ideology is considered as a socio-political phenomenon and cult (works by N.N. Polyansky ^[1], M.Y. Raginsky ^[2], P.S. Romashkin, A.N. Trainin). The criminological features of the phenomenon of rehabilitation of Nazism are considered in the only special monographic work to date by P.V. Golovnenkov, G.A. Esakov, I.M. Matskevich and W. Hellman, devoted to the peculiarities of modern radical neo-Nazi movements and organizations in Germany, Russia and in some other countries ^[3].

Many substantive problems of the object of the crime provided for in Article 3541 do not have an unambiguous solution. The generic object of the corpus delicti provided for in part 1 of Article 3541 of the Criminal Code of the Russian Federation is the peace and security of mankind. Section XII "Crimes against the peace and security of mankind" consists of a single chapter of the same name, in connection with which, in special studies, there is a point of view that the specific object in this case coincides with the generic one ^[4], however, it seems important to distinguish them.

The state of peace in the scientific literature is proposed to be understood precisely as the "state of international peace" ^[5] – "the interests protected by international law of observing universal peace and the rules of peaceful settlement of interstate disputes", the security of individual states ^[6], their peaceful coexistence and cooperation, as well as the state of security and the absence of actual hostilities between states ^[7]. Based on the above positions, it can be concluded that supporters of the above point of view consider Nazism and its rehabilitation solely as a catalyst for the outbreak of hostilities.

The state of human security is the protection of people as biological individuals ^[8], while such a state, in our opinion, is broader in scope than the state of international peace, since it is not limited only to war and hostilities as such. The security of mankind also lies in the protection of the "physical existence of an indefinite circle of people" ^[9], which can happen both in the absence of violations of peaceful existence. We share the latter point of view. Based on the historical, sociological and philosophical prerequisites for the emergence and development of Nazism discussed in the previous chapter, its justification a priori threatens the security of mankind. We should agree with A. Y. Ivanov, who believes that the security of mankind is an absolute legal good.

The question of the immediate object of the considered corpus delicti is also debatable. A number of scientists believe that international peace ^[10] or international security ^[11] should be considered as such an object. Another point of view boils down to the erroneous location of the norm on the rehabilitation of Nazism in the corresponding chapter. So, based on the hypothesis that Nazism is the most radical form of extremism, some scientists believe that this norm should be located in the chapter on crimes against public safety ^[12]. In our opinion, this approach does not seem to be correct. The location of the norm, the types of objects of the corpus delicti should be determined solely on the basis of the kind of public relations that a potential criminal act may encroach on. Extremism is only a general, generic concept for Nazism, and not the same phenomenon with it, in connection with which it seems that if the norm is moved to the chapter on crimes against public safety only on this basis does not correspond to the socio-legal nature of ideology. It also seems wrong to share A. A. Turyshev's position on moving the norm to the chapter on crimes against public health and public morality ^[13], as well as M.Y. Osipov's opinion that acts included in the objective side of the rehabilitation of Nazism "do not relate to crimes against the peace and security of mankind ... because They do not infringe on international peace and international security in any way ^[14]. A similar position is taken by E.V. Chervonykh, who believes that the object of this crime is "public relations that guarantee the preservation and respect for the historical memory of the people of the Russian Federation."

The meaning of criminalizing the acts enshrined in part 1 of Article 3541 of the Criminal Code of the Russian Federation is not to directly protect the inviolability of "historical memory", but to prevent the recurrence in the future of crimes committed by the Nazis due to distortion or oblivion of past events. In this regard, we are close to the position of N. A. Egorova, who believes that deliberate distortion of history can become a kind of call to start a war. One of the main ideas of Nazism and the Nazis, the denial and approval of whose actions is punishable by the norm in question, is "racial hygiene" - cleansing from "racially alien" elements ^[15], establishing the dominance of one "pure" race, which is already a threat to the existence of mankind. From one statement in support of it, there is a potential threat of the formation of new national socialist or neo-Nazi movements, which may resonate in other states and unleash a global conflict. The public danger of manifestations of the ideology of Nazism manifests itself not only with theses about misanthropy and the inadmissibility of a return in the civilized world to open social confrontation based on the propaganda of superiority and the denial of universal values ^[16]. Thus, the location of part 1 of Article 3541 in section XII of the Criminal Code of the Russian Federation is reasonable and appropriate. This approach is also used by such foreign countries as Armenia (Criminal Code of the Republic of Armenia [Electronic resource] // URL: https://www.legislationline.org/download/id/8989/file/ARM_Criminal%20Code_ru_as%20of%2010%20Jul%202019.pdf) , Belarus (Criminal Code of the Republic of Belarus [Electronic resource] // URL: https://online .zakon.kz/Document/?doc_id=30414984&pos=1257 ;-50#pos=1257;-50 (accessed 12.07.2024)).

None of the above points of view regarding the immediate object of the crime under consideration fully reflects its essence. Having defined international security as a specific object, talking about international peace as an immediate object, in our opinion, is not entirely correct, since international security as a whole includes international peace. If we agree with the point of view of international security as an immediate object, then there is a situation of an excessively broad interpretation of this feature of the corpus delicti: based on doctrinal approaches to the vertical classification of the object of the corpus delicti, the immediate object should specify the specific one and be part of it. In this regard, we consider it correct to define the direct object of the corpus delicti enshrined in Part 1 of Article 3541 of the Criminal Code of the Russian Federation as public relations to ensure the international security of mankind in connection with the revival of the ideology of Nazism.

Discussing the additional objects of the considered corpus delicti, it should be noted that Nazism denies any possibility of equality of people before the state and the law, reinforces the idea of the superiority of the Aryan race over others, discriminates against people in terms of obtaining equal benefits. It seems that based on the meaning of ideology, human rights and freedoms guaranteed by the Constitution of the Russian Federation, public relations for the protection of personality and public relations encroaching on the foundations of the constitutional order and state security can be identified as additional objects of the considered corpus delicti.

Article 3541 of the Criminal Code of the Russian Federation contains two main elements of the crime, the second is fixed in part 3 of this norm and through it it is prohibited to desecrate the symbols of military glory of Russia, insult the memory of defenders of the Fatherland, humiliate the honor and dignity of a veteran of the Great Patriotic War, as well as the dissemination of information expressing obvious disrespect for society about the days of military glory and memorable dates of Russia, related to the defense of the Fatherland. In our opinion, the object of this corpus delicti differs from the generic object of the corpus delicti provided for in Part 1 of the norm under consideration – it is not the peace and security of mankind, but the public morality of the population. In this regard, it seems more correct to place this composition in the form of a separate norm in the chapter "Crimes against public health and public morality". Public morality in the criminal law literature refers to the principles and norms of human behavior in society, expressing ideas about good and evil, justice, public duty, honor, and citizenship ^[17]. When committing attacks of this kind, the moral life of society is violated, moral relations, value ideals, individual consciousness, and the mental state of people as subjects of public relations are distorted. For example, when the symbols of military glory are desecrated, historical memory is humiliated, on the basis of which the education of future generations should be based, family values decline, since the horrors of war have affected almost every family in Russia and the CIS countries. If the norm in question is attributed to the chapter of crimes against public morality, the specific object will be the public morality of the population - a set of public relations that ensure compliance with norms and rules of conduct, ideas about universal values that have developed in society.

The acts that make up the objective side of part 3 of Article 3541 of the Criminal Code of the Russian Federation affect the formation of consciousness among the population, their perception of history and respect for symbols of military glory, therefore, we believe it is necessary to consider public relations in the field of preserving social memory of the defense of the Fatherland as a direct object. Thus, in the Criminal Code of Ukraine, part of the acts provided for in part 3 of Article 3541 of the Criminal Code of the Russian Federation are located as part of the article "Abuse of a grave, another burial place or over the body of the deceased" in the section "Crimes against public order and morality".

In part 1 of Article 3541 of the Criminal Code of the Russian Federation, the objective side of the act is alternatively specified actions:

1) denial of the facts established by the verdict of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries;

2) approval of crimes established by the specified sentence;

3) dissemination of deliberately false information about the activities of the USSR during the Second World War, about veterans of the Great Patriotic War.

In theory, there is a problem of understanding the first act – the denial of facts. These facts should be understood as "the final decisions of the Nuremberg Military Tribunal, in which Nazism was condemned as a criminal system and ideology. Then, during 403 public meetings, 24 war criminals who were part of the top leadership of Nazi Germany appeared before the court, and a guilty verdict was passed" ^[18]. To deny the event of any of the Nazi crimes established by the verdict of the International Military Tribunal means, in fact, to justify such a crime. Many perceive this as a ban on studying history and forming their own views and moods (Permyakov Yu. When history is outlawed. [Electronic resource]//URL: https://zasekin.ru/avtorskie-kolonki/yurij-permyakov/15969 (date of appeal – 08/19/2024)). It should be noted that this point of view is not entirely correct: firstly, the criminal law punishes only public denial, i.e. distortion of facts from the sentences of the Ministry of Internal Affairs, and secondly - criminal liability comes for unfounded denial expressed or published without any scientific justification. Nevertheless, it seems advisable to clarify the understanding of the "denial of the facts of the Ministry of Internal Affairs" by reflecting the definition, for example, in the decision of the Plenum of the Supreme Court, for uniformity of judicial practice on this issue.

The main facts established by the verdict of the Nuremberg Tribunal include:

1. The National Socialist ideology and the implementation of its theoretical postulates in life are criminal in themselves: this threatens the safety of human life. The verdict confirms this thesis by the fact that anti-Semitism was elevated to the center of state policy, all dissent was brutally eradicated, etc.;

2. The development of a general plan for the outbreak of war and the manifestation of military aggression, the implementation of actions to implement these plans is recognized as the most serious crime against international peace;

3. Crimes against international peace are violations of international peace treaties. In particular, the Verdict recorded a violation by Germany:

– multilateral treaties, including the 1907 Convention on the Peaceful Settlement of Disputes, the 1928 Briand-Kellogg Pact on the Renunciation of War as an Instrument of State Policy;

– bilateral agreements on mutual guarantees and non–aggression, including agreements with Belgium, the Netherlands, France, England, Poland, Denmark, and the Soviet Union.

4. As war crimes, the Verdict of the Nuremberg Tribunal recognized:

– killing and mistreatment of prisoners of war. Special inhumanity was noted in relation to Soviet prisoners of war.

– murders of representatives of the civilian population and ill–treatment of them - in particular, the directive "Darkness and Fog" of September 7, 1941 established a "system of violence, atrocities and terror" against the civilian population of Poland and the USSR;

– looting. At the same time, looting in the West was tried to give some legality, while in the East a policy of "direct robbery" was implemented;

– the use of slave labor in order to obtain maximum benefits while incurring the lowest costs.

5. Crimes against humanity, among which it is necessary to emphasize:

– the extermination of the Jewish population "consistently, systematically and on the widest scale" on the territory of all occupied States. The verdict noted that the decision on the physical destruction of the Jewish nation matured long before the start of the war, but it was finally approved in the summer of 1941, after which it began to be actively and widely implemented after the liquidation of the Warsaw Ghetto;

– The policy of selective killings in concentration camps (murders of the infirm, women and children who did not represent "value" as a slave force);

– conducting experiments and experiments on living people;

– the use of human biological material, the property of those killed in concentration camps.

6. A number of German state organizations are recognized as criminal, criminals are statesmen who directly managed German affairs, both internal and external, under the leadership of A. Hitler. Their list with a description of the activities recognized as criminal is given in the verdict.

The approval of the crimes specified in the sentences of the Ministry of Internal Affairs is understood as a statement, a message to an indefinite circle of people about the recognition of the admissibility of international legal crimes committed by the Nazis during the Second World War, about their justification, approval, correctness, deserving of support and praise, etc. In the era of the development of the Internet, actions of this kind most often occur on social networks by posting similar publications. Thus, a criminal case has been opened against a citizen of the Russian Federation on the fact of approving the activities of the organization of Ukrainian nationalists in comments to publications on the Odnoklassniki social network (A pensioner from Magadan will be tried for "rehabilitation of Nazism" on the Internet [Electronic resource]//URL: https://goldenmost.ru/pensionera-iz-magadana-budut-sudit-za-reabilitatsiyu-natsizma-v-internete / (accessed 03.11.2021)).

The approval of crimes specified in the sentences of the Ministry of Internal Affairs is characterized only by active actions. They can be expressed in statements, drawings, reposts, comments in support of the Nazi regime, drawings (swastikas), etc. By its design, the corpus delicti enshrined in part 1 of Article 3541 of the Criminal Code of the Russian Federation is designed according to the type of formal, therefore, this act will be considered completed from the moment of expressing or expressing approval in public, regardless of the achievement of the purpose of the subject of the crime, if any.

The definition of this act is not fixed in Russian normative legal acts. By "approval" it is customary to understand "encouragement" of something, "praise" (Dictionary of the Russian language: In 4 vols. Vol. 2. / edited by A. P. Evgenieva. — 4th ed., ster. — M., 1999), recognition as permissible, correct (Explanatory dictionary of the Russian language: 72500 words and 7500 phraseological expressions / S. I. Ozhegov, N. Yu. Shvedova; M., 1994. p. 907). In this regard, it is possible to reveal the content of the act through the concept of "justification", which is fixed in the note to Article 2052 of the Criminal Code of the Russian Federation. The synonymy of the above terms is also indicated by judicial practice. Thus, the Supreme Court of the Republic of Crimea, in the descriptive and motivational part of the verdict, indicated that the placement of photographs in the form of emblems of units of the SS troops, swastikas, as well as the phrase "Thank you grandfather for trying", based on the operative part of the expert opinion, "... contain signs of justification (approval) of the activities of units of the SS troops" (The verdict of the Supreme Court of the Republic of Crimea dated 10/30/2015 in the case 1-25/2015 // SPS "ConsultantPlus").

Due to the absence of a reference to Article 3541 of the Criminal Code of the Russian Federation in this note, however, its use is difficult. In part 2 of Article 3 of the Criminal Code of the Russian Federation, the thesis is fixed on the inadmissibility of analogy of the criminal law in pursuance of the principle of legality of criminal law. The analogy of law is understood as the application of general principles and meaning of legislation or general principles of law to a public attitude that is not regulated by a specific legal norm, if there is no norm regulating similar relations that can be applied to fill the gap ^[19]. The extension of the meaning of the concept of "justification" given by the legislator to the phenomenon of "approval of Nazi crimes", therefore, according to the letter of the law, will violate the principle of legality. Identical provisions are contained in the resolution of the Plenum of the Supreme Court of the Russian Federation "On certain issues of judicial practice in criminal cases of terrorist crimes" (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/09/2012 No. 1 (ed. dated 11/03/2016) "On certain issues of judicial practice in criminal cases of terrorist crimes" //SPS ConsultantPlus"). In our opinion, for the effective and correct application of this norm, it is necessary to develop the concept of approval of relevant acts, using the note to Article 2052 of the Criminal Code of the Russian Federation. It seems appropriate to define the approval of the crimes indicated in the verdict of the Ministry of Internal Affairs as a public recognition of the ideology of Nazism, as well as the acts committed by the Nazis and recognized as criminal by the verdict of the Nuremberg Tribunal, as correct, in need of support and imitation. In our opinion, in order to consolidate such definitions, it is necessary to develop a separate Resolution of the Plenum of the Supreme Court of the Russian Federation on the rehabilitation of Nazism.

The dissemination of deliberately false information about the activities of the USSR during the Second World War, about the veterans of the Second World War, is another controversial sign of the objective side of the rehabilitation of Nazism. This act is fixed abstractly, in connection with which an attempt has been made in the scientific literature to formulate an approximate list of specific manifestations of the dissemination of deliberately false information about the role of the USSR in World War II:

– laying on the Soviet Union and its successor state Russia – equal with Nazi Germany responsible for the outbreak of a war of aggression in Europe with simultaneous removal of guilt from the UK, USA and other Western countries for connivance, concessions and indulging the aggressor in the framework of the "policy of appeasement";

– denial of the "just, national and liberating character" of the Great Patriotic War (1941-1945).;

– non-recognition of the decisive role of the USSR in the victory over Nazi Germany, as well as attempts to deprive our country of the "status of the winner";

– demonstration of the Great Patriotic War as "criminal and shameful, consisting only of failures and defeats of the ineffective Red Army; denial of the "feat of the Soviet people – historical, military, moral, humanistic" ^[20].

Most often, this act is also carried out on social networks, and the number of views or reposts of this publication does not matter as such, since the crime is completed from the moment of public dissemination of information, regardless of the achievement of its goal and the onset of any consequences (A resident of Perm was fined "for false information about the role of the USSR in unleashing World War II" [Electronic resource]//URL: https://rex-net.livejournal.com/81751.html (date of appeal 08/19/2024)). Criminal liability does not occur for value judgments, assumptions and guesses, as well as for opinions about an event that is not evaluated unambiguously "positively" or "negatively" in history. Thus, the spread of deliberately false information was recognized by posting text messages and photos on a social network with statements that "... the USSR de facto acted as an aggressor in World War II ...", "... Soviet soldiers participate in the liberators' parade in Brest together with units of the German Wehrmacht" (Verdict of the Moscow Regional Court dated 08/02/2021 G. in case no. 2-114/2021 // SPS "ConsultantPlus").

The most difficult issue for a law enforcement officer may be the assessment of artistic fiction in a work if it contains information that differs from the traditional representation of the role of the USSR in World War II for Russian society. A. A. Turyshev believes that the wording used in part 1 of Article 3541 of the Criminal Code of the Russian Federation "dissemination of deliberately false information about the activities of the USSR during the Second World War the World War" allows "political will to invade the sphere of historical science and close entire sections for study and scientific discussion" ^[13]. Disagreement with this position was expressed by N.A. Egorova, who believes that the article in question establishes criminal liability not for thoughts and beliefs and not even for "kitchen conversations" about history, but for public actions: "unsupported by deep research" public dissemination of deliberately false information has "nothing to do with historical (and in general, any) science" ^[21].

The doctrine proposes to solve this problem by introducing a note to Article 3541 of the Criminal Code of the Russian Federation: "This article does not apply to conducting scientific historical research and presenting their results, conducting scientific discussions, unless these actions are associated with deliberate distortion of the data obtained" ^[22]. It seems that this will not bring clarity to law enforcement, since the presence of a specific purpose and deliberate distortion in creativity is difficult to prove. The activities of the USSR during World War II were evaluated not only by domestic historians, journalists and military personnel, but also by foreign observers. Fiction should not extend to reliably established historical facts, otherwise it may be regarded as manipulation for political purposes. A not very enlightened person can hardly identify the line between fiction and truth – it is very thin. Thus, we consider it unacceptable to intentionally distort repeatedly established historical facts, in particular, the facts about the role of the USSR during World War II, as well as to justify these actions by the presence of creative artistic intent in the subject. At the same time, it is necessary to consolidate an approximate list of such facts, fixed by the verdict of the Nuremberg Tribunal, which are prohibited to distort.

The forms of manifestation of the rehabilitation of Nazism under Russian criminal law are also:

– public dissemination of information expressing obvious disrespect for society about the days of military glory and memorable dates of Russia related to the protection of the Fatherland;

– public desecration of symbols of military glory of Russia.

According to the logic of the criminal law prohibition contained in Article 3541 of the Criminal Code of the Russian Federation, all the listed days of military glory, memorable dates associated with the defense of the Fatherland, and symbols of military glory of Russia should be directly related to World War II and the fight against Nazism. Law enforcement officials point out that the absence of a definition norm in the note to Article 3541 of the Criminal Code of the Russian Federation on days of military glory and memorable dates makes it difficult to understand the application of the article ^[23]. In our opinion, fixing the explanatory note is not necessary and will only clutter up criminal legislation, since the list of such days and dates is already fixed in federal legislation.

In accordance with the provisions, the following days of military glory associated with the Great Patriotic War have been established in our country:

– February 15 is the Day of Remembrance of Russians who performed their official duties outside the Fatherland;

May 9 - Victory Day of the Soviet people in the Great Patriotic War of 1941-1945 (1945);

– June 22 – Day of Remembrance and Mourning – the day of the beginning of the Great Patriotic War (1941);

– June 29 – Day of Partisans and Underground Workers;

– September 3 – The Day of the end of World War II (1945);

– December 3 – The Day of the Unknown Soldier;

– December 9 is the Day of Heroes of the Fatherland (Federal Law No. 32-FZ of March 13, 1995 "On Days of Military Glory and memorable Dates of Russia" // SZ RF, 1995. No. 11, Article 943).

Actions that can be regarded as the dissemination of relevant information include, for example, applications for the publication of photographs of Nazi criminals or their allies in patriotic projects. So, a person sent a photo of General A.A. Vlasov to the "Immortal Regiment Online" for his participation in the battles for the defense of Moscow, but the moderators of the project did not share the image. The court of first instance qualified the committed act as Part 3 of Article 3541 of the Criminal Code of the Russian Federation. The defense's position was based on the fact that this general was not a defendant in the verdict of the Nuremberg Tribunal, so what he had done could not be the rehabilitation of Nazism. The Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation explained that the demonstration of a person's disdain for the day of military glory consisted in his attempt to place images of a traitor to the Motherland on a par with the participants-heroes of the Great Patriotic War. At the same time, for qualification under part 3 of Article 3541 of the Criminal Code of the Russian Federation, the provisions of the verdict of the Nuremberg Tribunal are not taken into account (the ruling of the court of Cassation of August 26, 2021 in case No. 44-UD21-29-A4 // SPS "ConsultantPlus").

Unlike the list of days of military glory and memorable dates related to the defense of the Fatherland, the understanding of the "symbol of military glory of Russia" is not legally fixed and is far from being so definite. First of all, speaking about the content of the concept of symbols of military glory of Russia, many authors note that it is evaluative ^[24]. An exhaustive list of such symbols, as well as their definitions, is not fixed at the legislative level, while some individual details are equated to those by special legislation. Thus, the symbol of military glory is the Victory Banner (Federal Law No. 68-FZ dated 05/07/2007 "On the Banner of Victory" // SPS ConsultantPlus) and the St. George Ribbon (Federal Law No. 579-FZ dated 12/29/2022 "On the St. George Ribbon and Amendments to Certain Legislative Acts of the Russian Federation" // SPS ConsultantPlus).

Two positions have been developed in the scientific literature on the definition of such symbols – "expansive" and "restrictive". Supporters of the first point of view proposed to understand as these symbols everything that is associated with the military victories of Russia and the USSR. Thus, it is proposed to include the Victory Banner, flags of military formations, orders and medals, the St. George ribbon (as a symbol of Victory in the Great Patriotic War), monuments, mass graves, museum complexes, etc. as symbols of military glory. Adherents of the second point of view believe that only such attributes that are directly and directly related to military operations should be recognized as symbols of military glory. Thus, not everyone in the literature supports the view of recognizing monuments and memorial complexes as symbols of military glory ^[24]. The authors consider the main argument in substantiating their position to be the fact that a symbol is a conventional designation of something, and a monument or memorial complex is rather a private manifestation of an attempt to perpetuate a historical event than its conventional designation. In our opinion, this point of view is not entirely correct: cultural objects dedicated to the fight against fascism are a symbol of victory, a symbol of military glory for all defenders of the Motherland. It seems that this point of view is supported by the legislator: previously, under paragraph "b" of part 2 of Article 244, acts of desecration of sculptures, architectural structures dedicated to the fight against fascism or victims of fascism, as well as burial sites of victims of fascism should have been qualified. Since 2020, this provision has been excluded from the above norm, in our opinion, because it would be easier for law enforcement officers to distinguish between Articles 244 and 3541 of the Criminal Code of the Russian Federation, thereby indicating that such items can be equated with symbols of military glory. Judicial practice follows this principle. Thus, the Tula Regional Court recognized the memorial complex with an element of Eternal Flame "Mass grave with the burial of soldiers who died during the Great Patriotic War" as a symbol of military glory and qualified actions to desecrate it under part 3 of Article 3541 of the Criminal Code of the Russian Federation (The verdict of the Tula Regional Court dated 02/13/2023 in case No. 2-6/2023 // SPS "ConsultantPlus").

The doctrine developed criteria for classifying an object as a symbol of military glory:

1) such an item must be legally recognized as a symbol of military glory by issuing an appropriate federal law;

2) such items should indicate the memory of facts of serious military-historical significance and state recognition;

3) such an object must have a certain artistic form, and often heraldic attributes;

4) such an object must be solemnly installed with a ceremony, the presentation of the banner and awards ^[25].

Desecration of symbols of military glory is possible both with words, publications, offensive inscriptions or drawings, and by any other means, including photographs and gestures (In Stavropol, a case was opened on the rehabilitation of Nazism for a photo at the memorial [Electronic resource]//URL:https://meduza.io/news/2017/01/30/na-stavropolie-zaveli-delo-o-reabilitatsii-natsizma-za-foto-u-memoriala (date of application – 08/19/2024)). At the same time, based on judicial practice, the desecration of the symbol of military glory can be committed not only physically, but also virtually, using photo editors (Verdict of the Volgograd Regional Court dated 03/14/2019 № 2-16/2019 (2-27.2018) // SPS “ConsultantPlus").

According to the dispositions of Part 1 and Part 3 of Article 3541 of the Criminal Code of the Russian Federation, all actions that constitute the objective side of these crimes must be committed in public. Publicity involves addressing a wide range of people through the "absence of a private character" ^[21], that is, outside the framework of a personal conversation or correspondence. We share the point of view of A.G. Kibalnik and A.Y. Ivanov, who do not consider the "personification" of persons among whom the act is committed in relation to the subject of the crime to be fundamental in determining publicity ^[11]. This means that for the qualification of an act as publicly committed, it is not important that the subject of the crime knows these persons, as well as that he knows the number of people among whom he carries out his criminal activities. The correct interpretation of this feature is necessary to establish the correct qualification of the crime as completed. Thus, the Supreme Court of the Republic of Tatarstan recognized the attempt to post a photo of Adolf Hitler on the Immortal Regiment Online platform as an attempt to rehabilitate Nazism, referring to the final blocking of the application and non-presentation of the image during the action (Verdict of the Supreme Court of the Republic of Tatarstan dated 02.12.2020 in case No.2-25/2020 // SPS "ConsultantPlus"). The court of first instance, however, did not take into account the fact that this crime was designed as a formal one and is completed from the moment the appeal was distributed, regardless of the final result, as well as the fact that the moderators considered the application for publication of the photo, which indicates the public expression of "their position on the possibility of posting a photo of a Nazi criminal ... in one along with the participants of the war ...".

In 2021, the legislator introduced a number of amendments to Article 3541 of the Criminal Code of the Russian Federation. Two more forms of rehabilitation of Nazism were added to the number of acts forming Article 3541 of the Criminal Code of the Russian Federation – the dissemination of deliberately false information about veterans of the Great Patriotic War and insulting the memory of defenders of the Fatherland or humiliating the honor and dignity of a veteran of the Great Patriotic War committed in public. According to a number of practitioners and members of the legal community, these amendments are dictated not so much by legal logic as by political logic, "moreover, all these actions are already prohibited by law in one form or another and in fact we are not talking about establishing, but about strengthening responsibility for their commission in relation to certain groups: defenders of the Fatherland and veterans of the Great Patriotic War" (Responsibility for the public humiliation of the honor and dignity of a veteran will appear in the Criminal Code and Administrative Code [Electronic resource] // URL: https://www.advgazeta.ru/novosti/otvetstvennost-za-publichnoe-unizhenie-chesti-i-dostoinstva-veterana-poyavitsya-v-uk-i-koap/). In our opinion, such criminalization is due to a trend, a number of similar crimes committed the day before.

The qualified staff, fixed in Part 2 of the article under consideration, has expanded and been supplemented with such signs as the commission of a crime in complicity, as well as using the media, information and telecommunication systems or the Internet (Federal Law No. 59-FZ of 04/05/2021 "On Amendments to Article 354.1 of the Criminal Code of the Russian Federation" // SZ RF, 2021, No. 15 (Part I), Article 2426). Most often, this act is actually carried out on the Internet, in particular, on social networks, while, as noted in the explanatory note to this bill, "the Internet resources used are most often not, from the point of view of the law, mass media" (Explanatory note to the draft federal law "On Amending Article 354.1 of the Criminal Code the Code of the Russian Federation" [Electronic resource] // URL: https://sozd.duma.gov.ru/bill/1050812-7 (date of appeal – 08/19/2024)). To bring to justice under this article, the specific number of views or reposts of the publication does not matter as such, since the crime is completed from the moment of public dissemination of information, regardless of the achievement of its purpose and the occurrence of any-or consequences (The verdict of the Perm Regional Court of 30.06.2016 in case no .2-17/2016 // SPS "ConsultantPlus"). It seems that the reason for introducing new qualified signs was the commission of a number of crimes during the "Immortal Regiment Online" campaign, virtual due to the COVID-19 pandemic (Verdict of the Perm Regional Court dated 11/16/2020 in case No.2-27/2020 // SPS "ConsultantPlus"), as well as other cases of rehabilitation of Nazism on social networks which were difficult to qualify under Part 2 of Article 3541 of the Criminal Code of the Russian Federation. Thus, as part of the preliminary investigation, the statement that "in 1944, Soviet troops bombed the territory of the Belarusian SSR" was qualified under Part 2 of Article 3541 of the Criminal Code of the Russian Federation as committed using mass media. The Kaluga Regional Court pointed out the excessive imputation of part 2 of this article, since according to the established circumstances of the case, the crime was committed publicly - by distributing relevant materials on the VKontakte social network account via the Internet. By virtue of the law, this account does not meet the criteria of the mass media, therefore, the actions of the perpetrator are covered by part 1 of Article 3541 of the Criminal Code of the Russian Federation (Law of the Russian Federation dated December 27, 1991 No. 2124-1 "On Mass Media" SPS "ConsultantPlus").

Thus, the objective signs of the rehabilitation of Nazism have been developed with some defects and need to be clarified – this applies to both the concepts used in the norm and the issues of qualification of the crime. Thus, Part 3 of Article 3541 should not be in the chapter "Crimes against the peace and security of mankind", as it does not correspond to it in terms of object. In our opinion, in order to more effectively counter the threat of the revival and rehabilitation of Nazism, it is necessary to develop and adopt a Federal law or a Resolution of the Plenum of the Supreme Court that will consolidate the basic definitions regarding the considered corpus delicti and the moment of its completion. In particular, it is advisable to develop a definition of the concept of "approval of crimes specified in the sentences of the Ministry of Internal Affairs", which will mean a public statement recognizing the ideology and practice of Nazism as correct, in need of support and imitation. In this regard, the problem of studying and improving the norm on criminal liability for the rehabilitation of Nazism is a particularly urgent task, the solution of which is an important prerequisite for the preservation of peace and security of mankind.