Tag Archives: criminal law

Criminal Responsibility for the Dissemination of Discrediting Materials Concerning the Armed Forces According to the Russian Criminal Code

New Article (double blind peer review), , , ,

“No one is more hated than he who speaks the truth.”― Plato

 

  1. Introduction: History of freedom of speech restrictions in Russia in the last decades

 

The issue of freedom of speech in the Russian Federation has been a significant concern for an extended period. Since the novelization was submitted to legislation in 2022, the topic of criminal responsibility for the dissemination and discrediting of the armed forces of the Russian Federation has not been extensively analyzed within academic circles.

The provision itself of freedom of speech has been a significant problem in the Russian Federation for quite some time. In 2022, Russia was ranked 155th out of 180 countries in the World Press Freedom Index by Reporters Without Borders (world press freedom index) highlighting the pervasive challenges to freedom of expression. Over the past decade, a series of legal acts aimed at limiting this fundamental right have been consistently enacted. Among the earliest and most notable of these was the “Nontraditional Sexual Relationship Censorship Law,” commonly referred to as the “Russian Gay Propaganda Law” (О защите детей от информации, причиняющей вред их здоровью и развитию), which was introduced in 2013.

The law concerning the discrediting of the armed forces is one among many that have been adopted to suppress freedom of speech in Russia. A comprehensive list of relevant legislation includes:

  • Law on Foreign Agents (121-FZ) adopted 21 November 2012;
  • Law on Disrespecting Authorities it is a group of 2 Federal laws (30-FZ and 28-FZ), adopted by State Duma on on 7 March and signed by the President of Russia on 18 March 2019;
  • Law on Undesirable Organizations (N 129-FZ) signed by the President of Russia on 23 May 2015;
  • Law on Media and Blogger Control (“Yarovaya Law”) he Yarovaya law also Yarovaya package or Yarovaya — Ozerov package is a set of two Russian federal bills (374-FZ and 375-FZ), passed in 2016;
  • Law on Countering Extremist Activities (Federal Law No. 114-FZ) – which is continually updated with provisions suppressing freedom of speech and many others.

These legislative measures are designed to restrict public discourse and societal discussion, rendering it increasingly difficult to engage in meaningful dialogue regarding critical issues such as military actions, government activities, and civil rights. The vague wording of these laws transforms them into instruments of selective repression, enabling the government to maintain an appearance of legality while exerting pressure on specific individuals. Rather than being applied uniformly, these laws create an atmosphere of fear and self-censorship among the populace.

The trajectory of the Russian legal system indicates a movement toward harsher penalties and fewer avenues for individuals to express dissenting opinions. Consequently, any public statement may result in administrative fines or even criminal charges.

Moreover, these laws fundamentally contradict the Russian Constitution, which guarantees freedom of speech under Article 29. They effectively introduce censorship, explicitly prohibited by the Constitution, and are applied selectively, thereby undermining the principle of equality before the law as articulated in Article 19. Additionally, these legislative measures contravene international agreements ratified by Russia, including the European Convention on Human Rights.

While the topic of freedom of speech has been widely discussed on social media, the annexation of Crimea in 2014 understandably drew heightened public attention to these issues. In subsequent military scenarios, Russian authorities have employed similar legal strategies to avoid public escalation of controversial topics and to prevent social disobedience.

Furthermore, restrictions on freedom of speech have often been justified by the government through axiological excuses such as “inevitable measures.” Despite the constitutional guarantee of freedom of speech, authorities possess considerable discretion to suppress statements or activities that lack official endorsement, largely due to the ambiguous nature of laws pertaining to extremism.

As was mentioned, despite the freedom of speech being guaranteed under the Article 29 of the Constitution of the Russian Federation, the authorities have considerable discretion to suppress any statements or activities that are not officially supported due to the ambiguous laws on extremism (Federal Law No. 114-FZ of July 25, 2002 “On Countering Extremist Activity”).

The government undeniably dominates the media landscape in Russia, exerting control over the majority of the nation’s television, radio, and newspaper networks, as well as the digital advertising market. This control is achieved either directly or through state-owned enterprises and allied business magnates.

In the days following February 24, 2022, Russian authorities intensified their efforts to suppress critical voices and independent media outlets. They issued threats to block access to numerous media platforms or impose fines unless these outlets restricted their reporting to align exclusively with the official narrative propagated by the Kremlin.

On March 4, 2022, both chambers of the Russian parliament adopted and submitted for the President’s signature a draft law amending the Criminal Code of the Russian Federation. On the same day, the President signed the amendment, resulting in the incorporation of three new articles into the Criminal Code. (Notably it was one of the fastest enacted amendments in the history of the Russian legislator.)

Article 207.3 of the Criminal Code of the Russian Federation delineates the responsibility for the “public dissemination of information regarding the use of the Armed Forces of the Russian Federation in the interest of protecting the Russian Federation and its citizens, as well as ensuring the stability of international peace and security, with the knowledge that this information is false.”

Similarly, Article 280.3 introduces liability for public actions aimed at “discrediting the use of the Armed Forces of the Russian Federation for the purpose of protecting the interests of the Russian Federation and its citizens, and ensuring the sustainability of international peace and security, including through public calls to oppose such use of force.”

The aforementioned regulations are accompanied by penalties ranging from a fine of RUB 700,000 (approximately €6,700) to a maximum of three years’ imprisonment. A serious violation of this prohibition, classified as a qualified form of the offense, is punishable by imprisonment for a term of 10 to 15 years.

Additionally, Article 284.4 of the Criminal Code imposes an extra penalty of up to RUB 500,000 (approximately USD 4,429) or a fine equivalent to the convict’s total wages over a period of up to three years for making calls to foreign states or companies to impose new or extend existing political or economic sanctions against Russia, its citizens, or Russian legal entities.

A pertinent question that arises upon reviewing the content of these articles is: how can one distinguish between the different offenses outlined? According to the guidelines prepared by the Ministry of Justice in June 2022, a “statement of fact” (for example, “an army battalion invaded a city and carried out…”) is classified under the article concerning “public dissemination of information” (Article 207.3 of the Criminal Code), whereas a negative “opinion” regarding the actions of the military (for instance, “I disagree with what is happening in city N”) falls under the category of “discredit” (Article 280.3 of the Criminal Code). Notably, the term “fake” is referenced in these guidelines, despite the absence of such terminology in the legislation itself (cf. A. Jegupiec).

According to the Article 207.3, the main task of the expert in the analysis of public statements is “to establish the method of presentation of the information contained in the material”. If “information is submitted in the form of statements about facts and events,” this “allows the law enforcement officer to establish its falsity or reliability.” According to lawyer Maria Eismont, “the investigation usually turns to psychological and linguistic or simply linguistic expertise, which is based on a comparison of the distributed message with official information presented by manuals of the Ministry of Defense and the Ministry of Foreign Affairs of the Russian Federation” (A. Jegupiec).

According to the Article 280.3, the investigator’s task is “to establish the type of “extremist” meaning expressed in the material.” The Ministry of Justice offers three types of such values:

  • discrediting the use of the Armed Forces of the Russian Federation;
  • discrediting the execution by state authorities of their powers in order to protect the interests of the Russian Federation and its citizens;
  • inducement (including in the form of a call) to prevent the use of the Armed Forces of the Russian Federation.

 

  1. Methodological and theoretical approach

The documents selected for this analysis were purposively sampled based on being particularly relevant and informative concerning the topic of interest, i.e. the topic and leading questions of this article. Since the novelization was provided in 2022 and yet not many criminal cases have been completed, this research is based on the analysis of eleven sentences of Nalchik City Court of the Kabardino-Balkar Republic; Sverdlovsk District Court of the City of Kostroma; Odoyevsky District Court of the Tula region; Oktyabrsky District Court of the city of Tambov; Fokinsky District Court of the city of Bryansk;  the Kaluga district court of the Kaluga region; Petropavlovsk-Kamchatsky City Court of Kamchatka Territory; St. Petersburg City Court and others. Due to the lack of clear legislative definitions of the dissemination and discreditation we tried to extract these particular meanings from sentences and decisions of the law enforcement agencies.

To grasp the implications of the concept of dissemination and discreditation in the context of the human rights discourse on freedom of speech, a discourse-analytical approach was used. This theoretical approach is particularly relevant for Sect. 3, where the detailed analysis of the provided articles and recommendations of the Law enforcement agencies narratives associated with the frame of freedom of speech, which is directly guaranteed in the Constitution, will be discussed.

Therefore, this article will systematically analyze existing decisions and sentences of the Official Courts to find the comprehensive approach to the novelization of the Criminal Code . In doing so, it will address the following research questions:

– How are dissemination and discrimination defined in official documents?

– How they could be expressed (verbally in writing or by conclusive actions) and to which situations it could apply?

 – What are the objectives, motivations and legitimation for introducing and using these concepts in the analyzed documents?

– To which time period of the public announcement does the novelization refers to?

– How does the concept of dissemination and discreditation used in the analyzed documents compare, contradict or overlap with the concept of freedom of speech?

 

  1. Elements of “The dissemination and discreditation of the armed forces of the Russian Federation” crime

It is important to note that Article 280.3 of the Criminal Code of the Russian Federation comprises two paragraphs that differentiate between the “qualified” type of crime and the basic type of crime outlined in the first paragraph. The second paragraph of Article 280.3 establishes liability for the alleged discrediting of the Armed Forces of the Russian Federation if such actions result in death due to negligence, harm to the health of citizens, damage to property, mass violations of public order or public safety, or disruptions to the functioning or cessation of essential life support systems, transportation, or social infrastructure. Such actions are punishable by a term of imprisonment of up to five years.

Furthermore, Russian criminal law does not provide an exhaustive definition of what constitutes “serious consequences.” Consequently, law enforcement agencies may interpret this term to include significant financial losses, personal injuries, or fatalities, depending on the specific circumstances of the crime (S. V. Muradyan, 2023. № 1. p. 88).

The interpretation of what may constitute a “serious consequence of the dissemination” of allegedly false information is the exclusive competence of the prosecutor’s office.

Article 280.3 introduces culpability for public actions aimed at “discrediting the use of the Armed Forces of the Russian Federation in the sake of protecting the interests of the Russian Federation and its citizens and ensuring the sustainability of international peace and security, also with public calls to oppose [such as use of force]”.

The publicity of the data distribution implies its recipients to a specific group of people, based on the understanding of the “group” according to the Criminal Code of the Russian Federation. A group consists of two or more people, or an unlimited circle of people. They could be provided with the information in any form (from oral communication to written publication or by conclusive actions).

The review of the Supreme Court of the Russian Federation practice on Coronavirus infection (Review on Certain Issues of Judicial Practice Related to the Application of Legislation and Measures to Combat the Spread of New Coronavirus Infection (COVID-19) in the Russian Federation No 1) suggests that the attribute of publicity in dissemination of deliberately false information may occur not only while using mass media and telecommunications network (including the Internet; for example on websites, blogs or forums) but also while speaking at a meeting, conference or by distributing leaflets or hanging posters.

Criminal liability under Article 280.3 of the Criminal Code of the Russian Federation necessitates the establishment of administrative prejudice for a corresponding administrative offense. This requirement stipulates that accountability for an administrative violation must be determined within one year prior to pursuing criminal charges for a related act. In this context, Article 20.3.3 has been introduced into the Code of Administrative Offenses of the Russian Federation. This article addresses “public actions aimed at discrediting the use of the Armed Forces of the Russian Federation for the purpose of the interests of the Russian Federation and its citizens, as well as ensuring the sustainability of international peace and security, including through public calls to oppose such use of force.” The maximum penalty prescribed under this article is a fine of RUB 500000 (approximately EUR 5,000).

This legislative regulation is intended to deter offenders from further disseminating information or expressing opinions that may provoke criminal liability.

The object of the crime discussed in Article 280.3 of the Criminal Code of the Russian Federation encompasses public relations that safeguard the interests of the Russian Federation and its citizens, maintain peace and security, and uphold the moral image, authority, and dignity of the Russian Armed Forces. This includes the portrayal of the Russian soldier as a defender, as well as the reputations of embassies, the National Guard of the Russian Federation, the Ministry of Emergency Situations, the Prosecutor’s Office, and the Investigative Committee.

The actus reus element of the offense outlined in Article 280.3 is constituted by public actions intended to discredit the use of the Armed Forces of the Russian Federation in the pursuit of protecting the interests of the Russian Federation and its citizens.

Consequently, the article stipulates that either the method of commission must be public, or the context in which the act is committed must be public.

In this regard, a pertinent case merits discussion. A suspect, referred to as “N,” despite being implicated and subject to liability for a similar act, exercises parental authority. His young daughter engages in public actions aimed at discrediting the use of the Armed Forces of the Russian Federation (S. V. Muradyan, 2023. № 1. p. 88.). The suspect’s juvenile daughter “S”, while being in a public place — in the parking lot of a grocery store — was involved in the commission of an illegal act suggested by her father “N”. Following her parent’s instruction, she peeled off a sticker with the Latin letter “Z” from the rear windshield of the parked car. Then, she crumpled it and put in her pocket. This particular symbol shares the same colors with the official symbol of Victory Day in Russia — the St. George ribbon, which is one of the main designations used on the military personnel’s uniform and military equipment of the Armed Forces of the Russian Federation. Its purpose is to help operational forces distinguish themselves from other allied or enemy forces during the war. For these actions, “N” was subject to criminal responsibility under Part 1 of Article 280.3 and Part 2 of Article 150 of the Criminal Code of the Russian Federation (Sentence of Nalchik City Court of the Kabardino-Balkar Republic from June 24, 2022 in case # 1-818/2022).

Thus, in the available judicial practice, such statements as: “No war!”, “Stop the war!”, “I am against the war” and a number of others fell under the effect of this norm, in its administrative and criminal variant, in the case of the initial commission of these actions (The judgment of the Sovetsky district court of the city of Orel on March 18, 2022 No 5-559/2022).

In this case, the use of the term “War”, according to the law enforcement officer, already distorts the goals and objectives of conducting a special military operation by the Armed Forces of the Russian Federation on the territory of Ukraine and discredits their use in order to protect the interests of the Russian Federation and its citizens, maintain international peace and security.

At the same time, Sverdlovsk District Court of the City of Kostroma (Ruling of the Galich District Court of the Kostroma region on April 6, 2022 in case No. 5-384/202) demonstrated the position that visual agitation in the form of a public demonstration of a poster painted in colors of the flag of the Republic of Ukraine, containing the inscription: “I am against the special operation,” could be considered a dissemination and discreditation of the armed forces of the Russian Federation. The Court acknowledged it as a discrediting of the decision to conduct a “special operation” (the judgment of the Kaluga district court of the Kaluga region on case No 5-1330/2022).

In case of doubt as to whether the information under investigation is of a discrediting nature, it is necessary to conduct appropriate examinations and studies. Therefore, according to the conclusions contained in the linguistic research of the materials posted by an Internet user, they were rated as containing literary devices which discredit the Armed Forces of the Russian Federation and publicly calling for the imposition of foreign or international sanctions on the Russian Federation (The judgment of the Kaluga district court of the Kaluga region on case No 5-1330/2022).

Mens Rea of public actions, including public appeals, is characterized by guilt in the form of intention by taking actions aimed to discredit the use of the Armed Forces of the Russian Federation outside the Russian Federation in order to protect the interests of the Russian Federation and its citizens. The subject always should be aware of the public danger of their actions and want to act in this way. The motives and goals of such activities may be different (nationalistic, selfish, hooligan, etc.) and do not affect the qualification, but are considered in criminal punishment individualization.

In Part 2 of Article 280.3 of the Criminal Code, the attitude of the subject to the onset of grave consequences is characterized by a careless form of guilt (negligentia).

Since the corpus delicti provided in Part 1 of Article 280.3 of the Criminal Code of the Russian Federation is formal, the moment when the crime is (fully, effectively) committed can be considered as the moment when any public action aimed at discrediting of the use of Armed Forces is taken.

In terms of the composition of the administrative violation provided in Article 20.3.3 of the Administrative Code of the Russian Federation, the moment of the end of the commission of an administrative offence is interpreted by the courts as the direct placement of relevant materials on the public media, and their presence there for a certain period of time already gives the act a lasting character. Thus, the St. Petersburg City Court, in its decision of September 8, 2022 in case No. 12-3520/2022, 5-820/2022, recognized the act of representing on the Internet — the placement of V. V. P., information material in the form of a video recording lasting 05 min. 11 sec. — as a continuing offence, containing an appeal by V. V. P. himself, who is a deputy of the Municipal Council of the Yuzhno-Primorskiy district, to an unlimited circle of people, aimed at discrediting the use of the Armed Forces of the Russian Federation, in the public domain. According to the court, this administrative offence was ongoing, since the intent of V. V. P. It was aimed at the continued non-fulfillment of the obligation stipulated by legal regulations not to post illegal information on the Internet (Petropavlovsk-Kamchatsky City Court of Kamchatka Territory resolution of September 19, 2022 in case No 5-629/2022).

If such actions or appeals were connected with the use of mass media, then the crime should be considered completed from the moment of distribution of mass media products (for example, sale, distribution of periodicals, audio or video recordings of a program, the beginning of broadcasting of a television or radio program, providing access to online publication, etc.) (Decision of St. Petersburg City Court on September 8, 2022 in case No 12-3520/2022, 5-820/2022).

 

  1. Lex post facto. Responsibility for the data published before novelisation

The academic community has promptly identified a significant issue concerning the temporality of criminal liability associated with the offenses under discussion. The implications of internet posts uploaded prior to the novelization have become a highly debated topic among scholars, raising critical questions about the retroactive application of the law and the principles of legal certainty.

If the date of the commission of a crime is interpreted as the date on which information is posted on social networks, then content published before March 4, 2022 (prior to the amendments to the Criminal Code) would not fall within the purview of Article 280.3 of the Criminal Code of the Russian Federation.

However, such content could still be perceived as discrediting the use of the Armed Forces of the Russian Federation, undermining the authority of state bodies operating outside the territory of the Russian Federation, or calling for the prohibition of the Armed Forces’ deployment for specific purposes. This interpretation would fundamentally contradict the rationale behind the analyzed amendments, which are ostensibly designed to protect state interests and maintain public order. Therefore, it is posited that the date of commission of a crime, in the context of an internet post containing relevant content, should be legally recognized as the date of the post’s existence in information and telecommunications networks.

Furthermore, under the newly introduced Article 284-2, individuals publicly advocating for the imposition of foreign or international sanctions against the Russian Federation, its legal entities, or its citizens may face penalties, including fines or imprisonment for up to five years.

In light of the adoption of this amendment, numerous international media outlets have suspended their broadcasts from Russian territory, while some Russian media organizations have ceased reporting news and removed archives pertaining to Russia’s actions in Ukraine. This development underscores the profound impact of the legislative changes on both domestic and international discourse concerning the situation in Russia and its geopolitical actions. The chilling effect of these laws on freedom of expression and the dissemination of information raises important ethical and legal considerations that warrant further scholarly examination.

 

  1. Conclusion

In conclusion, the recent novelization that introduced new articles into the Criminal Code of the Russian Federation warrants significant criticism due to its lack of precision and clarity. These amendments effectively established a “Lex post factum,” meaning that individuals can be held criminally liable for actions or statements made prior to the enactment of the law. This retroactive application raises serious concerns regarding the principles of legal certainty and fairness, as posts that were publicly accessible before the law’s implementation may now incur criminal liability without prior warning or clear guidelines.

Moreover, it is essential to consider the age of criminal responsibility in Russia, which is set at 16 years. This age threshold is particularly concerning, as it encompasses a developmental stage characterized by impulsive behavior and a certain degree of gullibility. Young individuals, often lacking the maturity and experience to fully comprehend the potential consequences of their actions, may find themselves subject to severe legal repercussions under these new provisions. This raises ethical questions about the appropriateness of holding such individuals accountable under laws that lack clarity.

Additionally, the formal nature of the crimes outlined in Articles 207.3 and 280.3 allows for the initiation of criminal proceedings even if the offender has subsequently deleted the incriminating information from public access. This provision effectively renders any attempt at active repentance irrelevant to law enforcement agencies, further exacerbating the potential for unjust outcomes.

Consequently, the current criminal responsibility established by these articles appears to function primarily as a political mechanism of deterrence. By imposing stringent penalties for the dissemination of information deemed discrediting to the state or its armed forces, these laws significantly restrict the constitutional freedom of speech. This situation raises profound concerns about the protection of civil liberties and the fundamental rights of individuals in the Russian Federation, highlighting the need for a reevaluation of the legal framework governing freedom of expression.

 

References

  1. Muradyan S.V. Вопросы применения статьи 280.3 УК РФ о дискредитации использования Вооруженных Сил Российской Федерации или исполнения государственными органами своих полномочий [Voprosy primeneniia stat’i 280.3 UK RF o diskreditatcii ispolzovania Vooruzhonnych Sil Rossijskoj Federatci ili ispolzovaniia gosudarstvennymi organami svoikh polnomochii] Криминологический журнал [Kriminologicheskii zhurnal]. 2023. № 1. 87-94 p.
  2. Keratsa, A. Translation and Censorship in European Environments //Translation Journal.2005.Vol. 9, №º3.(Accessed online at: http://www.bokorlang.com/journal/33censorship.htm)
  3. Korunets, Ilko V. Theory and Practice of Translation. – Vinnytsia : NovaKnyha, 2003.-448 p.
  4. Kuhiwczak, P. Translation and Censorship // Translation Studies. – 2011. -Nr 3.- Volume 4. – 358-373 p.
  5. Jegupiec, A. Какотличить фейк от дискредитации [Kak otlichit feik ot diskredytacii] https://www.kommersant.ru/doc/5951659 (dostęp 10.09.2023)
  6. World press freedom index/ https://rsf.org/en/rsf-s-2022-world-press-freedom-index-new-era-polarisation (dostęp 10.09.2023)
  7. A. Jegupiec, Какотличить фейк отдискредитации [Kak otlichit feik ot diskredytacii] https://www.kommersant.ru/doc/5951659 (dostęp 10.09.2023)
  8. World press freedom index/ https://rsf.org/en/rsf-s-2022-world-press-freedom-index-new-era-polarisation (dostęp 10.09.2023);

 

Legal acts

  1. Federal Law No. 114-FZ of July 25, 2002 “On Countering Extremist Activity” (as amended on July 27, 2006, May 10, July 24, 2007, April 29, 2008)
  2. Federal Law of the Russian Federation of July 26, 2006 No 135–FZ (ed. on February 16, 2022) «About Competition Protection» // SPS «ConsultantPlus»
  3. Federal law of the Russian Federation «About defense» from May, 31st 1996 No 61–FZ (rev. from June, 11th 2021) // SPS «ConsultantPlus»
  4. «Review on Certain Issues of Judicial Practice Related to the Application of Legislation and Measures to Combat the Spread of New Coronavirus Infection (COVID-19) in the Russian Federation No 1» (Approved by the Presidium of the Supreme Court of the Russian Federation on April 21, 2020) // SPS «ConsultantPlus»
  5. Ruling of the Central District Court of Togliatti, March 18, 2022, No 5-1539/202 on an administrative offense. UID 63RS0031-01-2022-002350-15 // SPS «ConsultantPlus»
  6. Ruling of the Galich District Court of the Kostroma region on April 6, 2022 in case No. 5-384/202. // SPS «ConsultantPlus»
  7. Resolution of the Plenum of the Supreme Court of the Russian Federation of 28 June 2011, No 11 «On judicial practice in criminal cases involving crimes of extremist orientation» (ed., 28 October 2021) // SPS «ConsultantPlus»
  8. Order of the Minister of Defense of the Russian Federation of August 31, 2005, No 365 «On measures to improve the interaction of the Armed Forces of the Russian Federation with veterans’ public associations» (together with the «Regulations on the councils (committees) on veterans’ affairs in the Armed Forces of the Russian Federation») // SPS «ConsultantPlus»
  9. Letter of the Federal Antimonopoly Service of Russia dated December 24, 2015 No IA/74666/15 «On the application of the «fourth antimonopoly package» // SPS «ConsultantPlus»
  10. Decision of the Fokinsky District Court of the city of Bryansk on March 25, 2022 in case No 5-226/2022 Art. 20.3.3 Ch. 1 CAO RF // SPS «ConsultantPlus»
  11. Decision of Sharya District Court of Kostroma region on case No 5-276/2022 on March 24, 2022 // SPS «ConsultantPlus»
  12. Decision of the Odoyevsky District Court of the Tula region on April 11, 2022, No 5-201/2022 // SPS «ConsultantPlus»
  13. The judgment of the Sovetsky district court of the city of Orel on March 18, 2022 No 5-559/2022 // SPS «ConsultantPlus»
  14. The judgment of the Kaluga district court of the Kaluga region on case No 5-1330/2022 on March 16, 2022 // SPS «ConsultantPlus»
  15. Resolution of the Sverdlovsky District Court of Kostroma on March 7, 2022, No 5-762/2022 // SPS «ConsultantPlus»
  16. Petropavlovsk-Kamchatsky City Court of Kamchatka Territory resolution of September 19, 2022 in case No 5-629/2022 // SPS «ConsultantPlus»
  17. Decision of St. Petersburg City Court on September 8, 2022 in case No 12-3520/2022, 5-820/2022 // SPS «ConsultantPlus»
  18. Resolution of the Plenum of the Supreme Court of the Russian Federation of February 9, 2012, No 1 (ed. from November 3, 2016) «On some issues of judicial practice in criminal cases of crimes of terrorist orientation» // SPS «ConsultantPlus»
  19. Decision of the Oktyabrsky District Court of the city of Tambov on March 16, 2022, No. 5-497/2022. // SPS «ConsultantPlus»
  20. Sentence of Nalchik City Court of the Kabardino- Balkar Republic from June 24, 2022 in case # 1-818/2022 // SPS «ConsultantPlus»

The Sex Offenders Public Registry of the Republic of Poland: Problems that Require Solutions

Conference paper (multiple non-blind peer review), , , , , ,

Introduction: A history of offender registries in Europe and the USA

The last decade can be characterised by the relevance improving of the topics of data privacy protection. Problems of data flow regulation during crime prevention activities have attracted substantially bigger attention due to the current legislative novelisations in the European Union in 2016-2018. Worth mentioning here is that the Polish criminal registry of sexual offenders seems to be the only public registry of offenders not only in the European Union but in whole European region as well. Simultaneously, despite its uniqueness, it is not well-known not only internationally but even in Poland.  It seems justified to say that registry remains an inherently controversial topic in social consciousness and due to that fact, very few substantial researches have been conducted in this field. But before we will proceed to the main topic of the current paper, it seems highly beneficial to analyse the history of sexual offender registries in the world.

Undoubtedly, the longest history of publicly available registries of criminals can be found in the United States of America. So it’s not surprising that the American experience inspired the Polish government to provide similar institutions into the Polish legislative system (we can find multiple comments on that of the former minister of Justice Z. Ziobro)[1]. In academic papers, it is also often mentioned that similar institutions exist in France and Germany[2], but we would need to emphasise here that those registries don’t have public character.

Registries of sexual offenders in the United States of America began to appear in the early 1930s[3]. Initially, they were the prerogative of local legislations (cities and counties); later, they began to be available on the level of states (Florida, since 1937). Registration was conducted, as a rule, at a police station, convicts were photographed and fingerprinted. The personal data of criminals with the indication of the place of residence after release were entered into the registry. The local authorities hoped that the registration requirement would make the stay of convicts on the territory of the city or district undesirable which is supposed to positively influence the criminal situation in a state[4].

The first regional registry of sex offenders was established in 1947 in California,  and after the next 20 years, in five states (Alabama, Arizona, Florida, Nevada, Ohio). They reflected the addresses of the place of residence of persons convicted of sexual crimes, but they were not publicly disclosed and were used only by law enforcement agencies and courts[5].

Intensive development of the Institute of the Registry of Sex Offenders in the United States occurred in the 1990s[6]. After several cases of sexual crimes against children were actively discussed in the media and became the subject of high interest of the publicity. The social expectations of Americans were focused on the guarantees of the best protection of potential victims. In 1994, Washington state began community notification of its most dangerous sex offenders, making it the first state to ever make any sex offender information publicly available[7]. Prior to 1994, only a few states required convicted sex offenders to register their addresses with local law enforcement.

But those registries were either not publicly available or were provided in a restricted area of one municipality. The first publicly available federal registry appeared only in 2005 – the National Sex Offender Public Registry (NSOPR) which, due to the inaction of The Adam Walsh Child Protection and Safety Act,[8] was renamed in honor of 22-year-old college student Dru Sjodin of Grand Forks, North Dakota, a young woman who was kidnapped and murdered. The Registry introduces a system for classifying sex offenders into three groups based on the legal qualification of the committed crime:

  • First of all, coercion to have sexual intercourse under threat of violence against a person who is in a helpless state; inducement to have sexual intercourse or commit other sexual acts with a person under the age of 12:
  • Second-level criminal cases (tier II) include the production and distribution of child pornography; the involvement of minors in prostitution; sexual intercourse with a minor over 13 years old.
  • Those guilty of other “minor sexual crimes”, who face up to a year in prison, belong to the category of first-degree sex offenders (tier I) (this is possession of child pornography or committing other sexual acts with a person over the age of 13 and under the age of majority).

If a  person commits a similar act during the period of public recording, it automatically falls into a more serious category[9].

Criminological assessment of the sex offender registry system in the USA.

In the USA, the sex offender registry covers about 900 thousand convicts (0.28% of all citizens), and this figure has been consistently increasing in last several years[10].

Many researchers question the impact of the registry on reducing sexual crime in general and reducing the rate of recidivism of sex offenders in particular[11]. When comparing the level of responsibility among adults and minors in the commission of similar sexual crimes, it was found that there were no statistical differences between registered persons and those who evaded this duty.

It is often argued that similar state legislation is based on false notions, although popular in societal assumptions and presumptions regarding the nature of sexual criminality. Society has come to believe, firstly, that sex offenders are more prone to recidivism than other categories of offenders. Secondly, there is an opinion that the majority of sex offenders are strangers, unfamiliar to the victims. Thirdly, society attributes to perpetrators of sexual crimes a tendency to kill their victims, especially children.

Official statistics do not confirm these theses. The average rate of recidivism of all US criminals released from prison from 2014 to 2019 is 36%, of which only 13-14% commit a similar type of a crime. Also, statistics confirms that most of the sexual crimes are committed a first time and display no recidivism[12].

Most of the victims of sexual crimes knew the attacker earlier, and the courts found guilty mainly the victim’s friends or relatives. According to one study, only 9% of perpetrators of child sexual abuse and 28% of perpetrators of adult sexual exploitation were previously unfamiliar with the victims, especially when sexually motivated murders of adults and children occurred[13].

It is difficult to get a clearer picture, due to the inclusion in statistics of data not only of criminal cases against sexual integrity but also of crimes related to non-fulfillment of registration obligations.  Some investigators claim that this is precisely the violation of the registration responsibilities of criminals the reason why the recidivism of American sex offenders is most often statistically reduced.

The study of the effectiveness of the registry institute should be distinguished from the perception of this institution by society and practicing lawyers. Society is very supportive of the registry, considering it as an effective tool to combat sexual crime. About 4/5 of ordinary American citizens have a positive attitude towards the registry, and there is unanimity among politicians and judges[14].

A different, more critical attitude towards the registry could be found amongst those who maintain the registry, as well as amongst those who are engaged in the rehabilitation and treatment of sexual offenders[15]. Researchers who are engaged into the mandatory treatment of sex offenders, usually disapprove of the requirement to publish data on sexual offenders. In practice, 1/4 to 1/3 of adult Americans visited the resource at least once; hence, for the biggest part of society, it remains unused.

However, the usefulness of the registry for law enforcement agencies and society is substantially reduced by the incompleteness and irrelevance of the data contained in it. Most often, violations relate to the place of residence of sex offenders, that is, information that is most important from the point of view of the purposes of the registry.

The problem is based on the shortage of personnel servicing registries, underfunding, and plain mistakes, including those made by convicts themselves when they intentionally do not perform registration duties. Some of them proceed from the fact that failure to fulfill registration obligations is a minor violation compared to the consequences of prolonged use in a publicly accessible registry, which causes problems with finding a place of work or residence.

It is officially estimated that about 5-6% of the criminals included in the register have disappeared, 18.5% have been re-imprisoned, 8.9% live outside the registration state and even 0.2% of the persons died while their information is still available in the registry. An interesting fact is that the victims of sexual crimes support mandatory treatment of sex offenders, but disapprove the requirement to publish data on sex offenders16].

it can be concluded that the registry creates a false sense of security, while at the same time it increases the feeling of fear in society. It is difficult to imagine the negative emotions of a person who has discovered that a sex offender lives in their neighborhood.

The Polish public registry of the sexual offenders: General overview.

Polish sex offenders registry and GDPR regulation

The efficiency of such a method of crime prevention remains highly controversial. Still, a new registry of sex offenders came into force in 2017 in Poland. Now after we’ve discussed the experience that was taken into consideration towards the legislative novelisation in the Republic of Poland it seems to be logical to proceed with the main topic of the article.

First of all, it is worth mentioning that the Polish Sex Offenders Registry consists of two modules, whereby the first is a register with limited access, and the second one is a public register.

The register with restricted access is a database that contains information about perpetrators of sexual crimes. The basis for placing data in the Register is the act of 13 May 2016 on countering threats of sexual crime. Following Article 12 of the act, everyone has the right to find out whether his / her data is in the register.

In turn, the public register is a publicly available database, which contains information about the most dangerous perpetrators of sexual crimes. These are, above all, data on people who have committed child (minors up to 13 years old) rapes and rapes committed with particular cruelty.

Unlike the American prototype, the Polish registry also provides the sentences information to the public access (amount of the years of imprisonment, committed crime, date of the sentence, and court which stated the sentence).

Firstly it supposed that the convicted perpetrators could request their data not be included in the public Registry up until the first of October of 2017 but after the statement of the High Court of the Republic of Poland that such regulation would be non-constitutional and would violate the fundamental principle of “Lex retro non agit“, i.e., all information about the convictions before the inaction of the registry were erased in its final version[17].

The registry was supposed to be supplemented with a publicly available map of sexual crime threats, which includes the places of sexual offenses and the places of residence of offenders, but this option wasn’t included in the final version.

Access to the Public Register is unlimited. There is no fee for providing information from the Sex Offenders Register.  Also, simultaneously with the launch of the Register, the regulation (EU) 2016/679 of the European Parliament on 27 of April 2016 on the protection of individuals and information privacy in the European Union (EU) and the European Economic Area (EEA).  commonly known as the GDPR, entered into force.

This regulation has been valid throughout the European Union, including the Republic of Poland, since May 25, 2018, and has revolutionized the perception of issues related to the protection of personal data. Individuals have acquired a number of new rights, the meaning of which is largely to intensify their protection, more broadly understood as the so-called right to privacy. An important innovation is the introduction in Article 17 (1) of the GDPR of the so-called “right to be forgotten”, also called the “right to delete data”, which from the very first moments of the GDPR has aroused particular interest of individuals, and therefore it can be estimated that sooner or later it will also draw the attention of convicted persons.

This leads us to the question: can the former offenders ask for the data erasure after it has been uploaded to the registry? Or, in a more simple way: does the internal Polish regulation violate the requirements of the GDPR?

First, what should be mentioned here is that, according to the GDPR Art.2 “the Regulation does not apply to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security”[18].

This clause, in our opinion, excludes any possibility of using the GDPR requirements in the topic of crime prevention activities provided by any member State of the European Union. Which also allows us to conclude that such registries could be shortly implemented in other European countries as well.  Hence, the answer for the second question should be a negative one.

This attitude is reflected by the Art. 86 of GDPR which states that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to this Regulation[19].

Despite this fact, many researches confirmed that there is some kind of a discrepancy between the GDPR regulation and the Act of 13 May 2016 on countering threats of sexual crime. The legislator first has considered the right to influence the content of the Register to the perpetrators and the courts. The principle is that the cancelation of the conviction, that is, in fact, “forgetting the act of the offender” occurs by law after the expiry of the periods provided in Article 107 of the Criminal Code of the Republic of Poland, and only on demand of the convicted person.

According to this provision, the court may decide the conviction to be cancelled after the expiry of 5 years at the earliest. The convicted person should also not commit any other crimes or other violations of law during this period while, at the same time, the sentence was not more than 3 years of imprisonment[20]. This provides us with a direct discrepancy with the GDPR requirements which openly guarantee the right to erasure of information from public access straight after the demand of the person to whom this data is connected.

Conclusions

The topic of the public registry’s effectiveness wasn’t properly analysed in Polish academic papers and in most of the published articles it received positive feedback[21]. Often, these papers speculate on other offender registries in European countries such as VISOR in the UK or FIJAIS in France, forgetting to mention that these registries are not publicly available[22]. On the other hand, The Helsinki Foundation for Human Rights claims that “a public registry is not an effective instrument against the risk of sex crimes.” The HFHR is not against introducing into Polish law a mechanism that would register sex offenders but the publicly available source is openly criticized[23].

Also, current police statistics regarding sexual crimes didn’t show significant  changes in the amount of the committed crimes (e.g., the amount of committed rapes in 2017 in the whole country was 1262; in 2019 was 1354 and in 2021 total amount of registered rapes was 1088). Simultaneously, the percentage of the solved rape crimes has been getting higher every year after the registry was enacted.  According to official data percentage of rape crimes where the offender was found rose from 82.7% in 2017 to 85% in 2019 and 88% in 2021[24]. Hence, the registry could be hardly seen as a method of crime prevention, but rather as an additional instrument for police investigation. It should be also mentioned that topics of criminological effectiveness of the registry is often complicated, due to the high stigmatization of sexual crimes.

The provided official novelization should be criticized due to the lack of preciseness. Only after two years did the High Court of the Republic of Poland actually exclude the “Lex post factum” uncertainty as regards offenders of relevant sexual crimes (e.g., the proviso whereby even those violations which were committed before the Act of 13 May 2016 on countering threats of sexual crime should be automatically included Ito the registry).

I hope that this publication will raise awareness of the current lacunae in the European legislation and will help to avoid similar deficient registries’ applications in other Member States of the Europen Union.

References

A. Legal acts

1. USTAWA z dnia 13 maja 2016 r. [o przeciwdziałaniu zagrożeniom przestępczością na tle seksualnym]Dru Sjodin webpage of the Public sexual offenders registry https://www.nsopw.gov/about-nsopw

2. GDPR/ General Data Protection Regulation: https://gdpr-info.eu/art-2-gdpr/1. Carpenter C, Beverlin A. The evolution of unconstitutionality in sex offender registration laws. Hastings Law Journal. 2012;63:1071-133. (In Eng.)

B. Literature

  1. Banasik, K. Istota zatarcia skazania. Wojskowy Przegląd Prawniczy, (2017). p. 36–49. (In Pol.)
  2. Grzelak. A. RODO Ogólne Rozporządzenie o Ochronie Danych Komentarz. Warszawa: Wydawnictwo Wolters Kluwer. (2022). p. 1034. (in Pol.)
  3. Harris A, Levenson J, Ackerman A. Registered sex offenders in the United States. Behind the numbers, crime & delinquency. (2014). p.4-33. (In Eng.)
  4. Letourneau E. Effects of South Carolina’s sex offender registration and notification policy on deterrence of adult sex crimes. Criminal justice and behavior. (2010). p.35-52. (In Eng.)
  5. Levenson J, D’amora D, Hern A. Megan’s Law and its impact on community re-entry for sex offenders. Behavioral Sciences and the Law. (2007). p. 587-602. (In Eng.)
  6. Lussier P, Beauregard E, Criminal Justice Policies. The intended and unintended consequences of monitoring individuals convicted of sex crimes. Sexual offending. A criminological perspective. New York; (2018). p. 63-83. (In Eng.)
  7. Marshall W, Marshall L, Serran G, Fernandez Y. Treating sexual offenders. An integrated approach. New York; (2006). p. 10-27. (In Eng.)
  8. Richmond C, Richmond M. The future of sex offender courts. How expanding specialized sex offense courts can help reduce recidivism and improve victim reporting. Cardozo Journal of Law & Gender. (2015). p. 12-10. (In Eng.)
  9. Rose J. Where sex offender registration laws miss the point. Why a return to an individualized approach and a restoration of judicial discretion in sentencing will better serve the governmental goals of registration and protect individual liberties from unnecessary encroachments. Mitchell Hamline Law Journal of Public Policy and Practice. (2017).p. 6-57. (In Eng.)
  10. Ryter J. Rejestr sprawców przestępstw na tle seksualnym a prawo do  prywatności i  prawo do bycia zapomnianym w świetle ogólnego rozporządzenia o ochronie danych osobowych  (RODO), Dyrektywy Parlamentu Europejskiego i  Rady (UE) 2016/680/ Probacja (2018). p.177-195. (In Eng.)
  11. Tewksbury R. Sex offender registries as a tool for public safety. Views from registered offenders. Western Criminology Abstract. (2006). P.1-8. (In Eng.)
  12. Thomas T. The registration and monitoring of sex offenders. A comparative study. Hoboken; 2012. p. 3-41. (In Eng.)
  13. Vandiver D, Braithwaite J, Stafford M. Sex crimes and sex offenders. Research and realities. New York; 2017. (In Eng.)
  14. Ключников А.Ю. Об институте реестра сексуальных преступников Lex Russica, (2020) . p. 140-150. (in Rus.)

C. Internet resources

  1. Ziobro wypowiada wojnę zboczeńcom: “Ustala się szczególne środki ochrony obywateli przed przestępczością na tle seksualnym” Polityka opublikowano: 18 grudnia 2015, URL: https://wpolityce.pl/polityka/275542-ziobro-wypowiada-wojne-zboczencom-ustala-sie-szczegolne-srodki-ochrony-obywateli-przed-przestepczoscia-na-tle-seksualnym?strona=1
  2. https://www.liberties.eu/en/stories/public-registry-of-sex-crime-offenders-in-poland/7358 https://statystyka.policja.pl/st/przestepstwa-ogolem/przestepstwa-kryminalne/zgwalcenie/122293,Zgwalcenie.html
  3. Dru Sjodin webpage of the Public sexual offenders registry,  https://www.nsopw.gov/about-nsopw

Endnotes

[1] Ziobro wypowiada wojnę zboczeńcom: “Ustala się szczególne środki ochrony obywateli przed przestępczością na tle seksualnym” Polityka opublikowano: 18 grudnia 2015, URL: https://wpolityce.pl/polityka/275542-ziobro-wypowiada-wojne-zboczencom-ustala-sie-szczegolne-srodki-ochrony-obywateli-przed-przestepczoscia-na-tle-seksualnym?strona=1

[2] Justyna Ryter, Erwin Ryter, Rejestr sprawców przestępstw na  tle seksualnym a prawo do  prywatności i  prawo do bycia zapomnianym w świetle ogólnego rozporządzenia o ochronie danych osobowych  (RODO), Dyrektywy Parlamentu Europejskiego i  Rady (UE) 2016/680/ Probacja 2018; 4 : 177-195

[3] Ключников А.Ю. (2020) Об институте реестра сексуальных преступников Lex Russica, № 3 (73). С. 141

[4] Thomas T. The Registration and Monitoring of Sex Offenders. A Comparative Study. Hoboken, 2012. Р. 28—29

[5] Ключников А.Ю. (2020) Об институте реестра сексуальных преступников Lex Russica, № 3 (73). С. 140-150

[6] Ключников А.Ю. (2020) Об институте реестра сексуальных преступников Lex Russica, № 3 (73). С. 141

[7] Dru Sjodin webpage of the Public sexual offenders registry, https://www.nsopw.gov/about-nsopw

[8] The act was named after one of the victims of the violent crimes, six-year old boy who was kidnapped from the a Sears department store at the Hollywood Mall in Hollywood, Florida, on July 27, 1981.

[9] Dru Sjodin webpage of the Public sexual offenders registry, https://www.nsopw.gov/about-nsopw

[10] Criminal Justice Policies. The Intended and Unintended Consequences of Monitoring Individuals Convicted of Sex Crimes / red. P. Lussier, E. Beauregard. New York, 2018. Pp. 63—83

[11] Ключников А.Ю. (2020) Об институте реестра сексуальных преступников Lex Russica, № 3 (73). С. 146

[12] Tewksbury R. Sex offender registries as a tool for public safety. Views from registered offenders // Western Criminology Review. 2006. Vol. 7. No 1. P. 2

[13] Letourneau E. Effects of South Carolina’s Sex Offender Registration and Notification Policy on Deterrence of Adult Sex Crimes // Criminal Justice and Behavior. 2010. Vol. 37. P. 550.

[14] Ibidem;

[15] Levenson J., D’Amora D., Hern A. Megan’s Law and its Impact on Community Re-Entry for Sex Offenders // Behavioral Sciences and the Law. 2007. Vol. 25. No 4. P. 596

[16] Levenson J., D’Amora D., Hern A. Megan’s Law and its Impact on Community Re-Entry for Sex Offenders // Behavioral Sciences and the Law. 2007. Vol. 25. No 4. P. 596

[17] See http://www.sn.pl/sites/orzecznictwo/OrzeczeniaHTML/v%20kk%209-19.docx.html.Przedstawiona analiza prowadzi do wniosku, że ustawa z dnia 13 maja 2016 r. o przeciwdziałaniu zagrożeniom przestępczością na tle seksualnym (tj. Dz. U. z 2018 r., poz. 405 ze zm.) w zakresie, w jakim nakazuje umieszczać w Rejestrze publicznym dane o osobach, które popełniły przed wejściem w życie tego aktu prawnego określone w nim przestępstwa, nie spełnia wymogu zgodności z zasadami lex retro non agit oraz nullum crimen (nulla poena) sine lege anteriori, określonymi w art. 1 § 1 k.k. Takich wątpliwości nie nasuwa umieszczenie danych wskazanych osób w Rejestrze z dostępem ograniczonym, z uwagi na jego niepubliczny charakter, który pozwala na przyjęcie, że taki wpis nie jest równoważny ze stosowaniem środka represji karnej

[18] GDPR/General Data Protection Regulation: https://gdpr-info.eu/art-2-gdpr/

[19] Ibidem

[20] Justyna Ryter, Erwin Ryter, Rejestr sprawców przestępstw na  tle seksualnym a prawo do  prywatności i  prawo do bycia zapomnianym w świetle ogólnego rozporządzenia o ochronie danych osobowych  (RODO), Dyrektywy Parlamentu Europejskiego i  Rady (UE) 2016/680/ Probacja 2018; 4 : 177-195

[21] Justyna Ryter, Erwin Ryter, Rejestr sprawców przestępstw na  tle seksualnym a prawo do  prywatności i  prawo do bycia zapomnianym w świetle ogólnego rozporządzenia o ochronie danych osobowych  (RODO), Dyrektywy Parlamentu Europejskiego i  Rady (UE) 2016/680/ Probacja 2018; 4 : 177-195

[22] W Wielkiej Brytanii (Pobrane z: https://www.ms.gov.pl/pl/informa- cje/news,9806,ruszyl-rejestr-sprawcow-przestepstw-na-tle.html, Dnia (2018, 12, 04)) utworzono rejestr sprawców przestępstw z użyciem prze- mocy i przestępstw seksualnych (VISOR). Z kolei we Francji (Pobrane z: https://www.ms.gov.pl/pl/informa- cje/news,9806,ruszyl-rejestr-sprawcow-przestepstw-na-tle.html, Dnia (2018, 12, 04)) został utworzony tzw. zautomatyzowany rejestr sądowy sprawców przestępstw seksualnych (FIJAIS). Stanowi on osobowy rejestr sądowy, podobnie jak zautomatyzowany rejestr odcisków palców, krajowy rejestr śladów genetycznych i krajowy rejestr karny

[23] See https://www.liberties.eu/en/stories/public-registry-of-sex-crime-offenders-in-poland/7358

[24] See https://statystyka.policja.pl/st/przestepstwa-ogolem/przestepstwa-kryminalne/zgwalcenie/122293,Zgwalcenie.html