Leonid Nikitinsky: ‘Don’t go there, I won’t say when’

15 March 2024

by Leonid Nikitinsky

Source: Novaya Gazeta

The Moscow Prosecutor’s Office has warned the capital’s voters that if they want to vote “in a place unspecified at a time unspecified” (as the indictments say), their actions may be classed under Article 141 of the Criminal Code as an “impediment to the exercise of voting rights or to the work of the electoral commissions”. The second part of this article envisages a custodial sentence of up to five years where a “group of people” is involved as, for example, when going to the polling station with your wife (or husband). 

The warning came on the Telegram channel of the Prosecutor’s Office and cannot be regarded as official: the majority of those whom it potentially addressed are hardly likely to be subscribers to the channel. 

Rather this is intimidation which should, nonetheless, be taken seriously (and not only by Muscovites) so as to know how to answer questions you might face from law-enforcement agencies in “a place unspecified”.

Article 141 comes within Chapter 19 of the Criminal Code, “Crimes Against the Constitutional Rights of Man and Citizen”. This indicates that in 1996 when the code was adopted its implied aim was to protect the (voters’) active right to vote rather than the passive right of those whose names appear on the ballot papers or the interests of those who assist them as members of polling station commissions.

Article 141 of the Criminal Code is basically “dormant”: it has only been possible to bring criminal cases against those who falsify election results in isolated cases and then only when the law-enforcement agencies have had some particular interest in doing so. A case was brought under Article 141 of the Criminal Code in Pskov in 2019 against Lev Shlosberg* for incitement to spoil ballot papers. The prosecution was soon halted, however, due to a lack of corpus delicti: spoiling a ballot paper, even deliberately, does not yet constitute an offence.

Nonetheless, the mention of an impediment to the work of the electoral commissions in Article 141 of the Criminal Code enables this norm in theory to be turned upside down by means of an appropriate interpretation. 

“Interpretation” is the key word for understanding, not the written norm but the practices of its application: whosoever has the prerogative of interpreting will be correct in court. Loosely speaking, this means officials of the prosecution, whereas the defence can shove its opinion into “a place unspecified”. 

This is a striking example of how the “MTM–machine of totalitarianism modernised” (we describe this in detail in a note on the Novaya Gazeta website for 27 January 2024) in order to perform the tasks set before it, on the one hand, according to the principle “should there be someone an article will be found”, snatches up any of a wide range of existing regulations while, on the other, it attaches a variety of practices to that range, some of them illegal. On 17 March, at the initiative of individual law-enforcement officials, the following may be utilised:

  • the mass verification of documents without clear legal grounds for doing so,
  • demands to disperse on the pretext of the Covid epidemic which, from a point of view useful to the authorities, is with us forever,
  • placing provocateurs –  “titushki” –  in queues at polling stations,

and more. It is impossible to predict them. 

It is not worth entering into heated exchanges with the usually anonymous representatives of law and order or “titushki” although it will probably not be possible to avoid such incidents altogether. If questions arise, remember that Article 141 of the Criminal Code implies a deliberate but not a negligent form of guilt. References on the part of electoral commissions and their freelance assistants to the fact that queues mean not all voters can comfortably exercise their legitimate right are unpersuasive: each person possesses this right to the same extent as everyone else. 

Even weaker will be the argument that group actions impede the work of a commission: that’s its problem. It should have made better preparations.

Should questions arise as to why someone came along “at a time not specified”, it is better not to seek to explain at all. This is a personal matter for each individual. 

Does compliance with such simple rules guarantee against trouble? Of course not. But here each person must weigh up their own risks.

They are a much greater threat to those who have publicly urged others, including on social media, to avail themselves of their passive right to vote precisely “at a time unspecified”. In any case, questions may sooner or later be asked of them irrespective of whether they come to the polling stations themselves or stay home. However, not all of them are within range of the Russian Federation’s law-enforcement agencies. 

* Placed on the “foreign agents” list by the RF Ministry of Justice.

Translated by Melanie Moore