Law and Memory Politics in Russia

 

There is only one direct statutory interdiction in the field of memory politics, and namely rehabilitation of Nazism, which is corpus delicti of Art.354.1 of the RF Criminal Code. The 1995 Federal Law No.80-FZ imposes additional constraints on the freedom of expression through prohibiting denial of the role of the Soviet people in the World War 2. In 2014, this Law directly prohibited to put under doubt the Nurnberg Tribunal verdict and other court verdicts against Nazis, thereby allowing a broader interpretation of Art.354.1 of the RF Criminal Code. The interdiction of Nazism is the core of the memory politics under Russian law, and at the international level Russia actively propels its reading of history in what concerns the World War 2. In such cases as Kononov vs Latvia (ECtHR, No. 36376/04) and in a number of other controversial cases Russia utilized not only its financial resources (e.g., paying lawyers for Mr Kononov) but also its media and diplomatic sources to assert its memory policy in Europe and in the world (e.g., the 16.11.2017 Russian-drafted UN resolution [A/C.3/72/L.56/Rev.1] against glorification of Nazism).

Presents in Session VI

Government Data on Prosecutions for the Exercise of Freedom of Assembly: Problems and Limitations

 

One of the sources of information on the suppression of public protests in Russia is the statistics published by the Judicial Management Department at the Supreme Court of the Russian Federation. It shows numbers of people punished for different types of crime including participation in demonstrations or organization of public protests. However, these data are extremely difficult to work with as the Judicial Department publish them in numerous separated tables and describe the data in obscure professional language. We processed this data and are building a user-friendly service that will make them accessible for a broader audience. In our presentation, we would like to talk about problems and limitations of this data.

Presents at Think Corner Breakfast

Presentation slides

The Meeting of Cosmopolitanism and Citizenship in Constitutional Law of Eastern Europe

 

The presentation is devoted to issues of limits to the development of the citizenship on the circle of persons and the formation of new models of political and social systems, based not so much on participation, but on recognition of the dignity of the human person, regardless of belonging to a particular political community. Such an approach requires turning to the tradition of a cosmopolitan view of a person.

Regulatory practices of the citizenship do not always coincide with human rights law. Often they develop separately, and the institution of citizenship acts as a factor that divides the population of the same state into several categories, including citizens, stateless persons, legal and illegal migrants, etc.
Cosmopolitan ideas, which are, above all, a moral doctrine, have political significance and influence the current policy, influence the power and political doctrine, capable of offering recipes for politics. It contradicts the principles that integrate this society, such as power. In cosmopolitanism, from the time of Diogenes Cynic (412 BC - 323 BC), the individualistic principle develops, emphasizing the individual's isolation from the community, which allows a person to take a critical position in relation to the whole society. A cosmopolitan does not identify himself with society in everything. This kind of position requires a person of outstanding moral and mental qualities, and from politics - sensitivity to the principle of solidarity; politics does not arise by virtue of power, but by the cooperation of such people among themselves. Also, the idea of cosmopolitanism asserts the idea of a universal human community. But such ideas stop at the threshold of private communities, particular politics, foreigners, and other political systems.

This kind of tension is resolved by transforming the cosmopolitan moral obligations into the legal obligations of different actors at different levels, including these obligations apply to the State.
The presentation  traces the process of the emergence of such obligations in the states of Eastern Europe in the last twenty years, as well as the development of the idea of cosmopolitanism in the context of the citizenship. I study ways to solve the problem of statelessness, as well as the development of the debate around the contradiction that arises between the concept of universal fundamental human rights and the institution of citizenship.

Presents in Session I

Freedom of Assembly in Russia in the Context of Elaboration of the UN Human Rights Committee’s General Comment on Article 21 of the ICCPR

 

The UN Human Rights Committee decided to elaborate a General Comment on Article 21 (freedom of assembly) of the International Covenant on Civil and Political Rights and invited NGOs to submit its proposals for this document. “Memorial” and OVD-Info submitted its proposals on the basis of the examination of the Russian law and of its implementation. 43 others NGOs from all over the world have made their own proposals based on their experience of the work in particular countries or on particular subjects (for example, freedom of assembly for children). It is intended to make a summary of these proposals and to show how the experience of different NGOs from various countries can contribute to the development of the Russian law and of the international law through the future General Comment.

The presentation will cover such issues as notification of the assemblies, the obligation of the authorities to facilitate the organization of the manifestations, the possibilities for the authorities to make restrictions of the right to freedom of assembly, the notions of peaceful and non-peaceful protest, the possibilities for the authorities to use the force during the manifestations, the prosecution of the organizers and participants to the assembly, exc.  

The UN Human Rights Committee should adopt the first draft of the General Comment during the summer 2019. In this case it would be possible to discuss during the presentation the main points of this draft, the additional suggestions for this draft and the possible impact of the General Comment on the Russian law and on the situation in Russia.

Presents at the Think Corner Breakfast

The New Developments of Constitutionality Review in China

 

In December of 2008, the Supreme People’s Court of PRC abolished a series of Decision which made by the Supreme People’s Court itself in the past. Among of these Decisions, it included the Reply to Qi’s case, which some legal scholars at home and abroad considered as the Chinese “Marbury vs Madison”. It implied the failure of judicial review approach in China.

The new development of constitutionality review in China commenced in 2017. The Chairman Xi of the Party delivered his speech at the 19th CPC National Congress. He emphasized the Rule of Law and proposed “advance constitutionality review” in China. It officially points out how the PRC protect its Constitution.

Nevertheless, it needs to admit that at this stage, how to carry out the constitutionality review in China still need to develop and discuss. Only some principles of constitutionality review are generally accepted and performed. Such as, National People’s Congress and its standing Committee play the main role in the constitutionality review system. It needs to adhere to the leadership of the CPC.
In the presentation, I would like to introduce how the constitutionality review performed in China at moment, and how to establish the constitutionality review system with the Chinese characteristics by discoursing the objects and procedure of the constitutionality review in China.

Presents in Session I

Legislative Tradition Beating Law and the Pretences of Neoliberalism in Central Eastern Europe?

 

In this talk, based on a long durée analysis of legislative changes of private law and condominiums legislation spanning almost a century, I intend to debunk several of the myths spread by politicians and law makers influenced by neoliberalism. Among these many myths, first and foremost is that the neoliberal inspired legislative changes in post-communist Europe represent a dramatic rupture with the legislative tradition of enactments of the communist era in Central Eastern Europe. Second, that the neoliberals advanced rights and liberties during their 1990s and 2000s frenzy to change the communist era legislation. Third that the neoliberal legislative philosophy is driven by some higher moral ideals, rather than by sheer instrumentalism, positivism or mistaken ideas about society and governance characteristic to the communist era. As the long durée analysis of legislative changes shows, there is a pattern of strong continuity between legal regimes characteristic to political regimes which proclaim dramatic rupture with previous political regimes that is striking. Not only that the fascist or socialist era legal regimes maintain in large parts legislation enacted by liberal or semi-liberal political regimes, but in a similar pattern, neoliberal regimes maintain legislation enacted during communist era far longer than one could expect given the declarations of neoliberal politicians. Moreover, there seems to be a pattern of ad hoc adaptation of legislation to the needs of neoliberalism post 1990s, which in many ways resemble the adaptation of past legislation to the political needs of the new regime occurring during the communist take over of the late 1940s. While neoliberals did not operate in the same brutal ways as the communist did in the late 1940s, they seem to be inspired, nevertheless, by the same backward application of instrumentalism and positivism as their political predecessors. The result is that the totalitarian spirit of communist era survives in the legislative domain. It tends to operate in more subtle ways than it did during real existing socialism, but the aspirations and the governance methods are similar in many ways, in spite of politicians’ rhetoric.  However, and again like during the early years of communism, the distance between politicians’ rhetoric and reality is great enough and the legislative path enough difficult, so the rights and liberties granted by previous social organisation survive and offer citizens some sort of breath space.

Presents in Session VI

Data on Arrests at Rallies in Moscow and St. Petersburg from 2012 to 2019

 

OVD-Info has been monitoring the arrests at peaceful rallies in Russia since its inception in December 2011. It started as a hotline for Moscow activists, now we publish new from almost all Russian regions. The information published on our website is mostly based on reports from the arrested themselves via various channels, such as hotline number or Telegram bot, and on monitoring the media and social networks as well. Since 2012, OVD-Info has started to publish the statistics of detentions, in Moscow and St. Petersburg (since 2013) first of all. The presented dataset shows the situation in those two cities through the years concerning various parametres, such as the form of the rally, its subject, the organizers, whether the rally was held in accordance with the authorities or not, etc. Included is a glossary of terms related to the parametres mentioned above. The number of people arrested, places where they were arrested and police offices they were taken to are also included. Some changes can be explained through the amendments to the law on rallies or diverse practices in regional police offices and courts. With this dataset, we imply to show not only various trends and data through the years related to the situation with the freedom of assembly in Russia, but also how the human rights activities are changing in the digital age.

Presents at Think Corner Breakfast

Authoritarian Policing: Extrajudicial Persecution and Intimidation in Russia

 

How do authoritarian regimes perform policing, and how does policing affect collective protest action? This paper uses Russian-language sources, and data on extrajudicial persecution derived from Russian sources, to scrutinize how policing in Russia has been conducted since the 2011/2012 electoral demonstrations. Unlike the case in Western democracies, Russian policing has become increasingly volatile, and the state has compensated for the lack of coercive mechanisms by centralizing and reorganizing its coercive institutions. This, in combination with
the prolific campaign to reduce “leverage” (exposure to alleged Western influence), has put the regime on a solidly authoritarian path. In turn, this has reinforced the tensions between coercive capacity and coercive quality, as particularly evident in the policing against the 2018! campaign of Aleksey Naval’ny.

Presents in Session VI

Freedom of Assembly in the Internet Era: Innovative Technologies, Innovative Restrictions

 

In recent years, rapid expansion of digital communication infrastructure and exponential adoption of digital technology resulted in emerging of new dimensions of a range of fundamental human rights, including freedom of assembly, and transformed the means through which this right is both exercised and violated.

Eight years ago, methods of restricting freedom of assembly were limited to “classical” denials of permissions to hold rallies, dispersing “unauthorized” protests, arresting their participants, abusive use of force by police, ill-treatment of detainees, arbitrary charges and unfair trials. By now means of restriction of this right include also banning dissemination of information about “unauthorized” rallies; blocking websites containing such information; interrupting webcasts of mass assemblies; blocking apps used to coordinate “unauthorized” demonstrations; and even disabling mobile Internet in areas of mass protests.

This presentation provides an analysis of legislative and law-enforcement methods of using digital technology for restricting freedom of assembly and development of these methods in the last 8 years. It also focuses on the impact these restrictions have on exercising other rights, such as freedom of expression and right to respect for private life.

Presents at the Think Corner Breakfast

Blockchain Based Alternatives for Corporate Governance

 

The role of the judiciary in implementing corporate governance is fading in Russia. The 2015 Russian Act On Arbitration lifted the ban from submitting corporate disputes to arbitration. The law provides several exceptions to arbitrability of corporate disputes. One exception is the prohibition to conclude arbitration agreements by including them into articles of association of public joint-stock companies. That measure protects shareholders of companies with shares traded on public exchanges where shareholders exercise little to no influence over the contents of a corporate charter of a company. This measure is also dictated by the agreement-based nature of arbitration. Non-signatories to an arbitration agreement should not be bound to arbitrate disputes. Shareholders in a publicly traded company may acquire shares long after the arbitration agreement was incorporated in a company’s charter documents. 

The development of blockchain economy further pushes the boundaries of state control over corporate governance. Investors in a company raising capital via blockchain crowdfunding share a strong resemblance to shareholders in a public joint-stock company. Investors in such a company do not share the same level of protection of their judicial rights as members of a public joint-stock company. The legislator hesitates in taking measures towards regulating blockchain based crowdsourcing campaigns. That creates a legislative vacuum. Investors holding blockchain based tokens, despite being in an identical position to that of shareholders in a public company, do not enjoy access to national courts if charter documents provide for arbitration. The paper focuses on showing the similarities between the status of token holders and shareholders and tests the legal vacuum created by the lag in legislative response to blockchain crowdfunding campaigns.

Presents in Session V

The Alpha and Omega of the Human Genome Regulatory Framework in Russia: From International and European Human Rights Standards to National Security Rules

 

The legal regulation framework in the human genome field in modern Russia involves three main areas: medical (genetic research, diagnostics, therapy), forensic (forensic examination, genomic registration) and consumer (new products/services). In practice, the Russian legislation in this field mainly concentrates on two issues: genetic engineering and genomic information. These legal treatments are based on combination of liberal approaches derived from international and European human rights standards, and of conservative approaches dictated by national security requirements. Moreover, several human genome issues are poorly regulated (gene enhancing drugs, mass genetic screening), or not resolved at all (gene drive, synthetic biology achievements).

Presents in Session II

Can International Law Be Russian? "Protection" of Traditional Values and Legal Protectionism as a Basis of Modern Russian Foreign Policy

 

A characteristic feature of  Russian foreign policy in the last decade is the attempt to form around the international arena a group of countries advocating international law based on «traditional values». The origins of politics are largely due to the peculiarities of  the Russian doctrine of international law. «The Russian international law»  - a kind of ideological phantom - a body of knowledge, a certain system formed with the help of arbitrarily chosen principles.  The   legislation of  the state has a national character. However, international law is certainly wider than the legislation of  one state and cannot  be Russian.

Presents in Session I

Alexander Kondakov is a postdoctoral researcher at the Aleksanteri Institute (University of Helsinki, Finland) and a research associate at the Centre for Gender, Feminisms and Sexualities (University College Dublin, Ireland). He is also an editor for the Journal of Social Policy Studies published by the Higher School of Economics in Moscow, Russia. For a decade, Kondakov’s work has been primarily focused on law and sexuality studies, more specifically on queer sexualities and sex work regulation in Russia. Recent publications include: “Crip Kinship: A political Strategy of People Who Were Deemed Contagious by the Shirtless Putin,” Feminist Formations. 30(1)(2018): 71-90; “The Acts of Civil Subjects : Migration and Acts of Citizenship” Jounral of Social and Political Research 12(2)(2017): 169-184; in Russian; “Queer Coalitions: An Examination of Political Resistance to the Russian Migration Law,” Europe-Asia Studies 69(8)(2017): 1222-1241; “The Feminist Citizen-Subject: It’s not About Choice, it’s About Changing it All,” Feminist Legal Studies 25(1)(2017): 47-69;  “Teaching Queer Theory in Russia,” QED 3(2)(2016): 107-118. His latest research looks at violence against LGBTIQ people in Russia in the aftermath of the “propaganda of homosexuality” bill signed into law in 2013. He has published numerous articles in Sexualities, Social and Legal Studies, and Feminist Legal Studies among others. Email: alexander.kondakov@helsinki.fi

Chair/Discussant for Session III

Discussant at Think Corner Breakfast

International Legal Regulation Principles for Genetic Research and Biobanking in Russian Federation Legislation

 

Today, all the international legal regulation of genetic research is reduced either to the establishment of basic principles or to prohibitions. The provisions of the current Russian legislation governing genomic research do not go beyond the paradigm set by international acts, although they have their own characteristics. The peculiarity of the Russian legislative machinery is the detailed regulation of procedural issues and the powers of state bodies. At the same time, whole spheres (e.g. biobanking issues) are not regulated in principle.  It seems that the further development of science requires a more detailed regulation, a transition to more flexible methods.

Presents in Session II

Genom Research in the Field of Human Reproduction: Conflicts of Interests and Legal Regulation in Russia

 

Why do positive legal norms not give a proper effect due to a conflict of interests in Russia? An analysis of legal regulation and practice demonstrates a conflict between the freedom of scientific research in field of Human Genome and the state and society interests to maintaining security and stability. One practical example of non-prohibitive regulation is the Russian law on international medical cluster in the field of human reproduction (including possibility of using technologies not registered in Russia). This analysis will lead to identify why the law provisions in this field do not work according to Hoyle.

Presents in Session II

Faculty of Law, University of Helsinki

Chair of Session I

FATCA and Common Reporting Standard: The End of the Era of Bank Secrecy

 

The modern world finance system is a significant factor in the evolution of human civilization.  Back in the 1950-1960-ies the majority of economists considered the financial institutions as something secondary for the economic development and well-being of the nation. In the neoclassical theory of general equilibrium financial institutions simply had no place. Practically the same can be said about the theories of economic growth (Neo-Keynesian in the traditions of Harrod - Domar or neoclassical ones in the spirit of the Solow - Swan model). There "capital" is not the financial resources, but physical assets. This one-sided approach reflected the realities of the economy in the first half of the XX.

Today it can be noted that the modern economy is a financial economy, where financial system is the main object of the state’s regulation.

In the conditions of the formation of the information society doctrine, the study of the applicability of such an institution as bank secrecy becomes an urgent topic for research. However, the interpretation of this category of banking, like many others, today differs from the traditional one.

Representatives of the classical school saw in this legal institution, first of all, the mechanism of ensuring client confidence in the bank in the interests of concentrating considerable monetary capital in the banking sector. At the same time, banking secrecy itself was understood to mean “the protection of banking operations from accounting by financial bodies, which was carried out for the purpose of taxation” (Elyasson LS, 1926). After all, the banking system redistributes money in the economy, increasing capitalization in the most promising sectors of the economy. As a result, this leads to an increase in GDP and fiscal result (Levin, 2004; Merton & Bodie, 1995). The loss of confidence in banks due to the violation of the regime of bank secrecy entails irreversible consequences of a public nature. And fiscal transparency can only reduce the administrative costs of financial institutions, but does not guarantee high revenues for the state budget.

The first significant attack on the institution of banking secrecy began with a campaign organized by Washington to combat the so-called "international terrorism". The law, called the Patriot Act, adopted shortly after September 11, 2001, already in 2002, provided the US intelligence agencies with full access to the once-confidential banking information in America without special permits from the prosecutor's office and the judiciary.

The second event (financial crisis) exposed such a financial problem as tax evasion of individuals and legal entities. An even more powerful tool to erode bank secrecy followed - the US Foreign Investment Tax Compliance Act (FATCA). It requires banks in all countries to submit to the US tax authorities information about customers that fall under the category of “US taxpayer”. In fact, the FATCA law can be qualified as an attempt by Washington’s direct demand on banks from all countries of the world to eliminate bank secrecy.

Of course, behind official statements, as always, there is an unclaimed goal. And such a goal is the establishment by Washington of direct control over the global financial and banking system.
Since 2012, similar work has begun in the OECD countries to develop standards for the automatic exchange of financial information for tax purposes (Common Reporting Standard, CRS). In practice, this agreement means the end of the era of bank secrecy, which lasted more than 300 years.
The Russian Federation has joined these international programs. Following the results of 2018, the organizations of the financial market of the Russian Federation should send their first reports under this system in 2019.

From the point of view of tradition, the considered legal acts obviously invade the private sphere of relations between the bank and the client, regulated by the agreement on opening a bank account and bank deposit, in the interests of the fiscal authorities.  If the scope of state support is constantly diminishing, then civil society itself must become an apologist for banking secrecy, otherwise it will lose one of the pillars of autonomous law.

Presents in Session VII

Political and Legal Responses to Short-Time Liberalization: the Russian Case

 

After the disintegration of the USSR, there was an anticipation of a complete liberation from the former socialist political-and-economic system and hope for a straightforward path towards democracy and building a new liberal society based on the market economy.

But actually, this path has become nonlinear with contradictory features on different stages. Obtaining freedom from a former social-political regime does not inevitably lead to a liberal state and democracy.

Political and legal responses to a short-time liberalization in the country are U-turn and revival of the authoritarian one-person governance with no division of power, independent judiciary and market economy, with the instrumental (supplementary) role of law.

Such politics inevitably needs legal basis which is used as an instrumental tool for far-right populism to justify this policy. It is right for both domestic and international politics. The presentation suggests examples of such an instrumental usage of law in legislation and judiciary.

Presents in Session VI

Domestic Violence in Russia: Neoliberal Policy or the Return to the Stone Age?

 

On January, 2020, there will be 3 years after the decriminalization of domestic violence in Russia. It is almost three years after Article 116 (battery) was represented in the Criminal Code of the RF in a modified form, excluding all intimates (relatives, spouses) from the scope of persons who could search for the defense at court or police in cases of battery.

Since that time the number of domestic violence cases (not on “battery article”, but on other articles of the Criminal Code – dealing with consequences of systematic battery or other demonstration of violence against family members) brought before Russian courts has substantially increased. According to the statistic data of the Judicial Department at the Higher Court of the RF, the number of such cases in 2018 was 161 000 with total amount of fines – almost half-billion rubles. In 2019, the European Court of Human Rights has received 100 claims from Russian women, victims of domestic violence (in the previous 10 years – according to the statistic provided by the Ministry of Justice – there were only 6 such cases brought before the ECHR).

By now, the whole picture of domestic violence cases in Russia looks very much alike picture of femicide or extirpation of a part of population (though, cases of domestic violence involve not only women); and human rights defenders do their best to make the legislator provide the amendments to the Criminal Code and other laws about preventive measures – by now, without visible success.

Yet, the official reason for decriminalization of Art. 116 (and consequently – of domestic violence), explained in the interview with Russian senator Elena Mizulina, was the attempt of the legislator to minimalize the intervention of the state to the family affairs. In this position of the legislator was dwelling upon the results of public opinion poll done by VCIOM. However, the reaction demonstrated by the society shows that it was not ready to such an attempt of the state to abstract from the regulation of this sphere.

In this presentation the authors will analyze the situation with normative regulation of domestic violence in Russia, and will try to make assumptions about the reasons for such changes in the legislation: was it an attempt of the legislator to get away from the sphere of private life done in a good faith; or was it a legislative error which affected a serious gap in law?

Co-authored with Ekaterina Samokhina. Presents in Session III

The Banking System of the Russian Federation: From Economic Neoliberalism to State Monopoly

 

This presentation analyses and shows how Russia has shifted from neoliberal ideas towards authoritarianism in banking regulations and what consequences it may cause. After the Soviet Union dissolved, Russian government eliminated state monopoly within banking sector and by the end of 1994 around 24397 banking institutions were registered in Russia. The situation changed when Vladimir Putin came to power in 2000 and revived state monopoly, with the Bank of Russia taking up 72% of the total amount of shares on the market. As a result, numerous banks went bankrupt and stopped functioning and bankers were criminally persecuted and deprived of any possibility to protect their business.

Presents in Session V

Presentation slides

Aleksanteri Institute, University of Helsinki

Chair/Discussant of Session VI

Legislation on Genetic Passportization in Russia: Boon or Bane?

 

The priority areas of Russian biological safety policy include an implementation of population genetic passpotization according to the latest President Decree No 97. Therefore, genomic information of different people (not only convicted for serious crimes) will be integrated into Federal database in the near future. The DNA database would entail limited intrusion on individual freedom and privacy while advancing public safety. In foreign countries (UK, USA, Iceland), different programs for genetic material collection have been operating for years. The ways of genetic passportization development in Russian legal reality and opportunity of best world practice will be discussed in the presentation.

Presents in Session II

The Illusion of Choice? Reform and Tradition in Russian Case Law

 

Current constitutional crisis in several European states, populist movements and the fragility of established international normative order raise the issue of universality of constitutional normative standards. Nowadays we have to operate in the context of greater uncertainty: the future is perceived as a threat not as a promise (Hartog). The premise of citizens’ trust and confidence is the belief that government is acting in the public interest and in the name of shared values of the community. A democratic society, with its particular encouragement to individual ambition, private appetite, and personal concerns has a greater need than any other to keep the idea of the public interest before it (Bell/Krystol).

Presents in Session I

Marianna Muravyeva is an associate professor of Russian law and administration at the University of Helsinki. Her research focuses on the history of crime, legal history, gender history, and history of sexuality. She has published extensively, including edited volumes Women’s History in Russia: (Re)Establishing the Field (Cambridge: Cambridge Scholars Publishing, 2014); Gender in Late medieval and Early Modern Europe (London and New York: Routledge, 2013); Shame, Blame, and Culpability: Crime and Violence in the Modern State (London and New York: Routledge, 2012) and recent articles such as: “The Culture of Complaint: Approaches to Complaining in Russia – An Overview,” Laboratorium 6(3)(2014): 93-104; “Traditional Values and Modern Families: Legal Understanding of Tradition and Modernity in Contemporary Russia,”  Journal of Social Policy Research 12(4) (2014): 625-638; “Bytovukha: Family Violence in Soviet Russia,” Aspasia 8 (2014): 90-124; “‘Till Death Do Us Part’: Spousal Homicide in Early Modern Russia,” The History of the Family 3 (2013): 306-330; “Sex, Crime and the Law: Russian and European Early Modern Legal Thought on Sex Crimes,” Journal of Comparative Legal History 1 (2013): 74-102. E-mail: muravyevam@gmail.com

Chair/Discussant for Session I

Artem Platov is a media lead in OVD-Info, an independent human rights media project dedicated to monitoring politically-motivated prosecutions in Russia. He participated in preparing and publishing OVD-Info’s media materials and special projects based on data gathered by the organization itself and on governmental data. In OVD-Info he also participates in partnerships with independent media in Russia and Europe. He is interested in building media as a soft power solution in improving the situation with human rights pressure. Studied philosophy at the Moscow State University and media management in Stockholm School of Economics in Riga. E-mail: a.platov@gmail.com

Presents at the Think Corner Breakfast

Patenting a Human Gene in the Russian Federation: The Victory of a Conservative Approach or Is There Hope?

 

This presentation is devoted to a problem of human genes patenting in accordance with the Russian law. The presenter analyzes the Russian legislation approaches on the patenting of genes, including human genes, in comparison with approaches and principles that exist in the latest law-making and law-enforcement practices of foreign countries. Taking into account the latest science achievements and a need for a legal approximation in this area, the conclusions present a legal advice for and proposals of making changes to the list of objects fixed that cannot be patented according to the Russian law.

Presents in Panel II

Traditional Values and Their Legal Protection in Russia:the Impact of the Russian Orthodox Church on Federal Laws

 

My proposal discusses some laws of the Russian Federation on the legal protection of traditional values in the country and their interconnection with the canon law of the Russian Orthodox Church. The adoption of these federal laws and/or amendments to them by the Parliament was distinctly influenced by the existing ecclesial regulations of the ROC, and some of them were/are lobbied personally by Patriarch Kirill. For instance, the amendments to the Criminal Code in terms of the “insult of religious convictions and feelings of citizens” (2013) almost directly followed the "Attitude of the Russian Orthodox Church to Intended Public Blasphemy and Slander towards the Church" (2011); and the amendments to the federal law "On the Bases of Health Protection of Citizens in the Russian Federation" (2011) forbid cloning and euthanasia in harmony with the Social Concept of the ROC (2000) but permit surrogacy, which is opposed by the church (2013).

Presents in Session III

University of Helsinki

Chair/Discussant for Session V

The Role of Law and Financial Regulation in Maintaining Financial Stability in Russia

 

In the aftermath of the global financial crisis in 2008, instruments to strengthen financial regulatory and supervisory framework have attracted significant attention. In this context central banks play a crucial role in maintaining financial stability. Form a legal point of view the Bank of Russia (BoR) is responsible not only for the monetary policy but has a multiple mandate. The main goals of the BoR are to ensure the stability of the ruble, strengthen the national banking system, ensure the stability of the national payment system and of the national financial market (Art. 3 of the Federal Law “On the Central Bank of the Russian Federation”). Accordingly, maintaining financial stability and granting conditions for sustainable economic growth in the country are implicit goals for the BoR.

Recent changes in the legal and regulatory environment in Russia happened after the global financial crisis in 2008 and the currency crisis in 2014/2015. In this paper two regulatory issues surrounding financial stability will be investigated for Russia and compared with EU law: law on credit institutions insolvency and the legal status of cryptocurrencies in Russia. Under Russian law the BoR supervises the financial sector (Art. 4 of the Federal Law “On the CB of the RF”). One big problem of credit institutions supervision is related to the cleaning of the banking sector with the aim to stabilize the national financial system. But the bankruptcy of many former prominent banks (under the Federal law “On Insolvency (Bankruptcy)”) may destabilize the financial sector in the country. This paper also provides a comparison between bank recapitalization from the Banking Sector Consolidation Fund in Russia and the functions of the European Banking Union in the Eurozone.

Another regulatory challenge investigated in this paper are cryptocurrencies and limitations of its regulation. A review of risks connected with these financial instruments is given (mainly high volatility, price formation intransparity and the absence of a basic asset). Recent changes in Russian regulating framework add cryptocurrencies to the definition of digital financial assets. But considering the EU approach and the existing EU legislation for cryptocurrency regulation the new regulation could be not sufficient for regulating the cryptocurrency market and ensure financial stability.

Presents in Session V

Domestic Violence in Russia: Neoliberal Policy or the Return to the Stone Age?

 

On January, 2020, there will be 3 years after the decriminalization of domestic violence in Russia. It is almost three years after Article 116 (battery) was represented in the Criminal Code of the RF in a modified form, excluding all intimates (relatives, spouses) from the scope of persons who could search for the defense at court or police in cases of battery.

Since that time the number of domestic violence cases (not on “battery article”, but on other articles of the Criminal Code – dealing with consequences of systematic battery or other demonstration of violence against family members) brought before Russian courts has substantially increased. According to the statistic data of the Judicial Department at the Higher Court of the RF, the number of such cases in 2018 was 161 000 with total amount of fines – almost half-billion rubles. In 2019, the European Court of Human Rights has received 100 claims from Russian women, victims of domestic violence (in the previous 10 years – according to the statistic provided by the Ministry of Justice – there were only 6 such cases brought before the ECHR).

By now, the whole picture of domestic violence cases in Russia looks very much alike picture of femicide or extirpation of a part of population (though, cases of domestic violence involve not only women); and human rights defenders do their best to make the legislator provide the amendments to the Criminal Code and other laws about preventive measures – by now, without visible success.

Yet, the official reason for decriminalization of Art. 116 (and consequently – of domestic violence), explained in the interview with Russian senator Elena Mizulina, was the attempt of the legislator to minimalize the intervention of the state to the family affairs. In this position of the legislator was dwelling upon the results of public opinion poll done by VCIOM. However, the reaction demonstrated by the society shows that it was not ready to such an attempt of the state to abstract from the regulation of this sphere.

In this presentation the authors will analyze the situation with normative regulation of domestic violence in Russia, and will try to make assumptions about the reasons for such changes in the legislation: was it an attempt of the legislator to get away from the sphere of private life done in a good faith; or was it a legislative error which affected a serious gap in law?

Co-Authored with Bjarne Mekevik. Presents in Session III

Russian Regional Legislation on Freedom of Peaceful Assembly: Is It Orwellian Doublethink or Not?

 

As a federation, Russia has two levels of legislation: federal and regional. Each region has one or several local laws regulating the exercise of the freedom of peaceful assembly, e.g. regional legislators determine how and where to submit a notice of public events, create additional requirements for demonstrations. Since 2012, regional laws define the necessary distance between solo static demonstrations and the rules for holding public events in Russian “Hyde parks”, and establish territories where peaceful assemblies are prohibited. A detailed analysis of regional legislation allows us to see the dynamics of changes in standards of freedom of assembly in modern Russia, as well as to understand the more reale regulatory frameworks in this sphere.

Presents at the Think Corner Breakfast

Morphological Freedom and Reproductive Technologies in Russia: Surrogacy and Designer Babies vs. Family Law

 

In Russia the development of genetic technologies is ahead of the legislation elaboration, especially in conservative family law. When assisted reproductive technologies are used, the rights of a married couple are protected. Contrariwise, persons who are not officially married or who are single, but who used the methods of reproductive technology, were restricted in their rights to register as parents. The refusal made it necessary to apply for protection to the judicial authorities. Obviously, the need to improve the regulation of the practice of reproductive technology in Russia to protect the rights both of all citizens (parents) and children.

Presents in Session II

Tackling the Financing of Terrorism by Executive Action in Russia: An Incorporation of Disbalance between Liberty and Security?

 

The Russian public blacklist of organizations and individuals suspected in extremist and terrorism activity particularly fits the concept of neoliberal state which is focused on the security and outsourcing of public functions. This list is actually compiled by the federal administrative agency (Rosfinmonitoring) with compliance support of financial organisations . However, the Russian legislation provides for addition to this List any person who are just charged with one of “political” criminal offences such as public callings and propaganda of terrorist action and hate speech. Contrary to the official statements that this executive preemption is justified only by prompt and effective countering of terrorism financing, the practice of adjudication in the Russian courts demonstrates incorporated disbalance between human rights and security concerns in the mechanisme:
there is no official notification on the inclusion in the list, even by request of the individual. Thus, the interested person is deprived of the right to be heard by agency, but to challenge effectively the preemption, as the copy of the decision could be obtained by the court hearing the case. However, in practice the person is put on the list one month later after being charged in the related criminal offence that challenges official wisdom that the court injunction is absent by the reasons of the urgency of the matter; the Russian courts hearing the administrative actions against the agency decisions are failed to interpret the anti-money legislation in the way that the agency should seek and prove that putting individuals on the list is adequate and proportional infringement into the constitutional and conventional rights on the property, private life and free speech. The merely indictment of one of the mentioned criminal offence is enough to upheld the administrative action. Moreover, the attempts to challenge of the List’s legislative framework in the RF Constitutional Court were unsuccessful, as the higher court considers that this automatical preemptive action of executive don’t breach per se the human rights of the interested individuals.  

Finally, it should be misleading to consider that this mechanism to be an exception, as the the Russian government published draft bill which envisages to expand the current system of prevention blacklist - without judicial injunction - on the persons suspected in the organisation of the unauthorized public rally. This initiative illustrated the international trend: once established, these exceptional devices tend to push their boundaries thus incrementally limiting the rule of law. If the national legal order failed to counter them, whether the international legal institution will manage to do this?

The author of the submission is tasked by Memorial Society (Russia) with administrative action against Rosfinmonitoring in the Russian courts on behalf of Mr. Victor Korb included in the List since july of 2018.

Presents in Session VII

Policy Evaluation of “Non-Traditional Sexual Relationships” Regulation

 

Public policy is defined by Dye (1972) as “anything a government chooses to do or not to do”. It is also understood as the output of policymaking (Hogwood and Gunn 1984). Thus, defining a policy through actions (do/not do) is not enough; actions must have a purpose, result and evaluation. Policy evaluation is essential for feedback, learning, and thus improvement of the public policy.

In 2013 the Russian federal law "For the Purpose of Protecting Children from Information Advocating for a Denial of Traditional Family Values” had been adopted. Before this law successfully passed the Russian parliament, there was a number of ‘prohibition of homosexual propaganda’ attempts on the regional level. The law was hugely controversial and debated based on different assumptions about private life (i.e. sexuality). Propaganda understood as an activity of purposeful and uncontrolled information dissemination have banned by law. However, the results of this policy are controversial and must be thoroughly studied. It is pointed out that this “uncontrolled information” still is not under state control because of the complexity of public/private divide, so we need to take into consideration the results not only in public sphere. Moreover, evaluation of this policy depends on the view on the essence of homosexuality (assumptions as in argumentative tradition) and the methods of result evaluation. It is possible to evaluate direct results of the law by the court decisions (outputs), however, we did not know how citizen’s behaviour has changed (outcomes), including their assumptions about homosexuality, and how it affects the policy (impact). This attempt to regulate citizens’ private lives through the invention of ‘traditional values’ is challenged by existing legal norms regulating human rights. Public policy theory, in particular, based on the policy process model and failed policy studies, gives an opportunity to explain unexpected results of the ‘Propaganda’ law implementation by investigating interrelations between institutions, discourses, identities, policy frameworks and policy results: policy outputs, outcomes and impacts.

Presents in Session III

Presentation slides

Arrest of Property in Criminal Proceedings as a Manifestation of Disrespect for the Right of Ownership

 

Protection of the ownership right is one of the significant elements of the neoliberalism system. The Russian Federation declares protection of ownership. Summarizing the results of the author’s research it’s noted that investigative bodies widely apply measures for out-of-court restriction of ownership rights through the seizure of ownership in the course of the investigation of criminal cases. The author reveals a number of the most typical cases that caused restriction of ownership right as a result of completely unreasoned court decision based on the assumptions of the investigation. The author concludes that the domination of public interest in this case is only one of the manifestations of traditional values that overcome legal restrictions, which indicates that the legislative regulation is not ineffective in protecting individual values.

Presents in Session VII

Neoliberalism & Traditionalism v. Interests of the Banking System – the Time for Changing of the Paradigm of Banking Regulation

 

Several decades of history of banking regulation have shown a “stable” sequence of periods of traditional regulation and (neo)liberal deregulation. Our thesis is: unless the changing paradigm of banking – and banking law – will be recognized by the stakeholders in the banking system  – by the credit institutions, regulators, clients – there will not be an end to this endless circle.

Under a traditional paradigm the interests of the banks are presented in opposition to the interests of the clients; the same is true about the interests of the banks versus regulators and other public bodies. As a result the main shortage of banking regulation comes out: an attempt to protect the interests of the certain players against the interests of the other player(s), while the task is to protect the balanced state of the banking system as a whole. Under such approach the protection of interests of the customers and other stakeholders in the banking system will come out as a consequence.

Presents in Session V