|
Items in cart [0] |
Questions? Call 888-624-8373 |
| Copyright © 2009. National Academy of Sciences. All rights reserved. Terms of Use and Privacy Statement |
Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter.
Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.
OCR for page 16
Russian Legislation and the Struggle
Against Terrorism
Mikhail P. Kireev *
Academy of the Ministry of Internal Affairs
Terrorism, terrorists, and terrorist activity these concepts appear in the
media practically every day, bringing horror and fear to the population and giv-
ing rise to unease and well-founded alarm for our present and our future.
Let us try to get an understanding of the position of Russian legislation in
the manner in which Russian laws protect the citizen from crimes of a terrorist
nature, crimes with terrorist aspects, and terrorism itself, from the criminal-legal
standpoint.
Objectively speaking, terrorism represents a complex and multifaceted phe-
nomenon, the subjects of which infringe in various ways on many legally pro-
tected common goods in the pursuit of the most varied goals. This naturally
gives rise to difficulties in developing a universal understanding of just what
terrorism means.
One of the most serious problems is that of defining the criminal-legal con-
cept and correctly applying existing laws in the struggle against terrorism. A
survey conducted among law enforcement agency personnel (more than 1000
individuals were polled) showed that 31 percent anticipate a stabilization in the
level of terrorism, while another 31 percent expect a small rise and 13 percent
forecast a significant rise. The data collected evoke concern, since the funda-
mental object of the struggle lies in relations of the security of civil society,
characterized by stability and protection of those social conditions necessary for
the normal activities of the population and the stable functioning of social insti-
tutions. At the same time, terrorism creates a threat not only to the security of
society, but also to the security of the individual and to the lives and health of
* Translated from the Russian by Kelly Robbins.
16
OCR for page 17
TERRORISM AND THE LAW
17
people, as well as to the security of the state and the capacity of state institutions
to fulfill their duties to society.
Of course, the question immediately arises as to the extent to which the
actions of law enforcement agencies affect the stabilization of the situation.
Among those polled, the overwhelming majority of 70 percent responded that
these actions had a partial impact, 21 percent replied on the contrary that there
was no such effect, and only 9 percent indicated that stabilization was entirely
dependent on the actions of law enforcement.
The Criminal Code and the 1998 Federal Law on Combating Terrorism
represent the key elements of Russian antiterrorism legislation. The Criminal
Code of the Russian Federation defines actions that are considered to be terror-
ism or terrorist acts, including the differences between such actions and sabotage
or other crimes. It also sets forth the punishments if such actions are committed.
The code largely formulates the tasks of law enforcement agencies and intelli-
gence services in uncovering, preventing, and suppressing terrorist activity and
defining their goals, organizational structures, and means of using the results of
preventive, antiterrorist, administrative, procedural, and other activities aimed at
fighting terrorism.
The correct criminal-legal evaluation of information obtained by law en-
forcement agencies is highly significant in increasing the effectiveness and pro-
ductivity of the struggle against terrorism. Evidence of this may be found in the
results of our research. We shall point out the reasons, in our view, for the
unsatisfactory state of the struggle against terrorism. Among the reasons most
commonly cited, 24 percent of those surveyed blamed insufficient coordination
and 18 percent pointed to a lack of decisiveness on the part of law enforcement
officials during decision making.
On the whole, the 1996 Criminal Code of the Russian Federation regulates
matters of responsibility for terrorism and terrorist acts in a new way. This is
connected with certain changes and additions made in the texts of the corre-
sponding articles of the Special Section of the code, other changes in many
criminal-legal standards and institutions, and reforms in the state legal system of
our country.
The criminal-legal concept of terrorism is set forth in Article 205 of the
Russian Criminal Code. The objective aspect of this crime lies in the perpetra-
tion of bombings, arson, or other actions creating a danger of loss of life, signif-
icant property damage, or other socially dangerous consequences (an analysis of
statistical data shows that 35 percent of terrorist acts involve bombings). The
characterization in the new Criminal Code of certain possible consequences of
terrorism as "socially dangerous" requires some limiting commentary.
Indeed, if the above-mentioned expression were interpreted literally, then
any intentional crime committed in the aim of violating societal security would
have to be viewed as an act of terrorism. After all, any crime is a socially
dangerous action, that is, it entails or threatens to entail socially dangerous con-
OCR for page 18
18
HIGH-IMPACT TERRORISM
sequences. Furthermore, in such a literal interpretation, the boundary would disap-
pear between a deliberately false report of an act of terrorism (Article 207 of the
Criminal Code) and a deliberately false report of a crime (deliberately false accu-
sation) (Article 306~. In the normative language on terrorism, the law has in mind
not any dangerous consequences, but only those for which the danger is compara-
ble to the danger of loss of life and significant property damage. In addition, the
actions carried out must be capable of facilitating the achievement of terrorist
goals as described in Article 205, that is, frightening the population, violating
societal security, and influencing the decisions of organs of power. Therefore, the
category of "other consequences" might include causing harm to the health of
many people, making it impossible for the population to exercise its civil rights
and freedoms, causing serious disruptions in the operation of vital services and
organs of power, or leading to other such socially dangerous outcomes.
At the same time, the new Criminal Code is similar to previous legislation in
that it does not require that the above-listed consequences actually occur in order
for terrorism to be recognized as a committed crime. Moreover, even if in a case
of bombing or arson, the real danger of loss of life, serious property damage, or
other such consequences never actually arose due to measures taken, terrorism
must be deemed as having been committed formally under Russian legislation.
The Criminal Code does not provide an exhaustive list of actions recognized
as terrorism. It is supposed that these could include not only single one-time
actions (arson, bombing, landslide, destruction of a building, gunfire, contami-
nation of a local area, and similar acts, including technological and nuclear ter-
rorism), but also continuing actions made up of a number of connected attempts
against life, health, or property united by a common plan and goal of frightening
the population, violating societal security, or putting pressure on organs of pow-
er This element, in our opinion, also differentiates terrorism from other serious
comes.
An example of this would be campaigns of murder and violence carried out
among a population on ethnic, religious, or other lines or group armed attacks
and mass murders carried out in such forms and using such weapons, means, and
methods as are clearly intended to frighten residents and create panic. Such
pogroms and attacks can be viewed as single socially dangerous actions aimed at
achieving terroristic goals.
It should be emphasized that the goal of affecting decision making by or-
gans of power presupposes a striving to influence both organs of state power
(including executive, legislative, and judicial branches, as well as both federal
and federation-subject organs) and organs of local self-government, through
which the people realize the power pertaining to them in accordance with the
Constitution of the Russian Federation. In a criminal-legal assessment of infor-
mation on facts that might involve the commission of an act of terrorism, it is
essential to keep in mind the following circumstances.
In its external aspects and in the socially dangerous consequences it pre-
OCR for page 19
TERRORISM AND THE LAW
19
sents, terrorism resembles certain other crimes against life and health, societal
security, and the security of movement and transportation. This concerns such
crimes as negligently causing death or harm to health (Articles 109 and 119 of
the Criminal Code of the Russian Federation); violating rules of fire safety (Arti-
cle 219) as well as safety rules at atomic power facilities (Article 215), potential-
ly explosive sites (Article 217), or mining, construction, or other work sites
(Article 216~; violating rules for the storage and use of explosives (Article 218)
or use of transportation (Articles 263 and 268~; or handling radioactive materials
illegally (Article 220~. However, in the cases listed above, the danger to property
or human life arises as a result of the negligence of the guilty party. Terrorism
here does not represent an intentional crime. An individual committing an act of
terrorism recognizes the societal danger of his actions, foresees the unavoidabil-
ity or possibility that socially dangerous consequences will ensue, and hopes for
such consequences in order to achieve his goals.
Terrorism must also be differentiated from certain intentional crimes that
are similar from an objective standpoint, such as the intentional destruction or
damage of property by universally dangerous means (Part 2, Article 167), the
intentional destruction or damage of military property committed by a perpetra-
tor in the course of another military crime (Article 346), or murder committed by
universally dangerous means (Article 105, Part 2, Section E). The descriptions
of these crimes lack any indication of special terrorist goals. But it is these very
goals the violation of societal security, the frightening of the population, and
the influencing of decision making by organs of power that are pursued by an
individual committing an act of terrorism.
The criminal directs his will toward achievement of these goals, and to
realize them, he selects the time and appropriate weapons and tools of the crime
as well as the situation. As a rule, the terrorist accompanies commission of
universally dangerous actions with notification of the authorities and the popula-
tion that new bombings, arsons, or similar acts are possible. In this way, he is
counting on attaining the terrorist goals that have been set. Even mere reports of
possible actions that would create the danger of loss of life, significant property
damage, or similar consequences are capable of creating panic among the popu-
lation, producing disorder, disrupting the operations of transportation and other
enterprises and institutions, and compelling state agencies to take complex and
. .
expensive preventive measures.
It is for this reason that the new Criminal Code classifies as a completed
terrorist act even a threat of universally dangerous actions made for terroristic
purposes. Furthermore, the making of an intentional false report of an act of
terrorism is also deemed to be a crime (Article 207 of the Criminal Code),
regardless of the motives and goals of such a report.
A footnote to Article 205 of the Criminal Code concerns the absolution from
criminal responsibility of individuals who have participated in preparations for a
terrorist act. Its text is practically unchanged from that of a footnote to Article
OCR for page 20
20
HIGH-IMPACT TERRORISM
213/3 of the 1961 Criminal Code of the Russian Soviet Federated Socialist Re-
public. At the same time, the juridical content of this footnote requires new
interpretation. This is due to the appearance in the General Section of the Crim-
inal Code of standards concerning the voluntary refusal of participants in a crime
to carry that crime through to completion. In accordance with Part 2 of Article
31 of the Criminal Code, there are no grounds for assigning criminal responsibil-
ity to an individual who has voluntarily and finally declined to carry a crime
through to completion. Furthermore, an accomplice to a crime bears no responsi-
bility if in addition to voluntarily and finally declining he has also taken all
possible measures to prevent the crime. The same would be true for the organiz-
er and instigator of the crime if he in fact managed to prevent the criminal
attempt (Part 4, Article 31~. It must be emphasized that in this case we are
referring not to an absolution of criminal responsibility, but rather to the com-
plete absence of grounds for such responsibility.
By comparing Article 31 of the Criminal Code and the footnote to Article
205, one may conclude that the referenced footnote refers only to those cases in
which the criminal becomes involved in preventing a terrorist act voluntarily and
not through pressure or force (for example, by being discovered and held to
account) or because an individual stops a planned terrorist act in order to carry it
through later at a more convenient time. In other words, the footnote to Article
205 could be applicable only if there is no evidence of a voluntary and final
withdrawal from participation in a terrorist act. If not, then Article 31 would
apply, stipulating not an absolution of responsibility, but rather an absence of
grounds for responsibility.
In making a criminal-legal assessment of information on planned or com-
pleted bombings, arsons, or similar actions, one must make a distinction between
a terrorist act and an act of sabotage. Indeed, along with language on responsibil-
ity for terrorism, the new Russian Criminal Code also includes a standard on
sabotage. Sabotage is defined as a bombing, arson, or other action aimed at
destroying or damaging vital service facilities, enterprises, structures, means of
communications, or the transportation infrastructure if committed for the pur-
pose of undermining the economic security and defense capability of the Russian
Federation (Article 281 of the Criminal Code). Differentiating between the ele-
ments involved in these two crimes, terrorism and sabotage, is done by means of
objective characteristics (sabotage does not necessarily presuppose the creation
of danger of loss of life or serious harm to health, and it does not necessarily
require the use of universally dangerous means of harming the above-mentioned
facilities) and subjective characteristics (the saboteur pursues certain goals that
do not coincide with the goals involved in an act of terrorism).
Sabotage is categorized among crimes against the foundations of the consti-
tutional structure and state security (Chapter 29 of the Criminal Code). Accord-
ing to the law, the fundamental difference between sabotage and a terrorist act
lies in the goals of the criminal. A terrorist bombing is directed against societal
OCR for page 21
TERRORISM AND THE LAW
21
security and against the population. It is carried out with the aim of disrupting
the foundations for the existence and functioning of civil society, the founda-
tions for the organization and self-organization of the social sphere. If the goal of
the criminal is to attack national (state) security and harm its basic values, in-
cluding first of all its economic security and defense capability, criminal law
labels the actions as sabotage. It is no accident that the law does not require the
act of sabotage to create the threat of loss of life. Indeed, the saboteur achieves
his goals not by frightening the population, but primarily by affecting material
objects created and functioning in the interests of protecting the country and
defending its economic interests.
The choice of the target that the criminal aims to destroy or damage is the
primary evidence indicative of sabotage-related goals. The Criminal Code lists
the following possible targets in this category: facilities providing vital services
to the population (heating plants, bakeries, medical and pharmacy establishments,
water intake sites, etc.~; other enterprises and structures; radio, telephone, tele-
graph, and other communications-related facilities; bridges; roads; means of
transportation; and other transport infrastructure-related sites.
Further evidence of sabotage-related goals may be found in the choice of the
time, place, and specific circumstances of the crime (for example, the commis-
sion of a crime during war or danger of war or during a period of economic
crisis, and an attempt to undermine Russian sovereignty using these circum-
stances). Other evidence may be found in the specific target selected for destruc-
tion or damage (for example, a facility that plays a key role in a strategically
important economic or vital services sphere). Let us emphasize once more that
this sort of case does not require the damage to be caused by universally danger-
ous means. The means chosen by the criminal are primarily aimed at harming
the economy and military power of Russia.
In the course of applying the new Criminal Code of the Russian Federation,
a question might arise regarding the possibility of an ideal combination of terror-
ism and sabotage, that is, a situation in which the perpetrator fulfilled the re-
quirements for committing both crimes in a single action (for example, an action
carried out in a zone of internal armed conflict). It seems that the law does not
rule out such a possibility. In carrying out his task of weakening Russia's mili-
tary potential, the criminal takes a defense-related facility out of commission,
choosing to use the most terrifying and universally dangerous means and intend-
ing to elicit a certain reaction from the authorities.
It should be considered that the law does not rule out the possibility that the
criminal may have goals related to both sabotage and terrorism simultaneously.
This is possible if, for example, a perpetrator on assignment from a foreign
organization and in the aim of undermining the country's economic security
takes a strategically important industrial facility out of commission, using means
that frighten the population (a powerful explosion) and intending to force the
authorities to meet the criminal's individual demands. In such cases, commission
OCR for page 22
22
HIGH-IMPACT TERRORISM
of such a bombing includes characteristics of both sabotage and terrorism, which
means that it would be qualified under two different articles of the Criminal
Code of the Russian Federation.
When the criminal destroying targets aims to frighten the population so as to
diminish Russia's defense capability and its social-moral potential in some man-
ner (for example, in conditions of war or armed conflict), then it is a matter only
of sabotage-related goals. No additional qualification of the action as terrorism is
required.
Another circumstance also merits attention. In the majority of instances,
both acts of sabotage and acts of terrorism are planned and carried out on the
basis of a preliminary agreement among a group of individuals or an organized
group. It is no coincidence that the Criminal Code includes the appropriate qual-
ifying standards in Parts 2 and 3 of Article 205 and Part 2 of Article 281.
Therefore, it is highly likely that a situation could arise in which the goals of
individual participants might not coincide. This is possible, for example, if for
the purpose of undermining the economic security and defense capability of
Russia, the head of a saboteur group plans a bombing to be carried out by another
individual unaware of the group leader's true motives. This individual in fact
might be pursuing goals linked with frightening the population or other terrorist
purposes. In such situations, the actions of each participant should receive an
independent criminal-legal evaluation regarding the orientation of their inten-
tions. The actions of participants in a bombing must be categorized according to
the article on terrorism or on sabotage, depending on the goals established and
held by each criminal involved.
Examples of terrorism in the political sphere are not found only in univer-
sally dangerous actions aimed at influencing the activities of organs of power.
Such terrorism can also appear in the form of specific terrorist acts committed
for the purpose of halting the political activity of individual persons (Article 277
of the Criminal Code).
Serious changes were made in the 1996 Russian Criminal Code standard on
responsibility for terrorist acts. These changes primarily involved characteristics
of the objective aspect of the crime. According to the new Criminal Code, a
terrorist act is considered to have been committed not only in the event that it
causes the death of a state or public figure, but also in the case of attempts on the
lives of such individuals. Shifting the moment at which a terrorist act is deemed
juridically complete to the assassination attempt stage males it possible to apply
the maximum measure of punishment to the culprit, including the death penalty,
even if the intended victim is not killed (although it is true that a death penalty
moratorium is currently in effect in Russia).
The list of those potential target individuals who are covered under the
crime analyzed above is narrow: the law excludes representatives of organs of
power, since responsibility for their murder must fall under Article 295 ("At-
tempt on the Life of an Individual Involved in Facilitating Justice or Preliminary
OCR for page 23
TERRORISM AND THE LAW
23
Investigations"), Article 317 ("Attempt on the Life of Law Enforcement or Mil-
itary Service Personnel"), or Part 2 of Article 105 ("Murder in Connection with
Employment in an Official Capacity".
The subjective aspect of the terrorist act has now taken on new characteristics
as well. A requisite component of this crime is the motive of revenge for the state
or public activity of the victim or the goal of halting the victim's state or public
activity. The above-mentioned motive and goal may be present simultaneously.
The question of types of intent in committing a terrorist act also merits
independent evaluation. For Russian criminal law, only direct intent has tradi-
tionally been included as a criterion for this crime. This is because the subjective
aspect of an act of terrorism for a long time presupposed the mandatory presence
of special "counterrevolutionary" or later "anti-Soviet" goals. The presence of
this special goal as part of the crime of terrorism understandably narrowed down
the possible types of intent, leaving only direct intent. However, the present law
also recognizes as an act of terrorism an assassination attempt without any spe-
cial goal, or only with the motive of revenge for political activity. Thus, "with
regard to causing death to the victim, there can be both direct and indirect intent,
as the presence of a motive necessarily presupposes direct intent with regard to
the action but not necessarily to the result of that action."
The motive can determine the action itself but can be aimed at another
result; in that case, indirect intent is possible with regard to the anticipated result
of the terrorist act (death). This occurs specifically if out of revenge for political
activity, the criminal wishes to harm the health of a state figure, creating the
possibility of his death in the process. In the event that death is actually caused,
intent must be considered indirect.
An expansive approach is lacking in recent doctrinal commentaries regard-
ing the concept "state figure." More accurately, emphasis is placed on the cir-
cumstance that the figure is primarily an individual who makes decisions, that is,
a leader or member of a collegial governing agency influencing the functioning
of the state mechanism or a public association, not merely executing but rather
forming their policies.
At the same time, efforts to place only federation-level figures in this cate-
gory are clearly unfounded. Leaders of cities and districts and similar individuals
involved in local self-government must be regarded as public figures, and in this
capacity they cannot be excluded from the category of potential victims of ter-
rorist acts.
It should be kept in mind that the new criminal law does not preclude the
designation of foreign government officials or figures from international and for-
eign public organizations as victims under the article on terrorist acts (Article 277),
provided that these persons are conducting their activities in our country in accor-
dance with the Constitution of the Russian Federation and Russian legislation.
In conclusion, another new legislative enactment also merits attention. It is
commonly known that Part 3, Article 12 of the 1996 Criminal Code of the
OCR for page 24
24
HIGH-IMPACT TERRORISM
Russian Federation sets forth the "real" principle of criminal law activity with
regard to actions infringing upon the interests of the Russian Federation.
It signifies that Russian criminal law can be applied to a foreign citizen or
stateless person who has committed a crime on Russian soil aimed against the
interests of our state. This standard is applied in the event that such an individual
is not convicted in a foreign country and is subsequently tried in our country.
This means that in accordance with the above-outlined principle in our law,
foreigners who have committed the following acts could be held criminally re-
sponsible: a terrorist act aimed at influencing the decisions of Russian authori-
ties (Article 205 of the Criminal Code); sabotage of a Russian military or eco-
nomic target located outside the borders of the Russian Federation (Article 281~;
a terrorist act against a Russian state or public figure who is temporarily abroad
committed in connection with the victim's official activities but in the interests
of our country (Article 277~.
From this analysis, it is obvious that the struggle against terrorist activity is
effective when it is legal, uncompromising, and correctly qualified, that is, dif-
ferentiated from other types of crimes that may include elements of terrorization.
Representative terms from entire chapter:
terrorist act
