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On 10 February 2017 the Constitutional Court of the Russian Federation pronounced its Judgement in the case regarding the review of constitutionality of Article 212.1 of the Criminal Code of the Russian Federation

On 10 February 2017 the Constitutional Court of the Russian Federation clarified how to apply the provision on criminal liability for multiple violations of the procedure of organisation or conducting an assembly, a meeting, a demonstration, a march or a picketing. The case regarding the review of constitutionality of Article 212.1 of the Criminal Code of the Russian Federation on the application of the Russian citizen Ildar Dadin was considered in a public hearing on 24 January 2017.
History of the question
Article 212.1 was introduced into the Criminal Code of the Russian Federation in July 2014. It provides for the criminal liability for multiple violations of the prescribed procedure of organisation or holding of an assembly, a meeting, a demonstration, a march or a picketing.
On 7 December 2015 the Basmanny District Court of the City of Moscow found Ildar Dadin, who previously multiply was brought to administrative liability for participation in unauthorised public events, guilty in a commission of the crime prohibited in Article 212.1 of the Criminal Code of the Russian Federation and sentenced him to imprisonment of three years with serving the sentence in a correctional colony of general regime. Later on the City Court of Moscow lowered the sentence to 2.5 years.
Position of the applicant
The applicant claims that the challenged legal provision establishes criminal liability for formal violations of the prescribed procedure of organisation and holding peaceful public events solely on the ground of multiplicity of such violations. Moreover, it allows to initiate criminal proceedings before entering into force of all the court decisions in administrative cases as well as to use administrative cases’ materials as evidence in a criminal case. Consequently the applicant believes that this provision violates the right to peaceful assemblies and freedom of expression, the right not to be punished twice for the same action, the right to defence and the right to be regarded innocent unless the guilt is established by a court decision entered into force and, thus, it contradicts Articles 1 (Section 1), 15 (Section 4), 17 (Section 1), 18, 19, 29 (Sections 1 and 3), 31, 48, 49 (Section 1), 50 (Sections 1 and 2) and 55 (Section 3) of the Constitution of the Russian Federation.
Position of the Court
In a democratic law-governed state public authority shall react neutrally to holding assemblies, meetings and picketing by citizens. State bodies shall provide for conditions of realisation of the right to freedom of peaceful assemblies regardless of political views of their participants. This right can be limited by the law but only following the goal of protection of constitutional values and in necessary compliance with the requirement of proportionality and fairness of such a limitation.
The legislature has the right to establish criminal liability when an illegal act is being committed by a person already brought to administrative liability for analogues acts. Repeated offences testify to the conclusion that administrative law means were not sufficient to prevent violations of the legislation which can be considered as constitutional ground for criminalisation of the said actions. Alongside this it is necessary to comply with general principles of judicial liability establishing inter alia that criminal liability in respect of violation of the procedure of organisation of meetings and picketing shall correspond to public danger of an act.
In case if violation of the prescribed procedure of organisation or holding of a public event by a person who was found liable for committing administrative offences not less than 3 times within last 180 days has not led to infliction of harm or a threat thereof and in its essence was a purely formal one, such a violation cannot be regarded as having criminal danger and leading to criminal liability.
A necessary requirement of application of Article 212.1 of the Criminal Code of the Russian Federation is the fact that during the violation of the prescribed procedure of organisation or holding a public event, being a ground for criminal liability, the fact of commitment by the persecuted person of not less than 3 administrative offences (Article 20.2 of the Code of Administrative Offences of the Russian Federation) shall be confirmed by the entered into legal force court judgements imposing administrative penalties.
For bringing to criminal liability under Article 212.1 of the Criminal Code of the Russian Federation a court also has to establish whether a persecuted person had intent to violate the prescribed procedure of organisation and holding of peaceful public events.
Since each type of court proceedings have its own tasks and procedures, prejudicialness of court decisions on previous facts of bringing to administrative liability cannot have irrefutable nature in criminal proceedings. This means that the facts of committing administrative offences established within the course of administrative proceedings cannot have unconditional recognition in criminal proceedings which does not relive a court from complete and full investigation thereof while considering a criminal case.
Selection of a particular type and size of punishment established under Article 212.1 of the Criminal Code of the Russian Federation shall be determined by the real degree of public danger of the committed action; and the punishment of deprivation of liberty is established only in those cases where violation of the prescribed procedure of organisation or holding of an association, a meeting, a demonstration, a march or picketing led to loss of the peaceful nature of the public event, causing significant harm to constitutionally protected values.
The constitutional law meaning of the provisions of Article 212.1 of the Criminal Code of the Russian Federation revealed by the Constitutional Court is obligatory for the law-enforcing bodies. The legislature was suggested to introduce corresponding amendments to the Article.
Court decisions in respect of Ildar Dadin shall be reviewed.                 
Presiding Judge Valery ZORKIN
Judge Rapporteur Sergey KNYAZEV

10 February 2017



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