Acquittal of a convicted person under Art. 242, 242.1 of the Criminal Code of the Russian Federation in the cassation instance with the right to rehabilitation.

Acquittal of a convicted person under Art. 242, 242.1 of the Criminal Code of the Russian Federation in the cassation instance with the right to rehabilitation.

case No. 77-1042/2020

DECISION of the court of cassation

Kemerovo June 17, 2021

Judicial panel for criminal cases of the Eighth Court of Cassation of General Jurisdiction, consisting of: presiding Lazareva O.N., judges Starchikova E.V., Tseneva E.V., with the participation of: prosecutor Ushakova E.S., defense lawyer Vlasov A.N. ., who presented certificate No. 1621 dated June 5, 2012 and order No. 30 dated June 11, 2020, with the secretary of the court session Koval A.N. considered in open court the cassation appeal of lawyer A.N. Vlasov. in defense of the convicted S-va G.A. on the verdict of the Sovetsky District Court of Krasnoyarsk dated March 4, 2021.

Having heard the report of judge Lazareva O.N., the opinion of lawyer Vlasov A.N., who insisted on satisfying the cassation appeal, the opinion of prosecutor Ushakova E.S., who considered it necessary to cancel the court verdict, the criminal case against S. G.A. stop due to the absence of corpus delicti in his actions with recognition of his right to rehabilitation, judicial panel

INSTALLED:

by the verdict of the Sovetsky District Court of Krasnoyarsk dated March 4, 2019, S-in G... A..., born —— in ———, citizen of the Russian Federation, unconvicted: convicted using Art. 64 of the Criminal Code of the Russian Federation according to: - clause “b”, part 3, art. 242 of the Criminal Code of the Russian Federation to 1 year 6 months of imprisonment - clauses “a”, “d”, part 2 of Art. 242.1 of the Criminal Code of the Russian Federation, 2 years of imprisonment. Based on Part 3 of Art. 69 of the Criminal Code of the Russian Federation for the totality of crimes, by partial addition of the imposed punishments, 2 years and 2 months of imprisonment were finally imposed to serve the sentence in a general regime correctional colony. The preventive measure chosen was detention. The sentence was calculated from March 4, 2019.

Based on paragraph “b” of Part 3.1 of Art. 72 of the Criminal Code of the Russian Federation, the time of detention of S-va G.A. in custody from the moment of detention until the entry into force of the sentence is counted towards the term of imprisonment at the rate of one day of detention for one and a half days of serving the sentence in a general regime correctional colony, taking into account Part 3.3 of Art. 72 of the Criminal Code of the Russian Federation. Issues regarding the imposition of procedural costs and the fate of material evidence were resolved. The sentence was not reviewed on appeal.

In the cassation appeal, lawyer Vlasov A.N. in defense of the convicted S-va G.A. expresses disagreement with the court verdict, citing significant violations of criminal and criminal procedural law committed by the court. Believes that the court, satisfying the petition of S-va G.A. on consideration of a criminal case in a special judicial procedure, in violation of Art. 316 of the Code of Criminal Procedure of the Russian Federation was not convinced that the charge with which the defendant agreed was justified and supported by evidence collected in the criminal case. Indicates that S-v G.A., downloading and storing files with pornographic images on a personal computer, did not take actions aimed at transferring them to third parties, and used these files exclusively for personal viewing. The descriptive and motivational part of the verdict also does not contain an indication that S-ev G.A. transferred files of pornographic content in his possession to someone.

Notes that the crimes provided for in Art. 242, 242.1 of the Criminal Code of the Russian Federation can only be committed with direct intent; committing the actions specified in the disposition of these articles with indirect intent does not entail criminal liability. Referring to Art. 2 of the Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media”, the explanations given in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2010 No. 16 “On the practice of application by courts of the Law of the Russian Federation “On the Mass Media”, draws attention to violation of the criminal law when qualifying the actions of S-va G.A. on the basis of “using the media, including information and telecommunication networks (including the Internet)”, based on the erroneous understanding that the use of Internet resources is an alternative qualifying feature in relation to the use of the media, while, on the contrary, the use of information and telecommunication networks (including the Internet) is one of the ways to use the media, but this requires registration of an Internet resource as a mass media. The complaint asked to cancel the sentence and send the criminal case for a new trial; in the court of cassation he asked to cancel the verdict, to terminate the criminal case due to the absence of S-va G.A. elements of a crime.

Having checked the materials of the criminal case, the arguments of the cassation appeal of lawyer A.N. Vlasov. in defense of the convicted S-va G.A. The panel of judges comes to the following conclusions. In accordance with Part 1 of Art. 401.15 of the Code of Criminal Procedure of the Russian Federation, the grounds for canceling or changing a sentence, ruling, or court decision when considering a criminal case in the cassation instance are significant violations of the criminal or criminal procedural law that influenced the outcome of the case.

In this case, violations were committed that fall within the specified criteria. By virtue of Art. 297 of the Code of Criminal Procedure of the Russian Federation, the sentence must be legal, reasonable and fair and is recognized as such if it is pronounced in accordance with the requirements provided for by the criminal procedure law and is based on the correct application of the criminal law. The court's verdict does not meet these requirements.

By virtue of paragraph 2 of Art. 49 of the Constitution of the Russian Federation, the accused is not obliged to prove his innocence. Parts 3, 4 tbsp. 14 of the Code of Criminal Procedure of the Russian Federation establishes that the burden of proof lies on the prosecution; a conviction cannot be based on assumptions.

By virtue of Part 7 of Art. 316 of the Code of Criminal Procedure of the Russian Federation, a judge, considering a criminal case in a special order, pronounces a guilty verdict if he comes to the conclusion that the accusation agreed with by the defendant is justified and supported by evidence collected in the criminal case. This provision of the law in its relationship with the provisions of Part 3 of Art. 7, Art. 11 of the Code of Criminal Procedure of the Russian Federation predetermines not only the right, but also the duty of the court in the framework of criminal proceedings in accordance with Chapter 40 of the Code of Criminal Procedure of the Russian Federation to make sure that the charge brought against a person is justified and supported by evidence collected in the criminal case that meets the requirements of Art. 74 of the Code of Criminal Procedure of the Russian Federation, and at the same time do not contain the procedural flaws listed in Art. 75 of the Code of Criminal Procedure of the Russian Federation. If the court determines that the conditions under which the petition was filed are not met, as well as if doubts arise about the validity of the charges brought, including the corpus delicti, or the reliability and admissibility of the evidence collected in the case, the court makes a decision to terminate the special procedure for the trial and appointment of consideration of a criminal case in accordance with the general procedure.

According to the verdict of S-in G.A. convicted of illegal distribution of pornographic materials, committed using information and telecommunication networks (including the Internet), as well as for distribution of materials with pornographic images of minors, committed against a person under fourteen years of age, using information and telecommunication networks (including Internet"). As follows from the verdict, S-in G.A. no later than June 19, 2021, being in his home, having access to the Internet information and telecommunications network, through a peer-to-peer program installed on his computer, which allows users to exchange files by connecting to file-sharing servers, downloaded from an unidentified Internet site " and saved in folders on his personal computer a video file containing pornographic materials without the participation of minors, as well as a video file containing pornographic materials depicting a minor under the age of fourteen, after which, for the purpose of distributing these materials, he opened access to the laptop drive specified folders, which automatically became publicly available for viewing and copying to an unlimited number of Internet users who have the corresponding program installed on their computer.

Criminal case at the request of S-va G.A. considered in a special judicial procedure provided for in Chapter 40 of the Code of Criminal Procedure of the Russian Federation. Meanwhile, the court did not take into account that the subjective side of the crimes provided for in Art. 242 and 242.1 of the Criminal Code of the Russian Federation, is characterized by the presence of direct intent on the part of the perpetrator, that is, by virtue of Art. 25 of the Criminal Code of the Russian Federation, the perpetrator must be aware of the social danger of his actions (inaction), foresee the possibility or inevitability of the occurrence of socially dangerous consequences and desire their occurrence.

However, the plot of the charge brought and the descriptive and motivational part of the verdict do not contain data that S-in G.A., downloading (copying) and storing files of a pornographic nature on his personal computer, offered or transferred them to anyone; evidence confirming that video files with images of a pornographic nature, including of minors, specified in the verdict, were distributed by the convicted person, that is, received and viewed by other specific persons as a result of the deliberate actions of the convicted person, is also absent from the criminal case materials. The court did not take into account that the presence of G.A. a computer program that allows you to download and distribute files to other users automatically, and his awareness of this, do not in themselves indicate direct intent to commit crimes under Art. 242 and 242.1 of the Criminal Code of the Russian Federation, since at the time of his acquisition (downloading, copying) of these files they were already distributed on the Internet and were freely available. In addition, the court did not take into account that, within the meaning of the law, taking into account the provisions of the Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media”, also the explanations given in the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 15, 2010 No. 16 “ On the practice of application by courts of the Law of the Russian Federation “On the Mass Media”, the qualifying feature of these crimes “using the media, including information and telecommunication networks (including the Internet”) applies only to Internet resources that are registered as means mass media. However, the plot of the accusation and the descriptive and motivational part of the verdict do not contain information that S-v G.A., using his personal computer on which pornographic files were stored, was registered as a representative of the media.

Thus, G.A., brought against S. the accusation, as formulated by the preliminary investigation authorities, was not confirmed by objective evidence obtained during the preliminary investigation. However, the court, in violation of the law, did not discuss the issue of considering the case in a general manner, while there were grounds for clarifying and establishing the above circumstances, which were essential for the correct resolution of the case, and ruled a guilty verdict in accordance with Art. Z16 Code of Criminal Procedure of the Russian Federation.

Meanwhile, a conviction cannot be based on assumptions and is made only if during the trial the defendant’s guilt of committing a crime is proven. All doubts about the guilt of the accused, which cannot be eliminated in the manner established by the criminal procedure law, are interpreted in favor of the accused. The court of first instance did not take into account these circumstances, which could have significantly influenced the conclusions about the guilt of S-va G.A., which led to the imposition of an illegal sentence.

Under such circumstances, the judicial panel comes to the conclusion that the verdict against S-va G.A. and termination of the criminal case against him on the basis of paragraph 2 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation due to the absence in his actions of the elements of crime provided for in paragraphs. “a”, “d” part 2 art. 242.1, clause “b”, part 3, art. 242 of the Criminal Code of the Russian Federation, with recognition for S-vym G.A. rights to rehabilitation.

Based on the above and guided by Art. 401.14 - 401.16 Code of Criminal Procedure of the Russian Federation, judicial panel

DEFINED:

cassation appeal by lawyer Vlasov A.N. in defense of the convicted S-va G.A. to satisfy. The verdict of the Sovetsky District Court of Krasnoyarsk dated March 4, 2021 in relation to S-va G... A... is cancelled, the criminal case against him is terminated on the basis of clause 2 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation for the absence in his actions of the elements of crime provided for in paragraph “b” of Part 3 of Art. 242, pp. “a”, “d” part 2 art. 242.1 of the Criminal Code of the Russian Federation. S-va G…. A…. be released from custody immediately. Based on clause 4, part 2, art. 133, part 1 art. 134 of the Code of Criminal Procedure of the Russian Federation recognize the right to rehabilitation for S-vym G... A....

Chairman:

Judges:

Features of the investigation of criminal cases related to the distribution of child pornography.

Commentary to Art. 242.2 of the Criminal Code

1. Victims are persons who have reached the age of 14, but have not reached 18 years of age. Responsibility arises for the use by a person of a minor for the purpose of producing pornographic materials or objects.

2. The objective side is characterized by the actions listed in the disposition of the article, committed in relation to persons under 18 years of age. The purpose of producing or distributing pornographic items and materials is mandatory. Involving a minor as a performer to participate in a spectacular event of a pornographic nature is inducing in any way a teenager to participate in the event, obtaining the latter’s consent to perform the role assigned to him with pornographic content, or organizing an event of a pornographic nature with the participation of a minor.