16 May 2020
By Sergei Davidis
The Investigative Committee has announced the first criminal cases and arrests of suspects in connection with the photographs of Hitler and Himmler that were posted on the “Immortal Regiment” website.
Posting photographs picturing Nazi criminals as veterans of the war against Nazis on a forum dedicated to the memory of the victors deserves every sort of condemnation. But by no means does everything that deserves condemnation carry with it criminal liability.
The habit of grabbing for the Criminal Code at every opportunity is a bad habit. Just like the habit of demanding a criminal case be brought for any statement or symbolic act that society considers unpleasant or offensive. These habits, which are characteristic not only of the Russian authorities but of a large part of our society, seem to me to be a relic of totalitarian consciousness. And that we, instead of trying to overcome them, cultivate them, only distances us from a democratic state, based on the rule of law, which presupposes: 1) the maximum possible tolerance of malicious and unpleasant statements; and 2) punishment based only on a clear law that is known in advance and forbids a particular action.
I anticipate that here I will be reminded of the prohibition on Holocaust denial and all sorts of prohibitions on displaying оne symbol or another in various democratic countries. In the first place, in the majority of cases, they are connected, especially in Germany, with the understanding of historical responsibility or, as in Eastern Europe, with combatting threats – perceived as real – of authoritarian revanche or foreign aggression, or, as with the Holocaust, hindering the offensive denial of the most emotionally and symbolically significant, totally concrete and indisputable facts. It does not seem to me personally that even one of these considerations justifies criminal prosecution for Nazi symbols or positions expressed in the public discussion of the Second World War in our country.
In the second place, it is not totally obvious that all these prohibitions are really necessary in a democratic society.
But perhaps the main thing here is that the prosecution for violating these prohibitions in democratic countries is, in any case, conducted according to precise and clear legal norms that, in advance, have defined what acts are impermissible and subject to prosecution, and not on the basis of someone’s dissatisfaction or taking offence.
Here the cases have been brought under Article 354.1, Section 1, “Rehabilitation of Nazism,” which calls for punishment for the public “denial of facts established by the judgement of the International Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European Axis, approval of the crimes established by this judgement, and dissemination knowingly of false information about the USSR’s activities in the years of the Second World War.” The display of the photographs of Hitler and Himmler is not forbidden in the Russian Federation, and even the display of the swastika and other symbols of the Third Reich is a matter of administrative, not criminal, liability. Posting these photographs, even if absolutely deserving of public condemnation, is not forbidden by any legal norm or, in particular, the absurd Article 354.1 of the Russian Criminal Code. Clearly, in the absence of an independent court, they could characterize posting these photographs among photographs of Great Patriotic War veterans as knowingly disseminating false information about the activity of the USSR in the years of the Second World War — it could be said they were knowingly disseminating false information about Hitler and Himmler serving in the Red Army – but even that, or any other attempt to justify the use of this or any other criminal statute in connection with posting these unhappy photographs, would be absolutely far-fetched.
These attempts (like, by the way, Criminal Code Article 354.1 itself, as well as many other criminal statutes) clearly violate the principle of legal certainty. They presuppose a punishment for acts, the prohibition and subject to punishment of which are nowhere clearly written down and could not have been known in advance to the supposed criminals.
The demands to repeal Article 354.1 of the Criminal Code and to stop the practice of arbitrary criminal prosecution must be supported, regardless of whether we like or do not like its victims.
Translated by John Tokolish