Volume VI (2018) Issue 3
International Editorial Council Russian Editorial Board
Neil Andrews Sergey Belov (University of Cambridge, UK) (St. Petersburg State University) Loïc Cadiet Nataliya Bocharova (University of Paris 1 Pantheon-Sorbonne, (Lomonosov Moscow State University) France) Gleb Bogush Oscar Chase (Lomonosov Moscow State University) (New York University, USA) Gennady Esakov Mirjan DamaŠka (Higher School of Economics) (Yale University, USA) Vladimir Gureev James KLEBBA (All-Russian State University of Justice) (Loyola University, USA) Nikita Lyutov Elisabetta Silvestri (Kutafin Moscow State Law Univeristy) (Pavia University, Italy) Dmitry Maleshin Peter Murray (Lomonosov Moscow State University) (Harvard University, USA) Sergey Tretyakov Vernon Palmer (Lomonosov Moscow State University) (Tulane University, USA) Alexander Vereshchagin Janet Walker (Independent) (Osgoode Hall Law School of York University, Canada) Chief Editor Dmitry Maleshin Teresa Wambier Executive Editor Nataliya Bocharova (Pontifical Catholic University of São Paulo, Brazil) Trustee committee Yuliy Tay (Bartolius Law Firm) ISSN 2309-8678 e-ISSN 2312-3605 Contacts: www.russianlawjournal.org Frequency of Publication: four issues per year [email protected] [email protected] Published by LLC "Publishing House "Business Style", All rights reserved. No part of this journal 119602, Moscow, Troparyovskaya St., may be reproduced in any means without the Bldg. 4, Floor 2, Room 802 prior permission of the publisher. The views expressed in this issue are those of the authors Subscription enquiries should be directed and do not reflect the views of RLJ Editorial to the Publishing House "Business Style" Council and Editorial Board. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3
Russian Law Journal (RLJ)
An independent, professional peer-reviewed academic legal journal.
Aims and Scope The Russian Law Journal is designed to encourage research especially in Russian law and legal systems of the countries of Eurasia. It covers recent legal developments in this region, but also those on an international and comparative level. The RLJ is not sponsored or affiliated with any university, it is an independent All-Russian interuniversity platform, initiated privately without any support from government authorities. The RLJ is published in English and appears four times per year. All articles are subject to professional editing by native English-speaking legal scholars. The RLJ is indexed by Scopus and ESCI Web of Science.
Notes for Contributors The RLJ encourages comparative research by those who are interested in Russian law, but also seeks to encourage interest in all matters relating to international public and private law, civil and criminal law, constitutional law, civil rights, the theory and history of law, and the relationships between law and culture and other disciplines. A special emphasis is placed on interdisciplinary legal research. Manuscripts must be the result of original research, not published elsewhere. Articles should be prepared and must be submitted in English. The RLJ does not accept translations of original articles prepared in other languages. The RLJ welcomes qualified scholars, but also accepts serious works by Ph.D. students and practicing lawyers. Manuscripts should be submitted electronically via the website www. russianlawjournal.org. Articles will be subjected to a process of peer review. Contributors will be notified of the results of the initial review process within a period of two months. Citations in footnotes must conform to The Bluebook: A Uniform System of Citation. A References section is required: entries must conform to the author-title system, such as that described in the Oxford Style Manual. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3
TABLE OF CONTENTS
Dmitry Maleshin (Moscow, Russia) The Russian Law Journal as a Challenge for Russia’s Legal Academia – A Few Remarks by the Chief Editor on the 5th Anniversary of the Journal...... 4
Articles: Stuart Wallace (Cambridge, United Kingdom) Conall Mallory (Newcastle upon Tyne, United Kingdom) Applying the European Convention on Human Rights to the Conflict in Ukraine...... 8
Elizaveta Gromova (Chelyabinsk, Russia) The Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol...... 79
Sandra Fabijanić Gagro (Rijeka, Croatia) Protection of “Exclusive” Groups Only – An Essential Element of Genocide...... 100
Sergey Markuntsov (Moscow, Russia) Martin Wassmer (Cologne, Germany) The Problem of Imposing Criminal Liability on Legal Persons in Germany and Russia...... 125
Comments: Oleg Stepanov (Moscow, Russia) Denis Pechegin (Moscow, Russia) Legal View on the Introduction of New Technologies...... 149
Igor Levakin (Moscow, Russia) Daria Trifonova (Moscow, Russia) A Brief Historical and Legal Essay on “Economic Constitutions”...... 172 RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3
THE RUSSIAN LAW JOURNAL AS A CHALLENGE FOR RUSSIA’S LEGAL ACADEMIA – A FEW REMARKS BY THE CHIEF EDITOR ON THE 5TH ANNIVERSARY OF THE JOURNAL
DMITRY MALESHIN, Lomonosov Moscow State University (Moscow, Russia)
DOI: 10.17589/2309-8678-2018-6-3-4-7
Recommended citation: Dmitry Maleshin, The Russian Law Journal as a Challenge for Russia’s Legal Academia – A Few Remarks by the Chief Editor on the 5th Anniversary of the Journal, 6(3) Russian Law Journal 4–7 (2018).
The year 2018 marks an important anniversary for the Russian Law Journal. Five years ago, the journal was launched as an important project of Russia’s legal academia to create a platform where legal scholars could discuss the many different aspects of Russian law. The scope of the project was and remains designed to encourage research especially in Russian law and the legal systems of the countries of Eurasia. The journal covers recent legal developments in this region, but also those on an international and comparative level. It is a platform for all scholars – it does not matter what university or country a scholar is from. The journal’s main interest is a comparative approach towards Russian legal developments. The Russian Law Journal is an independent, all-Russian inter-university platform initiated privately without support from governmental authorities. It was launched by a group of scholars from leading Russian universities: Moscow State Lomonosov University, Saint Petersburg State University, Moscow State Law University and the Higher School of Economics. Its International Editorial Council is composed of distinguished international scholars focused on comparative law. The idea was to create an English-language journal that would be a main source on Russian law abroad. This idea is not new. It has been put into practice in many countries where English is not the native language. Examples include the German Law Journal, Israel Law Journal, Italian Law Journal, Mexican Law Journal and China Law Review. All of these journals share the same idea – to represent their national law in a globalized world. In November 2013, DMITRY MALESHIN 5 during the launching period, we organized a round table on the pivotal topic “Russian Law Journal: Discovering Russian Law” to discuss different strategies for the journal. Several journals now work in the field ofR ussian law: the Review of Central and East European Law, the Journal of Eurasian Law and Russian Politics and Law. The Review of Socialist Law was the leading journal in the field during theS oviet period. It is difficult to say which is the leading journal in the field today, but all of our efforts aim at that goal. There are many methods of ranking legal journals: by reputation, prominence of authors, citations, etc. SCImago Journal & Country Rank gives the Russian Law Journal the ranking of the number 2 law journal in Eastern Europe in 2018.1 This is a remarkable result for a journal with only five years of publication history. The main problem the journal faces is the misunderstanding of the journal’s mission by the majority of Russia’s legal academia. The mission of “Discovering Russian Law” via English is not supported by all Russian scholars. Many of them retain an isolated perspective and do not want to change their mind. For most of Russia’s legal academia, there is simply no need to write and publish in English, and they feel little motivation to do so. But the localization or anti-internationalization of legal science is an unfortunate condition for Russia’s legal academia to favour. I am keenly aware that isolation is a strategy that goes nowhere. For it is a mistaken opinion that legal science is more national than international. Of course, each country has its own national legislation that is unique and which is not replicated exactly elsewhere in the world. But when we speak about law, we do not speak about legislation alone. Legal views, opinions and theories can be critically evaluated only if they face discussion and argument with counterparts on the international level. Otherwise they are doomed to be ineffective. Hence, legislation is national, but law is multinational. The Russian Law Journal is a platform for just this kind of international discussion, argument and collaboration. That the majority of Russia’s legal academia does not appreciate this is a serious matter, as revealed by a number of other problems the journal has faced over the course of its first five years in publication. First, language. Writing and publishing in English is a challenge for any non-English- speaking person. Overcoming this challenge for Russian scholars is an integral part of the mission of the Russian Law Journal. Our task is not only to make Russian law accessible to foreign readers, but also to defend Russian law on the international stage. The only language that can be used in this endeavour today is English. There is an earnest discussion in the world concerning the importance given to English as the universal language of law. There are proponents and opponents of the situation, but all recognize one obvious thing: law follows business and governmental activities with cross-border transactions and interests. Therefore, there is no serious argument against using the English language as a tool to protect national interests in the field of law. Otherwise, a country’s – Russia’s – national position will not be heard on the international level. If we want to show the advantages of a domestic legal system and
1 Available at https://www.scimagojr.com/. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 6 national legal concepts, then we need to promote them in English. Moreover, it would be wrong to argue that the dominance of English in professional matters exclusively expresses a tendency towards Anglo-Americanization, because the need for English extends far beyond dealing with Anglo-Americanization.2 The English language is used as a tool to access domestic law with comparative interests and defend one’s own domestic legal system. Many European countries, China, Japan, Korea and others have re-evaluated their thinking with regard to English as the language of law in connection with the encouragement of domestic academic activities in English. In fact, legal English is the indisputable reality for the legal professions; it is the most frequently used common language in professional matters where peoples from different countries, on the European continent and across the globe, come together for discussions.3 One issue is that the number of Russian legal scholars who are suitably proficient in writing in English and have experience in publishing abroad is quite small. Publishing scholarly works in English is not the same as doing so in Russian. Many style aspects are different too: the structure of the article, citations and references, the format of the academic discussion, etc. In support of its mission the journal strives to enlarge the number of Russian legal academic papers written in the manner familiar to the international legal academia. Five years ago, most of our Russian authors were scholars who had different international experiences, for example study abroad activities or academic collaborations. Now we have many scholars who attempt the shared experience of writing for an international audience in English, and the journal’s team supports them with information and advice. All articles that appear in the journal are subject to professional editing by native English-speaking legal scholars. For it is important that authors follow the journal’s style guide requirements concerning the quality of English and the international format of legal writing, because the journal’s content is designed primarily for the international legal community. Second, the topics of the articles. The challenge here is for Russian scholars, and this applies to all authors, to find topics that are interesting, not only for a domestic readership, but also for readerships abroad; thus the need for research and examination of international and foreign literature and legislation, etc. The journal’s niche is indeed Russian law in a comparative context, but the authors are not solely from Russia, they come from many other countries too. Approximately 40 states are represented in the list of the journal’s authors. Articles in international co-authorship are very welcome, because they are comparative and the real result of international legal academic cooperation. The journal also acts as a platform for scholars from other countries of the former USSR to discuss the comparative aspects of their legal systems. There are many submissions from these countries, and that is why the editorial board
2 Nedim P. Vogt, Anglo-Internationalisation of Law and Language: English as the Language of Law?, 29(1) International Legal Practitioner 13 (2004). 3 Jens Drolshammer & Nedim P. Vogt, English as the Language of Law?: An Essay on the Legal Lingua Franca of a Shrinking World 34 (Zürich: Schulthess, 2003). DMITRY MALESHIN 7 has decided to approve special issues on the legal systems of Belarus, Ukraine and Kazakhstan. Moreover, the journal spotlights international events that concern Russia. For example, Syria and the conflict inU kraine are important topics for attention. Hence the niche and specialization of the journal are precise and recognizable. An issue of concern here is not to be found in the journal’s niche, but in the ideas behind finding and narrowing down the topics. One of the frequent reasons for rejecting a submission is the tiresome nature of the topic. Authors frequently do not think carefully enough about the interests of the readers. The careless choice of an uninteresting topic is not the only issue many contemporary journals encounter. Before submitting an article, it is necessary to read carefully all the instructions for the authors and the information about the journal. Articles about local, domestic matters of little significance are not suitably interesting for the readers of theRussian Law Journal. The source of this issue is the isolated nature of Russia’s contemporary legal academia. At the beginning of the 20th century there were several famous Russian legal scholars who were widely known abroad and had respected publications in Europe and America: for example, Nikolai Korkunov4 and Paul Vinogradoff,5 among others. Their works were interesting and readable, thus foreign students studied them.6 Unfortunately, we do not have similar famous names in Russia’s contemporary legal academia who are well known not only in Russia but also abroad. The reason for this is not the quality of the research, which quite often is original, but isolation. The titles of articles have a domestic orientation; the content of the articles is quite naturally also domestic, and only Russian references are cited. In the contemporary era, this is a disadvantage rather than an advantage. Articles should be interesting for the worldwide legal academia, accessible and written in accordance with universal style standards of discourse. All these matters are challenges for Russia’s legal academia. There are no more than five to seven universities whereR ussian scholars are doing legal investigations in English and acting successfully as bilingual researchers. Most of them could be easily counted, and the total number would amount to no more than 30 names. This state of affairs is a disaster for a country profoundly rich in academic traditions. Russia must change this approach towards international academic collaboration. Legal publications in English are essential today and can be considered to be a means by which to promote and defend Russian law from the point of view of the function of law as an element of the competitiveness of a nation. The Russian Law Journal stands on the front line in this worldwide legal competition; it has the mission via the English language of “Discovering Russian Law” and the names and thoughts of the scholars of Russia’s contemporary legal academia.
4 Nikolai Korkunov, General Theory of Law (Boston: Boston Book Co., 1909). 5 Paul Vinogradoff, Outlines of Historical Jurisprudence (London: Oxford University Press, 1920). 6 dmitry Maleshin, The Crisis of Russian Legal Education in Comparative Perspective, 66(2) Journal of Legal Education 289, 302 (2017). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3
ARTICLES
APPLYING THE EUROPEAN CONVENTION ON HUMAN RIGHTS TO THE CONFLICT IN UKRAINE
STUART WALLACE, University of Cambridge (Cambridge, United Kingdom)
CONALL MALLORY, Newcastle University (Newcastle upon Tyne, United Kingdom)
DOI: 10.17589/2309-8678-2018-6-3-8-78
The “annexation” of Crimea by the Russian Federation and the ongoing conflict in Eastern Ukraine have resulted in widespread human rights abuses. Both Ukraine and the Russian Federation are signatories to the European Convention on Human Rights and the Convention should apply within the territory and to the conflict. However, recent applications to the European Court of Human Rights reveal a great deal of confusion over which State bears responsibility for protecting human rights in different parts of Ukraine. This article seeks to shine a light on this problem presenting a deep analysis of the European Court of Human Rights’ jurisprudence and discussing how it applies to both the conflict in Eastern Ukraine and “annexed” Crimea. It addresses salient issues such as responsibility for the actions of non-state actors and armed groups in Eastern Ukraine and whether the legality of the “annexation” has any bearing on the human rights obligations of each State. The article presents a detailed critique of recent judgments from the European Court of Human Rights arguing that the jurisprudence of the Court has created a bewildering degree of complexity and uncertainty as to the obligations of each State and discussing the practical implications of this uncertainty.
Keywords: Ukraine; Russia; armed conflict; European Convention on Human Rights; Crimea; jurisdiction; state responsibility; territory; control; belligerent occupation.
Recommended citation: Stuart Wallace & Conall Mallory, Applying the European Convention on Human Rights to the Conflict in Ukraine, 6(3) Russian Law Journal 8–78 (2018). STUART WALLACE, CONALL MALLORY 9
Table of Contents
Introduction 1. Jurisdiction Under the ECHR 2. The Crimean “Annexation” 2.1. Scenario 1 – Crimea Has Been Annexed 2.1.1. Russia’s Responsibility for Human Rights 2.1.2. Ukraine’s Responsibility for Human Rights 2.2. Scenario 2 – Crimea is “Occupied” by Russia 2.2.1. Russia’s Responsibility for Human Rights 2.2.2. Is Upholding All Convention Rights in Crimea Feasible? 2.2.3. Ukraine’s Responsibility for Human Rights 2.2.4. Loss of Territorial Control with No Impact on Human Rights Obligations 2.2.5. Positive Obligations 2.3. Conclusion on Crimea 3. Ukraine’s Responsibility for Human Rights 3.1. Scenario 1 – Ukraine Exercises Jurisdiction Throughout Its Territory 3.2. Scenario 2 – Ukraine Owes Only Positive Obligations in Eastern Ukraine 4. Russia’s Responsibility for Human Rights 4.1. Scenario 1 – Russia Exercises Spatial Jurisdiction over Eastern Ukraine 4.2. Scenario 2 – Russia Exercises Personal Jurisdiction over Individuals Within Eastern Ukraine 4.2.1. Pro-Russian Rebels Exercise Direct Control over Individuals Through Custody 4.2.2. Pro-Russian Rebels Exercise Control over Individuals Due to Their Location 4.2.3. Pro-Russian Rebels Exercise Control Through Instantaneous Acts 4.3. Conclusions as to Eastern Ukraine Conclusion
Introduction
In November 2013, protests broke out in the Ukraine when the president, Viktor Yanukovych, refused to sign an association agreement with the European Union.1 This was a defining moment in the country’s history as it exacerbated long- standing tensions between citizens favouring closer ties with Europe and others who
1 ukraine Protests After Yanukovych EU Deal Rejection, BBC News, 30 November 2013 (Aug. 2, 2018), available at http://www.bbc.co.uk/news/world-europe-25162563. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 10 favoured a closer relationship with Russia.2 The protests against Yanukovych gathered in intensity and turned increasingly violent. Yanukovych eventually fled office in February 2014. His government was replaced by an interim administration and the security situation, particularly in the east of the country, continued to worsen.3 In late February 2014 pro-Russian groups began to take control of public buildings on the Crimean peninsula and the by the end of spring parts of the Donetsk and Luhansk Oblasts were under the control of similar pro-Russian units.4 In May 2015 Ukrainian authorities filed derogations with respect to its human rights obligations under both the European Convention on Human Rights 1950 (hereinafter ECHR) and International Convention on Civil and Political Rights 1966.5 In the five years since the conflict began there has been a significant deterioration in the protection of human rights within Ukraine. The Office of the United Nations High Commissioner for Human Rights has stated that the death toll from the conflict now exceeds 2,700, with a further 9,000 individuals injured.6 An estimated 1.6 million people have been displaced by the violence.7 Human Rights Watch has reported further human rights abuses, including a high number of enforced disappearances, the intimidation of pro-Ukrainian activists and widespread persecution of minority groups, such as the Tatars.8 The UN has further reported on instances of alleged
2 For some historical context on the origins of the conflict in Ukraine see Julia Koch, The Efficacy and Impact of Interim Measures: Ukraine’s Inter-State Application Against Russia, 39(1) Boston College International and Comparative Law Review 163, 165–170 (2016). 3 shaun Walker, Ukraine’s Former PM Rallies Protesters After Yanukovych Flees Kiev, The Guardian, 23 Feb- ruary 2014 (Aug. 2, 2018), available at http://www.theguardian.com/world/2014/feb/22/ukraine- president-yanukovych-flees-kiev. 4 ukraine Crisis: Timeline, BBC News, 13 November 2014 (Aug. 2, 2018), available at https://www.bbc. co.uk/news/world-middle-east-26248275. 5 ukrainian Government, Resolution of the Verkhovna Rada of Ukraine on Declaration on Derogation from Certain Obligations Under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, 21 May 2015 (Aug. 2, 2018), available at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?d ocumentId=0900001680304c47#search=ukraine%20derogate. 6 united Nations Office for the Coordination of Humanitarian Affairs, Ukraine Humanitarian Bulletin, Issue 25, 1 March – 30 April 2018 (Aug. 2, 2018), available at https://reliefweb.int/sites/reliefweb.int/ files/resources/ukraine_-_humanitarian_bulletin_issue_25_-_mar-apr_2018.pdf. See also UN Calls for “New Political Energy” to End the Conflict in Eastern Ukraine, UN News, 29 May 2018 (Aug. 2, 2018), available at https://news.un.org/en/story/2018/05/1010911. The Council on Foreign Relations places the death-toll significantly higher at over 10,000 – Council on Foreign Relations, Global ConflictT racker, 19 June 2018 (Aug. 2, 2018), available at https://www.cfr.org/interactives/global-conflict-tracker#!/ conflict/conflict-in-ukraine. 7 uN Calls for “New Political Energy,” supra note 6. 8 Crimea: Disappeared Man Found Killed, Human Rights Watch, 18 March 2014 (Aug. 2, 2018), available at https://www.hrw.org/news/2014/03/18/crimea-disappeared-man-found-killed; Crimea: Enforced Disappearances, Human Rights Watch, 7 October 2014 (Aug. 2, 2018), available at https://www.hrw. org/news/2014/10/07/crimea-enforced-disappearances. STUART WALLACE, CONALL MALLORY 11 torture,9 sexual violence,10 threats to commit ethnic cleansing11 and forced conscription.12 The on-going unrest has created considerable uncertainty as to who is ultimately responsible for guaranteeing human rights protection within the different parts of Ukraine. The violence has clearly reached the threshold of an armed conflict at different times, although the exact categorisation of the hostilities under international law in different parts of the country is open to debate.13 There remain ongoing arguments in the international legal forum over whether human rights law applies to armed conflicts or whether it should be superseded by international humanitarian law (hereinafter IHL).14 Indeed Russia has already argued that human rights law should not be applied to its armed conflict with Georgia in 2008 in an inter-state case before the European Court of Human Rights (hereinafter ECtHR).15 Given the similarities between that situation and the Ukraine crisis, it seems likely that Russia will raise a similar argument in cases related to the Ukrainian conflict.W hile there is some continued merit to these
9 Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 16 February to 15 May 2016, 3 June 2016, at 15 (Aug. 2, 2018), available at https:// www.ohchr.org/Documents/Countries/UA/Ukraine_14th_HRMMU_Report.pdf. 10 Office of theU nited Nations High Commissioner for Human Rights, Conflict-Related Sexual Violence in Ukraine – 14 March 2014 to 31 January 2017, 16 February 2017 (Aug. 2, 2018), available at https:// www.ohchr.org/Documents/Countries/UA/ReportCRSV_EN.pdf. 11 Andrew Korybko, Ethnic and Cultural Cleansing in Ukraine, Global Research, 18 June 2014 (Aug. 2, 2018), available at http://www.globalresearch.ca/ethnic-and-cultural-cleansing-inukraine/5387539. 12 Office of theU nited Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 16 November 2017 to 15 February 2018, 19 March 2018, at 13 (Aug. 2, 2018), available at https://www.ohchr.org/Documents/Countries/UA/ReportUkraineNov2017-Feb2018_EN.pdf. 13 On the application of the Law of Armed Conflict to Ukraine see Reeves and Wallace who contend that the situation in the Crimea would amount to an international armed conflict, while – due to the challenges in ascertaining Russian influence – the unrest in Eastern Ukraine would only amount to a non-international armed conflict at present.S hane R. Reeves & David Wallace, The Combatant Status of the “Little Green Men” and Other Participants in the Ukraine Conflict, 91 International Law Student Series US Naval War Collection 361, 382 (2015). 14 Barbara Miltner, Revisiting Extraterritoriality After Al-Skeini: The ECHR and Its Lessons, 33(4) Michigan Journal of International Law 693, 748 (2012); Michelle A. Hansen, Preventing the Emasculation of Warfare: Halting the Expansion of Human Rights Law into Armed Conflict, 194 Military Law Review 1, 65 (2007); Natasha Balendra, Defining Armed Conflict, 29(6) Cardozo Law Review 2461, 2516 (2008); Michael J. Dennis, Application of Human Rights Treaties Extraterritorially to Detention of Combatants and Security Internees: Fuzzy Thinking All Around, 12(2) ILSA Journal of International & Comparative Law 459, 480 (2006); Heike Krieger, A Conflict of Norms the Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study, 11(2) Journal of Conflict &S ecurity Law 265, 291 (2006); W. Hays Parks, Part IX of the ICRC Direct Participation in Hostilities Study: No Mandate, No Expertise, and Legally Incorrect, 42 New York University Journal of International Law and Politics 769, 830 (2010); Rick Lawson, Really Out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the ECHR in Margins of Conflict: The ECHR and Transitions to and from Armed Conflict 57 (A. Buyse (ed.), Antwerp: Intersentia, 2011). For discussion on this subject specifically at theE CtHR see Hassan v. United Kingdom, Application No. 29750/09, Judgment (Grand Chamber), 16 September 2014, paras. 96–107. 15 Georgia v. Russia (II), Application No. 38263/08, Decision (Section V), 13 December 2011. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 12 discussions, the reality is that international human rights law is currently being applied to a variety of military operations including international armed conflicts,16 particularly by the ECtHR. The past decades have seen the ECtHR apply the ECHR to a variety of military operations, including international armed conflicts,17 foreign belligerent occupations,18 peace-support operations,19 domestic counter-insurgency operations,20 and non-international armed conflicts.21 This has prompted calls for a shift in focus toward considering the practicalities of how IHRL can actually be applied in day-to- day military operations at home and abroad.22 In the words of one academic, it is time to “stop debating the theory and start defining the pragmatic.”23 This article therefore works from the assumption that the ECHR applies to the conflict(s) in Ukraine. At it’s the core, the issue of responsibility for human rights protection in Ukraine is a question of jurisdiction and State responsibility, refracted through the unique lens of the European Convention on Human Rights. Section 1 of the Article therefore introduces the issues of jurisdiction and State responsibility arising under the ECHR. The ECtHR has placed de facto control over territory or persons at the centre of its assessments of jurisdiction. However, it is argued throughout this article that the ECtHR has failed to apply its tests for de facto control consistently. This has led to considerable uncertainty over the scope and content of the obligations owed by differentS tates. The following section begins to analyse this issue in the context of Crimea, asking to what extent does Russia, which claims to have annexed Crimea, have responsibility for human rights obligations within that territory? Would the
16 the ICJ has ruled on a number of occasions that international human rights law applies to armed conflict – Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 2005 I.C.J. 116, 231. See also Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 178. 17 Cyprus v. Turkey, Applications No. 6780/74 and 6950/75, Decision, 26 May 1975; Georgia v. Russia (II), supra note 15. 18 t he occupation of Iraq in Al-Skeini and Others v. United Kingdom, Application No. 55721/07, Judgment (Grand Chamber), 7 July 2011. 19 kosovo in Behrami v. France, Application No. 71412/01, Decision (Grand Chamber), 31 May 2007. 20 Counter-insurgency in South-East Turkey in Ergi v. Turkey, Case No. 66/1997/850/1057, Judgment, 28 July 1998. 21 russian operations in Chechnya in Isayeva v. Russia, Application No. 57950/00, Decision (Section I), 24 February 2005. 22 Naz K. Modirzadeh, The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict, 86 International Law Student Series US Naval War Collection 349, 368 (2010); Iain Scobbie, Principle of Pragmatics – The Relationship Between Human Rights Law and the Law of Armed Conflict, 14(3) Journal of Conflict andS ecurity Law 449, 458 (2009); Daniel Bethlehem, The Relationship Between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict, 2(2) Cambridge Journal of International and Comparative Law 180, 195 (2013). 23 Geoffrey Corn, Mixing Apples and Hand Grenades The Logical Limits of Applying Human Rights Norms to Armed Conflict, 1(1) Journal of International Humanitarian Legal Studies 52, 90 (2010). STUART WALLACE, CONALL MALLORY 13 answer to this question be different if annexation has not occurred and the invading state is instead in belligerent occupation of that territory? The third part of the article examines the situation in Eastern Ukraine. It applies the ECtHR’s jurisprudence to various facets of the conflict asking to what extent isU kraine’s jurisdiction displaced by the ongoing conflict? To what extent could Russia be held responsible for the activities of armed groups in Eastern Ukraine?
1. Jurisdiction Under the ECHR
According to Article 1, a State’s obligations under the ECHR only extend to individuals “within their jurisdiction.”24 The State’s jurisdiction is therefore a threshold criterion, which must be met before the treaty obligations begin to apply.25 The term jurisdiction can describe many different things. It can, for example, refer to geographical boundaries or to the limits of a court’s authority.26 When one refers to a State’s jurisdiction under general international law, one is referring to a manifestation of its sovereignty. A State manifests its sovereignty over territory by exercising legislative, judicial and executive jurisdiction over it,27 although this is different from the type of jurisdiction contemplated in Article 1 ECHR. Many of the terms used here, sovereignty, jurisdiction, authority are synonymous with control and control is the key factor. Territory can be viewed as the medium, the spatial realm, in which the State exercises its control. Thus, when the ECtHR speaks of jurisdiction under Article 1 being primarily territorial, as it often does,28 it should be understood
24 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, E.T.S. 5, Art. 1. Michael O’Boyle, The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life After Bankovic” in Extraterritorial Application of Human Rights Treaties 125 (F. Coomans & M.T. Kamminga (eds.), Antwerp: Intersentia, 2004); Marko Milanovic & Tatjana Papic, As Bad as It Gets: The European Court of Human Rights’s “Behrami and Saramati” Decision and General International Law, 58(2) International & Comparative Law Quarterly 267, 272 (2009); Ralph Wilde, Legal “Black Hole”? Extraterritorial State Action and International Treaty Law on Civil and Political Rights, 26(3) Michigan Journal of International Law 739, 797–798 (2005). 25 Ilascu and Others v. Moldova and Russia, Application No. 48787/99, Judgment (Grand Chamber), 8 July 2004, para. 312; Marko Milanovic, From Compromise to Principle: Clarifying the Concept of State Juris- diction in Human Rights Treaties, 8 Human Rights Law Review 411, 415 (2008). 26 Peter Malanczuk, Akehurst’s Modern Introduction to International Law 109 (7th ed., New York: Routledge, 1997). 27 Lassa Oppenheim et al., Oppenheim’s International Law. Vol. 1: Peace. Parts 2–4 458 (Harlow: Longman, 1992); Ian Brownlie, Principles of Public International Law 299 (Oxford: Oxford University Press, 2008); Antonio Cassese, International Law 50 (Oxford: Oxford University Press, 2005); For a full explanation of what each type of jurisdiction entails see Malcolm Shaw, International Law 649–651 (Cambridge: Cambridge University Press, 2008). 28 See, for example, Banković and Others v. Belgium and Others, Application No. 52207/99, Decision (Grand Chamber), 12 December 2001, para. 61; Hirsi Jamaa v. Italy, Application No. 27765/09, Judgment (Grand Chamber), 23 February 2012, para. 71; Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 312; Al-Skeini and Others v. United Kingdom, supra note 18, para. 131. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 14 that possession of territory is a natural condition of Statehood and territory is the spatial realm in which the State’s jurisdiction/control is principally manifested. Using de facto control as an indicator of the exercise of jurisdiction has been a consistent characteristic of the European Court, and its forebear the European Commission on Human Rights, for decades. Conceptualising jurisdiction in this manner is both consistent with the practice of other international human rights bodies and is potentially the most human rights-friendly approach available to the ECtHR. For instance, the UN Convention Against Torture has been interpreted to apply to “all areas where the state party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control.”29 Similarly, obligations arising from the ICCPR have been interpreted to extend to all individuals “within the power or effective control” of a state.30 In theory at least, such an approach recognises individuals within the Convention’s protection at times when they are most vulnerable to the power of the State, as that State, through its agents, is exercising control over either them or the territory in which they are located. Loizidou v. Turkey31 is an example of the ECtHR’s approach to de facto control over territory. In this landmark case, the applicant owned property in Northern Cyprus and was prevented from accessing it following the Turkish invasion of Cyprus and the de facto partition of the island. She alleged that Turkey was responsible for denying her peaceful enjoyment of her property. The ECtHR had to decide whether territory in Northern Cyprus, which was occupied by Turkey since the 1970s, came within the jurisdiction of Turkey for the purposes of Article 1. When deciding the issue of jurisdiction, the ECtHR outlined its approach to what has been widely referred to as spatial jurisdiction.32 It stated that
the responsibility of a Contracting Party may also arise when as a con- sequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from
29 uN Committee Against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, para. 16. 30 uN Human Rights Committee (HRC), General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, para. 10. 31 Loizidou v. Turkey (Preliminary Objections), Application No. 15318/89, Judgment (Grand Chamber), 23 March 1995. 32 See, for example, Marko Milanovic, Al-Skeini and Al-Jedda in Strasbourg, 23(1) European Journal of International Law 121, 122 (2012); Ralph Wilde, The Extraterritorial Application of International Human Rights Law on Civil and Political Rights in Routledge Handbook of International Human Rights Law 635, 641 (S. Sheeran & N. Rodley (eds.), Abingdon, UK: Routledge, 2013); Lea Raible, The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should Be Read as Game Changers, 2 European Human Rights Law Review 161, 163 (2016). STUART WALLACE, CONALL MALLORY 15
the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.33
There are several noteworthy elements in this statement. Firstly, the ECtHR refers to effective control of “an area” e.g. piece of territory as opposed to individual people. Secondly, the ECtHR does not specify that the State’s obligation is only to secure certain rights, it refers to the rights and freedoms in general, implying that the State must guarantee all of the rights and freedoms in the Convention.34 The ECtHR later confirms this in the case of Cyprus v. Turkey when it states
Having effective overall control over Northern Cyprus […] Turkey’s “jurisdiction” must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified.35
Interestingly the ECtHR makes no direct mention of the procedural obligations here. However, it has since applied the procedural obligations in Article 2, which demand investigation of suspicious deaths, extra-territorially in the cases of Jaloud v. Netherlands36 and Al-Skeini v. UK,37 so one can assume that they must also be guaranteed. These cases are discussed in detail below. Finally, and perhaps most importantly, the ECtHR refers to the obligation to secure the rights deriving from the fact that Turkey is exercising control over the territory. Thus, the factual control that Turkey exercised over territory was crucial in determining that jurisdiction arose. A similar emphasis on de facto control is evident with the so-called “personal jurisdiction” approach.38 In one of the earliest forays into the application of human rights during extra-territorial armed conflicts, also involving the situation in Northern Cyprus, the European Commission on Human Rights stated that “authorised agents of Turkey […] bring any other persons or property in Cyprus ‘within the jurisdiction’ of Turkey, in the sense of Article 1 of the Convention, to the extent that they exercise control over such persons or property.”39 This de facto control approach has been
33 Loizidou v. Turkey (Preliminary Objections), supra note 31, para. 62. 34 Noam Lubell, Human Rights Obligations in Military Occupation, 94(885) International Review of the Red Cross 317, 320 (2012). 35 Cyprus v. Turkey, Application No. 25781/94, Judgment, 10 May 2001, para. 77. 36 Jaloud v. Netherlands, Application No. 47708/08, Judgment (Grand Chamber), 20 November 2014. 37 Al-Skeini and Others v. United Kingdom, supra note 18. 38 See, for example, Cedric Ryngaert, Clarifying the Extraterritorial Application of the European Convention on Human Rights, 28(74) Utrecht Journal of International and European Law 57, 59 (2012); Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy 173 (Oxford: Oxford University Press, 2011). 39 Cyprus v. Turkey, supra note 17, para. 10. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 16 applied subsequently in numerous decisions, largely relating to instances when an individual is brought within the custody of a Contracting Party to the Convention.40 Thus, the ECtHR contends that de facto control is the decisive factor in determining the existence of both of these types of jurisdiction under the ECHR.41 As will be demonstrated in our analysis of the situation in Ukraine below, the problem lies not with the conception of jurisdiction in terms of de facto control, but rather with the chronically indecisive and inconsistent approach the ECtHR has taken to interpreting and applying de facto control in cases involving violations of the Convention in both domestic and foreign armed conflicts.
2. The Crimean “Annexation”
Shortly after Viktor Yanukovych fled Ukraine in February 2014, pro-Russian gunmen took control of key government buildings in Crimea.42 Over the following weeks, Russian forces based in Sevastopol, supported by troops from the Russian mainland, took control of the entire Crimean Peninsula. A referendum was then held on 16 March on whether Crimea should become part of Russia, which was passed.43 The territory was formally annexed by Russia through the Treaty on Accession of the Republic of Crimea to Russia,44 which was followed by a domestic legal act of the Russian State. The “annexation” of the Crimean Peninsula gives rise to a very important question – who is now responsible for protecting human rights in this territory, Ukraine, Russia or do they each have obligations to uphold? Before discussing this further, it is important to clear up the difference between belligerent occupation and annexation, which is of crucial importance. Under IHL, territory is considered occupied when it is placed under the authority of the hostile army and the occupation extends only to the territory where its authority has been established and can be exercised.45 Belligerent occupation is considered a transient
40 See, for example, Öcalan v. Turkey (Merits), Application No. 46221/99, Judgment (Grand Chamber), 12 May 2005, para. 91; Freda v. Italy, Application No. 8916/80, Decision, 7 October 1980. 41 As opposed to the exercise of legal authority. See on this Mirja Trilsch & Alexandra Ruth, Bankovic v. Belgium, 97 American Journal of International Law 168, 171 (2003) and Nehal C. Bhuta, Conflicting International Obligations and the Risk of Torture and Unfair Trial: Critical Comments on R (Al-Saadoon and Mufdhi) v. Secretary of State for Defence and Al-Saadoon and Mufdhi v. United Kingdom, 7(5) Journal of International Criminal Justice 1133, 1138 (2009). 42 ukraine Crisis: Timeline, supra note 4. 43 Crimea Referendum: Voters Back Russia Union, BBC News, 16 March 2014 (Aug. 2, 2018), available at http://www.bbc.co.uk/news/world-europe-26606097. 44 A Treaty between the Russian Federation and the Republic of Crimea on the Accession of the Republic of Crimea to the Russian Federation and on Forming New Constituent Entities within the Russian Federation, Russian Federation-Republic of Crimea, 18 March 2014 (Aug. 2, 2018), available at https:// en.wikisource.org/wiki/Treaty_on_the_Accession_of_the_Republic_of_Crimea_to_Russia. 45 hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, 205 C.T.S. 277, Art. 42. STUART WALLACE, CONALL MALLORY 17 status under international law with the occupier bound to respect the existing laws in force within the territory “unless absolutely prevented” from doing so.46 As Carcano notes, this limitation on the occupying power protects the separate existence of the State, its institutions and its laws and constitutes a critical boundary between occupation and annexation.47 The fate of occupied territory is typically determined by a peace treaty once the conflict between the parties is resolved.48 By contrast annexation describes a domestic legal act of a State purporting to extend sovereignty over a piece of territory over which it has gained effective control through non- consensual, forcible means.49 The exact status of the territory, annexed or occupied, could have a considerable impact in determining which State is responsible for human rights protection within a territory. The situation in Crimea has prompted human rights claims against both Russia and Ukraine at the ECtHR and documents issued by the court state that approximately 4,000 individual applications relating to the events in both Crimea and Eastern Ukraine have been submitted.50 Notably, as well as applications being lodged solely against Ukraine or Russia, a number of have been lodged against both states.51
46 hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, Art. 43. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 3, Art. 4, which states “neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.” For an interesting analysis of the genesis of this rule see Eyal Benvenisti, The Origins of the Concept of Belligerent Occupation, 26(3) Law and History Review 621, 648 (2008). 47 Andrea Carcano, The Transformation of Occupied Territory in International Law 24 (Leiden: Brill/Nijhoff, 2015). 48 Id. at 19; this approach is also mentioned by the ECtHR in Al-Skeini and Others v. United Kingdom, supra note 18, para. 89. 49 daniel Costelloe, Treaty Succession in Annexed Territory, 65(2) International & Comparative Law Quarterly 343, 353 (2016); As Fox notes – An assertion of de jure authority through annexation is fundamentally at odds with the temporary nature of occupation – Gregory H. Fox, The Occupation of Iraq, 36 Georgetown Journal of International Law 195, 298 (2004–2005). 50 european Court of Human Rights, Press Country Profile – Ukraine (July 2018) (Aug. 2, 2018), available at https://www.echr.coe.int/Documents/CP_Ukraine_ENG.pdf. 51 european Court of Human Rights, Press Country Profile – Russia (July 2018), at 16 (Aug. 2, 2018), available at http://www.echr.coe.int/Documents/CP_Russia_ENG.pdf. Cases from the east of Ukraine concerning destruction of property as a result of shelling have been brought against both Russia and Ukraine, see Lisnyy v. Ukraine and Russia, Application No. 44913/15, Judgment (Section I), 5 July 2016. Indeed Ukraine itself has launched an inter-State complaint against Russia concerning the annexation of Crimea, which is currently pending before the ECtHR – Ukraine v. Russia (Application No. 20958/14) – see European Court of Human Rights, European Court of Human Rights Communicates to Russia New Inter-State Case Concerning Events in Crimea and Eastern Ukraine, 1 October 2015 (Aug. 2, 2018), available at http:// hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=003-5187816-6420666&filename=ECHR%20 communicates%20new%20inter-State%20case%20concerning%20events%20in%20Crimea%20 and%20Eastern%20Ukraine.pdf; for more analysis of the inter-state case see Koch 2016 and Stefan Kirchner, Interim Measures in Inter-State Proceedings Before the European Court of Human Rights: Ukraine v. Russia, 3(1) University of Baltimore Journal of International Law 33 (2015). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 18
The fact that these applications have been lodged against both Ukraine and Russia and against each State individually indicates that the duty bearer for human rights obligations in Crimea remains unclear. Two potential scenarios emerge in respect of the situation in Crimea.
2.1. Scenario 1 – Crimea Has Been Annexed The first scenario assumes that Russia’s annexation of Crimea is legitimate, and Crimea now forms part of its territory. If this were the case, the responsibility of both Russia and Ukraine for human rights protection in Crimea would be relatively clear.
2.1.1. Russia’s Responsibility for Human Rights In order for State responsibility to arise under international law, the conduct consisting of an action or omission must be (a) attributable to the State under international law and (b) it must constitute a breach of the State’s international obligations.52 Before a State can breach an obligation, the obligation must first be owed.53 In the context of the Convention, this means that the applicant must, generally speaking, be within the State’s jurisdiction before attribution is determined and State responsibility held to arise.54 If Crimea is now de jure part of Russian territory, Russia would be presumed to exercise jurisdiction over this region for the purposes of Article 1 of the ECHR.55 This presumption is rebuttable, but it is difficult to rebut in practice.56 State responsibility may not arise for every act/omission that occurs within a State’s jurisdiction. The State may not be held responsible for the acts of private actors, because those acts may not be attributable to it.57 Equally, acts that are attributable to the State may not give rise to State responsibility where the State does not owe obligations to the victims under international law, which is contingent on the exercise
52 James Crawford, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, 2 Yearbook of the International Law Commission 1, 34 (2001). 53 samantha Besson, The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts To, 25(4) Leiden Journal of International Law 857, 867 (2012); O’Boyle 2004, at 130. 54 Crawford 2001, at 35; Milanovic 2008, at 437; occasionally the Court may be required to determine whether the acts of particular soldiers are attributable to the State first before considering the issue of control, see Milanovic & Papic 2009, at 273. 55 Assanidze v. Georgia, Application No. 71503/01, Judgment (Grand Chamber), 8 April 2004, para. 139, the ECtHR here uses the term competence interchangeably with jurisdiction in this case in para. 137. See also Koch 2016, at 184–185. 56 this is in part down to the international legal principle of territorial integrity see Marcelo G. Kohen, Secession: International Law Perspectives 369 (Cambridge: Cambridge University Press, 2006) and Enrico Milano, Unlawful Territorial Situations in International Law – Reconciling Effectiveness, Legality and Legitimacy 123–125 (Leiden: Brill, 2005). 57 James Crawford & Simon Olleson, The Nature and Forms of International Responsibility in International Law in International Law 441, 454 (M.D. Evans (ed.), 3rd ed., Oxford: Oxford University Press, 2010). STUART WALLACE, CONALL MALLORY 19 of jurisdiction. Determining the issue of attribution of conduct to Russia would also be more straightforward in this scenario. The situation in Crimea is different from other secessionist entities in Europe such as the Moldovan Republic of Transdniestria (MRT) or the Turkish Republic of Northern Cyprus (TRNC). Those entities have declared independence and been supported by another State, Russia and Turkey respectively, however their independence has not been broadly recognised by the international community. This has led to problems with determining who is responsible for protecting human rights within these territories. The supporting States, Russia and Turkey, regularly claim that the actions of the secessionist entities cannot be attributed to Russia and Turkey as they are independent.58 The ECtHR has often bypassed this issue by ruling that it is not necessary that the supporting State “actually exercises detailed control over the policies and actions” of the authorities of the secessionist entity,59 what matters is that the supporting States exercise effective authority or at the very least have a decisive influence over the secessionist entity which “survives by virtue of the military, economic, financial and political support given to it’ by the supporting state.”60 Where the supporting State does this, the actions of the secessionist entity will be attributed to the supporting State with the ECtHR effectively equating the authorities of the secessionist entity with de facto organs or agents of the supporting State for whose acts it may generally be held responsible.61 This fraught situation would be avoided in the context of Crimea because, as Russia expressly claims that Crimea is now part of its territory, attributing the conduct of the agents operating there to Russia is not problematic. In sum, if Crimea is genuinely part of the Russian Federation now, the issues of jurisdiction and attribution concerning that State are relatively clear cut.
58 Catan and Others v. Moldova and Russia, Applications No. 43370/04, 8252/05 and 18454/06, Judgment (Grand Chamber), 19 October 2012, paras. 96–101; Mozer v. Moldova and Russia, Application No. 11138/10, Judgment (Grand Chamber), 23 February 2016, paras. 92–95; Loizidou v. Turkey (Preliminary Objections), supra note 31, para. 54; Cyprus v. Turkey, supra note 35, para. 69. 59 Loizidou v. Turkey (Preliminary Objections), supra note 31, para. 56; Catan and Others v. Moldova and Russia, supra note 58, paras. 106 and 150; Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 315; Mozer v. Moldova and Russia, supra note 58, para. 157. 60 Mozer v. Moldova and Russia, supra note 58, para. 157; Cyprus v. Turkey, supra note 35, para. 77; Ilaşcu and Others v. Moldova and Russia, supra note 25, paras. 316 and 392; Catan and Others v. Moldova and Russia, supra note 58, para. 150. 61 s tefan Talmon, The Responsibility of Outside Powers for Acts of Secessionist Entities, 58(3) International & Comparative Law Quarterly 493, 510–511 (2009); Marek Szydło, Extra-Territorial Application of the European Convention on Human Rights After Al-Skeini and Al-Jedda, 12(1) International Criminal Law Review 271, 281 (2012). The European Commission made a statement on responsibility for de facto state agents in Stocke v. Germany, Application No. 11755/85, Judgment, 19 March 1991: “In the case of collusion between State authorities, i.e. any State official irrespective of his hierarchical position, and a private individual for the purpose of returning against his will a person living abroad, without consent of his State of residence, to its territory where he is prosecuted, the High Contracting Party concerned incurs responsibility for the acts of the private individual who de facto acts on its behalf.” RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 20
2.1.2. Ukraine’s Responsibility for Human Rights In the document the Ukrainian government sent to the Secretary General of the Council of Europe derogating from the Convention in light of the crisis, the government made a statement concerning human rights responsibility in Crimea. It declared that
Due to the annexation and temporary occupation by the Russian Federation of the integral part of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol – as a result of armed aggression against Ukraine, the Russian Federation is fully responsible for respect for human rights and implementation of the relevant treaties in annexed and temporary occupied territory of Ukraine.62
The statement is confusing and contradictory. The Ukrainian government specifically refers to the AutonomousR epublic of Crimea and the city of Sevastopol and makes two conflicting claims, that Russia has annexed this territory and that it is engaged in a “temporary occupation.” Ukraine then claims that Russia is “fully responsible” for upholding human rights protection in Crimea. Factually speaking both situations, temporary occupation and annexation depend on the exercise of effective control so there is no issue in that regard.T he confusion arises from Ukraine’s acknowledgement of annexation and the legal consequences (Russia’s responsibility for human rights) flowing from that.I n principle, if the territory is now legally part of Russia, Ukraine should cease to have any legal interest in protecting the rights of the population there. The problem is that Russia’s annexation has not been internationally recognised and there is a strong case to be made that Russia’s annexation violates international law as territory belonging to a State may not be “the object of acquisition by another State resulting from the threat or use of force.”63 In a vote at the UN General Assembly on the subject of the territorial integrity of Ukraine, the vast majority of the States voted in favour of a resolution which stated
the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having no validity, cannot form the basis
62 ukrainian Government, Resolution of the Verkhovna Rada, supra note 5. 63 united Nations, Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI, Art. 2(4); UN General Assembly, Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, 24 October 1970, A/RES/2625(XXV); Cassese 2005, at 57; Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, supra note 16, at 171–172. Roth has described Russia’s armed takeover of Crimea as an unambiguous violation of international law – Brad Roth, The Neglected Virtues of Bright Lines: International Law in the 2014 Ukraine Crises, 21(2) ILSA Journal of International & Comparative Law 317, 317 (2014–2015). STUART WALLACE, CONALL MALLORY 21
for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol.64
It also seems highly unlikely that the ECtHR will recognise the legitimacy of Russia’s annexation, given the widespread view that it violates international law.65 It could hold Russia responsible for upholding some rights within the territory, but it does not follow that such a finding implicitly legitimises the “annexation.”66 In Demopoulos v. Turkey, for example, the ECtHR held that inhabitants of the TRNC were obliged to exhaust domestic remedies created by the authorities of that territory. Despite reaching this finding the court expressly stated
The Court maintains its opinion that allowing the respondent State to correct wrongs imputable to it does not amount to an indirect legitimisation of a regime unlawful under international law.67
64 uN General Assembly, Resolution on the Territorial Integrity of Ukraine, 27 March 2014, A/RES/68/262. See also UN General Assembly, Resolution on the Situation of Human Rights in the Autonomous Republic of Crimea and the City of Sevastopol (Ukraine), 19 December 2016, A/RES/71/205 referring to Crimea as temporarily occupied by the Russian Federation and refuting any annexation and UN General Assembly, Resolution on the Situation of Human Rights in the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, 19 December 2017, A/RES/72/190 urging Russia to comply with its obligations as an occupying power. 65 the Council of Europe, of which the European Court of Human Rights is a part, issued a resolution through its Parliamentary Assembly stating “the illegal annexation of Crimea by the Russian Federation [has] no legal effect and [is] not recognised by the Council of Europe” – see Parliamentary Assembly of Council of Europe, Resolution 1988 (2014) (Aug. 2, 2018), available at http://assembly.coe.int/nw/ xml/XRef/Xref-XML2HTML-en.asp?fileid=20873&lang=en. Another Council of Europe body issued an opinion on the legality of Russia’s moves to annex Crimea stating that it amounted to a violation of international law – see European Commission for Democracy Through Law, Opinion on “Whether Draft Federal Constitutional Law No. 462741-6 on Amending the Federal Constitutional Law of the Russian Federation on the Procedure of Admission to the Russian Federation and Creation of a New Subject Within the Russian Federation is Compatible with International Law,” 21 March 2014, CDL-AD(2014)004, paras. 39 and 46. See also Thomas Grant, Aggression Against Ukraine Territory, Responsibility, and International Law (New York: Palgrave Macmillan, 2015). 66 thomas Grant, Crimea After Cyprus v. Turkey: Just Satisfaction for Unlawful Annexation?, EJIL: Talk!, 19 May 2014 (Aug. 2, 2018), available at http://www.ejiltalk.org/crimea-after-cyprus-v-turkey-just-satisfaction- for-unlawful-annexation. The ICJ has held in the past that even if the legitimacy of the administration of a territory is not recognized by the international community, international law can nonetheless recognise the legitimacy of certain acts such as the registration of births, deaths and marriages. The ICJ’s primary concern here was for the welfare of the inhabitants of the territory to avoid detrimental effects of occupation – see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, 56. 67 Demopoulos and Others v. Turkey, Applications No. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, Decision (Grand Chamber), 1 March 2010, para. 96. A former judge at the ECtHR, Loukis Loucaides, was extremely critical of this decision arguing that the ECtHR should not apply the Namibia judgment to human rights remedies in the TRNC – see Loukis Loucaides, Is the European Court of Human Rights Still a Principled Court of Human Rights After the Demopoulos Case?, 24(2) Leiden Journal of International Law 435, 446 (2011). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 22
Thus, from a legal standpoint, the international community considers that Crimea remains a part of Ukraine and therefore Ukraine’s treaty obligations are presumed to extend to this territory, which includes the ECHR.68
2.2. Scenario 2 – Crimea is “Occupied” by Russia If the annexation is illegitimate, it means that Russia has not permanently displaced Ukraine’s sovereign power over Crimea and the territory is instead subject to a temporary belligerent occupation. In these circumstances, the human rights obligations of both Russia and Ukraine are much less clear.
2.2.1. Russia’s Responsibility for Human Rights The ECtHR has stated on several occasions that where States exercise control over foreign territory they can be held responsible for guaranteeing human rights protection there. In Assanidze v. Georgia, the ECtHR stated that
In addition to the State territory proper, territorial jurisdiction extends to any area which, at the time of the alleged violation, is under the “overall control” of the State concerned […] notably occupied territories.69
The ECtHR made similar statements in the case of Al-Skeini v. United Kingdom noting
where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory.70
The ICJ has also made similar pronouncements in its opinion on the Democratic Republic of Congo v. Uganda case when it stated
IHRL instruments are applicable in respect of acts done by a state in the exercise of its jurisdiction outside its own territory, particularly in occupied territories.71
68 Costelloe 2016, at 373. 69 Assanidze v. Georgia, supra note 55, para. 138. The ECtHR made a similar observation in Sargsyan v. Azerbaijan, Application No. 40167/06, Judgment (Grand Chamber), 16 June 2015, para. 94, noting that “the requirement of actual authority [for belligerent occupation] is widely considered to be synonymous to that of effective control [for extra-territorial jurisdiction].” 70 Al-Skeini and Others v. United Kingdom, supra note 18, para. 142. 71 Armed Activities on the Territory of the Congo, supra note 16, at 242–243. See also Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, supra note 16, at 180. STUART WALLACE, CONALL MALLORY 23
The issue here is not in determining that Russia is liable in principle,72 but rather in determining the extent of Russia’s liability. The nature of the State’s jurisdiction is crucial to determining the extent of its human rights obligations under the ECHR. This is because the ECtHR holds the State to different standards depending on whether spatial jurisdiction or personal jurisdiction exists. If spatial jurisdiction is found, the ECtHR requires that the State guarantee all the rights in the Convention,73 whereas if personal jurisdiction is found, the ECtHR only requires that the rights that are relevant to the situation be protected.74 The jurisprudence on this subject is further complicated by the fact that the ECtHR does not test whether spatial jurisdiction exists consistently. Obvious inconsistencies become apparent when you compare the seminal case of Al-Skeini v. United Kingdom with the more recent case of Chiragov v. Armenia.75 Before delving into this comparison, a few observations about the parallels between spatial jurisdiction and belligerent occupation should be made. Firstly, occupied territory is placed under the authority of a hostile army and the occupation only extends to the territory where this authority is established and can be exercised.76 Spatial jurisdiction arises where, as a consequence of military action, a contracting State exercises effective control of an area outside its national territory.77 The parallels here are very obvious: both rely on the de facto exercise of control/authority outside the normal territory of a State and as such belligerent occupation should automatically give rise to spatial jurisdiction.78 Secondly, the ECtHR has stated that when determining whether spatial jurisdiction exists, the primary indicator is the strength of State’s military presence in the area.79 Secondary indicators it will consider include the “extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region.”80 The overlaps between belligerent occupation and spatial jurisdiction are such that, when a state is in belligerent occupation of a territory, one would expect that the ECtHR will at least test whether spatial jurisdiction exists. With spatial jurisdiction
72 koch 2016, at 179–180. 73 See, inter alia, Catan and Others v. Moldova and Russia, supra note 58, para. 106. 74 Al-Skeini and Others v. United Kingdom, supra note 18, para. 138. 75 Chiragov v. Armenia, Application No. 13216/05, Judgment (Grand Chamber), 16 June 2015. 76 hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, Art. 42. 77 Loizidou v. Turkey (Preliminary Objections), supra note 31, para. 62. 78 Lubell 2012, at 273. 79 Loizidou v. Turkey (Preliminary Objections), supra note 31, paras. 16 and 56; Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 387. 80 Ilaşcu and Others v. Moldova and Russia, supra note 25, paras. 388–394. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 24 offering much greater protection to the inhabitants of the occupied territory, requiring the occupier to guarantee both the positive and negative human rights obligations owed to the applicant or their relatives, its sensible that the ECtHR would conduct such an evaluation rather than default to the lower level of protection offered where the jurisdictional link is personal.D espite this, the trend at the ECtHR has been to apply the spatial jurisdiction test only to cases of prolonged occupation/ de facto annexation.81 The inconsistencies in the ECtHR’s approach are evident in the Al-Skeini v. United Kingdom case.82 In that case, six Iraqi civilians took legal action against the UK. They were all relatives of people who had died in Iraq between May and November 2003 while the UK was in belligerent occupation of Basrah. The UK’s soldiers were involved to varying degrees in the deaths and their relatives claimed that the UK had an obligation to investigate them.83 Given that the territory was subject to belligerent occupation, one would have expected the ECtHR to find that theUK was exercising spatial jurisdiction over the territory and obliged them to uphold all the ECHR rights. However, the UK government denied that the Convention applied to the occupied territory throughout the litigation. Domestically, the English Court of Appeal ruled that the UK was not exercising effective territorial control over Basrah, even though it was the recognised belligerent occupier there under a UN Security Council Resolution.84 In its decision, the Court of Appeal drew comparisons between Turkish control over the TRNC (a case of prolonged occupation/de facto annexation) and UK control over Basrah. The court considered that Turkey intended to exercise control over the TRNC on a long-term basis, Turkey controlled the civilian administration there and had deployed sufficient troops to ensure effective control. By contrast the provisional authority governing Iraq was dominated by American personnel and was “in no sense a subordinate organ or instrument of the UK,”85 there were not enough
81 See, for example, the TRNC in Loizidou v. Turkey (Preliminary Objections), supra note 31, the Moldovan Republic of Transdniestria in Ilaşcu and Others v. Moldova and Russia, supra note 25 and Nagorno- Karabakh in Chiragov v. Armenia, supra note 75. 82 Al-Skeini and Others v. United Kingdom, supra note 18. 83 when an individual has been killed as a result of the use of force by a state agent, the Convention demands some form of effective official investigation – McCann and Others v. United Kingdom, Application No. 18984/91, Judgment, 27 September 1995, para. 161. 84 the UK and US were recognised as belligerent occupiers in UN Security Council, Resolution 1483 (2003), 22 May 2003, S/RES/1483. While this statement has normative power, the fact that occupation is determined by factual control, which changes over time, arguably casts doubt on this statement. The court’s view that the ECHR did not apply to the occupied territory was later upheld by the House of Lords – R. (Al-Skeini) v. Secretary of State for Defence [2007] UKHL 26, para. 83. 85 R. (Al-Skeini) v. Secretary of State for Defence [2005] EWCA Civ 1609, para. 118. The UNSCR also specifically noted that the occupiers were “under unified command” and if the court’s finding here were taken to its logical conclusion the simple fact of being in a military coalition would mean all occupiers could avoid their responsibilities by claiming they lack exclusive control over the authority administering the territory. STUART WALLACE, CONALL MALLORY 25 troops to secure effective control,86 and the UK intended to transfer responsibility to Iraqi authorities as soon as possible.87 The court denied that holding the status of belligerent occupier equated to effective control stating that “it is a feature of Strasbourg jurisprudence that the court will examine the facts of each particular case to see if the requisite control is in fact exercised.”88 In practice the ECtHR has been very inconsistent in its approach to testing the issue of spatial jurisdiction and Al-Skeini offers a potent illustration of this. When the arguments over jurisdiction raised domestically in Al-Skeini came before the ECtHR, it did not even examine whether the UK was exercising spatial jurisdiction. In its judgment, the ECtHR expressly stated
Another exception to the principle that jurisdiction under Art. 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a contracting State exercises effective control of an area outside that national territory [in such circumstances the State must secure] the entire range of substantive rights set out in the Convention.89
This paragraph clearly encompasses situations of belligerent occupation and the ECtHR later expressly notes that “the United States and the United Kingdom became occupying powers” in Iraq at the relevant time.90 It also acknowledged that they “exercise[d] powers of government temporarily” in Iraq.91 However, the ECtHR did not examine whether the UK was exercising spatial jurisdiction in Iraq. Instead, the ECtHR modified the rules on personal jurisdiction. Previously, theE CtHR had tended to find personal jurisdiction exclusively on the basis of the connection between a State agent and the victim, such as being in the agent’s custody.92 The ECtHR denied the possibility that jurisdictional links could arise from instantaneous
86 R. (Al-Skeini) v. Secretary of State for Defence, supra note 85, para. 121. The judgment is contradictory on this point, the inability to secure effective control amounts to an admission that the UK was not a belligerent occupier of the territory, but this is expressly contradicted in other parts of the judgment see, for example, [12] and [124]. As Milanovic notes, “a belligerent occupation without effective control… is simply no longer an occupation.” Milanović 2011, at 146. 87 R. (Al-Skeini) v. Secretary of State for Defence, supra note 85, para. 116. This final statement should not have any legal weight as all belligerent occupations should be transient, see Carcano 2015, at 22–26 and also Al-Skeini and Others v. United Kingdom, supra note 18, para. 89. The transient nature of the occupation should not be used to cast doubt on its existence, if the ECtHR was prepared to consider that Turkey exercised temporary de facto control over a section of Iraqi territory in Issa and Others v. Turkey, Application No. 31821/96, Judgment (Section II), 16 November 2004, para. 74, the UK’s presence in Iraq could certainly have amounted to spatial control over territory. 88 R. (Al-Skeini) v. Secretary of State for Defence, supra note 85, para. 127. 89 Al-Skeini and Others v. United Kingdom, supra note 18, para. 138. 90 Id. para. 143. 91 Id. para. 144. 92 See, for example, Öcalan v. Turkey (Merits), supra note 40. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 26 extra-territorial acts of State agents, such as firing missiles that killed civilians.93 In Al-Skeini, the ECtHR broadened this considerably in stating that jurisdiction arises when a contracting State “exercises all or some of the public powers normally to be exercised [by the government of the State],”94 and within that context, instantaneous acts may give rise to jurisdictional links to the State. This finding added a layer of governmental operations to a test which had previously been concerned with individual connections. The ECtHR applied this model, which is referred to hereinafter as “personal plus jurisdiction,” in Al-Skeini and held that instantaneous acts of UK soldiers, such as shootings, automatically created a jurisdictional link to the State
the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Art. 1 of the Convention.95 (emphasis added)
As illustrated below, the key difference between this model and standard personal jurisdiction is that where the State is exercising some public powers, the ECtHR treats the power to kill and the instantaneous act of doing so as “authority and control” over the individual.96 So under this conception of the law, the invading State is not obliged to uphold all of the rights under the Convention for the people in the invaded territory, but must secure the rights and freedoms under the Convention that are relevant to the situation of each individual over which the State exercises control and authority.97 Lubell has described the court’s approach here as “a badly mixed cocktail, unsuccessfully attempting to fuse concepts of control over the territory with the question of state agent authority.”98 The approach in Al-Skeini contrasts sharply with the ECtHR’s more recent approach in Chiragov v. Armenia.99 That case concerned the district of Lachin, which became part of Azerbaijan’s territory after the collapse of the Union of Soviet Socialist Republics (USSR).100 Armenia and Azerbaijan went to war in the early 90s over the region of
93 Banković and Others v. Belgium and Others, supra note 28. 94 Al-Skeini and Others v. United Kingdom, supra note 18, para. 135. 95 Id. para. 149. 96 Mads Andenas & Eirik Bjorge, Human Rights and Acts by Troops Abroad: Rights and Jurisdictional Restrictions, 18(3) European Public Law 473, 480 (2012). 97 Al-Skeini and Others v. United Kingdom, supra note 18, para. 137. 98 Lubell 2012, at 321. 99 Chiragov v. Armenia, supra note 75. 100 Minsk Agreement establishing the Commonwealth of Independent States, 8 December 1991, Art. 5 states: “the High Contracting Parties acknowledge and respect each other’s territorial integrity and the inviolability of existing borders within the Commonwealth.” Both Azerbaijan and Armenia signed the treaty on 21 December 1991. STUART WALLACE, CONALL MALLORY 27
Nagorno-Karabakh, where Lachin is situated. According to the ECtHR, by the end of 1993 ethnic Armenian forces had gained control over almost the entire territory of Nagorno-Karabakh, including Lachin.101 The applicants were displaced by the conflict and brought a case against Armenia inter alia for the loss of peaceful enjoyment of possessions. The ECtHR accepted, as it did previously with Turkey and the TRNC, that the self-proclaimed Nagorno-Karabakh Republic would not exist without the support of Armenia.102 Thus, the ECtHR concluded that Armenia was heavily implicated in the belligerent occupation of territory, which de jure belonged to Azerbaijan. The difference in approach between this case and Al-Skeini is stark as the ECtHR states
The Court first considers that the situation pertaining in Nagorno-Karabakh and the surrounding territories is not one of Armenian State agents exercising authority and control over individuals abroad, as alternatively argued by the applicants. Instead, the issue to be determined on the facts of the case is whether the Republic of Armenia exercised and continues to exercise effective control over the mentioned territories and as a result may be held responsible for the alleged violations […] to determine whether Armenia has jurisdiction in the present case, it is thus necessary to assess whether it exercises effective control over Nagorno-Karabakh and the surrounding territories as a whole.103
The ECtHR completely discounts the possibility of personal jurisdiction and assumes that spatial jurisdiction exists in this context. It is not at all clear why the ECtHR should treat these comparable situations of the armed forces of one State entering the territory of another State so differently and why the ECtHR should examine whether spatial jurisdiction exists in one case, but not the other. One possible explanation is that spatial jurisdiction is limited to existing contracting States, though the ECtHR has never acknowledged this to be the case. The ECtHR has shown a desire to avoid gaps in protection in areas currently subject to the Convention’s protection and such a limitation would be consistent with that approach.104 However, it has also entertained the possibility of spatial jurisdiction existing temporarily in another non- contracting State,105 and discounted the idea of there being a limited “legal space” in which the Convention operates.106
101 Chiragov v. Armenia, supra note 75, para. 174. 102 Id. paras. 172–180. 103 Id. paras. 169–170. 104 Sargsyan v. Azerbaijan, supra note 69, para. 148. 105 Issa and Others v. Turkey, supra note 87, para. 74. 106 Al-Skeini and Others v. United Kingdom, supra note 18, para. 142. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 28
Another possible explanation for the difference in treatment is provided by Giacca who has argued, in the context of economic, social and cultural rights, that a contextual approach should be taken in which “varying levels of obligations” attach to a State “depending on the degree of control exercised in the territory,” thus the effectiveness of occupation becomes the determining factor.107 This perhaps explains what the Court of Appeal and later the ECtHR were meandering toward in Al-Skeini and it also offers a tempting compromise. Under this approach, as the insurgency in Iraq undermined the effectiveness of the UK’s occupation it should have led to fewer obligations being imposed on the UK. Although appealing, the uncertainty this would create over the scope and nature of the applicable obligations is deeply undesirable, especially when States would be asking soldiers in the field to uphold these obligations, which some would contend is already too onerous a burden. Furthermore, even if this is the ECtHR’s position, it should not preclude the Court from testing whether spatial jurisdiction exists. The ECtHR does not explain why it failed to examine whether spatial jurisdiction existed in Al-Skeini and its rationale only becomes apparent in the later Iraq case of Hassan v. United Kingdom.108 In that case, the UK tried to deny that a detainee it had captured was within its jurisdiction because he was detained in a US-run facility and therefore the UK did not exercise total and exclusive control over him.109 The ECtHR makes some revealing statements about its approach in Al-Skeini, essentially taking the position that because jurisdiction was found on a personal basis there
it was unnecessary to determine whether jurisdiction also arose on the ground that the United Kingdom was in effective military control of South East Iraq during that period.110
Despite noting that the alleged violation in Hassan took place earlier, during the active hostilities phase of the conflict, the Court adopted the same approach
as in Al-Skeini, the Court does not find it necessary to decide whether the United Kingdom was in effective control of the area during the relevant period, because it finds that theU nited Kingdom exercised jurisdiction over Tarek Hassan on another ground.111
107 Gilles Giacca, Economic, Social and Cultural Rights in Armed Conflict 161 (Oxford: Oxford University Press, 2014). 108 Hassan v. United Kingdom, supra note 14. 109 Id. para. 72. 110 Id. para. 75. 111 Id. STUART WALLACE, CONALL MALLORY 29
The ECtHR therefore claims it is not necessary to test for spatial jurisdiction when another basis for jurisdiction is apparent. However, another basis for jurisdiction was not clearly apparent in Al-Skeini. The ECtHR had to bend the rules on personal jurisdiction to generate a jurisdictional link to some of the applicants in Al-Skeini. The bending of rules is clear if one of the applicants from Al-Skeini is examined more closely. Mr Hameed Abdul Rida Awaid Kareem’s wife was fatally wounded when machine gun fire from outside their building hit their dining room. The UK claimed their soldiers were involved in a firefight with unknown gunmen and the applicant’s wife was not the primary target.112 As noted above, the ECtHR famously ruled that instantaneous acts, such as firing a missile from a plane, will not give rise personal jurisdiction over the individual hit by the missile.113 It is difficult to see how personal jurisdiction was “readily apparent” to the ECtHR in the case of Mrs Kareem when the ECtHR had denied that such jurisdictional links could be created by instantaneous acts in the past. So where does this leave Russia’s responsibilities in Crimea if it is in belligerent occupation of the territory? Russia clearly satisfies the criteria for exercising effective control over the territory, it has deployed many troops, enough to prevent or at the very least deter Ukrainian troops from attempting to re-assert control.114 It also has a strong influence on the local administration in Crimea, which is obvious from its successful “annexation.” This all points toward Russia exercising spatial jurisdiction in Crimea, however, there is no guarantee that the ECtHR would actually test whether Russia is exercising spatial jurisdiction in Crimea and its obligations there could be similar to those that the ECtHR held the UK to in Al-Skeini. Thus, the degree of responsibility Russia bears there remains unclear and this is linked largely to the ECtHR’s inconsistent approach in testing for spatial jurisdiction.
2.2.2. Is Upholding All Convention Rights in Crimea Feasible? As spatial jurisdiction would call for all ECHR obligations to be guaranteed in occupied territory, it is open to question how realistic such a burden would be on a State in the context of an occupation or armed conflict. Guaranteeing all of the rights in the Convention in the context of on-going military operations presents
112 Al-Skeini and Others v. United Kingdom, supra note 18, paras. 43–46. 113 Banković and Others v. Belgium and Others, supra note 28, para. 75. The ECtHR expressly endorsed this conclusion in Medvedyev v. France, Application No. 3394/03, Judgment (Grand Chamber), 29 March 2010, para. 64. Despite some authority that instantaneous acts can create jurisdictional links e.g. Andreou v. Turkey, Application No. 45653/99, Judgment (Section IV), 27 October 2009, many academics view Al-Skeini as re-affirming Bankovic – see, for example, Ryngaert 2012, at 59; Anna Cowan, A New Watershed? Re-evaluating Bankovic in Light of Al-Skeini, 1(1) Cambridge International Law Journal 213, 225 (2012). This issue is discussed further below in the Section 4.2.3 “Pro-Russian Rebels Exercise Control Through Instantaneous Acts.” 114 in August 2016 tensions were raised again when Russian authorities accused the Ukraine of attempted incursions into Crimea. Russia Accused Ukraine of Attempted Crimea Incursions, BBC News, 11 August 2016 (Aug. 2, 2018), available at http://www.bbc.co.uk/news/world-europe-37037401. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 30 significant obstacles for military forces, which could create an unrealistically onerous burden on the State.115 Examining the right to life, for example, Watkin argues an automatic investigation into every use of force by State agents is not feasible and that not every death can or should be subject to the exhaustive review process normally associated with the application of peacetime human rights norms.116 If the obligation is considered excessive when solely applicable to the use of force by State agents, it will be even more excessive if the State also has to investigate deaths caused by third parties,117 which would be required if the State were found to be exercising spatial jurisdiction. In response many have argued in favour of a functional approach with human rights obligations becoming contingent to some degree on the State’s capacity to fulfil them.118 The concern is that such an approach generates too much uncertainty in the law because the State’s capacity to act may be greater than it realises or is willing to pursue for policy reasons and it generally incentivises States to simply ignore the law claiming they lack the capacity to enforce it. It is imperative that States can identify the applicable obligations ex ante facto, even if the actual burden imposed is mitigated in various ways. Taking the example of spatial jurisdiction, the default position is that all the Convention obligations, positive and negative, substantive and procedural are applicable. However, the full force of these obligations can be mitigated in a variety of ways. Firstly, it is likely that States can now derogate from the majority of the provisions in the ECHR.119 While the practice of Contracting States to the ECHR has not been to derogate from their obligations under the Convention during various military
115 Milanović 2011, at 217; Konstantinos Mastorodimos, The Utility and Limits of International Human Rights Law and International Humanitarian Law’s Parallel Applicability, 5 Review of International Law and Politics 123, 137 (2009). 116 kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98(1) American Journal of International Law 1, 32–33 (2004); The Public Commission to Examine the Maritime Incident of 31 May 2010: Second Report: Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law (February 2013), at 100–103 (Aug. 2, 2018), available at https://www.gov.il/ BlobFolder/generalpage/alternatefiles/he/turkel_eng_b1-474_0.pdf. 117 house of Commons Defence Committee, UK Armed Forces Personnel and the Legal Framework for Future Operations: Twelfth Report of Session 2013–14 (March 2013), paras. 24 and 25 (Aug. 2, 2018), available at https://publications.parliament.uk/pa/cm201314/cmselect/cmdfence/931/931.pdf. 118 See, for example, Monica Hakimi, State Bystander Responsibility, 21(2) European Journal of International Law 341, 374–376 (2010); Lawson 2011, at 74–75; Yuval Shany, Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law, 7 Law & Ethics of Human Rights 47 (2013); Moor and Simpson advocate it in the domestic territorial context in Louise Moor & Brian Simpson, Ghosts of Colonialism in the European Convention on Human Rights, 76(1) British Yearbook of International Law 121, 125 (2005). 119 No derogation is permitted from Articles 3 (prohibition on torture inhuman and degrading treatment or punishment), 4 § 1 (prohibition on slavery) and 7 (prohibition on punishment without law). STUART WALLACE, CONALL MALLORY 31 operations at home and overseas,120 the increasingly frequent applications of the ECHR to extra-territorial military operations give States a powerful incentive to derogate.121 The ECtHR has taken a very flexible approach to interpreting Article 15 in practice.122 Logically the capacity to derogate should be commensurate with the State’s jurisdiction, thus if a State can be obliged to uphold obligations extra- territorially, it should also be permitted to derogate from those obligations extra- territorially.123 The case law coming before the ECtHR from conflict situations has broadly tended to focus on two particular rights, protection of the right to life124 and the right to liberty and security.125 The right to liberty and security (Article 5) is derogable under the Convention.126 Derogation from Article 5 would permit States to engage in security detention/internment without having to worry about Article 5 claims.127 The Article 2 right to life is also derogable to a limited extent. Article 15 stipulates that States may derogate from Article 2 for lawful acts of war.128 This implies
120 Hassan v. United Kingdom, supra note 14, para. 101; Banković and Others v. Belgium and Others, supra note 28, para. 62. 121 the UK has indicated that it intends to derogate from the Convention during future overseas military operations – UK Ministry of Defence, Government to Protect Armed Forces from Persistent Legal Claims in Future Overseas Operations, 4 October 2016 (Aug. 2, 2018), available at https://www.gov. uk/government/news/government-to-protect-armed-forces-from-persistent-legal-claims-in-future- overseas-operations. 122 scott Sheeran, Reconceptualizing States of Emergency Under International Human Rights Law: Theory, Legal Doctrine, and Politics, 34(3) Michigan Journal of International Law 491, 537 (2013). 123 interestingly in the recent Hassan v. United Kingdom case, the ECtHR expressly referred to the right of States to derogate from Convention rights before noting the UK had not derogated from the Convention while in occupation of Iraq. At no point does the ECtHR say it is not possible for a State to derogate extra-territorially – Hassan v. United Kingdom, supra note 14, para. 98. 124 See, for example, Al-Skeini and Others v. United Kingdom, supra note 18; Jaloud v. Netherlands, supra note 36; Al-Saadoon and Mufdhi v. United Kingdom, Application No. 61498/08, Judgment (Section IV), 2 March 2010. 125 See, for example, Al-Jedda v. United Kingdom, Application No. 27021/08, Judgment (Grand Chamber), 7 July 2011; Hassan v. United Kingdom, supra note 14; Behrami v. France, supra note 19. 126 Although Allain has argued that the right to liberty and right to a fair trial are non-derogable, and as such they now sit beyond the scope of the provisions found in Article 15. Jean Allain, Derogation from the European Convention of Human Rights in the Light of “Other Obligations Under International Law,” 5 European Human Rights Law Review 480, 480 (2005). 127 derogations from the Convention have historically focused on granting States wider powers to detain individuals outside of the strictures of Article 5 – see, for example, Brannigan and McBride v. United Kingdom, Applications No. 14553/89, 14554/89, Judgment, 25 May 1993; Aksoy v. Turkey, Application No. 21987/93, Judgment, 18 December 1996; A. v. United Kingdom, Application No. 3455/05, Judgment (Grand Chamber), 19 February 2009. 128 while the term war naturally implies international armed conflict, there is scope to broaden the definition to include non-international armed conflicts, see Joan Fitzpatrick, Human Rights in Crisis: The International System for Protecting Human Rights During States of Emergency 57 (Philadelphia: University of Pennsylvania Press, 1994); Louise Doswald-Beck, The Right to Life in Armed Conflict: Does International Humanitarian Law Provide all the Answers?, 88(864) International Review of the RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 32 first that Article 2 continues to apply during war (armed conflict) and second, that when a State derogates, Article 2 continues to have some residual effect on unlawful acts of war. If States were to utilise this derogation it would modify the substantive obligation in Article 2 so that only unlawful acts of war were penalised and the focus of the obligation to investigate would also shift to these infringements alone. These unlawful acts of war would be judged against international humanitarian law and international criminal law standards. The beauty of this approach is that when Article 2 is derogated from in this way, it does not impose any additional obligations on the State, but facilitates greater enforcement of other obligations on the State.129 The Geneva Conventions, for example, are almost universally ratified and demand that States search for, try or extradite people who are suspected of committing grave breaches of their provisions.130 The majority of contracting States to the Convention are also signatories to the Rome Statute of the International Criminal Court, which demands that States investigate and prosecute international crimes, including war crimes, crimes against humanity and genocide.131 There is also a very strong argument that States have a duty under customary international law to investigate and prosecute international crimes.132 The latent procedural obligations after the State has derogated can be directed toward securing investigation of unlawful acts of war and in this manner IHL and human rights law can complement each other with the Convention providing an accountability framework for violations of IHL.133
Red Cross 881, 882 (2006). For a similar discussion in the context of the American Convention on Human Rights see Robert Norris & Paula Reiton, The Suspension of Guarantees: A Comparative Analysis of the American Convention on Human Rights and the Constitutions of the States Parties, 30 American University Law Review 189, 195 (1980). 129 As Schabas points out, however, the criminal acts under IHL would have to coincide with violations of IHRL for the procedural obligation to investigate to arise – William Schabas, Synergy or Fragmentation? International Criminal Law and the European Convention on Human Rights, 9(3) Journal of International Criminal Justice 609, 622 (2011). 130 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 U.N.T.S. 31, Art. 49; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949, 75 U.N.T.S. 85, Art. 50; Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 U.N.T.S. 135, Art. 129; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 U.N.T.S. 287, Art. 146. 131 this obligation is implicit in the complementarity principle established in Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 3, Art. 17. To date only seven Council of Europe States have not ratified the Rome Statute: Armenia, Azerbaijan, Moldova, Monaco, Russia, Turkey, Ukraine. 132 harmen van der Wilt & Sandra Lyngdorf, Procedural Obligations Under the European Convention on Human Rights: Useful Guidelines for the Assessment of “Unwillingness” and “Inability” in the Context of the Complementarity Principle, 9 International Criminal Law Review 39, 69 (2009); Louise Doswald-Beck & Jean-Marie Henckaerts, Customary International Humanitarian Law 607 (Cambridge: Cambridge University Press, 2005). 133 watkin 2004, at 22–24. STUART WALLACE, CONALL MALLORY 33
Secondly, the burden on the State can be mitigated by interpreting the ECHR in line with IHL. The ECtHR has stated on several occasions that Convention articles should be interpreted in line with IHL.134 While the ECtHR has not always been true to this sentiment,135 in the recent case of Hassan v. UK,136 the Court took a big step toward ensuring that the Convention is interpreted in light of IHL in conflict situations. In that case, the applicant’s brother had been detained by UK forces in Basrah while they were in occupation of the territory. The applicant alleged that his detention was arbitrary, unlawful and lacked procedural safeguards in violation of Article 5. There the ECtHR stated “even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law.”137 It then proceeded to interpret Article 5 in light of IHL, holding that security detention was permissible under Article 5, but that the legitimacy of the detention must be reviewed by an impartial body, offering fair procedures and ensuring the detention was not arbitrary.138 Furthermore derogating from Article 2 for lawful acts of war would also force the ECtHR to have recourse to IHL to determine the legality of a given use of force, thereby further encouraging interpretation of the ECHR in light of IHL. Finally, the ECtHR can interpret the obligations in the Convention flexibly to avoid placing an unreasonable burden on the State. Thus, in Ilaşcu the ECtHR stated that
In determining the scope of a State’s positive obligations, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must these obligations be interpreted in such a way as to impose an impossible or disproportionate burden.139
It has shown itself willing to do this on several occasions in the past particularly in the context of military operations. In Al-Skeini, for example, the ECtHR stated that
134 Varnava and Others v. Turkey, Applications No. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, Judgment (Grand Chamber), 18 September 2009, para. 185; Georgia v. Russia (II), supra note 15, para. 72. 135 in the case of Isayeva v. Russia, for example, the ECtHR failed to consider the applicability of IHL in the context of a pitched battle between insurgents and Russian armed forces involving airstrikes and artillery shelling describing the incidents as “a law enforcement operation” – Isayeva v. Russia, supra note 21, para. 180; Philip Leach, The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights, 6 European Human Rights Law Review 732, 733–734 (2008). 136 Hassan v. United Kingdom, supra note 14. 137 Id. para. 104. 138 Id. para. 106. 139 Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 332. See also Treska v. Albania and Italy, Application No. 26937/04, Judgment (Section III), 29 June 2006. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 34 it would modify the procedural obligations to investigate in the context of a military operation taking into account the “practical problems” investigators face “in a foreign and hostile region in the immediate aftermath of invasion and war” and will apply the procedural obligation “realistically.”140 Similarly in the case of Jaloud v. Netherlands, the ECtHR stated that it was
prepared to make reasonable allowances for the relatively difficult conditions under which the Netherlands military and investigators had to work. In particular, it must be recognised that they were engaged in a foreign country which had yet to be rebuilt in the aftermath of hostilities, whose language and culture were alien to them, and whose population […] clearly included armed hostile elements.141
Thus, between derogation, interpretation in light of IHL and the general flexibility with which the ECtHR is prepared to interpret the ECHR, the burden of upholding all the obligations in Convention can be mitigated both in principle and in practice.
2.2.3. Ukraine’s Responsibility for Human Rights If the annexation of Crimea is illegitimate and the belligerent occupation ostensibly temporary, where does this leave Ukraine’s obligations in Crimea? Insofar as cases are being brought against both Russia and Ukraine, there are two possible outcomes for Ukraine: the first scenario is that there will be no modification to theU kraine’s human rights obligations in Crimea. The second, more likely scenario, is that the Ukraine will have to uphold some positive obligations from the ECHR in Crimea.
2.2.4. Loss of Territorial Control with No Impact on Human Rights Obligations There are parallels between the Soviet Union’s “annexation” of the Baltic States after World War II and the situation in Crimea. When the Soviet Union collapsed in the early 90s, the Baltic States, Estonia,142 Latvia143 and Lithuania,144 all issued declarations to the effect that they considered their respectiveS tates had been subject to belligerent
140 Al-Skeini and Others v. United Kingdom, supra note 18, para. 168. 141 Jaloud v. Netherlands, supra note 36, para. 226. 142 supreme Council of Estonia, Resolution on the National Independence of Estonia, 20 August 1991 (Aug. 2, 2018), available at http://estonia.eu/about-estonia/history/estonias-return-to-independence- 19871991.html. 143 the Constitution of the Republic of Latvia, 19 June 2014, Preamble, states: “The people of Latvia did not recognise the occupation regimes, resisted them and regained their freedom by restoring national independence on 4 May 1990 on the basis of continuity of the State.” 144 supreme Council of the Republic of Lithuania, Act on the Re-establishment of the State of Lithuania, 11 March 1990 – “the execution of the sovereign powers of the State of Lithuania abolished by foreign forces in 1940 is re-established.” STUART WALLACE, CONALL MALLORY 35 occupation since the end of World War II and that they were re-asserting their sovereignty over their territory. The annexation of these States was never recognised by the wider international community. Currently the international community considers that Crimea remains a part of Ukraine and its ECHR obligations are, therefore, presumed to extend to this territory, unless this presumption is rebutted.145 Thus, improbable as it may seem, the ECtHR could rule that Ukraine is obliged to uphold all of its human rights obligations in Crimea. There is some precedent at the ECtHR for the Court to compel a State that has lost control over its de jure territory to uphold all Convention rights as normal within that territory. In Assanidze v. Georgia, the ECtHR looked at how the presumption of jurisdiction over territory could be rebutted. The case concerned a politician who was detained in the Ajarian Autonomous Republic, which is part of Georgia’s territory. The Georgian Supreme Court ordered his release, but the Ajarian authorities refused to release him. The politician took a case against Georgia claiming inter alia that his right to liberty under Article 5 was being infringed.146 The ECtHR examined several factors: the fact that Georgia had extended the Convention to the entire territory, it had not issued any reservations to the Convention, the territory had no separatist aspirations and was not subject to the effective overall control of another State.147 This final caveat is crucial to our discussion of Crimea. After taking these factors into account, the ECtHR concluded that the presumption was not rebutted. It conducted a similar inquiry into Moldova’s control over the MRT in the Ilaşcu case.148 Thus, Assanidze establishes the principle that where there is any reason to question the State’s de facto control over its de jure territory, the ECtHR will conduct a detailed examination of the prevailing legal and factual elements to determine whether the presumption of jurisdiction has been rebutted. However, that is not always the case with the ECtHR. In Isayeva v. Russia,149 there were serious doubts over Russia’s de facto control over its de jure territory in Chechnya. The Russian Federation’s control over Chechnya was challenged by an entrenched insurgency there. In October 1999, Grozny was under the control of Chechen insurgents who launched attacks on the Russian armed forces.150 Russia had clearly lost de facto control over Grozny and laid siege to the city in order to regain control. Russia established a safe exit route for civilians in Grozny to escape from the fighting.H owever, the Russian armed
145 Costelloe 2016, at 373. 146 Assanidze v. Georgia, supra note 55, para. 151. 147 Id. paras. 140–142. 148 t he ECtHR looked at whether reservations had been issued in Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 324, and the existence of secessionist entities on the territory in para. 325. 149 Isayeva v. Russia, supra note 21. 150 william Abresch, A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya, 16(4) European Journal of International Law 741, 754 (2005). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 36 forces launched an air attack on the civilians as they fled.T he applicant lost family members in the attack and brought a case against Russia. The ECtHR itself implicitly acknowledged that Russia had lost control over the area stating “[t]he situation in Chechnya had called for exceptional measures on behalf of the State in order to regain control over the Republic and to suppress the illegal armed insurgency” (emphasis added).151 The ECtHR had also previously stated in Ilaşcu that:
jurisdiction is presumed to be exercised normally throughout the State’s territory. This presumption may be limited in exceptional circumstances, particularly where a State is prevented from exercising its authority in part of its territory. That may be as a result of military occupation by the armed forces of another State which effectively controls the territory concerned,acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned.152 (emphasis added)
Despite the acknowledgement by the ECtHR that control had been lost in Isayeva and that the presumption of control could be “limited” by “acts of rebellion” in Ilaşcu, the ECtHR did not conduct any inquiry into whether the presumption that Russia controlled Grozny was rebutted, as it had in Assanidze. Nor did it modify the obligations that Russia owed to the civilians in Grozny in line with Ilaşcu and other cases.153 The ECtHR obliged Russia to uphold the positive obligation to investigate the deaths in this case,154 and the positive obligation to protect the right to life of the applicant and her relatives.155 The disparities between these cases suggest that the ECtHR is not holding States in comparable situations to the same standards, nor is it consistently assessing whether the presumption of jurisdiction is rebutted of its own volition where this is apparent. There are numerous possible reasons for this. First, Russia did not actively deny that it was capable of exercising jurisdiction in Chechnya. In many cases where a State actively denies that it is exercising jurisdiction, the ECtHR holds the State to a corresponding lower level of obligations.156 Secondly, it has been argued that
151 Isayeva v. Russia, supra note 21, para. 178. 152 Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 312. 153 See the ECtHR’s findings in cases likeCatan and Others v. Moldova and Russia, supra note 58 and Ivantoc and Others v. Moldova and Russia, Application No. 23687/05, Judgment (Section IV), 15 November 2011. 154 Isayeva v. Russia, supra note 21, para. 224. 155 Id. para. 201. 156 Ilaşcu and Others v. Moldova and Russia, supra note 25; Catan and Others v. Moldova and Russia, supra note 58; Azemi v. Serbia, Application No. 11209/09, Judgment (Section II), 5 November 2013; Jularic v. Croatia, Application No. 20106/06, Judgment (Section I), 20 January 2011. STUART WALLACE, CONALL MALLORY 37 where a secessionist entity lacks the support of another State, it cannot rebut the presumption of jurisdiction.157 This distinction is crucial. As the Chechen separatists were not backed by another State, there was no other State to assume the mantle of human rights protection in Chechnya, it would have resulted in a lacuna in the Convention’s protection if the ECtHR held that Russia was not responsible,158 a lacuna the ECtHR was obviously keen to avoid. Thus, unless a secessionist entity is supported by another State, there is no other party available to assume the duty to guarantee human rights within the territory and the ECtHR is less likely to reduce the obligations on the State losing control over the territory.159 This interpretation of the law was expressly confirmed inSargsyan v. Azerbaijan.160 That case revolved around the village of Gulistan, which was situated on the line of contact between Azerbaijan and Armenia in their protracted dispute over the Nagorno-Karabakh region. Several villagers were displaced from their homes in Gulistan by the conflict and sought compensation for their loss of property as the village was effectively in no man’s land between the two armies. Azerbaijan claims the village is part of its de jure territory and its armed forces occupied the village, but they have been surrounded by Armenian troops in a strategically superior position for many years and the area is surrounded by mines. Azerbaijan argued that they should not be obliged to uphold full human rights obligations in the Convention in disputed zones or “areas which are rendered inaccessible by the circumstances.”161 While the ECtHR accepted that Azerbaijan “may encounter difficulties at a practical level in exercising their authority in the area of Gulistan,”162 this did not alter their human rights obligations there. Gulistan remained subject to the de facto control of the Azerbaijani government and as a result the presumption that it exercised jurisdiction there was not displaced. It noted that the State’s responsibility has only been limited in previous cases when another State or separatist regime exercises effective control over the territory.163 The ECtHR referred to the “need to avoid a vacuum in Convention
157 k jetil Mujezinovic Larsen, Territorial Non-Application of the European Convention on Human Rights, 78 Nordic Journal of International Law 73, 82–83 (2009). 158 Note the ECtHR’s desire to avoid any such gaps in protection in other cases such as Banković and Others v. Belgium and Others, supra note 28, para. 78; Al-Skeini and Others v. United Kingdom, supra note 18, para. 142; Bijelic v. Montenegro and Serbia, Application No. 11890/05, Judgment (Section II), 28 April 2009. 159 For a thorough discussion of the human rights obligations of de facto entities see Anthony Cullen & Steven Wheatley, The Human Rights of Individuals in De Facto Regimes Under the European Convention on Human Rights, 13 Human Rights Law Review 691 (2013). 160 Sargsyan v. Azerbaijan, supra note 69, para. 94. 161 Id. para. 146. 162 Id. para. 150. 163 Id. para. 140. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 38 protection,”164 which could be caused by creating an exception like that suggested by Azerbaijan. It therefore ruled that Azerbaijan continued to exercise jurisdiction there for the purposes of the Convention, even though Azerbaijan had such limited control over the territory. Thus, while it is conceivable that Ukraine could be obliged to uphold all the Convention obligations in Crimea (notwithstanding the derogations it has proclaimed), the fact that the Crimean separatists are backed by Russia reduces the practical possibility of this.
2.2.5. Positive Obligations The second, more likely, albeit much more complicated, scenario is that Ukraine is obliged to uphold some of its Convention obligations in Crimea. It stands to reason that if spatial jurisdiction for the purposes of the ECHR can be acquired over territory occupied and controlled, spatial jurisdiction can be lost over territory where control is ceded such that the ECHR obligations are reduced or removed entirely. Yet when a State loses de facto control over its territory, uncertainty arises over the obligations the State owes. In Ilaşcu v. Moldova and Russia,165 which is comparable in many respects to the situation in Crimea, the ECtHR examined a situation where a State had lost de facto control over its de jure territory. Moldova was part of the USSR until it collapsed in the 1990s. Moldova declared independence in 1991 and claimed Transdniestria as part of its territory. Transdniestria was part of the Moldavian Soviet Socialist Republic, which was succeeded by the Moldovan State. After the USSR collapsed, its fourteenth army remained in Transdniestria and declared independence as the “Moldavian Republic of Transdniestria” (MRT) in 1991. Akin to Crimea, the MRT has not been internationally recognised as an independent State.166 Moldova continues to claim Transdniestria as part of its de jure territory, despite its inability to exercise de facto control there for decades. The ECtHR has addressed similar situations where the State in de jure control fails to exercise de facto control.167 The four applicants in Ilaşcu were arrested in the MRT in 1992 and charged with offences, including murder and “anti-Soviet activities.” They were tried and sentenced by the Supreme Court of the MRT and detained for a number of years. They also alleged that numerous violations of the Convention had arisen from their trial and detention and sought to hold Russia and Moldova responsible. They claimed that Moldova should have interceded with the MRT to stop the Convention violations
164 Sargsyan v. Azerbaijan, supra note 69, para. 148. 165 Ilaşcu and Others v. Moldova and Russia, supra note 25. 166 Id. paras. 28–41. 167 Cypriot control over the Turkish Republic of Northern Cyprus in Cyprus v. Turkey, supra note 17; Georgian control over South Ossetia and Abkhazia in Georgia v. Russia (II), supra note 15; Azerbaijani and Armenian control over different parts of Nagorno-Karabakh in Sargsyan v. Azerbaijan, supra note 69 and Chiragov v. Armenia, supra note 75. STUART WALLACE, CONALL MALLORY 39 arising from their detention. They alleged that Russia was exercising jurisdiction in the MRT because it exercised de facto control over the area and should therefore be held responsible for the Convention violations.168 Our focus here is on how the Court treated Moldova’s jurisdiction over the MRT. The ECtHR ruled that the Moldovan government was the only legitimate government of the Republic of Moldova under international law, but that it did not exercise authority over the MRT.169 This is similar in many respects to the situation in Crimea where Russia’s “annexation” has not been recognised internationally and with Crimea being perceived as a continuing part of Ukrainian territory over which it has lost control.170 However, the lack of control over this territory was not a barrier to Moldova exercising jurisdiction for the purposes of Article 1. The ECtHR stated
where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation […] it does not thereby cease to have jurisdiction within the meaning of Art. 1 of the Convention over that part of its territory […] such a factual situation reduces the scope of that jurisdiction in that the undertaking given by the State under Article 1 must be considered by the Court only in the light of the Contracting State’s positive obligations towards persons within its territory. The State in question must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention.171
The scope of Moldova’s jurisdiction was reduced so that it was only obliged to uphold its positive obligations. Thus, the Ukrainian government’s assertion that the Russian Federation is “fully responsible” for upholding Convention rights in the “annexed” territory does not match the ECtHR’s jurisprudence as Ukraine is, at the very least, partially responsible for upholding positive obligations in Crimea. The exact positive obligations Moldova had to uphold in the MRT, and by extension Ukraine in Crimea, are extremely unclear. The very notion that States can owe positive obligations when they are not exercising de facto control has been
168 it is worth noting, in the context of our discussion of Crimea, that the ECtHR determined in Ilascu that Russia could be held responsible for what happened in the MRT because it provided military, economic, financial and political support to the territory. By virtue of its receiving this support, the territory remained under the effective authority, or at the very least under the decisive influence, of the Russian Federation – Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 392. 169 Id. para. 330. 170 k irchner argues that Russia’s aim in encouraging the creation of self-proclaimed independent “States” in Moldova, Georgia and now Ukraine is to de-stabilize these countries to the point where NATO membership and EU membership becomes impossible – Kirchner 2015, at 42. 171 Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 333. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 40 questioned.172 On the one hand, the ECtHR implies that the State must “take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.”173 On the other hand, it has stated
Although it is not for the Court to indicate which measures the authorities should take in order to comply with their obligations most effectively, it must verify that the measures actually taken were appropriate and sufficient in the present case. When faced with a partial or total failure to act, the Court’s task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made.174
Thus, it is unclear whether the State must take “all the measures within its power” – diplomatic, economic, judicial – or simply undertake a “minimum effort.” The ECtHR ruled that Moldova had positive obligations to re-establish control over its territory and to take measures to ensure the applicants’ rights,175 holding that Moldova had failed to make sufficient efforts to secure the release of the detainees, because it had not raised the issue during negotiations with Russia over the MRT.176 Leaving aside the discomfort generated by the ECtHR dictating the foreign policy of an independent State, the ECtHR has failed to clarify the scope and content of these positive obligations in subsequent cases. In Ivantoc and Others v. Moldova and Russia,177 the ECtHR seemed to follow an “all measures within its power” approach. In that case, several of the applicants in Ilaşcu sought to hold Moldova responsible for not doing all they could to secure their Convention rights. The ECtHR held Moldova had discharged its positive obligation as it had “constantly raised the issue of the applicants’ fate in their bilateral relations with the Russian Federation” and continually sought assistance from international organisations and other States.178 By contrast, the ECtHR seemed to follow the “minimum effort”
172 Michal Gondek, Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?, 52 Netherlands International Law Review 349, 368 (2005). Hampson argues that certain positive obligations require the kind of control a state only has over its own territory before they can be fulfilled – Francoise Hampson, Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law, 87 International Law Student Series US Naval War Collection 187, 189 (2011). 173 Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 331. 174 Id. para. 334. 175 Id. para. 339. 176 Id. para. 349. 177 Ivantoc and Others v. Moldova and Russia, supra note 153. 178 Id. para. 109. STUART WALLACE, CONALL MALLORY 41 approach in Catan and Others v. Moldova and Russia.179 In that case, the MRT had banned the use of Latin script in schools, forcibly evicting students from their classes and forcing them to attend special schools. When the applicants complained that Moldova had not protected their right to education and should have raised this issue diplomatically with Russia,180 the ECtHR held that Moldova had satisfied its positive obligation by refurbishing the new schools, paying their rent and covering other costs of running them.181 More recently in Mozer v. Moldova and Russia,182 the applicant, a German national, had been detained by the MRT and complained inter alia that his detention was unlawful. The ECtHR reverted to the test in Ilaşcu stating that Moldova had to “use all the legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention to those living [in the MRT].”183 The ECtHR eventually concluded that Moldova had satisfied its positive obligations because it had appealed to intergovernmental organisations and other countries, including Russia, to assist in securing the applicant’s rights.184 In sum, the extent of the Ukraine’s positive obligations toward Crimea remain unclear in light of the ECtHR’s jurisprudence. It is unclear whether Ukraine has an obligation to do everything diplomatically, economically and legally within its power to secure the rights of the individuals in Crimea or whether the Ukraine is only obliged to undertake a minimum effort to secure their rights.
2.3. Conclusion on Crimea To conclude our analysis of jurisdiction between Ukraine and Russia in Crimea, the situation is deeply unclear. The ECtHR could determine that Russia is obliged to uphold all the Convention obligations in Crimea and has full spatial jurisdiction, as it has with territories such as the TRNC in Loizidou. This outcome would lead to a higher level of human rights protection for the inhabitants of Crimea (all positive and negative Convention obligations) and be much clearer for the State. However, it is entirely possible that the ECtHR will find that jurisdictional links only arise in Crimea under the personal jurisdiction model, discussed further below, or something in between full spatial jurisdiction and personal jurisdiction, such as the personal plus jurisdiction discussed above and set out in Al-Skeini. The consequences of these different approaches can lead to wildly different levels of obligation on the State. For example, a State with full spatial jurisdiction would have to investigate every
179 Catan and Others v. Moldova and Russia, supra note 58. 180 Id. para. 129. 181 Id. paras. 147 and 148. 182 Mozer v. Moldova and Russia, supra note 58. 183 Id. para. 100. 184 Id. paras. 153–155. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 42 death occurring in a given territory, including those caused by third parties, whereas jurisdiction arising under the personal jurisdiction model would only oblige the State to investigate deaths where a State agent was directly involved or implicated. The Ukraine’s ECHR obligations with respect to Crimea are perhaps even less clear. Ukraine may be obliged to uphold all its ECHR obligations with respect to Crimea, though it is perhaps more likely that it will only be obliged to uphold positive obligations under the Convention there. The exact scope and extent of these positive obligations remains unclear in the ECtHR’s jurisprudence, with the Court oscillating between demanding that the State do everything in its power to resolve a human rights complaint in some cases and engage in a minimum effort to resolve complaints in others. The uncertainty surrounding each State’s obligations with respect to Crimea is obviously deeply unsatisfactory for both the State and potential victims of human rights abuses. The Court can improve the situation by consistently testing whether spatial jurisdiction exists in these scenarios and assessing whether the presumption of jurisdiction is rebutted when a State’s de facto control is at issue. While the distribution of human rights responsibilities in Crimea is deeply uncertain, the annexation itself was relatively straightforward with one commentator describing the operation as “the smoothest invasion of modern times.”185 The relative ease with which Russia annexed Crimea is a stark contrast to the entrenched military conflict on-going in Eastern Ukraine. In early March 2014, Russian troops amassed along Ukraine’s eastern border.186 In April, pro-Russian separatists seized control of towns within the Donetsk and Luhansk regions and declared their independence.187 The Ukrainian military responded by driving the rebels out of the city of Slavyansk and encircling the de facto capital of Donetsk. The violence escalated throughout the summer months, most notably contributing to the shooting down of Malaysian Flight MH17.188 An Organisation for Security and Co-operation in Europe (hereinafter OSCE) monitored ceasefire signed in September was short-lived as the conflict
185 John Simpson, Russia’s Crimea Plan Detailed, Secret and Successful, BBC News, 19 March 2014 (Aug. 2, 2018), available at http://www.bbc.co.uk/news/world-europe-26644082. 186 Laura Smith-Spark et al., What Do We Know About Russia’s Troop Buildup on Ukraine’s Border?, CNN, 28 March 2014 (Aug. 2, 2018), available at http://edition.cnn.com/2014/03/28/world/europe/russia- ukraine-troop-buildup; Jon Swaine, Russian Troops May Be Massing to Invade Ukraine, Says White House, The Guardian, 23 March 2014 (Aug. 2, 2018), available at https://www.theguardian.com/ world/2014/mar/23/russian-troops-may-invade-ukraine-white-house. 187 For further context on the conflict see Reeves & Wallace 2015, at 365–372. 188 kashmira Gander, Malaysia Airlines Flight MH17 Crash: Nine Britons, 23 Americans and 80 Children’ Feared Dead After Boeing Passenger Jet Is “Shot Down” Near Ukraine-Russia Border, The Independent, 17 July 2014 (Aug. 2, 2018), available at http://www.independent.co.uk/news/world/europe/malaysia- airlines-plane-crash-boeing-jet-carrying-295-people-crashes-in-ukraine-9612882.html; Sabrina Tavernise et al., Jetliner Explodes over Ukraine; Struck by Missile, Officials Say, New York Times, 17 July 2014 (Aug. 2, 2018), available at http://www.nytimes.com/2014/07/18/world/europe/malaysian- airlines-plane-ukraine.html?_r=0. STUART WALLACE, CONALL MALLORY 43 continued into the autumn and winter.189 After a significant increase in violence at the turn of the year, a second ceasefire was signed in February 2015.190 There have been numerous military engagements and severe human rights violations since this ceasefire was signed. Unlike in Crimea, in Eastern Ukraine the Russian government has consistently refused to acknowledge that it is playing a role in the conflict.191 This section considers the human rights obligations that Ukraine and Russia owe to individuals within the eastern regions of the country.192 The factual profile of the violence in Eastern Ukraine makes the pursuit of enforceable human rights obligations more complex. Primarily this is because there are three main actors in the conflict: 1) pro-Russian rebels, purportedly in receipt of continuing support from the Russian Federation; 2) the Ukrainian armed forces and security services; 3) pro- Ukrainian volunteer groups. Thus, in addition to navigating the ECtHR’s inconsistent approach to jurisdiction, those alleging human rights abuses arising from the conflict will also be required to demonstrate that the perpetrator’s actions can be attributed to either the Ukrainian or Russian State.
3. Ukraine’s Responsibility for Human Rights
This section addresses both the questions of attribution and jurisdiction with regard to Ukraine’s human rights responsibilities. When addressing the issue of
189 Organization for Security and Co-operation in Europe, Protocol on the Results of Consultations of the Trilateral Contact Group, signed in Minsk, 5 September 2014 (Aug. 2, 2018), available at http://www. osce.org/home/123257. See also Organization for Security and Co-operation in Europe, Memorandum of 19 September 2014 Outlining the Parameters for the Implementation of Commitments of the Minsk Protocol of 5 September 2014, 19 September 2014 (Aug. 2, 2018), available at http://www. osce.org/home/123806. 190 Matthew Weaver & Alec Luhn, Ukraine Ceasefire Agreed at Belarus Talks, The Guardian, 12 February 2015 (Aug. 2, 2018), available at https://www.theguardian.com/world/2015/feb/12/ukraine-crisis-reports- emerge-of-agreement-in-minsk-talks; Minsk Agreement on Ukraine Crisis: Text in Full, The Telegraph, 12 February 2015 (Aug. 2, 2018), available at http://www.telegraph.co.uk/news/worldnews/europe/ ukraine/11408266/minsk-agreement-on-ukraine-crisis-text-in-full.html. 191 w hen asked in April 2014 whether there were Russian soldiers in Eastern Ukraine Vladimir Putin stated: “Nonsense. There are no Russian units in eastern Ukraine – no special services, no tactical advisors. All this is being done by the local residents, and the proof of that is the fact that those people have literally removed their masks.” President of Russia, Direct Line with Vladimir Putin, 17 April 2014 (Aug. 2, 2018), available at http://en.kremlin.ru/events/president/news/20796. A year later in April 2015 Putin reiterated this denial: “Finally, the question of whether Russian troops are present in Ukraine… I can tell you outright and unequivocally that there are no Russian troops in Ukraine.” President of Russia, Direct Line with Vladimir Putin, 16 April 2015 (Aug. 2, 2018), available at http://en.kremlin.ru/events/ president/news/49261. He has since qualified this by conceding that Russian military intelligence officers were operating on Ukrainian territory. Shaun Walker, Putin Admits Russian Military Presence in Ukraine for First Time, The Guardian, 17 December 2015 (Aug. 2, 2018), available at https://www. theguardian.com/world/2015/dec/17/vladimir-putin-admits-russian-military-presence-ukraine. 192 the regions under which pro-Russian rebels exercise influence are Donetsk and Luhansk. Rebels in both regions have defined themselves as “People’s Republics.” OHCHR Report June 2016, supra note 9, at 4–5. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 44 attribution in previous cases, the ECtHR has naturally looked to the definitions of State Responsibility found in public international law. This approach was recognised in the case of Behrami where the Court recalled that
the principles underlying the Convention cannot be interpreted and applied in a vacuum. It must also take into account relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine state responsibility in conformity and harmony with the governing principles of international law of which it forms part, although it must remain mindful of the Convention’s special character as a human rights treaty.193
The position is relatively straightforward with regard to attributing responsibility for actions conducted by Ukrainian military, police and security forces in Eastern Ukraine who are engaged in their “anti-terrorism” operation against pro-Russian groups.194 In such situations, these are State agents acting on behalf of their government, which gives rise to their responsibility under the Convention. The situation is less clear where the actions of armed groups not directly affiliated with either State are concerned. These are not individuals who make up the organs of the State, but instead those whose conduct may be directed or controlled by the State. This is dealt with under Article 8 of the Articles on State Responsibility which states
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.195
The requirements that an individual or group is operating on the “instructions,” following the “direction,” or under the “control” of the State, are to be read disjunctively.196 Thus attribution will arise if any one of these three factors is established. Within this rule the notions of instruction and direction are readily intelligible and arguably set quite a high standard for when action can be attributed to the State.197
193 Behrami v. France, supra note 19, para. 122. 194 ukraine Says Donetsk “Anti-Terror Operation” Under Way, BBC News, 16 April 2014 (Aug. 2, 2018), available at http://www.bbc.co.uk/news/world-europe-27035196. 195 draft Articles on State Responsibility, Crawford 2001, Art. 8. Article 4-11 of the Draft Articles of State Responsibility are now considered to reflect customary international law.See also Stocke v. Germany, supra note 61 which confirms this approach to the law. 196 Crawford 2001, at 48. 197 the intention of which is to identify “the existence of a real link between the person or group performing the act and the State machinery.” Crawford 2001, at 47. STUART WALLACE, CONALL MALLORY 45
As with the test for control over individuals or territory, the definition of control of an armed group is often seen as being less certain and thus more flexible. Nonetheless, while necessarily being dependent on the facts of each given allegation of abuse, a strong case could be made that Ukrainian volunteer battalions who commit human rights abuses could have their conduct attributed to the Ukrainian State. The OHCHR Special Mission to Ukraine has noted that the structure of the Ukrainian security operation aimed at regaining control of the eastern regions of Donetsk and Luhansk “involves the army, the military police (National Guard), the National Security Service (SBU) and volunteers’ battalions.”198 The presence of these volunteer battalions within the wider organisational arrangement of this operation denotes that the volunteers are most likely following the direction, or acting on the instructions, of the Ukrainian State so as to engage Article 8 of the Articles on State Responsibility.199 Despite the ease with which this attribution question may be resolved there remains a high degree of uncertainty over whether Ukraine exercises sufficient jurisdiction, as it is understood in Article 1 ECHR, over its eastern regions for its human rights obligations to apply. On analysis two possible interpretations emerge.
3.1. Scenario 1 – Ukraine Exercises Jurisdiction Throughout Its Territory The first interpretation of Ukraine’s human rights responsibilities is to follow the ECtHR’s basic presumption that the application of the Convention is “primarily territorial,” and thus Ukraine owes human rights obligations throughout its entire territory. This interpretation came to the fore in the Court’s jurisprudence following the 2001 case of Banković.200 In Banković, the Court relied heavily on public international law principles of State jurisdiction holding that the Convention’s application is “primarily territorial”201 and that jurisdiction would only arise extra-territorially in exceptional circumstances which were “subordinate to that State’s and other states’
198 Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 15 July 2014, 15 July 2014, at 3 (Aug. 2, 2018), available at http://www.ohchr. org/Documents/Countries/UA/Ukraine_Report_15July2014.pdf. 199 Crawford 2001, Art. 8. The Ukrainian position also falls squarely within the example provided in the following commentary on the Draft Articles of State Responsibility: “Most commonly, cases of this kind will arise where State organs supplement their own action by recruiting or instigating private persons or groups who act as ‘auxiliaries’ while remaining outside the official structure of theS tate. These include, for example, individuals or groups of private individuals who, though not specifically commissioned by the State and not forming part of its police or armed forces, are employed as auxiliaries or are sent as ‘volunteers’ to neighbouring countries, or who are instructed to carry out particular missions abroad.” Crawford 2001, at 47. 200 Banković and Others v. Belgium and Others, supra note 28, para. 59. 201 the Court went on to state that: “While international law does not exclude a state’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states.” Id. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 46 territorial competence.”202 This approach has been followed repeatedly by the ECtHR since.203 It simplifies the application of the Convention insofar as Eastern Ukraine is concerned, however – as demonstrated above – there is the possibility that Ukraine can rebut the presumption that it exercises sufficient control over some of its territory so as to limit its obligations. This is an avenue which Ukraine would be likely to take given the derogation which it filed in 2015 where it stated
In view of armed aggression of the Russian Federation against Ukraine involving both regular Armed Forces of the Russian Federation and illegal armed groups guided, controlled and financed by theR ussian Federation, an anti-terrorist operation is being conducted by the units of the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine and the Armed Forces of Ukraine since April 2014, on the territory of certain areas of the Donetsk and Luhansk oblasts of Ukraine. The anti-terrorist operation is a part of the inalienable right of Ukraine to individual self-defense against aggression according to Article 51 of the UN Charter. The Russian Federation, which actually occupies and exercises control over certain areas of the Donetsk and Luhansk oblasts, is fully responsible for respect for and protection of human rights in these territories under international humanitarian law and international human rights law.204
That argument would be strengthened when one looks at the factual circumstances in Eastern Ukraine as presented in the case of Lisnyy v. Ukraine and Russia, the first case considering the conflict to be resolved by the ECtHR. The application was brought against both Ukraine and Russia by three residents of the Donetsk and Luhansk regions whose homes had been either damaged or
202 Banković and Others v. Belgium and Others, supra note 28, para. 60. The Grand Chamber in Banković had relied on the following passage in the Soering case to make this statement: “Article 1 of the Convention, which provides that ‘the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I,’ sets a limit, notably territorial, on the reach of the Convention.” Soering v. the United Kingdom, Application No. 14038/88, Judgment, 7 July 1989, para. 86. It should be noted that this statement was made in a judgment of July 1989 and was not reiterated in the jurisprudence concerning Article 1 until the Banković case twelve years later, suggesting a high degree of selectivity in the Court’s use of its own principles. For instance, it was not mentioned in the most significant jurisdiction case heard in the interim Loizidou v. Turkey (Preliminary Objections), supra note 31. 203 See, for instance, Hirsi Jamaa v. Italy, supra note 28, para. 71, where the Court referred to jurisdiction as “essentially territorial.” Djokaba Lambi Longa v. the Netherlands, Application No. 33917/12, Decision, 9 October 2012, para. 69. Although the United Kingdom Defence Committee have questioned the presumption of territoriality in the application of the Convention, noting that “[m]ore recent cases, in particular Al-Skeini, have changed this position” – UK Armed Forces Personnel and the Legal Framework for Future Operations, supra note 117, para. 49. 204 ukrainian Government, Resolution of the Verkhovna Rada, supra note 5. STUART WALLACE, CONALL MALLORY 47 destroyed.205 In respect of Ukraine, the applicants complained that it was impossible to have several of their rights guaranteed because “all the State institutions in eastern Ukraine, including the courts, suspended their operations and were relocated to areas controlled by the Government of Ukraine.”206 Similar conditions are also noted in the subsequent judgment of Khlebik v. Ukraine, where the applicant’s appeal against a criminal conviction was delayed due to case files being located in an area which the Court noted was “not under the Ukrainian Government’s control.”207 This factual profile, combined with the derogation thatU kraine has filed with the Court, contribute to the picture that Ukrainian authorities no longer exercise control over some areas in the east of the country.208 As noted in the previous section, when questions about whether a State exercises de facto control over its territory arise, it is unclear which approach the Court will take when determining whether the operative parts of the Convention will continue to apply.209 Applying Assanidze, the Court would conduct a detailed examination of the prevailing legal and factual elements. Importantly it would look to the fact that Ukraine had extended the Convention throughout its territory – subject to the derogations; that the regions of Donetsk and Luhansk clearly have some separatist aspirations, and that there could be an argument made that the regions were now subject to the effective overall control of anotherS tate.210 On the last point, while the actions of pro-Russian rebels would still require the test of attribution to be resolved, there is sufficient evidence to suggest that these armed groups have at least some control over the territory. The OHCHR reports on Ukraine have noted that “[t]he self- proclaimed ‘Donetsk people’s republic’ and self-proclaimed ‘Luhansk people’s republic’ have undermined the human rights of the estimated 2.7 million people residing under
205 Lisnyy v. Ukraine and Russia, supra note 51, paras. 1–18. 206 Id. para. 19. 207 Khlebik v. Ukraine, Application No. 2945/16, Judgment (Section IV), 25 July 2017, para. 3. 208 t he Court declared the application in Lisnyy and Others v. Ukraine inadmissible as the applicants had not sufficiently substantiated this case. Interestingly, the Court did so while recognising that the applicants would naturally have faced real practical difficulties in establishing their case given the conflict – Id. para. 29. 209 Article 15 (derogation in time of emergency) of the Convention allows for Contracting Parties to derogate, in a limited manner, from their obligation to secure some rights under the Convention. It should be noted that a number of core rights are non-derogable. The following provisions are non- derogable: the right to life, except in the context of lawful acts of war; the prohibition of torture and inhuman or degrading treatment or punishment; the prohibition of slavery and servitude; the rule of “no punishment without law”; Article 1 (abolishing the death penalty in peacetime) of Protocol No. 6; Article 1 (abolishing the death penalty in all circumstances) of Protocol No. 13 and Article 4 (the right not to be tried or punished twice) of Protocol No. 7 to the Convention. For a more comprehensive discussion on derogations within the ECHR framework see Bart van der Sloot, Is All Fair in Love and War? An Analysis of the Case Law on Article 15 ECHR, 53(2) Military Law and Law of War Review 319 (2014). 210 Assanidze v. Georgia, supra note 55, paras. 140–142. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 48 their control” (emphasis added).211 The reports have reiterated the pro-Russian rebels’ exercise of control on several occasions.212 Specifically it has been noted that there is an “absence of effective control of the Government of Ukraine over considerable parts of the border with the Russian Federation (in certain areas of Donetsk and Luhansk regions).”213 By itself this could present a strong case that the Ukraine no longer exercises jurisdiction over some of the area, however, the question which arises is whether the ECtHR will follow this test from Assanidze or select a different path. As illustrated by Isayeva, where Russia had arguably lost control of areas of Chechnya, the Court is not always willing to engage with these issues.214 The contextual conditions in Chechnya during the Isayeva application bear striking similarities to the loss of control experienced by Ukraine in Donetsk and Luhansk. In both situations, the territorial State has resorted to armed force to displace an entrenched insurgency. It would be entirely possible for the ECtHR to follow the same approach it did in Isayeva and avoid conducting any inquiry into whether Ukraine has lost de facto control of parts of its territory, instead making a finding thatU kraine continued to owe Convention obligations within the conflict zones. This would, in turn, mean that Ukraine could be obliged to uphold positive obligations to investigate deaths,215 and positive obligations to protect the right to life of civilians within the relevant areas.216 It is notable that neither of these obligations will be covered under the Ukrainian derogation. If the Court were to conduct a detailed analysis and resolve that the Ukraine had lost its obligations in the areas under the de facto control of pro-Russian separatists, then the Court would most likely, in parallel, recognise Russia’s exercise of jurisdiction within the relevant areas. As noted above in Sargsyan v. Azerbaijan,217 the Court is very reluctant to recognise the existence of a vacuum of human rights protection, where no Contracting Party exercises jurisdiction over an area which under normal circumstances would receive Convention protection.
211 OHCHR Report June 2016, supra note 9, at 7. 212 t he Reports have noted that “the population living in the territories controlled by the armed groups has been effectively denied basic protection and deprived of basic human rights and freedoms.”Id . In 2014 a report noted that “[c]urrently, armed groups remain in control of about 100 kilometers of the Ukraine- Russian Federation border” – Office of theU nited Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 17 August 2014, 29 August 2014, at 5 (Aug. 2, 2018), available at http://www.ohchr.org/Documents/Countries/UA/UkraineReport28August2014.pdf. 213 Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 16 August to 15 November 2015, 9 December 2015, at 2 (Aug. 2, 2018), available at http://www.ohchr.org/Documents/Countries/UA/12thOHCHRreportUkraine.pdf. 214 Isayeva v. Russia, supra note 21. 215 Id. para. 224. 216 Id. para. 201. 217 Sargsyan v. Azerbaijan, supra note 69. STUART WALLACE, CONALL MALLORY 49
3.2. Scenario 2 – Ukraine Owes Only Positive Obligations in Eastern Ukraine An alternative possibility would be that Ukraine’s responsibility is limited to only positive obligations by virtue of its loss of de facto control over the areas in question. Such an approach would be akin to the ECtHR position in Ilaşcu and Catan, where Moldova’s obligations were limited in Transdniestria.218 While this is perhaps the most likely interpretation that the ECtHR could arrive at, there remains a high-level of uncertainty over which positive obligations Ukraine would need to fulfil. An example of where this question may arise relates to the downing of Malaysian Airlines Flight MH17.219 In July 2014, the commercial passenger airline was shot down over Eastern Ukraine killing all 283 passengers and 15 crew members. The mother of one of the German passengers has brought a case against Ukraine to the ECtHR for its failure to close the airspace above the conflict zone.220 Although it is largely accepted that the flight was shot down by pro-Russian rebels, Ukraine could still be held in violation of the positive obligation under Article 2 to protect life for failing to close its airspace.221 The question to be addressed would be whether this is one of the positive obligations which was applicable and what level of action would be required to fulfil the obligation. Following Ilaşcu, it is clear that a contracting State needs to make at least “a minimum effort” to protect individuals within de jure territory over which it has lost de facto control.222 This would suggest that the applicant could have some success before the Court, but, as explained above, only if Ukraine had been obligated to act through exercising its jurisdiction in the first place. In sum, there is a distinct lack of clarity with regards to what obligations are owed by Ukraine in its Eastern territories. Ukraine may be responsible for all obligations which it has not derogated from in respect of Donetsk and Luhansk, only positive obligations in respect of these rights, or no obligations at all. The uncertainty means
218 Ilaşcu and Others v. Moldova and Russia, supra note 25 and Catan and Others v. Moldova and Russia, supra note 58. 219 For one perspective on Ukraine’s human rights obligations in relation to this action see Daniela Copetti Cravo, Ukraine Liability for Violation of Human Rights in the Downing of Malaysian Airlines Flight MH17, 12 Brazilian Journal of International Law 728 (2015) (in Portuguese). 220 AFP, Mother of German MH17 Victim Takes Ukraine to Human Rights Court, The Telegraph, 30 November 2014 (Aug. 2, 2018), available at http://www.telegraph.co.uk/news/worldnews/europe/ukraine/11263486/ mother-of-german-mh17-victim-takes-ukraine-to-human-rights-court.html. The ECtHR confirmed it has received this communication in December 2014. The case, Ioppa v. Ukraine, Application No. 73776/14, has been given priority status. Ukraine: Flight MH17 Crash Victim’s Mother Lodges Court Complaint, Human Rights Europe, 1 December 2014 (Aug. 2, 2018), available at http://www.humanrightseurope. org/2014/12/ukraine-flight-mh17-crash-victims-mother-lodges-court-complaint/. 221 AFP, Mother of German MH17 Victim Takes Ukraine to Human Rights Court, supra note 220. A Joint Investigation Team established in response to the attack recently stated that it “is convinced that the BUK-TELAR that was used to down MH17, originates from the 53rd Anti Aircraft Missile brigade […], a unit of the Russian army from Kursk in the Russian Federation” (Aug. 2, 2018), available at https:// www.om.nl/onderwerpen/mh17-crash/@103196/update-criminal-0/. 222 Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 334. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 50 that the State is partially unaware, and thus able to plead ignorance, as to the range of rights it owes. Although the uncertainty affords the ECtHR with flexibility in interpreting particular levels of application to different factual circumstances, this approach sacrifices any meaningful legal certainty and thus States cannot adequately plan their actions with the awareness of what their precise obligations are. The uncertainty also means that individuals alleging breaches of the Convention will not be aware of which State owed them human rights obligations at the time of their injury. This unsatisfactory position, created by persistent ambiguity in the ECtHR’s jurisprudence, means that at present it is not until many years later when the ECtHR rules on the applications that the State and individuals can fully appreciate what rights were owed and by whom.
4. Russia’s Responsibility for Human Rights
Similar to Ukraine’s responsibility for its volunteer battalions, a question arises as to whether the actions of pro-Russian rebels can be attributed to the Russian State. This issue turns on the extent to which the State instructs, directs or controls the armed group.223 Given the persistent denial by Russian representatives of any involvement, it may be difficult to prove that the rebels are either instructed or directed by Russian authorities. Depending on which interpretation is followed,224 there may also be difficulty in establishing the more flexible condition of control.225 Three different interpretations of how “control” is to be understood in this context have been advanced in the literature. The first is that for attribution to be found, the relevant State would need to have “had effective control” of the operations which gave rise to the alleged violation.226 This interpretation arose in the Nicaragua case where the ICJ held that although the United States was supporting a non-State armed group known as the contras, it was not in effective control of “all operations launched… at every stage of the conflict.”227 This meant that any actions of the contras in breach of international human rights and international humanitarian law could not be attributed to the United States.228 Talmon notes that “unspecified
223 Crawford 2001, Art. 8. 224 salmon notes that “[t]he test of control of authorities and military forces of secessionist entities has become perhaps the most cited example of ‘the fragmentation of international law.” Talmon 2009, at 496. 225 Gibney has noted that “the Russian-Ukrainian rebel relationship seems vastly weaker than that which existed between the United States and the Contras or that between Serbia and Bosnian Serb allies.” Mark Gibney, The Downing of MH17: Russian Responsibility?, 15(1) Human Rights Law Review 169, 174 (2015). 226 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986 I.C.J. 54. This means that responsibility for conduct needs to be ascertained on a case by case basis. 227 Id. para. 106. 228 Id. STUART WALLACE, CONALL MALLORY 51 claims of ‘involvement’ or ‘direct participation’ in certain of the secessionist entity’s actions will not be enough to establish effective control over a particular activity or operation.”229 The high threshold of attribution imposed by this test has been debated by commentators,230 and it has subsequently been followed by international courts, including the ICJ Bosnian Genocide judgment.231 A more flexible interpretation was provided by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (hereinafter ICTY) in Tadić.232 Here the Court was not directly concerned with the issue of State responsibility. Instead it sought to establish whether Bosnian Serb units involved in the conflict were acting on behalf of the Serbia to internationalise a non-international armed conflict and thus bring with it culpability under Article 2 of the Fourth Geneva Convention. In coming to its decision, the Appeals Chamber noted that “[t]he degree of control may, however, vary according to the factual circumstances of each case.”233 The degree of control required “was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations.”234 The Appeals Chamber found in the affirmative thus applying the ICTY Statute concerning “grave breaches” of the Geneva Convention. On balance both the “effective control” and “overall control” tests set a relatively high standard for the attribution of conduct to a State for the actions of other persons or groups. Although Cassese correctly notes that the “overall control” test is more helpful in addressing “widespread trends in the practice of the world community,”235 it still may not be sufficiently flexible to allow for the attribution of responsibility for actions that have breached the ECHR in Ukraine. The Commentary on the Articles on State Responsibility notes that “[e]ach case will depend on its own facts, in particular those concerning the relationship between the instructions given or the direction
229 talmon 2009, at 503. 230 the test is described as “extraordinarily stringent” by Mark Gibney. Gibney 2015, at 170. Antonio Cassese also describes it as “a very exacting test.” Antonio Cassese, The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia, 18(4) European Journal of International Law 649, 653 (2007). Talmon notes that “it is still extremely difficult to establish the exercise of effective control by the outside power over individual operations or activities of the secessionist entity.” Talmon 2009, at 503. 231 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 143–47. 232 Prosecutor v. Tadić, IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999. 233 Id. para. 117. 234 Id. para. 145. 235 Cassese points specifically to the support State provide to military or paramilitary groups fighting abroad, the increase in State sponsored terrorism and the use of national military units as peace- keeping forces for international organisations. Cassese 2007, at 665–666. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 52 or control exercised and the specific conduct complained of.”236 Nonetheless, these particularly stringent tests generate significant difficulties in attributing conduct in the Ukrainian crisis, particularly concerning the actions of pro-Russian rebels. Although clearly cognisant of the wider approach in international law, the ECtHR has not set as high a threshold in its attempts to establish responsibility for the conduct of individuals or groups affiliated with a State. The Court has instead sought to cultivate a test where attribution is found when the individuals or groups are under the “decisive influence” of a Contracting Party to the ECHR.237 This test emanated largely from the Ilaşcu litigation discussed earlier.238 In Ilaşcu the ECtHR found that Russia’s “decisive influence” overT ransdniestrian separatists in the breakaway MRT was sufficient to establish the responsibility of the Russian State for their conduct. Specifically, the Court noted that the MRT
remains under the effective authority, or at the very least under the decisive influence, of theR ussian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation.239
In the more recent judgment of Catan, also considered above, the Court reiterated the element of dependence in the relationship between the MRT and Russia noting that “the MRT’s high level of dependency on Russian support provides a strong indication that Russia exercised effective control and decisive influence over the MRT administration.”240 Moreover, the ECtHR again noted that the MRT existed “only because of Russian military, economic and political support.”241 In Ivantoc, the Court further referred to Russia’s connection as “a close relationship with the cause of Russian military, economic and political support.”242
236 Crawford 2001, at 48. 237 talmon contends that the “overall control” and, as the ECtHR’s “effective overall control” tests “broaden the scope of State responsibility well beyond the fundamental principle governing the law of inter- national responsibility, which provides that a State is responsible only for its own conduct; that is to say the conduct of persons acting, on whatever basis, on its behalf.” Talmon 2009, at 517. 238 See supra Section 2. 239 Ilaşcu and Others v. Moldova and Russia, supra note 25, para. 392. 240 Catan and Others v. Moldova and Russia, supra note 58, para. 122. 241 Id. paras. 122 and 123. Koch notes that “Catan stands for the notion that the conduct of non- state actors can be imputed to a state when that state exercises decisive influence over the local government.” Koch 2016, at 183. Talmon refers to this test as one of “effective overall control” over territory of the secessionist entity, however he distinguishes it from the “effective control” test used by the ICJ instead noting that: “[t]he effective overall control of the outside power is used as a basis for equating the authorities of the secessionist entity with de facto State organs or ‘agents’ of the outside power for whose acts it may generally be held responsible.” Talmon 2009, at 509–510. 242 Ivantoc and Others v. Moldova and Russia, supra note 153, para. 118. STUART WALLACE, CONALL MALLORY 53
By applying these standards to the situation in Eastern Ukraine a case can be made that pro-Russian rebels are, at the very least, under the “decisive influence” of theR ussian Federation.243 This argument would primarily be grounded in the military support that the rebels appear to be receiving from the Russian Federation. In late 2014, NATO released satellite imagery which purported to show “Russian combat forces engaged in military operations inside the sovereign territory of Ukraine.”244 Senior NATO official Brigadier General Tak commented that NATO had “detected large quantities of advanced weapons, including air defence systems, artillery, tanks, and armoured personnel carriers being transferred to separatist forces in Eastern Ukraine.”245 NATO Commander Philip Breedlove further stated that the assistance being provided by the Russian State to the rebels is offered in a variety of ways noting that “[f]orces, money, support, supplies, weapons are flowing back and forth across this border completely at will.”246 The OSCE deployed a Special Monitoring Mission to Ukraine in March 2014.247 At one point that year, the mission reported the sighting of “540 men and women in military-style dress” crossing the border in both directions.248 By June 2016, the mission had reported 52 border crossing convoys between Russia and Ukraine.249 This is further supported by the OHCHR Special Mission to Ukraine which has noted that
243 the argument that they are acting under Russian direction, instructions or control may be more difficult to substantiate. Reeves and Wallace argue with regard to Russian involvement that “it is difficult to determine the full extent and scope of their control of the separatists, as the Russian- backed rebels are seemingly independent actors.” Reeves & Wallace 2015, at 382. 244 North Atlantic Treaty Organization, NATO Releases Satellite Imagery Showing Russian Combat Troops Inside Ukraine, 26 November 2014 (Aug. 2, 2018), available at http://www.nato.int/cps/en/natohq/ news_112193.htm. In discussing Russia’s approach, Remler notes that the Russian approach has been characterized as “hybrid warfare,” noting that “Russia’s campaign in Ukraine is characterized inter alia by deniable (or at any rate denied) military support for pro-Russian forces of ‘activists,’ including the (denied) deployment of combat troops among the local ‘activists,’ all aimed at disguising invasive warfare as civil unrest and civil war.” Philip Remler, Ukraine, Protracted Conflicts and the OSCE, 26(1) Security and Human Rights 88, 92 (2015). 245 he has further commented that “Russia is reinforcing and resupplying separatist forces in a blatant attempt to change the momentum of the fighting, which is currently favouring theU krainian military.” NATO Releases Satellite Imagery Showing Russian Combat Troops Inside Ukraine, supra note 244. 246 ewen MacAskill, Russian Tanks and Troops Crossing into Ukraine, Says Nato Commander, The Guardian, 12 November 2014 (Aug. 2, 2018), available at https://www.theguardian.com/world/2014/nov/12/ russian-tanks-troops-crossing-into-ukraine-nato-supreme-commander. 247 Organization for Security and Co-operation in Europe, Permanent Council Decision No. 1117, 21 March 2014 (Aug. 2, 2018), available at http://www.osce.org/pc/116747. 248 Organization for Security and Co-operation in Europe, Weekly Update from the OSCE Observer Mission at Russian Checkpoints Gukovo and Donetsk Based on Information as of 08:00 (Moscow time), 22 October 2014 (Aug. 2, 2018), available at http://www.osce.org/om/125776. 249 Organization for Security and Co-operation in Europe, Spot Report by OSCE Observer Mission at Russian Checkpoints of Gukovo and Donetsk: Fifty-Second Russian Convoy of 45 Vehicles Crossed into Ukraine and Returned Through Donetsk Border Crossing Point, 23 June 2016 (Aug. 2, 2018), available at http://www.osce.org/om/248341. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 54
[c]redible reports indicate a continuing flow of heavy weaponry and foreign fighters throughout the reporting period, including from theR ussian Federation, into areas of the Donetsk and Luhansk regions controlled by armed groups. This has sustained and enhanced the capacity of armed groups of the self-proclaimed “Donetsk People’s Republic” and “Luhansk People’s Republic” to resist Government armed forces and to launch new offensives in some areas, including around the Donetsk airport, Mariupol and Debaltseve.250
Specifically the Report notes that
[r]epresentatives of the “Donetsk People’s Republic” have recognised the presence within their armed groups of citizens of the Russian Federation, including from Chechnya and other republics of the North Caucasus.251
These military contributions, in the form of personnel and equipment, made by the Russian Federation to pro-Russian rebels in Luhansk and Donetsk present a strong case that the groups are under the “decisive influence” of theR ussian State for their actions to be attributable to it in litigation brought to the ECtHR. With attribution therefore possible, there are two possible scenarios under which Russia will be held to exercise jurisdiction.
4.1. Scenario 1 – Russia Exercises Spatial Jurisdiction over Eastern Ukraine As well as establishing a case for attribution, the preceding section has identified many of the characteristics which are considered in the test of “spatial jurisdiction.”252 In February 2018, Ukrainian authorities launched a new public policy which recognised that the areas in Donetsk and Luhansk not under Ukrainian control were subject to
250 Office of theU nited Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 1 December 2014 to 15 February 2015, 15 February 2015, at 3 (Feb. 15, 2015) (Aug. 2, 2018), available at http://www.ohchr.org/Documents/Countries/UA/9thOHCHRreportUkraine.pdf. 251 Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 15 June 2014, 15 June 2014, at 3 (Aug. 2, 2018), available at http://www.ohchr. org/Documents/Countries/UA/HRMMUReport15June2014.pdf. The report further notes at 4: “There are credible reports from different sources, including the SO CE Observer Mission, that hundreds of people in military-style clothing have been observed crossing the two border crossing points of Gukovo and Donetsk in both directions. The Ukrainian Government and some civic groups report the delivery of weapons from the Russian Federation to the eastern regions. On 19 September and 31 October, two further convoys were sent by the Russian Federation to territory under the control of the ‘Donetsk people’s republic’ and ‘Luhansk people’s republic.’ As on the previous occasions, the convoys crossed at the Izvaryne border crossing point without the authorisation of Ukraine, and were not inspected.” 252 t almon has noted how the ECtHR consideration on the issues of attribution and spatial control frequently overlap: “These two questions, however, are not always clearly kept apart as the Court seizes on the element of ‘control’ to establish both extraterritorial ‘jurisdiction’ and imputability and seems to derive the one from the other.” Talmon 2009, at 508. STUART WALLACE, CONALL MALLORY 55 temporary occupation by Russia.253 The statements by the OHCHR further indicate that Russian supported rebels exercise a high degree of control over the territories of Luhansk and Donetsk. The reports by the OSCE and NATO demonstrate that the separatist regions are somewhat reliant on Russian military support to exist. In previous cases before the ECtHR, there has been a tendency for the Court to recognise that support for a subordinate administration and control over territory are sufficient for a dual-finding of attribution and spatial jurisdiction.I n relation to the Turkish support for the TRNC in the above-mentioned Loizidou case, the Court noted that
[i]t is not necessary to determine whether a Contracting Party actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory, since even overall control of the area may engage the responsibility of the Contracting Party concerned.254
Later, the Court would reiterate this position in a further inter-state case between Cyprus and Turkey
Having effective overall control over Northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in Northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support.255
With this being the case, there is a concurrent argument to be made that through its military support of pro-Russian rebels, the Russian Federation exercises effective control of the relevant area and is responsible for any violations of the Convention committed within those areas.256 As mentioned in the preceding section, a finding that Russia exercises spatial jurisdiction over the areas controlled by rebels may open the gateway for the Court to absolve Ukraine of some Convention responsibilities within these areas.257 While a finding thatR ussia exercised spatial jurisdiction over Donetsk and Luhansk would simplify some of the questions around who must guarantee human rights protection within Eastern Ukraine, there are several compelling reasons to suspect
253 report on the Human Rights Situation in Ukraine – 16 November 2017 to 15 February 2018, supra note 12, at 28. 254 Loizidou v. Turkey (Merits), Application No. 15318/89, Judgment, 18 December 1996, para. 56. 255 Cyprus v. Turkey, supra note 35, para. 88. 256 Further evidence exists in the organisational structure of both the self-proclaimed Donetsk and Luhansk people’s Republics. Remler has noted that these administrations have received recognition by comparable separatist groups within the region including South Ossetia. He comments that “[t]he crisis in Ukraine has produced an enlarged group of unrecognized separatist polities in communion with one another.” Remler 2015, at 93. 257 See supra Section 2. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 56 that the ECtHR may not take such an approach. Firstly, the Court tends to avoid finding spatial jurisdiction during live conflicts. As discussed in the first section, the Court failed to even test for spatial jurisdiction in Iraq, both during the phase of active hostilities in Hassan,258 and while the United Kingdom was in belligerent occupation of the South-East of the country in Al-Skeini.259 Instead, the Court has appeared much more willing to find spatial jurisdiction in entrenched conflicts, when States have assumed control over regions for a prolonged period of time as illustrated in the Court’s jurisprudence arising from Northern Cyprus and Transdniestria.260 As an extension of this, a second reason why the ECtHR may be unlikely to find spatial jurisdiction is because of the practical implications this finding would have on other applications. If the Court concludes Russia is exercising spatial jurisdiction in one case, it will open Russia to liability for all violations of the Convention within that region. Judges at the Court have been reluctant to “open the floodgates” in this way in previous cases. In Loizidou, for instance, Judge Bernhardt’s separate opinion warned that the impact of the judgment would not be restricted to the applicant. Instead it would also concern the “thousands or hundreds of thousands of Greek Cypriots who have (or had) property in Northern Cyprus.”261 The same would follow from a finding that Russia exercises spatial jurisdiction in Eastern Ukraine. The complication of having to fulfil all rights and responsibilities under the Convention when spatial jurisdiction is exercised has been discussed earlier.262 A third reason why the ECtHR may not find that Russia is exercising “spatial jurisdiction” in Eastern Ukraine is how politically charged such a decision would be. Recognising that Russia was in control of Eastern Ukraine would be highly controversial and, although judgments should not be influenced by the potential responses of contracting States, it would almost certainly result in a backlash against the Court,263 and may even affect any peace talks aimed at finding a political settlement to the dispute.264 Referring again to the Loizidou judgment, White commented at the
258 Hassan v. United Kingdom, supra note 14. 259 Al-Skeini and Others v. United Kingdom, supra note 18. 260 Loizidou v. Turkey (Merits), supra note 254; Cyprus v. Turkey, supra note 35; Ilaşcu and Others v. Moldova and Russia, supra note 25; Catan and Others v. Moldova and Russia, supra note 58. 261 Loizidou v. Turkey (Merits), supra note 254 (Separate Opinion of Judge Bernhardt), para. 1. 262 See supra Section 2.2.2 “Is Upholding All Convention Rights in Crimea Feasible?” 263 the Russian Federation has a particularly tense relationship with the Court. This is explored below in the Observations section. See also Courtney Hillebrecht, The Rocky Relationship Between Russia and the European Court of Human Rights, Washington Post, 23 April 2014 (Aug. 2, 2018), available at https://www.washingtonpost.com/news/monkey-cage/wp/2014/04/23/the-rocky-relationship- between-russia-and-the-european-court-of-human-rights/. 264 t his was a further concern raised by Judge Jambrek in his dissenting opinion on the Loizidou merits. “Given that efforts are under way to arrive at a peaceful settlement of the Cyprus problem within UN, CE and other international bodies, a judgment of the European Court may appear as prejudicial.” Loizidou v. Turkey (Merits), supra note 254 (Separate Opinion Judge Jambrek), para. 7. STUART WALLACE, CONALL MALLORY 57 time that the finding was either very courageous, given the political context the ECtHR faced, or very unwise given the on-going nature of the dispute which was embedded in both historical and political disagreements.265 Rather than finding spatial jurisdiction, it is more likely that the ECtHR will determine that pro-Russian rebels exercise personal jurisdiction over the individuals in Eastern Ukraine. That approach, however, is also not free from difficulty.
4.2. Scenario 2 – Russia Exercises Personal Jurisdiction over Individuals Within Eastern Ukraine Personal jurisdiction, like spatial, is most commonly dependent on the exercise of de facto control – this time by a State agent over an individual as opposed to an area. The ECtHR’s lack of consistency in ascertaining de facto control is clear with regard to personal jurisdiction. Before discussing this approach, it is important to remember the critical distinction in the obligations owed by the State in exercising personal rather than spatial jurisdiction under the ECHR. While a State which exercises spatial jurisdiction is obligated to fulfil all the rights within the Convention, personal jurisdiction only requires the State to secure rights that are “relevant to the situation of that individual.”266 The Court has commented that “[i]n this sense, therefore, the Convention rights can be ‘divided and tailored.’”267 How this is to be interpreted is wholly unclear. As Miltner notes, the Court can now possibly “cherry pick” which rights are applicable in a given situation.268 This approach further suggests that the rights can be internally tailored so that some of the obligations within the rights will not need to be fulfilled. For instance, this may mean that a State only needs to fulfil the procedural components of the right to life, but not the substantive negative restrictions on taking life, or vice versa.269 The obscurity of this again leaves States with little guidance as to which rights and duties they owe when overseas. Beyond this initial ambiguity, this section offers analysis of three competing interpretations of how de facto control over individuals gives rise to personal jurisdiction, and how these interpretations may be applied in the context of violations committed by pro-Russian rebels during the conflict in Eastern Ukraine. As with spatial jurisdiction, these approaches are rife with internal contradictions and are
265 robin C.A. White, Tackling Political Disputes Through Individual Applications, 1 European Human Rights Law Review 61, 71 (1998). 266 Al-Skeini and Others v. United Kingdom, supra note 18, para. 137. 267 Id. 268 Miltner 2012, at 697. 269 Bearing in mind that in Al-Skeini the Court was not posed with the question of whether the right to life had been breached in the shooting of unarmed civilians, rather instead whether the right had been breached due to the failure to set-up an independent and effective investigation into the deaths. Al-Skeini and Others v. United Kingdom, supra note 18. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 58 often incompatible with one another. The result is a lack of clarity concerning when and where the Convention applies.
4.2.1. Pro-Russian Rebels Exercise Direct Control over Individuals Through Custody The first of these approaches suggests that de facto control will only give rise to a jurisdictional link where the victim has been brought within the custody of a State agent. There have been numerous reports of individuals being abducted, captured and detained against their will by pro-Russian rebels in Eastern Ukraine.270 One example is the capture of Nadiya Savchenko, a servicewoman in the Ukrainian Air Force, by pro- Russian separatists in Luhansk.271 She has applied to the ECtHR alleging breaches of Article 5, the right to liberty and security, and Article 6, the right to a fair trial within a reasonable time.272 A preliminary question that may arise in this case is whether Russia exercised jurisdiction over Ms Savchenko when she was captured in Ukraine, before she was transferred to the Voronezh region of the Russian Federation.273 The extent to which physical custody equates to control was addressed by the ECtHR in Al-Skeini where it was stated that
the Court’s case law demonstrates that, in certain circumstances, the use of force by a state’s agents operating outside its territory may bring the individual thereby brought under the control of the state’s authorities into the State’s Art. 1 jurisdiction. This principle has been applied where an individual is taken into the custody of state agents abroad.274
A critical deconstruction of this passage is necessary to understand the ECtHR’s approach. Although the core of the message here is clear, that jurisdiction arises through de facto control when an individual is within the custody of State agents, the statement is riddled with inconsistencies and potential qualifications. First, the ECtHR’s reference to the “use of force” is ambiguous. Typically, the term is used to
270 OHCHR Report June 2016, supra note 9, at 13–17. Amnesty International, Ukraine: Overwhelming New Evidence of Prisoners Being Tortured and Killed Amid Conflict, 25 May 2015 (Aug. 2, 2018), available at https://www.amnesty.org/en/latest/news/2015/05/ukraine-new-evidence-prisoners-tortured-and- killed-amid-conflict/; LilyH yde, Lost Souls from the Ukrainian War, Foreign Policy, 30 March 2016 (Aug. 2, 2018), available at http://foreignpolicy.com/2016/03/30/lost-souls-from-the-ukrainian-war-russia- prisoners-detainees-exchanges/; International Committee of the Red Cross, Ukraine: ICRC Facilitates Release and Transfer of Conflict-Related Detainees, 29 October 2015 (Aug. 2, 2018), available at https:// www.icrc.org/en/document/ukraine-icrc-facilitates-release-and-transfer-conflict-related-detainees. 271 OHCHR Report August 2014, supra note 212, at 11. 272 Savchenko v. Russia, Application No. 50171/14 (Aug. 2, 2018), available at http://hudoc.echr.coe.int/app/ conversion/pdf/?library=ECHR&id=003-5014897-6157176&filename=003-5014897-6157176.pdf. 273 OHCHR Report June 2016, supra note 9, at 22. 274 Al-Skeini and Others v. United Kingdom, supra note 18, para. 136. STUART WALLACE, CONALL MALLORY 59 describe the resort to military force by States,275 or the use of lethal and other forms of force by State agents in a human rights context.276 In this quote, the ECtHR uses it to describe custody and detention, which gives rise to questions over whether the ECtHR is implicitly excluding the use of deadly force from this basis of jurisdiction? This ambiguity is considered further below. Second, the ECtHR notes that jurisdiction does not arise in every instance involving “the use of force,” but only “in certain circumstances” and the use of force “may bring” an individual into Article 1 jurisdiction. The level of conditionality here is palpable and it leaves the ECtHR with a large amount of flexibility to extend jurisdiction on anad hoc basis. A third notable feature of the statement is the incomprehensible language of the clause’s dominant sentence, specifically the phrase “bring an individual thereby brought under the control of the state’s authorities.”277 This wording suggests that the use of force may not bring an individual within the State’s jurisdiction unless that individual is thereby brought under control. Thus, it is not clear exactly when jurisdiction would arise. This ambiguity falls at the precise moment when clarity is most needed.278 The uncertainty is only resolved when one looks further at the cases the ECtHR has used to justify this position.279 The Court notes that the rule has been applied where an individual is taken into the custody of agents abroad and cites four cases to support this proposition that custody equates to de facto control, however when the facts of those cases are examined some key differences emerge. For instance, the Court in Al-Skeini noted that jurisdiction arose in the case of Öcalan v. Turkey, because the Kurdish rebel leader, Abdullah Öcalan, was arrested at Nairobi International Airport in Kenya before being boarded onto a Turkish aircraft and forcibly returned to Turkish territory.280 In Al-Saadoon and Mufdhi, the applicants, who were suspected of killing a British soldier, were arrested and taken into UK custody at a military
275 Charter of the United Nations, Art. 2(4); Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations. 276 Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 2(1). 277 Al-Skeini and Others v. United Kingdom, supra note 18, para. 136. 278 this ambiguous statement has since been interpreted by the Inter-American Commission on Human Rights in Ameziane v. United States, where an individual had been apprehended in Pakistan and detained in various US military facilities. The Inter-American Commission on Human Rights implied that the instantaneous act of apprehending him was of itself decisive in creating the jurisdictional link and cited the aforementioned paragraph in Al-Skeini as authority. The Commission referred to the “exercise of physical power and control over the person in question” as “the decisive element” in finding jurisdiction.Ameziane v. United States, IACHR Report No. 17/12, Petition P-900-08, Admissibility (20 March 2012), para. 31. 279 Al-Skeini and Others v. United Kingdom, supra note 18, para. 136. 280 Öcalan v. Turkey (Merits), supra note 40. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 60 detention facility in Iraq.281 In Medvedyev, French commandos took control of a ship and its crew in international waters. The ECtHR held that French authorities had “exercised full and exclusive control over the [ship] and its crew” from the point of interception until the ship’s arrival in a French port.282 Finally, in Issa, it was alleged that Turkish soldiers had taken a group of shepherds into their custody in Northern Iraq, brought them to a nearby cave and executed them. Although the ECtHR ruled there was insufficient evidence to establish a jurisdictional link to the soldiers, had the facts been accepted, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them.283 By stating that these cases underpin the idea that de facto control equates to custody, the ECtHR is presenting a retrospective reinterpretation of its own rulings. In Al-Saadoon, for example, the ECtHR held that jurisdiction arose because the UK was exercising control “over premises” within which the applicants were located, i.e. the detention facility, and not individual persons.284 Similarly, in Medvedyev the jurisdictional link appears to arise from the de facto control that French commandos exercised over the applicants’ vessel, and not the applicants themselves.285 The selective re-evaluation is most evident with the Issa case. When the Grand Chamber considered the facts of this case in Al-Skeini, it read the case to mean that if it had been established that the victims were taken into custody, brought to a nearby cave and then executed, jurisdiction would have been established. Yet there is no mention of this approach whatsoever in Issa. Instead the ECtHR had considered whether Turkey could have been exercising spatial jurisdiction on a temporary basis, stating that “in the case under consideration what is crucial is whether the Turkish troops exercised effective control over the area where the killings took place.”286 Indeed, of the four cases that the Court relies on to establish this rule, only Öcalan is followed without being subjectively reinterpreted. Notwithstanding the awkward syntax deployed and the questionable inter- pretation of previous jurisprudence, there is a strong suggestion that the Court in Al-Skeini was attempting to establish that de facto control only gives rise to jurisdiction when an individual is brought within a State agent’s custody. In Savchenko’s case then, she would have fallen within Russian jurisdiction for the purposes of Article 1 from the moment that she was captured and brought under the rebel group’s physical control.
281 Al-Saadoon and Mufdhi v. United Kingdom, supra note 124. 282 Medvedyev v. France, supra note 113, para. 67. 283 Issa and Others v. Turkey, supra note 87. 284 Al-Saadoon and Mufdhi v. United Kingdom, supra note 124, para. 88. 285 Medvedyev v. France, supra note 113, para. 67. 286 Issa and Others v. Turkey, supra note 87, paras. 74–76. STUART WALLACE, CONALL MALLORY 61
4.2.2. Pro-Russian Rebels Exercise Control over Individuals Due to Their Location Despite this purported focus on the exercise of de facto control over individuals, the Court has also developed an approach which looks to the control a State exercises over spaces and locations rather than people.287 This interpretation is again illustrative of the ECtHR’s inconsistent attitude to the meaning of de facto control in personal jurisdiction. This approach will be relevant to the hundreds of cases involving soldiers and civilians who have been detained on either side of the conflict.288 One OHCHR report on the Human Rights Situation in Ukraine gives the account of a Ukrainian serviceman who was captured in August 2015 by four members from a battalion of the “Donetsk People’s Republic.”289 The serviceman was taken to a private house where he was beaten, threatened and tortured with electric shocks for a number of hours. Eventually he was transported to a military base in the centre of Makiivka.290 The question which arises from these facts is when did the serviceman fall within Russian jurisdiction and at what point did Russia become responsible for guaranteeing the protection of his human rights? Following the above approach of physical custody equating to de facto control and thus jurisdiction, the serviceman would have fallen into Russian jurisdiction from the moment of his capture. The ECtHR, however, has not always remained loyal to that position, instead leaning towards an approach where jurisdiction arises because of the control exercised over a location. The term “location” in this sense covers a multitude of small spatial areas including fixed premises like military facilities and prisons, vehicles and checkpoints. The distinctive characteristic is that the test looks at the location primarily, rather than the person. Given the general difficulties inherent in establishing clear lines of responsibility here, there is an obvious attraction toward such an approach. After all, locations are generally much easier to secure control over as they can be fortified, defended and a degree of permanence can be established over them. The problem is that such an interpretation is simply unworkable in a human rights framework as it fundamentally distinguishes between beneficiaries of human rights, and those who lie outside human rights protection, on the basis of inches and feet.291 Clearly a State will have
287 the terminology of the UK Courts in labelling this basis was to term it as “quasi-territorial” jurisdiction Rix J, R (on the application of Al-Skeini and Others) v. Secretary of State for Defence (the Redress Trust intervening) [2004] E.W.H.C. 2911 (Admin), para. 270. 288 russian Soldiers Detained in Ukraine Face Life Imprisonment – Lawyer, Ukraine Today, 26 August 2015 (Aug. 2, 2018), available at http://uatoday.tv/politics/russian-soldiers-detained-in-ukraine-face- life-imprisonment-lawyer-482047.html. 289 OHCHR Report June 2016, supra note 9, at 15. 290 Id. 291 Milanovic 2012, at 129. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 62 better control over a fortified military outpost, or prison, than they do on the streets while deployed abroad. Nonetheless, there is a compelling argument to say that, as in the example given, the level of control exercised over an individual is equal whether they are captured and brought to a military facility and tortured or captured and taken to a remote location off base where they are also tortured. In the example given, the question would be whether sufficient control was exercised over the private house where the serviceman was tortured to trigger his Convention rights. If the answer is no, then on the basis of this location-based approach he would not have been owed any obligations until he arrived at the military base. The ECtHR in Al-Skeini recognised the unsustainability of this approach and elected to establish a test of de facto control over the person stating that it
does not consider that jurisdiction in the above cases arose solely from the control exercised by the contracting state over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.292
Here the Court has strained to clarify that custody through the exercise of de facto control refers specifically to the exercise of power and control over the individual and not a place. Milanovic notes that the inclusion of the word “solely” here will leave the door open for future wider interpretations on a spatial basis and, as will be demonstrated, this is exactly what the Court has done subsequently.293 Despite taking these steps to clarify that personal jurisdiction arises through de facto control when an individual is taken into custody, the ECtHR almost immediately turned to the notion that personal jurisdiction held some form of spatial quality.294 On the same day that the Al-Skeini judgment was delivered, a Grand Chamber composed of exactly the same judges handed down the Al-Jedda judgment.295 This application concerned a violation of the right to liberty of an Iraqi civilian interned by British forces in Southern Iraq.296 The Court held that the individual was within UK jurisdiction because he was “within a detention facility in Basra City, controlled exclusively by British forces.”297 In this case, the Court derived a jurisdictional link from control over the facility, not from the physical control exercised over the individual. It was
292 Al-Skeini and Others v. United Kingdom, supra note 18, para. 136. 293 Milanovic 2012, at 128. 294 this approach was consistent with the Court’s ultimate finding of jurisdiction in Al-Skeini which, although purportedly being based on personal principles, held a spatial element in relation to the exercise of public powers. 295 Al-Jedda v. United Kingdom, supra note 125. 296 Id. paras. 9–15. 297 Id. para. 85. STUART WALLACE, CONALL MALLORY 63 also determinative that the control exercised was exclusive. Presumably the Court intended for it to be consequential that complete control over a facility resulted in direct control over a person, yet the lack of consistency is obvious. The case of Hirsi Jamaa v. Italy is another such example.298 This application concerned the interception and “push back” of a migrant vessel at sea by the Italian coastguard. The applicants had been taken from their skiff and placed on an Italian coastguard vessel before being returned to Libya. They alleged that their return violated the non-refoulement obligations in Article 3’s prohibition on torture, inhuman and degrading treatment or punishment. When examining whether the applicants fell within Italian jurisdiction while aboard the Italian vessel, the Court, citing Al-Skeini, referred to the need for “full and exclusive control over a prison or a ship” to give rise to a jurisdictional link.299 The Court in Al-Skeini had not specifically referred to the need for control over place or vehicle at all, in fact, as illustrated above, it stated quite the opposite.300 The ECtHR returned to the idea that control equates to the exercise of physical power over the individual in custody. In Hassan v. United Kingdom, mentioned above, the Court noted that
[f]ollowing his capture by British troops early in the morning of 23 April 2003, until he was admitted to Camp Bucca later that afternoon, Tarek Hassan was within the physical power and control of the United Kingdom soldiers and therefore fell within United Kingdom jurisdiction.301
This brings the discussion back full circle to the position where jurisdiction through force can be found, but only when direct physical control is exercised over an individual in custody. In the case of Jaloud, the Court appeared to stretch this location-based approach to de facto control even further. Jaloud concerned the death of an Iraqi civilian who was killed when Iraqi and Dutch soldiers fired upon his car as it approached a checkpoint in April 2004.302 The Court found jurisdiction on the basis that the Dutch forces exercised “authority and control over persons passing through the checkpoint.”303 Thus, the de facto control being exercised was primarily over a checkpoint rather
298 Hirsi Jamaa v. Italy, supra note 28. 299 Id. para. 73. 300 Al-Skeini and Others v. United Kingdom, supra note 18, para. 136. 301 Hassan v. United Kingdom, supra note 14, para. 76. 302 the applicants in this case argue that the firing of a bullet is a result of the authority and control which the Dutch forces in Iraq exercised over the victim at the relevant time. It was unclear whether the bullets which killed him were fired by the Iraqi or Dutch forces. 303 Jaloud v. Netherlands, supra note 36, para. 152. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 64 than the individuals in transit through the location.304 Aurel Sari suggests that the Court’s approach in Jaloud was to make a finding of jurisdiction for any individual within a Contracting Party’s “sphere of control.”305 He notes that this flexibility “may stretch the extra-territorial applicability of the ECHR to its breaking point.”306 Focusing specifically on theU krainian serviceman who was tortured off-base, there remains a degree of uncertainty as to how he would fall within Russian jurisdiction. Although jurisdiction is likely to be found based on the control exercised over him directly on capture, it may alternatively be found due to the control exercised over either the private house or military facility. Thus, a potential grey area arises between when he was captured and taken to the private house, which States may seek to exploit by arguing that they did not appreciate their obligations would extend in such circumstances.
4.2.3. Pro-Russian Rebels Exercise Control Through Instantaneous Acts The ECtHR has traditionally refused to recognise that jurisdiction can arise from instantaneous acts, i.e. that an individual falls within the jurisdiction of a State simply by virtue of having suffered a human rights violation at the hands of that State’s agents. That approach was established in the, now much maligned, Banković case.307 In this admissibility application, the ECtHR held that individuals who had been injured or killed in a NATO airstrike on a radio/TV station in Belgrade in 1999 fell outside the Respondent States’ jurisdiction for the purposes of Article 1. This is because the Federal Republic of Yugoslavia was not a Contracting Party to the treaty and the Convention only applied to European “legal space,” i.e. the territory of signatory States.308 Thus no jurisdictional link could be found between the victims and the State forces that had
304 A similar finding was made in the more recent Pisari case where Russia was found to exercise jurisdiction over a check-point in Moldova. The Court noted that Russia had exercised jurisdiction as the checkpoint was “manned and commanded by Russian soldiers” – Pisari v. Moldova and Russia, Application No. 42139/12, Decision (Section III), 21 April 2015, para. 33. 305 sari notes that “Jaloud suggest that a Contracting Party’s jurisdiction may be engaged when it deploys military assets to contribute to security and stability in a third country and brings individuals within its sphere of control, even without exercising direct control either over those individuals or their geographical surroundings.” Aurel Sari, Untangling Extra-Territorial Jurisdiction from International Responsibility in Jaloud v. Netherlands: Old Problem, New Solutions?, 53 Military Law and the Law of War Review 287, 301 (2014). 306 Id. at 314. 307 Banković and Others v. Belgium and Others, supra note 28. This case has been the subject of extensive academic critique. See, for instance, O’Boyle 2004, at 130; Joanne Williams, Al Skeini: A Flawed Interpretation of Banković, 23(4) Wisconsin International Law Journal 687 (2005); Stefka Kavaldjieva, Jurisdiction of the European Court of Human Rights: Exorbitance in Reverse?, 37(3) Georgetown Journal of International Law 507 (2006); Kerem Altiparmak, Banković: An Obstacle to the Application of the European Convention on Human Rights in Iraq?, 9(2) Journal of Conflict and Security Law 213 (2004). 308 Banković and Others v. Belgium and Others, supra note 28, para. 78. STUART WALLACE, CONALL MALLORY 65 conducted the attack.309 The Court expressly took the position in this case that a “cause and effect” approach to jurisdiction in Article 1 of the Convention was unsustainable.310 This decision was followed in Medvedyev where the Court referred to instantaneous acts equating to jurisdiction as an “excluded situation.”311 While some have argued that a cause and effect approach would be illogical,312 the alternative runs into considerable normative difficulties when addressing cases which involve the use of force against individuals. As the argument goes, whether the State kills a person with a missile or after they are detained, it is still exercising ultimate power and control over them. Drawing distinctions between such situations based on whether an individual is within physical custody or not would be arbitrary and, as expressed by Schaefer, “arguably morally grotesque.”313 One former ECtHR judge has described the distinction as creating a “ludicrous result.”314 Moreover, to avoid a jurisdictional link, the distinction creates a perverse incentive for States to shoot people, rather than attempting to capture and arrest them.315 In the Ukrainian context, there have been numerous instances where individuals have been killed or injured when outside the custody of rebel groups and away from a location controlled by those forces. The targeting of MH17 is perhaps the most profound example of this. In addition to the German mother who has brought a claim against Ukraine to the ECtHR following the death of her child in the incident, the families of a group of Australians killed on board the flight have also alleged that Russia violated the right to life of their family members before the ECtHR as it was Russian-backed separatists who are alleged to have launched the missile which
309 t his case can be directly contrasted with the “Brothers to the Rescue case” at the Inter-American Commission on Human Rights. Cuban military aircraft intercepted a civilian aircraft in international airspace and shot it down. When assessing jurisdiction, the Commission relied on a form of personal jurisdiction finding that the act of firing on the aircraft amounted to an exercise of authority over it: “the victims died as a consequence of direct actions taken by agents of the Cuban State in international airspace […] The Commission finds conclusive evidence that agents of the Cuban State, although outside their territory, placed the [civilian pilots] under their authority.” Armando Alejandre Jr., Carlos Costa, Mario de la Peña, and Pablo Morales v. Cuba, Report No. 86/99, Case 11.589 (29 September 1999), para. 25. 310 Banković and Others v. Belgium and Others, supra note 28, para. 73. 311 Medvedyev v. France, supra note 113, para. 64. 312 Lea Raible makes a case against the cause and effect approach noting that “saying that one can create obligations under the Convention by violating them is simply absurd.” Raible 2016, at 161. 313 Max Schaefer, Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction, 5 European Human Rights Law Review 566, 575 (2011); Milanovic 2012, at 129. 314 Loukis Loucaides, Determining the Extra-Territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic Case, 4 European Human Rights Law Review 391, 400 (2006). 315 d ominic McGoldrick, Extraterritorial Application of the International Covenant on Civil and Political Rights in Extraterritorial Application of Human Rights Treaties, supra note 24, at 41, 72; Milanović 2011, at 191; Ryan Goodman, The Power to Kill or Capture Enemy Combatants, 24(3) European Journal of International Law 819, 819–820 (2013). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 66 brought the aircraft down.316 If Russia is not considered to exercise spatial jurisdiction over the area in Eastern Ukraine where the airplane was targeted, then the families would need to demonstrate that Russia exercised personal jurisdiction over the individuals within the aircraft at the relevant time.317 In the years since the Banković case, the Court has found jurisdiction through de facto control on what can be described as an instantaneous basis on several occasions. The way the Court has done so, however, has only layered the confusion over what actions will give rise to jurisdiction. In the cases where jurisdiction has been recognised to arise in an instantaneous manner, that finding is often qualified by the existence of at least one other potentially determinative factual characteristic. A summary of the case law is illustrative of this approach.318 The earliest example of “conditional instantaneous” jurisdiction appeared in Pad.319 This application concerned the deaths of seven Iranian men at the hands of Turkish forces. The cause of death was disputed. The applicants alleged that the men had been captured in Iran near the Turkish border and had been taken into Turkey where they were executed.320 Although accepting responsibility for the deaths, Turkey asserted that its agents had instead killed the men on Turkish territory by discharging fire from a military helicopter. A Chamber of the ECtHR ruled that Turkey had exercised jurisdiction over the victims but did so without finding it necessary to consider whether the alleged violations had taken place in Turkey or Northern Iran. Instead it sidestepped this critical issue by determining that it was unnecessary to establish the exact location of the helicopter as Turkey had already admitted responsibility.321 The result is that although this admissibility decision establishes the possibility of an instantaneous approach to jurisdiction, at best it only sets a very weak precedent and adds little legal certainty to the area. The issue was again at the forefront of deliberations in two cases shortly following Pad. In the first case,Solomou v. Turkey,322 a group of Greek-Cypriot protestors entered the UN-monitored buffer zone between Cyprus and theTR NC. One of the protestors, Solomos Solomou, ran to the Turkish side of the buffer zone and attempted to climb
316 MH17 Crash: Victims’ Families Sue Putin and Russia, BBC News, 21 May 2016 (Aug. 2, 2018), available at http://www.bbc.co.uk/news/world-europe-36350520. 317 the irony that this presents the Court with an opportunity to analyse the Banković circumstances in the reverse is not lost on Mark Gibney who comments: “One wonders whether the same result would be reached in the reverse situation, that is, where soldiers on the ground are firing anti-aircraft weapons up into the sky aimed at a civilian aircraft flying overhead.” Gibney 2015, at 176. 318 McGoldrick 2004, at 72; Milanović 2011, at 173, 191; Lawson 2011, at 70. 319 Mansur Pad and Others v. Turkey, Application No. 60167/00, Decision (Section III), 28 June 2007. 320 Id. para. 8. 321 Id. para. 54. 322 Solomou and Others v. Turkey, Application No. 36832/97, Judgment (Section IV), 24 June 2008. STUART WALLACE, CONALL MALLORY 67 a pole where the Turkish flag was flying. Before he could reach the top of the pole he was shot and killed by Turkish forces. At the time of his death he was located on the territory of the TRNC and so within an area which the Court had previously stated was subject to Turkish spatial jurisdiction in Loizidou.323 Despite this, the wording of the Chamber judgment is very different. It stated that “the deceased was under the authority/and or effective control of the respondent State through its agents” (emphasis added), thus implying the exercise of personal rather than spatial jurisdiction.324 The Court went on to find that there had been a violation of his right to life.325 Again, the Court appears to have found jurisdiction here on an instantaneous basis with the act of shooting giving rise to the jurisdictional link. Nonetheless, it is once again conditional. On this occasion the added condition is that the individual was already within an area under the effective control ofT urkey. It would remain very easy for a judge to treat the location of Solomou at the time of his death as entirely determinative.326 The second case concerns events that occurred on the same day as Solomou’s death. In Andreou, the applicant had attended a vigil being held at the UN buffer zone.327 While on the territory of the Southern Republic of Cyprus Andreou was injured by a series of bullets fired indiscriminately fromT urkish armed forces and/ or Turkish-Cypriot uniformed personnel on the northern side of the ceasefire line. When considering the question of jurisdiction on this occasion, the Court came closer than ever to establishing an instantaneous notion of jurisdiction. It stated as the “direct and immediate cause” of the injury the applicant sustained was due to actions of the Turkish authorities, she fell within Turkish jurisdiction.328 While at first taking this expansive approach, the Court confused the issue by distinguishing the applicant from the victims in Banković. The Court stated that “[u]nlike the applicants in the Banković and Others case she was accordingly within
323 Loizidou v. Turkey (Preliminary Objections), supra note 31. 324 Solomou and Others v. Turkey, supra note 322, para. 51. 325 Id. para. 84. 326 i ndeed this is what happened when the case was considered in a UK High Court in 2015. R (Al-Saadoon and others) v. Secretary of State for Defence [2015] E.W.H.C. 715 (Admin), para. 92. 327 t he vigil was being held for the victim in the separate ECtHR case of Isaak. Isaak v. Turkey concerned the death of another Greek-Cypriot protester who had forced his way into the UN-monitored buffer zone between Southern Cyprus and the TRNC. There he was beaten to death by a group of Turkish and Turkish-Cypriot civilians and police officers. In assessing jurisdiction in this case the Court was able to establish that Turkish-Cypriot policemen had actively taken part in the beating which led to Isaak’s death. It subsequently held that, by virtue of these actions, Isaak had been under the “authority and/or effective control” of Turkey at the time of his death and, as such, fell within its jurisdiction for the purposes of Article 1 – Isaak and Others v. Turkey, Application No. 44587/98, Judgment (Section IV), 24 June 2008. 328 Andreou v. Turkey, supra note 113, para. 25. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 68 territory covered by the Convention.”329 The condition attached to this finding is therefore that instantaneous acts can give rise to jurisdiction on the territory of a Contracting Party to the Convention, but not outside it. Even with this heavy caveat, Rick Lawson has noted that it is difficult to maintain that the Andreou decision is faithful to Banković.330 Applying this standard to the Ukrainian crisis would mean that any individual killed by pro-Russian rebels would have fallen within the jurisdiction of the Russian Federation at the time of their injury – but only because Ukraine is a signatory to the Convention. If the approach is broadened to consider other extra- territorial military operations currently being conducted by Russia, Syrian civilians who have been injured or killed in airstrikes by Russian agents in Aleppo would not be deemed to be within Russian jurisdiction.331 The final two examples concern the conflict inI raq. The first,Al-Skeini and Others has been considered in detail above.332 Similar to the other cases addressed in this section it can also be perceived to be a conditional instantaneous act case given the circumstances in which some of the victims were killed. Of the six victims in this case, four were not within British custody when they were killed, thus eliminating the applicable de facto control test from interpretation 1. The first victim was killed while walking along a public street;333 the second during a raid on his brother-in-law’s home;334 the third by a stray bullet which entered her living room;335 the fourth was shot by a British soldier at a checkpoint while driving a minibus home from work.336 Despite not being within the custody of, or within a location controlled by, British forces, each of these victims were deemed to be within UK jurisdiction.337 The condition which accompanied the instantaneous jurisdiction in this case was that UK forces were exercising public powers in the region at the time, leading the
329 Andreou v. Turkey, supra note 113, para. 25. 330 Lawson 2011, at 70. 331 the Court in Al-Skeini closed off the “legal space” argument as a barrier to the application of Convention obligations outside of the territory of Contracting Parties to the Convention. It stated: “the importance of establishing the occupying state’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Art. 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States” – Al-Skeini and Others v. United Kingdom, supra note 18, para. 142; Emma Graham-Harrison, Russian Airstrikes in Syria Killed 2,000 Civilians in Six Months, The Guardian, 15 March 2016 (Aug. 2, 2018), available at https://www.theguardian.com/world/2016/mar/15/russian-airstrikes- in-syria-killed-2000-civilians-in-six-months. 332 See supra Section 1. 333 Al-Skeini and Others v. United Kingdom, supra note 18, paras. 34–38. 334 Id. paras. 39–42. 335 Id. paras. 43–46. 336 Id. paras. 47–54. 337 Id. paras. 149 and 150. STUART WALLACE, CONALL MALLORY 69
ECtHR to establish the “personal plus” jurisdiction referred to above.338 This condition, and the use of force which gave rise to control, were both necessary to the finding of jurisdiction. If public powers had not been exercised, then the individuals would have fallen outside the United Kingdom’s Article 1 jurisdiction. Likewise, it was only the fact that State agents had exercised de facto control over these individuals when they were shot and killed which brought them within the State’s jurisdiction at the relevant time. Although the United Kingdom exercised public powers over large swathes of Basrah, their obligations to those individuals only appeared to be triggered by the exercise of control over them. The second Iraq case is also mentioned above in relation to interpreting jurisdiction through de facto control over locations. Jaloud v. Netherlands stood as the clearest opportunity since Banković for the ECtHR to make a direct finding of jurisdiction based on the use of force in an instantaneous manner. As mentioned, the Court found jurisdiction on the basis that the Dutch forces exercised “authority and control over persons passing through the checkpoint.”339 Despite this finding, the applicant’s son was only brought within Dutch jurisdiction because he was shot while in transit through the checkpoint. Again, these two conditions, the control over the territory and the shooting of Azhar Jaloud, both appear to be critical to the finding.340 The dominant theme running through this body of case law is that although the Court will recognise that jurisdiction can arise instantaneously, it is not yet prepared to do so in an unconditional manner. Although these conditions appear to vary in significance, in almost all of the cases the finding of jurisdiction seems to be dependent on both the exercise of de facto control and at least one external factor. This inconsistency assists neither the State in determining the extent of its legal obligations, nor the families and victims of abuses who seek to hold the persecuting forces accountable. Raible accurately notes how every new judgment of the ECtHR “seems to either add another layer of confusion or line of case-law different from the rest.”341 In relation to personal jurisdiction more generally, the Court’s tendency has been to find the existence of a human rights obligation. Yet the way the Court rationalises the existence of jurisdiction is very inconsistent. This section outlined three diverging interpretations of when a State will exercise de facto control over an individual. The flexibility is broadly favourable towards the alleged victim of a human rights violation, however the uncertainty inherent in such a broad approach creates real practical difficulties for States in their efforts to delineate the extent of their human rights
338 See supra Section 2. 339 Jaloud v. Netherlands, supra note 36, para. 152. 340 rooney contends that the ECtHR adopted an attribution test to make a finding of jurisdiction in Jaloud. Jane Rooney, The Relationship Between Jurisdiction and Attribution After Jaloud v. Netherlands, 62(3) Netherlands International Law Review 407, 407 (2015). 341 raible 2016, at 161. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 70 obligations. When such obligations arise, States have little clarity over the extent of the obligations owed now that the Convention rights can be “divided and tailored.”
4.3. Conclusions as to Eastern Ukraine To conclude our analysis of the application of human rights law in Eastern Ukraine, the situation is as unclear as its parallel in Crimea. The ECtHR could determine that Ukraine’s obligations will extend throughout its entire territory, subject to the derogations which have been filed. Alternatively, the Court could undertake a detailed factual analysis of the situation in Eastern Ukraine and either limit, or remove, Ukrainian obligations on the basis of the loss of de facto control over territory there. The Court’s inconsistency in its previous jurisprudence on this issue makes it difficult to predict which approach it will take. Russia’s ECHR obligations will be dependent on the recognition that the rebels in Donetsk and Luhansk are under the “decisive influence” of the Russian State. If this is established, it may still be unlikely that Russia will be held to have exercised spatial jurisdiction over the areas in question. Instead it is more plausible that Russia will bear responsibility where rebels have exercised personal jurisdiction over individuals, through either taking them into custody, control over locations, or based on instantaneous acts. Although the personal jurisdiction approach is more likely to be established, the lack of clarity over which Convention obligations apply when such jurisdiction is found because of the potential division and tailoring of obligations, leaves another layer of ambiguity relating to what Convention rights apply.
Conclusion
We have explored the territorial and extra-territorial application of the ECHR in relation to the annexation of Crimea and the conflict inE astern Ukraine. Scratching beneath the surface of the jurisprudence of the ECtHR has revealed a bewildering degree of complexity and uncertainty as to the potential obligations of each State in these conflicts.T his section makes concluding observations about the practical implications of the Court’s chronically inconsistent approach to jurisdiction. The first observation speaks generally to the Court’s broad approach in applying the Convention and how this may be followed in relation to Ukraine. This was succinctly summarised by Judge Bonello in the Al-Skeini case. He said
Up until now, the Court has, in matters concerning the extra-territorial jurisdiction of contracting parties, spawned a number of “leading” judgments based on a need-to-decide basis, patchwork case law at best. Inevitably, the doctrines established seem to go too far to some, and not far enough to others.342
342 Al-Skeini and Others v. United Kingdom, supra note 18 (Separate Opinion of Judge Bonello), para. 115. Judge Bonello continues: “Principles settled in one judgment may appear more or less justifiable in themselves, but they then betray an awkward fit when measured against principles established in another.” STUART WALLACE, CONALL MALLORY 71
The Court does not appear to follow any underlying theoretical or principled approach to its findings of jurisdiction. Recognising this, several commentators and judges have attempted to articulate a coherent test for jurisdiction, but the Court is yet to follow any of these suggestions.343 With so many different threads, the most prudent way to predict which approach the Court may take in relation to the Ukrainian crisis is to identify the factors to which the ECtHR has accorded most weight. Of these factors, two will be particularly relevant for the Ukrainian crisis. The first overarching motivation is the Court’s desire to avoid a lacuna in the protection offered by the Convention. Whatever conclusion the ECtHR reaches concerning jurisdiction, whether Ukraine still retains jurisdiction or Russia is found to exercise jurisdiction, the ECtHR’s primary motivation will be to ensure that the populations of these areas have full access to their Convention rights. The second relevant overarching motivation which the Court is the avoidance of impunity. This is clearly expressed in the Issa case
Accountability in such situations stems from the fact that Art. 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory.344
This aspirational approach can explain much of the inconsistency which has developed over the Court’s recent jurisprudence. In many respects, although there had been ample jurisprudence which considered the Convention’s territorial and extra-territorial application previously, the topic was largely absent from academic
343 Judge Loukis Loucaides proposed a test of “authority” in the Assanidze case. The question he thought should be posed was “whether the person who claims to be within the ‘jurisdiction’ of a State, High Contracting Party to the Convention, in respect of a particular act can show that the act in question was the result of the exercise of authority by the State concerned.” Assanidze v. Georgia, supra note 55 (Separate Opinion of Judge Loucaides). In Al-Skeini Judge Rozakis suggested a structural reorganisation of the Al-Skeini framework. He proposed that there was no real distinction between effective control of an area and state agent authority and control. As a result, he suggested that the effective control of an area exception should form another sub-heading of the state agent authority and control exception. Al-Skeini and Others v. United Kingdom, supra note 18 (Separate Opinion of Judge Rozakis), para. 13. Judge Bonello suggested a test where jurisdiction arose whenever a state has the power to perform, or not to perform, any of the following five functions: “first, by not violating (through their agents) human rights; secondly, by having in place systems which prevent breaches of human rights; thirdly, by investigating complaints of human-rights abuses; fourthly, by scourging those of their agents who infringe human rights; and, finally, by compensating the victims of breaches of human rights.”Al-Skeini and Others v. United Kingdom, supra note 18 (Separate Opinion of Judge Bonello), para. 10. 344 Issa and Others v. Turkey, supra note 87, para. 71. The Court in Issa was echoing the Human Rights Committee in Lopez Burgos v. Uruguay where the Committee had stated: “In line with this, it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.” Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979, U.N. Doc. CCPR/C/OP/1, at 88 (1984), para. 12.3. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 72 dialogue until the Banković decision of 2001.345 Since 2001, there has been an explosion in jurisprudence and literature concerning the topic. The overarching trend has been towards establishing how States can be held accountable for human rights violations abroad rather than finding obstacles to the Convention’s application. As is evident in our section on instantaneous jurisdiction, apart from Banković, the Court has gradually expanded the scope of personal jurisdiction to encompass almost all situations which come before it. In cases emerging from Ukraine it would therefore be unsurprising for the Court to pursue this underlying motivation of preventing States escaping accountability when they commit human rights violations abroad, by extending its interpretation of personal jurisdiction further. Therefore, if Russia is not held to exercise spatial jurisdiction in Eastern Ukraine, the Court may yet find inventive ways to establish the exercise of personal jurisdiction by Russian agents. This brings us to our second observation which is a practical issue touched upon throughout the analysis. The lack of clarity in the Court’s approach means that neither victims and their families, nor Contracting Parties to the Convention, know precisely when jurisdiction will arise, or which rights could apply when it does. Following the ECtHR’s jurisprudence and subject to its derogation, Ukrainian responsibilities could extend throughout the entire territory of the State, including Crimea and Eastern Ukraine. Alternatively, Ukraine’s responsibilities may be limited to a currently undefined series of positive obligations. It is further possible that Ukraine owes no obligations to individuals within these areas at all. Russian responsibilities are equally unclear. Russia may exercise full spatial jurisdiction throughout Crimea or Eastern Ukraine, or both. With spatial jurisdiction Russia would be obligated to respect all rights within the Convention, including the additional Protocols which it is a party to. Alternatively, Russia may only exercise personal jurisdiction over individuals within Eastern Ukraine. In this scenario, Russia’s obligations would be “divided and tailored” to an as yet undefined list of rights which are relevant to the situation. This chaotic picture presents acute difficulties for those victims of rights abuses in holding the State accountable. Beyond the question of whether they were owed obligations at the relevant time is the question of which rights are applicable. Not only are there significant differences from full obligations, some positive obligations, and only rights applicable to the relevant situation, but as Ukraine and Russia are signatories to different Protocols, the finding of which State exercises jurisdiction on the whole will affect which rights can be applied. For instance, whileU kraine has ratified Protocol 13, which abolishes the death penalty in all circumstances,346 Russia is only a signatory to Protocol 6, which while abolishing the death penalty, still allows
345 Lush was one of the few commentators to engage with the issue – see Christopher Lush, The Territorial Application of the European Convention on Human Rights: Recent Case Law, 42(4) International & Com- parative Law Quarterly 897 (1993). 346 Council of Europe, Protocol 13 to the European Convention on Human Rights and Fundamental Freedoms on the Abolition of the Death Penalty in All Circumstances, 3 May 2002, E.T.S. 187. STUART WALLACE, CONALL MALLORY 73 for executions during times of war.347 The Court’s inconsistent approach to jurisdiction makes the application of this law unpredictable.348 Our final observation is that this unpredictability creates severe policy implications in the Ukrainian context, which may impact upon the Court’s relationship with either contracting State. Given that the Court has failed to clearly articulate rules for when the Convention will apply, there will be a degree of scepticism aimed at the Court by either State when it is adjudged to have exercised jurisdiction. For example, if Ukraine is found to be responsible for the full array of Convention rights in Crimea and Eastern Ukraine, minus those which they have adequately derogated from, it would be expected that the Court will have come to this conclusion after conducting a detailed analysis of the situation and noting Ukraine’s loss of de facto control. If the Court fails to take such an approach, as it did in relation to Russian control in Isayeva, it will naturally open itself to further justifiable accusations of inconsistency. A similar complaint could be made by Russia if, for instance, it is held to be in “spatial control” of Eastern Ukraine. The question which could be posed here is why the Court would subject Russia to the test for spatial jurisdiction given that it applied no such test to the British occupation of South-Eastern Iraq. Accusations of selectivity would also arise if, for instance, Russia is held responsible for violations of the right to life concerning the downing of MH17 through an instantaneous notion of personal jurisdiction where no such jurisdictional link was found for NATO States in Banković. Given Russia’s current strained relationship with the ECtHR, its response to any finding that it had breached Convention obligations inU kraine would be particularly significant.W hether justified or not, the most likely reaction by Russia would be to accuse the Court of politicisation and selectivity. Speaking after the Ilaşcu decision, President Vladimir Putin warned the Russian people that
our country is coming into collision with a politicisation of judicial decisions. We all know about the case of Ilascu, where the Russian Federation was accused of matters with which it has no connection whatsoever. This is a purely political decision, an undermining of trust in the judicial international system.349
Bill Bowring, expert on Russia and the ECtHR, noted before the UK House of Commons Foreign Affairs Committee in May 2007 that “Russia’s increasingly tense relationship with Strasbourg raises the question of whether Russia really wants to
347 Protocol 13 to the European Convention on Human Rights and Fundamental Freedoms on the Abolition of the Death Penalty in All Circumstances. 348 Brooke LJ who grappled with the Article 1 question in the British Court of Appeal hearing of Al-Skeini, noted that it is now time “to set rules which are readily intelligible,” Brooke LJ, R. (Al-Skeini) v. Secretary of State for Defence, supra note 85, para. 110. 349 Cited by Bill Bowring at House of Commons, Foreign Affairs Committee,I nquiry into Global Security: Russia, 8 May 2007 (Aug. 2, 2018), available at http://www.publications.parliament.uk/pa/cm200607/ cmselect/cmfaff/memo/495/ucm302.htm. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 74 remain a member.”350 The strain in the relationship is further evident in the Russian legislation passed in December 2015 allowing for the Russian Constitutional Court to review rulings of international human rights bodies, including the ECtHR, and declare them non-executable if they contravene the Russian Constitution.351 None of this is to say that the Court should alter its decisions on the basis of potential political responses from States. Instead, this observation demonstrates how the inconsistency of the Court’s decision-making process has the potential to exploit pre-existing tensions and allow for justifiable criticism of the Court.W ithout a stable approach, the Court risks losing credibility and States may be encouraged to exploit gaps in the weaknesses of the Court’s jurisprudence. The final comment to be made relates to the process the Court follows in finding jurisdiction. Within this exercise it is argued that that de facto control remains the most appropriate characteristic which a Court can use to ascertain whether an area or an individual is within the jurisdiction of a Contracting Party to the ECHR during periods of conflict. Applying this test means that Courts can look beyond complex legal questions and contentious political disputes to evaluate the precise situation on the ground and adjudicate effectively from that basis.Y et if the Court continues to apply this test inconsistently its merits can never truly be realised. The crisis in Ukraine has presented the ECtHR with an opportunity to stamp new authority on its approach to territorially and extra-territorially applying the Convention. It should seize this opportunity to develop a test which is readily intelligible by all parties.
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Goodman R. The Power to Kill or Capture Enemy Combatants, 24(3) European Journal of International Law 819 (2013). Grant T. Aggression Against Ukraine Territory, Responsibility, and International Law (New York: Palgrave Macmillan, 2015). Hakimi M. State Bystander Responsibility, 21(2) European Journal of International Law 341 (2010). Hays Parks W. Part IX of the ICRC Direct Participation in Hostilities Study: No Mandate, No Expertise, and Legally Incorrect, 42 New York University Journal of International Law and Politics 769 (2010). Kavaldjieva S. Jurisdiction of the European Court of Human Rights: Exorbitance in Reverse?, 37(3) Georgetown Journal of International Law 507 (2006). Kirchner S. Interim Measures in Inter-State Proceedings Before the European Court of Human Rights: Ukraine v. Russia, 3(1) University of Baltimore Journal of International Law 33 (2015). Koch J. The Efficacy and Impact of Interim Measures: Ukraine’s Inter-State Application Against Russia, 39(1) Boston College International and Comparative Law Review 163 (2016). Kohen M.G. Secession: International Law Perspectives (Cambridge: Cambridge University Press, 2006). Krieger H. A Conflict of Norms the Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study, 11(2) Journal of Conflict &S ecurity Law 265 (2006). Larsen K.M. Territorial Non-Application of the European Convention on Human Rights, 78 Nordic Journal of International Law 73 (2009). Lawson R. Really Out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the ECHR in Margins of Conflict: The ECHR and Transitions to and from Armed Conflict 57 (A. Buyse (ed.), Antwerp: Intersentia, 2011). Leach P. The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights, 6 European Human Rights Law Review 732 (2008). Loucaides L. Determining the Extra-Territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic Case, 4 European Human Rights Law Review 391 (2006). Loucaides L. Is the European Court of Human Rights Still a Principled Court of Human Rights After the Demopoulos Case?, 24(2) Leiden Journal of International Law 435 (2011). Lubell N. Human Rights Obligations in Military Occupation, 94(885) International Review of the Red Cross 317 (2012). Lush C. The Territorial Application of the European Convention on Human Rights: Recent Case Law, 42(4) International & Comparative Law Quarterly 897 (1993). Malanczuk P. Akehurst’s Modern Introduction to International Law (7th ed., New York: Routledge, 1997). STUART WALLACE, CONALL MALLORY 77
Mastorodimos K. The Utility and Limits of International Human Rights Law and International Humanitarian Law’s Parallel Applicability, 5 Review of International Law and Politics 123 (2009). McGoldrick D. Extraterritorial Application of the International Covenant on Civil and Political Rights in Extraterritorial Application of Human Rights Treaties 41 (F. Coomans & M.T. Kamminga (eds.), Antwerp: Intersentia, 2004). Milano E. Unlawful Territorial Situations in International Law – Reconciling Effectiveness, Legality and Legitimacy (Leiden: Brill, 2005). Milanovic M. & Papic T. As Bad as It Gets: The European Court of Human Rights’s “Behrami and Saramati” Decision and General International Law, 58(2) International & Comparative Law Quarterly 267 (2009). Milanovic M. Al-Skeini and Al-Jedda in Strasbourg, 23(1) European Journal of International Law 121 (2012). Milanovic M. Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford: Oxford University Press, 2011). Milanovic M. From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties, 8 Human Rights Law Review 411 (2008). Miltner B. Revisiting Extraterritoriality After Al-Skeini: The ECHR and Its Lessons, 33(4) Michigan Journal of International Law 693 (2012). Modirzadeh N.K. The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict, 86 International Law Student Series US Naval War Collection 349 (2010). Moor L. & Simpson B. Ghosts of Colonialism in the European Convention on Human Rights, 76(1) British Yearbook of International Law 121 (2005). Norris R. & Reiton P. The Suspension of Guarantees: A Comparative Analysis of the American Convention on Human Rights and the Constitutions of the States Parties, 30 American University Law Review 189 (1980). Oppenheim L. et al. Oppenheim’s International Law. Vol. 1: Peace. Parts 2–4 (Harlow: Longman, 1992). Raible L. The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should Be Read as Game Changers, 2 European Human Rights Law Review 161 (2016). Roth B. The Neglected Virtues of Bright Lines: International Law in the 2014 Ukraine Crises, 21(2) ILSA Journal of International & Comparative Law 317 (2014–2015). Ryngaert C. Clarifying the Extraterritorial Application of the European Convention on Human Rights, 28(74) Utrecht Journal of International and European Law 57 (2012). Sari A. Untangling Extra-Territorial Jurisdiction from International Responsibility in Jaloud v. Netherlands: Old Problem, New Solutions?, 53 Military Law and the Law of War Review 287 (2014). Schabas W. Synergy or Fragmentation? International Criminal Law and the European Convention on Human Rights, 9(3) Journal of International Criminal Justice 609 (2011). Scobbie I. Principle of Pragmatics – The Relationship Between Human Rights Law and the Law of Armed Conflict, 14(3) Journal of Conflict and Security Law 449 (2009). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 78
Shany Y. Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law, 7 Law & Ethics of Human Rights 47 (2013). Shaw M. International Law (Cambridge: Cambridge University Press, 2008). Sheeran S. Reconceptualizing States of Emergency Under International Human Rights Law: Theory, Legal Doctrine, and Politics, 34(3) Michigan Journal of International Law 491 (2013). Szydło M. Extra-Territorial Application of the European Convention on Human Rights After Al-Skeini and Al-Jedda, 12(1) International Criminal Law Review 271 (2012). Talmon S. The Responsibility of Outside Powers for Acts of Secessionist Entities, 58(3) International & Comparative Law Quarterly 493 (2009). Trilsch M. & Ruth A. Bankovic v. Belgium, 97 American Journal of International Law 168 (2003). Van der Sloot B. Is All Fair in Love and War? An Analysis of the Case Law on Article 15 ECHR, 53(2) Military Law and Law of War Review 319 (2014). Van der Wilt H. & Lyngdorf S. Procedural Obligations Under the European Convention on Human Rights: Useful Guidelines for the Assessment of “Unwillingness” and “Inability” in the Context of the Complementarity Principle, 9 International Criminal Law Review 39 (2009). Watkin K. Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98(1) American Journal of International Law 1 (2004). White R.C.A. Tackling Political Disputes Through Individual Applications, 1 European Human Rights Law Review 61 (1998). Wilde R. Legal “Black Hole”? Extraterritorial State Action and International Treaty Law on Civil and Political Rights, 26(3) Michigan Journal of International Law 739 (2005). Wilde R. The Extraterritorial Application of International Human Rights Law on Civil and Political Rights in Routledge Handbook of International Human Rights Law 635 (S. Sheeran & N. Rodley (eds.), Abingdon, UK: Routledge, 2013). Williams J. Al Skeini: A Flawed Interpretation of Banković, 23(4) Wisconsin International Law Journal 687 (2005).
Information about the authors
Stuart Wallace (Cambridge, United Kingdom) – Lecturer and Director of Studies in Law, Homerton College, University of Cambridge (K203 Cavendish Building, Homerton College, Hills Road, Cambridge, CB2 8PH, United Kingdom; e-mail: [email protected]).
Conall Mallory (Newcastle upon Tyne, United Kingdom) – Lecturer in Law, Newcastle University (Newcastle Law School, 21-24 Windsor Terrace, Newcastle University, NE1 7RU, United Kingdom; e-mail: [email protected]). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3
THE FREE ECONOMIC ZONE OF THE REPUBLIC OF CRIMEA AND THE FEDERAL CITY OF SEVASTOPOL
ELIZAVETA GROMOVA, South Ural State University (Chelyabinsk, Russia)
DOI: 10.17589/2309-8678-2018-6-3-79-99
Free economic zones have become an essential part of the world economy in recent history. The voluntary entry of the Peninsula of Crimea into the Russian Federation as one of its constituent regions, lead to the adoption of the social and economic development commitments of this region by our state. For this reason, one of the most important goals for authorities of the Russian Federation is to develop the social, economic, and other spheres of the society. The establishment of the free economic zone in the Republic of Crimea and the Federal City of Sevastopol became one of solutions to this problem. This article analyzes the issues of legislation on the free economic zone in the territories of the Republic of Crimea and the Federal City of Sevastopol and aims to find solutions of these issues. This research is based on the application of comparative, retrospective and formal juridical analysis of the legislation and research papers dedicated to questions of the free economic zones and other territories with a special legal regime for conducting entrepreneurial activity (territories of advanced social and economic development, the Free Port of Vladivostok, special economic zones in the Russian Federation). In particular, the norms of current legislation on goals and terms of creation of the free economic zone in the territories of the Republic of Crimea and the Federal City of Sevastopol, the management of the free economic zone and the implementation of entrepreneurial activities within its borders were analyzed. We conclude that it is necessary to improve the current legislation on the free economic zone in the territory of the Republic of Crimea and makes several suggestions for optimization its provisions. The results achieved can be used both in the lawmaking process and as a foundation for further researches.
Keywords: free economic zone; Republic of Crimea; Federal City of Sevastopol; special regime of entrepreneurial and other activity in the free economic zone; special legal regime of the free economic zone; special economic zone. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 80
Recommended citation: Elizaveta Gromova, The Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol, 6(3) Russian Law Journal 79–99 (2018).
Table of Contents
Introduction 1. The Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol: Reasons for Establishment 2. The Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol: Definition and Unique Features of the Special Legal Regime for Conducting Entrepreneurial Activity 3. Advantages of the Federal Law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol” 4. Problems of the Federal Law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol” 4.1. Unreasonably Prolonged Existence of the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol 4.2. Lack of Mechanisms of Compensations in Case of Possible Termination of the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol 4.3. Absence of a Private Sector in the Expert Council on the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol 4.4. Management System of the Free Economic Zone: Lack of Flexibility 4.5. Broad List of Accepted Entrepreneurial Activities in the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol 4.6. Difficulties in Determining of the Legal Nature of the Contract on the Condition of Conducting Activity in the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol Conclusion
Introduction
Free and special economic zones are known throughout the world as one of the most effective instruments aimed at attracting investments into the national economy. As has been stated in economic research papers, free and special economic ELIZAVETA GROMOVA 81 zones operate all over the world and have become an essential part of today’s world economy.1 According to statistics, special and free economic zones operate in more than 120 countries around the world. The role of special and free economic zones in the optimization of modern economy is constantly growing, especially in the context of the current financial and economic crisis. According to experts’ point of view, by 2020, free and special economic zones will account for 20 percent of the world’s commodity turnover.2 It is worth mentioning that experts believe that existing special and free economic zones in Russia have already had primary positive effects. These zones contribute to: attracting foreign and domestic investors in these projects and, in turn, investments in the regional economy; increasing employment; enhancing the region’s infrastructure and production capacity; and launching minor collaborative activities between companies inside and outside the free and special economic zone. According to S. Sosnovskikh, the creation of one workplace within the special economic zone leads to the creation of four to five workplaces outside the special economic zone. Investors predominantly pull employees from the local population, though they employ a small percentage of foreign staff.3 As a result, special and free economic zones in Russia have proved their usefulness and capacity to stabilize or even improve the current economic situation. In this regard, the voluntary entry of the Peninsula of Crimea into the Russian Federation as one of its constituent regions lead to the adoption of the social and economic development commitments of this region by our state. This is why one of the most important goals of authorities of the Russian Federation is to develop social and economic and other spheres of the local society of the Republic of Crimea. According to the Decree of the Government of the Russian Federation “On Approval of the Federal Target Program ‘Social and Economic Development of the Republic of Crimea and the Federal City of Sevastopol up to 2020,’”4 the Government of the Russian Federation is obliged to implement of a set of measures to integrate the regional economy of the
1 See Капустин В.Р. Свободные экономические зоны [Vladimir R. Kapustin, Free Economic Zones] 34 (Moscow: Laborotoriya knigi, 2009). 2 Ростенко А.О. Проблемы свободных экономических зон Крыма и пути их решения // Ученые записки Северо-Кавказской академии государственной службы. 2016. № 4. С. 275–279 [Aleksandr O. Rostenko, Problems of Free Economic Zones in the Republic of Crimea and the Federal City of Sevastopol, 4 Science Notes of the North-Caucasus Academy of Public Administration 275 (2016)]. 3 sergey Sosnovskikh, Industrial Clusters in Russia: The Development of Special Economic Zones and Industrial Parks, 3(2) Russian Journal of Economics 174 (2017). 4 Постановление Правительства Российской Федерации от 11 августа 2014 г. № 790 «Об утверждении федеральной целевой программы «Социально-экономическое развитие Республики Крым и г. Севастополя до 2020 года»», Собрание законодательства РФ, 2014, № 33, ст. 4595 [Decree of the Government of the Russian Federation No. 790 of 11 August 2014. On Approval of the Federal Target Program “Social and Economic Development of the Republic of Crimea and the Federal City of Sevastopol up to 2020,” Legislation Bulletin of the Russian Federation, 2014, No. 33, Art. 4595]. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 82
Peninsula of Crimea in to the national economy of the Russian Federation, remove infrastructural restrictions, and ensure sustainable economic growth. One of the key aspects of this was an increase in the inflow of investments into the economy of the Republic of Crimea. One off the measures taken by the state for this purpose was the creation of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol in 2014 and the adoption of the Federal law of 29 November 2014 No. 377-FZ “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol.”5 According to Art. 1 of this act, Federal law regulates relations arising in connection with the establishment and operation of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol as well as special aspects of conducting entrepreneurial and other activities in boundaries of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol. Our study is based on the analysis of research papers and other literature devoted to the issues of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol and other territories with a special legal regime of conducting entrepreneurial activity: special economic zones in the Russian Federation, the Free Port of Vladivostok and territories of advanced social and economic development, and zones of territorial development. It is worth noting that current literature regarding the free economic zones in the Russian Federation, especially the zone of the Republic of Crimea and the federal City of Sevastopol, is very limited. There are only a few substantial research papers, which are either very outdated and only cover research on special aspects of Kaliningrad’s free economic zone, or are descriptive and do not provide any specific empirical evaluations with application to the free economic zone of the Republic of Crimea and the Federal City of Sevastopol concept.6 Today, there are only a few research papers dedicated to the legal problems of regulating the free economic zone in the Republic of Crimea and the Federal City of Sevastopol.7 Most current research papers dedicated to these zones consider the
5 Федеральный закон от 29 ноября 2014 г. № 377-ФЗ «О развитии Республики Крым и города федерального значения Севастополь и свободной экономической зоны в границах Республики Крым и города федерального значения Севастополь», Собрание законодательства РФ, 2014, № 32, ст. 1221 [Federal law No. 377-FZ of 29 November 2014. On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol, Legislation Bulletin of the Russian Federation, 2015, No. 51 (Part III), Art. 7350]. 6 See Sosnovskikh 2017. 7 See Комбарова Е.В. Деятельность органов управления свободной экономической зоной на территориях Республики Крым и города федерального значения Севастополя // Вестник Саратовской юридической академии. 2017. № 2(115). С. 67–71 [Elena V. Kombarova, Activity of the Governing Bodies of the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol, 2(115) Bulletin of the Saratov State Law Academy 67 (2017)]. ELIZAVETA GROMOVA 83 subject of the study from an economic point of view.8 Although this is important, they do not cover the aforementioned legal issues. For this reason, this paper is aimed at investigating issues of the current legislation on the free economic zone of the Republic of Crimea and the Federal City of Sevastopol and finding solutions to said issues. In doing so, the paper will fill the gap in the literature related to the legal aspects of the free economic zone of Crimea. The study has implications for policymakers not only in Russia but also in other developing countries. We begin with our introduction and methodology review, then consider some key aspects of the creation, definition, and special legal regime of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol. This review is followed by a description of the advantages and disadvantages of legislation on the free economic zone of the Republic of Crimea and the Federal City of Sevastopol. The last section concludes the paper and presents some recommendations for further research. This paper is based on legal, comparative, and retrospective analysis of the current federal legislation on the free economic zone of the Republic of Crimea and the Federal City of Sevastopol, other special economic zones in the Russian Federation, the Free Port of Vladivostok,9 territories of advanced social and economic development, and zones of territorial development.10 These acts are as follows: Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” Federal law of 22 July 2007 No. 116-FZ “On Special Economic Zones in the Russian Federation,”11 Federal law of 13 July 2015 No. 212-FZ “On the Free Port of Vladivostok,” Federal law of 29 December 2014 No. 473-FZ “On Territories of Advanced Economic and Social Development of the Russian Federation.”
8 E.g., Горячих М.В. Создание и развитие свободных экономических зон в Республике Крым и городе федерального значения Севастополь: анализ и мониторинг деятельности // Научно-технические записки Санкт-Петербургского государственного университета. Серия «Экономические науки». 2017. № 4. С. 72–81 [Mikhail V. Goryachikh, Creation and Development of Free Economic Zones in the Republic of Crimea and the Federal City of Sevastopol: Analysis and the Monitoring of Activity, 4 Science and Technical Notes of the Saint Petersburg State University. Economic Science Series 72 (2016)]. 9 Федеральный закон от 13 июля 2015 г. № 212-ФЗ «О свободном порте Владивосток», Собрание законодательства РФ, 2015, № 29 (ч. 1), ст. 4338 [Federal law No. 212-FZ of 13 July 2015. On the Free Port of Vladivostok, Legislation Bulletin of the Russian Federation, 2015, No. 29 (Part 1), Art. 4338]. 10 Федеральный закон от 29 декабря 2014 г. № 473-ФЗ «О территориях опережающего социально- экономического развития», Собрание законодательства РФ, 2015, № 1 (ч. 1), ст. 26 [Federal law No. 473-FZ of 29 December 2014. On the Territories of Advanced Social and Economic Development, Legislation Bulletin of the Russian Federation, 2015, No. 1 (Part 1), Art. 26]. 11 Федеральный закон от 22 июля 2005 г. № 116-ФЗ «Об особых экономических зонах в Российской Федерации», Собрание законодательства РФ, 2005, № 30 (ч. 2), ст. 3127 [Federal law No. 116-FZ of 22 July 2005. On Special Economic Zones in the Russian Federation, Legislation Bulletin of the Russian Federation, 2005, No. 30 (Part 2), Art. 3127]. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 84
1. The Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol: Reasons for Establishment
The concept of special and free economic zones is not novel. Historically, these zones were created to attract investments in both national and regional economies. Its early, simpler version can be traced back to economic districts, which were later extended to a free trade format or export-processing zones. Since the 1960s, many countries, particularly in Asia, have used zones of this type to break away from an import-substitution development strategy and promote export-driven economic growth.12 Establishment of the free economic zone in the Republic of Crimea and the Federal City of Sevastopol was directed at modernizing regional infrastructure, attracting foreign and domestic private investors, and at developing small and medium enterprises of the Republic of Crimea. According to the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” the purpose of its creation is to ensure sustainable social and economic development, to attract investment into the development of existing industries and create the new ones, to develop transport and other infrastructures, touristic and agriculture sectors, and medical resorts, and to improve the level and quality of life of citizens of the Republic of Crimea and create more favorable conditions for business and entrepreneurship (Art. 1). As the development of the economy of the Peninsula of Crimea is largely determined by its unique natural conditions, this primarily includes development of the touristic and recreational sphere, grain farming, fishing, poultry farming, vegetable growing, etc.T he Peninsula of Crimea has the potential to extract minerals, ferrous metallurgy, machine building and metalworking, shipbuilding, the chemical industry, the production of construction materials, the food industry, and the light industry. Unique geographic and climatic characteristics of the Peninsula of Crimea, as well as a rich historical and cultural heritage, make this region one of the most unique resort and tourist zones. Furthermore, the strategic position of the Republic in the Black Sea region gives the Peninsula of Crimea huge economic, political, and military significance.13 Despite the potential mentioned, the economy of the region has been virtually “drained” in recent years. Today, significant funds are being drawn from the federal
12 r . Kirk, Special Economic Zones and Economic Transformation: An Assessment of the Impact of the Special Economic Zones Program in Mozambique 34 (Mozambique: Speed, 2009); Thomas Farole, Special Economic Zones in Africa: Comparing Performance and Learning from Global Experiences 67 (Washington: World Bank, 2011); Stephen Creskoff & PeterW alkenhorst, Implications of WTO Disciplines for Special Economic Zones in Developing Countries 123 (Washington: World Bank, 2011). 13 Батюшкова О.А. Свободная экономическая зона в Крыму: планы и первые результаты // Инновационная наука. 2015. № 5. С. 43–47 [Olga A. Batyushkova, Free Economic Zone in the Crimea: Plans and First Results, 5 Innovational Science 43 (2015)]. ELIZAVETA GROMOVA 85 budget for investments in the development of the Peninsula of Crimea. As policy makers have stated, adoption of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol” will solve the most important issues of the infrastructure development on the Peninsula of Crimea. Its adoption also helps to attract investors and investments and promotes the development of small and medium-sized business enterprises of the Republic of Crimea and the Federal City of Sevastopol in the Russian Federation as a whole. In spite of the fact that the free economic zone of the Republic of Crimea and the Federal City of Sevastopol started functioning relatively recently, the total volume of capital investments in from agreements on the conditions of entrepreneurial and other activities in the free economic zone of the Republic of Crimea and the Federal City of Sevastopol has been estimated as more than 73.5 billion rubles.14 According to statistics offered by the Ministry ofE conomic Development of the Russian Federation, at the current moment, entries have been made in the registry of participants of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol on more than 1,347 participants15 planning more than 39.5 thousand workplaces. The figures show that tax revenue for the budget of the Republic of Crimea amounted to 2,422.3 million rubles.16
2. The Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol: Definition and Unique Features of the Special Legal Regime for Conducting Entrepreneurial Activity
According to Art. 8 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” the special economic zone of entrepreneurial and other activities in the free economic zone of the Republic of Crimea and the Federal City of Sevastopol is part of the territory of the Republic of Crimea and the Federal City of Sevastopol and the internal sea waters and the territorial sea waters of the Russian Federation adjoining the territories of the Republic of Crimea and the Federal City of Sevastopol with a special regime of business and other activities operating within its borders, and the customs procedure of the free customs zone is applied.
14 rostenko 2016. 15 Единый реестр участников свободной экономической зоны на территории Республики Крым и города федерального значения Севастополя [UnifiedR egister of Participants of the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol] (Aug. 5, 2018), available on http://economy.gov.ru/minec/activity/sections/reestrsez/2016190202. 16 Goryachikh 2016. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 86
The free economic zone of the Republic of Crimea and the Federal City of Sevastopol has been established for 25 years. The special legal regime of entrepreneurial and other activities in the free economic zone of the Republic of Crimea and the Federal City of Sevastopol is applied by its participants (residents) and includes the following: – special aspects of the implementation of urban development and land use when placing the objects necessary for the realization of investment projects by the participants of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol. For instance, land plots belonging to the state and municipal property and necessary for business activity by participants of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol according to the contract on the conditions of conducting such activity provided for them without public bargaining; – special taxation regime in accordance with the legislation of the Russian Federation on taxes and fees. According to the Federal law “On Amendments to the First and Second Parts of the Tax Code of the Russian Federation in Connection with the Adoption of the Federal Law ‘On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,’”17 such taxes and fees are as follows. For the legal entity as a participant of the free economic zone tax privileges for profits have been set at 0 percent for 10 years. Also legal entities – participants of the free economic zone are exempted from payment of property tax for the first 10 years, if this property was created or acquired for the purpose of conducting entrepreneurial and other activity according to the contract on conditions of conducting entrepreneurial activity in the free economic zone. Participant of the free economic zone also exempted from the land tax for the first 3 years.18 Moreover, rates for social insurance are reduced for participants of the free economic zone; – granting, in accordance with the procedure established by the budget legislation of the Russian Federation;19
17 Федеральный закон от 29 ноября 2014 г. № 379-ФЗ «О внесении изменений в первую и вторую части Налогового кодекса Российской Федерации в связи с принятием Федерального закона «О развитии Республики Крым и города федерального значения Севастополь и свободной экономической зоны Республики Крым и города федерального значения Севастополь»», Собрание законодательства РФ, 2014, № 48, ст. 6660 [Federal law No. 379-FZ of 29 November 2014. On Amendments to the First and Second Parts of the Tax Code of the Russian Federation in Connection with the Adoption of the Federal Law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” Legislation Bulletin of the Russian Federation, 2014, No. 48, Art. 6660]. 18 Налоговый кодекс Российской Федерации (часть вторая) от 5 августа 2000 г. № 117-ФЗ, Собрание законодательства РФ, 2000, № 32, ст. 3340 [Tax Code of the Russian Federation (Part Two) No. 117- FZ of 5 August 2000, Legislation Bulletin of the Russian Federation, 2000, No. 32, Art. 3340]. 19 Бюджетный кодекс Российской Федерации от 31 июля 1998 г. № 145-ФЗ, Собрание законода- тельства РФ, 1998, № 31, ст. 2823 [Budget Code of the Russian Federation No. 145-FZ of 31 July 1998, Legislation Bulletin of the Russian Federation, 1998, No. 31, Art. 2823]. ELIZAVETA GROMOVA 87
– subsidies for the reimbursement of the expenses of the participant of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol, including the costs of payment of customs duties, taxes, and charges in respect of goods (excluding excisable goods) imported for use in construction, equipment, and technical equipment of facilities necessary for the realization of investment projects by the participants of the special economic zone of the Republic of Crimea and the Federal City of Sevastopol (Art. 5 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol”). According to experts in this field, these huge benefits are intended to stimulate and develop business activity in the Peninsula of Crimea. The Government of the Russian Federation strives to create the conditions necessary to encourage the development of local small and medium-sized businesses and help them to adapt to Russian legislation, which is new for them. This level of state loyalty results from political and economic risks, including the imposition of sanctions, which demands a certain “compensation.”20 If an entrepreneur or legal entity decides to become a participant of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol and utilize all the benefits of the legal regime of entrepreneurial and other activities in the free economic zone of the Republic of Crimea and the Federal City of Sevastopol they have to enter a contract with conditions for conducting entrepreneurial activity with the federal government. The total volume of capital investments planned within the framework of the investment project and envisaging, in particular, the volume of capital investments in the first three years from the date of signing the contract on the conditions of conducting entrepreneurial activity in the free economic zone in the amount of as follows. If a participant of the free economic zone of the Republic of Crimea is a medium-sized or small enterprise, they must invest at least three million rubles; if a participant of the free economic zone is another sole entrepreneurial or business entity (but not medium and small enterprise), they must invest at least thirty million rubles.
3. Advantages of the Federal Law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol”
This act has many benefits for participants of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol. First, the free economic zone of the Republic of Crimea represents a cluster because of the group of companies
20 Goryachikh 2016. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 88 operating in its boundaries. The cluster in the free economic zone consists of participants of this zone and other individuals (sole entrepreneurs and legal entities). These entities conduct activities which complement each other. According to experts, policymakers should initially construct free economic zones as a cluster. This is necessary to improve industry competitiveness and innovation capacity in regions. Industrial cluster policies are a key and widely used tool for economic development in local and regional economic development planning. In M.E. Porter’s opinion, clusters are groups of geographically-proximate companies within a similar industry. The use of clusters makes it possible to enhance employment, diversify exports, and transfer technology and managerial know-how. Crucial elements of the cluster model include the provision of a collaborative and competitive environment, an appropriate geographical location and proximity to resources, related and supporting firms, and state regulations and strategic programs that facilitate innovation.21 The location of clusters should be prioritized according to factors such as cost reduction, profitability growth, and performance improvement, instead of simply choosing regions in dire economic straits. Strategic alliances, competition, and collaboration must be based on resource sharing and integration. The state and cluster companies should establish collaborative principles, which facilitate mutual efforts in innovation and R&D and, in turn, enhance the international competitiveness of companies or industries. Free economic zones are expected to develop high value-added products and services and brace themselves for market challenges.22 Secondly, in accordance with Art. 3 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” a special regime of the free economic zone was established in boundaries of the free economic zone. The legal regime of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol consists of the following provisions: – special aspects of regulation in the sphere of attracting foreign citizens to labor activity. These aspects are defined in the Federal law of 25 July 2002 No. 115-FZ “On Legal Status of Foreign Citizens in the Russian Federation”23 and refer to specifically preferential treatment of foreign citizens labor activity; – special aspects of entry in to the territory of the Republic of Crimea and the Federal City of Sevastopol and departure from these territories by foreign citizens. In accordance with the parts 2, 3 of Art. 5 of the Federal law “On the Development
21 Michael E. Porter, Clusters and the New Economics of Competition, 76(6) Harvard Business Review 77 (1998). 22 sosnovskikh 2017. 23 Федеральный закон от 25 июля 2002 г. № 115-ФЗ «О правовом положении иностранных граждан в Российской Федерации», Собрание законодательства РФ, 2002, № 25, ст. 1223 [Federal law No. 115-FZ of 22 July 2002. On Legal Status of Foreign Citizens in the Russian Federation, Legislation Bulletin of the Russian Federation, 2002, No. 25, Art. 1223]. ELIZAVETA GROMOVA 89 of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” there are special provisions for entry and departure for special categories of foreign citizens. These categories are representatives of business entities or investors, and those who were invited to discuss opportunities for collaboration in the Republic of Crimea and the Federal City of Sevastopol. For these categories of foreign citizens, a special simplified method of giving visas is applied. For example, foreign citizens can receive a visa at the state border of the Republic of Crimea. It is worth noting that this procedure the same for foreign citizens, coming to the Republic of Crimea as tourists; – special aspects of conducting business in the sphere of sea transport. Sea ports in boundaries of the Republic of Crimea and the Federal City of Sevastopol are recognized as free ports. This means that special customs procedure of the free custom zone are applied in the territory of the free port. Application of this procedure indicates that placing of several goods to the free custom zone implies releasing business entities from paying custom charges. In addition, the special legal regime of conducting entrepreneurial activity has some additional features. As we know the free economic zone of the Republic of Crimea and the Federal City of Sevastopol was created to ease serviced land and infrastructural complexity that may prevent investment inflow into regional or national economies by providing potential investors with access to prebuilt manufacturing sites, necessary utilities (e.g., electricity, water, telecommunications, and sewage), and long-term leases. This zone also facilitates the administrative procedures associated with business registration, license acquisition, and access to key services, such as utilities and construction. They provide so-called “single-window” or “one-stop” services, meaning that their management takes full responsibility for coordinating all administrative procedures. Lastly, an essential component of the administrative services provided by zones is customs administration, which is commonly offered with fiscal incentives, with a customs officer inside or at the gate of the zone to perform customs clearance to speed up import and export operations.24 And finally, it is necessary to note that the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol” provides the norm which regulates contracts covering the conditions of conducting entrepreneurial activity. For instance, Federal law “On the Free Economic Zone of the Region of Kaliningrad” and Federal law “On Zones of Territorial Development” do not have such a provision. Meanwhile, using a contract has a lot of benefits. In modern conditions, the significance of these agreements and contracts on operating conditions for economic entities and the state is difficult to exaggerate.
24 sosnovskikh 2017. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 90
The use of the contract as a regulator of relations between the participant of the special economic zone and authorized body contributes to the emergence and development of partnership relations. At the same time, a private partner acting under the contract as a counterparty is given the opportunity to agree on the conditions of conducting business, and to require the state to perform its duties, as well as to carry out entrepreneurial activity with conditions of special preferential treatment.25 In this regard, it is appropriate to note the point of view of V. Laptev justifying the importance of the contractual form, the use of which makes it possible to appropriately take into account the interests of various parts of the economic system.26 Furthermore, according to V. Kvanina, it is necessary both to attract interest of private investors by establishing some benefits and preferences, and to negotiate with them all conditions for cooperation to obtain a positive economic result. Private investors need to know in advance about all possible adverse consequences that may arise in the process of agreements.27 In comparison, legislation on some territories with a special legal regime of conducting entrepreneurial and other activities enables agreement of conducting entrepreneurial activity between authorized bodies and business entities (future participant of the special economic zone), or between management company and business entity. These agreements are conducted within the boundaries of the special economic zone in the Russian Federation (Art. 12), the Free Port of Vladivostok (Art. 11), and territories of advanced social and economic development (Art. 13).
4. Problems of the Federal Law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol”
There are several problems that authorities of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol face. First, there are some essential social and economic problems. As regional authorities have stated, there is a shortage of affordable housing in the Peninsula of Crimea and the Federal City of
25 Громова Е.А. Соглашение об осуществлении технико-внедренческой деятельности в особых экономических зонах [Elizaveta A. Gromova, Agreement on the Implementation of Technical and Innovative Activities in Special Economic Zones] 39 (Moscow: Yustitsinform, 2016). 26 Лаптев В.В. Предпринимательское право и реальный сектор экономики [Vladimir V. Laptev, Business Law and the Real Sector of Economics] 120 (Moscow: Infotropik Media, 2010). 27 Кванина В.В. Соглашение об осуществлении деятельности на территории опережающего соци- ально-экономического развития: проблемы отраслевой и содержательной определимости // Экономика. Предпринимательство. Окружающая среда. 2016. № 65. С. 88–91 [Valentina V. Kvanina, Agreement on Conducting Business Activity in the Boundaries of the Territories of Advanced Social and Economic Development: Problems of Branch and Content Definability, 65 Economics. Environment. Entrepreneurship 88 (2016)]. ELIZAVETA GROMOVA 91
Sevastopol, which, in turn, discourages the arrival of new economic participants. Also, there is the issue of a shortage of infrastructure connected with system of transport and energy power. Furthermore, according to expert opinion, unsatisfactory coverage and low technical parameters of roadways and the low level of competitiveness of sea ports also has implications on the development of the free economic zone. These factors require significant modernization and substantial costs.28 Secondly, there are a wide range of problems which are directly connected to the quality of provisions of the current legislation on free economic zones, especially in the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol.” Meanwhile, the quality of norms of the basic act which regulates the free economic zone of the Republic of Crimea and the Federal City of Sevastopol is extremely important. Regretfully, analysis of this act revealed some disadvantages of its provisions.
4.1. Unreasonably Prolonged Existence of the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol It is noteworthy that the timeframe for achieving the goal of establishing the free economic zone in the Republic of Crimea and the Federal City of Sevastopol is 25 years, as was mentioned previously. What is more, this period of time might be prolonged according to norms prescribed by the law on the free economic zone of the Republic of Crimea and the Federal City of Sevastopol. This period is considerably shorter than the timeframe of the so-called “analogues” (territories with special legal regime of conducting entrepreneurial activity: special economic zones in the Russian Federation, the Free Port of Vladivostok, territories of advanced social and economic development). For example, the timeframe of special economic zones in the Russian Federation is 49 years. In turn, the timeframe of the Free Port of Vladivostok is 70 years, and it is the same for territories of advanced social and economic development. It seems that all the above time periods are unreasonably prolonged. In author’s point of view, it seems that such a long period of the existence of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol does not ultimately contribute to the achievement of its goals. It is possible that the period of the existence of the free economic zone in the Republic of Crimea should be reduced, for example, to 10–15 years. This reduction would make it possible to achieve the goals of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol more effectively and efficiently. It seems that the same reduction could be applied to the timeframes of other territories with special legal regime of entrepreneurial activity: special economic zones, territories of advanced social and economic development, and the Free Port of Vladivostok.
28 Goryachikh 2016. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 92
4.2. Lack of Mechanisms of Compensations in Case of Possible Termination of the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol Is should be noted that, according to part 2 of Art. 9 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” the free economic zone can be terminated earlier if doing so is necessary to protect people’s life and health, nature, and cultural values, or to ensure the country’s defense and state security. Meanwhile, there is no norm in the current legislation disclosing the consequences of early termination of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol for its participants (business entities and sole entrepreneurs). It should be added that the current legislation on special economic zones in the Russian Federation, the Free Port of Vladivostok, and territories of advanced social and economic development does not contain certain rules on such a mechanism. At the same time, it seems that it is necessary to work out a mechanism to compensate the expenses of participants in the free economic zones. The aforementioned participants erected and invested into capital construction facilities, and, in addition, paid taxes throughout the existence of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol. One possible method of solving this problem may be suggesting the extended use of tax and customs privileges by the participants of the free economic zone as one of options for compensation. Another method would be to establish a certain amount of compensation for former participants of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol due to the volume of investments made by its participants.
4.3. Absence of a Private Sector in the Expert Council on the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol The management system of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol may raise doubts. According to some authors, the management of the free economic zones in foreign countries, along with other public authorities, is responsible for attracting investors and creating networks to promote such zones and, in turn, stimulate their social and economic growth. Additionally, most successful free economic zones use an anchor investor strategy where high-profile companies are invited to join at the initial stages of a zone’s creation and management, thereby signaling the free economic zone’s solidity to other potential investors and stressing this factor to provide them with a useful network of suppliers and partners.29 Commonly, with this strategy, authorities of the
29 Aradhna Aggarwal, Promoting Agglomeration Economies and Industrial Clustering Through Special Economic Zones: Evidence from India, 2(2) Journal of International Commerce, Economics and Policy 201 (2011); Antoine Basile & Dimitri Germidis, Investing in Free Export Processing Zones 23 (Paris: Development Centre of the Organisation for Economic Сo-operation and Development, 1984). ELIZAVETA GROMOVA 93 free economic zones strive to attract the private sector to the management process. On the contrary, in the Russian Federation, the Government has played a vital role in the creation and management of free economic zones.30 Therefore, as was mentioned previously, in accordance with part 1 of Art. 10 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” the free economic zone’s management bodies are the Ministry of Economic Development of the Republic of Crimea, the Expert Council on the Special Economic Zone of the Republic of Crimea and the Federal City of Sevastopol, and the highest executive bodies of the Republic of Crimea and the Federal City of Sevastopol. Attention is drawn to the fact that only experts from these government bodies are members of the Expert Council, the primary task of which is to coordinate the interaction between authorities, to organize the operation of the free economic zones of the Republic of Crimea and the Federal City of Sevastopol; so called “private sector” representatives – entrepreneurs and business entities, are not provided with the legal right to join them. At the same time, the participation of the private sector in the activities of the Expert Council would contribute to a more efficient and productive free economic zone of the Republic of Crimea and the Federal City of Sevastopol. According to E. Kombarova, it is necessary to include representatives of “private sector” in the Expert Council on the free economic zone. Such representatives could be, for example, members of the Chamber of Trade and Industry of the Russian Federation and its regions. This is due to the fact that such changes make it possible take both only public and private interests into account. It should be noted that, for instance, legislation on special economic zones in the Russian Federation provides for the creation of Supervisory Board, whose activities are also aimed at organizing the operation of special economic zones. At the same time, membership of such councils also includes participants (residents) of these zones – legal entities and individual entrepreneurs (part 4 of Art. 7 of the Federal law “On Special Economic Zones in the Russian Federation”) and other representatives of private sector. It is considered necessary to add the following content to the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol”: The Expert Council includes representatives of the Ministry of Economic Development of the Republic of Crimea, the highest executive bodies of the Republic of Crimea and the Federal City of Sevastopol, participants of the free economic zone, and other sole entrepreneurs and business entities.
30 Nonna Barkhatova, Russian Small Business, Authorities and the State, 52(4) Europe-Asia Studies 657 (2000). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 94
4.4. Management System of the Free Economic Zone: Lack of Flexibility As was stated previously, in accordance with the part 1 of Art. 10 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” the free economic zone management bodies are the Ministry of Economic Development of the Republic of Crimea, the Expert Council on the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol, and the highest executive bodies of the Republic of Crimea and the Federal City of Sevastopol. According to experts, this structure of management bodies is not effective enough.T his opinion is based on the absence of entities which can bridge the gap between government bodies and private sector. The system of management of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol differs from management of other territories with a special legal regime of entrepreneurial and other activities. In comparison, the management systems of the special economic zone in the Russian Federation, the Free Port of Vladivostok, and territories of advanced economic and social development include management companies in addition to the previously- mentioned government bodies. These companies are business entities. For example, the federal government created a public organization in the form of a joint-stock company which is responsible for establishing and developing their projects in different regions – JSC “Russian special economic zones.” This management company has some key features. It was not initiated to gain profits; instead, it was established to attract investors, prepare the necessary infrastructure for them, and supervise the functionality of this infrastructure and the project in general. Although it is a joint-stock company, 100% of the shares belong to the government. Management companies usually profit from investors’ payments to use the special economic zone infrastructure (e.g., electricity, water, sewage, and recycling). However, they keep all the profits gained from infrastructure rent in the regional budget, and they do not share them with the federal office. Management companies merely monitor regional special economic zones to ensure that they stick to the schedule for establishing and developing the project. They also act as an intermediary between regional special economic zones and the Ministry of Economic Development of the Russian Federation, which monitors the efficiency and development of these projects. In the early stages, regional management companies and SEZs are financed by the state budget, but they are expected to become self-sufficient in the long term.31 According to experts, presence of management companies in system of management of the free economic zone will allows to operate these zones more efficiently.32 This fact
31 sosnovskikh 2017. 32 See Глазунова И.В., Масалаб А.Ф. Особенности административно-правового статуса управляющей компании инновационного центра «Сколково» // Вестник Омского университета. Серия «Право». ELIZAVETA GROMOVA 95 can be explained by the nature of management companies as joint-stock companies. This fact makes them more mobile, flexible and easy to interact with.33 In the opinion of A. Belitskaya management companies of special economic zones form the basis of private public partnership and enhance investment activity in its territories.34
4.5. Broad List of Accepted Entrepreneurial Activities in the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol In addition to the afore-mentioned, the effectiveness of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol is not facilitated by parts 1, 2 of Art. 12 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol.” According to this Article, all kinds of entrepreneurial activities can be carried out within the boundaries of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol. The exceptions are as follows: activities in the sphere of subsoil use for purposes of location and production of minerals or development of deposits of the continental shelf of the Russian Federation. Therefore, according to this provision, conducting all kinds of entrepreneurial and other activities by participants of the free economic zone would contribute to the achievement of the purpose of the free economic zone’s creation. It is difficult to agree with this provision. The implementation of any type of entrepreneurial activity (apart from the afore-mentioned restricted activities), would not contribute to the achievement of the goal of the free economic zones of the Republic of Crimea and the Federal City of Sevastopol’s creating. However, it is important to remember that the participants of the free economic zone are allowed to apply all the benefits of a special legal regime for conducting entrepreneurial and other activities, including low taxes and rental fees. This is why if a participant conducts activity which does not contribute to the goal of the free economic zone’s creation, government spending connected with mentioned benefits will not acquit itself. For these reasons, we consider it necessary to develop a list of priority activities in the free economic zone. It seems that in the first instance this list should include activities contributing to the development of regional tourist and recreational potential, which is preconditioned by geographical and historical cultural factors.
2014. № 3. С. 46–50 [Irina V. Glazunova & Anna F. Masalab, Unique Features of the Legal Status of the Management Company of the Innovational Centre Skolkovo, 3 Bulletin of the Omsk University. Legal Series 46 (2014)]. 33 Gromova 2016, at 39. 34 Белицкая А.В. Правовой статус и правовая природа управляющих компаний территорий со специальным режимом осуществления предпринимательской и инвестиционной деятельности // Право и экономика. 2015. № 5. С. 10–15 [Anna V. Belitskaya, Legal Entity and Legal Nature of the Management Company in the Boundaries of Territories with a Special Legal Regime for Conducting Business Activity, 5 Law and Economics 10 (2015)]. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 96
This is generally correlated with one of the components of the goal of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol creating: the development of tourism and medical treatment resorts (Art. 2 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol”). In comparison, the legislation of the other territories with a special legal regime of entrepreneurial and other activities contains provisions about priority activities. For example, in the special economic zone in the Russian Federation, residents may conduct industrial activity, technical innovational activity, touristic recreational activity, and several types of activity undertaken in the port special economic zone (Art. 10 of the Federal law “On Special Economic Zones in the Russian Federation”).
4.6. Difficulties in Determining of the Legal Nature of the Contract on the Condition of Conducting Activity in the Free Economic Zone of the Republic of Crimea and the Federal City of Sevastopol Many problems are generated by the norms on the contract of conditions of activity in the free economic zone of the Republic of Crimea and the Federal City of Sevastopol. This contract is concluded between potential participants of the free economic zone of the Republic of Crimea and the Federal City of Sevastopol and the authorized state body. According to the contract on conditions of conducting activity in the free economic zone of the Republic of Crimea and the Federal City of Sevastopol, participants of the free economic zone are obliged to conduct entrepreneurial activity and make a certain amount of investments prescribed by the law. The authorized state body, in turn, is obliged to provide for the counterparty (participant of free economic zone) by the conditions set forth by the counterparty. Similar agreements are concluded for carrying out entrepreneurial and other activities in the special economic zone in the Russian Federation, the Free Port of Vladivostok, and the territories of priority socio-economic development by economic entity. This is why the legislation on all territories with special legal regime of entrepreneurial and other activity has the same provisions dedicated to contracts and agreements mentioned. However, in the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” there is no clear indication of the legal nature of these agreements. A similar situation has developed with the legislation on the other territories with special legal regime of entrepreneurial and other activities; federal acts on these territories also do not define the legal nature of given agreements. In entrepreneurial law there are a number of approaches to the definition of the legal nature of agreements on conducting entrepreneurial activity (contracts on the conditions of conducting entrepreneurial activity). For instance, some authors ELIZAVETA GROMOVA 97 believe these contracts to be public legal matters. Their position is based upon the participation of government body in the contract. This is why the relationship between counterparties is regulated mainly by the norms of public or administrative law.35 Other authors are convinced that the legal nature of these contracts is complex. According to this approach, provisions of contracts on conditions of entrepreneurial activity include both norms of administrative and civil law.36 Lastly, some groups of researchers consider these agreements private or civil legal matters.37 This approach could be explained by the fact that relationship between counterparties of contracts is based on their legal equality. The best interests of counterparties can be taken into account in a civil law contract on the basis of legal equality, autonomy of will, and property independence of its parties – principles on which civil law is based. There are a number of arguments given in favor of the civil law nature of contracts on business conditions, as well as agreements on the implementation of entrepreneurial activities in special economic zones in the Russian Federation, the Free Port of Vladivostok, and territories of advanced social and economic development in science. Firstly, each participant enters into a contractual relationship voluntarily. This primarily relates to the private participant (investor) of such contracts. No one is permitted to force potential participants to conclude this agreement. Consequently, the authorized body of state power is not entitled to compel a potential investor to conclude this agreement if the latter is not satisfied with the conditions. Thus, by concluding an agreement on the conditions of activity, potential counterparties jointly agree on its terms and conditions. This, in particular, Art. 13 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol” specifies, according to which the participant of the free economic zone states the investment conditions of the declaration (extent and timing of investment and more), on which they agree to conclude a contract. In the event that such conditions are not accepted by the counterparty, the participant of the free economic zone has the right to refuse to enter into this agreement.
35 Серебрякова Е.Е. Технико-внедренческие особые экономические зоны: правовые аспекты создания и функционирования: Дис. … канд. юрид. наук [Evgeniya E. Serebryakova, Technical and Development Special Economic Zones: Legal Basis of Creation and Functioning: Thesis for a Candidate Degree in Law Sciences] 173 (St. Petersburg, 2012). 36 Гасумянова А.В. Правовой режим предпринимательства в особых экономических зонах Рос- сийской Федерации [Anna V. Gasumyanova, Legal Regime of Business Activity in Special Economic Zones in the Russian Federation] 78 (Moscow: Statut, 2006). 37 See Благов Д.А. Правовое регулирование отношений в сфере осуществления предприни- мательской деятельности на территории особых экономических зон Российской Федерации: Дис. … канд. юрид. наук [Dmitry A. Blagov, Legal Regulation of Relations in the Sphere of Conducting Business Activity in Special Economic Zones in the Russian Federation: Thesis for a Candidate Degree in Law Sciences] 10 (Moscow, 2012). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 98
Secondly, each of the parties of the treaty has equal opportunity to change their conditions; according to part 27 of Art. 13 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol,” the conditions of the contract can be changed by the agreement of counterparties. Finally, the contract can be terminated by agreement between the parties or at the request of each party in the court in the event of a material breach of the agreement counterparty (Art. 13 of the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol”). To eliminate possible objections to the legal nature of the contract analyzed, the Federal law “On the Development of the Republic of Crimea and the Federal City of Sevastopol and the Free Economic Zone in the Territories of the Republic of Crimea and the Federal City of Sevastopol” should be supplemented by a norm which points to the civil law character of contracts on operating conditions. It is also necessary to provide the legislation on special economic zones in the Russian Federation, territories of advanced social and economic development, and the Free Port of Vladivostok with the same provision.
Conclusion
It should be noted that the legislation on the Republic of Crimea and the Federal City of Sevastopol is not free from shortcomings. Current legislation must be further improved if we want the free economic zone of the Republic of Crimea and the Federal City of Sevastopol to operate as well as expected. Nevertheless, there are no doubts that the prospects of development of the region of Crimea as a free economic zone make it possible to broaden the horizons for building a new type of innovational economy, attract investments to national economy, and enhance development of given region. The conclusions made in this research paper could be used in the lawmaking and legal practice in the sphere of application of legislation on the free economic zone of the Republic of Crimea and the Federal City of Sevastopol, special economic zones in the Russian Federation, the Free Port of Vladivostok, and territories of advanced social and economic development. Moreover, given results could be used as a foundation for the further research of free and special economic zones and other territories with a special legal regime of entrepreneurial and other activities.
References
Aggarwal A. Promoting Agglomeration Economies and Industrial Clustering Through Special Economic Zones: Evidence from India, 2(2) Journal of International Commerce, Economics and Policy 201 (2011). ELIZAVETA GROMOVA 99
Basile A. & Germidis D. Investing in Free Export Processing Zones (Paris: Development Centre of the Organisation for Economic Сo-operation and Development, 1984). Burke J. & Panina-Burke S. The Reunification of Crimea and the City of Sevastopol with the Russian Federation, 5(3) Russian Law Journal 29 (2017). Creskoff S. & Walkenhorst P. Implications of WTO Disciplines for Special Economic Zones in Developing Countries (Washington: World Bank, 2011). Farole T. Special Economic Zones in Africa: Comparing Performance and Learning from Global Experiences (Washington: World Bank, 2011). Kalinichenko P. Post-Crimean Twister: Russia, the EU and the Law of Sanctions, 5(3) Russian Law Journal 9 (2017). Porter M.E. Clusters and the New Economics of Competition, 76(6) Harvard Business Review 77 (1998). Sosnovskikh S. Industrial Clusters in Russia: The Development of Special Economic Zones and Industrial Parks, 3(2) Russian Journal of Economics 175 (2017).
Information about the author
Elizaveta Gromova (Chelyabinsk, Russia) – Associate Professor, Department of Business, Competition and Ecological Law, Institute of Law, South Ural State University (76 Lenina Av., Chelyabinsk, 454080, Russia; e-mail: lisavetagromova@ gmail.com). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3
PROTECTION OF “EXCLUSIVE” GROUPS ONLY – AN ESSENTIAL ELEMENT OF GENOCIDE
SANDRA FABIJANIĆ GAGRO, University of Rijeka (Rijeka, Croatia)
DOI: 10.17589/2309-8678-2018-6-3-100-124
The crime of genocide, as one of the most complex crimes ever to be examined and prosecuted, is often referred to as the “crime of crimes.” It is never the result of a tragic accident, but always a deliberate, conscious, and intentional act. It is never a single act, but a collection of acts committed by a number of people acting in consort. Several elements of genocide prescribed by the Convention on the Prevention and Punishment of the Crime of Genocide (1948) distinguish it from other core crimes. The first one is the intention to destroy a protected group – the very specific intention that brings into question the core existence of the group itself. The second element is the focus of the perpetrator’s intent on a particular group; his intent on destruction has to be directed against a national, ethnical, racial, or religious group. No other groups are included on that list. Given the significance to the protected group, this paper will focus on some important issues relating to the protected groups and their identifications, both in legal theory and jurisprudence of international courts. It will also cover some considerations on the exclusion of some other groups that are left unprotected from genocide.
Keywords: genocide; crime of crimes; ethnical group; national group; racial group; religious group.
Recommended citation: Sandra Fabijanić Gagro, Protection of “Exclusive” Groups Only – An Essential Element of Genocide, 6(3) Russian Law Journal 100–124 (2018).
Table of Contents
Introduction 1. Why Is Genocide Being Referred to as the “Crime of Crimes”? SANDRA FABIJANIĆ GAGRO 101
2. Protected Groups Within the Meaning of the Genocide Convention 2.1. Identification of the Protected Group 2.1.1. National Group 2.1.2. Ethnical Group 2.1.3. Racial Group 2.1.4. Religious Group 3. Considerations of Possible Extension of the List of Protected Groups Conclusion
The law must be stable, but it must not stand still. Roscoe Pound
Introduction
Genocide is often described as “the crime of crimes”; it represents the manifestation of atrocious violence and the conception of evil that deeply shocks the conscience of human kind. Although many examples of horrifying crimes have been revealed throughout history, the legal term of genocide has not been recognized until the middle of the 20th century. That was a time when the “crime without a name”1 was given the name “genocide,” a term coined by Raphael Lemkin.2 In its original form, genocide referred to the “destruction of a nation or of an ethnic group.”3 Although its meaning has somewhat changed through the future development, Lemkin’s word eventually conquered the world and became one of “the most powerful in any language.”4 In 1946, the term appeared as a crime under international law when the UN General Assembly, in expressing its condemnation of crimes committed during the World War II, adopted the resolution titled “The Crime of Genocide” and invited the UN member states to enact the necessary legislation for its prevention and punishment. The seriousness of the crime was clearly emphasized. When compared
1 “We are in the presence of a crime without a name,” Winston Churchill once said when referring to crimes committed by the Nazis during World War II. His speech inspired Raphael Lemkin to coin the term “genocide” from the ancient Greek word genos (which means race or clan) and the Latin suffix cide (which means killing). 2 For more information regarding Lemkin’s work see, e.g., Machteld Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court 403–404 (Antwerp: Intersentia, 2002); Sergey Sayapin, Raphael Lemkin: A Tribute, 20(4) European Journal of International Law 1157, 1157–1162 (2009). 3 raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, D.C.: Carnegie Endowment for International Peace, 1944) reprinted in New Introduction by Samantha Power 79 (Clark, N.J.: Lawbook Exchange, 2005). 4 david Luban, Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report, 7(1) Chicago Journal of International Law 1, 5 (2006). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 102 to homicide, which represents the denial of the right to life of an individual human being, genocide was marked as a more serious crime. It was recognized as contrary to the moral law, spirit, and aims of the United Nations.5 In its core, it represents a denial of the right of existence to entire human groups. But, as will be shown in this paper, the destruction of entire human groups in the contemporary understanding of genocide does not refer to just any group of people that could be identified as the target of genocide. Although the UN General Assembly Resolution refers to the destruction of racial, religious, political and other groups, the concept of genocide was tailored slightly differently in its further development. The Convention on the Prevention and Punishment of the Crime of Genocide6 (hereinafter Genocide Convention), representing one of the first international documents on human rights and humanitarian law provided by the UN, was adopted two years later. As confirmed by theI nternational Court of Justice (hereinafter ICJ), it was “manifestly adopted for a purely humanitarian and civilizing purpose… its object, on the one hand, is to safeguard the very existence of certain human groups and, on the other, to confirm and endorse the most elementary principles of morality.”7 Nowadays, its provisions are considered a part of the international customary law and jus cogens norms.8 Nevertheless, discussions about this crime have been on-going ever since. Its extent and magnitude, connected with the emotional idea of destroying entire human groups, makes genocide the “crime of crimes,” the most horrifying of all known crimes nowadays, and – as the case law of international criminal courts often confirms – one that is the most difficult to prove.
1. Why Is Genocide Being Referred to as the “Crime of Crimes”?
The widespread profane opinion favours the belief that genocide exists whenever a mass extermination, mass murder, or some other grave violations of human rights are accomplished. However, such a wide understanding of genocide is not correct in its entirety, even though sometimes it is quite incomprehensible that mass exterminations on some area are not recognized as genocide. On the other hand, a very similar situation in the same area or in some distant place could be
5 uN General Assembly, Resolution on the Crime of Genocide, 11 December 1946, A/RES/96(I). 6 uN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277. 7 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15, 23. 8 that opinion was confirmed in the case law of both ad hoc criminal tribunals: Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 495; Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgment, 14 December 1999, para. 60; Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence in the Trial Chamber, 6 December 1999, para. 46; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Judgment, 24 March 2016, para. 539. SANDRA FABIJANIĆ GAGRO 103 described as genocide. Despite some similarities, either regarding the way the crime had been committed or the number of victims, there is a line of distinction between genocide and some other crimes, especially crimes against humanity. What is then the difference between these crimes that some could be recognized as genocide, while others could not? What is that particular element that elevates genocide to the throne of the most serious crimes? The answer is hidden within the definition and concept of genocide.T he crime of genocide is divided into two elements. The first one is the commission of particular acts or actus reus. This represents a physical element of genocide, i.e. the commission of concrete acts directed against the group and described as: a) killing the members of the group; b) causing serious bodily or mental harm to the members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group, and e) forcibly transferring children of the group to another group.9 The second element of genocide is dolus specialis – the intent to destroy, in whole or in part, a protected group, as such. Looking carefully at the perpetrator’s intention and his ultimate goal not (just) to commit a murder but to exterminate a protected group in whole or in part, the conclusion on the existence of the “crime of crimes” could be easily draw. Dolus specialis is that exclusive, significant part of elements that makes genocide an exceptionally grave crime. Moreover, the challenge to determine dolus specialis before the international courts10 makes genocide a crime difficult to prove, albeit not impossible. As the apparent, significant element of the genocide definition is the object of its protection – a national, ethnical, racial, or religious group; no political, sexual, cultural, linguistic, or any other group is included on the list. The protection derived from the Genocide Convention refers only to these four groups, although the possible
9 Genocide Convention, Art. 2. 10 Genocide is incorporated into the statutes of the main international criminal courts: Art. 2 of the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY); Art. 4 of the International Criminal Tribunal for Rwanda (hereinafter ICTR); Art. 6 of the Rome Statute of the International Criminal Court (hereinafter ICC). Genocide has been thoroughly examined before ad hoc international criminal tribunals; their contribution to that field is without a doubt remarkable, sometimes even ground- breaking. The conclusions from some of these cases are going to be presented in this paper. Contrary to many cases of genocide prosecuted before the ad hoc tribunals, only one case before the ICC has been referred to as a crime of genocide so far, but the accused remains at large in spite of the arrest warrants issued against him. See Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05- 01/0 (see more at https://www.icc-cpi.int/darfur/albashir/Documents/albashirEng.pdf). Furthermore, although indisputably perpetrated by individuals, the involvement of the state as the real orchestrator of the crime and the existence of state responsibility for the genocide has also been analysed before the International Court of Justice and two judgments were delivered in: Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 43 and Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 2015 I.C.J. 3. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 104 inclusion of some others has been discussed during the drafting process. Both dolus specialis and actus reus are directed against a particular protected group and all elements must be met cumulatively. These are the elements that differentiate genocide from other serious crimes. For example, when compared to murder as part of a widespread or systematic attack directed against any civilian population (which could be defined as a crime against humanity), genocidal murder is not an “ordinary” murder. It is determined by two elements. The first one is manifested in a limitation on the victim’s side – while the victim of crime against humanity is any civilian population, the victim of genocide has to fulfil the condition of being a member of a protected group. The second element refers to the perpetrator’s special intention to destroy a protected group in whole or in part, as such. Therefore, if any mass murder is not aimed at individuals on the account of their belonging to a particular group, and if there is no existing intention to destroy that group, one cannot speak of genocide within the terms of the Genocide Convention. Although the magnitude of killings, or the number of victims, or the scale of extermination can be similar in both cases and indisputably indicate a serious breach on human rights, these crimes are not the same. Therefore, when genocide is in question, it is essential to prove that the perpetrator not only wanted to commit acts enumerated as actus reus of genocide with the special intention to bring destruction to a group, but more importantly that he was primarily focused on destruction of specific national, ethnical, racial or religious group in whole or in part, as such.
2. Protected Groups Within the Meaning of the Genocide Convention
The term “group” within the definition of genocide is quite narrowly determined by simple reference to the type of the protected group: national, ethnical, racial, and religious. Although that list provoked significant debate during the drafting process, no criteria have been provided for an easier identification of the group. As LeBlanc concluded, the drafters of the Genocide Convention “made no serious attempt to do so” mostly because “it is unlikely that acceptable definitions could have been agreed on.”11 As will be presented more thoroughly in this paper, finding the elements of some groups was not an easy task to achieve; in fact, debates about some groups have resulted in their exclusion from the list. Given the significance of the protected group as one of the essential elements required for the existence of genocide, this paper focuses on some important issues relating to the group itself. Knowing the facts from the drafting process of the Genocide Convention and bearing in mind the development of human rights
11 Lawrence J. LeBlanc, The United States and the Genocide Convention 60 (Durham: Duke University Press, 1991). SANDRA FABIJANIĆ GAGRO 105 in general, as well as the “explicit global dimension of genocide,”12 the following questions arise: does the enumeration of only four groups protected by the Genocide Convention make its protection too narrow and insufficiently effective? One could state that the protection from a crime that has such a horrifying impact on the existence of the human group itself should be inherent to all human groups, not only to those enumerated in the document. If all other elements are fulfilled, but a particular group of victims does not fall within the enumeration of the protected group, can one even talk about genocide? Although such a hypothetical situation is possible, it is not covered by the Genocide Convention. For example, the case of mass murders followed by the perpetrator’s intention to destroy an opponent political group or a group of women or homosexuals does not constitute genocide if the victims are not identified as the members of one of the protected groups. In accordance with the provisions of the Genocide Convention, such particular extermination is not genocide, regardless of how frightening and inhuman it might be. The inapplicability of the Genocide Convention in such situations, merely because the victims do not represent a “proper” group, could be recognized as one of the major flaws of the Convention.
2.1. Identification of the Protected Group When referring to the crime of genocide, one has to be very cautious not to lose the focus from the object of the genocidal plan; it is the destruction of the protected group. Although is perfectly clear even from the text of the Genocide Convention that the destruction of the group necessarily requires commission of prescribed acts against individuals – members of the particular group13 – the action taken against individuals is not focused on their individual capacity; it represents the action taken against the group itself.14 Even though it is quite understandable that a group does not exist if individuals are not involved, when genocide is in question, the role of individuals has to be observed as their exclusive membership to the group. As confirmed by the case law of international criminal tribunals, an individual victim of genocide is chosen not because of his identity or position,15 but
12 See more at Martin Shaw, Genocide and International Relations: Changing Patterns in the Transitions of the Late Modern World 161 (Cambridge: Cambridge University Press, 2013). 13 Prosecutor v. Duško Sikirica, Damir Došen, Dragan Kolundžija, Case No. IT-95-8-T, Judgment on Defence Motion to Acquit, 3 September 2001, para. 89. 14 Lemkin 1944, at 79. 15 it does not matter whether the person is a soldier or a civilian. As concluded before the ICTY: “…a decision was taken, at some point, to capture and kill all the Bosnian Muslim men indiscriminately. No effort thereafter was made to distinguish the soldiers from the civilians.” Prosecutor v. Radoslav Krstić, Case No. IT-98-33-T, Judgment, 2 August 2001, para. 547. See also Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir Borovčanin, Radivoje Miletić, Milan Gvero, Vinko Pandurević, Case No. IT-05-88-T, Judgment, 10 June 2010, paras. 833 and 866. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 106 rather on account of his group membership.16 All actions taken against individuals should be viewed as the means used to achieve the ultimate genocidal goal – the destruction of a protected group. It is widely accepted that genocide does not entail a single, spontaneous or isolated act; it is a “coordinated plan of different actions”17 committed by a number of people acting in consort with the intention of achieving the ultimate genocidal aim.18 In most cases, the gravity and the scale of genocide presume involvement of several protagonists.19 It is often connected with other types of social conflicts and represents a “phenomenon of political and military conflict.”20 Before the act is committed, the group must be identified.I t means that the collectivity of the members of a protected group is being marked as the victims and objects of genocidal acts.21 This can be done by means of either positive or negative identification criteria. It is a common and widely accepted opinion that the identification of a genocide victim requires the so-called positive approach. The intention to destroy is focused against a collective of people who have a particular group identity22 – national, ethnical, racial or religious – and not a lack thereof.23 These particular unique characteristics distinguish the group from others,24 and the focus on these groups exclusively distinguishes genocide from other crimes.25 As confirmed before the ICJ, it is a “matter of who those people are, not who they are not.”26 Starting from
16 Prosecutor v. Jean-Paul Akayesu, supra note 8, paras. 124 and 125; Prosecutor v. Radoslav Krstić, supra note 15, para. 551. See also Diane Marie Amann, Group Mentality, Expressivism, and Genocide, 2(2) International Criminal Law Review 93, 93 (2002). 17 Lemkin 1944, at 79. 18 k atherine Goldsmith, The Issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-Based Approach, 5(3) Genocide Studies and Prevention: An International Journal 238, 252 (2010). 19 Prosecutor v. Radoslav Krstić, supra note 15, para. 549. 20 shaw 2013, at 147. 21 victims could be determined in some kind of a genocidal plan or the actions taken against them represent a part of the policy. Although the existence of any kind of genocidal plan or policy has not been included into the definition of genocide, it is mostly unlikely that the crime could be performed without them. 22 Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Judgment, 22 November 2017, para. 3436; Prosecutor v. Radovan Karadžić, supra note 8, para. 541. 23 Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgment, 22 March 2006, para. 21. See also Prosecutor v. Vujadin Popović et al., supra note 15, para. 809. 24 Prosecutor v. Radoslav Krstić, supra note 15, para. 557; Prosecutor v. Milomir Stakić, supra note 23, paras. 16–28. 25 Amann 2002, at 93. 26 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), supra note 10, para. 193. SANDRA FABIJANIĆ GAGRO 107
Lemkin’s idea, it is clear that genocide was originally conceived as the destruction of a race, tribe, nation, or another group with a particular positive identity, not as the destruction of various people lacking a distinct identity.27 Positive identification of the group was requested in many cases before criminal tribunals, as well as before the ICJ. As confirmed before the ICJ, the drafters of the Genocide Convention gave close attention to the positive identification28 of groups “with specific distinguishing characteristics in deciding which groups would include and which (such as political, economic, cultural, sexual or social groups) they would exclude.”29 Therefore, positive identification of the group focuses on specific distinguishing well-established and immutable characteristics. As the ICJ emphasized, the decision of the drafters not to include political and cultural groups on the list of protected groups, because they lack such characteristics represents further argument for the necessity of positive identification.30 In contrast to the positive determination of “who the people are,” the negative approach is based on what these people are not. That approach consists of identifying individuals as not being part of the group “to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics.” All individuals rejected in this way would “by exclusion, make up a distinct group.”31 This approach has been thoroughly elaborated before the international courts. For example, as confirmed in the Jelisić case, if the genocidal act of the perpetrator who belongs to the group A is directed against several victim groups (B, C, and D), and each of them is protected, it may be “within the spirit and purpose of the Genocide Convention to consider all the victim groups as a larger entity”32 marked as “non-A group.” Nevertheless, the negative approach has been widely rejected. Although it has been recognized that the provisions of the Genocide Convention also protect groups “defined by exclusion where they have been stigmatized by the perpetrator in this way,”33 the negative approach has been considered as not appropriate to define relevant protected
27 Prosecutor v. Milomir Stakić, supra note 23, para. 21; Prosecutor v. Vujadin Popović et al., supra note 15, para. 809; Prosecutor v. Ratko Mladić, supra note 22, para. 3436. 28 See Antonio Cassese, Genocide in The Rome Statute of the International Criminal Court: A Commentary 335, 336 (A. Cassese et al. (eds.), Oxford: Oxford University Press, 2002). See also Prosecutor v. Milomir Stakić, supra note 23, para. 22. 29 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), supra note 10, para. 194. 30 Id. 31 Prosecutor v. Goran Jelisić, supra note 8, para. 71. 32 See quote of the Final Report of the Commission of Experts formed pursuant to UN S.C. Res. 780, at Prosecutor v. Goran Jelisić, supra note 8, para. 71, footnote 97. 33 Id. para. 71. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 108 group34 as “non-someone.” That approach was recognized before the ICJ as well. While confirming the necessity of positive identification, the ICJ clearly emphasized that the targeted group must not be defined as a “non-Serb national, ethnical or religious group…”35 As Kreβ emphasizes, by supporting the positive approach to the concept of the protected group, the ICJ “guards against the transformation of genocide into an unspecific crime of group destruction based on a discriminatory motive.”36 The following question is how to make a clear identification of a national, racial, religious, or ethnic group. Even though they are mentioned, these groups have neither been defined in the Genocide Convention nor have their particular characteristics been given. As it has been pointed out,
the preparatory work of the Convention shows that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognized before the Second World War as national minorities, rather than to refer to several distinct prototypes of human groups.37
That does not mean that the terms are useless, but rather that such applicability was the drafters intention in the first place.T his view has been supported by some authors. As Schabas concluded, despite the lack of definitions, the four groups overlap and help to define each other. They operate much as four corners which connect the area within which the groups find protection, and that could be seen as the perception of the drafters of the Genocide Convention – their correspondence in a dynamic relationship, when each group contributes to the construction of the other. Therefore, a search for their autonomous meanings could “weaken the overarching sense of the enumeration as a whole.”38 Nevertheless, the drafter’s conclusions and discussions on the particular characteristic of groups and reasons for their inclusion or exclusion can be useful for their identification in practice. An important platform for a further elaboration
34 Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgment, 1 September 2004, para. 685; Prosecutor v. Goran Jelisić, supra note 8, para. 72; Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment, 31 July 2003, para. 512; Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-T, Judgment, 12 December 2012, para. 735; Prosecutor v. Vujadin Popović et al., supra note 15, para. 809; Prosecutor v. Radovan Karadžić, supra note 8, para. 541. 35 See Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), supra note 10, paras. 66, 185, 191, 194, 196. That approach has been confirmed in cases before theI CTY, e.g., Prosecutor v. Goran Jelisić, supra note 8, paras. 71 and 72; Prosecutor v. Milomir Stakić, supra note 23, paras. 16–27; Prosecutor v. Radovan Karadžić, supra note 8, para. 541. 36 Claus Kreβ, The International Court of Justice and the Elements of the Crime of Genocide, 18(4) European Journal of International Law 619, 624 (2007). 37 Prosecutor v. Radoslav Krstić, supra note 15, para. 556. 38 w illiam A. Schabas, Genocide in International Law: The Crime of Crimes 124, 129–131 (2nd ed., Cambridge: Cambridge University Press, 2009). SANDRA FABIJANIĆ GAGRO 109 on the group identification is the jurisprudence of international courts.T he concept of protected groups has been “researched extensively,” but with no generally and internationally accepted definitions thereof.39 The basic approaches to providing the definitions and determining the members of a protected group could be divided into objective and subjective ones. The objective approach is based on the idea that the membership to a group represents a “social fact,”40 while the subjective approach recognizes that membership is a “social construct” and that the perceptions of both the victim and the perpetrator must be taken into account. This distinction does not have a purely theoretical value, but also includes a practical significance.41 An objective approach relies on verifiable facts, regardless of the view of the victim, or the perpetrator, or any third party.42 Such an approach, based on scientifically verifiable parameters, was supported inAkayesu case before the ICTR. The Tribunal tried to identify some essential, objective elements of the protected group, but that view was not widely accepted, and “nearly all later judgments by international criminal tribunals chose to rely on subjective elements.”43 Moreover, as some authors concluded, these definitions “possess their own inherent weaknesses and continue to cause problems of interpretation for the tribunals.”44 As noted in the Akayesu case, with a reference on the travaux préparatoires of the Genocide Convention, genocide was allegedly understood “as targeting only ‘stable’ groups.”45 The main characteristic of a stable group is permanency; its membership would seem to be normally “not challengeable by its members, who belong to it automatically, involuntarily46 and by birth.”47 The problem with the objective approach
39 Prosecutor v. Georges Anderson Nderubumwe Rutaganda, supra note 8, para. 56; Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgment and Sentence, 27 January 2000, para. 161. 40 On the basis of objective criteria, the Nazis had elaborated detailed rules on who was and was not Jewish, with no regard for the individual’s belief about his/her own status or if the person denies his/her belonging to the group (Schabas 2009, at 125). As will be shown later, Tutsis in Rwanda were identified (and killed) on the basis of their identity cards, which represented the proof of their ethnicity. 41 Guglielmo Verdirame, The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunal, 49(3) International & Comparative Law Quarterly 578, 579, 588 (2000). 42 Carola Lingaas, Imagined Identities: Defining the Racial Group in the Crime of Genocide, 10(1) Genocide Studies and Prevention: An International Journal 79, 89 (2016). 43 Carola Lingaas, Defining the Protected Groups of Genocide Through the Case-law of International Courts, ICD Brief (December 2015), at 9 (Jul. 20, 2018), available at http://www.internationalcrimesdatabase. org/upload/documents/20151217T122733-Lingaas%20Final%20ICD%20Format.pdf. 44 Claire De Than & Edwin Shorts, International Criminal Law and Human Rights 70 (London: Sweet & Maxwell, 2003). 45 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 511. 46 According to some authors, membership of religious group may be voluntary. Antonio Cassese, International Criminal Law 97 (Oxford: Oxford University Press, 2003). 47 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 511. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 110 is “that rules on the membership of groups are nearly always disputed,”48 and “as the law stands at present there are no definitive objective criteria for determining the special features of each protected groups.”49 Nowadays, the membership to a protected group is sometimes difficult to establish. Even the stability and the permanency of the group is being recalled as the grounds for its determination, some groups nowadays are not necessarily stable or permanent given that overlapping is present in many situations. Members of these non-stable and non-permanent groups are quite “flexible” in their roles; they may decide to join the group or to leave it. Furthermore, it is not strange for a person to be a member of more than one group, starting from birth.50 As noted, the objective approach has not been widely supported and subsequent ground-breaking case law of the ad hoc tribunals shows a progressive shift from the objective towards the subjective approach,51 giving the focus to the self-identification or identification by others.T he reasons for this shift have relied on conclusions that the membership of a group in applying the Genocide Convention was more of a subjective rather than an objective concept52 and that the objective approach is “inconsistent with the object and purpose of the Convention.”53 Furthermore, the ICTY in the Jelisić case has expressed the fear that the objective approach and scientifically irreproachable criteria for the determination of a protected group would be “a perilous exercise whose result would not necessarily correspond to the perception of the persons concerned by such categorization.”54 The Tribunal recognized that the preparatory work of the Genocide Convention demonstrates the intention of drafters to protect only “stable” groups objectively defined and whose members belong to the group regardless of their own desires.55 However, although the objective approach is applicable in determining a religious group, the subjective criterion is considered more appropriate in determining the status of other protected groups – national, ethnical, or racial.56 Taking into account further
48 verdirame 2000, at 588. 49 de Than & Shorts 2003, at 70. 50 Id. 51 Prosecutor v. Goran Jelisić, supra note 8, para. 70; Prosecutor v. Georges Anderson Nderubumwe Rutaganda, supra note 8, para. 56. See also Robert J. Currie, International & Transnational Criminal Law 112 (Toronto: Irwin Law, 2010). 52 See Prosecutor v. Georges Anderson Nderubumwe Rutaganda, supra note 8, para. 56; Prosecutor v. Alfred Musema, supra note 39, para. 161. 53 Prosecutor v. Radoslav Krstić, supra note 15, para. 556. 54 Prosecutor v. Goran Jelisić, supra note 8, para. 70. 55 Id. para. 69. 56 the ICTY refers to these three groups since it previously expressed the opinion that an objective deter- mination of a religious group still remains possible. Prosecutor v. Goran Jelisić, supra note 8, para. 70. SANDRA FABIJANIĆ GAGRO 111 case law of tribunals, the membership of the protected group has been evaluated either from the perpetrator’s57 or the victim’s58 point of view. As De Than and Shorts accentuate, the victim is the one who should decide into which category he/she belongs, since the membership to a group is often inherited by birth. On the other hand, the group is targeted by the perpetrator for reasons he/she is aware of.59 As confirmed in the Jelisić case,
it is the stigmatization of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators.60
In Verdirame’s opinion, the perpetrator’s perception is “after all more important for establishing individual criminal responsibility than the putative ‘authentic’ ethnicity of the victim.”61 The subjective approach was therefore considered more appropriate and more “appealing, especially because the perpetrator’s intent is decisive element”62 of the crime. Therefore, from the initial rigid and objective approach to collective identities, the two ad hoc tribunals have thus progressively moved towards the subjective position. As Verdirame concluded, it is a “welcome shift that takes into account the mutable and contingent nature of social perceptions, and does not reinforce perilous claims to authenticity in the field of ethnic and racial identities.”63 Nevertheless, in further elaboration on determining the protected group, international courts have decided to embrace a combination of both approaches and consult both objective and subjective criteria,64 because “subjective criteria alone
57 Prosecutor v. Goran Jelisić, supra note 8, para. 70; Prosecutor v. Radoslav Krstić, supra note 15, para. 557. 58 Prosecutor v. Georges Anderson Nderubumwe Rutaganda, supra note 8, para. 56; Prosecutor v. Radoslav Krstić, supra note 15, para. 559; Prosecutor v. Radoslav Brđanin, supra note 34, para. 683. 59 See more at De Than & Shorts 2003, at 70–71. 60 Prosecutor v. Goran Jelisić, supra note 8, para. 70. The Trial Chamber emphasized that it partly follows the position taken in Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, para. 98. See also Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgment, 17 January 2005, para. 667; Prosecutor v. Radoslav Krstić, supra note 15, para. 557. 61 verdirame 2000, at 594. 62 william A. Schabas, Groups Protected by the Genocide Convention: Conflicting Interpretations from the International Criminal Tribunal for Rwanda, 6(2) ILSA Journal of International & Comparative Law 375, 384 (2000). 63 verdirame 2000, at 594. 64 Prosecutor v. Vidoje Blagojević and Dragan Jokić, supra note 60, para. 667; Prosecutor v. Radoslav Brđanin, supra note 34, para. 684; Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgment and Sentence, 1 December 2003, para. 811; Prosecutor v. Zdravko Tolimir, supra note 34, para. 735; Prosecutor v. Radovan Karadžić, supra note 8, para. 541; Prosecutor v. Tharcisse Muvunyi, Case No. ICTR- 2000-55A-T, Judgment and Sentence, 12 September 2006, para. 484. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 112 may not be sufficient to determine the group targeted for the destruction.”65 That approach was welcomed in the jurisprudence of the ICJ, as well.66 Supporting that view, it could be concluded that the correct determination of the relevant protected group has to be made on a case-by-case basis,67 consulting thereby both objective and subjective criteria, and that it should be “assessed in the light of particular political, social, historical and cultural context.”68
2.1.1. National Group Although the term “national” was favoured by Lemkin69 and originally included in the draft of the General Assembly Resolution 96(I), it has been eliminated from its final text with no particular explanation. In the process of its reintroduction and incorporation into the text of the Genocide Convention, some explanations for the exclusion of national groups were offered before theS ixth Committee.70 They generally referred to the lack of clarity, the ability of people to freely join or leave that group, possibility of being confused with political groups, etc.71 The last argument was the reason why ethnical groups were subsequently added to the list.72 Regardless, the term national was included in the final text of the Genocide Convention and enumerated as the first on the list of protected groups. As LeBlanc concluded, it was “apparently assumed by everyone concerned that national group should be covered.”73 In the attempt to find an objective definition of national group and by citing the judgment from the Nottebohm case before the ICJ,74 the ICTR defines a national
65 Prosecutor v. Georges Anderson Nderubumwe Rutaganda, supra note 8, para. 57; Prosecutor v. Radoslav Brđanin, supra note 34, paras. 683 and 684; Prosecutor v. Zdravko Tolimir, supra note 34, para. 735, footnote 3095. 66 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), supra note 10, para. 191. 67 Prosecutor v. Radoslav Krstić, supra note 15, para. 513; Prosecutor v. Vidoje Blagojević and Dragan Jokić, supra note 60, para. 646; Prosecutor v. Zdravko Tolimir, supra note 34, para. 738; Prosecutor v. Radovan Karadžić, supra note 8, para. 541. 68 Prosecutor v. Georges Anderson Nderubumwe Rutaganda, supra note 8, para. 58; Prosecutor v. Alfred Musema, supra note 39, para. 163; Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment, 7 June 2001, para. 65; Prosecutor v. Radoslav Krstić, supra note 15, supra note 15, para. 557. 69 schabas 2009, at 136. 70 the provisions of the General Assembly Resolution 96(I) were invoked in the two committees before the Genocide Convention has been adopted: the Ad Hoc Committee of the Economic and Social Council and the Sixth Committee of the UN G.A. Different opinions were expressed in both committees on what kind of groups should be protected by the Convention. See more at Lawrence J. LeBlanc, The United Nations Genocide Convention and Political Groups: Should the United States Propose an Amendment?, 13(2) Yale Journal of International Law 268, 271 (1988). 71 schabas 2009, at 134. 72 Boot 2002, at 425. 73 LeBlanc 1991, at 59. 74 Nottebohm case (Liechtenstein v. Guatemala), 1955 I.C.J. 4. SANDRA FABIJANIĆ GAGRO 113 group as a “collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties.”75 But, as Schabas emphasized, the reference of the ICTR to the Nottebohm judgment is incomplete, since the ICJ was interested in establishing “nationality” and focused on the correspondence between the state and the individual on granting nationality, while the ICTR’s task was to decide on the membership in a “national group.” These two nationalities should not be confused.76 Furthermore, nationality seems to be set quite widely if it includes citizenship of the state,77 but, besides citizenship, it could also refer to the inhabitants of the national territory and, in that case, “it hardly differs from the concept of a civilian population in the definition of crimes against humanity.”78 Looking this way, especially the definition set out in theAkayesu case, one can ask whether the term nationality is in conformity with the requirement of stability and permanency? Since the ICTR has concluded that genocide “was allegedly perceived as targeting only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth,”79 then the reference to the “legal bond based on a common citizenship” in the definition of national group set out in Akayesu case could hardly be perceived as a stable element. Nevertheless, the issue of a national group as a protected group seemed to be of no particular interest before the ICTR since the protected group in its case law has been classified as ethnical group.
2.1.2. Ethnical Group Similar to the notion of the national group, ethnical groups have been included in the draft of the General Assembly Resolution 96(I), but were later excluded from its final text as well as from the draft of the Genocide Convention. It seems that some drafters found term quite blurry and unclear,80 while others supported the protection for that particular group, which is smaller than a nation “but one whose existence could nevertheless be of benefit to humanity.”81 The term was proposed by the Swedish delegation in the attempt “to avoid the exclusion of groups with the same cultural and historical heritage or language that would not be considered
75 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 512. By Boot, the conclusion might be drawn that the ICTR had in mind the existence of a common culture or a common language in contrast to some other groups. Boot 2002, at 430. 76 schabas 2009, at 135. 77 LeBlanc 1991, at 60. 78 Luban 2006, at 16. 79 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 511. 80 For example, several delegations emphasized that the words “ethnic” and “racial” practically mean the same thing. See more at LeBlanc 1991, at 59. 81 schabas 2009, at 144, in citing Soviet argument in the Sixth Committee, footnote 165. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 114 to be national groups.”82 In order to “better define the types of groups protected by the Convention and ensure that the term ‘national’ would not be understood as encompassing purely political groups,”83 the reference to an ethnic group was consequently (yet narrowly) adopted and added to the Genocide Convention.84 The first identification of an ethnic group was provided in the Akayesu case, revealing thereby the enumeration of protected groups as being too restrictive, as will be shown in the continuation of this paper. An ethnic group was generally defined as a group “whose members share a common language or culture.”85 However, the Tribunal has faced a specific problem while trying to apply that definition to Rwandan atrocities and to define the protected group.W hen faced with the problem of identifying the differences between the members of the Hutu and Tutsi tribes, the ICTR had to conclude that they actually speak the same language, believe in the same myths, and share the same territory and culture, so “one can hardly talk of ethnic groups.”86 It was clear that Tutsis “did not closely match any of the four definitions.”87 Nevertheless, even though it was hard to perceive their differences “in the context of the period in question,” they were considered both by the authorities and themselves as belonging to two distinct ethnic groups. Their ethnicity was clearly determined in official classifications since their identity cards88 contained a reference of person’s ethnicity.89 Furthermore, the former Constitution of Rwanda also “identified Rwandans by reference to their ethnic group.”90 Moreover, as confirmed before the ICTR, all the Rwandan witnesses who appeared before the ICTR invariably answered “spontaneously and without hesitation” on the question of their ethnic identity91 and they expressed general knowledge on ethnicity of their friends or neighbours.92 Finally, Tutsis were understood as an ethnic group “by those who targeted them for killing.”93 Accordingly, Tutsis were regarded as a stable and permanent group,
82 Boot 2002, at 425. 83 Prosecutor v. Radoslav Krstić, supra note 15, para. 555. 84 Boot 2002, at 425. 85 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 513. 86 Id. footnote 56. See also Prosecutor v. Clément Kayishema and Obed Ruzindana, supra note 60, para. 34. 87 verdirame 2000, at 592. 88 Nevertheless, the possibility to pay for the change of one’s ethnicity on the identity card was mentioned in Kayishema and Ruzindana case. See Prosecutor v. Clément Kayishema and Obed Ruzindana, supra note 60, para. 12. 89 Prosecutor v. Jean-Paul Akayesu, supra note 8, footnote 56. 90 Id. para. 170. 91 Id. para. 702. 92 Id. para. 171. 93 Id. SANDRA FABIJANIĆ GAGRO 115 identified as such by all. It was added that Rwandan customary rules regarding the ethnicity followed the patrilineal heredity line;94 ethnicity of a Rwandan child is therefore derived from the ethnicity of the father.95 The identification of persons is therefore “embedded in Rwandan culture.”96 In the process of shifting from the objective to the subjective approach of identification, the definition of the ethnic group from the Akayesu case has been subsequently extended. As Verdirame concluded, the tribunals were beginning to acknowledge that collective identities, ethnicity in particular, represent social constructs which are “dependent on variable and contingent perceptions” and do not represent social facts which are “verifiable in the same manner as natural phenomena or physical facts.”97 By embracing that shift, the ICTR offered additional definitions based on the subjective self-identification that an ethnic group is a group which distinguishes itself from others, as well as on the identification by others, when the role of the perpetrator and his view of the protected group is crucial.98 Self-identification is quite understandable since the individual is aware of his own ethnicity. However, the question is how stable and permanent this factor can be. As Alison Desforges, an expert witness in the Akayesu case concluded:
The primary criterion for [defining] an ethnic group is the sense of belonging to that ethnic group. It is a sense which can shift over time… the definition of the group to which one feels allied may change over time. But, if you fix any given moment in time, and you say, how does this population divide itself, then you will see which ethnic groups are in existence in the minds of the participants at that time.99
Basically, if we agree with that conclusion, which refers specifically to the ethnic group, we can also further conclude that this approach can be applied to most of the groups protected by the Genocide Convention. On the other hand, the role of the perpetrator in committing genocide is indisputable. He undertakes genocidal acts with the belief to destroy a particular group on which his intention is focused. It makes sense to view ethnicity from his point of view; he knows his enemies. Nevertheless, the determination of ethnicity established by others implies that the ethnic group “may exist only in
94 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 171. 95 Prosecutor v. Clément Kayishema and Obed Ruzindana, supra note 60, para. 523. 96 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 171. Three officially recognized ethnic groups in Rwanda are Hutus, Tutsis and Twas. 97 verdirame 2000, at 592. 98 Prosecutor v. Clément Kayishema and Obed Ruzindana, supra note 60, para. 98. 99 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 172. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 116 the imaginations of its persecutors.”100 It could lead to an unusual situation. As Boot concluded, if a perpetrator thought that a victim is of a different national, racial, ethnical, of religious group than he is, but the victim is not, it could result in finding a perpetrator guilty of genocide.101 Although he is mistaken in his actions and the goal, his unfortunate belief (along with other genocidal elements) makes him responsible for genocide.
2.1.3. Racial Group During the drafting process of the Genocide Convention, the term racial seemed to be easy to understand and it was the only category that did not lead to a debate.102 Nevertheless, according to some authors the concept of race “has changed considerably”103 in past few decades. Back then, it was to a large extent a synonym for national, religious, and ethnic groups, but this no longer corresponds to its contemporary usage.104 Nowadays the “conflation of race with nationality has ceased.”105 The value of the term race is now disputed from a purely scientific standpoint. One could even argue that the scientific progress in genetics and biology of the past decades has determined that since there is no gene for race, it is then scientifically incorrect to speak of different human races. In colloquial language, however, the understanding of race is still very much connected with the physical appearance of people, skin color in particular, and is still being commonly used to determine members of a racial group.106 The intention of the ICTR to provide a definition of a racial group in the Akayesu case has resulted in its focus on the “hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors.”107 That definition was given with no particular reference to any authority.108 Among other definitions offered in Akayesu, it has been viewed as “unnecessarily narrow”109 since hereditary physical traits may be difficult to distinguish in many cases, and reference to heredity “preserves an outdated and contentious method
100 Luban 2006, at 16. 101 Boot 2002, at 435. 102 schabas 2009, at 121, 139. 103 Lingas 2016, at 84. 104 schabas 2009, at 140, 143. 105 Lingas 2016, at 84. 106 Id. 107 Prosecutor v. Jean-Paul Akayesu, supra note 8, paras. 514. 108 Lingas 2016, at 93. 109 Boot 2002, at 433. SANDRA FABIJANIĆ GAGRO 117 of classifying people.”110 With global miscegenation being present worldwide, it could seem quite challenging nowadays to determine the racial affiliation. On the other hand, although the term racial group may be obsolete, this concept persists in science, popular usage, and international law. It is understandable that progressive jurists search for a meaning that is consistent with contemporary values. Nevertheless, as Schabas emphasizes, when it comes to the stability and permanency, it seems that it is the only group, when defined genetically, to which the person belongs or not; the question of race is not changeable. All other groups seem to be neither stable nor permanent and could be modified as a result of border changes or a simple decision of the individual, etc.111
2.1.4. Religious Group Religious groups could be described as those “whose members share the same religion, denomination or mode of worship.”112 Although they are listed as protected in the General Assembly Resolution 96(I), some questions regarding their inclusion in Genocide Convention have been raised during the drafting process,113 provoking the most serious disagreement.114 Religious group has been considered similar to ethnic or national group. During the drafting process, some underlined that religious group should be considered as a subgroup of a national group, since “in all the known cases of genocide committed for a religious motive, that motive had always been connected with others – those of racial or national character.”115 Other delegations opposed that view with the argument that genocide could be committed against religious groups within one nation, which finally led to the rejection of that proposal. Specific confirmation of that close connection between religious and national groups has been given before the ICTY in the Krstić case with regards to Muslims. Although originally seen as a religious group, Bosnian Muslims were also recognized as a nation in the Constitution of the former Yugoslavia adopted in 1963. Thirty years later, during the armed conflict in Bosnia and Herzegovina, the Bosnian Serb authorities considered Bosnian Muslims as a specific national group.116 The importance of religious identity is visible and recognizable in contemporary armed conflicts, which create recipient surroundings for genocide. Furthermore, some new examples of conflicts worldwide, such as the development of the phenomenon
110 Lingas 2016, at 93. 111 schabas 2000, at 382. 112 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 515. 113 schabas 2009, at 147. 114 LeBlanc 1988, at 271. 115 LeBlanc 1991, at 58. 116 Prosecutor v. Radoslav Krstić, supra note 15, para. 559. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 118 of terrorism, are (too) often rooted in religion, which further confirms the significance of the issues of religious affiliation and differences in the contemporary world.
3. Considerations of Possible Extension of the List of Protected Groups
A further important question related to the determination of the group is whether the protection from the Genocide Convention should be limited to these four groups expressly mentioned? Is it possible to discuss genocide if the group, although stable and permanent, does not meet the criterion for being determined as national, ethnic, racial, or religious? Moreover, is it even necessary for the protected group to be stable and permanent? If not, does the enumeration of the group in the meaning of the Genocide Convention represent a limiting factor? The fact is that, in some cases, it is quite difficult to determine the clear differences between the opposed parties, as it was the case between the Hutus and Tutsis in Rwanda. Furthermore, one could ask whether the omission of some other groups is incompatible with the “mission” embraced by the General Assembly Resolution 96(I) – to protect the existence of entire human groups and prevent the destruction of racial, religious, political, and other groups. It is undisputed that the General Assembly’s interpretation of the groups has transformed from a non-exhaustive list to an exhaustive four-group list in the Genocide Convention through the period of only two years.117 The willingness to extend the enumeration of protected groups was noticeable in the early case law of the ICTR. When considering whether the protected group should be limited to the four groups enumerated in the Genocide Convention or “whether any group, similar to the four groups in terms of its stability and permanence, should also be included,” the Tribunal in the Akayesu case emphasized the necessity “to respect the intention of the drafters of the Genocide Convention.” According to the travaux préparatoires, their intention was “clearly to protect any stable and permanent group.”118 Some authors support the opinion that the drafters intention was focused on the protection of stable groups only – those “having an enduring identity.”119 Given the historical context in which the drafters were operating, that would make sense.120 The ICTR’s decision in the Akayesu case was closely connected with the before-mentioned doubt whether the Hutu and Tutsi could be considered as distinct on ethnic or
117 david Shea Bettwy, The Genocide Convention and Unprotected Groups: Is the Scope of Protection Expanding Under Customary International Law?, 2(1) Notre Dame Journal of International & Comparative Law 167, 174 (2011). 118 Prosecutor v. Jean-Paul Akayesu, supra note 8, para. 701. 119 LeBlanc 1991, at 60–61. 120 LeBlanc 1988, at 273. SANDRA FABIJANIĆ GAGRO 119 racial grounds, and it was designed to justify the Tribunal’s finding that the Tutsi were an ethnic group.121 But, on the other hand, in Boot’s opinion, by doing that, the Tribunal went beyond the terms of the Genocide Convention and the Statute of the ICTR, violating thereby the nullum crimen sine lege principle.122 As Schabas observed, that conclusion from the Akayesu case was a “somewhat extravagant reading of the travaux.” 123 Its role is to assist in clarifying unreasonable, ambiguous, or obscure terms, not to add some new elements to the definitions.124 Bettwy emphasized that even though the conclusion from Akayesu was bold and controversial, it nevertheless brought attention to the importance of elements of stability and permanence, and also reinforced the significance of respecting the purpose and object of the Genocide Convention.125 In the Tribunal’s opinion, that object and the purpose with regards to the protected groups is threefold: a) in order “to respect the prestige of the crime of genocide” the scope of protected groups must be exhaustive and exclusive; b) the groups included are those substantially valuable to the mankind and their loss would have a strong impact on the human race as a whole; c) the stability and permanency of the group is requested to the degree that its membership is, for the most part, involuntary. Therefore, an extension of the list and the inclusion of some other groups126 with no characteristics of being stable, permanent, or easily identifiable would create uncertainty and ambiguity and could be considered as disregarding the object and purpose of the Convention.127 Hence, some would say that despite the passing of time and criticism expressed throughout, the definition of genocide is well established, clearly understandable, and supported as such. However, Schabas emphasizes that the intention of the drafters confirmed in the Akayesu case was actually not clear at all.128 The opinion raises the following question: if the intention of the drafters was to protect all stable and permanent groups, why did they simply did not do so and incorporate those words into the text?129 The fact is that the determination of “stable and permanent groups” has not been subsequently
121 Currie 2010, at 112. 122 See more at Boot 2002, at 431. 123 schabas 2009, at 152. 124 schabas 2000, at 380. 125 however, he further points out, the capture of the purpose and object was only partial, because the decision in Akayesu “did not acknowledge that the drafters clearly intended to keep the list of protected groups exhaustive.” Bettwy 2011, at 181. 126 Following groups were considered by drafters, but excluded from the final text: ideological, linguistic, economic and political. See more at Bettwy 2011, at 169, 176. 127 Id. at 195. See also De Than & Shorts 2003, at 67. 128 schabas 2000, at 382. 129 Id. at 380. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 120 followed within domestic legislation as a possible extension of the protected group or in the further jurisprudence of international courts. On the other hand, the support for the inclusion of other groups within the meaning of genocide is visible in academic circles and substantiated by experiences in practice.130 Moreover, some national legislatures confirm the idea of expanding the list of groups protected by the Genocide Convention.131 Being aware of the horrifying consequences of genocidal intent, while taking into consideration the existence of the human group that is at stake and difficulties which the ICTR faced with the determination whether Tutsis represent an ethnic group or not, one could argue that it would be justified and logical to extend the protection from that scourge to all groups of people regardless on their name and qualifications. One could further agree that there is no longer a principled reason for insisting that only those groups enumerated in the Convention adopted many years ago deserve protection on the basis of their “exclusiveness” of just being on the list. When discussing stability and permanency of the protected group as its basic elements, the question arises whether any of the protected groups is stable and permanent enough to be included on that exclusive list in the Genocide Convention? Could we support the conclusion that a religious group is more stable than a group of women chosen, for example, for destruction only because of their gender? As mentioned before, some of the protected groups seem to be neither stable nor permanent, and with no particular definition set forth for their clear determination, they overlap and could be changed as a result of different reasons.132 One could say that such group “exclusivity” and narrowness of the Convention regarding the object of protection represents a clear restrictive element. By embracing that narrow enumeration while excluding some other groups, the protection from genocide may be perceived as not sufficient enough; it leaves many unprotected. Special attention in this field has to be given to the issue of political groups. Although they were included in the General Assembly Resolution 96(I) and the draft of the Genocide Convention, political groups have been excluded from the final text. Some authors argue that it was a “deliberate omission”133 which has led to the one of the “major flaws”134 of the genocide definition.W hen looking for the element of stability in defining the protected group, such exclusion could be considered reasonable. Political groups lack the element of permanency; they have no stability
130 See more at Schabas 2009, at 166. 131 in accordance with the French Penal Code from 1992, genocide is defined as intentional destruction of any group based on arbitrary criteria; Romanian Criminal Code includes “community” on the list of protected groups. See more at Bettwy 2011, at 182; Schabas 2000, at 375–376. 132 schabas 2000, at 382. 133 Cassese 2003, at 96. 134 Boot 2002, at 403. SANDRA FABIJANIĆ GAGRO 121 or clear-cut characteristics,135 and being a member of political groups is a fruit of decision. In relation to other protected groups, whose membership does not change over a relatively long period of time, political groups are not perceived to be stable or permanent. However, this is not the only reason for their exclusion from the list. The question is also raised how political groups could be defined in a first place.136 A further and perhaps the most important reason, which states would almost certainly wish to avoid,137 is the fear that the inclusion of political groups could lead to foreign interference in internal political affairs. It could also create difficulties for a legally established government to take preventive measures against subversive elements on its own territory.138 Another argument was also that the protection of political groups ought to be considered in the broader context of human rights, rather than the narrower one of genocide.139 In Bettwy’s opinion, by excluding political and other groups, drafters tried “to avoid groups whose inclusion would be unnecessary or impractical, favouring instead the tightest enumeration possible.”140 Furthermore, the travaux préparatoires indicate that the drafters were mindful of the intention to include in the final text only those groups “whose loss would have a negative impact, and that this requirement may have been fatal to the inclusion of political groups.”141 On the other hand, many persons, scholars, and non-scholars alike argue that the inapplicability of the Genocide Convention to situations similar to genocide, but not characterized as genocide because the victims are political opponents and they could not be recognized as members of protected groups, is deeply disturbing. This is not the question of being a member of a protected group, but rather the question of being a victim. Political groups are perceived as enemies of the state, or perhaps of a particular leader or a group of “others.” The nature of the group in such situations is not of so much importance, but the horror and magnitude of the political crimes that we have been witnessing through history “have persuaded some that it would have been desirable to extend protection to political groups.”142 Accordingly, few national penal systems worldwide had a reference to political genocide.143
135 Boot 2002, at 426. 136 LeBlanc 1988, at 295. 137 de Than & Shorts 2003, at 68. 138 Boot 2002, at 426. 139 LeBlanc 1988, at 274. 140 Bettwy 2011, at 176. 141 Id. at 179. 142 LeBlanc 1991, at 85. 143 See the list at Bettwy 2011, at 184, footnote 117. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 122
Nevertheless, the exclusion of political, economic, or any other groups of civilians does not mean that such groups are left unprotected. Their destruction could be seen as a crime against humanity when the persecution of members of some other groups (other than national, ethnic, religious, and racial) is in question. In that case even though it does not represent a case of genocide the perpetrator could still be punished, but for some other crime.
Conclusion
When the term genocide is being discussed in everyday language and among people who lack specific knowledge of the elements of the definition, that crime seems to be easy to understand – every single case of mass murder or grave breaches of human rights, looking from the eye of non-juristic public or media, could be perceived as genocide. Nevertheless, the legal situation is not so simple and, even though some similarities with other core crimes exist, genocide is clearly defined and distinguished from other crimes. Lack of some prescribed elements in the definition brings into question the existence of genocide. However, it does not mean that the commission of the crime in question is being denied; it merely needs to be recognized by some other name. That underlines two main challenges that prosecution for genocide is faced with. The first challenge is the necessity fordolus specialis to be established. That particular ultimate intention of the perpetrator to destroy a group of people is the element that makes genocide an exceptionally grave crime and distinguishes it from other core crimes. For example, killing as an element of genocidal actus reus is not “just an ordinary” killing – it has a higher and more horrifying purpose of destroying a group in whole or in part, as such. The second challenge, and one of the most controversial aspects of the genocide definition, is the object of the perpetrator’s intent.I t is essential to prove that the perpetrator does not want to destroy just any group he is focused on, but that the main goal of his actions and the object of his intention is a specific national, ethnical, racial, or religious group. His victims have been chosen because they belong to a specific previously enumerated group.H owever, if the victims could not be identified as members of a protected group, but have instead been chosen because of their political beliefs, sexual orientation, or gender, one could not speak about genocide, regardless of the number of victims or the scale of atrocities, or any other reason. The Genocide Convention was adopted exactly seventy years ago, but the enumeration of four protected groups with no particular definitions or explanations of the elements of each of them, still remains the subject of discussions. With regards to the lack of definitions of protected groups, one could further argue that it is not even likely that some acceptable definitions could be agreed upon. Therefore, it is up to the courts to draw conclusions on a case-by-case basis. Dealing with such a rule actually allows the law to modify and stay flexible and applicable in SANDRA FABIJANIĆ GAGRO 123 various situations and in a different period of time.W hen considering the differences between social, religious, cultural, or any other surroundings that genocide may occur within, the rules can be more efficiently applicable if there is no existence of a strict definition. That being said, it does not mean that terms without explanations are useless, but rather that it had been the deliberate intention of the drafters of the Genocide Convention. However, as much as the exclusion of definitions could be understood as a visionary achievement and a deliberate intention of the drafters, the fact is that the identification of a protected group is one of the essential elements of genocide itself. Moreover, one could note that it is the starting point. If no identification of a protected group is made, one cannot speak of genocide either. Therefore, the importance of identification must not be put aside. Regarding the fact that only four human groups are protected and given significance for their exclusiveness, the Genocide Convention becomes inapplicable in situations in which genocide-like acts have occurred, but the national, ethnic, racial, or religious identity of the victims is not an issue. However, it does not mean that individuals or even groups of people will be left unprotected. It just means that some other means should be used in dealing with other types of atrocities. Looking carefully at the drafter’s debate on the inclusion/exclusion of groups on the list of protected ones, it seems that the exhaustive list was their true intention; they have supported the tightest enumeration. After a number of groups have been examined and taken under consideration, several were excluded from the final text. One could argue that the implementation of the Genocide Convention confirms that the enumeration of these particular groups serves its purpose and no further extensions are to be made. On the other hand, “struggling” with the idea of exclusiveness of the protected groups, while bearing in mind the horrifying consequences of genocidal intent and that the existence of a human group is at stake, one could argue that all human groups should be protected from genocide. The members of the group have been chosen as victims, killed, transferred, bodily or mentally harmed only because they belong to the particular group chosen by the perpetrator. When observed from this perspective, the perilous and intimidating idea of destruction that lies behind the crime and the perpetration of acts focused on the group exclusively should be essential, regardless of the name and definition of the group. That is what should matter the most – the possibility of a group being eliminated and the responsibility of the community to prevent and punish actions aimed at this goal.
References
Amann D.M. Group Mentality, Expressivism, and Genocide, 2(2) International Criminal Law Review 93 (2002). Bettwy D.S. The Genocide Convention and Unprotected Groups: Is the Scope of Protection Expanding Under Customary International Law?, 2(1) Notre Dame Journal of International & Comparative Law 167 (2011). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 124
Boot M. Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Antwerp: Intersentia, 2002). Cassese A. International Criminal Law (Oxford: Oxford University Press, 2003). Currie R.J. International & Transnational Criminal Law (Toronto: Irwin Law, 2010). De Than C. & Shorts E. International Criminal Law and Human Rights (London: Sweet & Maxwell, 2003). Goldsmith K. The Issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-Based Approach, 5(3) Genocide Studies and Prevention: An International Journal 238 (2010). Kreβ C. The International Court of Justice and the Elements of the Crime of Genocide, 18(4) European Journal of International Law 619 (2007). LeBlanc L.J. The United Nations Genocide Convention and Political Groups: Should the United States Propose an Amendment?, 13(2) Yale Journal of International Law 268 (1988). Sayapin S. Raphael Lemkin: A Tribute, 20(4) European Journal of International Law 1157 (2009). Schabas W.A. Genocide in International Law: The Crime of Crimes (2nd ed., Cambridge: Cambridge University Press, 2009). Schabas W.A. Groups Protected by the Genocide Convention: Conflicting Interpretations from the International Criminal Tribunal for Rwanda, 6(2) ILSA Journal of International & Comparative Law 375 (2000). Shaw M. Genocide and International Relations: Changing Patterns in the Transitions of the Late Modern World (Cambridge: Cambridge University Press, 2013). Verdirame G. The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunal, 49(3) International & Comparative Law Quarterly 578 (2000).
Information about the author
Sandra Fabijanić Gagro (Rijeka, Croatia) – Associate Professor, Department of International Law, Faculty of Law, University of Rijeka (Hahlić 6, Rijeka, 51000, Croatia; e-mail: [email protected]). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3
The problem of IMPOSING Criminal Liability ON legal persons in Germany and Russia
Sergey Markuntsov, National Research University Higher School of Economics (Moscow, Russia)
Martin Wassmer, University of Cologne (Cologne, Germany)
DOI: 10.17589/2309-8678-2018-6-3-125-148
The article is devoted to the consideration of problems in connection with the introduction of the institution of criminal liability for legal persons in Germany and Russia. The authors analyze the doctrinal discussions that have been held for over 200 years with respect to this problem and the arguments raised by supporters and opponents of introducing criminal liability for legal persons. They also consider the modern practice of making legal persons liable. In particular, the institution of “quasi criminal” liability of legal persons in Germany and their administrative liability in Russia is examined. The comparative study shows that there are many similarities with regard to this question in both Germany and Russia.
Keywords: criminal liability of legal persons; regulatory fines; administrative offences; “quasi criminal” liability of legal persons; criminal law.
Recommended citation: Sergey Markuntsov & Martin Wassmer, The Problem of Imposing Criminal Liability on Legal Persons in Germany and Russia, 6(3) Russian Law Journal 125–148 (2018).
Table of Contents
Introduction 1. Liability of Legal Persons Under the Current Legal Framework in Germany and Russia 1.1. Regulatory Fines in Germany RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 126
1.2. Administrative Offences in Russia 1.3. Practise in Germany and Russia 2. Discussion on the Introduction of Criminal Liability in Germany and Russia 3. Recent Developments and Outlook Conclusion
Introduction
The German and Russian legal systems do not provide for the criminal liability of legal persons (“societas delinquere non potest”). Liability arises only according to the law on regulatory offences II( .). However, reform debates have been taking place for quite some time in both legal systems (III.). Recently, they have intensified (IV.).
1. Liability of Legal Persons Under the Current Legal Framework in Germany and Russia
1.1. Regulatory Fines in Germany In general, pursuant to § 30 of the German Act of Regulatory Offences (Ordnun- gswidrigkeitengesetz – OWiG), a regulatory fine (“Verbandsgeldbuße”) can be imposed on a legal person or an association of persons. In addition, European legislation in certain areas, particularly capital markets law and accounting law, has introduced special regulations in recent years that make it possible to impose significantly higher fines.T he conditions of § 30 OWiG are strict: Only legal persons (e.g. a limited liability company (GmbH); a stock corporation (AG)) or associations without legal capacity or (since 30 August 2002)1 partnerships with legal capacity are sanctionable (§ 30(1) No. 1–3 OWiG). Previously, only commercial partnerships (a general commercial partnership (OHG) or limited partnership (KG)) were sanctionable. Once the commentaries had acknowledged that civil law partnerships (BGB-Gesellschaften) themselves (and not only the partners) could be holders of rights and duties, equal treatment had become necessary. Legal persons under public law (e.g. public corporations) are also included.2 Nevertheless, the state and its institutions (at federal, state and municipal level) cannot be sanctioned.3 In the case of a (partial) universal legal succession, the regulatory fine may be imposed
1 C f . Martin P. Waßmer, Die Sanktionierung von Auslandsbestechung nach dem OWiG [Sanctioning Foreign Bribery Under the Regulatory Offences Act] in Das Verbot der Auslandsbestechung [The Prohibition of Foreign Bribery] 165, 165–166 (E. Hoven & M. Kubiciel (eds.), Baden-Baden: Nomos, 2016). 2 klaus Rogall in Karlsruher Kommentar zum OWiG [Karlsruhe Commentary to the Regulatory Offences Act] (5th ed., Munich: C.H. Beck, 2018), § 30 marginal no. 35 with further references. 3 Id. § 30 marginal no. 37 with further references. Sergey Markuntsov, Martin Wassmer 127 on the successor(s) as of 30 June 2013 (§ 30(2a) OWiG). Before that there was a gap since a regulatory fine could only be imposed if identicalness or “near” identicalness existed from an economic point of view.4 The offender must be a natural person in a management position (§ 30(1) No. 1–5 OWiG). Executive bodies are covered first.T he person must be an entity authorised to represent a legal person or a member of such an entity (No. 1), a chairman of the executive committee of an association without legal capacity or a member of such committee (No. 2) or a partner authorised to represent a partnership with legal capacity (No. 3). Second, as of 1 November 1994, certain representatives, namely an authorised representative with full power of attorney or in a managerial position as procura-holder or with a commercial power of attorney (No. 4), have been included. This enlargement counteracts a concealment of responsibility.5 Third, as of 30 August 2002, all other persons responsible on behalf of the management have been added, also covering supervision of the conduct of business (e.g. supervisory boards) or other exercise of controlling powers in a managerial position (No. 5). This addition counteracts the shift of responsibility to subordinates.6 The linking offence must be a criminal or regulatory offence as a result of which duties incumbent on the legal person or on the association have been violated, or where the entity has been enriched or was intended to be enriched (§ 30(1) sentence 1 OWiG). It does not matter whether this offence is a special (e.g. insolvency offence) or general offence (e.g. fraud). The offence must have been committed culpably, as the entity is blamed for the natural person’s guilt. The most important linking offence is § 130 OWiG (violation of obligatory supervision).7 This allows the entity to be held liable if an employee has committed an offence and the intentional or negligent violation of obligatory supervision by a person in a management position is established. Nevertheless, there may be gaps which can be exploited by transferring supervision to persons below the management level.8 Finally, there must be a link to representation, i.e. the natural person must have acted “as” an entity authorised to represent a legal person or an association. According to the legal explanation the offender generally does not act as a representative if he “acts in his own interest.”9 For this reason, German law followed the interest theory for a long time,10 according to which the link to representation was missing if the
4 See Martin P. Waßmer, Anmerkung zu BGH KRB 55/10 [Note on BGH KRB 55/10], 5 Neue Zeitschrift für Wirtschafts-, Steuer- und Unternehmensstrafrecht 184, 187 (2012). 5 Bundestagsdrucksache [Bundestag Document], No. 12/192, at 32. 6 Bundestagsdrucksache [Bundestag Document], No. 14/8998, at 11. 7 waßmer 2016, at 169. 8 rogall 2018, § 30 marginal no. 92. 9 Bundestagsdrucksache [Bundestag Document], No. V/1269, at 61. 10 See only Bundesgerichtshof [Federal Supreme Court], Neue Juristische Wochenschrift, 1981, at 1793 f. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 128 offender acted exclusively in his own benefit. However, this differentiation led to a reduction in insolvency offences and was hardly feasible in negligence offences. Thus, in criminal science a theory of function was established, according to which the offender must have used legal or actual possibilities of action arising from his position.11 Finally, in 2012 the German Federal Supreme Court (BGH) abandoned the interest theory.12 Since then, action “within the business sphere” of those represented is necessary, i.e. not just “on occasion.” Sanctioning the natural person is not mandatory. A regulatory fine may be imposed independently if proceedings are not commenced or discontinued, or if imposition of a criminal penalty is dispensed with (§ 30(4) sentence 1 OWiG). It is even possible to impose an “anonymous” regulatory fine if the identity cannot be ascertained, but it is clear that a person in a management position must have committed the offence.13 Nevertheless the independent assessment of a regulatory fine shall be precluded where the offence cannot be prosecuted for legal reasons (§ 30(4) sentence 3 OWiG), i.e. in particular in the case of a statute of limitation, but also in the case of immunity, amnesty or lack of criminal request.14 The regulatory fine usually consists of two parts. Pursuant to § 30(2) sentence 1 OWiG, the sanctioning part may total up to 10 million euro in the case of an intentional crime (No. 1), and in the case of negligent conduct up to 5 million euro (No. 2). This framework has been in force since 30 June 2013 (previously: 1 million/500,000 euro). The tenfold increase has been imposed in order to raise the fine to an “effective, proportionate and deterrent” level.15 In contrast to this, pursuant to § 30(2) sentence 2 OWiG, the maximum amount for the commission of a regulatory offence shall be determined by the maximum regulatory fine.T he recapturing part of the regulatory fine recaptures thefinancial benefits of an offence in accordance with § 17(4) OWiG. This part can be very large. In the Siemens corruption scandal in 2008, a regulatory fine of approximately 395 million euro was imposed, of which 394.74 million euro served to recapture the benefits that inured to the company.16 In other words, the regulatory fine in substance consisted of the unlawfully obtained benefits! Since introduction of the tenfold increase, the sanctioning part could amount to up to 10 million euro – but this does not represent a significant increase for a large corporation with sales in the billions.
11 walter Perron in Schönke/Schröder, StGB, Kommentar [Commentary to the Criminal Code] (29th ed., Munich: C.H. Beck, 2014), § 14 marginal no. 26. 12 Bundesgerichtshof [Federal Supreme Court], Neue Juristische Wochenschrift, 2012, at 2366 ff. 13 Bundesgerichtshof [Federal Supreme Court], Neue Zeitschrift für Strafrecht, 1994, at 346. 14 Franz Gürtler in Erich Göhler, OWiG, Kommentar [Commentary to the Regulatory Offences Act] (17th ed., Munich: C.H. Beck, 2017), § 30 marginal no. 42. 15 Bundestagsdrucksache [Bundestag Document], No. 17/11053, at 21. 16 Cf. Waßmer 2016, at 173 f. Sergey Markuntsov, Martin Wassmer 129
In German capital market law, the regulatory fines on credit institutions, financial institutions and investment firms have already been increased, and very drastically. The Market Abuse Regulation (EU) No. 596/201417 requires administrative pecuniary sanctions on the basis of total annual turnover. The high pecuniary sanctions in European antitrust law served as a model. Germany implemented these requirements in § 39 Securities Trading Act (Wertpapierhandelsgesetz – WpHG),18 today’s § 120 WpHG. Since July 2016, a regulatory fine may be imposed of up to 15 million euro or 15% of the total annual turnover of the legal person according to the last available financial reports approved by the management body. In addition, the offence can be sanctioned with a maximum regulatory fine of at least three times the amount of the profits gained or losses avoided. In April 2017, similar regulations were integrated into German accounting law (§ 334 of the German Commercial Code (Handelsgesetzbuch – HGB)).19 The assessment of a regulatory fine precludesconfiscation of the financial benefit obtained pursuant to § 73 or § 73c of the German Criminal Code (Strafgesetzbuch – StGB), or pursuant to § 29a OWiG (cf. § 30(5) OWiG). This serves to prevent impermissible double sanctioning is.20 However, if a regulatory fine has not been assessed, confiscation of a sum up to the amount of the financial benefit reaped may be ordered (§ 29a OWiG). Finally, § 74e StGB (respectively § 29 OWiG) allows the confiscationof products or means of the offenceor their value from a legal person or an association if one of the organs or representatives acted. The decision on a regulatory fine is taken in principle with the decision on the offence committed by the natural person in an integrated procedure.21 § 30(4) OWiG only allows independent proceedings if proceedings are not commenced or discontinued, or if imposition of a criminal penalty is dispensed with. According to § 444(1) sentence 1 of the German Criminal Procedure Code (Strafprozeßordnung – StPO), if in criminal proceedings a decision has to be given on imposition of a regulatory fine against a legal person or an association, the court shall order their participation (as subsidiary participant (Nebenbeteiligter)22). This provision secures
17 regulation (EU) No. 596/2014 of the European Parliament and of the Council of 16 April 2014 on Market Abuse (Market Abuse Regulation) and Repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/ EC, 2014 O.J. (L 173) 1. 18 erstes Finanzmarktnovellierungsgesetz [First Financial Market Amendment Act], 30 June 2016, BGBl. I at 1514. 19 CSR-Richtlinie-Umsetzungsgesetz [Corporate Social Responsibility Directive Implementation Act], 11 April 2017, BGBl. I at 802. 20 Bundestagsdrucksache [Federal Parliament Paper], No. 7/550, at 344. 21 wilhelm Schmidt in Karlsruher Kommentar zur StPO [Karlsruhe Commentary to the Criminal Procedure Code] (7th ed., Munich: C.H. Beck, 2013), § 444 marginal no. 1. 22 OLG [Higher Regional Court] Hamm, Neue Juristische Wochenschrift, 1973, at 1851, 1852. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 130 the right to a hearing (Art. 103(1) of the German Basic Law). According to § 88(1) OWiG, the same applies to regulatory fining proceedings. Hence, one feature of the criminal law regulation pertaining to the liability of legal persons in Germany is a system of sanctions that extend beyond penal law and take into account the right of administrative misconduct.23 That is why, according to E. Antonova, Germany is said to impose “quasi-criminal (administrative-criminal) liability” on legal persons.24 Other Russian scholars note the fact that instead of the institution of criminal liability for legal entities in Germany a complex of administrative and criminal law rules regulate matters related to corporate criminal law relations is applied. They conclude that German lawmakers believe that the use of administrative responsibility with respect to corporations fully fulfils its duties to curb offences.25 However, it seems that based on the analysis of individual law enforcement practice statistics the position on this issue is not so unambiguous.
1.2. Administrative Offences in Russia In 2001, the Code of the Russian Federation on Administrative Offences was adopted, containing provisions on the administrative liability of legal persons. Set forth in part 1 of Art. 2.10 of the Code of Administrative Offences of the Russian Federation, the norms directly defining the administrative responsibility of a legal person may be included not only in the framework of Section II of the Code of Administrative Offences of theR ussian Federation, but also in the laws of the subjects of the Russian Federation on administrative offences. Asserted by the legislator in part 2 of Art. 2.1 of the Code of Administrative Offences of the Russian Federation, the concept of a legal person’s guilt, referred to in the domestic legal doctrine as an “objectivistic” or “behavioural” concept,26 is largely similar to the theory of “past culpability” in the legal doctrine of countries of the common law family. As set forth in the provisions of administrative and tort legislation, the involvement of legal
23 Хайне Г. Юридические лица и их ответственность в немецком административном праве: проблемы реформации // Уголовное право. 2001. № 1. С. 100 [Günter Heine, Legal Persons and Their Responsibility in German Administrative Law: The Problems of the Reformation, 1 Criminal Law 99, 100 (2001)]. 24 Антонова Е.Ю. Концептуальные основы корпоративной (коллективной) уголовной ответствен- ности [Elena Yu. Antonova, Conceptual Foundations of Corporate (Collective) Criminal Liability] 29 (St. Petersburg: Yuridicheskiy tsentr Press, 2011). 25 For more details see Кибальник А.Г., Волосюк П.В., Демин С.Г. Вопросы уголовной ответственности юридических лиц: Монография [Aleksey G. Kibalnik et al., Issues of Criminal Liability of Legal Entities: Monograph] 55 (Moscow: Yurlitinform, 2017). 26 For more details see Есаков Г.А. Меры уголовно-правового характера в отношении юридических лиц: критическая оценка // Уголовное право. 2011. № 3. С. 28 [Gennady А. Esakov, Measures of a Criminal-Legal Nature with Regard to Legal Entities: Critical Evaluation, 3 Criminal Law 28 (2011)]; Панова И.В. Еще раз о двух тенденциях, разрушающих целостность института административной ответственности // Вестник Высшего Арбитражного Суда РФ. 2007. № 8. С. 14 [Inna V. Panova, Once Again About Two Trends Destroying the Integrity of the Institute of Administrative Liability, 8 Bulletin of the Supreme Arbitration Court of the Russian Federation 14 (2007)] and others. Sergey Markuntsov, Martin Wassmer 131 persons in administrative responsibility is possible in various areas: the administrative responsibility of legal persons is provided for in articles of almost all chapters of Section II “Special Part” of the Code of Administrative Offences of the Russian Federation, with the exception of its last Chapter 21 “Administrative Offences in the Field of Military Registration.” The majority of articles setting forth the administrative offences that establish the liability of legal persons is contained in Chapter 9, “Administrative Offences in Industry, Construction and Energy” – approximately 96% of articles, in Chapter 10, “Administrative Offences in Agriculture, Veterinary and Land Reclamation” – about 93% of articles, and in Chapters 14, “Administrative Violations in the Field of Entrepreneurial Activity and Activities of Self-Regulatory Organizations” and 16, “Administrative Offences in the Field of Customs (Violation of Customs Regulations)” – approximately 92% of articles. A total of 687 articles of the Code of Administrative Offences of the Russian Federation offsetting forth administrative offences in 472 articles (accounting for almost 69% of all articles of the Special Part of the Code of Administrative Offences of the Russian Federation) govern with respect to liability of legal persons. It should be noted that the number of articles establishing the responsibility of these entities has grown in both absolute and relative terms over time.27 With respect to a legal person, the following administrative penalties may be imposed for committing administrative offences: a warning, an administrative fine, confiscation of the instrument of the offence or the subject of an administrative offence or administrative suspension of activities.I n this case, as some scholars have noted, administrative law sanctions approximate those of the criminal law in their severity.28 In particular, the upper limit of punishment in the form of an administrative fine, established for a legal person, is differentiated depending on the type of offence committed. In the case of one administrative offence, it is organized in the amount of 1 million rubles, others – 3 million rubles, the third – 5 million rubles, and the fourth – as many as 60 million rubles (see part 1 of Art. 3.5 of the Code of Administrative Offences of the Russian Federation).
1.3. Practise in Germany and Russia In German practise, however, legal persons or associations are rarely fined, since in regulatory offences law, in contrast to criminal law, where the principle of legality must be taken into account, the principle of opportunity (§ 47 OWiG) applies.
27 in a training manual published in 2008, Yu. Kuzyakin wrote that “out of 414 articles of the Administrative Offenses Code of the Russian Federation that set forth the content of administrative offenses, 222 articles (which constitute 54% of all articles of the Special Part of the Code of Administrative Offenses of the Russian Federation) refer to the liability of legal persons.” See Кузякин Ю.П. Административная ответственность: Учебное пособие [Yury P. Kuzyakin, Administrative Responsibility: Textbook] 47 (2nd ed., Moscow: MGIU, 2008). 28 kibalnik et al. 2017, at 83. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 132
Prosecutions and sanctioning are within the duty-bound discretion of the authorities. Though the guiding principles are the principle of equality and of proportionality, a widespread lack of application and enforcement is observed.29 Furthermore, statistics show that the regulatory fines are generally mild. The Federal Office of Justice (Bundesamt für Justiz) collects all decisions pursuant to § 30 OWiG if the regulatory fine amounts to more than 200 euro (see § 149(2) No. 3 of the German Trade Code (Gewerbeordnung – GewO)). In 2015,30 only 2,907 registrations were made: in 17.4% of cases the regulatory fine was up to 300 euro, in 48.0% of cases it ranged from 300 to 1,000 euro, in 25.4% of cases from 1,000 to 5,000 euro, in 5.9% of cases from 5,000 to 20,000 euro, in 1.1% of cases from 20,000 to 50,000 euro, and just in 2.2% of cases it was over 50,000 euro. In contrast, it should be noted that the involvement of legal persons in administrative responsibility in Russia occurs quite often. Accordingly, in 2015, 214,821 legal persons were subjected to punishment for committing administrative offences, in 2016 – 217,507, and for the first half of 2017 – 114,797 legal persons, with a fine of 83.1% being imposed in the form of a fine, 84.1% and 82% of cases, respectively.31
2. Discussion on the Introduction of Criminal Liability in Germany and Russia
The introduction of criminal liability of legal persons in the German legal system has been the subject of intense debate for more than 200 years. 1. In the medieval period,32 in the Holy Roman Empire of the German Nation, spatial associations (farming unions, market cooperatives, rural and urban communities) and personal associations (e.g. citizens’ associations, guilds) became increasingly important. The teachers of secular and ecclesiastical law created the legal basis for the punishment of these associations, in particular through fines, but also through
29 elisa Hoven et al., Der nordrhein-westfälische Entwurf eines Verbandsstrafgesetzes [The North Rhine- Westphalian Draft of an Association Criminal Law], 6 Neue Zeitschrift für Wirtschafts-, Steuer- und Unternehmensstrafrecht 201, 209 (2014). 30 Bundesamt für Justiz [Federal Office of Justice], Übersicht über die Eintragungen im Gewerbezent- ralregister (Teilregister juristische Personen und Personenvereinigungen) [Overview of Entries in the Central Trade Register (Subregisters for Legal Persons and Associations of Persons)], 31 December 2016, table 01 (Aug. 10, 2018), available at https://www.bundesjustizamt.de/DE/SharedDocs/ Publikationen/GZR/statistik_jurPersonen2016.pdf?__blob=publicationFile&v=3. 31 See Reports on the work of courts of general jurisdiction to review cases of administrative violations for 2015, 2016, and the first half of 2017 (form No. 1-AP) on the website of the Judicial Department of the Supreme Court of the Russian Federation (Aug. 10, 2018), available at http://www.cdep.ru/index. php?id=79. 32 Charlotte Schmitt-Leonardy, Unternehmenskriminalität ohne Strafrecht? [Corporate Crime Without Criminal Law?] 346 ff. (Heidelberg: C.F. Müller, 2013). Sergey Markuntsov, Martin Wassmer 133 the withdrawal of privileges, destruction and conquest. The so-called glossators assumed that there were groups of persons who, regardless of changes to their memberships, were holders of rights and that the whole as such was liable under civil and criminal law. The so-called canonists developed the concept of the legal person, which was characterized by a legal capacity to be distinguished from the members, the “universitas,” which could assume tort and criminal liability. On the other hand, at the Council of Lyon (1245), Pope Innocent IV took the view that the “universitas” was incapable of action and thus impervious to punishment (impossible est quod universitas delinquat). However, very influentialpostal glossators, e.g. Bartolo da Sassoferrato (1313–1357), affirmed punishabililty. Although it was recognised that collective punishment could be unfair, and efforts were made to exempt innocent people, there were provisions on punishing towns, communities and guilds for political or economic offences. For example, the Reichskammergerichtsordnung of 1555 contained provisions governing proceedings against municipalities. These procedures existed until the 18th century. In the age of Enlightenment, in the German legal area collective punishment was abandoned.33 This was brought about by the then well-known book “Observationes quaedam ad delicta Universitatum spectantes” (1792/93) by Julius Friedrich von Malblanc (1752–1828), a professor from Erlangen. However, Malblanc repeated only well-known objections: Neither can “posteriori” (individuals who only became members of an association after an offence has been committed) be blamed, nor can an association be punished by criminal law. The real reason for the abandonment of collective punishment was that the Enlightenment concentrated on the freedom of the individual, with which punishment as a member of a collective is incompatible. As early as the beginning of the 19th century, in 1801, Paul Johann Anselm v. Feuer- bach (1775–1833) stated:
Every subject that is to be considered the subject of a crime must necessarily be an individual. A moral (mystical) person and especially a Universitas is not capable of crime.34
Friedrich Carl v. Savigny (1779–1861) justified this in 1840 based on his (Romanist) theory of fiction and representation as follows:
Criminal law has to do with the natural person, as a thinking, wanting and sentient being. The legal person, however, is not such a person, but only a person
33 rudolf Schmitt, Strafrechtliche Maßnahmen gegen Verbände [Criminal Measures Against Associations] 27 ff. (Stuttgart: Kohlhammer, 1958). 34 Paul Johann Anselm von Feuerbach, Lehrbuch des gemeinen in Deutschland geltenden Peinlichen Rechts [Textbook on Common Criminal Law in Germany] 29 (Giessen: Heyer, 1801). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 134
with assets, and is therefore completely outside the area of criminal law. Her existence is based on the representative will of certain individuals, which, as a result of fiction, is credited to her as her own will.S uch representation, however, without its own will, can only be observed in civil law, never in criminal law.35
Accordingly, the Criminal Code of Bavaria of 1813 expressly ruled out the criminal liability of legal persons. In the Prussian Criminal Code of 1851, and later in the Imperial Criminal Code of 1871 (RStGB), such punishment was already considered unthinkable, so that no mention of it was made. In 1887, the German Imperial Court (Reichsgericht) confirmed that point of view and stated that the legal person “as a fictitious legal entity is deprived of the natural capacity to act and thus at the same time of the criminal responsibility for of its organs acting as their representatives.”36 On the other hand, at the end of the 19th century there were also very influential voices in favour of criminal liability. Franz v. Liszt (1851–1919) stated in 1881:
The punishment of legal persons would not only be legally possible, but would also be recommendable within certain limits according to the example de lege ferenda given by the English-American practice.
[T]he prerequisites for the capacity of the collective personality to act in the field of criminal law are in principle none other than those of civil law.
[T]he collective personality is also the holder of legal assets, which can be penalized or destroyed.37
Otto v. Gierke (1841–1921) presented his (Germanic) theory of the real personality of the association in 1887, according to which associations are found in social reality, are “real” and act “themselves” through their organs.38 However, despite lively discussion, this did not lead to a change of mind. Nevertheless, in 1919, after World War I, § 357 of the Imperial Fiscal Code (RAO) was introduced which established the criminal liability of legal persons in tax law, likely based on the interest of fiscal authorities.H owever, this provision did not gain any practical significance until it was repealed because the GermanI mperial Court
35 Friedrich Carl von Savigny, System des heutigen Römischen Rechts. Bd. 2 [System of Contemporary Roman Law. Vol. 2] 312 f. (Berlin: Veit, 1840). 36 rGSt 16, 121, 123 f. 37 Franz von Liszt, Das deutsche Reichsstrafrecht [The German Imperial Criminal Law] 100 f. (Berlin; Leipzig: Guttentag, 1881). 38 Otto von Gierke, Die Genossenschaftstheorie und die deutsche Rechtsprechung [Cooperative Theory and German Jurisprudence] 743 ff., 771 ff. (Berlin:W eidmann, 1887). Sergey Markuntsov, Martin Wassmer 135 ruled in 192639 that the punishment of management excluded punishment of the legal person. During the Weimar Republic and the period of National Socialism, the prevailing view was that only natural persons were punishable. The assumption that the topic had become “highly relevant,” since in the “total state the interests of the national community and the state leadership are emphasized more strongly,”40 did not prove to be true. After World War II, the policy debate was revived in Western Germany as provisions that were enacted by the Allied occupation forces imposed criminal sanctions against legal persons. In 1953 the BGH considered these provisions as applicable, but contrary to German criminal law principles.41 During the Criminal Law Reform of the 1950s and 1960s, the Great Criminal Law Commission rejected the notion of imposing criminal liability on legal persons, but voted in favour of including at least a provision that would allow “monetary sanctions” to recapture illegal benefits.42 Eventually a compromise was reached. Thus, § 23 OWiG (the later § 30 OWiG) was introduced on 1 October 1968 as a general, uniform and conclusive provision allowing the imposition of regulatory fines on legal persons as well as on associations. In the 1990s the policy debate was reopened. The Sandoz chemical accident in the Schweizerhalle industrial complex, caused by a fire that subsequently led to tons of pollutants being spilled into the Rhine turning it red (November 1986), and embargo violations by German companies during and after the Second Gulf War (1990/91), attracted a lot of attention. As a result, the fines imposed under § 30 OWiG were often no longer considered adequate.43 In May 1993, the criminal liability of legal persons was discussed at length at the conference of German-speaking criminal law teachers in Basel.44 In July 1997, the Federal State of Hesse, then led by a “red-green” state government, proposed the introduction of a new title in the StGB (Verbandsstrafe und Maßregeln, §§ 76b–76h StGB). About a year later, the 69th Conference of Ministers of Justice in Rostock-Warnemünde (17/18 June 1998) stated that, with regard to corporate crime and in line with developments abroad, there was a need to improve the sanctions applicable to legal persons. On 9 July 1998, the State of Hesse presented
39 Entscheidungen des Reichsgerichts in Strafsachen. Bd. 61 [Decisions of the Imperial Court in Criminal Matters. Vol. 61] 92, 95 ff. (Leipzig:V eit & Comp., 1906). 40 r ichard Busch, Grundfragen der strafrechtlichen Verantwortlichkeit der Verbände [Basic Questions of Criminal Liability of Associations] V (Leipzig: Theodor Weicher, 1933). 41 Bundesgerichtshof [Federal Supreme Court], Neue Juristische Wochenschrift, 1953, at 1838, 1839. 42 Niederschriften der Großen Strafrechtskommission. Bd. 4 [Transcripts of the Great Criminal Law Commission. Vol. 4] 329 ff., 333 ff., 574 (Bonn: Gedruckt in der Bundesdruckerei, 1958). 43 Cf. the overview by Kurt Seelmann, Buchbesprechungen Verbandsstrafbarkeit [Book Reviews on Criminal Liability of Associations], 108 Zeitschrift für die gesamte Strafrechtswissenschaft 652, 652 ff. (1996). 44 Cf. Elmar Vitt, Diskussionsbeiträge der Strafrechtslehrertagung 1993 in Basel [Contributions to the 1993 Criminal Law Teachers’ Conference in Basel], 105 Zeitschrift für die gesamte Strafrechtswissenschaft 803, 813 ff. (1993). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 136 a motion for a resolution “on the introduction of criminal liability for legal persons and associations of persons,” which, however, was withdrawn 11 months later, on 8 June 1999, by the newly elected “black-yellow” state government.45 In January 1998, the Federal Justice Minister (Schmidt-Jortzig), member of a “black-yellow” coalition under Chancellor Helmut Kohl, appointed a “Commission to reform the sanctions system.” The preparatory working group was very sceptical about introducing criminal liability of legal persons and described it as a “path to a different criminal law” that would pose “complex problems in constitutional, criminal and criminal procedural terms.”46 At its meeting on 29 and 30 November 1999, the Commission voted by a large majority against the introduction, since existing regulatory fines were considered to be sufficient and an implementation of the criminal liability of legal persons would be opposed by strong concerns.47 Even today, there are considerable dogmatic and constitutional objections to the introduction of criminal sanctions against legal persons. According to the prevailing opinion,48 criminalisation is not compatible with the basic categories of criminal law. The argument here is that legal persons cannot act, are neither culpable nor punishable. Legal persons cannot suffer and learn from criminal sanctions. Introducing criminal liability would bear the risk that natural persons could face individual criminal sanctions, and, additionally, would be burdened with corporate criminal sanctions. The counterargument – rightly49 – does not share these objections, and assumes that corporations act either by an “original” organisational action, as independent and responsible subjects with a corporate culture, or by the “attribution” of the culpable conduct of the persons acting on their behalf. In addition, there is no risk of double jeopardy as the individual persons and the legal person are different entities.50 The basic arguments of supporters and opponents of criminal liability of legal persons are similar in many respects in the Russian and German criminal law doctrine. 2. In Russia, issues surrounding the imposition of criminal liability on legal persons also began to be discussed at the beginning of the 19th century.
45 Bundesratsdrucksache [Federal Council Publication], No. 690/98 and 385/99. 46 Abschlußbericht der Kommission zur Reform des strafrechtlichen Sanktionensystems [Final Report of the Commission] in Reform des Sanktionenrechts. Bd. 3 [Reform of the Sanctions Law. Vol. 3] 351 f. (M. Hettinger (ed.), Baden-Baden: Nomos, 2002). 47 Id. at 354 ff. 48 Cf. only Bernd Schünemann, Die aktuelle Forderung eines Verbandsstrafrechts [The Current Request of an Association Criminal Law], 1 Zeitschrift für Internationale Strafrechtsdogmatik 1, 1 ff. (2014). 49 See Waßmer 2016, at 178 ff. 50 On the constitutional objections to an association penal code under the German Basic Law see Matthias Jahn, There Is No Such Thing as Too Big to Jail in Das Unternehmensstrafrecht und seine Alternativen [Corporate Criminal Law and Its Alternatives] 53 (M. Jahn et al. (eds.), Baden-Baden: Nomos, 2016). Sergey Markuntsov, Martin Wassmer 137
In one of the “first, in the definition of G. Feldstein, attempts to scientifically process the material of Russian criminal law in the period preceding the publication of the Code of Laws”51 (the Russian criminal law, which Gabriel Solntsev presented in Kazan in 1820, was one of the first lectures on criminal law inR ussia), G. Solntsev, analyzing the position of foreign scholars with respect to this issue, came to the conclusion that
moral persons, i.e. society, can fall into crimes and then be subjected to legitimate punishments.52
At the beginning of the 19th century, G. Solntsev was one of the few domestic forensic scholars who shared this point of view. For the sake of justice, we should note that even in a later period, in the pre-revolutionary doctrine of domestic criminal law, this approach did not enjoy a broad base of support. Thus, in particular, V. Spasovich wrote that
a crime can be committed... only a person is a physical, and not a legal one. An old school question about whether a person can be a legal culprit for a crime is not worth the length of it.53
S. Budzinsky54, N. Neklyudov55 and other scholars adhered to a similar position on this issue. In a certain sense, summing up the views of contemporary forensic scientists, A. Kistyakovsky pointed out that
a long-standing dispute about whether a legal person can commit a crime is usually resolved in the negative sense.56
51 Солнцев Г.И. Российское уголовное право [Gavriil I. Solntsev, Russian Criminal Law] XXX (G.S. Feldshteyn (ed.), Yaroslavl: s.n., 1907). 52 Id. at 73. 53 Спасович В. Учебник уголовного права (выпуск первый) [Vladimir Spasovich, Criminal Law Textbook (Issue One)] 112 (St. Petersburg: Tip. Iosifa Ogrizko, 1863). 54 Будзинский С. Начала уголовного права [Stanislav Budzinsky, The Beginning of Criminal Law] 82–83 (Varshava: Glavnyi sklad v knizhnykh magazinakh Kozhanchikova v S. Peterburge, Varshave i Kazani, 1870). 55 Неклюдов Н.А. Общая часть уголовного права (конспект) [Nikolai A. Neklyudov, The General Part of the Criminal Law (Abstract)] 22–23 (St. Petersburg: Tip. P.P. Merkulyeva, 1875). 56 Кистяковский А.Ф. Элементарный учебник общего уголовного права. Т. 1: Общая часть [Aleksandr F. Kistyakovsky, Elementary Textbook of General Criminal Law. Vol. 1: The General Part] 61 (Kiev: Univer. tip., 1875]. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 138
At the same time, it is interesting that, despite the fact that only individuals were recognised as the subject of a crime in pre-revolutionary criminal legislation, there were provisions that also provided for the responsibility of collective entities. Such norms existed both in the original version of the Code of Criminal and Correctional Penalties of 1845 and in its later versions. Thus, in accordance with Article 1199 of the Regulations on Punishments in Penal and Correctional Institutions in 1845,
in the provinces of Lifland, Estland and Kurland, rural societies, which were guilty of harbouring fugitives with knowledge of their condition, are subject to: collecting at once for each fugitive triple from the whole peasant society of per capita taxes...
and according to Article 1893 of the same Code,
urban societies for the formulation of provisions which are contrary to the laws, are subjected to: the pecuniary punishment of one hundred rubles from all those who attended and signed this provision, and above all especially thirty rubles of the Graded Chapter.57
In the Penal and Penal Corrections Ordinance, in the version of 1885 there are also norms that provide for collective criminal responsibility. As an example, we can cite para. 2 of Article 530, according to which, in addition to the personal responsibility of the Jews,
moreover, from the Jewish society in which the military fugitive from the Jews was hiding, no more than three hundred rubles are paid for each person, if it did not find it and did not submit it to the proper superiors,
Article 661, according to which
the salt administration is subject to liability and penalties for failure to perform the duties assigned to it, in accordance with general rules, in section V of this Code of Crimes for Service ordered,
Article 1078,
places and persons, who are instructed by the government to monitor the good maintenance and timely correction of roads, bridges, crossings
57 Уложение о наказаниях уголовных и исправительных [Ordinance on the Penalties of Criminal and Correctional] 497, 731 (St. Petersburg: Tip. Vtorogo Otdeleniya Sobstvennoi Ego Imperatorskogo Velichestva Kantselyarii, 1845). Sergey Markuntsov, Martin Wassmer 139
over rivers, other waters, etc., for non-performance are subjected to: penalties determined for negligence in Arts. 410 and 411 of this Code
and some other articles58. Separate acts adopted in the 1920s to early 1930s also established the criminal liability of collective entities, although only individuals were recognised as criminal entities under post-revolutionary criminal law. Thus, in accordance with the note to clause 3 of the Decree of the All-Russian Central Executive Committee and the Council of People’s Commissars of the RSFSR of 21 September 1922 “On Involving the Population in Labour and County Service for the Elimination of Natural Disasters,”
in cases of extreme and urgent need, the right to involve the population in work labour and horse-drawn service is granted to the county executive committees and parish executive committees (depending on the area to which the natural disaster extends), provided that the provincial executive Committee should be informed immediately on the same day to declare the guilt. For failure to fulfil this condition, the county executive committees and parish executive committees are punished under Art. 106 of the Criminal Code of the RSFSR as for excess of power.59
After the Revolution of 1917, the possibility of criminal liability of legal persons was rejected by almost all scientists in the field of criminal law. In particular, in his monograph “Protecting the World and Fighting Crimes Against Humanity” (1956) A. Trainin wrote:
Both the theoretical considerations and the experience of the Nuremberg Trials convincingly show that not only the state, but also other legal persons cannot bear criminal responsibility, be subjects of crime.60
In this respect, virtually throughout the entire Soviet period of development of our country, there has been no significant discussion on the issue of criminal liability of legal persons.
58 Уложение о наказаниях уголовных и исправительных 1885 г. [The Code of Criminal and Correctional Penalties, 1885] 417–418, 446, 564 (N.S. Tagantsev (ed.), 13th ed., St. Petersburg: Gos. tipografiya, 1908). 59 Постановление ВЦИК и СНК РСФСР от 21 сентября 1922 г. «О привлечении населения к трудовой и гужевой повинности для ликвидации стихийных бедствий» (утратило силу), Собрание узаконений РСФСР, 1922, № 54, ст. 685 [Resolution of the All-Russian Central Executive Committee and the Council of People’s Commissars of the RSFSR of 21 September 1922. On the Involvement of the Population to Labor and Livestock Services for the Elimination of Natural Disasters (lost force), Collection of Legal Ordinances of the RSFSR, 1922, No. 54, Art. 685]. 60 Трайнин А.Н. Избранные труды [Aron N. Traynin, Selected Works] 724 (N.F. Kuznetsova (comp.), St. Petersburg: Yuridicheskiy tsentr Press, 2004). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 140
Under the conditions of the Soviet planned economy, in which not only the costs of goods produced by state enterprises but also criminal administrative sanctions were planned, there was a time when it was not appropriate to recognize the institution of administrative liability of legal persons. In accordance with clause 6 of the Decree of the Presidium of the Supreme Soviet of the USSR of 21 June 1961, “On Further Restriction of the Use of Fines Imposed Administratively,”61 the imposition of administrative fines on institutions, enterprises and organizations was abolished and the prohibition on classifying superimposed on officials fines at the expense of institutions, enterprises and organizations. As V. Sorokin indicates, the main idea of the Decree was to stop the practice of imposing administrative fines on enterprises and institutions which were not justified. In accordance with the decree, specific culprits – officials, whose actions constituted an administrative offence, were to be brought to administrative responsibility.62 Neither in the Fundamentals of the Legislation of the USSR and the Union Republics on Administrative Offences,63 adopted on 23 October 1980 by the Supreme Soviet of the USSR, nor in the Code of Administrative Offences of theRS FSR64 adopted on 20 July 1984 – the first law specially systematised and entirely devoted to the regulation of the institution of administrative liability, legal persons were not viewed as subjects of such liability. As V. Sorokin notes that since the beginning of the 1990s a tendency has developed that actually “erodes” the single legal space of administrative responsibility... at the federal level, normative acts are adopted that formulate new administrative offenses that are not included in the Administrative Code – a law specially designed for them... Approximately from the beginning of the 1990s laws, which began to spread administrative responsibility to enterprises, institutions and organizations, appeared in our legislation... One of the first such acts was the Federal law of 17 December 1992 No. 4121-I “On the Administrative Responsibility of Enterprises, Institutions, Organizations and Associations for Violations
61 Указ Президиума Верховного Совета СССР от 21 июня 1961 г. «О дальнейшем ограничении при- менения штрафов, налагаемых в административном порядке» (утратил силу), Ведомости Вер- ховного Совета СССР, 1961, № 35, ст. 368 [Decree of the Presidium of the Supreme Council of the USSR of 21 June 1961. On the Further Restriction of the Application of Fines Imposed Administratively (lost force), Gazette of the Supreme Council of the USSR, 1961, No. 35, Art. 368]. 62 Сорокин В.Д. Правовое регулирование: Предмет, метод, процесс (макроуровень) [Valentin D. Sorokin, Legal Regulation: Subject, Method, Process (Macrolevel)] 440 (St. Petersburg: Yuridicheskiy tsentr Press, 2003). 63 Основы законодательства Союза ССР и союзных республик об административных правона- рушениях (приняты Верховным Советом СССР 23 октября 1980 г.) (утратили силу), Ведомости Верховного Совета СССР, 1980, № 44, ст. 909 [Fundamentals of the Legislation of the USSR and the Union Republics on Administrative Violations (adopted by the Supreme Council of the USSR on 23 Oc- tober 1980) (lost force), Gazette of the Supreme Council of the USSR, 1980, No. 44, Art. 909]. 64 Кодекс РСФСР об административных правонарушениях (утв. Верховным Советом РСФСР 20 июня 1984 г.) (утратил силу), Ведомости ВС РСФСР, 1984, № 27, ст. 909 [Code of Administrative Offences of the RSFSR (approved by the Supreme Council of the RSFSR on 20 June 1984) (lost force), Gazette of the Supreme Council of the RSFSR, 1984, No. 27, Art. 909]. Sergey Markuntsov, Martin Wassmer 141 in the Field of Construction.”65,66 In the future, the number of such regulatory legal acts has increased significantly, including on the basis of some codified acts, such asU rban Planning, Customs, Tax Codes, etc. The appearance in the 90s of the 20th century of norms governing the administrative responsibility of legal persons was largely due to changes in the economy of the country. With changes to the economic foundations of the state, some scholars in the field of criminal law began to posit the potential introduction of the institution of criminal liability for legal persons. In particular, in his article, “Criminal Law in the Conditions of Transition to a Market Economy,” A. Naumov wrote:
[T]he development of market relations in our country can make legal persons the subject of a number of economic crimes for which they could be prosecuted.67
Overall, the scientists who developed the concept of criminal law of the Russian Federation in 1992 adopted a positive attitude towards the criminal liability of legal persons. As such, the developers of the concept noted:
The question of the appropriateness of imposing criminal liability on legal persons requires special attention; it appears that the application of appropriate sanctions against them, for example for environmental crimes, could enhance the criminal law protection of key institutions.68
In the first of the drafts of the new Criminal Code of the Russian Federation, submitted to the Supreme Council of the Russian Federation in 1992, only individuals were recognized as subjects of criminal responsibility.69 However, a number of authors
65 Закон РФ от 17 декабря 1992 г. № 4121-I «Об административной ответственности предприятий, учреждений, организаций и объединений за правонарушения в области строительства» (утратил силу), Ведомости Съезда народных депутатов Российской Федерации и Верховного Совета Российской Федерации, 1993, № 2, ст. 58 [Law of the Russian Federation No. 4121-I of 17 December 1992. On the Administrative Responsibility of Enterprises, Institutions, Organizations and Associations for Violations in the Field of Construction (lost force), Gazette of the Congress of People’s Deputies of the Russian Federation and the Supreme Soviet of the Russian Federation, 1993, No. 2, Art. 58]. 66 Сорокин В.Д. Избранные труды [Valentin D. Sorokin, Selected Works] 613, 619 (D.N. Bakhrakh & V.V. Denisenko (preface), St. Petersburg: Yuridicheskiy tsentr Press, 2005). 67 Наумов А.В. Уголовный закон в условиях перехода к рыночной экономике // Советское госу- дарство и право. 1991. № 2. С. 35 [Anatoly V. Naumov, Criminal Law in the Conditions of Transition to a Market Economy, 2 Soviet State and Law 35 (1991)]. 68 Концепция уголовного законодательства Российской Федерации // Государство и право. 1992. № 8. С. 44 [The Concept of Criminal Legislation of the Russian Federation, 8 Soviet State and Law 44 (1992)]. 69 Уголовный кодекс Российской Федерации (проект) // Юридический вестник. Спецвыпуск. 1992. Октябрь. № 20(22) [The Criminal Code of the Russian Federation (draft), 20(22) Special Issue of the Juridical Gazette (1992)]. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 142 of this document later proposed to supplement the draft with several provisions relating to the possibility of imposing criminal liability on organisations (legal persons) for environmental crimes. The proposed punishment for a legal person: imposition of the obligation to repair the damage caused, a fine and suspension of the legal person.70 The draft of the General Part of the Criminal Code of the RF by the RF Ministry of Justice and the State Legal Department of the President of the Russian Federation in 1994 initially provided for the institution of criminal liability of legal persons. In the explanatory note to the project, the drafters pointed out that,
the introduction of criminal liability imposed on legal persons for economic, environmental and some other crimes will help to increase the effectiveness of the fight against these crimes. As punishment, the draft provides for a fine, a ban on certain activities, confiscation of assets and liquidation of the legal person (Articles 107–111).71
Finally, proposals on the criminal liability of legal persons were not included in the text of the Criminal Code of the Russian Federation, adopted in 1996. In this regard, B. Volzhenkin writes,
Thus, Russian legislation does not yet provide for criminal liability of legal persons. There is no recommendation to impose such a responsibility in the Model Criminal Code for States. However, there is some reason to assert that in the near future the question of establishing criminal liability for legal persons will again be posed with sufficient severity.72
At the end of the 20th and beginning of the 21st century, the Russian Federation became a party to many international conventions (the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999, the Council of Europe Convention on Criminal Responsibility for Corruption of 27 January 1999, the UN Convention against Transnational Organized Crime of 15 November 2000, the UN Convention against Corruption of 31 October 2003), providing, as E. Antonova noted, the duty of our state to ensure the application of effective, proportionate and deterrent sanctions, including criminal ones, against legal persons brought to justice in connection with the commission of crimes.73
70 Волженкин Б.В. Уголовная ответственность юридических лиц [Boris V. Volzhenkin, Criminal Liability of Legal Persons] 7 (St. Petersburg: Editorial and Publishing Department of the St. Petersburg Law Institute of the Prosecutor General’s Office of the Russian Federation, 1998). 71 Уголовный кодекс Российской Федерации (Общая часть): Проект [The Criminal Code of the Russian Federation (General Part): Draft] 8 (Moscow, 1994). 72 volzhenkin 1998, at 23. 73 Antonova 2011, at 7. Sergey Markuntsov, Martin Wassmer 143
As indicated earlier, in 2001, the Code of Administrative Offences of theR ussian Federation was adopted. With respect to this, G. Esakov rightly said that these provisions on the administrative liability of legal persons may well be considered a “testing ground” for future criminal law norms.74 Against this background, some scholars in the field of criminal law continue to insist that
the question of the criminal liability of legal persons cannot be regarded as conclusive from a criminal law, legal theory or practical point of view. But it needs a new understanding, in a deep, integrated and interdisciplinary development, which involves experts from different fields of modern science as different branches of national law as well as criminal law abroad.75
3. Recent Developments and Outlook
1. In recent years, the debate in Germany has flared up again, as legal persons can now be held criminally liable in most states of the European Union. In September 2013, the Minister for Justice of the Federal State of North Rhine- Westphalia (Thomas Kutschaty), then member of a “red-green” state government, presented the draft of a Criminal Code for Associations (Verbandsstrafgesetzbuch – VerbStrG),76 which was to be introduced “soon” into the legislative procedure. In addition, in November 2013, the coalition agreement of the newly elected “black-red” Grand Coalition under Chancellor Angela Merkel promised to extend the law of administrative offences and to “examine” a “corporate criminal law for multinational corporations.”77 The draft in North Rhine-Westphalia was the subject of controversy and discussion within criminal science.78 Not only has the need been called into question, but also whether the provisions can be integrated into the existing system. Ultimately, the proposal failed to be implemented by the end of the legislative period (October 2017).
74 Есаков Г.А. Юридические лица и ответственность за убийство (о новом английском законе) // Уголовное право. 2007. № 6. С. 19 [Gennady А. Esakov, Legal Persons and Responsibility for the Murder (on the New English Law), 6 Criminal Law 19 (2007)]. 75 Коробеев А.И. § 8 «Юридическое лицо как субъект уголовной ответственности» гл. X «Субъект преступления» // Полный курс уголовного права. В 5 т. Т. 1: Преступление и наказание [Aleksandr I. Korobeev, § 8. Legal Person as a Subject of Criminal Responsibility of Chapter X. Subject of Crime in Full Course of Criminal Law. In 5 vol. V. 1: Crime and Punishment] 434–435 (A.I. Korobeev (ed.), St. Petersburg: Yuridicheskiy tsentr Press, 2008). 76 See http://www.strafrecht.de/media/files/docs/Gesetzentwurf.pdf. 77 deutschlands Zukunft gestalten. Koalitionsvertrag zwischen CDU, CSU und SPD [Designing Germany’s Future. Coalition Agreement Between CDU, CSU and SPD], 27 November 2013, at 101 (Aug. 12, 2018), available at https://www.bundesregierung.de/Content/DE/_Anlagen/2013/2013-12-17- koalitionsvertrag.pdf?__blob=publicationFile. 78 Cf. only Frank Zieschang, Das Verbandsstrafgesetzbuch – Kritische Anmerkungen zu dem Entwurf eines Gesetzes zur Einführung der strafrechtlichen Verantwortlichkeit von Unternehmen und sonstigen Verbänden [The Criminal Code of Associations – Critical Remarks on the Draft Law Introducing Criminal Liability of Companies and Other Associations], 161(2) Goltdammer’s Archiv für Strafrecht 91, 91 ff. (2014). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 144
The new coalition agreement of February 2018 of the re-elected “black-red” coalition again promises a reform of the “sanctions law for companies.”79 In contrast to the former agreement, concrete statements are made: The plan is to turn away from the principle of opportunity and to create regulations on procedural suspensions as well as allocation rules in order to eliminate the actual application and enforcement deficits.T he sanction instruments are also to be expanded. The amount of the fine shall be based in the future on the economic strength of the company, whereby for companies with an annual turnover of more than 100 million euro the maximum limit is to be 10 percent of turnover. This would generalise the severe sanctions already in place in capital market and accounting law, which are based on European law. In addition, legal requirements for internal investigations are to be created. The introduction of criminal liability is not mentioned. It is therefore to be expected that only the existing provisions will be extended. This is in line with the fact that in terms of criminal policy, there is no compelling need for the criminal liability of legal entities. So far, neither European nor international regulations require the creation of corporate criminal law. Furthermore, the existing system appears to be generally sufficient to combat corporate crime. Progress can be achieved by eliminating the deficits of application and enforcement and by expanding preventive measures. In this respect, in the recent past many companies have established compliance programmes. As an empirical study80 indicates, these measures have led to a significant decline in corporate crime. However, the introduction of corporate criminal law would have advantages. It could have a stronger detrimental effect on corporate crime, since prosecution would take place in accordance with the principle of legality, and a criminal fine, which has a stigmatising effect, would be imposed in a public criminal trial. Moreover, only criminal punishment adequately reflects injustice and guilt of a crime committed by a person acting on behalf of a legal entity. And finally, account would be taken of the fact that most states of the European Union have a corporate criminal law. Conceptually, future German criminal law should not be based on the model of original responsibility, which is tied to the (alleged) legal entity’s “own” organisational guilt. Such a model has a connection to Swiss law,81 and also to the draft of the Criminal
79 ein neuer Aufbruch für Europa. Eine neue Dynamik für Deutschland. Ein neuer Zusammenhalt für unser Land. Koalitionsvertrag zwischen CDU, CSU und SPD [A New Start for Europe. A New Dynamic for Germany. A New Cohesion for Our Country. Coalition Agreement Between CDU, CSU and SPD], 7 February 2018, at 126 (Aug. 12, 2018), available at https://www.zeit.de/politik/deutschland/2018- 02/koalitionsvertrag.pdf. 80 wirtschaftskriminalität und Unternehmenskultur 2013 [White-Collar Crime and Corporate Culture 2013], PricewaterhouseCoopers (2013), at 16 ff. (Aug. 10, 2018), available at https://files.vogel.de/ vogelonline/vogelonline/files/5947.pdf. 81 Cf. Martin Böse, Strafbarkeit juristischer Personen – Selbstverständlichkeit oder Paradigmenwechsel im Strafrecht [Criminal Liability of Legal Persons – A Matter of Self-Evidence or Paradigm Shift in Criminal law], 126 Zeitschrift für die gesamte Strafrechtswissenschaft 132, 140 (2014). Sergey Markuntsov, Martin Wassmer 145
Code for Associations of North Rhine-Westphalia from 2013. However, fact that “original” guilt can only be attributed to natural persons runs counter to this model. Preference should be given to the attribution model, in which the guilt of a natural person is attributed. This model can be used to sanction criminal offences committed by a manager himself or his subordinates, provided a violation of an obligatory supervision has been committed. It is not only supported by the fact that the European rules on the (non-compulsory criminal) liability of legal persons rest on it. But Austrian law as well is based on it,82 as is the draft of the Federal Ministry of Justice,83 which was submitted to the Commission appointed in 1998. Finally, the attribution model is often favoured in criminal science,84 particularly because § 30 OWiG is also based on it. The Cologne Draft of a Sanctions Code for Associations (Verbandssanktionengesetz – VbSG),85 presented on 6 December 2017 at the University of Cologne, which emerged from a research group comprising scientists and practitioners, is also based on the attribution model. This draft contains extensive substantive and procedural rules designed to resolve many difficulties. It has a special preventive orientation.86 This is expressed above all in the fact that part of the criminal sanctions, which can amount to up to 15% of the annual turnover, can be waived, if the caused damage is compensated and suitable organizational and personnel measures are taken, in order to avoid future offences. In addition, representatives of an association have the right to silence. Finally, with regard to internal investigations, it is stipulated that not only lawyers and advisors, but also the interviewed persons have the right to refuse to testify and are not subject to confiscation. After all, it is now up to the German legislator to decide on the introduction of corporate criminal liability. The Grand Coalition has the historic opportunity to introduce a modern Code. The Cologne draft offers a broad basis for future discussion. In this context, not only should the sanctions be expanded with a sense of proportion, but also the rights of defence be sustainably strengthened. In the long term, particularly with regard to European criminal law, criminal liability should be provided for. 2. Recently, the problem of imposing criminal liability on legal entities has been actively discussed at various scientific forums in Russia. In particular, at Moscow State University the Russian-German criminal legal seminar, “Criminal and Legal
82 Bundesgesetz über die Verantwortlichkeit von Verbänden für Straftaten (Verbandsverantwortlichkeitsgesetz – VbVG) [Federal Act on the Responsibility of Associations for Criminal Offences], BGBl. I Nr. 151/2005. 83 Bundesjustizministerium, Zurechnungsmodell [Attribution Model] in Reform des Sanktionenrechts, supra note 46, at 155 ff., 178 f. 84 See Rogall 2018, § 30 marginal no. 287. 85 See http://www.verbandsstrafrecht.jura.uni-koeln.de. 86 Martin Henssler et al., Kölner Entwurf eines Verbandssanktionengesetzes [Cologne Draft of an Association Sanctions Law], 1 Neue Zeitschrift für Wirtschafts-, Steuer- und Unternehmensstrafrecht 1, 10 (2018). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 146
Impact on Legal Entities” was held in 2012, the French-Russian Conference “Criminal Responsibility of Legal Entities”87 was held in 2015, etc. About a dozen candidate and doctoral dissertations have been written on these issues. In 2011 the Investigative Committee of the Russian Federation prepared and sent to the Administration of the President of the Russian Federation a draft federal law, “On Amending Certain Legislative Acts of the Russian Federation in Connection with the Introduction of the Institute of Criminal Legal Influence on LegalE ntities.”88 This bill was never submitted to the State Duma of the Federal Assembly of the Russian Federation and, in general, received a negative evaluation in the scientific community. In particular, according to G. Esakov’s comment, the project is not only crude (there are many gaps in it; it is necessary to amend the Civil Code of the Russian Federation, the Penal Enforcement Code of the Russian Federation, a number of other laws), but it is also more than controversial in terms of the idea embedded within it. Instead of the concept of imposing liability on legal entities for crimes committed, we are offered an artificial construction of “involvement in a crime.” This means that the most important and conceptual comment on the draft law results in the ability to impose upon a legal person criminal responsibility without a culpable act.89 In 2015 the next draft “On Amending Certain Legislative Acts of the Russian Federation in Connection with the Introduction of the Institution of Criminal Responsibility of Legal Entities”90 was introduced, but not adopted by the State Duma of the Federal Assembly of the Russian Federation. Among the numerous remarks on the draft federal law, in particular, it was noted that
the currently extant administrative and legal measures and their conseq- uences are approaching the criminal law in nature, and in some cases exceed them.
87 For more details see Уголовно-правовое воздействие в отношении юридических лиц: материалы российско-немецкого уголовно-правового семинара (26 июня 2012 г.) [Penal Influence Regarding Legal Persons: Materials of the Russian-German Penal Seminar (26 June 2012)] (Moscow: Yurlitinform, 2013). 88 Проект федерального закона «О внесении изменений в некоторые законодательные акты Российской Федерации в связи с введением института уголовно-правового воздействия в отношении юридических лиц» (подготовлен Следственным комитетом России) [Draft Federal Law “On Amending Certain Legislative Acts of the Russian Federation in Connection with the Introduction of the Institute of Criminal Legal Influence on Legal Entities”] (ConsultantPlus Legal Database, 2012). 89 esakov 2011, at 30, 27. 90 Проект федерального закона № 750443-6 «О внесении изменений в некоторые законодательные акты Российской Федерации в связи с введением института уголовной ответственности юриди- ческих лиц» [Draft Federal Law No. 750443-6 “On Amending Certain Legislative Acts of the Russian Federation in Connection with the Introduction of the Institution of Criminal Responsibility of Legal Entities”] (Aug. 10, 2017), available at http://asozd2.duma.gov.ru/main.nsf/%28Spravka%29?OpenA gent&RN=750443-6. Sergey Markuntsov, Martin Wassmer 147
Since the bill proposes a radical change in the concept of criminal law and, accordingly, the criminal legal doctrine regarding the responsibility of legal entities, the bill requires additional comprehensive discussion and theoretical justification.
Conclusion
The analysis of the developmental history and current status of the doctrinal criminal law dispute, as well as legislative developments with respect to the introduction of the institution of criminal responsibility in Germany and Russia, has demonstrated a number of similarities. In the legal doctrine of both countries, discussions on the criminal liability of legal persons have been held with varying degrees of success for about two hundred years. Recently, discussions in this direction have intensified considerably.I t is worth noting the similarity of the basic arguments raised by supporters and opponents of the institution of criminal liability for legal persons in the Russian and German criminal law doctrines. A few years ago there were certain legislative initiatives on this subject in both countries. In Germany, a complex system of administrative liability is applied instead of imposing criminal liability on legal persons. At this stage, a reform is in sight, which is expected to take place during the current legislative period, even if it is not yet clear whether only the existing administrative liability will be extended or whether legal persons will be held criminally liable. In Russia, the number of standards that lay down provisions on the administrative liability of legal persons is gradually growing, which some scientists believe can be regarded as a “testing ground” for future criminal law standards.
References
Волженкин Б.В. Уголовная ответственность юридических лиц [Volzhenkin B.V. Criminal Liability of Legal Persons] (St. Petersburg: Editorial and Publishing Department of the St. Petersburg Law Institute of the Prosecutor General’s Office of theR ussian Federation, 1998). Das Unternehmensstrafrecht und seine Alternativen [Corporate Criminal Law and Its Alternatives] (M. Jahn et al. (eds.), Baden-Baden: Nomos, 2016). Das Verbot der Auslandsbestechung [The Prohibition of Foreign Bribery] (E. Hoven & M. Kubiciel (eds.), Baden-Baden: Nomos, 2016). Reform des Sanktionenrechts. Bd. 3 [Reform of the Sanctions Law. Vol. 3] (M. Hettinger (ed.), Baden-Baden: Nomos, 2002).
Information about the authors
Sergey Markuntsov (Moscow, Russia) – Professor, Department of Criminal Law and Criminalistics, Faculty of Law, National Research University Higher School of RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 148
Economics (3 Bol’shoy Trekhsvyatitel’skiy pereulok, Moscow, 109028, Russia; e-mail: [email protected]).
Martin Wassmer (Cologne, Germany) – Professor, Chair for Criminal Law and Criminal Procedure, Director of the Institute for Criminal Law and Criminal Procedure, University of Cologne (Albertus-Magnus-Platz, Cologne, 50923, Germany; e-mail: [email protected]). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3
COMMENTS
LEGAL VIEW ON THE INTRODUCTION OF NEW TECHNOLOGIES
OLEG STEPANOV, Institute of Legislation and Comparative Law under the Government of the Russian Federation (Moscow, Russia)
DENIS PECHEGIN, Institute of Legislation and Comparative Law under the Government of the Russian Federation (Moscow, Russia)
DOI: 10.17589/2309-8678-2018-6-3-149-171
According to the Concept of Long-Term Social and Economic Development of the Russian Federation for the period up to 2020, in the next few years the imbalance in world trade, as well as capital flows, will continue to increase, which will lead to changes in foreign exchange rates. That is why the final goal is to promote priority national interests in the framework of bilateral and multilateral trade and economic relations with foreign countries. In pursuit of this goal, the following improvement of customs regulation, and export and currency control mechanisms in the Russian Federation will be aimed at reducing barriers to foreign economic activity of innovative enterprises. Achievement of the set goals today is subject to the influence of aconstantly changing world and new technologies. New technologies are increasingly penetrating the life of modern society. Meanwhile, the speed of introduction of new technologies is such that point changes in current legislation will gradually nullify the effectiveness of legal regulation as a system. Therefore, the changes today should concern not only the monetary and financial sphere, but also take into account other areas. The article is devoted to the study of crucial problems of implementing modern technologies from the legal point of view. Thus, at the international level, uncertainty still remains over issues of currency and legal responsibility, which is largely due to various legal regulations. Starting in 2018, the new rules for calculating the liquidity of banks and the ratio of borrowed funds to assets will come into full force in the European Union. Several large banks in France, dissatisfied with the policy of the European Central Bank (ECB), even appealed to the European Court of Justice for a change in the rules. According to RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 150
FxPro analysts’ reports, economic growth in Europe has accelerated slightly, and the ECB is on the verge of abandoning its ultra-easy monetary policy in the direction of neutral and is preparing for further tightening. One of the subjects of the research is the system of monetary relations from the point of view of analyzing the problems of ensuring its stability, including criminal and legal means. The purpose of this analysis is to illustrate how to protect the domestic foreign exchange market and the challenges facing the monetary system today. The article has been prepared on the basis of legal and technical analysis of legal norms, as well as comparative legal and formal logical methods and system analysis methodology. In the authors’ view, this could contribute to a uniform approach to the problem, without which it would be extremely difficult to achieve success. It is concluded that in view of new challenges facing the global economy and the emergence of cryptocurrency, it is necessary to rethink the phenomenon of currency crimes, to study the experience of combating monetary crimes in other countries and to evaluate the common mechanisms for combating currency crimes. However, this approach cannot be considered legitimate insofar as different interpretation of the same term in different branches of legislation does not allow full realization of the constitutional rights and freedoms of citizens. After all, branches of legislation do not exist in isolation from one another, but are interrelated. It is concluded that the person conducting proceedings in a case can and is obliged, based on an analysis of the circumstances under consideration, to proceed from a comprehensive assessment of the category used in making the decision as applied to its understanding in aggregate in various branches of legislation. It is also necessary to create a universal state database for judges, prosecutors, investigators, etc., which would allow free cross-sectoral information exchange on the same subject. The new digital economy also requires retraining of civil servants and state employees, including the judiciary branch of government. At the same time, the article deals with the transformation of the legal profession in the future. It is concluded that classical legal education will not sink into oblivion. However, the lawyers of the future will play a slightly different role, namely, they will act as machinists, builders, operators and inventors of a useful model of legal relations for robot judges.
Keywords: monetary responsibility; surrogates; repatriation of funds; currency regulation; virtual currency; Ethereum; virtual rails.
Recommended citation: Oleg Stepanov & Denis Pechegin, Legal View on the Intro- duction of New Technologies, 6(3) Russian Law Journal 149–171 (2018).
Introduction
An analysis of the legal regulation of foreign systems allows us to consider our own national experience through the lens of international practice, which forces us OLEG STEPANOV, DENIS PECHEGIN 151 to analyze and evaluate this problem from a different angle, in a new aspect, with an enriched understanding of the essence of the problem.1 For nearly all countries with a developed market economy, protection of currency and currency assets by criminal law is typical, but only with respect to their falsification and forgery.2 This approach applies, for instance, in Austria, Germany and Switzerland. There is complete freedom of foreign exchange operations and there is no criminal liability for operations related to the movement of foreign exchange capital. Thus, German criminal law does not provide a generally accepted and precise definition characterizing criminality in the area of currency circulation. Furthermore, the movement of capital to and from the country is practically unlimited, as a result of which there are no norms in the legislation establishing liability for crimes in the sphere of currency regulation and currency control. In the criminal legislation of these countries there are no criminal prohibitions covering the export of currency assets outside the country and their non-repatriation, since such movement is carried out by free settlements under foreign economic transactions and investments. Currency control in these countries is based on other principles. In France, to make a foreign economic transaction or investment to an offshore jurisdiction you must pay all taxes first. In Japan, you must have a special license when such foreign transaction will be made outside an authorized bank or by an unusual method. In contrast, countries with another type of economy (a transitional economy) provide special liability for failure to repatriate funds in foreign currency from abroad. All the criminal codes of the countries of the former Soviet Union have provisions that establish criminal prohibition on the production or sale of counterfeit money or securities, their illegal transfer across the customs border, and non-repatriation of funds from foreign countries in foreign currency (the Criminal Code of Azerbaijan – Art. 208, the Criminal Code of Belarus – Art. 225, the Criminal Code of Georgia – Art. 217, the Criminal Code of Kazakhstan – Art. 213, the Criminal Code of Tajikistan – Art. 287, the Criminal Code of Uzbekistan – Art. 178, and the Criminal Code of Ukraine – Art. 207). However, the scale and significance of fraudulent actions in economic activity are increasing every year. Therefore, there is a need for common mechanisms to counter currency crimes. Price stability is the main prerequisite for sustainable economic growth, which is confirmed by economic studies and past experience.T he monetary regime in the Russian Federation is defined as
1 Comparative Labour Law and Industrial Relations in Industrialized Market Economies 4 (R. Blanpain & J. Baker (eds.), The Hague: Wolters Kluwer, 2001). 2 Aaron Wright & Primavera De Filippi, Decentralized Blockchain Technology and the Rise of Lex Crypto- graphia (2015), available at https://ssrn.com/abstract=2580664. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 152
an aggregate of legal means with the common subject of its regulation being the sphere of currency relations that determine such behavior of the subjects of these relations, under which the protection of the national currency and the normal functioning and development of the domestic foreign exchange market are guaranteed.3
Meanwhile, changes are coming in the modern world. Digital transformation in economics and law will require massive changes in legislation and education.
In the wake of the on-going digital revolution, we will see a dramatic transformation of our economy and most of our societal institutions. While the benefits of this transformation can be massive, there are also tremendous risks to our society.4
Today, more than ever before, an integrated approach to the use of cross-sectoral terminology is important. In our opinion, the unity of categorical understanding and material and legal basis in modern conditions will allow us to make that breakthrough on realizing the task of ensuring the rights and freedoms of the person and the citizen guaranteed by the Constitution of the Russian Federation. It is also necessary to train civil servants in a new way, which we will talk about later when describing the third problem that occurs between innovations and the law. Such education will be needed in order to form a community of lawyers of the future. These lawyers will be busy building a virtual railway track in order to use modern technologies in making procedural decisions. In this regard, the lawyers of the future will act as machinists, operators, builders and inventors of a useful model of legal relations. Building a virtual railway for a robot that will make a decision on the merits of the case is what awaits us in the near future. We will now turn to a direct study of the topic of the article.
1. Innovations and the Law: Problem One
It should be mentioned that the obligation to repatriate funds from abroad currently does not exist in countries with developed market economies. On the contrary, modern countries strive to make capital movement free. In this sense, the experience of China is also of interest.
3 Кучеров И.И. Валютное право России (Академический курс лекций) [Ilya I. Kucherov, Currency Law of Russia (Academic Lecture Course)] 38 (Moscow: Yustitsinform, 2011). 4 d irk Helbing, Societal, Economic, Ethical and Legal Challenges of the Digital Revolution: From Big Data to Deep Learning, Artificial Intelligence, and Manipulative Technologies (2015), at 1 (Jul. 5, 2018), available at https://ssrn.com/abstract=2594352. OLEG STEPANOV, DENIS PECHEGIN 153
Foreign currency was mentioned for the first time in Chinese law in the Order on Strengthening Punishments for Persons Who Have Committed Serious Economic Crimes of 1982. However, amendments to the Criminal Code did not follow until 1988, when the illegal placement of foreign currency abroad was criminalized. Article 190 of the Criminal Code of China states that any state-owned company, enterprise or any other state-owned unit that, against State regulations, deposits foreign currency outside China or illegally transfers foreign currency to any other countries shall, if the circumstances are serious, be fined, and the persons who report directly and other persons who are directly responsible for the crime shall be sentenced to a fixed term of imprisonment of no more than five years or criminal detention. Today, the Criminal Code of China includes some other types of currency crimes, namely, counterfeiting currency and securities. For example it provides different penalties for the following criminal activities: counterfeiting or altering a currently used coin, paper currency, or banknote with the intention to circulate; circulating a counterfeit or altered coin, paper currency, or banknote or collecting it from or delivering it to another with the intention to circulate; reducing the weight of a coin with the intention to circulate; circulating a coin of reduced weight or collecting it from or delivering it to another with the intention to circulate; manufacturing, delivering, or receiving an instrument or material with the intention of using it to counterfeit or alter a currently used coin, paper currency, or banknote or using it to reduce the weight of a currently used coin. Globalism and modern international processes have such a strong influence on the modern world economy that the economic decisions of individual countries, regardless of their type, influence each other, as well as the overall global development trend. Therefore, there is a need for common mechanisms to counter currency crimes. This is especially associated with the appearance and popularization of virtual currency. The development of Internet trading technologies and methods has now led to the revival of the idea of private money at present. The emergence of cryptocurrencies and their active popularization in the world, on the one hand, and uncertainty about their legal nature, on the other, can significantly affect the national economy due to the need for consistent maintenance of the balance of payments. The danger is that, whereas previously it was possible to physically stop activities, for example, an underground printing house that printed banknotes (including counterfeit), and so on, it is impossible to do the same with cryptocurrency because of its decentralization.5 In other words, the records of a cryptocurrency account are stored on completely different computers around the world, which are not directly connected with each other. The attractiveness
5 Печегин Д.А. Крипториски // Российский журнал правовых исследований. 2017. № 3(12). С. 151– 157 [Denis A. Pechegin, Cryptorisks, 3(12) Russian Journal of Legal Studies 151 (2017)]. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 154 of cryptocurrencies and other cash surrogates is that the procedure for relevant payments is still not regulated in the legislation of most countries, which actually removes barriers to international transactions, although it creates conditions for the withdrawal of funds abroad (no need to pay any fees to banks, pay taxes, etc.). However, there is still no consensus on the nature of such “money,” and the “founders” have repeatedly said that bitcoin can crash at any moment, even given its prevalence in the world and very large capitalization.6 Along with the doctrinal problems of identifying, investigating and suppressing currency crimes of non-repatriation of funds from abroad, there is also uncertainty in the regulation of relations associated with the use of virtual currency in mutual settlements. Despite this, as we can see in the diagram below, today total virtual currency capitalization is more than $350 billion and growing.
Table 1
This assertion is especially topical in connection with the increasing prevalence of virtual currency. The event of 17 June 2016, when Ethereum (an analog of Bitcoin) cryptocurrencies totaling about $50 million disappeared from circulation for users, is quite indicative in this regard.7 From the outside, this project seemed to be ideal, since distributed electronic money systems cannot be hacked. Therefore, people quietly
6 Поппер Н. Цифровое золото: невероятная история Биткойна [Nathaniel Popper, Digital Gold: The Untold Story of Bitcoin] 11 (Moscow: Dialektika, 2016). 7 dong He & Robert N. McCauley, Offshore Markets for the Domestic Currency: Monetary and Financial Stability Issues, BIS Working Papers No. 320 (September 2010), at 8 (Jul. 5, 2018), available at https:// www.bis.org/publ/work320.pdf. OLEG STEPANOV, DENIS PECHEGIN 155 invested their money, and in return received so-called tokens, which they used to vote for where to invest the total capital − the expected profit was supposed to be distributed among the participants of the initiative. However, the money suddenly appeared on the account of one of the project participants, who could not rightfully claim it, but he did not violate the terms of the contract. If this had happened in the real world, people could go to court or challenge the terms of the contract, contact the bank and ask to block the account. But these events occurred on the Internet, the invested money was calculated not in dollars, but in units of the distributed Ethereum (“ethers”) cryptocurrencies. At the same time, the contract itself was of an innovative nature – it was a machine code that could not be changed without crashing the entire system; i.e. it was represented by a program that executed all the rules of the system when a transaction was made.8 In particular, it was also the fact that actions under the electronic contract were made not by people, but by computers. Therefore, it was almost impossible to break, cancel or bypass it, and if a participant wanted to leave the organization, a subsidiary organization was created to return the invested money, where funds were transferred from the main one. And as it turned out later, as a result of a mistake in the machine code, this operation could be repeated countless times, which was used to advantage by the attacker. In a short time, he transferred an amount equal to approximately $50 million to his subsidiary organization. This money could be returned only by the attacker himself, but he did not intend to do this, because he had not formally violated the terms of the contract. In the end, it turned out that there were no other project participants in a position to make claims and no one to apply to for protection of their rights. As a result, it became obvious that the use of organizational and legal means to prevent such situations was more than relevant, and rules governed by self-executing smart contracts and decentralized (autonomous) organizations did not always work. It appears that the widespread use of this new decentralized technology will lead to an increase in the scope of new legislative regulation, which will determine the use of such rules. The features of these laws will most likely be determined by the fact that centralized authorities, such as government agencies and large multinational corporations, may lose the ability to monitor and shape the activities of individuals.9 This determines the need to focus on how to regulate and manage the creation and deployment of new decentralized organizations, as well as on how to apply government regulations to combat money laundering via Bitcoin and similar virtual currencies.10
8 Легальное ограбление // Lenta.ru. 3 сентября 2016 г. [Legal Robbery, Lenta.ru, 3 September 2016] (Jul. 6, 2018), available at https://lenta.ru/articles/2016/09/03/ethereum/. 9 wright & De Filippi 2015, at 4. 10 d anton Bryans, Bitcoin and Money Laundering: Mining for an Effective Solution, 89(1) Indiana Law Journal 441 (2014). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 156
The use of a digital currency narrowing the relationship between citizens and central banks and eliminating the need for the population to keep deposits in commercial banks may have profound consequences for the banking system. In particular, holders of cryptocurrencies could replace traditional shareholders, and could then appoint members of a governing body similar to a board of directors. This governing body could vote to issue the currency to the account holder, who could then act similarly to the chief financial officer to pay salaries to managers, employees and directors.11 At the same time, the anonymity in blockchain technology is preserved, in spite of the fact that the information about networks of chains is kept forever and keeps growing, which works against anonymity. It is often emphasized in legal doctrine how Bitcoin can be used for illegal activities.
There are concerns about the secretive purchase of illegal goods and the cross-border transfer of money either for money-laundering or to finance terrorism (Ron & Shamir, 2014; Tropina, 2014). Bitcoin was the normal means of settlement for trade in illicit goods (such as drugs, pornography and weapons) via online marketplaces such as the infamous Silk Road (Christin, 2013). On the other hand, due to the pseudo-anonymous character of the currency, detection of criminals is not impossible, as demonstrated by the closure of Silk Road in October 2013 and the prosecution of its founder.12
One of the most important regulatory developments has recently taken place in France.
While French authorities admit that Bitcoin does not pose a threat to financial markets, they have recognized that there is clearly room for concern with regards to criminal activity and fraud. These concerns are mostly concerned with the anonymity of transactions, which could have tax and money laundering implications.13
Ensuring effective management of blockchain technologies and smart contracts is essential to ensure its further evolution. Based on the mathematical principles underlying the location of the blocks, an alternative approach to existing legal
11 robert Leonhard, Corporate Governance on Ethereum’s Blockchain (2017) (Jul. 5, 2018), available at https://ssrn.com/abstract=2977522. 12 Michal Polasik et al., Price Fluctuations and the Use of Bitcoin: An Empirical Inquiry, 20(1) International Journal of Electronic Commerce 9, 20–21 (2015). 13 Andrés Guadamuz & Christopher Marsden, Bitcoin: The Wrong Implementation of the Right Idea at the Right Time (2014), at 15 (Jul. 5, 2018), available at https://ssrn.com/abstract=2526736. OLEG STEPANOV, DENIS PECHEGIN 157 practice is already being proposed.14 The so-called distributed jurisdiction is an open source platform ecosystem for reasonable resolution of contractual disputes, which allows users to select a conflict resolution mechanism by using crypto resources, as well as a mechanism for inherited enterprises that want to participate in the growing opportunities for crypto business and hope to avoid the inherited intermediary and transaction losses associated with it. At the same time, it is important to note that currently, the creation of such conditions in the Russian Federation is hampered to some extent by the lack of legal opportunities for law enforcement agencies to prevent and respond to criminal manifestations in this area, in particular, related to financing terrorist activities with virtual currency, the use of which implies the anonymity of transactions and users, and rapid speed of transactions. A very clear example of this is the conviction of Ali Shukri Amin, a teenager from Virginia, who was sentenced to 11 years in prison for providing financial support to ISIL, using social media to instruct people how to use bitcoin. He had over 4,000 followers on Twitter. The willingness of terrorists to use new financial opportunities to increase their funding deserves close attention from legal scholars and practitioners, which is currently focused on addressing the need to counter the threat of proliferation of international terrorism. Meanwhile, the practical implementation of measures to neutralize the criminal threats associated with the use of cryptocurrency involves the creation of appropriate conditions for implementing legal regulation of the investment industry. Creating these conditions is directly related to the need for a consistent legal policy, characterized by a certain level of legality, legal awareness and legal culture of the population. Such policies should be based on the following basic principles: – the principle of justice, according to which measures taken against a particular person for his actions related to the use of cryptocurrency should be based on ensuring a balance of interests of the individual, society and the state; – the principle of adequate response to any criminogenic manifestation, on the basis of which the offender is subject to certain state measures, regardless of his official, professional or property status, and law enforcement agencies are called on to neutralize negative consequences in the development of innovative economic processes. The implementation of these principles involves the development of an organizational component associated with a clear delineation of powers, determining the competence of Federal and regional authorities, as well as local governments. However, the Russian Federation has still not developed a uniform approach to understanding the nature of cryptocurrency. Russian judicial practice in this
14 wulf A. Kaal & Craig Calcaterra, Crypto Transaction Dispute Resolution, 73(1) Business Lawyer 109 (2018). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 158 highlighted matter is based on the fact that until due legal settlement of all key issues in the cryptosphere is achieved, neither individual persons nor legal entities will be able to find protection against governmental enforcement authorities. A lack of clarity in approaches to law enforcement practice prevails in foreign jurisdictions. Thus, according to one U.S. court decision, bitcoin is recognized as legal tender.15 Relying on the principle that, in the absence of regulation, a contractual term is to be understood in its literal sense, one U.S. court concluded that bitcoin is a form of money, since it acts as a universal monetary equivalent and is used to acquire things. In another decision, bitcoin was not recognized as money.16 This latter decision contradicts other judicial acts of 2013 and 2014 on similar issues.17 Moreover, in the U.S., the Internal Revenue Service’s interpretation is that cryptocurrency is property, whereas FinCEN’s interpretation is to recognize cryptocurrency as a form of currency.18 For ICO projects in the Russian Federation, a standard is being created that will make it possible to distinguish them from fraudulent schemes and financial pyramids. The specific criteria for the standard will be the accuracy of information about the founders and the team, the business plan of the project and the minimum viability of the product. At the same time, it should be taken into account that preparations are currently underway to create a single financial market forR ussia, Belarus, Kazakhstan, Armenia and Kyrgyzstan; i.e. the countries of the Eurasian Economic Union (EAEU) plan to develop a common approach to the regulation of cryptocurrencies and ICO. We are talking about the development of model laws on cryptocurrencies and blockchain, providing unified regulation of their use. An example of this is the experience of the European Union, which recently adopted a Directive defining cryptocurrencies as a digital means of expressing value that is not issued by the state. Meanwhile, as might be expected, the diversity of views on the nature of the cryptocurrency and ICO projects is creating practical problems. But such problems cannot be called “new” in the legal doctrine of the Russian Federation. We mean the problem of a purely sectoral approach to the understanding of a term during the conduct of certain cases. We will dwell on this issue in more detail.
15 United States v. Murgio, No. 15-CR-769 (AJN) (S.D.N.Y. Apr. 21, 2016) (Jul. 7, 2018), available at http:// cdn.arstechnica.net/wp-content/uploads/2016/09/murgio-order.pdf. 16 Судья из Майами отказалась признать биткоин деньгами // ForkLog. 26 июля 2016 г. [The Judge from Miami Refused to Recognize Bitcoin as Money, ForkLog, 26 July 2016] (Jul. 7, 2018), available at https://forklog.com/sudya-iz-majami-otkazalas-priznat-bitkoin-dengami/. 17 Id. 18 Хисамова З.И. Уголовно-правовые меры противодействия преступлениям, совершаемым в финансовой сфере с использованием информационно-телекоммуникационных технологий: Дис. … канд. юрид. наук [Zarina I. Khisamova, Criminal Law Measures of Combating Crimes in the Financial Sector Using Information and Telecommunication Technologies: Thesis for a Candidate Degree in Law Sciences] 166 (Krasnodar, 2016). OLEG STEPANOV, DENIS PECHEGIN 159
2. Innovations and the Law: Problem Two
Today, more than ever before, an integrated approach to the use of cross- sectoral terminology is important. This is easy to see by the example of such terms as “currency” or “damage” in national legislation. In modern conditions, law enforcement should not be limited to a purely sectoral view of a particular term. Budget, arbitration, criminal and criminal procedure legislation does not clearly distinguish one legal relationship from another. In order to protect the constitutional rights and freedoms of individuals and citizens, the terms and concepts used by law enforcement agencies must be understood in a comprehensive manner.19 However, the practical effect of a comprehensive understanding of a particular legal category by a particular law enforcement officer in today’s environment will largely depend on the quality of the material (data) base to which he has access. We are referring to the creation of a single state data exchange platform, since digitalization is becoming an all-encompassing trend throughout the Russian Federation and all over the world. The idea of the Center for Strategic Research (CSR) that a “unified architecture for the state digital platform overcoming the fragmentation of departmental systems and based on a single array of data” must be created in the Russian Federation should be evaluated positively. Such a platform, in our opinion, should allow the person conducting criminal proceedings to become directly acquainted with the data of arbitration, civil, executive and administrative proceedings in electronic form and online. According to the CSR idea, the digital platform “will help to perform the majority of management functions on the basis of platform solutions without the involvement of the authorities.” Thus, the public administration system will have to act as an advanced IT corporation, and civil servants will develop a “digital mentality.” At the same time, businesses will be interested in creating a state platform, as they will be able to use it for their own purposes: they will be able to develop and connect their applications to it, which can be paid. It is expected that this year the unified digital platform will unite 45 state portals (which currently number more than 5,000 in Russia). The new platform will be a marketplace with a high-quality interface, providing services for government, citizens and businesses. The need to introduce a single digital platform is explained, in particular, by the fact that today there is no single standard for public portals; they look different and have different interfaces. This approach will significantly increase the speed of protecting the rights of citizens against any possible attacks, allow a response to any violations in time, effectively nullify corruption risks and so on.
19 Кулик Т.Ю. К вопросу о единстве терминологии, определяющей участие прокурора в арбитражном процессе // Арбитражный и гражданский процесс. 2017. № 11. С. 12–15 [Tatiana Yu. Kulik, On Consistency of Terminology Defining Prosecutor’s Participation in Arbitral Procedure, 11 Arbitration and Civil Procedure 12 (2017)]. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 160
We emphasize that we are not talking about the total unity of terminology within a particular branch of law. For example, we do not take into account the relationship of terms such as information and data, the line between which is clearly drawn in the foreign states, such as Canada.20 Meanwhile, in our opinion, the unity of categorical understanding and the material and legal basis will achieve this breakthrough in realizing the task of ensuring the rights and freedoms of the person and the citizen guaranteed by the Constitution of the Russian Federation under modern conditions. The Austrian experience is of interest in this regard. The Austrian Criminal Procedure Code states that a civil plaintiff (Privatbeteiligter) is every victim who has filed a claim for damages in criminal proceedings, and if the Prosecutor refuses to press charges, the civil plaintiff becomes a supporter of the subsidiary (additional) charge (Subsidiaranklager). For some crimes, it is possible to involve a private Prosecutor (Privatanklager) in the case. It should be emphasized that, unlike Russian criminal proceedings, legal entities in Austria cannot be recognized as victims. Thus, on the one hand, Austrian legislation regulates the concept of the victim in criminal proceedings in more detail, if we are referring to a natural person; on the other hand, it avoids the dualism of legal regulation inherent in domestic criminal proceedings, inevitable in the recognition of victims of legal entities.21 A similar regulation is provided for in Swiss law.22 In Switzerland, the definition of damage caused to the victim, as well as to the victim of a crime, is based on a comprehensive approach with reference to the provisions of other branches of legislation, including civil law. This approach seems to be positive, reflecting current trends, and therefore it can be proposed to the legislative body in order to overcome sectoral barriers when the constitutional rights and freedoms of man and citizen must be protected. However, the problem of Russian criminal proceedings is just the opposite. Whereas Russian arbitration courts view specific transactions in a citizen’s accounts in dollar terms and calculate the debtor’s amount of debt under bankruptcy proceedings based on the market value of the U.S. dollar on the day the obligation was to be performed under the terms of the preliminary contract, criminal law practitioners (see part 4 of Art. 159 of the Russian Criminal Code) presume that damages must be calculated in rubles at the Central Bank exchange rate on the day the attacker had the opportunity to dispose of such assets, i.e. on the day the funds were transferred.
20 d onald K. Piragoff, Computer Crimes and Other Crimes Against Information Technology in Canada, 64(1–2) International Review of Penal Law 201, 210 (1993). 21 Ильютченко Н.В. Оптимизация уголовного процесса: опыт Австрии // Актуальные проблемы российского права. 2015. № 12. С. 178–183 [Natalia V. Ilyutchenko, Optimization of Criminal Procedure: Austrian Experience, 12 Actual Problems of Russian Law 178 (2015)]. 22 Трефилов А.А. Уголовный процесс зарубежных стран. Т. 1 [Alexander A. Trefilov,Criminal Procedure of Foreign Countries. Vol. 1] (Moscow: Voskhod, 2016). OLEG STEPANOV, DENIS PECHEGIN 161
This approach in Russian criminal law cannot be justified. In an unstable global and economic situation, there may be a sharp jump in the U.S. dollar against the ruble. In fact, it turns out that an attacker who stole a specific amount from a citizen (for example, $50,000) must return not $50,000 to him, but the amount in rubles at the Central Bank rate on the date of the theft. But who said that the citizen wanted to exchange the specified amount for rubles on this day? Furthermore, since the dollar to ruble rate is constantly changing (and in general only increases), the attacker (if he was caught and found guilty) does not need to return $50,000 to the citizen, and it is enough to give the corresponding smaller amount in rubles, if anything at all. The whole paradox of the situation described above is that in other parts of Article 159 of the Russian Criminal Code, namely parts 5–7, the same amount of money stolen by the same attacker will be calculated quite differently, since it is a theft in the business of commercial organizations (in this case, the person conducting the proceedings must focus on specific civil contracts, etc.). According to clause 15 of Resolution of the Plenum of the Supreme Court of the Russian Federation of 15 No- vember 2016 No. 48 “On the Practice of Courts Applying Legislation Regulating the Characteristics of Criminal Liability for Crimes in the Sphere of Entrepreneurial and Other Economic Activity,” the amount of damage to be compensated is determined on the basis of civil contracts, primary accounting documents, statements (certificates) of settlement accounts, information on transactions using electronic means of payment, etc. If necessary, a forensic examination may be assigned to determine the amount of damage to be compensated. In modern conditions, law enforcement should not be limited to a purely sectoral view of a particular term. Budget, arbitration, criminal and criminal procedure legislation does not clearly distinguish one legal relationship from another. In order to protect the constitutional rights and freedoms of individuals and citizens, the terms and concepts used by law enforcement agencies must be understood in a comprehensive manner. If attackers stole $50,000 from individuals, they must return a minimum of $50,000. Austrian, as well as Swiss,23 experience is positive in this regard, which allows the calculation of damages to be based on the civil law system of rules and regulations in criminal cases. The positive experience of these states should be considered an acceptable approach for implementation in Russian legal practice. However, this is not the only problem that arises when introducing new technologies into existing legal and social frameworks. In addition to the inconsistency of various branches of legislation, modern conditions require constant retraining of personnel and civil servants.
23 trefilov 2016. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 162
3. Innovations and the Law: Problem Three
The third problem of introducing modern technologies in society and the state is training civil servants for the development of the digital economy. The issue of training is presented as central in the debate on the digital economy. The European Commission has made this a priority in the EU.
Demand for digitally skilled employees is growing by around 4% a year. Shortages of ICT professionals in the EU could reach 825,000 unfilled vacancies by 2020 if no decisive action is taken.24
Training is envisaged simultaneously from the economic standpoint – the digital economy needs workers trained in new technologies – and the social standpoint:
Digital skill levels need also to be raised among employees in all economic sectors and among job seekers to improve their employability.25
In his message to the Federal Assembly on 1 June 2017, the President of Russia Vladimir Putin gave instructions to prepare a program of measures for the development of the digital economy, which would reduce the lag between Russia and the most developed countries in the sphere of high technologies by almost half. According to Vladimir Putin, the state should be engaged in the development of the digital economy in order to ensure the future of the national economy and the country as a whole during a “Direct Line” with the population on 15 June 2017.
Without the digital economy, we will not be able to move to the next technological mode. And without this transition to a new technological order, the Russian economy, and therefore the country, has no future. The development of the digital economy of Russia is the number one task in the economic sphere.
On 28 July 2017, Russian Federation Government Order No. 1632-R approved the “Digital Economy” (DE) program, which by 2024 must be implemented in in Russia in five areas relating to regulation, education, personnel, formation of research competencies, IT infrastructure and cyber security.
24 european Commission, A Digital Single Market Strategy for Europe, 6 May 2015, COM(2015)192 final, at 16 (Jul. 5, 2018), available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex% 3A52015DC0192. 25 Christophe Degryse, Digitalisation of the Economy and Its Impact on Labour Markets, ETUI Research Paper – Working Paper 2016.02 (2016), at 46 (Jul. 5, 2018), available at https://ssrn.com/abstract=2730550. OLEG STEPANOV, DENIS PECHEGIN 163
According to this program, the DE is represented by 3 levels affecting the markets and sectors of the economy (areas of activity), where specific entities (suppliers and consumers of goods, works and services), platforms and technologies, which form the competencies for the development of markets and sectors of the economy (areas of activity) interact in an environment that creates the conditions for the development of platforms and technologies and effective interaction of subjects of markets and sectors of the economy (areas of activity) and covers regulatory and information infrastructure, personnel and information security.26 The main benchmarks for education are: creating the key conditions for training in the digital economy; improving the education system, which must provide the digital economy with competent personnel; the labor market, which must be based on the demands of the digital economy; creating a system of incentives for developing the necessary competencies and engaging staff in the development of the digital economy. In its most general form, development of the DE can be defined as a means of carrying out socio-economic activities based on the use of electronic data. However, new forms of managing the activities of public authorities and the business community are aimed at providing the population of Russia, the business community and government agencies with relevant socio-economic data, not only through the widespread use of information and telecommunication technologies, but also through artificial intelligence systems and robotics. Taking this into account, the implementation of law enforcement (control and supervision) activities of state bodies and the professional development of civil servants must be associated not only with their professional careers, but also with the amount of professional knowledge and skills that accompany their career advancement (advanced training, retraining, self-education, etc.). Thus, the need to implement the concept of unification of the rules for submission of procedural documents and evidence in electronic form during judicial procedures requires conducting training related to establishing the procedure for electronic interaction between the participants in the process. Since the category of “human rights” contains the general humanistic potential associated with a decent human existence, any possible form of diminution of human freedom should be regarded as directed against its evolutionary development. Along with human freedom, one of the most important indicators in the development of the DE is its security. In considering human security as a phenomenon, it is important to identify it not only with the security of the individual, but also with society and the state, which provide the individual with the opportunity to make a free choice, with the confidence that its current capabilities will not be lost tomorrow.
26 Об утверждении программы «Цифровая экономика Российской Федерации» // Правительство Российской Федерации. 31 июля 2017 г. [On the Approval of the Program “Digital Economy of the Russian Federation,” The Russian Government, 31 July 2017] (Jul. 10, 2018), available at http:// government.ru/docs/28653/. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 164
Since the magnitude of the risk characterizes the danger to which subjects of law may be exposed, such danger must be associated with legal facts that involve manifestations of undesirable consequences. This makes it possible to predict the potential threats to human life at the earliest stages of their occurrence and to answer the following questions: a) how dangerous are the expected threats, as well as the side effects and their consequences for the person; b) whether the consequences of these threats are reversible; c) what other threats may cause risks and consequences for the person, similar to the risks under consideration, and how large these risks are for the person in comparison with other threats existing at the moment, as well as taking into account legal, political and economic factors; d) is there a likelihood that, along with reducing the degree of risk, the recommended decision will not cause the emergence of other risks or the development of side effects. The end of the industrial age allowed Academician Nikita Moiseev to note in his book “Parting with Simplicity” that realization of the complexity of the world should lead to the complication of methods of interaction with it toward individualization of these methods and the future of a particular person aware of the values and advantages of their own individuality.27 Furthermore, a state personnel policy that is designed to ensure economic growth and increase labor productivity and efficiency in the use of resources in the country leads to real improvements in the areas of demography, education, culture, the environment, security, as well as in such areas as the quality of public administration, and the participation of citizens in decision-making affecting their welfare and social situation. The “World Development Report: The State in a Changing World” (1997), issued by the World Bank more than twenty years ago and devoted to consideration of the main functions and role of the state, as well as its place in the socio-economic development of countries, noted that an effective state is able to optimally respond to internal and external challenges, keeping society within the coordinates of its sustainable socio-economic development. In addition, the report emphasized that effective activity of the state, which plays the role of catalyst and assistant, stimulating and complementing the activities of private businesses and individuals, is an important prerequisite for successful socio-economic development of the country.28
4. Innovations and the Law: Problem Four
The fourth problem is related to the competence of Executive and Judicial bodies in the Russian Federation within the scope of the DE. In speaking about the problem of
27 Моисеев Н.Н. Расставание с простотой [Nikita Moiseev, Parting with Simplicity] (Moscow: Agraf, 1998). 28 Доклад о мировом развитии 1997: Государство в меняющемся мире [World Development Report 1997: The State in a Changing World] (Вашингтон: Всемирный банк, 1997) (Jul. 10, 2018), also available at https://docslide.net/documents/-1997--56df16c4cb36b.html. OLEG STEPANOV, DENIS PECHEGIN 165 the digital competence of state bodies, we must take into account the fact that in 2018 there are plans to develop a number of priority measures to improve legal regulation in order to accelerate the development of the digital economy. These measures include the preparation of new legal regulations allowing Executive bodies and financial organizations to accept e-solutions, i.e. documents in electronic form, which will be designated as a legally authoritative counterpart of paper documents. At the same time, it is proposed to bring legislation regulating legal proceedings and notarization into line with the requirements of the DE, related to unification of procedural rules for filing claims, complaints, petitions and evidence in electronic form for arbitration courts and courts of general jurisdiction. Thus, the Supreme Court of the Russian Federation proposed to abolish the duty of plaintiffs to send a copy of the claim and its annexes to the participants of the process in the case of an electronic application, to establish the general duty of the court when it receives a notice in electronic form, to post it with the application defined for this purpose and grant the right to read and copy them, and to establish the rights of each of the parties to the proceedings to submit any document (including photos, audio recordings and videos) in electronic form to their account on the court’s website or in the “Justice” system. There are also plans to develop electronic interaction between participants in the process, courts, bailiff service, other bodies and organizations involved in the execution of court decisions. It assumes essential changes in Russian legislation and in the identification of subjects of legal relationships: the legislation must allow for identification and authentication of subjects in any technically possible way, including an electronic signature, biometric data, and subscriber number of an individual client (natural person), which are intended to unambiguously identify the person and to establish his will to commit actions. In our opinion, in this case, we must talk about building a virtual railway network for Russian Federation justice. We all know that Themis is blind. However, she can become really blind only with respect to new technologies. In this regard, the new Russian invention seems to be a positive experience. Russian developers have just proposed to implement so-called virtual railways in car computers. Dozens of startups around the world, as well as automotive giants, dream of autopilot for land transport today. But, despite all budgets, nobody has built a full autopilot yet. The reason is the imperfection of computer vision and the absence of full-fledged artificial intelligence. Cameras and radar are blind in bad weather, and the virtual mind is not as smart as people. However, the problem can be partially solved by simplifying it – this was the path taken by the Russian company BaseTrack with its development of “virtual rails.”29 In the tests, the test sedan makes a full circle on an ice-covered river and stops at
29 Autonomous Car on Ice. Snow Test (Jul. 10, 2018), also available at https://www.youtube.com/watc h?v=STzbbxuEmeU&feature=youtu.be. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 166 a predetermined point without any mistakes. No cones are hit, and all the turns are indicated clearly. This is possible because the route is entered in the memory of the car’s control system – the car knows where and how to brake, accelerate and turn the steering wheel. The developers loaded the exact trajectory of the winter Myachkovo in the Cruze, and did it remotely from the Moscow office.T hus, the technology allows you to enter the route, speed, traffic, etc. in the car’s computer. In other words, the person’s task now consists only in building the infrastructure for movement and ensuring proper loading of the rail map. The main advantage of “virtual rails” is that positioning the vehicle moving on them does not required external reference points, such as markings and infrastructure. They themselves are a reference point, ideal for this part of the path. Therefore, this car is not afraid of anything that stumps a traditional five-minute UAV, like fog, snow, or lack of road markings. In its pure form, this system can be used to control the movement of unmanned vehicles in closed areas, including in the workplace and in agriculture, and can also be useful in the development of machinery power units. Another option is to automate the movement of trucks, including columns and unusual roads, winter roads and other deserted routes. In all these cases, the development of BaseTrack can be a way to save fuel and energy (and health, in the case of the military). It remains only to set the machine’s logic of behavior to allow it to accurately follow the virtual railways.30 The long description of this development is directly linked to legal peace and justice. After all, this technology can be used in legal proceedings. Perhaps we should not yet talk about a fully autonomous robotic system for making procedural decisions. However, we fully imagine the advantages of such robots in so-called simple cases, issuing court orders, traffic offenses, criminal cases for minor, etc. Lawyers of the future will be engaged in building a virtual railway network for justice, taking into account emerging practices, new rules, relevant explanations of higher courts, as well as doctrinal developments at both the national and international level. That is, they will prescribe the logic and effectiveness of the behavior of robots in a process of a particular case. Therefore, the legal profession will not disappear in the future, even with the advent of artificial intelligence.V ery complex cases will still be considered in the classic style. You will need lawyers for simple cases, but they will play the role of machinists who monitor whether the computer correctly determines the conditions of movement of the “train” (case). In addition, such lawyers may act as consultants when complaints are received or on issues for which a robot solution has been developed, but will send the case for classical consideration by judge if there are errors. The system we have described
30 Ласьков Д. Виртуальные рельсы: тест нового ассистента автономного вождения // Авто Mail. Ru. 14 мая 2018 г. [Dmitry Laskov, Virtual Rails: Test of a New Autonomous Driving Assistant, Auto Mail.Ru, 14 May 2018] (Jul. 10, 2018), also available at https://auto.mail.ru/article/68530-virtualnye_ relsy_test_novogo_assistenta_avtonomnogo_vozhdeniya/. OLEG STEPANOV, DENIS PECHEGIN 167 will help to minimize the number of complaints filed today in specific cases, will eliminate paperwork, and will strictly comply with the deadlines established by procedural legislation. In other words, a kind of revolution is coming in the legal world. Lawyers in the future will act as developers of a useful model of legal relations, builders, machinists, operators, etc. And if we imagine that this process will be connected to a smart computer with a neural network, the horizon of legal science will truly become limitless. Therefore, we cannot agree with Chris Anderson’s conclusion regarding “the end of theory,” i.e. the hypothesis that the data deluge makes the scientific method obsolete.31 It should be agreed that
we are currently experiencing a far-reaching digital transformation of work. The changes include the growth of automatic management and a move toward ever more precarious work. To the extent that technology can help us realize an increase in skilled knowledge work, that is a positive goal.32
According to Zimmermann, the four main characteristics of DE are platforms and services, process, structure and product.33 Based on this, separate rules must be developed to identify equipment, including communications equipment, robots and other machines. In this context, it is impossible to ignore the very heated discussion about the legal status of robots. During analysis of the competence problem, it is quite natural to conclude that robots and other machines are objects of legal relations and cannot be independent subjects of law, since the law regulates social relations between people as biological beings. It is difficult to imagine that a machine with artificial intelligence can independently, “personally” enter into legal relations and be a subject of responsibility. That is why we were talking about lawyers as machinists, builders, operators, etc. However, some experts believe that there are no special legal obstacles to legislative allocation of the rights and obligations of subjects of various legal relations to robots. In early 2017, in Belgium, a robot named Frank Pepper (the name of a series of robots) became the first humanoid in the world to be officially included in the population register. And the humanoid robot Sofia recently received citizenship in Saudi Arabia. However, granting robots the status of subjects of legal relations will require a radical change in our understanding of the law with respect to artificial intelligence, which includes solving philosophical questions about the place of artificial intelligence
31 helbing 2015, at 3–4. 32 Miriam Cherry, Beyond Misclassification: The Digital Transformation of Work, 37(3) Comparative Labor Law & Policy Journal, Forthcoming 544 (2016). 33 hans-Dieter Zimmermann, Understanding the Digital Economy: Challenges for New Business Models, AMCIS 2000 Proceedings. Paper 402 (2000) (Jul. 5, 2018), available at https://ssrn.com/abstract= 2566095. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 168 within the existing human civilization. Changes will be necessary in the regulatory framework of the Russian Federation affecting the principles of legal regulation and synchronized with the technological features of the DE. If we consider that the main function of the judiciary is the administration of justice, we can agree with the definition of “judicial information” as information generated as a result of the direct activities of the judiciary in the management, maintenance and administration of justice. Based on the need to apply uniform accounting standards in judicial practice, it is important to optimize the process of using such information in order to transform the concept of state activities from “state over its citizens” to “state citizens.” The court’s activities are designed to ensure a balance between the interests of the individual and the state – the judiciary is obliged to restore a violated right if any of the parties have ignored the law. That is why such power should be considered not just as a separate part of the state mechanism, but as an expression and confirmation of the justice of the state organization of society.T his situation, in particular, can contribute to a computer-based assessment of the quality of a judicial act (sentence, decision), related to the development and creation of a comprehensive system of quality management of judicial acts through the use of modern software and hardware. Man and computer as independent phenomena, complementing each other and sharing the load evenly among themselves, are able to form a highly productive system designed to develop effective solutions in a short period of time based on such principles as phasing, composition and feedback.34 In this regard, in 1990, Donald Norman described this phenomenon as follows:
People are wrong. This is the prose of life. People are not accurate machines. The fact that people are completely different from cars. Creativity, adaptability, flexibility – these are our trumps. Constant anxiety and inaccuracy in actions or memory are our weaknesses.35
Creation of a comprehensive system of quality management of judicial acts is intended to exclude the possibility of abuse of rights. It should be borne in mind that the prospects for the functioning of a compre- hensive quality management system for judicial acts should be connected not only with a legal assessment of the actions of an individual, but also with the establishment of guarantees of response to such actions. Based on this observation, it is advisable to set out the method for a generalized scenario, the essence of which
34 Степанов О.А. Перспективы повышения качества судебных актов за счет использования элект- ронных технологий // Современное право. 2013. № 7. С. 101–107 [Oleg A. Stepanov, The Perspectives of Improvement the Quality of the Judicial Acts with the Information Technologies, 7 Modern Law 101 (2013)]. 35 d onald Norman, Human Error and the Design of Computer Systems, 33(1) Communications of the ACM 4, 4–5 (1990). OLEG STEPANOV, DENIS PECHEGIN 169 is that the assessment of actions and events involves the establishment of possible “nodal” positions related to law enforcement, which are determined by human rights standards, as the basis for the functioning of a comprehensive quality system for judicial acts. Since the category of “human rights” includes a general humanistic potential associated with the worthy existence of a person, any possible diminution of human freedom in modern society should be regarded as directed against its evolutionary development. The use of neural network technologies for this purpose, in particular, will not only take into account the needs for freedom and security of the individual, society and the state, but will also open up new opportunities for further development of the judicial system as a whole. Thus, before the court verdict is announced, the judge is called, using the capabilities of a comprehensive quality system for judicial acts, and using software and hardware to compare the draft act prepared by him with a computer information model based on the normative image of actions (events) and the legal content of actions (events). At the same time, the use of this comparison is aimed at preventing a significant discrepancy between the draft judicial act prepared by the judge and the characteristics of an information model that takes into account the socially significant consequences of implementing the judicial act.I f no principal (maximum permissible) discrepancy between the evaluation of the action (event) by the judge and the computer system is recorded, the judicial act is automatically marked with a special machine code giving it legal force.36 This approach to creating a comprehensive quality management system for judicial acts makes it possible to raise the question of determining the measure of human responsibility by using the capabilities of the “judicial computer.” If we follow this approach in the Russian Federation, the concept of “future justice” should be associated with the increasing role of the court in maintaining a balance between the person, society and the state, and improving the quality of judicial acts through the use of electronic technologies should be considered as a factor in determining the formation of this balance. We propose the adoption of a Federal law on robotics and cyber-physical systems, as well as making the necessary amendments to the Russian Civil Code and other acts in terms of defining the concept of cyber-physical systems, the procedure for putting them into operation and civil turnover, including responsibility. All of the above is intended to provide a favorable legal regime for the introduction of new technologies and their use in the scope of the DE.
Conclusion
Funds are the core of the financial system of any modern state.I nitially, the money came from private funds; however, the development of the economy and other factors at the time led to the abandonment of private money and the establishment
36 Zimmermann 2000. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 170 of a unified monetary system in most countries. Despite this, the development of Internet technologies and trading techniques in real time has led to the revival of the idea of private money. The emergence of cryptocurrencies and their active popularization in the world, on the one hand, and the uncertainty surrounding their legal nature, on the other, may have a considerable impact on the national economy due to the need for consistent maintenance of the balance of payments. Modern international processes have such a strong influence on the modern world economy that the economic decisions of individual countries, regardless of their type, influence each other, as well as the overall global development trend. The ECB is now on the verge of abandoning its ultra-easy monetary policy in the direction of neutral and is preparing for further tightening. Since the ECB adheres to inflation targeting quite rigidly, and the trade and budget balance has long been in favor of the euro, discipline in monetary policy could turn into a new long-term trend toward strengthening the euro. In view of new challenges facing the global economy and the emergence of cryptocurrency, it is necessary to rethink the phenomenon of currency crimes, to study the experience of combating monetary crimes in other countries and to evaluate the general mechanisms for combating currency crimes. To achieve this goal, it is necessary not only to analyze the phenomenon of currency crimes and study the experience of combating currency crimes in other countries,37 but also to evaluate common mechanisms for combating currency crimes, regardless of the economic type of a particular country. Today, more than ever before, an integrated approach to the use of cross-sectoral terminology is important. In our opinion, the unity of categorical understanding and the material and legal basis will achieve this breakthrough in realizing the task of ensuring the rights and freedoms of the person and the citizen guaranteed by the Constitution of the Russian Federation under modern conditions. The third problem of introducing new technologies in society and the state is training civil servants for the development of the digital economy. The training of relevant personnel for implementation of the objectives of the DE should focus on the fact that the state, through its prohibitions and the threat of sanctions, on the one hand, encourages the subjects of the right to appropriate behavior, and on the other hand, when conduct contrary to the law is detected, establishes and promulgates methods (means) of impact on them. At the same time, it is important to note that the embodiment of the ideas of the digital economy in public practice should be associated with further progress within the Russian Federation not only in state and legal relations, but also in the development of culture.
37 dominick Salvatore et al., Dollarization as an Investment Signal in Developing Countries: The Case of Croatia, Czech Republic, Peru, Slovak Republic and Turkey, Fordham University Department of Economics Discussion Paper No. 2008-16 (September 2008) (Jul. 5, 2018), available at https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1272092. OLEG STEPANOV, DENIS PECHEGIN 171
The fourth problem relates to the functioning of the Executive and Judicial bodies in the state within the scope of the DE. In our opinion, the legal profession will be as popular in the future as it is today. However, lawyers will be busy building a virtual railroad track in order to use modern technologies in making procedural decisions. In this regard, the lawyers of the future will act as machinists, operators, builders and inventors of a useful model of legal relations. Building a virtual railway for a robot that will make a decision on the merits of the case is what awaits us in the near future. The scientific approaches in law will change accordingly. However, classical legal education is not going to sink into oblivion. After all, the construction of a high-quality railway of future justice will be possible only by taking into account the doctrine and practice of higher courts, which will operate in the classic style. But if we imagine that this process in the Russian Federation will be connected to a smart computer with a neural network, the horizon of legal science will truly become limitless.
References
Bryans D. Bitcoin and Money Laundering: Mining for an Effective Solution, 89(1) Indiana Law Journal 441 (2014). Comparative Labour Law and Industrial Relations in Industrialized Market Economies (R. Blanpain & J. Baker (eds.), The Hague: Wolters Kluwer, 2001). Polasik M. et al. Price Fluctuations and the Use of Bitcoin: An Empirical Inquiry, 20(1) International Journal of Electronic Commerce 9 (2015).
Information about the authors
Oleg Stepanov (Moscow, Russia) – Professor, Chief Researcher, Department of Criminal and Criminal Procedural Law, Institute of Legislation and Comparative Law under the Government of the Russian Federation (34 Bol’shaya Cheryomushkinskaya St., Moscow, 117218, Russia; e-mail: [email protected]).
Denis Pechegin (Moscow, Russia) – Senior Researcher, Department of Criminal and Criminal Procedural Law, Institute of Legislation and Comparative Law under the Government of the Russian Federation (34 Bol’shaya Cheryomushkinskaya St., Moscow, 117218, Russia; e-mail: [email protected]). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3
A BRIEF HISTORICAL AND LEGAL ESSAY ON “ECONOMIC CONSTITUTIONS”
IGOR LEVAKIN, MGIMO University (Moscow, Russia)
DARIA TRIFONOVA, Lomonosov Moscow State University (Moscow, Russia)
DOI: 10.17589/2309-8678-2018-6-3-172-199
This article explores constitutional regulation as it relates to the foundation of economic relations. The proper norms and divisions of the basic laws (constitutions) of states are analyzed from the historical and legal point of view: the authors develop an idea of “economic constitutions.” This conception is based on the ideas of American and European economists and lawyers, including the works of the Nobel-prize winner James Buchanan, the author of the conception of “constitutional economy.” The analysis of the individual, the most obvious norms of “economic constitutions” is made in their evolution. The common regularities of formation, development, and functioning of “economic constitutions” are researched. “Economic constitutions” are considered as the immanent legal expression of material conditions of life of communities. The research is based on the criteria of the correspondence of “economic constitutions” with the demands of social economic development of state organized communities. The genesis of “economic constitutions” of the USA, France, Germany and other states, for example, Latin American states are researched. Special attention is paid to “economic constitutions” of socialist and postsocialist states, especially to the “economic constitution” of the Russian Federation. The peculiarities in the development of the newest “economic constitutions” based on the basic laws of Finland and Switzerland are revealed. The authors develop an idea that “economic constitutions” are not limited to the questions of the influence of astate on an economy and of the determination of the borders of state regulation. Economic rights and freedoms, questions of interrelations of labor and capital, financial system, taxation, etc. are considered as the components of “economic constitutions.” Taken into account is that modern international standards are refused from the secondary role of the social economic rights of mankind. The conclusion is made about the interrelationship of the progress of “economic constitutions” and social IGOR LEVAKIN, DARIA TRIFONOVA 173 economic rights in the information society that are able to ensure the fundamentally new level of a direct democracy in the management of a state.
Keywords: constitution; economy; economic constitution; state; law.
Recommended citation: Igor Levakin & Daria Trifonova, A Brief Historical and Legal Essay on “Economic Constitutions,” 6(3) Russian Law Journal 172–199 (2018).
Introduction
The constitutional regulation of the fundamental economic relations in modern states is an almost universal phenomenon which used to be denoted by the dominant legal term “economic constitution.” Although known, that there is no special document as an “economic constitution” in different states, this scientific abstraction is employed instead of the cumbersome construction of the “constitutional legal norms and institutions regulating the basis of economic relations, economic rights and freedoms and other, state legal phenomena directly related to the economy.” This legal term is approved and meets in general the educational needs.1 The value of “economic constitutions” is determined by the importance of the juridical establishment of the economic phenomena and the economy as a whole at the highest legal level. On the one hand, “economic constitutions” create the model of business, the national market of goods and services, the system of production and distribution of wealth, etc. and, on the other hand, relay potential and constructive opportunities of the legal solution to economic social problems. They bring historical experience of economic development in legal form producing new paths for the constitutional modernization of the economy. Economic issues were at the center of attention since the earliest evidence of an emerging constitutionalism. It is enough to remember the Great March Ordinance 1357 (Grande ordonnance de 1357) that presented a plan of reforms for the state management of France with the ideas of limiting finance privileges of the executive power, control over taxes and a budget process. Likewise, the British Magna Carta 1215 (Magna Carta Libertatum) which proclaimed mainly civil liberties of economic
1 in European legal science the term “economic constitution” has become permanent. At the same time economists use the term “constitutional economy.” See Чиркин В.Е. О терминах “экономическая конституция” и “конституционная экономика”, а также о российской и западной науке (отклик на статью Г.Н. Андреевой) [Veniamin E. Chirkin, On the Terms of “Economic Constitution” and “Constitutional Economics”, and Also About Russian and Western Science (Response to an Article by G.N. Andreeva)] (Jul. 20, 2018), available at http://отрасли-права.рф/article/21429; James M. Buchanan, The Logical Foundations of Constitutional Liberty 377 (Indianapolis: Liberty Fund, 1999); Francesco de Cecco, State Aid and the European Economic Constitution 13–14 (Oxford: Hart, 2012); Wolf Sauter, The Economic Constitution of the European Union, 4(1) Columbia Journal of European Law 27, 30 (1998). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 174 character,2 the Instrument of Government of the time of O. Cromwell’s protectorate 1653, according to which the Lord-protector was provided with broad tax powers (until Parliament was convened). In many modern “economic constitutions” which are logically separated from the basic laws (constitutions) of the states in the world community; the number of economic norms is reflected differently.I n some countries, only the basic economic principle of freedom of ownership (usually private) is codified.I n others, the economic character provisions are described in detail (the complex system of institutions regulating economic life of the state are constructed). Developed by European and American lawyers the concept of “economic constitutions” maintains a totality of constitutional norms in the area of creating material conditions of life, as well as the problem of introducing into daily economic practice mechanisms for the protection of economic interests of not only current but also future generations.3 It seems that under this concept by using a progressive approach and also the methods: theoretical, comparative, historical-comparative and others it is possible to discover and research the development of the common regularities of economic constitutions. We believe that these include objective stable tendencies of formation, development and the functioning of an economy’s constitutional regulation. For legal and historical development of the problem the following assertion is a matter of principle. Constitutional legal determination (in other words – constitution) of the basic material conditions of life is an objective reality of any society at a certain high level of historical development. If F. Lassalle is true that a real constitution of a state is the correlation of forces actually existing in a given country,4 then it is also correct that constitutions are formed under the influence of an economic factor. Thus, an “economic constitution” is an immanent legal expression of the material conditions of a society’s life. The idea of entailing (certain accompaniment) of the legal norms and economic phenomena in the system of constitutional law is not reduced only to the questions of the management of the state’s influence on the economy, to the establishment of the borders in state’s regulation. The “economic constitutions” also include economic rights and freedoms, questions of relations between labor and capital, financial system, taxation, etc. It is important to mention that terminology used in national legal systems at different historical stages can reflect different aspects of constitutional and economic phenomenon. Moreover, legal concepts used in constitutions of the states for the
2 edward A. Freeman, The Growth of the English Constitution from the Earliest Times 57, 66–68 (London: Macmillan, 1909). 3 At the present moment the most famous one has become the conception of “constitutional economy” of the American economist, Nobel-prize winner J. Buchanan. See Buchanan 1999, at 372, 377–395. 4 Ferdinand Lassalle, On the Essence of Constitutions, 3(1) Fourth International 25 (1942). IGOR LEVAKIN, DARIA TRIFONOVA 175 definition of economic phenomena within different historical periods can have different meaning.5 Besides this, the practice of constitutional courts and constitutional legal customs can also essentially interpret the economic-constitutional reality.6 The “economic constitutions” are the product of the specific historical era, they reflect the peculiarities of scientific and technological development of society in a certain period. The contents of “economic constitutions” as a legal set of fundamental legal norms directly depends on the development of the material conditions of life. However, this does not influence their passivity: constitutions influence actively on the economic sphere of society.7 A broad view on the relationship between constitutions and economies means that all legal norms are in their organic unity related with the economic system and are correlated with its regularities – they are transformed under the influence of the system and transform the system themselves. A narrow legal view on the problem is restricted by the consideration of the sections and norms of constitutions (basic laws) which directly regulate economic relations. This last thesis is better to be verified. Obviously, the analysis of the foregoing subject area within the journal article proposes the research of only the most obvious norms that represent the “economic constitutions.”8 It is also clear that the analysis of the subject area is limited by the capacity restraints of the journal’s articles, that is why it is proposed to consider the most obvious examples of “economic constitutions” in the dynamic historical process. However, if “the history of human rights shows a clear dimension of progress,”9 the most mature constitutional-legal content for the consolidation of the rights and freedoms in an economic sphere was generated by the New Time. It was the time of the beginnings of mechanized production, of the first accumulation of capital and the exploitation of hired labor by that capital.T he result was the declaration by capital owners and employees about their rights. The New Time gives us an example of the genesis of “economic constitutions.”
1. The New Time
The beginning constitutionalism of the New Time symbolizes the decision of King Charles I of England to convoke Parliament (in 1640) as a sign of the political victory of the newly emerging economic hegemony – the third class. The progressive
5 Осакве К. Сравнительное правоведение в схемах: общая и особенная части [Christopher Osakwe, The Comparative Jurisprudence in Schemes: The Common and Special Parts] 23–25 (Moscow: Delo, 2002). 6 the practice of economic courts is an object to special studies. 7 Michael Bogdan, Comparative Law 70 (Deventer: Kluwer; Stockholm: Norstedts Juridik; Oslo: TANO, 1994). 8 the norms of “economic constitutions” have spatial and time borders given by the specific historical conditions. 9 Micheline Ishay, The History of Human Rights: From Ancient Times to the Globalization Era 12 (Berkeley: University of California Press, 2008). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 176 bourgeois relationships were associated with industrial achievements in engineering and technology (mechanization of factory production, the development of textile mills, industry, domestic and foreign trade) that ensured mass transition from a manual to a machine labor, from a textile mill to a factory.10 It was a conflict between the new productive forces and stagnating feudal industrial relations (with the feudal social institutes) that created the revolutionary constitutionalism in England. Movement to the constitutionalism and liquidation of illegal feudal relations was of economic character.11 Developed by Parliament and adopted on 22 November 1641 the Grand Remonstrance was a long list of abuses committed by the King during his sole reign. The document demonstrates that the bourgeoisie considered everything that restricted freedom of ownership (the initial point of the constitutional regulation) and enterprise. The adoption of the Bill of Rights in 1689 meant an undoubted success in the struggle with the King’s tyranny. This act became one of the first documents, which legally established economic independence of the bourgeoisie, in particular the collecting of fees in favor and at disposal of the Crown was forbidden. In addition, among the priority tasks that required legal confirmation, the bourgeoisie considered voting for public expenditures as their organic right. The first steps of creating the basis of the modern bourgeois constitutionalism included a variety of measures, from acquisition of ownership rights on the basis of expropriation12 to the inalienable right of Parliament to form a budget (right of purse).13 The Declaration of Independence of the USA of 1776 and later the first in the world written American Constitution of 1787 proposed primarily to establish economic, trade and financial independence. “No taxation without representation” was the slogan used as the main claim of the colonists in North America to the English Crown and to the colonial administration and was widely spread during the struggle of the North American colonies with the English monarchy for independence. The Founding Fathers of the USA tried to establish such rules of living that would transform the confederation into a “perfect union” in order to create the movement toward “common prosperity.” However, aspiration to this “prosperity” took into account technological features of production – the necessity of slavery for the extensive agricultural plantations of the South (mainly cotton). A slave was a means of production and the fact of slavery was recorded in several articles in the text of the Constitution of the USA: the
10 The Industrial Revolution, 1700–1914 187 (C.M. Cipolla (ed.), New York: Barnes & Noble, 1976). 11 Christopher Hill, The English Revolution 1640 14–18 (3rd ed., London: Lawrence & Wishart, 1955). 12 Julian Hoppit, Compulsion, Compensation and Property Rights in Britain, 1688–1833, 210(1) Past & Present 93 (2011). 13 Mark Goldie, The Bill of Rights, 1689 and 1998, 48(9) History Today 10 (1998); Geoffrey Lock, The 1689 Bill of Rights, 37(4) Political Studies 540 (1989). IGOR LEVAKIN, DARIA TRIFONOVA 177 importation of slaves (Sec. 9 of Art. I), the prohibition of assisting the escape of “those who must be in service or work,” the obligation to return them (Sec. 2 of Art. IV), etc. Liberation of slaves became one of the main purposes of the war between those not interested in slavery, the industrial North, and the agrarian South which only came to an end in 1862.14 In the first Constitution the importance of economic decisions of representative government was specially emphasized.15 According to Sec. 8 of Article 1 of the Constitution of the USA, the Congress had also a power to lay and collect taxes, fees, duties in order to pay the debts; to borrow money on the credit of the U.S.; to regulate commerce; to uniform laws on the subject of bankruptcies throughout the U.S.; to coin money, to regulate the value thereof and of foreign coin and to fix the standard of weights and measures. Considerable attention in the Constitution (including recent amendments) was paid to economic issues: taxation, financial and property management, currency and others.16 At the same time only the right of property was described among economic rights in the U.S. Constitution. In particular, the Fifth Amendment establishes that no person shall be deprived of property without due process of law. The American doctrine of constitutional law traditionally does not consider economic rights as fundamental. However, that does not mean the absence of a legal constitutional regulation of the economic area.17 For all its progressive value adopted in the late 18th century the Constitution of the USA has acted for more than 200 years, but even with the famous 27 amendments, it could not literally save the adequacy of the further progress of the productive forces and production relations. However, the principles outlined in the document are still relevant. Stably developing social economic institutions require special constant interpretation of constitutional provisions which is allowed in the courts in the USA. For this reason, the Supreme Court of the USA has an enormous role in the
14 the Emancipation Proclamation was adopted (1862 and 1863). The Thirteenth Amendment (Amendment XIII) to the U.S. Constitution prohibiting slavery was adopted by Congress on 31 January 1865. Much later the trade clause served as the constitutional basis for some anti-discrimination laws. In case Katzenbach v. McClung (1964) the federal prohibition on racial discrimination in private restaurants was found to be an unconstitutional one because such discrimination, among other things, restricted the movement of black citizens in commercial matters and therefore affected interstate trade. See the website of the Supreme Court of the United States (Jul. 20, 2018), available at https://supreme.justia.com/cases/federal/us/379/294/case.html. 15 The Strange Survival of Liberal England: Political Leaders, Moral Values and the Reception of Economic Debate 212–247 (D. Tanner & E.H.H. Green (eds.), Cambridge: Cambridge University Press, 2006). 16 Constitution of the USA (Jul. 20, 2018), available at http://www.americasfreedom.com/us-constitution/ article1.html. 17 the economic rights received more detailed regulation in the legislation of states, but as constitutional rights they were raised only in fragments. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 178 modernization of the economic basis of the constitutional system and economic rights, and in bringing modern economic relationships in accordance with the letter and spirit of the developing by precedents Constitution. For example, an extensive interpretation of the constitutional provision on the assumption of the ability of expropriation of property for public needs allowed the judicial practice to refuse recognition of the absolute nature of the right of private property. Thus, in the 1950s and 1960s the Supreme Court of the USA recognized the possibility of the restriction of monopolization within the framework of state regulation of the economy. Thus, this practice of the U.S. Supreme Court embodies a juridical mechanism of “adjusting” economy and law for the effective development of society.18 The ideas of limitation of absolutism, of legal protection of personal rights and property formed the basis of the first written European constitutions – the Polish Constitution of 3 May 1791, officially named “Government Act” (Ustawa Rządowa z dnia 3 maja). Bourgeois principles of the Polish Constitution had a limited character, thus in the act dominated the norms that reflected the interests of landed szlachta (gentry).19 The Constitution protected the basic privileges and liberties of feudal lords (even the privileges written in the times of the Henrician Articles of 1573). An important role in the empowerment of the petty bourgeoisie played a right of ennoblement: the Constitution enshrines the right of the wealthy citizens who were landholders to acquire the status of the feudal aristocracy and to pass onto the nobility receiving the corresponding privileges. For example, the second section (“II. The Lander Nobility”) was as follows:
recognize all the nobles equal among themselves… in relation to equal enjoyment of privileges and prerogatives belonging to the gentry class. First of all the enjoyment of the right of personal integrity, the right of personal liberty and the right of ownership of land and chattels, as they served each in ancient times, so we want them to be preserved sacred and inviolable in the future, and solemnly promise that we will not allow any changes or exceptions in the law on personal integrity and private property.20
These innovations served to introduce bourgeois elements into the structure of social relations. However, it was an evidence of the preservation of a social basis and at the same time a type of ownership of the feudal mode of production, which meant the process of merging the growing bourgeoisie with the feudal lords, which
18 Peter Irons, A People’s History of the Supreme Court 101 (New York: Penguin Books, 2006). 19 Jerzy Lukowski, Recasting Utopia: Montesquieu, Rousseau and the Polish Constitution of 3 May 1791, 37(1) The Historical Journal 65 (1994). 20 Constitution of 3 May 1791 (Jul. 20, 2018), available at http://www3.lrs.lt/pdf/konstitucija_angliska_1.pdf. IGOR LEVAKIN, DARIA TRIFONOVA 179 was common for the period of transition from feudalism to capitalism.21 Despite their progressive potential the bourgeois principles of the Polish Constitution have not weakened the dominant position of feudal social economic relations.
2. The Transition to an Industrial Society
The French Constitution of 1791 became an interim result of the Great French Revolution and was on the contrary of the radical modernistic character, not in the last place caused by economic contradictions. Stagnation of feudal relations led to the revolutionary events and to the adoption of a number of legislative acts of the constitutional character in a period since 1789 to 1791. Shortly after the fall of the Bastille, on 4–11 August 1789 the revolutionary Constituent Assembly formulated the principles of the French new law,22 also passed a decree “About Abolition of Feudal Rights and Privileges.” The most important among the adopted acts was the Declaration of the Rights of the Man and of the Citizen of 26 August 1789 that along with the other norms approved the right of private property as a natural right and proclaimed the right of property as an inviolable and sacred one and established common principles of tax system. Although the French Constitution of 1791 was partly a compromise (for example, it contained very important antifeudal provisions, but the monarchical system of government was preserved and the issue of slavery in the colonies was not solved), it introduced a new emerging in the past two years a revolutionary political legal order. Title V “On the State Taxes” of the French Constitution of 1791 developed the principle of separation of powers by established rules, according to which state taxes were discussed and set annually by the legislative body; as the executive power directed and observed the collection of taxes and for these purposes was able to make all arrangements. The French Constitution of 1791 also included in its legislative structure the Declaration of rights of a man and a citizen which established that property as an inviolable and sacred right. Nevertheless, it went too far on the declaration and protection of constitutional social economic rights: according to the Le Chapelier Law on the prohibition of trade unions and a right to strike (adopted on 14 June 1791) the social lack of rights of workers and farm-laborers remained. Worldwide large-scale development of bourgeois relations falls on the 19th cen- tury for many countries it was a time of assertion of their independence, for some of them it was a time of progressive development of their economies.
21 Constitution and Reform in Eighteenth-Century Poland: The Constitution of 3 May 1791 78, 175–202 (S. Fiszman (ed.), Bloomington: Indiana University Press, 1997). 22 Michael P. Fitzsimmons, The Committee of the Constitution and the Remaking of France, 1789–1791, 4(1) French History 23 (1990). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 180
Therefore, the beginning of the 19th century became a time of release of Latin American countries from colonial dependence from Spain and Portugal. The specific character of formation and development of economy in these countries determined the features for the first stage of the state political construction and the heterogeneity of the social structure. If in some states, the upper bourgeoisie and industrial workers were the significant social power (for example, in Argentina, Brazil, Mexico, Chile), in the others feudal relations preserved (for example, in Honduras, Paraguay). Special features of social relations reflected in the first constitutional documents of Latin American countries. The first Constitutions of the Latin American states, despite the early period of formation, experienced to a great extent of influence the leading ideas of the bourgeois republicanism of that time. The Constitution of Venezuela of 1811, the Constitution of Argentina of 1819 (the Constitution of the United Provinces of South America), and the Constitution of Mexico of 1824 contained many articles devoted to the bourgeois rights. However, the inclusion of the norms on progressive economic rights and freedoms in the texts of these constitutions often had a character of blind copying, because in none of the Latin American states which were proclaimed republics after the wars of independence were radical changes of social economic structure of society achieved. The Constitution of Mexico (Constitución Federal de los Estados Unidos Mexicanos) proclaimed the formal equality of all the citizens, including mestizos and Indians, and even prescribed in general outline that the local authorities to take measures in order to improve the position of “natural born” citizen (Indians) and their rapprochement with “the other citizens.” The Constitution stated that the lands owned by Indians would be assigned to them by the right of ownership. The Constitution abolished privileges of nobility, military and the church.23 Slavery was forbidden in Mexico, although it was not prescribed constitutionally. The written decree on the abolition of slavery which was promulgated several years after the Constitution on 15 September 1829 read:
Slavery is abolished in the Republic. That is why those who until this day were considered as slaves are free. When the circumstances of the Treasury allow, the compensation to the slave-owners in accordance with the conditions defined by law will be provided.24
An attempt to solve difficult economic contradictions of Latin American society with the help of political measures took place in Bolivia.
23 Federal Constitution of the United Mexican States (1824) (Jul. 20, 2018), available at https://tarltonapps. law.utexas.edu/constitutions/mexican1824. 24 k evin C. Julius, The Abolitionist Decade, 1829–1838: A Year-by-Year History of Early Events in the Antislavery Movement 39–54 (Jefferson: McFarland, 2004). IGOR LEVAKIN, DARIA TRIFONOVA 181
Profitable geographic position of the country, legendary wealth, contrary to the hopes of the victorious fighters for independence, did not lead it out from the beginnings of economic depression, despite the fact that by the end of the 18th century during the colonial period Bolivia (then Mountain Peru) was an economically progressive and mainly an export oriented country. To the opinion of the drafters of the Constitution, the inclusion of the democratic principles in its text could allow the government to use strong (presidential lifetime) power for progressive social economic reforms in order to curb the arbitrariness of the latifundios without the risk of formation of tyranny or anarchy. However, the real power in Bolivia as in the other Latin American republics belonged to the landlords, landowners and clerics. The Constitution of Bolivia of 1826, which is called “a romantic paradigm of the perfect order,” did not have real influence on the state of society.T he social economic prosperity was not achieved by simple centralization of power; and after the uprising in the army the Bolivian Constitution of 1826 was abolished in 1829.
3. Consolidation of the Achievements of Industrialization
The 19th century became a time of the progressive development of economic institutions, first of all for the states of theE uropean continent: this period was marked by industrial and agricultural revolutions. Railways, steamships, the telegraph and by the turn of the century the telephone produced a revolution in the means of communication and connection. The effect of the industrial modernization and economic success reflected in the corresponding changes of the social stratification: new social classes appeared instead of the old ones. At the turn of the 18th and 19th centuries enormous changes occurred in the North of Europe. The Constitution of Sweden of 1809 provided “the ancient right of the Swedish people to establish taxes.” If the legislative power was not a function of only representation but was shared equally between the king and the mission, the establishment of taxes was assigned in the whole to the general Riksdag (unicameral four class (nobility, clergy, townspeople, peasants) representative and legislative body). However, many economic issues in the Constitution remained unsolved, as well as the connected social class questions. The main focus was on equalization of privileges and a form of representation. It is important to mention that the process of equalization of classes and privileges, which began already in the 18th century, did move forward. All the classes formally received a right to occupy and also public important post. Moreover, the nobility was deprived of the exclusive right to possess the most economically profitable lands (which were free from several taxes) and the nobles together with the clergy and the burghers were forced to agree to some concessions in matters of taxation. Despite the consolidation of social innovations, the Constitution did not eliminate the significant features of the class system: the worked lands were subject to different taxes; social RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 182 groups which were very important not only economically but also had acquired political weight (e.g. landowners, not related to peasants, big manufacturers, owners of factories, quite numerous workers) were not represented in the legislative body. The Constitution of Norway of 1814 unlike the Swedish Constitution did not limit the legislative rights of Parliament. The only legislative body of the state recognized was Storting – the national representative body, to whom the legislative, “permitting” and checking power belonged. According to Article 19 of the Norwegian Constitution the King “guarantees that property… of the state is used and managed in order determined by Storting and with the greatest benefit for the community.” According to Article 17 the resolutions passed by the King on the matters of trade, customs, crafts, industry and other sectors of economy, and also the police which were not supposed to contradict the Constitution and the laws, established by Storting, were temporary and needed subsequent approval of Storting. Parliament was provided with considerable financial right: to impose taxes and other duties, to determine credits for the state’s needs, the King’s and members’ of Royal family civil list, to set salaries of public servants, to take loans, to check public expenditure. The restriction on freedom of trade and industry was forbidden. The right of an owner to obtain the full compensation from the Treasury for the confiscation of property for state needs was established (Arts. 101, 105, 108 of the Norwegian Constitution).25 An example of the specific legal constitutional fixation of the new economic relations gives the political history of one of the provinces of the Netherlands – Holland. After reaching in the beginning of the 18th century the peak of international and marine power Holland is gradually losing its position as the largest commercial and financial center in Northern Europe. At the end of the century the struggle deepened between those who supported the strengthening of the central authority and supporters of the change of the form of government on a more democratic basis. The supporters of democracy were mainly the industrial bourgeoisie and the opposition nobility. For legalization of their intentions the latter needed the sympathy of the burghers, peasants and catholic priesthood. Democratic ideas formed under the influence of the French andE nglish representatives of the Enlightenment: they came out for the proclamation and protection of the sovereign rights of the people,26 for the stimulation of the domestic economy, the abolition of monopolies, and the reorganization of the East India company, etc. In 1795 the state was declared the independent Batavian Republic. Then for the first time in the history of theH olland a conservative version of the Constitution was proposed (it was prepared mainly by the representatives from the large bourgeoisie
25 Constitution of the Kingdom of Norway (Jul. 20, 2018), available at http://www.constitution.org/ cons/norway/dok-bn.html. 26 For the restriction of the powers of the center, the establishment of a government of the people’s representative Assembly, freedom of press, implementation of a democratic reform in the management system, the establishment of a system of control over managers, the creation of groups of civil police. IGOR LEVAKIN, DARIA TRIFONOVA 183 and did not solve important social economic purposes). In 1798 a more radical Constitution was elaborated: it abolished noble titles and privileges, brought civil equality and other changes in the interest of the middle class (the introduction of the central government; the consolidation of the legislative power by the bicameral National Assembly but the executive power by the Directoria consisted of the five electoral members; the redistribution of power in the interest of local states; communal local government; freedom of speech and press, etc.); the remainder of feudalism was liquidated. The next reactionary revolution prevented to carry out bourgeois democratic reforms. With the coming to power of Napoleon Bonaparte the semi-feudal relations were restored in the country and in 1806 the “Kingdom of Holland” headed by Louis Bonaparte was formed instead of the Republic. The collapse of Napoleon’s Empire led to the restoration to Holland the status of an independent state in the form of a kingdom with an absolute monarch at the head.27 The Constitution of Belgium of 1831 adopted after the declaration of independence from the Netherlands was also of bourgeois democratic character. Its modernizing economic content was expressed also in the abolition of feudal classes and privileges that impeded economic development of the country. The right of property was protected in a proper way: property was inviolable, no one would be deprived of his property except for public benefit in cases in an order established by law for fair and full compensation (Art. 16). Punishment such as the confiscation of property was prohibited (Art. 17). However, as most constitutions of the period the bourgeois democratic struggle for the rights of new social members which tried to strengthen their positions (bourgeoisie, clergy) the Belgian Constitution was not consistent. Proclaiming that all the powers emanated from the people (Art. 25) the Belgian Constitution at the same time established a high property census, in that essence proletariat and petty bourgeoisie were kept out of the possibility to participate in elections of representative bodies.
4. In the Conditions of the National Liberation Movement
In 1848–1849 Central and Eastern Europe experienced tremendous political upheaval. In Paris, Vienna, Berlin, Rome and other European capitals revolutionary performances occurred which promoted the approval of capitalism as the dominant world economic system. The period of general worsening of social struggle coincided with the rapid rise of national liberation movements influenced vitally on the formation and the development of principles and norms of “economic constitutions.”
27 Martijn van der Burg, Transforming the Dutch Republic into the Kingdom of Holland: The Netherlands Between Republicanism and Monarchy (1795–1815), 17(2) European Review of History 151 (2010). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 184
The logical consequence of the national liberation movements was a process of constituting a new economic order. Thus, in Romania shortly after the unification of two Romanian principalities (Moldavia and Wallachia) the process of state structuring was completed by the adoption of the Constitution of Romania of 1866. The Constitution proclaimed the inviolability of private property, bourgeois democratic freedoms (individual freedom, freedom of religion, of conscience, freedom of press, freedom of assembly, inviolability of home, etc.). At the same time, it guaranteed the dominance of both the great landowners and bourgeoisie: the Chamber of Deputies and the Senate were elected during the rank elections according to the social, property and educational census. The attempt to create a liberal political regime did not make it a democratic one for the economic active population in the whole: the persons of non-Christian confession could not receive citizenship despite the existing property census.28 The 1848 Piedmontese Statute became the constitution of a united Italy, retaking independence from Austria. The Statute established the form of government as a constitutional monarchy (according to Article 2 the State was ruled by a representative Government), the King was declared the head of state power.29 In practice these rules were explained as the function of the representative body to control the activities of the government. Such an explanation of the functions for representatives became possible because of the limitation of the king’s rights in financial areas: he needed to receive consent of the chambers to levy taxes. The Tarnovo Constitution of 1879 resulted because of the liberation of Bulgaria from the feudal Turkish occupation. This created the conditions for bourgeois development in the country. In the adopted text of the constitution the equality of the citizens before the law was established, titles and other differences were prohibited; the Constitution guaranteed the inviolability of a person and property and also freedom of press, assembly and communities. A unicameral Parliament whose deputies were inviolable was empowered to elaborate laws, to approve the budget annually and to control the government. “Economic constitutions” developed rapidly in the beginning of the 20th century. In our opinion such activity had two main reasons. The first one is rooted in the deep qualitative changes in the industrial sphere, the development of production, technological reequipment, the growth of capitals and considerable quantitative increase in hired labor. The second reason relates to the situation when the new industrial foundation became the basis for the development of capitalistic relations.
28 Dicţionar de istorie a României [Dictionary of Romanian History] 88–89 (S. Stoica (ed.), Bucharest: Meronia, 2007). 29 According to the Statute the legislative power was exercised by the king and two chambers – the Chamber of Deputies (for election as a deputy a high property qualification was established) and the Senate (its members were appointed by the king from among the representatives of the higher bureaucracy). The majority of the population was deprived of the right to vote. IGOR LEVAKIN, DARIA TRIFONOVA 185
Broad sections of population became involved in economic relations of the organizing of state revenues and their distribution between the participants of public production. Accordingly, the new economic realities demanded the establishment of a modern law order. Many states were involved in the process, including those which distinguished geographically to a considerable extent. Thus, the basic law of Australia (consisting of several documents) was approved by the population of Australian colonies at the referendums in 1898–1900 and was consolidated by the Constitutional Act of Australian Union in 1900. It contains the basic tax rules, procedures, allocation of assignments, etc. (Arts. 53–55 about different types of taxes), finance and trade (Ch.IV “Finance and Trade”). Interestingly, the Constitution does not regulate basic economic rights. Adopted in 1901 the monarchical Constitution of Serbia proclaimed that every Serbian national has to pay taxes to the State. No one could be released from taxation except in the cases provided by law. The King and members of the Royal Family did not pay taxes (Ch. VIII “State Finances”, Art. 88). The Constitution adopted a national representative body (two chamber parliament), empowered to examine beforehand and approve acts, which could limit the rights of Serbian citizens, change state laws or lead to financial expenses for the state due to the conclusion of trade agreements. In the Constitution freedom of speech, conscience and equality of all behind the law were established.
5. At the Beginning of the Machine Age
An outstanding example of law constitutional work of that period was the Constitution of Germanic state known as the Weimar Constitution, drafted by professor Hugo Preuss and adopted in Germany in 1919. In the beginning of the 20th century Germany developed rapidly and modernized industrially. The size and the speed of economic development placed Germany first place inE urope and second in the world. The political unification of Germany, military victories contributing to the technological evolution, concentration of production and development of transport was rather important to the development of the natural sciences. Nevertheless, the evolution of the economy which was stimulated by the military policy which required the intensification of capital movement combined with the events in bolshevist Russia resulted in a compromise according the economic demands of the society. Proclamation of certain social economic rights explained as a reaction to the bolshevist revolution in Russia was the constitutional innovation of the Weimar Constitution. For example, workers, in order to protect their social and economic interests, received legal representation in working councils in enterprises and in circular working councils of certain branches of industry and imperial working councils (Art. 165). At the same time, the classic formulation of the correlation of the right of property and social interests was constituted (Art. 153): RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 186
The property obliges. The use of it must also serve the common wealth.
The Weimar Constitution pointed out the importance of the most effective and innovative means of transportation of that era – the railroad. Article 95 has the purpose to stimulate the development of this industry (increase in the length of railroads, modernization of the steam locomotive construction, reduction of costs of their exploitation) and says that
railroads which are under the supervision of the Empire must be constructed and supplied on the basis of the unified rules established by theE mpire. They must be maintained in a condition ensuring safety of transportation and should be extended according to the needs of turnover...
Article 97 proclaimed the task of the Empire
to make its own property and to take in its management the waterways of the total value… Every management of the waterways has to be agreed to the accession of other inland waterways at the expense of the entrepreneurs. The same obligation is set in the relation to the connection of inland waterways with railroads.
The Constitution allowed workers to administer enterprises: Article 165 provided for the election of workers councils in enterprises and also the participation of the workers in regional and central workers councils. The Constitution obliged the state to ensure economic freedom of a person (Art. 151), freedom of trade and crafts (Art. 152).30 This new tendency of the constitutional adoption of economic rights was also caused by the enormous success of the industrial production. Hydrocarbon energy takes the place of electric power as the mover of the industrial revolution, the colored metallurgy, car building, oil-refining and oil chemical production are developed.T his era concentrated considerable public resources that were able to socialize liberal “economic constitutions.” The basic laws of most European states of that period included in their texts a large number of social economic rights and freedoms with reference to their material basis. Thus, free economic activity was intended to become such a basis: “No limitation can be established in the area of free economic activity except for the purposes of common wealth,” – says Article 69 of the Constitution of Ireland of 1944. Moreover, in the period between the First and the Second world wars, in a number of states (in Germany, Italy, Japan, Spain, Portugal) representatives of the reactionary part of the monopolistic capital together with the protectors of their
30 w eimar Constitution (Jul. 20, 2018), available at http://www.zum.de/psm/weimar/weimar_vve. php#Sixth. IGOR LEVAKIN, DARIA TRIFONOVA 187 interests and the providers of the policy of revanchist background received power (also during the elections). This led to the refusal in these states of the liberal law constitutional progress and constitutionalism in the whole or to the transformation of the constitutions in fiction.I f the constitutions were not abolished, they in the fact did not act, and the leading organs of the political party became the most important part in the machinery of the State receiving unlimited power in state government.
6. With the Coming of the Postwar World
“Economic constitutions” of the postwar period were extensive documents that reflected characteristics of the economy based on the serial mass production taking into consideration the development of all-round international humanitarian connections and the establishment of stable transnational relations. These new economic relations meant collective production together with the collective rights. The Constitution of the Italian Republic of 1947 emphasized social economic rights and freedoms and their guarantees with the reflection at the same time of the individual and collective ideas.31 The progressive character of the Italian Constitution was ensured by the articles of the programmed character. These articles contained large democratic reforms – nationalization of monopolistic factories, overcoming of agricultural backwardness, introduction of democratic social principles (freedom of trade unions, right to work, social security, right to strike, etc.). The difference between theI talian Constitution and the other constitutions also of bourgeois character means the mentioned above compromise features of its individual provisions. This compromise clearly demonstrates Article 3: the task of the Republic is to remove impediments of economic and social order which limit in fact freedoms and equality of citizens, prevent the real development of a person and effective participation of all working people in political, economic and social organization of the country. The study of the details in respect of the right of ownership also says about this feature of the Constitution. The Constitution promulgates two forms of ownership – public or private (Art. 42), it provides the state enough opportunities in expropriation of private property (“for common wealth”) (Art. 43) and in regulating relationships in the area of land property, establishing its size, transformation of large estates, promotion of small and medium property (Art. 44). Adopted constitutions in European states in the period after World War II consolidated mostly a liberal, often a social liberal model of state law and order. The constitutions ensured the ideology of a social oriented economy, the equality of interests of all the subjects of social process and social role of private property.
31 such a community of the opposite ideological attitudes in a single document has a simple explanation: the Constituent Assembly that elaborated the text had in its structure approximately equal representation of political forces from Christian Democrats and left parties (communists, socialists). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 188
The basic laws of Italy (the Constitution of the Italian Republic of 1947), Germany (the basic law of Federal Republic of Germany of 1949), France (the Constitution of the French Republic of 1958) and other states, consolidated traditional European version of constitutionalism that incorporated universal values of the new economic liberalism.32 At the same time the Constitution of the Islamic Republic of Iran of 1979 notes in its Preamble the importance of the movement for the nationalization of oil; the Constitution of the Bolivarian Republic of Venezuela of 1999 in Article 302 establishes that the state, for the reasons of national benefit, reserves the right to control oil extraction and other branches of industry, mining, services and material goods of strategic importance. The State stimulates production based on the exploitation of non-renewable natural resources for the purpose of adoption, creation and innovation in the area of technology; Article 108 of the Constitution of Iraq of 2005 says that oil and gas are the property of the public in all administrative districts, etc. Despite the different directions of constitutional regulation of economic relationships in different states, intensification of relations between the states has clearly shown that the existing earlier state borders began to restrain especially rapidly developing economic institutions caused also by the revolutionary changes in the size of factors of economic growth and the rise of fundamental new technologies in industrial production. Microelectronics and information technologies, molecular and other nanoscale productions, bioengineering, universal automation of production and logistic processes are these spheres of modern economic activity of a man which assume system changes in the all links of the globalizing world: in society, business, policy, governmental and private entrepreneurial activity and of course in the area of their economic and legal support.
7. The Socialist Type of “Economic Constitutions”
An alternative to the capitalistic public relations, bourgeois law and economy in the 20th century was defined in the first soviet constitutions – the Constitution of the RSFSR of 1918 and the Constitution of the USSR of 1924. Both constitutions declared the abolition of exploitation of a man by a man, propagandized nonposession expressed in the principle “everyone receives according to his work,” proclaiming the unity of the working classes (“Proletarians of all countries, unite!”). The 1918 Constitution of the RSFSR contained a document adopted earlier as the first constitutional act of the Soviet Republic named “Declaration of Rights of the Working and Exploited People.” The Declaration formed the introductory
32 united in the European Economic Community (Treaty of Rome, 25 March 1957), and then in the European Union (Treaty of Maastricht, 7 February 1992) the countries of Western Europe motivated “by the desire to promote the economic and social progress of their peoples...” provided “their citizens with a space of freedom without internal borders.” IGOR LEVAKIN, DARIA TRIFONOVA 189 part of the Constitution; it defined as the main task the abolishment of every form of exploitation of a man by a man, complete elimination of division of society into classes, relentless repression of the exploiters (Ch. 2 of Art. 3). The declaration proclaimed the introduction of the universal labor service, nationalization of lands, natural resources, banks, etc. According to the provisions of the Declaration and the Constitution in practice the system of social and economic relationships was created in the style of the Asian way of production, characterized by the concentration of masses of unskilled workers and the selection of a special stratum of managers – state party bureaucracy. Under of prohibition of private property and industrial privileges an archaic system of consumer privileges was established. That led to the division of citizens into “the best” and the others. At the same time the question of ownership of the means of production did not arise which would not contradict the proclaimed principle of economic (production) equality. The 1936 Constitution of the USSR and the 1937 Constitution of the RSFSR, the 1977 Constitution of the USSR and the 1978 Constitution of the RSFSR of confirmed continuity of the principles of the first soviet constitutions.T he state (national) and collective-farm cooperative property was established as the basis of the economic system of the RSFSR and also a fixed planned economy was formed. The 1977 Constitution of the USSR contained was deprived of any legal support slogans as “the free development of everyone is a condition for the free development of all,” “the source of growth of social wealth, the welfare of the people and every Soviet man is free from exploitation labor of Soviet citizens.” Moreover, in their own appreciation the positive advantages of Soviet or Russian constitutional norms in the works of the native researchers were described as sharply contrasting with “the negative features of ‘bourgeois’ law.”33 In the same style were created “economic constitutions” of the majority of the European satellites of the USSR – European states of “national” socialism, other states which for their law and political development chose the “socialist orientation.” In the state constitutions formed after World War II “socialist camp” (entered by the members of the Organization of Warsaw Pact: Albania, Bulgaria, Hungary, GDR, Poland, Romania, Czechoslovakia, named the countries of national democracy) denied economic freedom defined in its liberal spirit.34 In most “national democratic” states the constitutional acts about nationalization of industry and land were published. The constitutions of “non-capitalistic orientation” (for example, Algeria, Angola, Libya in Africa, Syria, Iraq – in the middle
33 william E. Butler, Russia and the Law of Nations in Historical Perspective 172 (London: Wildy, Simmonds & Hill, 2009). 34 terry Boswell & Christopher Chase-Dunn, The Spiral of Capitalism and Socialism: Toward Global Democracy 84–87 (Boulder: Lynne Rienner, 2000). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 190
East, Chile (under S. Allende) – in Latin America, etc.) largely copied the socialist constitutional model of the soviet type, often worsening it because of its social economic backwardness and archaic social relations of the feudal type. The Constitution of the People’s Republic of China, the most powerful present day socialist state, was adopted in 1982 and reflected the essence of the specific character of the socialist Chinese economy. Not declined socialism the state according to different appreciations is at one of the first places among world global economies and pays much attention to its constitutional regulation. According to the Constitution of the People’s Republic of China the people rule the state, exercise management of economic and other affairs using different channels and ways by law (Art. 2). The basis of the socialist economic system of PRC is socialist public ownership of the means of production, namely public and collective property (Art. 6). The driving force of the national economy is a state economy, i.e. socialist economy with public property. The state ensures the consolidation and development of national economy (Art. 7). The Chinese state directs and assists and controls the private sector by using administrative power although, it allows the private sector to exist and develop within the limits prescribed by law. This means that the private sector of business economic activity is a part of the socialist public economy. The state protects the lawful rights and interests of the private entrepreneurs and manages the leadership, supervision and control after the private sector of economy (Art. 11). Until the XIV Congress of the Communist Party of China (CPC) in 1992 market socialism of a Yugoslavian model was expressed as unacceptable for China. However, since the XIV Congress party documents contain words of a socialist market economy. These changes were also reflected in the Constitution of the People’s Republic of China. Until the March of 1993 before alterations were brought in Article 15 of the Constitution it contained the following norm:
The state leads a planned economy on the basis of socialist ownership. And with a help of the fully balanced economic plans… the state guarantees proportionate, harmonious development of the national economy.
Now Article 15 of the Constitution of the People’s Republic of China acts in another edition:
The state carries out the socialist market economy in practice. It develops economic legislation and improves macro-control in the field of economy.T he state acting in accordance with the law prohibits violation of the economic order by any organization or an individual.
A unique feature of China is that in the structure of its economic development there are both feudal and other – capitalist and socialist – elements. Thus, the IGOR LEVAKIN, DARIA TRIFONOVA 191 expansion of economic independence of enterprises and the liberalization of rules for the use of profits of enterprises promoted the process of industrialization and the rapid departure of yesterday’s farmers in the city. At the same time the introduction of innovations into economic life was largely made by feudal methods. However significant successes in the economic area roused China’s political and administrative leadership to more intensive overcome of the survivals of feudalism and socialism which impede the development of capitalist relations – the eradication of theft and corruption and the suppression of bureaucracy. The involvement of China in international production and international division of labor led to a complex symbiosis of socialist postulates and market realities: the state implements a socialist market economy, ensuring equal legal status and development of rights of all the market players. In addition, the state protects the lawful right of citizens to inherit private property (Art. 13). Thus, the Constitution of the People’s Republic of China contains many of the traditional socialist norms, but on the other hand, the constitutional model of the economy has a modernistic character, which demonstrates a great potential for transformation.35
8. Modern Trends and Their Constitutional Models
The collapse of the world system of socialism in the 1990s led to the formation of a special group of basic laws. Post-socialist states took the path of instituting the interrupted tradition of liberalism, the main features of which are private property, protection of freedoms and security.36 Of course, economic liberalism was corrected by social constitutional motives, which were sufficiently developed in all the leading European states by the end of the 20th century. Post-socialist constitutions were intended to help to overcome economic backwardness and to consolidate constitutionally the purpose of the improvement of conditions of citizen’s lives and to increase productivity of labor. Thus, the Constitution of the Republic of Poland of 1997 establishes a social market economy based on free economic activity and private property. Also solidarity, dialogue and cooperation of social partners are the basis of the economic system of Poland (Art. 20). Limitation of freedom of economic activity in the Republic of Poland is permissible only according to the law and for important public interest (Art. 22). The Constitution of the Republic of Lithuania, adopted by the citizens at the referendum on 25 October 1992, contains Chapter IV named “National Economy and Labor” that proclaims that the economy of Lithuania is based on the right of private property, personal freedom of economic activity and personal initiative. The State supports social useful public economical efforts.T he State regulates economic
35 Jianfu Chen, Chinese Law: Context and Transformation 363–373 (Leiden; Boston: Martinus Nijhoff, 2008). 36 Constitutional Policy and Change in Europe 95–102 (J.J. Hesse & N. Johnson (eds.), Oxford: Oxford University Press, 1995). RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 192 activity in such a way that it serves the common wealth of the people. Monopolization of industry and markets are forbidden by law. Freedom of fair competition is guaranteed. The State protects the interest of the consumer (Art. 46). Latvia is the only eastern European country which restored its pre-war Constitution after the collapse of the socialist system in Eastern Europe. In 1990 the Supreme Soviet of the Latvian SSR declared the restoration of the independence of the Republic of Latvia and the resumption of action of Articles 1, 2, 3, 6 of the Constitution of 1922. The complete restoration of the Constitution happened on 6 July 1993. In 1998 the Constitution was supplemented by the section on human rights. For this reason, the social economic rights in the Constitution of Latvia are prescribed by the latest edition. An important contribution in the modern practice of the constitutional legal defense of economic rights is restitution. In the countries of Eastern Europe together with the liberalization of the economy was the return of immovable property that had been nationalized under the ideological pressure and with the material help of the USSR after World War II in the 1940s and 1950s.37 Since the replacement of social economic orientation and the reorganization of economic structure took place not long ago the consequences of nationalization were overcome easily, that’s why the process of restitution took place rather quietly in Bulgaria, the Czech Republic, Slovakia and other countries, although there also were limitations. In Russia, where nationalization took place much earlier (since 1917), such process had never begun. Most of the post-socialist countries of Eastern Europe which chose the way of legal freedom in the late 20th century confirmed in 2007 their choice enshrined in the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community and became participants in the process of eurointegration which has the purpose to contribute to the balance and long economic progress for the strength of economic and social interaction of state participants of European unification. After becoming participants of theE uropean Union, the Eastern European states also adopted the European constitutional norms on economic rights. Thus, the EU Charter of Fundamental Rights adopted in 2001 established that the right to work may be exercised by EU citizens in any member state (Art. 15), that both property and intellectual property must be protected (Art. 17), freedom of enterprise is recognized in accordance with EU law, national law and customs (Art. 16). Unfortunately, despite the development of electronic democracy tools, modern “economic constitutions” do not consolidate adequately the right to access the Internet.38 Thus, in accordance with part 2 of Article 5a of the Greek Constitution
37 Barbara Pisciotta, The Center-Periphery Cleavage Revisited: East and Central Europe from Postcommunism to Euroscepticism, 22(2) Nationalism and Ethnic Politics 193 (2016). 38 A separate issue is a control of the Internet. Repeated attempts of the authorities of the U.S. to implement legal regulation of the content of Internet sites have been stopped by the courts on the basis of the First Amendment to the Constitution. IGOR LEVAKIN, DARIA TRIFONOVA 193 everyone has a right to participate in the information society. The assistance in access to information in electronic form, as well as its production, exchange and dissemination is the responsibility of the state; according to part 2 of Article 15 of the Transitional Constitution of Nepal of 15 January 2007
[R]adio, television, the Internet or other digital or electronic media, the press or any other media are not the subject to closure, withdrawal or cancellation of registration in connection with any publication, broadcast or publication of any material on audio, video or electronic equipment.39
9. Modern Native Experience
The first constitution of postsocialist Russia – the Constitution of the Russian Federation of 1993 formed the opportunities for economic liberalism; it does not name directly the type of Russian economic system but accentuates the basis – property irrespective of its form. In Russia, freedom of economic activity is guaranteed. Private, state, municipal and other forms of property are equally recognized and protected similarly. The principle of economic freedom is established as the basis of constitutional order: the unity of economic area, free movement of goods, services and financial resources, support of competition and free economic activity are guaranteed in the Russian Federation (part 1 of Art. 8). In accordance with the Russian Constitution, land and other natural resources may be in private, state, municipal and other forms of ownerships (part 1 of Art. 8); protection of the unity of economic space is the constitutional norm on the prevention of the establishment of customs borders, duties, levies and other impediments to the free movement of goods, services and financial resources are prohibited in the territory of the Russian Federation (part 1 of Art. 74). The development of the nuclear industry, “a sharp increase in the volume of scientific and technological information, the emergence of fundamentally new ways of working with it” led to a new constitutional legal rethinking of reality.40 By the end
39 the experience of the European States establishing provisions for the universal access to the Internet in their current national legislation is important. More info, see Середа М.Ю. Закрепление права на доступ в сеть Интернет в международно-правовых актах и законодательстве зарубежных стран // Международное публичное и частное право. 2013. № 5. С. 44–47 [Mikhail Yu. Sereda, Securing Rights of Access to the Internet in the International Instruments and Legislation of Foreign Countries, 5 International Public and Private Law 44 (2013)] (Jul. 20, 2018), also available at http://www.center-bereg.ru/o428.html. 40 Part 1 of Article 44 of the Russian Constitution reads: “Intellectual property is protected by law.” In the Strategy of scientific and technological development approved on 1D ecember 2016 by presidential Decree No. 642 the concept of “scientific and technological development of theR ussian Federation” is used, it means the process of a qualitative change of the role of science and technology in ensuring independence and improving the competitiveness of Russia, whose goal is the ability of the state to respond to big challenges effectively. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 194 of the 20th century and the beginning of the 21st century nuclear and information technologies received constitutional recognition. For example, Article 71 of the Russian Constitution says, that the jurisdiction of the Federation includes: federal energy systems, nuclear power, fissile materials; federal transport, communications, information and communications; activities in space.41 The Constitution of the Russian Federation distinguishes three levels of public power: federal, subjects of Federation and municipal. Each level of public power is provided with the appropriate form of ownership that is the economic basis of its independence. Relations of ownership are connected with the rights of the people living in the corresponding territory. For example, such objects of ownership as land and other natural resources are considered to be the basis of life and activities of the people inhabited the territory (part 1 of Art. 9) and for them special constitutional legal conditions of usage are established. The active Constitution of Russian Federation is often criticized too because of the legitimation of the disputed results of a nationwide privatization of socialist property which took place in the beginning of the 1990s.42 By the way, the Constitution did not become the basis of denationalization and restitution of the objects of property as it was in the countries of Eastern Europe. Opinions are expressed about the insufficiency of the forms of ownership regulated by the Russian Constitution: the absence of the concept of “people’s property” deprives the people’s power of the economic basis.43 It seems fair to admit that the defects and problems of the “economic constitution” of Russia discovered during more than 20 years of its action since 1993 are not so much of legal character. They are strained by the shortcomings of law enforcement practice that influences perniciously on the development of theR ussian economic system, by the ineffectiveness of the judicial system, poor administration, bureaucratic intervention and corruption.
Conclusion
“Economic constitutions” are submitted to a common leading regularity that is expressed in progress. The progress of “economic constitutions” is characterized by the transition (gradual or revolutionary) from simple forms of protection of the right of ownership to a more perfect systematic and universal regulation of the material basis of society;
41 do not forget that many modern technologies in our country were developed in the Soviet period. This fact to some extent refutes the thesis about the determinism of scientific and technological progress by liberal democracy. 42 william Partlett, The Legality of Liberal Revolution, 38(3–4) Review of Central and East European Law 217 (2013). 43 See Авакьян С.А. Гарантированное народовластие // Независимая газета. 16 октября 2014 г. [Suren A. Avakyan, Guaranteed Democracy, Nezavisimaya Gazeta, 16 October 2012] (Jul. 18, 2018), available at http://www.ng.ru/ng_politics/2012-10-16/15_narodovlastie.html. IGOR LEVAKIN, DARIA TRIFONOVA 195
“economic constitutions” of separate historical stages and in separate states developed in different directions. Regression of “economic constitutions” is also possible, it is characterized by the temporary transition from complex forms of constitutional regulation of economy to more simple and less sophisticated methods for example used by the antidemocratic power to protect the illegitimate (corrupt) power ownership.44 The regularity of the progress of “economic constitutions” is confirmed by the following tendencies: “economic constitutions” are also the juridical legalization of institutions of control over power, the way of expansion of civil economic freedom. Such are, for example, the introduction of certain (competence and procedural) restrictions on the use of public resources, the rational combination of executive power with the budgetary and corresponding control functions of representative power, the formation of economic rights and freedoms of a man and a citizen, etc.;45 “economic constitutions” demonstrate not only the features of the dominant method of production and the character of production relations: in the advanced communities rules of interaction of subjects in the economic sphere are formed on the basis of the rule of law (including through special courts, for example, arbitration), economic guarantee of the rights and freedoms of an individual and collective subjects of law, etc.; “economic constitutions” indirectly react to the character of state regimes. Antidemocratic state regimes can use advanced technologies and systems of management because regularities of conformity of productive forces, productive relations and ideological superstructure including legal ones can be traced to large numbers of people in large periods of time. Thus, for example, stable interrelationships between the progress of scientific technological development, the level of life and the stage of the liberalization of “economic constitutions” do not have the character of direct dependence; “economic constitutions” are in constant evolution: the development of economic relations – booms and crises – naturally complicates the mechanisms of constitutional legal regulation, increases the number of links between economy and constitutional legal norms, changes the level of solidarity, extends and earmarks for a special role the sphere of regulation of the “economic constitutions”, etc.; “economic constitutions” objectively take into account the achievements of scientific and technological progress: the infrastructure of society is changing, new communication channels which in modern society become not so much as serving
44 tom Ginsburg & Alberto Simpser, Constitutions in Authoritarian Regimes 271 (Cambridge: Cambridge University Press, 2014); The Rule of Law and Economic Reform in Russia 55–74 (J. Sachs & K. Pistor (eds.), Boulder: Westview Press, 1997). 45 it can be argued that these processes contributed the national identification of peoples as social economic communities, nations. RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 196 as a leading producing resource requiring constitutional and legal regulation to be introduced; “economic constitutions” in the foreseeable future can be qualitatively transformed as the rapid development of information and other high technologies is growing: the levels of technical and technological base of production are rapidly changing (the current trend in the development of the economy on a global scale is the movement to the “fourth” industrial revolution); “economic constitutions” are the most important resource for harmonizing the asynchronous nature of economic relations (for example, the irregular development of production sectors, regions, etc.) or inconsistence in the high technological level of production with backward production relations; the tool for taking into account the social expectations of modern society, including the functioning of democracy, the fair distribution of surplus product, etc.;46 “economic constitutions” not only proclaim rights. Without the specific practice of their realization there is no proper understanding of the “economic constitution.” As scientists mention,
put in legal terms without state action – either by a state or the federal government – there is no constitutional issue.47
That’s why the main element of “economic constitutions” conclude not only the legal establishment of legal rights but also their realization in practice; “economic constitutions” can be as a self-enforcing act and an instrument for the management of profound social transformation48 by maintaining several clauses; by interacting with other institutions of legal system (firstly, with economic courts and courts of constitutional jurisdiction) can ensure real but not declarative action of constitutional norms that regulate the economy; “economic constitutions” ultimately depend on the level of industrial relations that determine the progress thus, the examples of constitutional reforms of economic relations (revolution “from the top”) leading to the way of technological and economics in the whole modernization are not rare; “economic constitutions” of the leading contemporary democracies, where legal norms and juridical practice of their realization are agreed forwardly, show the new requirements to wealth, stable development, inner unity and cultural variety and bring together the principles of economic liberalism and the ideas of a social state;
46 to ensure political and civil liberties, freedom of entrepreneurship, equality of citizens before law, independence of the court from the administration, capacity of Parliament and parliamentary control over the Executive power, mutual responsibility of the state and citizens, etc. 47 Constitutional Cultures 26 (M. Wyrzykowski (ed.), Warsaw: Institute of Public Affairs, 2000). 48 s ergey Shakhray, Basic Law as an Instrument for Legal and Socio-Political Transformations (Towards the 20th Anniversary of the Constitution of the Russian Federation), 2(1) Russian Law Journal 29 (2014). IGOR LEVAKIN, DARIA TRIFONOVA 197
“economic constitutions” contain innovative imperatives, which take into consideration the requirements of scientific, technological and liberal progress within the framework of international legal standards.49 The project of “unconditional basic income” is realized or tested in many countries. The idea of which is to sever the relationship between employment and welfare,50 to let people work less and to use more time for individual realization; “economic constitutions” of modern developed democracies are coordinated with international legal standards. Thus, the EU Charter of Fundamental Rights in contrast to the traditional doctrine of division of human rights and freedoms on the rights of the first generation, such as civil and political rights, and the rights of the second generation, such as social and economic rights, considers the legal status of a man and a citizen of the European Unity in unity and equality. The tendencies of the development of modern “economic constitutions” let us make the following prognoses: “economic constitutions” in the 21st century probably would fix the synthesis of scientific achievements (for example, the invention of a quantum computer, global internet, artificial intelligence): these achievements are able to potentially provide a principally new level of a system of management/self-government of economy, society and state reflected in the next generation of “economic constitutions”; “economic constitutions” of the 21st century reflecting the development of the particularly important high technologies would take into account the necessity of its usage within the framework of strict legal regulation for the purposes of security and defense of the whole complex of basic rights and freedoms of the peoples and individuals;51
49 For example, the Federal Constitution of the Swiss Confederation of 1999 traditionally enshrines economic freedom, as well as the need to promote scientific activities (Art. 64), the need to create conditions for prosperity and economic security of the population of the country (Art. 94). Article 130 of the Constitution of Spain of 1978 says that public authorities shall promote modernization and development of all economic sectors in order to equalize the standard of living of all Spaniards. 50 According to Sec. 88 of the Constitution of Finland of 1999 everyone has right to receive from the state an allowance necessary for him or her, which should be guaranteed regardless of the state budget. This is how is embodied the idea of Thomas Paine, the ideologist of the American Revolution, who founded the conception in the famous Manifesto “Agrarian justice” written in 1795: redistribution of national income to ensure a decent life “…by the energy that springs from the consciousness of justice.” See Thomas Paine, Agrarian Justice (1795) (Jul. 20, 2018), available at http://www.constitution. org/tp/agjustice.htm; Байкова Э.Р. Опыт изъятия и распределения ренты в зарубежных странах // Проблемы современной экономики. 2010. № 3. С. 70–74 [Elvira R. Baykova, The Experience of Withdrawal and Allocation of Rents in Foreign Countries, 3 Problems of Modern Economy 70 (2010)] (Jul. 20, 2018), available at http://www.m-economy.ru/art.php?nArtId=3211. 51 the Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind, adopted by General Assembly resolution 3384 (XXX) on 10 November 1975, warns that “scientific and technological achievements can be used to strengthen an arms race, suppress national liberation movements and deprive individuals and peoples of their human rights and fundamental freedoms.” RUSSIAN LAW JOURNAL Volume VI (2018) Issue 3 198
“economic constitutions” would help to reveal the potential of the innovative economy of the developing in the 21st century era of high technologies, create conditions for the desired “international economic order based on equity, sovereign equality, interdependence, common interests and cooperation between all states regardless of their economic and social system”; “economic constitutions” of the 21st century would likely reflect the fact of belonging of the main means of production – computer and software – to a large number of employees. In this way “economic constitutions” can contribute to a regular global social economic modernization based on the consolidation and implementation of new universal principles of direct (information) democracy,52 the rejection of obsolete, cumbersome, economically meaningless state mechanism that reflects the characteristics of the class society of the departed social economic formations.
References
Bogdan M. Comparative Law (Deventer: Kluwer; Stockholm: Norstedts Juridik; Oslo: TANO, 1994). Boswell T. & Chase-Dunn C. The Spiral of Capitalism and Socialism: Toward Global Democracy (Boulder: Lynne Rienner, 2000). Buchanan J.M. The Logical Foundations of Constitutional Liberty (Indianapolis: Liberty Fund, 1999). Butler W.E. Russia and the Law of Nations in Historical Perspective (London: Wildy, Simmonds & Hill, 2009). Chen J. Chinese Law: Context and Transformation (Leiden; Boston: Martinus Nijhoff, 2008). Constitution and Reform in Eighteenth-Century Poland: The Constitution of 3 May 1791 (S. Fiszman (ed.), Bloomington: Indiana University Press, 1997). Constitutional Cultures (M. Wyrzykowski (ed.), Warsaw: Institute of Public Affairs, 2000). Constitutional Policy and Change in Europe (J.J. Hesse & N. Johnson (eds.), Oxford: Oxford University Press, 1995). De Cecco F. State Aid and the European Economic Constitution (Oxford: Hart, 2012). Fitzsimmons M.P. The Committee of the Constitution and the Remaking of France, 1789–1791, 4(1) French History 23 (1990). Freeman E.A. The Growth of the English Constitution from the Earliest Times (London: Macmillan, 1909).
52 the aim of the information theory of democracy is to optimize democratic institutions within the framework of existing political systems and the development of electronic democracy. The achievements of cybernetics, synergetics, informatics, sociology and a number of other sciences are used for this purpose. See, e.g., Lawrence K. Grossman, Electronic Republic: Reshaping American Democracy for the Information Age (New York: Penguin Books, 1995). IGOR LEVAKIN, DARIA TRIFONOVA 199
Ginsburg T. & Simpser A. Constitutions in Authoritarian Regimes (Cambridge: Cambridge University Press, 2014). Hill C. The English Revolution 1640 (3rd ed., London: Lawrence & Wishart, 1955). Irons P. A People’s History of the Supreme Court (New York: Penguin Books, 2006). Ishay M. The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley: University of California Press, 2008). Julius K.C. The Abolitionist Decade, 1829–1838: A Year-by-Year History of Early Events in the Antislavery Movement (Jefferson: McFarland, 2004). Partlett W. The Legality of Liberal Revolution, 38(3–4) Review of Central and East European Law 217 (2013). Pisciotta B. The Center-Periphery Cleavage Revisited: East and Central Europe from Postcommunism to Euroscepticism, 22(2) Nationalism and Ethnic Politics 193 (2016). Prosser T. The Economic Constitution (Oxford: Oxford University Press, 2014). Sauter W. The Economic Constitution of the European Union, 4(1) Columbia Journal of European Law 27 (1998). Shakhray S. Basic Law as an Instrument for Legal and Socio-Political Transformations (Towards the 20th Anniversary of the Constitution of the Russian Federation), 2(1) Russian Law Journal 29 (2014). The Industrial Revolution, 1700–1914 (C.M. Cipolla (ed.), New York: Barnes & Noble, 1976). The Rule of Law and Economic Reform in Russia (J. Sachs & K. Pistor (eds.), Boulder: Westview Press, 1997). Van der Burg M. Transforming the Dutch Republic into the Kingdom of Holland: The Netherlands Between Republicanism and Monarchy (1795–1815), 17(2) European Review of History 151 (2010).
Information about the authors
Igor Levakin (Moscow, Russia) – Professor, Department of Public Law, MGIMO University (76 Vernadskogo Av., Moscow, 119454, Russia; e-mail: [email protected]).
Daria Trifonova (Moscow, Russia) – Postgraduate Student, Faculty of Law, Lomonosov Moscow State University (1 Leninskie Gory, Bldg. 13–14, GSP-1, Moscow, 119991, Russia; e-mail: [email protected]). Volume VI (2018) Issue 3
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