"AUE" in Prisons: Problems of Qualification

Vyacheslav Vladimirovich Kim, Valery Kolossovich Znikin, Ivan Sergeevich Nekrasov

and Alexander Alexandrovich Khramov

Kuzbass Institute of the Federal Penal Service of Russia, Novokuznetsk, Russian Federation

Keywords: Criminal law, criminal law means of counteraction, prison subculture, extremism, Prison Criminal Unity.

Abstract: The article considers the problems of bringing persons to criminal responsibility for committing extremist

crimes, including the spread of criminal subculture, which promotes the thieves' notions of Russian criminal

environment, including - prison notions, requiring compliance with the so-called thieves' code (hereinafter -

"AUE") The conclusion is made, that despite the measures taken by the state in the investigated sphere, the

introduction of such criminal offences as organization, participation, inducement and involving a person into

the extremist community has not solved all the problems, connected with the negative influence of the prison

subculture on the convicts as well as on the society. The aim of the research is to identify the most significant

theoretical and practical issues related to documenting the activities of extremist organization "AUE" in penal

and correctional system (hereinafter referred to as CPS). The goal stipulated setting and solving the following

tasks: to establish the characteristics of extremism; to analyze empirical basis necessary for conducting the

research; to define the differences between thieves' (prison) ideas and ideas propagated by the international

social movement "AUE" The methodological basis of work was based on sociological research methods The

research was conducted in penitentiary institutions of Siberian Federal District. On the basis of judicial

practice, as well as the interpretation of individual criminal law provisions, it is proposed to document a list

of statements and actions by convicted, suspected and accused persons in order to prosecute them for engaging

in extremist activities, as defined in this article.

1 INTRODUCTION

In the context of globalization and the ever-changing

realities of modern society and the state, issues of

countering extremism are of particular importance

(Diehl, 2011; Samovich, 2012). This is evidenced, in

particular, by the repeated (and, recently, annual)

appeals of the President of the Russian Federation to

various law enforcement agencies to strengthen

measures in this direction (Suchkov, Filonov, 2019).

For example, on February 24, 2021, at the board

meeting of the FSB, he noted that countering

extremism, along with terrorism, is one of the most

important directions in increasing the level of security

not only for the constitutional order of the state, but

also for civil peace and harmony. Moreover, in this

case, we are not only talking about the Russian state,

but also many others closely interacting with it on

various fronts (Mits, Andriyanchenko, 2017;

Heimbuch, 2020; Borisov, 2019; Bötticher, 2017;

Gunaratna, 2017).

https://orcid.org/0000-0001-6644-8500

Unfortunately, the analysis of statistical indicators

of registered crime of extremist nature for the last five

years does not allow us to speak about systematic and

consistent actions of our state in this sphere, as there

is an inconsistent dynamics in its negative direction

(from 2015 to 2017 and from 2019 to 2020) and in a

positive direction (from 2017 to 2019) (see Diagram).

A similar situation is observed for certain offences (in

particular, 282.1 of the Criminal Code).

Figure1: Dynamics of registered extremist crimes (2015-

2020)

500

1000

1500

2000

2015 2016 2017 2018 2019 2020

Kim, V., Znikin, V., Nekrasov, I. and Khramov, A.

"AUE" in Prisons: Problems of Qualiﬁcation.

DOI: 10.5220/0010628000003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

38-43

ISBN: 978-989-758-532-6; ISSN: 2184-9854

In general, despite the decrease in the total volume

of registered extremist crimes in 2020 compared to

2015 by almost a third (37.3%), the activities aimed

at their prevention cannot be considered absolutely

effective. This is hindered primarily by deficiencies

in the legal and managerial sphere, among which, as

D.A. Stepanenko and M.A. Mushinsky rightly point

out, we can highlight (1) insufficient strategic

planning, (2) various flaws in the anti-extremist

legislation (gaps, conflicts, unclear legal concepts,

etc.), uncertainty of the very concept of extremism

(Stepanenko, Mushinsky, 2019). The latter appears to

play one of the key roles in solving the problems of

bringing individuals not only to criminal but also to

administrative responsibility.

Despite the fact that there is no unified position in

the legal literature regarding the content of extremist

activity, Federal Law No. 114-FZ "On Counteracting

Extremist Activity" does define it, moreover, by

listing an exhaustive list of actions which, according

to the legislator, constitute a public danger to a

person, society and the state. These include not only

the violent change of the foundations of the

constitutional system, incitement of various kinds of

discord, but also terrorism, which is, in fact, an

independent legal category (the concept of which is

enshrined in a separate federal law) (Protasevich,

2019). The presence of such deficiencies in the

legislative technique, as well as the use of evaluative

terms (e.g., knowingly, confusingly similar, etc.) in

the formation of the concept of "extremism" in the

formation of the concept of "extremism", according

to some scholars, may lead to a paradoxical situation

where in law enforcement it will be possible to

prosecute a person for carrying out extremist actions

expressed in the demonstration of films, poems and

songs of the past, the commission of computer crimes

and even the destruction of animals (Donovan,

2013).This has also been repeatedly pointed out by

international organizations (Opinion No. 660 / 2011

CDL-AD(2012)016 of the European Commission for

Democracy through Law) (pinion of the Venice

Commission on the Federal Law "On Counteracting

Extremist Activities", 2012), who consider the

current Russian legislation on countering extremism

to be vague, allowing an expansive interpretation of

its individual norms and therefore contrary to the

requirements of relevant international legal acts.

However, currently the problem is not so much in

criminal prosecution for extremist crimes by

subjective opinion of law enforcement authorities and

the court, but in the absence of a unified algorithm

(methodology) for recognizing such actions as

criminal. This is related to the activity of the

International Public Movement "Arrestee Criminal

Unity" (hereinafter referred to as AUE), recently

recognized as extremist by the Supreme Court of the

Russian Federation (hereinafter referred to as SC RF)

(case # ACPI20-514S from 21.07.2020), which

promotes prison concepts not only among teenagers,

as highlighted in mass media, but also among

prisoners themselves in correctional institutions, as

confirmed by our survey results. Thus, 73% of

operatives from correctional institutions in the

Siberian and Far Eastern Federal Districts (the

Kemerovo, Tomsk, Novosibirsk, Omsk Oblast, the

Republic of Khakassia, Krasnoyarsk, Transbaikal,

Primorsky, Amur and Khabarovsk Krais) noted that a

majority of inmates, in one way or another, adhere to

the criminal subculture. Moreover, in a number of

correctional colonies (the so-called "black" ones)

such subculture is actively promoted, leveling the

content of correctional and preventive influence on

inmates.

The purpose of the research is to identify the most

significant theoretical and practical issues related to

the documentation of extremist organization "AUE"

activities in penitentiary facilities. The aim led to the

setting and solving the following tasks: to establish

the signs of extremism; to analyze the empirical basis

necessary for the research; to determine the

differences between thieves' (prison) ideas and the

ideas promoted by the international social movement

"AUE"; to formulate conclusions and proposals.

2 MATERIALS AND METHODS

A range of methods was used in the research process.

First of all, analysis and synthesis, induction and

deduction, and comparison. In addition to these

general scientific methods, specific scientific

methods were also used. In particular, the method of

empirical knowledge that allows us to see from the

outside the impact of extremism (including AUE) on

convicts and other persons. Descriptive method,

based on the recording of information obtained

through interview and observation; survey, during

which information was obtained from operational

staff of correctional institutions in the Siberian and

Far Eastern Federal Districts (Kemerovo, Tomsk,

Novosibirsk, Omsk Region, Republic of Khakassia,

Krasnoyarsk, Primorsky, Amur and Khabarovsk

Territories) about the influence of prison subculture

on young people. The method of theoretical cognition

includes the structural-functional method, which

consists in dividing the object under study (in

"AUE" in Prisons: Problems of Qualiﬁcation

particular, attributes of extremist activity, prison

subculture) into constituent parts.

3 MATERIALS AND METHODS

Unfortunately, despite the measures taken by the state

in the area under study, the introduction of such

crimes as organization, participation, inducement and

involving a person into the activities of an extremist

community in the Russian Criminal Code has not

solved all the problems related to the negative impact

of the prison subculture (AUE) on the convicts

themselves and the society. Moreover, the problem of

inmates adhering to and promoting AUE is caused not

only by the shortcomings of legal technique but also

by the lack of a unified methodology (algorithm) of

proving the subject of extremism-related crimes by

the operational units of correctional institutions.

As of today, the only source, which reveals signs

of the international public movement «Prison

Criminal Unity», is the decision of the Supreme Court

of the Russian Federation (case № ACPI20-514S

from 21.07.2020).

On the basis of note 2 to article 282.1 of the

Criminal Code of the Russian Federation, crimes of

an extremist nature include those motivated by

political, ideological, racial, ethnic or religious hatred

or enmity, or by hatred or enmity towards any social

group, as set out in the corresponding articles of the

Special Part of the Criminal Code (for example,

articles 280, 280. 1, 282, 282.1, 282.2 and 282.3,

article 105, paragraph 2 (k), article 111, paragraph 2

(f), article 213, paragraph 1 (b), of the Criminal Code)

and other offences committed on such grounds, which

are considered an aggravating circumstance under

article 63, paragraph 1 (f), of the Code. We will

consider the above crimes in terms of their possible

commission in pre-trial detention centre’s and

penitentiary institutions of the penal correction

system.

Given the diversity of extremist crimes (article

105, part 2, item "l"; article 111, part 2, item "f";

article 112, part 2, item "f"; article 213, part 1, item

"b"; etc.), we have identified only those crimes in

which extremist motives are part of the main offence

(article 280 of the Criminal Code "Public calls for

extremist activities"; article 282 of the Criminal Code

"Incitement to hatred or enmity, as well as

humiliation of human dignity"; article 282.1 of the

Criminal Code). Public calls for extremist activities";

article 282 "Incitement to hatred or enmity, as well as

disparagement"; article 282.1 "Organization of an

extremist group"; and article 282.2 "Organization of

an extremist organization".)

In order to correctly document the objective

nature of the offence, it is necessary to distinguish

between sections 280 and 282 of the Criminal Code.

Article 280 of the Criminal Code establishes liability

only for public calls for extremist activities, while the

public dissemination of information justifying the

commission of unlawful acts against individuals on

the basis of race, ethnicity or religious affiliation, or

information justifying such activities, should be

classified under article 282 of the Code, where there

are other elements of that offence.

At the same time, according to O. Ermakov, on

the basis of the court verdicts studied, the practice

follows the way of mutual absorption of Art. 280 and

Art. 282 of the Criminal Code. For example, in a

situation where a perpetrator publicly expresses

hatred or enmity towards a particular social group

and/or its representatives and simultaneously calls for

violent actions against the latter, the qualification of

the offence is often limited to an indication of either

Article 280 or Article 282 of the Criminal Code. Most

often, only Article 282 of the Criminal Code is

applied in such situations (Yermakov, 2014).

Analysis of the norms of the criminal law allows

proposing a number of recommendations for

documenting and collecting evidence of extremist

activities of the international public movement

"AUE" under Articles 280 and 282 of the Criminal

Code, taking into account the signs indicated in the

decision of the RF Supreme Court, among prisoners

serving sentences in the institutions and bodies of the

penal correction system.

The publicity of the articles is set out in Decision

No. 11 of the Plenum of the Supreme Court of the

Russian Federation, 28 June 2011, Moscow "On

Judicial Practice in Criminal Matters". Public appeals

(article 280 of the Criminal Code) refer to appeals to

others, expressed in any form, such as oral or written,

or by technical means, to induce them to engage in

extremist activities. In establishing the thrust of the

appeals, the provisions of Federal Act No. 114 of 25

July 2002 on Combating Extremist Activities must be

taken into account. The question of the publicity of

the appeals should be resolved by the courts taking

into account the place, manner, setting and other

circumstances of the case (appeals to a group of

people in public places, at meetings, rallies,

demonstrations, distribution of leaflets, putting up

posters, distribution of appeals by mass mailing

messages to mobile phone subscribers, etc.). The

crime is considered as completed since the moment

of public announcement (distribution) of at least one

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

appeal, irrespective of the fact whether it was possible

to induce other citizens to carry out extremist activity

or not.

Thus, based on the plenum of the Supreme Court

and articles 280 and 282 of the Criminal Code, it

follows that, in the course of public statements, the

staff of correctional institutions (hereinafter, prisons)

and remand centre’s (hereinafter, detention centre’s)

must document the statements indicated in Article 1

of Federal Law No. 114 of 25 July 2002 'On

Combating Extremist Activity', within correctional

institutions, which:

1. Incite social, racial, national or religious

discord among the convicts. In this case, hatred

towards inmates who do not adhere to "AUE",

"thieves' beliefs", "thieves' code", "thieves'

notions", "blatnaya notions".

2. Propaganda of exclusivity, superiority of

inmates promoting "AUE" or inferiority of

other inmates.

3. Obstructing the lawful activity of state

authorities, including calls to oppose the

officers of correctional institutions and

Detention centre.

4. Calling for reprisals, murder of staff members

of correctional institutions and Detention

centre.

Such statements may include: "Zone get up!",

"AUE! Life to thieves! Death to cops!", "No to the

regime, death to cops, AUE!", "AUE, escape!", etc.

For the correct classification and documentation

of criminal activity under article 282.1 of the

Criminal Code, "Organizing an extremist

association", we must refer back to the Plenum of the

Supreme Court, which indicates that an extremist

association (Criminal Code article 282.1) is a stable

group of persons who have united for the preparation

or commission of one or more extremist crimes,

characterized by the existence within it of an

organizer (leader) and the stability of its structure and

the coordinated action of its members At the same

time, an extremist association may consist of

structural subdivisions (parts).

Let us disclose the characteristics of an extremist

community and relate them to a community of

convicts united by thieves' (prison) ideas operating in

a penitentiary institution:

1. The presence of two or more persons with the

characteristics of the perpetrators. In

correctional institutions, in one way or another,

every convict is a member of the community of

convicts united by thieves (prisoners) ideas, as

every convict is obliged to comply with the

prison rules.

2. Group sustainability. The association of

convicts according to S.V. Mikheeva and V.S.

Mikhailov originated in the 19th century, but

its existing form took shape in 1920-1930 and

is associated with the emergence of a special

layer among convicts "thieves in the law"

(Mikheeva, Mikhailov, 2016).

3. The presence of an organizer (leader).

4. Distribution of roles between the group

members. In the scientific literature touching

on the criminal subculture, a clear distribution

of roles of each convict depending on his status

is always indicated (Ivashova, 2018).

Accordingly, this attribute is clearly visible in

the community of convicts united by thieves'

(prison) ideas.

5. Presence of a prior agreement to commit

extremist crimes together, i.e. an agreement

that took place prior to the commencement of

actions directly aimed at committing the crime.

6. The aim of the group is the preparation or

commission of extremist crimes. Is one of the

key points in terms of detection and

documentation. The mere fact of having an

association of convicts united by thieves

(prisoners) ideas in correctional institutions

does not correlate with an extremist

association, unless it is proved that the aim of

the association is to prepare or commit

extremist crimes. In our opinion, such crimes

include, in particular, murder, infliction of

various degrees of harm to health of both

inmates and correctional officers, committed

on the grounds of political, ideological, racial,

national or religious hatred or enmity or on the

grounds of hatred or enmity towards any social

group.

Thus, the mere fact of having in prison a

community of convicts united by thieves (prisoners)

ideas is not an extremist community, if they do not

engage in the preparation or commission of extremist

crimes.

As we mentioned above, the international public

movement "AUE" was declared extremist by the

decision of the Supreme Court of the Russian

Federation. Thus, the question arises, are the

community of convicts united by thieves' (prison)

ideas and the international public movement "AUE"

the same organizations?

In order to answer this question one should refer

to the abovementioned decision of the Supreme Court

of the RF. Thus, the decision states that from the

materials of the case it follows that on the territory of

the Russian Federation there is an international social

"AUE" in Prisons: Problems of Qualiﬁcation

movement "AUE", whose first followers appeared in

the 90s of the last century as a result of propagation

of criminal ideology in the youth and teenagers

environment, expressed in denial of generally

accepted moral principles and the supremacy of law,

propaganda of violence as a way of achieving the

goals and hostility towards representatives of

institutions of power.

The Supreme Court thus points out that the

ideology in question is spreading among young

people and adolescents.

These statements are repeated in the text of the

decision, periodically. On page 4, paragraph 10,

"Extremist materials are placed on the sites of AUE

participants ... other materials harmful to the health of

minors. Paragraph 10 states that "in order to reach the

widest possible audience of young people,

moderators of the Internet resources used by AUE

often use open calls to extremist activity, violence,

murder of persons singled out on the basis of

nationality.....".

On page 8 paragraph 5 "Participants of AUE

promote criminal traditions, a social behavior ...

which has a negative impact on the development of

minors and young people and is detrimental to society

and the state.

The next attribute that can be highlighted is the

adherence to criminal "thief", "prison" traditions and

customs. On page 4, for example, "extremist

materials are posted on the websites of AUE

members, Nazi symbols are displayed, thieves and

prison rules (the so-called concepts) are promoted and

the "thief code" is strictly observed", on page 5 it is

stated that "the unifying basis of AUE is criminal

ideology». Indicating that the purpose of this

organization is, inter alia, to prepare or commit

extremist crimes. On the page 4 it states that

"moderators of the Internet resources used by AUE

often use calls to extremist activity, violence, murder

of ethnic groups and police officers, public

disobedience to the authorities and law enforcement,

video and photo reports on the crimes committed.

Under the influence of extremist and criminal

ideology, extremist crimes, high-profile offenses,

mass disorder, etc. are committed by AUE members

in the framework of their activities and in the interests

of the Movement. The analysis of the activities of

"AUE" was conducted by the Nizhny Novgorod

Academy of the Ministry of Internal Affairs of Russia

in 2020, it prepared an expert opinion, which was

examined in the court session, from which it is clear

that AUE is a well structured and controlled

organization - a youth movement of protest and

extremist orientation, which includes not only

performers, but also the organizers. In AUE

communities there is a clear division of status, roles,

rights and responsibilities, as well as a strict chain of

command in interpersonal relations, with 'gatherings'

and 'meetings' used by the 'top' to organize and

coordinate work. The movement promotes the idea of

creating a "thieving" power as an antipode to the

current state power, as well as the application of other

laws ("notions"). The AUE shapes an extremist

worldview of young people, led by protest behavior

aimed at undermining universally recognized values

and state institutions of power.

4 CONCLUSIONS

Thus, the analysis of the current legislation, law

enforcement practice (in particular, court decisions)

and scientific literature demonstrated that the

international social movement "Prisoners' Unity",

recognized as extremist by the Supreme Court of the

RF (case № ACPI20-514S from 21.07.2020) and the

community of convicts united by thieves (prison)

ideas are not identical organizations. The mere fact of

having a community of convicts united by thieves

(prison) ideas in a penitentiary institution is not an

extremist community unless they are engaged in the

preparation or commission of extremist crimes.

Therefore, criminal liability of convicts (suspects and

accused) under Article 228.2 of the Criminal Code of

the Russian Federation will occur only if their actions

have the signs we have outlined earlier.

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"AUE" in Prisons: Problems of Qualiﬁcation