ST 239 of the Criminal Code of the Russian Federation.
1. The creation of a religious or public association, the activities of which involve violence against citizens or other harm to their health, as well as the management of such an association, are punishable by a fine in the amount of up to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to two years. , or restriction of freedom for a term of up to four years, or forced labor for a term of up to four years, or imprisonment for the same term.
2. The creation of a non-profit organization (including a non-profit organization performing the functions of a foreign agent) or a structural unit of a foreign non-profit non-governmental organization, the activities of which involve inducing citizens to refuse to perform civil duties or to commit other illegal acts, as well as the management of such an organization or structural unit - shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by restriction of liberty for a term of up to three years, or by forced labor for a term of up to three years, or by imprisonment for the same term.
3. Participation in the activities of a non-profit organization specified in parts one and two of this article, as well as propaganda of acts provided for in parts one and two of this article, is punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of the salary or other income of the person convicted of a period of up to one year, or restriction of liberty for a period of up to two years, or forced labor for a period of up to two years, or imprisonment for the same period.
Commentary to Art. 239 Criminal Code
1. The objective side in Part 1 consists of actions to create or manage a religious or public association, the activities of which involve: a) violence against citizens (physical or mental); b) with other harm to their health (for example, deprivation of food, food, sleep).
2. The objective side in Part 2 consists of actions to create or manage a non-profit organization (including a non-profit organization performing the functions of a foreign agent) or a structural unit of a foreign non-profit non-governmental organization, if their activities involve inducing citizens to refuse to fulfill civil duties (responsibilities, imposed on citizens by the Constitution of the Russian Federation, other laws) or to commit other illegal acts.
3. The objective side of Part 3 consists of actions to participate in the activities of a non-profit organization specified in Parts 1 or 2, or propaganda of acts provided for in these parts. Propaganda is the dissemination of information about acts listed in the law, their open or veiled approval, orally or in writing, with or without the use of the media.
4. The subjective side of the crime is characterized by the presence of direct intent.
Second commentary to Art. 239 of the Criminal Code of the Russian Federation
1. The commented norm protects the procedure established by law for the creation and activities of public and religious associations (Article 6 of the Federal Law “On Non-Profit Organizations” of January 12, 1966). The Federal Law “On Public Associations” of May 19, 1995 (Article 16) prohibits the creation and activity of public associations for anti-state and anti-social purposes.
2. The immediate object of the crime in question is public health.
3. The objective side is the creation of a religious or public association, the activities of which involve violence against citizens or other harm to their health, as well as the leadership of such an association.
4. Violence as one of the signs of such an association means that, in accordance with the ideology of the association, some of its members use various forms of violence against others (beating, torturing, raping, etc.).
5. Other harm to the health of citizens belonging to the association means that, in accordance with the ideology of the association, its members are limited in food, drink, personal freedom, or engage in self-torture, self-mutilation, tend to commit suicide, etc.
6. The creation of a religious or public association that has the characteristics discussed above should be understood as both the establishment of such an association and its actual organization without official registration. In this form, the crime should be recognized as completed from the moment of the actual formation of the association, the ideology of which covers the characteristics described in Part 1 of Art. 239 of the Criminal Code, or from the moment when the activity of the association was actually associated with such signs, although at the time of the association its members were not aware of the nature of the association.
7. Management of the said association involves performing the functions of its leader and manager. In this form, the crime is completed from the moment of actual exercise of leadership functions in relation to ordinary members of the association.
8. Part 2 establishes responsibility, firstly, for the creation of:
a) a non-profit organization (including a non-profit organization performing the functions of a foreign agent);
b) a structural unit of a foreign non-profit non-governmental organization, the activities of which involve inducing citizens to refuse to perform civil duties or to commit other illegal acts;
secondly, for the leadership of such an organization or such a structural unit.
9. A non-profit organization performing the functions of a foreign agent is recognized as a Russian non-profit organization that receives funds or other property from foreign states or their bodies, international and foreign organizations, foreign citizens, stateless persons or persons authorized by them, which participates, including in the interests of foreign sources, in political activities in Russia.
10. The subjective side is characterized by direct intent.
11. The subject of the crimes provided for in parts 1 and 2 is the creator or head of the relevant organization or structural unit.
12. Part 3 provides for: a) participation in the activities of relevant organizations (structural divisions); b) propaganda of acts provided for in parts 1 and 2 of this article.
13. The subject of propaganda of acts provided for in Part 1 of Art. 239 of the Criminal Code, there can be not only members of the specified association, but also persons who are not members of it.
14. The direct commission of actions related to an attack on life, health, personal or sexual freedom is not covered by the commented article of the Criminal Code and requires additional qualification under the articles of the Criminal Code on crimes against the person.
15. A person who, within the framework of the activities of a religious or public association, encourages another to commit a crime must be held liable not only under Art. 239 of the Criminal Code of the Russian Federation, but also for incitement to commit a specific crime.
Clause “b”, part 3, art. 242 of the Criminal Code of the Russian Federation, paragraph “d”, part 2 of Art. 242.1 of the Criminal Code of the Russian Federation: interpretation and judicial practice
The publication was prepared according to the state of Russian legislation as of January 1, 2017 and is based on the established law enforcement, as well as the personal practice of the author, lawyer Pavel Domkin. The material presented is not a sufficient basis for taking independent legal action. Use of the contents of the publication is permitted by the author provided there is an active link to the source.
The established practice of investigating criminal cases related to the illicit trafficking of pornographic materials on the Internet is everywhere accompanied by the unconditional incrimination of the accused by paragraph “b” of part 3 of Article 242 of the Criminal Code of the Russian Federation or paragraph “d” of part 2 of Article 242.1 of the Criminal Code of the Russian Federation, that is, the filing of charges of committing a crime “using the media, including information and telecommunication networks (including the Internet).” Moreover, representatives of the prosecution (investigators, prosecutors) regard such practice as undeniable, based on the significant number of court decisions that have entered into legal force. It can be assumed that the appearance of court decisions that confirmed the legality of imputation of paragraphs “b” and “d” of these articles is the consequences of the accused persons’ blind recognition of the charges brought in full and their choice of a special procedure for the consideration of a criminal case by the court in order to minimize the imposed punishment.
Despite the established order of things, the author of this publication proposes to once again address the issue of the legality of incriminating these qualifying characteristics, if the crime of illegal distribution of pornographic materials, including with the participation of minors, was actually committed using Internet resources.
A detailed analysis of the provisions of the criminal law clearly shows that the disposition of Articles 242 and 242.1. The Criminal Code of the Russian Federation presupposes the possibility of applying the qualifying feature in question only in the case when an unlawful act was committed using Internet resources registered as mass media.
From the literal interpretation of the content of clause “b”, part 3, article 242 of the Criminal Code of the Russian Federation and clause “d”, part 2, art. 242.1 of the Criminal Code of the Russian Federation it follows that when constructing the norms of the law between the phrases “using the media” and “information and telecommunication networks (including the Internet)”, the legislator used an adjunct phrase with the conjunction “including”, which, in accordance with according to the rules of interpretation of the Russian language, it is used when attaching a member of a sentence that is part of the whole, which is spoken of in the first part of the sentence (See the explanatory dictionary of Efremova T.F.).
Thus, the phrase “information and telecommunication networks (including the Internet)” is part of the whole , that is, an integral part of the phrase “mass media”. From the above it follows that clause "b" part 3 of article 242 of the Criminal Code of the Russian Federation and clause "d" part 2 of art. 242.1 of the Criminal Code of the Russian Federation is applicable in the criminal classification of acts only in cases where illegal actions were committed using sites that are mass media.
According to Article 2 of the Law of the Russian Federation dated December 27, 1991 No. 2124-1 “On the Mass Media,” periodical printed publications, television channels, radio channels, online publications, etc. are recognized as such. In turn, an online publication means a website on the Internet information and telecommunications network, registered as a mass media outlet in the manner prescribed by law.
Statistics show that the vast majority of crimes related to the illegal trafficking (distribution) of pornography are committed without any direct or indirect use of Internet resources registered as mass media. From the explanatory provisions contained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2010 N “On the practice of application by courts of the Law of the Russian Federation “On the Mass Media””, it follows that persons who have committed violations of the law when distributing mass information through sites on the Internet are not registered as mass media bear criminal , administrative, civil and other liability in accordance with the legislation of the Russian Federation without taking into account the specifics provided for by the legislation on mass media.
The illegality of the accusation under paragraph “g” of Part 2 of Art. 242.1 of the Criminal Code of the Russian Federation
The stated position of the author of the publication is confirmed in the private opinions of senior representatives of the judiciary. Thus, from the content of official review No. 3-ВС-4225/15 dated 07/08/2015 by Deputy Chairman of the Supreme Court of the Russian Federation V.A. Davydov it follows that the qualifying feature provided for in paragraph “d” of Part 2 of Article 242.1 of the Criminal Code of the Russian Federation in the current edition - “using the media, including information and telecommunication networks (including the Internet)” applies only to those Internet resources that are registered as media.
Taking into account the above, the investigative bodies’ incrimination of paragraph “b” of Part 3 of Article 242 of the Criminal Code of the Russian Federation and paragraph “d” of Part 2 of Article 242.1 of the Criminal Code of the Russian Federation is based on the erroneous understanding that committing a crime using Internet resources is an alternative qualifying feature for committing a crime with using the media. Such an interpretation of the law is applicable only in cases where such a possibility is directly provided for in the disposition of the criminal law. For example, in Part 2 of Article 280 of the Criminal Code of the Russian Federation, the legislator established a qualifying feature - “using the media or information and telecommunication networks, including the Internet.” Wording of a qualifying characteristic similar in content is contained in Part 2 of Article 205.2 of the Criminal Code, Part 2 of Article 280.1 of the Criminal Code of the Russian Federation, Article 282 of the Criminal Code of the Russian Federation.
Lawyer Pavel Domkin
Acquittal under Article 242.1. Criminal Code of the Russian Federation
Practice of application of Article 242.1 of the Criminal Code of the Russian Federation
Criminal liability under Article 242 of the Criminal Code of the Russian Federation
Criminal liability for distributing pornography on the Internet
Blocking sites with pornographic content. Risks of bringing the website owner to criminal liability
