Liability for Crimes of Extremism within the Context of the Federal

Law “on Operational Search Activities”

Vladimir P. Konyakhin

, Tatyana Yu. Batyutina

and Ruslan G. Aslanyan

Department of Criminal Law and Criminology, Kuban State University, Krasnodar, Russia

Keywords: Criminal Law, Operational and Investigative Activities, Crimes of Extremism, Exemption from Criminal

Liability.

Abstract: The purpose of this research is to identify a set of issues related to criminal liability for extremist crimes in

terms of Federal Law "On Operational Search Activities" dated August 12, 1995. The objectives of the

research are to identify the current trends in extremist activity and to examine the provisions of the Criminal

Code and the Federal Law "On Operational Search Activities" in terms of their deficiencies and conflicts,

which will allow more effective counteraction to this group of crimes. Theoretical basis of the research is

the works of Russian and foreign scientists and lawyers. The empirical basis of the study is the official

statistical data (2013 - February 2021). Based on the information resources studied, the dynamics of the

crimes in question has been identified, characterized by a predominant upward trend. It has been

documented that in the current context of the global pandemic, extremism has taken on new trajectories,

involving the increased use of telecommunication technologies with its funding taking the form of charity. It

is noted that the Law "On Operational Search Activities" retains its autonomous regulatory value for

criminal law of the Russian Federation in the context of exemption from criminal liability for those

members of a criminal group, cooperating with the body, engaged in the operational-search activity (Article

18 (4)). However, the relevant regulations contradict both the terminology of criminal law and the notes to

Articles 282.1 and 282.2 of the Criminal Code of the Russian Federation. It concludes that the Criminal

Code provisions shall prevail, as they are based on the voluntariness of ceasing criminal activity and do not

require additional positive post-criminal behavior.

1 INTRODUCTION

One of the prerequisites for this study was the trend

towards an increase in the number of registered

extremist crimes observed in Russia in recent years:

from 896 in 2013 to 1,265 in 2018. However, in

2019 there was a significant decrease in their

number (585). However, this figure is not so much

due to inaction by extremist organizations but rather

to changes in criminal legislation (Akram et al.,

2021). 833 crimes of extremism were committed in

2020, and in January-February 2021 they amounted

to 149 (Beshukova, 2020). Although their relative

share in the total number of crimes recorded during

the relevant periods is only 0.0004%, the public

danger of these attacks is not reduced and is

expressed in the real possibility of large-scale

negative consequences in the form of destabilization

of the socio-political situation in the country.

In the context of a global coronavirus pandemic,

extremism is taking the following trajectories. First,

the spread of criminal ideology through the use of

information and telecommunication technologies is

intensifying (Borovkov and Borovkova, 2017;

Costello et al., 2016). In particular, in 2020, 340

public calls for extremist activities were committed

in this way in Russia (Article 280 of the Criminal

Code) (Beshukova, 2020). Secondly, a new form of

financing extremist activities has emerged, disguised

as charity: cases of criminal use of funds to support

victims of COVID-19 have been documented around

the world (Dzebisov, 2019). On the whole, it must

be stated that various social and economic issues

have worsened precisely against the background of

the pandemic, which has led to a reduction in the

educational impact of educational institutions and

other cultural and leisure facilities due to the shift to

a distance format.

It is also worth noting that on May 29, 2020 the

President of the Russian Federation adopted a new

version of the Strategy for Combating Extremism in

378

Konyakhin, V., Batyutina, T. and Aslanyan, R.

Liability for Crimes of Extremism within the Context of the Federal Law “On Operational Search Activities”.

DOI: 10.5220/0010643400003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

378-382

ISBN: 978-989-758-532-6; ISSN: 2184-9854

the Russian Federation until 2025, which identified

the improvement of legislation and law enforcement

practice in this area as one of the challenges of State

policy. Addressing it appears to involve analysis of

the range of problems associated with criminal

liability for extremist crimes, both from the

perspective of the current Criminal Code of the

Russian Federation and its relationship to other laws

and regulations, including the Federal Law "On

Operational Search Activities".

Modern legal doctrine pays considerable

attention to the factors contributing to the spread of

extremism (T. Frissen, C.M. Parra, M. Gupta, P.

Mikalef, M. Akram, A. Nasar, A. Rehman, M.

Costello, J. Hawdon, T. Ratliff, T. Grantham); the

concept and content of extremist activities (Z.M.

Beshukova, N.A. Zhukova, I.A. Yaroshchuk);

optimization of systemic ties between the Criminal

Code of the Russian Federation and the Federal Law

"On Operational Search Activities" (V.B. Borovkov,

V.V. Borovkova, I.A. Wormsbecher), operational

and investigative countering some extremist crimes

(P.I. Ivanov, T.N. Belyaeva). At the same time, it

seems that the development of promising models for

the prevention of the multidimensional phenomenon

of extremism (and its individual manifestations) is

currently particularly relevant and requires a

comprehensive approach.

Scientific novelty of the research is determined

by the analysis of regulations on the exemption from

criminal liability, enshrined in the Federal Law "On

Operational Search Activities", in comparison with

the content not only of the General, but also the

Special (notes to Article 282.1 and Article 282.2)

part of the Criminal Code of the Russian Federation,

as well as with the foreign criminal legislation.

The purpose of this research is to identify the

range of problems related to criminal liability for

extremist crimes in terms of the Federal Law "On

Operational Search Activities". The objectives of the

research are to identify the current trends in

extremist activity and to examine the provisions of

the Criminal Code and the Federal Law "On

Operational Search Activities" in terms of their

deficiencies and conflicts, which will allow more

effective counteraction to this group of crimes.

2 MATERIALS AND METHODS

The theoretical foundation of the research was

formed by the works of Russian legal scholars (T.N.

Belyayeva, Z.M. Beshukova, V.B. Borovkov, V.V.

Borovkova, I.A. Wormsbecher, A.T. Dzebisov, N.A.

Zhukova, P.I. Ivanov, V.P. Konyakhin, I.A.

Yaroshchuk), scholars from Netherlands (T.

Frissen), Norway (M. Gupta, P. Mikalef, C.M.

Parra), USA (M. Akram, M. Costello, T. Grantham,

J. Hawdon, A. Nasar, T. Ratliff, A. Rehman) and

Uzbekistan (M. Niyazov). The legal basis of the

research is presented by the Criminal Code of the

Russian Federation, Federal Law "On Operational

Search Activities" No. 144-FZ, dated August 12,

1995, the Decree of the President of the Russian

Federation "On the Approval of the Strategy for

Countering the Extremism in the Russian Federation

until 2025" No. 344, dated May 29, 2020, the Order

of the Investigative Committee of Russia "On

Measures to Counter Extremist Activities" No. 109,

dated July 12, 2011, as well as the Criminal Codes

of the Republic of Belarus, the Republic of

Kazakhstan, Ukraine and the Code of Criminal

Procedure of the Republic of Kazakhstan. The

empirical framework includes Determination of the

Constitutional Court of the Russian Federation No.

2875-O, dated December 22, 2015, as well as the

official statistics from the Main Information and

Analysis Center of the Ministry of Internal Affairs

for the period from 2013 to February 2021. The

methodological background of the research was

formed by general scientific methods of inquiry:

dialectical and systematic structural, and as

particular scientific methods – legalistic and

statistical.

3 RESULTS AND DISCUSSION

Both the legal definition of extremism and its

doctrinal characterization are multidimensional 6.

In particular Z.M. Beshukova, based on the scope of

this concept, identifies a three-tiered system of

relevant crimes, including: a certain range of acts

enshrined in Chapter 29 of the Criminal Code

(which would appear to include Article 280.2),

offences related to terrorist activities, criminal

offences in which extremist motives are a mandatory

element of the offence, any other offences

committed for the above reasons, acting as

aggravating circumstances, and other offences

"conditionally related to extremist activities" (for

example, Articles 136, 141 of the Criminal Code)

(Akram et al., 2021).

In light of the above, it is clear that a whole

system of law enforcement agencies is involved in

the process of countering extremist activity. Thus, in

2020, the internal affairs agencies detected 500

extremist crimes, the Federal Security Service

Liability for Crimes of Extremism within the Context of the Federal Law “On Operational Search Activities”

379

detected 294 crimes, procuracy bodies detected 27

crimes, investigative agencies of the Investigative

Committee detected 9 and the penal correction

agencies detected 1 crime (Beshukova, 2020). The

fields of investigative activities within the

framework of countering extremism are also quite

broad. It is no coincidence that the Investigative

Committee points out the need for a whole range of

investigative measures, including measures to

suppress extremist crimes, to detect, neutralize and

disband emerging and active youth nationalist

groups and other extremist communities, to identify

and eliminate the sources and channels of funding of

extremism, and to counter the use of the Internet for

extremist purposes. All these should not exclude but

be carried out in a manner that strictly respects

human rights and freedoms Ivanov, P.I., (Belyaeva,

2017).

It should be particularly emphasized that the

Federal Law "On Operational Search Activities"

currently retains, to a certain extent, its autonomous

regulatory value for Russian criminal law, since it

supplements its General Part with the possibility of

exemption from criminal liability for a member of a

criminal group, cooperating with the body carrying

out the investigative work (Article 18 (4))

(Konyakhin, 2002). This legal provision has been

repeatedly criticized due to its conflict with the

articles of the General Part of the Criminal Code

providing for grounds for exemption from criminal

liability, as well as the lack of a statutory mechanism

for its implementation (Niyazov, 2020).

The most obvious characteristics of the

inconsistency between the established rule and the

content of the Criminal Code are as follows. First,

Article 18 (4) of the Federal Law "On Operational

Search Activities" uses the term "unlawful action",

which seems unsuitable due to several

circumstances. The literal interpretation of such

wording suggests that the regulation in question

applies to violations of rules of any sector. However,

it goes without saying that the commission of an

administrative offence or a civil tort and the

exemption from criminal liability cannot be linked to

the functions performed in cooperation with the

investigative body (https://legalacts.ru, 2015). If,

however, we ignore such a wording and presume

that this is a crime, there is no justification for using

only one of its characteristics – wrongfulness – and

levelling out the menace to public. In particular, the

perpetrator of an illegal but insignificant act shall

not be exempt from criminal liability, but shall not

subject to it at all. In addition, the analyzed

regulation does not explicitly stipulate that an

unlawful action must be among the crimes that the

person has actively contributed to solving, which is

highly debatable. Finally, there is no indication of

the category of crime committed. Restriction in

Chapter 4, Article 18 of the Federal Law "On

Operational Search Activities" is established by the

legislator only in relation to the onset of grave

consequences, without specifying whether these are

the constructive features of individual offences or

some discretionary powers of the court in assessing

the factual circumstances of any action.

Secondly, as one of the conditions for the

exemption from criminal liability in the case in

question, the law provides for the fact that a person

has been involved in cooperation with the body

carrying out the operational search activity. In the

context of this research, it can be agreed that an

important aspect of countering extremist activity is

timely and rapid disruption of its funding channels

and sources (Parra et al., 2021). However, the

systematic material support for the relevant criminal

abuses appears to be provided by persons of

majority age. At the same time, the promotion of

extremist ideology and dissemination of related

materials is also increasing among adolescents

(https://mvd.rf, 2021; Wormsbecher, 2016). Given

that the age of criminal liability for offences related

to extremist activities is 16 years, the question of

investigative measures involving minors remains

relevant (Wormsbecher, 2018). Content of Article

17 (1) and (2) of the Federal Law "On Operational

Search Activities" shows that the assistance to the

bodies, engaged in the operational-search activity

may be contractual with adult legally capable

persons. In this regard, the Constitutional Court of

the Russian Federation has clarified that assistance

of minors in the preparation or the carrying out of

the operational-search measures is only possible on a

non-contractual basis (Zhukova and Yaroshchuk,

2020).

Thus, a comparative analysis of the legislative

description of the conditions of exemption from

criminal liability contained in Article 18 (4) of

Federal Law "On Operational Search Activities" and

notes to Article 282.1 "Organizing an Extremist

Community" and Article 282.2 "Organizing the

Activity of an Extremist Community" of the

Criminal Code of the Russian Federation allows for

the conclusion that the latter are prioritized, as they

are based on the voluntary cessation of the criminal

activities of the organizers and other participants in

these crimes and do not require additional positive

post-criminal behavior.

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At the same time, it is worth noting that the idea

of exemption from criminal liability in the presence

of a cooperation contract deserves support, but

requires detailed elaboration both in terms of

legislative provisions and the nuances of its

application in practice. Speaking in favor of the idea

of including in the Criminal Code of the Russian

Federation of all the regulations inherent in its

Common Part, we note the presence of positive

experience of foreign states in this area. Thus,

Article 67 of the Criminal Code of the Republic of

Kazakhstan provides for the possibility (rather than

the obligation) of exemption from criminal liability

for a person who has fulfilled all the conditions of a

procedural agreement. At the same time, Article 612

of the Code of Criminal Procedure of the Republic

of Kazakhstan specifically establishes that the

cooperation contract shall be aimed at facilitating the

detection and investigation of extremist and terrorist

crimes, and, crucially, conclusion of such a contract

shall not constitute the grounds for exempting a

person from civil liability to the victims and the civil

plaintiff. An even more radical position on this issue

is taken by the legislators of Ukraine (Article 43 of

the Criminal Code) and Belarus (Article 38 of the

Criminal Code), who regard this circumstance as

precluding criminality of an action.

4 CONCLUSIONS

In summarizing all of the above, it can be stated that

the primary areas of harmonization of the system

links between the Criminal Code and the Federal

Law "On Operational Search Activities" are as

follows:

1) The Criminal Code of the Russian Federation

shall regulate the conditions of exemption from

criminal liability for persons assisting bodies

involved in operational and search activities;

2) the content of the Federal Law "On Operational

Search Activities" shall be brought in line with the

conceptual and categorical framework of the

Criminal Code of the Russian Federation. It seems

that the further search for an optimal legislative

model for countering extremism in Russia should be

carried out through an analysis of the entire set of

existing legal acts in this field.

ACKNOWLEDGEMENTS

The research was carried out with the financial

support of the Kuban Science Foundation in the

framework of the scientific project № ФНИ-ГО-

20.1/16.

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