Transplanting RIA in Thailand: The investigation on The legal Culture of Method 

 

Relying heavily on interviews with various stakeholders, this paper weaves together narratives on the legal transplant process of Regulatory Impact Assessment (RIA) law in Thailand. Inspired by international organizations, Thailand initially transplanted the OECD-recommended RIA checklist in 2003 and, by the end of 2017, RIA was re-transplanted by being added to the new Thai Constitution, carrying with it supreme legal authority. The unique changes in RIA's legal status and content reveal two interesting aspects of the legal transplant process. First, the re-transplantation reveals how the Thai legal authorities assess the ‘failure’ of the initial transplant. Second, the debate on and process of the re-transplantation exposes, what this paper calls, an elusive legal culture of method which aims to create discourses and narratives to legitimize the transplanted law. The paper looks at how the Thai legal authorities transplant and contextualize not only the text of the law but also the transnational authority of RIA into the local system. The investigation into the RIA transplant would help to construct the understanding of legal transplants in a modern context of a South East Asia pluralistic legal system, especially a post-Western legal system like Thailand’s. 

Assessing the asylum claims of trans and gender non-conforming claimants 

 

This paper aims to reflect on trans asylum and gender non-conforming applicants and the position they occupy in current refugee law and practice. In the first part, the paper will offer an overview of international refugee law with a special focus on the ‘particular social group’ grounds for discrimination, a taxonomy in which gender identity related reasons for application are usually included. The paper will proceed to examine the current literature on trans asylum seekers as belonging to a particular social group and to critique the criteria for such inclusion. I will problematize the possibility of inclusion of asylum claims based on non-consolidated identities and gender expression. In the second part of the paper, I will attempt an overview of the developments in Human Rights law on the right to asylum on the grounds of gender identity and expression. I will explore the need for a complementary narrative-based, rather than strictly identity-based approach to gender identity and expression related asylum claims based on the impact of gender non-conformity in the country of origin, as Berg and Millbank suggest (2013). In this light, I will propose a refined framework for refugee status determination for trans and gender non-conforming asylum seekers that does not reproduce strictly identity based westernized frameworks in order to assess persecution of applicants on the basis of non-conforming gender identity and expression. 

A recording of the talk is available (video only accessible through this link).

Order in the Bazaar: The Transformation of Nonstate Law in Afghanistan’s Market 

 

This article is a study of the central money exchange bazaar in Kabul, Afghanistan – Sarai Shahzada. For most of its history, money exchangers in the bazaar regulated their affairs according to their own informal practices. New pressures after 2001 brought about by state-building efforts risked undermining the functioning of the bazaar, causing money exchangers to initiate internal transformations. This paper tracks the microdynamics of legal change, focusing on the efforts at formalizing the centralized administrative body of the bazaar and its dispute resolution mechanism. Exchangers have cast their operating practices in the image of the state law by formalizing a new set of operating rules which established a management structure within the bazaar and have come to rely on the state to enforce the boundaries of their legal system. While mimicking the state legal system, these actors have been able to maintain longstanding informal regulatory practices though in a new form and moreover, the autonomy of their legal system. In less than two decades, the informal legal system of the bazaar has transformed into a formalized, organized system that continues to operate outside of state law. 

Public councils in Russia: legal regulation and actual functioning 

co-authored with Anna Trakhtenberg

The paper is prepared on the basis of a qualitative research study conducted in the Sverdlovsk region and supported by a Presidential Grants Foundation grant. In Russia the global normative model of advisory committees as structures that provide public authorities with external expertise was intertwined with the Soviet model of peoples’ scrutiny (“narodnyj control”) over the public administration as a form of civic participation. As a result, public control is legally recognized as the most important function of public councils as advisory bodies, and public councils themselves the further, the more are formed with the active participation of public chambers. However, despite federal and regional laws, members of public councils members of public councils view themselves not as experts (in accordance with the global normative model) or as subjects of public scrutiny, but rather as mediators between the government and the people, whose function constists in bringing citizens’ complaints to the authorities. They reproduce the traditional model of the relationship of power and society essentially ignoring the legal framework.

Transnational Legal Feminism: origins, cornerstones, trajectories 

 

The article introduces an approach to conducting cross-border feminist research and practice in international law that surpasses Western hegemonic understandings of gender, feminist and rights theory, and instead contextualises feminist praxis by taking into account by considering local epistemologies, discourses and actors.    Building on Inderpal Grewal and Caren Kaplan’s seminal work on transnational feminism (Scattered Hegemonies 1994), the project introduces the idea of ‘transnational legal feminism’. Problematising particularly the hegemony of Western feminist thought with its power asymmetries and colonial roots within international law and transnational feminist activism, the article criticises mainstream feminism’s failure to engage with alterity and difference across cultural divides in its attempt to promote gender equality.   The article argues that by allowing Western epistemologies and narratives of feminist theory, gender equality and human rights to create the very basis of the international women’s rights framework, non-hegemonic approaches to women’s rights promotion have gone ignored leading to certain blind spots in feminist research and practice. It aims to demonstrate what some of these blind spots are and how, if sufficiently explored and acknowledged, they have the potential of not only making research more accurate and inclusive but also to lead to more effective transnational feminist activism and policymaking. With reference to the increased use of Islamic feminism by women’s rights advocates in Muslim states, the article aims to reflect on the limitations of the current forms of mainstream feminist praxis and its failure to sufficiently take into account the significance of local knowledge forms. 

Legalized memory battles between Russia and Ukraine: The beginning of memory wars in CEE

 

My research focuses the recent history politics in Russia and Ukraine. Both countries have legislation in place that prescribes and proscribes certain interpretations of past events. My paper shows the detrimental effects such memory politics has on the countries’ internal as well as external relations, and underlines the importance of agonistic political discourse regarding contested historical events particularly in the post-Communist countries. The example of Russia and Ukraine is chosen to showcase a striking escalation of unneighborly relations against the backdrop of the novel worrisome trend in the legislation particularly in Central and Eastern Europe (CEE) - fighting "memory wars" with the instrument of "memory laws." I draw the connection between the Second World War, the Cold War and the current regional "memory wars" in CEE and show how lack of agonistic political (i.e. democratic) discussions in the society prevents from coming-to-terms with one's historical past and is bound to lead to the next conflict. In spite of being a lawyer, I advocate "less law, more politics" in history.

Future-Proofing the Nation: Victims and Villains in Marriages of Convenience in Irish Law and Policy 

 

Efforts to control and prevent marriages of convenience have risen to the top of the agenda in European member states, leading to extensive change in immigration and citizenship laws. Ireland has become a leading example of this drive, with five key legislative and policy developments in a short space of ten years, however this has received little attention in scholarship on marriage migration, or in Ireland itself. In Ireland, the term “marriage of convenience” has evolved expeditiously and continues to shift in public and policy discourse. While the increasing focus on marital relationships in migration policy is anchored in the context of contemporary citizenship, the controversies over marriages of convenience are rarely framed as entailing temporal struggles over citizenship and its associated intimacies. 

This paper builds on the findings of a study on the discursive construction of ‘marriages of convenience’ in Irish NGO policy (Hanlon, 2021), and argues that just like the Irish Citizenship Referendum in 2004, the Civil Registration (Amendment) Act in 2014 radically transformed the boundaries surrounding Irish citizenship. Following Eithne Luibhéid, this illustrates the shift to temporal strategies of migration control, where the ‘marriage of convenience’ becomes a vehicle for gendered and racialised anxieties. Transnational couples become a new site of ‘risk’, where women are recast as both potential victims and villains, creating multiple opportunities to justify the restriction of citizenship and intervention in private life. 

The Anti-Deference Device: Article 18 of the European Convention on Human Rights 

 

Deference to a state’s view of its international legal obligations requires the assumption that the state acts in good faith toward those obligations. That assumption is implicit in the “margin of appreciation” doctrine of the European Court of Human Rights. But when the existence of good faith itself falls under suspicion, how does (should) deference work? The European Convention’s Travaux Preparatoires express deep concern that pretextual claims by states are symptomatic of a regression toward authoritarianism.  Article 18 is intended to guard against such misuse.  It prohibits restriction of Convention rights and freedoms “for any purpose other than those for which they have been prescribed.” Alleging an Article 18 violation therefore often includes a sotto voce accusation: the State’s claimed purpose is not true.  Violation of Article 18 is on the rise. The test for its violation sets an extremely high bar; the window for its application is extremely narrow.  That’s hardly unexpected in a forum starting from a presumption of good faith: finding a violation strips away any deference due. This paper examines this “anti-deference” mechanism.  Russia’s Strasbourg experiences provide substantial evidence for how such Article 18 suspicions resolve.  Russia’s fidelity to Convention principles were subject to doubt ab initio; Council of Europe Deputy Secretary General Peter Leuprecht resigned protesting Russian and Croatian accession.  I will draw from recent work as one of the third-party intervenors in an important case awaiting decision in Strasbourg, Navalnyy and Ofitserov v. Russia (App. No. 78193/17) (Eur. Ct. H.R., January 14, 2020). 

Legal Pluralism at the Borderlands: British Muslim Women at the cusp of claiming 

 

Within the scholarship on legal modernization and universal human rights, the debate on legal pluralism and women’s rights continues to rage. Despite the consensus among socio-legal scholars about the co-constitutive nature of law and culture, scholarship conceptualises legal pluralism as stasis, instead of a dynamic relationship that legal transplantations and reforms do not erase. Scholarship has largely focused on the effectiveness of authorities and interactions between them, instead of the people (and pluralities) that pluralism owes itself to, and the socially contingent possibilities of justicing available at the interstices of law and culture.  Adopting a critical legal plural approach, this research conceives the plural as an interlegal productive space where the individual is the ‘irreducible site of the internomative’ (Kleinhans and Macdonald 1997). Accordingly, instead of positing law and religion as competing frameworks for rights, the research examines how rights are redefined and claimed in the interlegal. The paper focuses on a case study of legally unregistered Islamic marriages (Nikahs) among the ethnically and religiously marginalised Islamic community in England.   Navigating love within legality, women’s actions are informed by both, their capabilities and desires. Whereas existing scholarship points to the problem of legal illiteracy, this research queries women’s motivations and contextualises their actions. Aligning with Saba Mahmood (2004), I conceptualise agency as culturally specific. Instead of assuming women’s interests in marital equality, I give voice to their desires and capture how women claim identities that are culturally and socially significant to them. I evidence the hybrid marital statuses that women have devised while seeking to secure their status in the community, within the families, and within the law.  Drawing upon narrative interviews of thirty participants to develop biographies of intimacy, marriage, divorce, and worship, I examine legal claiming in the borderlands (Anzaldua 1987): that is the English law, British Muslim identity, and their entho-religious and cultural community. I examine the Islamic-legal repertoires of legality and marriage to urge that in the English legal context, Nikahs are simultaneously relations of love, piety, and self-actualisation, and the site of racial-Islamophobic, economic and gendered struggles. 

Can Publicity Change the Behavior of Law? Attracting Public Attention as a Defense Tactic in Russian Courts

 

In the scientific literature on court decisions, publicity is usually considered an undesirable factor that prevents the judge and jury from making a fair decision and, most often, has negative consequences for the defendant. However, in conditions where the principle of procedural justice and equality before the law is not respected, public information about the process, on the contrary, can help the client to achieve a fair decision. In this article, using interviews with criminal defense lawyers and court journalists from Russia, we describe how drawing attention to the case through the media becomes a special defense tactic that all participants in the trial take seriously. We describe the factors that make it possible to draw public attention to a criminal case, the motives and expectations of various participants in the process. This study contributes to the body of scientific literature, revealing the positive effects of public scrutiny of litigation for countries with weak legal institutions. In addition, we propose to consider publicity as an important additional factor that can enhance the explanatory power of Donald Black's theory of law behavior. 

On Legal Diversity & Plural Understanding of Law in Increasing Authoritarianism 

co-authored with Sergey Marochkin

Legal diversity and plural understanding of law is normal for a rule-of-law society and state. They are inevitably to narrow in a super-centralized state with the rigid vertical of authority and the one-person entire power. As regards Russia, plural understanding of law was acknowledged during the reform period followed the adoption of the 1993 Constitution. Nowadays, there has been a return and reverse trend towards the former habitual authoritarian regime. The authorities are striving to utilize law and legal institutions as tools not for the interests of just the ruling group. Law is replaced with statutes, which in turn are periodically replaced by the so-called ‘manual governance’ - individual decisions instead of statutes/laws. The narrowing and elimination of legal diversity and plural understanding of law is primarily evident in the Russian Constitutional Court practice. In many cases, the Court’s positions eliminate coexistence of diverse legal regimes. The Court is involved into substantiating of the political decisions and legitimizing of the will of the highest authority.  The tendency to reducing legal diversity and plural understanding of law is obvious in numerous significant issues: destroying the federalism, local self-government and the separation of powers; limitation of political competition and electoral system; refusal to comply with the ECtHR judgments; undermining independence of the parliamentary system and judiciary; rapid change of the Constitution in violation of the foundations of the constitutional system of the country. 

Organizational challenges of the jury trials in small towns in Russia 

 

The paper summarizes the jury trials from the organizational perspective and reveals the regional and local differences. The jury recruitment in the context of the non-prescribed and unforced lay participation and very modest payment for the jury service is a very big problem for the court staff, as well as the quality of the list of candidates prepared by local administrations with different level of diligence. Courts also face a lot of infrastructure challenges, especially in small cities. Such issues only partly regulated by the law implemented by adopting the existing patterns or are elaborated ad hoc.

Interference of normative systems and deontic cognates: How do courts (mis)interpret borrowing from one normative system to another 

 

Courts have to deal not only with the law itself (international or state-given) but also with legally protected systems of rules (contractual terms, charter's provisions, etc.) and with such deontic systems that guide parties' behavior but don't have a recognition by law (e.g., traditions).  There are known issues on law and morality 'meeting' (Kramer, 2014; Raz, 1985; Greenawalt, 1989).  However, from the broader view the law and morality problem is only a part of a more common problem: how do different deontic systems interact?  A wide range of approaches can be used here: Bulygin's theory of normative systems, Luhman's theory of social systems, Jhering's theory of legal constructions, and many others. The author offers two schemes of systems' interaction: interference of normative systems and legal cognates. Interference of normative systems means that parts of one system became parts of another one. That may be the result of the legislator's ideological intention or of a court's decision. E.g., the author studied some cases, where Russian courts referred to traditions (not customs) as to the argument for decision-making. 'Cognates' is originally a linguistic term that means words in different languages that have a common etymological origin. A study of courts' decisions shows that often borrowing a rule, a concept, or even a principle from one deontic system to another, results in a variety of meanings. First instance courts often misinterpret this process and use not the legal concept or imply not the legal rule, but the moral ones. 

The Governance of Anti-Corruption on the Polar Silk Road 

 

As China and Russia discover common ground in exploring the Arctic, the changing spatial dynamics create the possibility for new styles of governance. In particular, post-sovereign shared governance offers itself as a scenario for the Polar Silk Road. However, while little is still known of actual governance mechanisms on the ground, this paper explores the issue of anti-corruption in its normative dimension. “Soft” normativity is negotiated in the abstract. It is not tied to jurisdiction, but addresses jurisdiction which in turn is based in principle on sovereign territory. There is now an abundance of principles, guidelines and rules how to include anti-corruption precautions into transit regimes. But when it comes to jurisdiction, Chinese and Russian authorities so far prefer to avoid the issue. For Russia, anti-corruption on the Polar Silk Road is simply a non-topic. China, by contrast, has lately been throwing its weight behind the idea of clean business on the Belt and Road, but the idea of collaboration for the sake of higher standards appears to be primarily window dressing for the international community. The paper thus reveals the disconnect between a rhetoric of anti-corruption and the actual unwillingness of China and Russia to engage. 

Securitization of Elections - State Backlash against the Democratic Entitlement 

 

Recent years have seen fierce debate foreign involvement in various elections over the world. This rethoric unites different kinds of political regimes on the opposite ends of the globe. The tendency has led to increased involvement of security services and professionals in discussions over the regulation and administration of elections. Thus, now we can speak of the growing securitization of elections, when discources and practices typical for state security are applied to democratic politics. This paper places the recent developments into a larger context of contestation and backlash against the idea of universal democratic entitlement as part of international public law. The paper will focus on three principal directions of backlash and contestation: a) debates in the United Nations and other international bodies over the idea of 'the right to democracy'; b) development of clauses limiting foreign interference in elections in the regional norms regulating standards of democratic elections; c) constrainment of international election monitoring and emphasizing its technical function. The paper will pay particular attention to developments in the Post-Soviet space. Specifically, it is going to cover: 1) the concerns of respondent governments raised in election-related cases before the European Court of Human Rights; 2) the provisions against foreign interference in the Convention on Standards of Democratic Elections in the Commonwealth of Independent States; 3) the (often uneasy) interaction of Post-Soviet states with OSCE/ODIHR and other international election observer missions. The paper will then take stock of the relevant developments in other regions, particularly Africa and South America. 

Women's Rights under the Small House Policy in Hong Kong 

 

The research aims to investigate how, under the common law framework, Hong Kong courts’ attitudes towards gender equality has been developing from the 1990s to the present day, particularly in the respect of sex discrimination created by the Small House Policy (SHP). Small House Policy, first introduced in 1972 by the British Government, provides every male indigenous villager in New Territories with a once-in-a-life-time house grant, and surprisingly is still in force today. It has been criticised for contravening the CEDAW and the International Bill of Human Rights for its discriminatory nature. However, the proponents of the SHP insist that the right to build a small house is enshrined in Article 40 of the Basic Law, stating that the ‘lawful and traditional rights’ of the indigenous male inhabitants in the New Territories shall be protected. Nevertheless, the definition of ‘traditional lawful rights’ has been changing due to different judges’ interpretations; at the same time, there has been a general apathy towards gender equality in court’s decisions until last year, when the judicial review of Kwok Cheuk Kin and Lui Cho Hang v. The Director of Land was given. This paper, therefore, will first examine how the court has been interpreting, defining and reviewing the SHP, from its nature to its legality, and thus tackle the clash between the importance of traditional rights guaranteed by the Basic Law and the importance of gender equality; and then take a closer look at the issue of legal diversity, mainly focusing on the relationship between the international law and local customs; more importantly, the question of where women’s rights fit into the judges’ and litigants’ changing interpretations of the SHP will be further discussed. 

The Question of Legal Diversity and Plural Understanding of Law in the Context of Increasing Authoritarianism 

co-authored with Rustam Khalafyan

In the current interdependent world any space of law is a focus of various legal regimes. Legal diversity and plural understanding of law is normal for a society organized and developed on the rule of law basis. The scope and possibilities of legal pluralism is inevitably to narrow in a super-centralized state with the rigid vertical of authority and consolidation of the entire power in the hands of one person. Russia is a striking example. Plural understanding of law and independence of judiciary were admitted during the reform period followed the adoption of the 1993 Constitution. The ECtHR judgments were to be fulfilled without clauses on ‘necessity to protect state sovereignty’. Nowadays, there has been a return and reverse trend from the short period of liberalization towards the former habitual authoritarian regime. The authorities are striving to utilize law and legal institutions (primarily judiciary) as tools not for the interests of society but just the ruling group. Law is replaced with statutes, which in turn are periodically replaced by the so-called ‘manual governance’ (particular commands in an individual situation instead of statutes/laws). The narrowing and elimination of legal diversity and plural understanding of law is primarily evident in the Russian Constitutional Court practice. The interpretation of law serves as a specific indicator of the things happening in the national legal system. Due to its competence, the Court is most closely involved in the issues at the intersection of politics and law. In a number of cases, the Constitutional Court’s positions eliminate coexistence of diverse legal regimes. The Court is involved into substantiating of the political decisions and legitimizing of the will of the highest authority. Hence, the indistinct and politicized reasoning in its decisions is unavoidable. The tendency to reducing legal diversity and plural understanding of law and to centralization and politicization is obvious in numerous significant issues: destroying the federalism, local self-government and the separation of powers; limitation of political competition and electoral system; refusal to comply with the ECtHR judgments; undermining independence of the parliamentary system and judiciary; rapid change of the Constitution in violation of the foundations of the constitutional system of the country. To illustrate this, the paper suggests an analysis and assessment of the Constitutional Court practice regarding these issues in light of international instruments and foreign court judgments. 

Bankers in Russia: Membership of a Particular Social Group in the Refugee Convention

co-authered with Tatiana Shaban

This paper is going to explore whether bankers in Russia are likely to be seen as a particular persecuted social group under the Refugee Convention. Belonging to a particular social group as a basis for obtaining refugee status have to be broadly and liberally understood in order to protect groups or their individuals. The paper clarifies and refines the argument by analyzing the socio-political and legal conditions in Russia starting from 1991. Since then, Russia has been undergoing continuous processes of privatisation of state assets and integration, including globalisation. They critically affected not only socio-economic and political basis in Russia but its legal norms and orders. Normally, globalisation involves a transition from the centralised bureaucratic decision making to a variety of networks and partnerships among government, businesses, and other non-governmental agents. As a result, regional centres gradually escape from the national regulation and compete for investments and capitals within the country and abroad (Sassen, 2002; Taylor, 2000, etc.). However, Russian banking system continues to operate under conditions where the  regulatory institutions are weak and their main stakeholders come from the elite of the Russian state. Moreover, the legacy of the Soviet system is revealed in the state ownership and control over the largest banks (Sberbank, Vneshtorgbank, other), as well as partial ownership and control of commercial banks and non-financial companies by ministries, regional and local governments. As a result, the banking system is not at all autonomous. We are using historical institutionalism  and public law approaches to explain our case study.  

The status of cryptocurrencies in bankruptcy 

 

Nowadays, blockchain technology has become the hot topic of every start up event. The same applies to bitcoin, as the most common type of cryptocurrency, which relies on blockchain technology. Even though bitcoin has been in use since 2009, questions regarding its status during bankruptcy proceedings are relatively novel. Focusing on the 2018 Russian bankruptcy case of Mr. Tsarkov , this paper aims to explain the controversial nature of bitcoin, in terms of bankruptcy law. The paper will first provide an analysis of blockchain technology and bitcoin as one example of the latter. Afterwards, the paper takes on two questions regarding the status of bitcoin during bankruptcy proceedings. The first question is whether bitcoin constitutes part of the bankruptcy estate, and the second one is whether bitcoin constitutes a currency or a commodity. Due to the novelty of this legal issue, and hence limited number of court cases, the article will make use of relevant case law coming from different jurisdictions, such as the U.S., South Korea, Russia, Japan etc. 

Appellate practice of regional courts as a source of criminal justice standards in a jury trial 

co-authored with Yuliya Strelkova 

In the context of the expansion of the jury trial to district courts, the appeal practice of regional courts is acquiring a standard-setting value for them, which is facilitated by the lack of clarity of the legislation and the broad discretionary of the presiding judges. The research shows, that these standards are characterized by: a lack of uniformity; regional character; conditionality (connection with a system of conditional factors); functional differentiation (the same action of the defense and the accusation is evaluated differently); sporadic manifestation (standards in some cases may not apply); novel approaches.

Access to Right to Have Rights?” Between Safe Third Countries and the EU 

 

The aim of this article is examining how the concept of “safe third country” reinforces the EU’s managerial approach to “irregular” migrants (and their human rights) by merging legal analysis and Hannah Arendt’s thought. The article examines the safe third country concept through a theoretical approach that adds onto the Arendtian perspective. The safe third country concept triggers the practices of detention and containment of migrants within the EU and deportation/expulsion beyond the Union frontiers. The instruments of the so-called Common European Asylum System spearhead such practices to determine a country responsible outside the EU through shifting the legal, political, social, and financial costs of migration to a third-country neighbor. This article contributes to previous Arendtian scholarship on human rights by examining the identified externalization practices led by the safe third country concept vis-à-vis migrants reaching the EU territory. In the first part, the article sheds light on the interplay between the safe third country concept and the practices of deportation/expulsion and restrictions on freedom of movement (e.g., containment and detention) with a particular focus on the Greek-Turkish context. In the second part, the article discusses that what is managed today through the safe third country concept in particular, and externalized migration management in general, is in fact migrants’ “access to right to have rights”. This is because migrants whose aforesaid rights are violated are precluded, in the first place, from accessing the EU territory, “the public sphere” in the Arendtian sense. 

Teaching for (Non-)Compliance: A Study of the ECHRisation of Legal Education in Russia 

 

Despite inheriting some peculiar features of the Soviet legal system and failing though to fully comply with the membership criteria, Russia was allowed to enter the Council of Europe. In 1998, it ratified the European Convention on Human Rights (ECHR) accepting the jurisdiction of the European Court of Human Rights (ECtHR). Since then, the ECtHR, which is considered by many to be the world’s most authoritative human rights tribunal, has rendered several thousands of judgements against Russia. All promises and expectations notwithstanding, Russia’s compliance with adverse rulings might best be described as à la carte. While most of the scholarly attention has focused on the often-reluctant reception of the case-law of the ECtHR by the Russian authorities, in this presentation I offer a critical examination of whether and to what extent ECHR law has penetrated into Russian legal education. To this end, I thoroughly analyse the content of selected textbooks on a range of domestic law subjects used in law schools across the country. In my analysis, I investigate how these textbooks represent the particular areas and elements of the Russian legal order which have already been criticised by the ECtHR. My findings enrich our understanding of how ECHR law operates in Russia. 

‚Indemnities’ à la Russe: to the issue of transferability of legal borrowings 

 

Amendments to the Russian Civil Code from 2015 offers a unique case study that presents usage of legal transplantation from different sources. It could be the result of the country’s complex history of law development, that all along relied on transplantation of foreign legal norms and wove ideas from different legal traditions into a tapestry. The impetus for this movement was to facilitate compatibility with other progressive legal systems in private contracting and at the same time to embrace modern international practice of contract regulation. This case study of the transplant of the English doctrine of indemnities into Russian law raises doubts about the effectiveness of its application by the domestic courts. The article studies two related questions. The first deal with the indemnity doctrine and its distinguishing from guarantee, suretyship, insurance, stipulated damages and penalties. They are often used with the same purpose - risk allocation between the parties in advance. The second allows us to observe comparative law in action focusing on the primary sources of the transplanted rule and give a chance to track the embedding of common law element into the civil law jurisdiction: whether the Russian law on contractual indemnities with some respects diverged from English law will be followed its own path or will be one of the “legal irritants” and rejected by an “immune reaction” of the corpus iuris civilis? Although such questions rarely allow definite answers, the study of contractual indemnities in Russia does uncover some clues about legal development in the jurisdiction. 

Russian Foreign Policy and the International Law in 1990s versus 2000s: Using, Misusing, or Creating a New Norm? 

 

Throughout the 1990s, both Russian domestic policies as well as foreign policies went through an upheaval. When Russia declared itself a legal and political successor to all USSR’s obligations, the global configuration of powers had already shifted, so it had to reconfigure. This paper provides an overview of the dynamics of how Russia took its position in relating to its usage of references to international law/international standards and arguments of international law in terms of its foreign policymaking. In particular, this paper addresses the issue of how internal political fluctuations in Russia during the 1990s and 2000s affected its foreign ventures. Specifically, this paper looks into how, when and if international laws established in post-1990 period were used or abused in terms of forwarding Russia’s own foreign policy activities and whether this maneuvering triggered any changes to the global political game in any respect. 

Women on boards of directors: legal aspects in Finland and Russia 

 

On the 5th of March 2020 the European Commission released its strategy for equality between women and men in Europe for the next 5 years. President of the European Commission, Ursula von der Leyen stated that the gender equality is a core principle of the European Union, but not yet a reality. Clear and evident example of inequality is that women remain underrepresented in leading positions. Only 8% of CEO’s are women in EU as set forth in the release. Equal treatment legislation makes significant progress in gender equality in both countries. How the gender balance on board is promoted in Finland and Russia? What legal actions are needed to minimize gender gap and achieve equality between women and men on the corporate board of directors? Could we step much more forward and set quotas for gender balance on company boards? The aim of the present paper is to provide answers to the questions above and compare the legal aspects in Finland and Russia in the issue under consideration. 

The language of investigative cases of political crimes in the Russian Empire  

 

The study focuses on the policies of the authorities regarding the revolutionary movement in Russia in the 1860 – 70s. One of the important issues how was the radical political acts perceived by its victims and authorities, and how did the experience of modern political violence and struggle alter contemporaries' concepts of public security? Because the government was not only one of the sides of the political conflict but yet the influence power, which was creating the schemes describing radiсal political protest. The historiography is characterized by schematic explanations of law enforcement and the decision-making procedures in the field of “public order” protection. Researchers have not yet raised questions regarding the logic of the investigation, principles of information collection, record keeping of police activities, etc. In my research, I am going to focus on the history of the usage of such concepts as “revolutionary” and “rebel” in law enforcement practice. The different applications of these concepts in different areas of the Empire led to a different direction for the trajectory of criminal cases. It should allow understanding how the protest movement was perceived by the authorities and what patterns of perception were constructed for official representation of revolutionary movement in Russia in XIX – early XX centuries. In turn, the study techniques of law enforcement practices should help to understand the aspects of imperial policy protection of public security. Since the “The Threat of Revolution” was one of the decisive factors in establishing state policies for subjects in the Empire as a whole. 

Language of Commercial Courts’ Decisions In Russia: Regional Difference 

 

Russia has a special court system for commercial disputes in all regions. Information technologies were widely used in it from the time of its foundation in 1990s. This allowed to build unique collection of decisions covering all courts in the system at all levels for years and a lot of metadata on cases. About 800,000 texts dated 2013-2017 involving big enterprises and banks as parties were analyzed using computational linguistics techniques. Two readability metrics of decisions were estimated: lexical variability of texts and dependency length within the sentences. Lexical variability in case of legal documents shows monotonous word repetitions making the language used more formal and hiding real argument. Dependency length shows length of syntactical constructions used by courts that makes long sentences less clear. The latter metric computed using machine learning techniques allowing mass part-of-speech tagging. The research shows regional variation of readability by grouping metrics of decisions made by every court. To provide meaningful results we get mean metric values for every court by marginal effects at means, thus placing all available case data to means. The results show statistically significant variance in language readability of different court’s decisions even if all other factors (topic, claim sum, year and such) placed at means. We can see that similar regions write decisions with different readability. The reasons they differ remain open to further research, emphasizing that difference in readability may result in difference in ability of busineses in different regions to protect their rights. The research was made with help of Ruslan Kuchakov. 

You must be counted to count 

 

How are migration laws practiced on the everyday level by street-level state agents who interact with migrants most intimately and are far removed from the public discourses that drive policies? How do these interactions become aggregated into statistics to be used by state agents at the upper echelons of political power? A microlevel political ethnographic approach analyzing how regional bureaucrats process millions of temporary labor migrants each year reveals how various interpretations of laws and political incentives combine to produce the everyday practice of governance (Bigo 2011, Guillaume and Huysmans 2019), adapting and mediating policies that are produced by politics, and reinforcing the political by creating a selective picture of the migration sphere that can then be projected to the public. This paper looks at official government statistics on migration in Russia, the uses of these statistics in the media, the instructions that systematize and standardize the production of these statistics across regional bureaucratic officies, and micro-level observations of interactions between migrants and bureaucrats in a regional migration center. The paper demonstrates that prior to legal integration, migrants must be counted into the processes of documentation and statistics gathering that occurs at the level of everyday bureaucratic practice. Yet once those statistics leave the government offices, they take on a life of their own that may dramatically diverge from both the integration needs of migrants as well as the legal picture of migration that those statistics project.

Plural security: using urban security infrastructure in Russian small cities 

 

In 2014 the Russian government approved the Concept of construction and development of the hardware and software complex "Security City" (SC), a complex of public CCTV and sensors in Russian cities. These infrastructures appear as “black boxes” because it is unclear how they function and how they enhance security. The short deadline and poor control of the program by the federal center resulted in a divergence of models of the SC among Russian cities.  This paper focuses on two aspects in comparing such systems in small cities of the Leningrad Region (Russia) to understand the basic patterns of governance logics in the disposal of cameras and the use of these systems on the ground. The first level of the analysis takes place within the framework of governmentality studies and will focus on descriptive analysis of maps with regards to the positioning of CCTV in three cities. This part includes an assessment of the categories of objects which are chosen for setting the cameras and the general spatial plan of their location. The second level is framed by «street-level bureaucrats» theory on qualitative findings. The major issue of this part is the use of cameras in everyday practice by local operators. It is unclear whether CCTV is actually used for surveillance, and if so, what are the officials looking for on the screen? Taken together, two aspects of analysis provide an insight into how various security strategies clash with an understanding of the security of those people who must ensure it. 

Bankers in Russia: Membership of a Particular Social Group in the Refugee Convention

co-authered with Ales Michalevic

This paper is going to explore whether bankers in Russia are likely to be seen as a particular persecuted social group under the Refugee Convention. Belonging to a particular social group as a basis for obtaining refugee status have to be broadly and liberally understood in order to protect groups or their individuals. The paper clarifies and refines the argument by analyzing the socio-political and legal conditions in Russia starting from 1991. Since then, Russia has been undergoing continuous processes of privatisation of state assets and integration, including globalisation. They critically affected not only socio-economic and political basis in Russia but its legal norms and orders. Normally, globalisation involves a transition from the centralised bureaucratic decision making to a variety of networks and partnerships among government, businesses, and other non-governmental agents. As a result, regional centres gradually escape from the national regulation and compete for investments and capitals within the country and abroad (Sassen, 2002; Taylor, 2000, etc.). However, Russian banking system continues to operate under conditions where the  regulatory institutions are weak and their main stakeholders come from the elite of the Russian state. Moreover, the legacy of the Soviet system is revealed in the state ownership and control over the largest banks (Sberbank, Vneshtorgbank, other), as well as partial ownership and control of commercial banks and non-financial companies by ministries, regional and local governments. As a result, the banking system is not at all autonomous. We are using historical institutionalism  and public law approaches to explain our case study.  

Legal Consultations in Mosques in Central and North-Western Russia: between civic activism and bureaucracy 

 

This paper focuses on the legal aid provided by mosques for Muslims in Central and North-Western Russia. The study is based on empirical data collected during a series of expedition trips to mosques in the Yaroslavl, Kostroma, and Ivanovo regions of the Russian Federation (from September 2018 to June 2019) within the framework of the HSE “Rediscovering Russia” project1, as well as on observations and interviews in mosques in Moscow and St. Petersburg in 2017-2020. 

Legal consultations in mosques illustrate the interaction of secular and religious practices in a unique context of Muslim communities in the non-Muslim environment of post-Soviet Russia. During the field research, it became clear that legal consultations for mosque’s visitors are not an isolated situation but a practice that is regularly repeated in different places. The variety of forms and methods of providing legal advice aroused interest. It can be assumed that the shape of consultations is related to the nature of the internal organization of a mosque, its interaction with parishioners and other urban communities. 

This study investigates whether such practices are symptoms of the bureaucratization of mosques and Islam or manifestations of civic activism in the Muslim community in modern Russia? Based on empirical data collected during observations and interviews in 2017–2020, it concludes that cases of legal consultations in mosques illustrate the intersection of two logics simultaneously: bureaucratization and the expression of civic identity for Muslims. 

The Crime Control Model in Russia: Practices of Coping with the Jury Reform through Lenses of Luhmann's Systems Theory 

 

Employing Luhmann’s autopoiesis theory, I intend to examine how the expanding jury trials in Russia to the level of District Courts affects the current Justice System that operates as the Crime Control Model. The autopoiesis-based approach allows me to conceptualize a jury trial as a structural coupling between the Crime Control Model and the Political System. Other concepts of Luhmann’s theory (e.g. irritations, the system’s capacity for resonance, co-evolution) were also used to undertake this research. Preliminary results show that the evolution of the Crime Control Model in Russia is underway. The system applies various strategies to decrease prospects of acquittal in trials by jury. 

Appellate practice of regional courts as a source of criminal justice standards in a jury trial 

co-authored with Sergey Nasonov

In the context of the expansion of the jury trial to district courts, the appeal practice of regional courts is acquiring a standard-setting value for them, which is facilitated by the lack of clarity of the legislation and the broad discretionary of the presiding judges. The research shows, that these standards are characterized by: a lack of uniformity; regional character; conditionality (connection with a system of conditional factors); functional differentiation (the same action of the defense and the accusation is evaluated differently); sporadic manifestation (standards in some cases may not apply); novel approaches.

Public councils in Russia: legal regulation and actual functioning 

co-authored with Elena G. Dyakova  

The paper is prepared on the basis of a qualitative research study conducted in the Sverdlovsk region and supported by a Presidential Grants Foundation grant. In Russia the global normative model of advisory committees as structures that provide public authorities with external expertise was intertwined with the Soviet model of peoples’ scrutiny (“narodnyj control”) over the public administration as a form of civic participation. As a result, public control is legally recognized as the most important function of public councils as advisory bodies, and public councils themselves the further, the more are formed with the active participation of public chambers. However, despite federal and regional laws, members of public councils members of public councils view themselves not as experts (in accordance with the global normative model) or as subjects of public scrutiny, but rather as mediators between the government and the people, whose function constists in bringing citizens’ complaints to the authorities. They reproduce the traditional model of the relationship of power and society essentially ignoring the legal framework. 

Migration and Legal Informality in Russia and Turkey 

 

The paper proceeds from the observation that migrant’s experiences and relationship with the host country’s laws and institutions under non-Western, non-democratic regimes reflects a new pattern of migrant legal incorporation and adaptation, combining some repressive and some liberal elements, in which corrupt political system and weak rule-of-law empower migrants to navigate the structural constraints imposed by the repressive immigration legal regime, and dominant immigrant incorporation frameworks have reduced applicability. It aims to analyze examples of migrant’s legal adaptation strategies patterned on this design from a functional perspective, placing them in broad socio-legal and political context, and observing them, as far as possible, from the perspective of migrant workers experiencing the corrupt and weak-rule-of-law environment and whose interactions with government bodies and labor market actors are organized by them. However, rather than dismissing migrants’ informal and illegal strategies as instances of corruption and bad governance, the book aims to view and assess these performances as the actual migrant legal incorporation and adaptation patterns in non-Western, non-democratic migrant-receiving contexts. These processes are analyzed through the multi-sited ethnographic study of migrant illegality and legal adaptation strategies in Russia and Turkey, between January 2014 through September 2019. I focused on these two countries motivated by the fact that they represent (a) non-democratic regimes, (b) non-Western migration locales, as well as (c) the largest recipients of migrants worldwide that will allow for comparative understanding of migrant legal adaptation and incorporation in non-Western migration regimes.