But this guidance has been considered by the most part of professionals very skeptical. Supreme Court has strengthened the subjective criteria in its guidance for consideration of criminal cases on extremism by Russian courts what in general does not make a difference in consideration of criminal cases for likes and reposts in social networks. Overall consideration of such cases will depend on evaluative position of the judge.
The Russian Supreme Court recommended judges to assess the context of publication and penalize only if “there is explicit criminal intent”. The Supreme Court has also reminded the right of each citizen, provided in Russian constitution, to share information. First of all, the Supreme Court included amendment providing that “the freedom of speech and the freedom of thought, guaranteed by the Russian constitution and international laws, and also the right to search, receive, share, produce and disseminate the information freely and by any legal means can be restriction only in exceptional cases”.
Exceptional cases mean only protection of constitutional system, morality, national security and some human rights. The court, considering the criminal case, must examine the presence not only of the reason, but also the ground to institute the criminal proceedings. The prosecutor must prove in court not only the mere publication of any file, containing signs able to cause the hate and enmity, but also evaluate the context of publication. It has been recommended to qualify the publication of any materials as corpus delicti under article 282 of Russian criminal code only if such publication was made intentionally.
The Supreme Court also underlined that in order to establish the fact of criminal act the prosecutor must prove that “the person, who published the material in question, realized the focus of act on violation of constitutional system and had a purpose to cause the hate or enmity or to humiliate the human dignity on the grounds of sex, race, nationality, language, religion or affiliation with any social group”.
The legal evaluation of criminal act must be made on the ground of “nature and degree of public danger”. The court must take into account “the scale and contingent” of the audience, for which the publication was available, the quantity of views and the impact of publication on the behavior of the persons from audience for which the publication was available.
The Supreme Court has also paid attention to the role of expert opinion in the criminal cases. It has recommended to change the approach and don’t make such opinions the main evidence of the crime. According to new guidance the expert opinion, evaluating whether the publication in question meets criterion of extremism, can’t prevail over the rest of evidences of the alleged crime. The court must consider the expert’s opinion along with other evidences. The final decision, based on the set of all evidences, but not only on expert opinions, must be made by the judge.
Professionals believe the Supreme Court’s amendments are “very week” and don’t change anything. These amendments seem “less serious”.