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Amicus Brief on Russian assassinations

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

BILAL ABDUL KAREEM,

 

Plaintiff-Appellant,

 

v.

 

GINA HASPEL, Director, Central Intelligence Agency, et al.,

 

Defendants-Appellees.

 

  Case No. 19-5328

 

 

 

 

 

BRIEF OF AMICUS CURIAE

RUSSIAN EXPERT PROFESSOR WILLIAM BOWRING

 

 

Santha Sonenberg
[]

202-494-7083

santhasonenberg@yahoo.com

 

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

BILAL ABDUL KAREEM,

 

Plaintiff-Appellant,

 

v.

 

GINA HASPEL, Director, Central Intelligence Agency, et al.,

 

Defendants-Appellees.

 

  Case No. 19-5328

 

 

 

 

 

BRIEF OF AMICUS CURIAE

RUSSIAN EXPERT PROFESSOR WILLIAM BOWRING

 

Professor William Bowring hereby files the following brief as Amicus Curiae in this case in support of the Appellant:

INTEREST OF AMICUS

Professor William Bowring, amicus here, is a citizen of the United Kingdom.

My interest in the case before this Court is the effect of United States law and practice in encouraging other states, in this case the Russian Federation, to carry out and to legalise programs of assassination at home and abroad. In other words, the general policy being publicly espoused by the U.S authorities in this case (that they have the power to assassinate anyone including American journalists), combined with the insistence that this policy should be secretive and unreviewable, makes it impossible for governments and human rights advocates to strive to rein in the assassinations being committed by regimes such as the Kremlin and Putin in Russia.

I am a Professor of Law at Birkbeck College, University of London, and a practising Barrister of England and Wales. I have been travelling the Russia since 1983, when it was still part of the USSR, and have written many books and article on Russian law and practice. As a Barrister I have taken hundreds of cases against Russia since 2000 to the European Court of Human Rights (Russia ratified the European Convention on Human Rights in 1998), and in 2003 I was awarded €1 million by the European Commission to found the European Human Rights Advocacy Centre (EHRAC) in partnership with the leading Russian human rights organization Memorial. With my colleagues I have won many cases on behalf of applicants complaining of murder, torture, disappearance and other human rights violations committed by Russia against Chechens, in the context of the Second Chechen War initiated by President Putin in 1999. I am a member of the legal team representing Marina Carter (Litvinenko) in her case at the ECtHR concerning the murder of her husband Alexander Litvinenko in London in November 2006. I attach my qualifications and experience in Russia in the Annex hereto.

CONSENT OF THE PARTIES

Undersigned counsel hereby states that both parties have consented to the timely filing of this Amicus brief.

CERTIFICATE OF COMPLIANCE

I hereby certify that no counsel for a party authored the brief in whole or in part; that no party nor a party’s counsel contributed money that was intended to fund preparing or submitting the brief; and that no person—other than amicus curiae or its counsel—contributed money that was intended to fund preparing or submitting the brief.

/S/ SANTHA SONENBERG        .                   

ARGUMENT OF AMICUS

  1. THE ASSASSINATION OF INDIVIDUALLY SELECTED PEOPLE AROUND THE WORLD BY THE UNITED STATES GOVERNMENT IS AN ISSUE OF IMMENSE PUBLIC INTEREST, WITH A NEGATIVE IMPACT ON HUMAN RIGHTS WORLDWIDE, AND SHOULD NOT BE CONDUCTED WITH TOTAL SECRECY AND IMPUNITY

 

Difficult though it is for advocates of human rights to believe, it is well known that the U.S. conduct an assassination program.

 

A.           The Russian legal basis for and their use of assassination conforms with and may well be influenced by the US theory and practice

Nobody would suggest that the current Russian regime only began to engage in illegal acts after the U.S. publicized its own extra-legal activities. However, by creating a rendition program, by engaging in torture (albeit called “Enhanced Interrogation Techniques”),[1] by the supposedly law-free detention centers ranging from Guantánamo Bay to prisons dotted around foreign countries, and now by advertising its assassination program, the U.S. essentially encouraged repressive regimes to expand their own such policies. My focus in these Amicus Curiae observations is on Russia.

The U.S. Executive claims that such activities are rendered lawful by the 2001 Authorization of the Use of Military Force (AUMF),[2] periodically renewed. The AUMF permits the President to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on 11 September 2001, or harbored such organizations or persons.”

The Russian government followed the U.S. example in 2006. The Russian legal basis for assassination is to be found in the Federal Law of the Russian Federation of 6 March 2006 “On countering terrorism”.[3] Article 22 provides:

Legitimate Infliction of Harm

The deprivation of life of a person committing a terrorist act, as well as causing harm to the health or property of such a person or other interests of the person, society or state protected by law during the suppression of a terrorist act or the implementation of other measures to combat terrorism with actions prescribed or permitted by the legislation of the Russian Federation, are lawful.

This law was soon amended to extend the powers of the Russian state to the carrying out of assassinations abroad. On 29 July 2006, on publication in the official Russian Gazette, another new law came into force, with the anodyne title “On amendments to separate legislative acts in connection with the enactment of the Federal Law “On ratification by the Russian Federation of the European Convention for the Prevention of Terrorism” and the Federal Law “On countering terrorism””[4] (the 2006 Law). Fifteen laws were amended, and substantial changes included the re-introduction of trials in absentia, following their abolition in 2002. The most controversial amendments related to the functions and powers of the security services.

Article 13(6.2) of the Federal Law of 1995 No 40 FZ “On the Federal Security Service” is amended by Article 3 of the 2006 Law so as to provide expressly for the execution of counter-terrorist operations beyond the borders of the Russian Federation. This has been described by commentators as a Russian “007 law”, giving the Russian secret services for the first time the right to use deadly force abroad. Article 6(2) provides that the Russian government may:

… use special forces of the federal security service and use military equipment, weapons, special equipment adopted by the federal security service, as well as physical force against terrorists and (or) their bases outside the territory of the Russian Federation to eliminate threats to the security of the Russian Federation;

On 3 July 2006 the staff journalist Vladimir Fedosenko published an article in the official Russian Gazette entitled “The Russian special sub-units are ready to execute the order of the President. The right of retribution has been taken upon itself by the Russian state in the war on terrorism.”[5] He correctly identified the issue at stake in the new law as the legitimacy of preventive actions by the special services outside Russia, especially in the context of President Putin’s order to find and liquidate the murderers of Russian diplomats in Iraq. The deaths of the diplomats were confirmed on 26 June 2006.[6] The men were seized in Baghdad on 3 June 2006, and the kidnappers said the executions were in revenge for “torture, killing and displacement by the infidel Russian government” in Chechnya. I doubt whether this event was the only reason for enacting the new legislation, but served as a pretext in my opinion.

To my knowledge, no senior Russian official said on record that Russia was following the US example, which is understandable enough. But there is a startling similarity in a number of areas – from the purported legal justification for assassination to the strategic leaks – which leads me and others to conclude that the Putin regime was almost certainly copying the regime supposedly adopted by the AUMF. This, he would rightly have decided, neutralizes the capacity for Western states, international organisations, and for human rights defenders to be critical of such human rights abuses.

After this, the Director of the FSB, Nikolai Patrushev, announced that the recently created National Anti-terror Committee of the Russian Federation would coordinate the work of the Russian special services for carrying out the President’s order. In the words of Sergey Mironov, Speaker of the Federation Council, Russia’s upper house, this initiative was consistent with Russia’s right to self-defence enshrined in Article 51 of the UN Charter.

On 11 January 2007 the opposition newspaper Novaya Gazeta published an article, “How in Russia murders are committed in the interests of the state”, describing a document which had come into their possession, apparently leaked from the FSB.[7] According to this 70-page document, which appeared to be a secret FSB instruction, parallel structures had been created within the FSB for the purpose of carrying out “extra-judicial sentences”, that is, murders. The document appeared to have been signed by Colonel Seliverstov of the FSB. When “Novaya Gazeta” approached him, his response was that he had not signed the document, but that whoever had passed it to the newspaper had committed a state crime. Former FSB members confirmed that such a document, even though signed by a colonel, would have required approval at government level.

The article discussed at length not only the notorious Litvinenko and Politkovskaya cases (Anna Politkovskaya was murdered outside her home in Moscow on 7 October 2006)[8], but also the unsolved murders or suspicious deaths of a large number of opposition journalists and others.

 

The laws cited above authorise three Russian agencies to exercise the right to conduct assassinations abroad – FSB (Federal Security Service), GRU (Main Intelligence Directorate) and SVR (Foreign Intelligence Service).

The U.S. has admitted the existence of its own assassination project, as well as such particular elements of it as “Terror Tuesday”.[9]

It therefore becomes difficult for the U.S. (or anyone else) to be critical of the Russian program, without being accused of hypocrisy.

 

B.           These changes to the law have been followed by an increase in the alleged Russian assassinations and attempts with the murder of Alexander Litvinenko and the murder and attempted murder of others in the United Kingdom

 

While the U.S. might seek to distinguish assassination under the AUMF as targeted on “terrorists” in a “war zone”, the definitions are sadly rather flexible. The U.S. has adopted the “Global War on Terror” concept, meaning that the “battlefield” may be anywhere and everywhere. It is also a “war” of potentially eternal duration. In the context of Guantánamo Bay, and the legal justification for detaining people without trial forever, consistent with the Geneva Conventions, the Executive has represented that the “war” may go on for a century[10]

When Judge Thomas Hogan asked if, in the government’s view, the war could last 100 years, Justice Department attorney Ronald Wiltsie said, “Yes, we could hold them for 100 years if the conflict lasts 100 years.”

 

Indeed, the U.S. budget for the global “War on Terror” shows no sign of ending, and while the funds allocated in 2002 were $59.1 billion, in 2019 the figure was $150.8 billion.[11]

The investigative website Buzzfeed News published the following on 12 June 2017:

“The Kremlin has aggressively stepped up its efforts to eliminate and silence its enemies abroad over the past couple of years – particularly in Britain,” one senior US spy told BuzzFeed News.”[12]

 

A few days later Buzzfeed continued

“The existence of American intelligence linking the 14 deaths in Britain to Russia was confirmed by four current US intelligence officials with direct knowledge of the information the spy agencies had gathered on each case. In certain instances, they said, it was possible to say with high or moderate confidence that assassinations had been carried out on Putin’s command. In others, it could not be determined with certainty whether individuals had been targeted by the Kremlin, murdered by Russian mafia figures, or deliberately driven to suicide – and they could not rule out the possibility that some of the deaths could be unconnected to Russia. But in all 14 cases, “based on what we know and intelligence gathered in the field and analysed,” one of the officials said, “you can safely say that the strongest conclusion is that circumstances suggest Russian involvement in the deaths of these men and then demand more investigation from UK.””[13]

 

Some further examples are:

(i)                  Alexander Perepilichny was murdered using a deadly poison fern, Gelsemium elegans, in Weybridge on 10th November 2012

It is alleged that the Russian state security service carried out the murder of a fraud whistleblower, Alexander Perepilichny. He was 44 when he “died after collapsing while running near his Surrey home in November 2012. His death was originally attributed to natural causes, but traces of a chemical that can be found in the poisonous plant gelsemium elegans were later found in his stomach.”[14]

Perepilichny had provided evidence to Bill Browder’s investigation into the fraudulent activity of senior Russian officials that culminated in the theft of $230 million from the Russian tax revenue. Browder’s lawyer, Sergei Magnitsky, was investigating this same case when he was arrested and ultimately murdered by Russian officials. The man suspected of carrying out the assassination was arrested in Turkey, but according to The Independent newspaper on 10 May 2016, the Russian authorities sought to protect him:

A pre-inquest hearing was told that the suspected hit-man – Valid Lurakhmaev – has now been arrested in Turkey on an unrelated matter and it was vital for British investigators to make efforts to gain access to the 45-year-old Chechen, who is already wanted by Interpol for attempted murder and theft.

Lawyers for Hermitage Capital, the international investment firm targeted for the £150m tax fraud, told the Surrey Coroner’s Court in Woking that it was possible that Mr Lurakhmaev would be extradited to Russia and put out of the reach of British police.[15]

I have found no information concerning this person since 2016.

In her 2019 book From Russia with Blood: Putin’s Ruthless Killing Campaign and Secret War on the West[16] the Buzzfeed investigative journalist Heidi Blake devotes part of Chapter XVIII to the case of Mr Perepilichny.[17] She records that the British government remained unflinching in its insistence that there was nothing to suggest that the murder of Mr Perepilichny was anything other than natural. However:

The spies at Langley were infuriated. They had warned their colleagues in England that the Kremlin was aggressively stepping up its assassination program on UK soil. Now they agreed among themselves that the “incompetent” British authorities needed to be held accountable for failing to put a stop to the disturbing trend. America’s top intelligence official prepared a highly classified report for Congress “on the use of political assassination as a form of statecraft by the Russian Federation”, which listed multiple deaths in Britain. The report asserted with “high confidence” that Perepilichny had been assassinated on direct orders from Putin or people close to him, and the intelligence it outlined was passed to MI6. But the British government ignored that and other evidence connecting the Kremlin to another brazen hit on British soil. So Russia grew yet more emboldened.[18]

Sadly, as will be seen below, the British law enforcement authorities appear to have been less than diligent in investigating and reaching any conclusions as to the disturbing series of assassinations carried out in Britain.

(ii)           Boris Berezovsky is alleged to have been murdered by hanging on 23rd March 2013 in Sunninghill

Boris Berezovsky was the subject of a number of assassination attempts, culminating in 2013. He was a Russian business oligarch, government official, engineer and mathematician. He was a member of the Russian Academy of Sciences. Berezovsky was politically opposed to the President of Russia Vladimir Putin, since Putin’s election in 2000 and remained a vocal critic of Putin for the rest of his life. Indeed, it is commonly known that it was Mr Berezovsky who raised Mr Putin to high office as Director of the FSB in April 1999 in order to secure the dismissal of the General Prosecutor Yury Skuratov, who was investigating President Yeltsin’s corruption. Mr Putin was then appointed Prime Minister, in which capacity he started the Second Chechen War, and on 1 January 2000 became Acting President when Mr Yeltsin stepped down. By April 2000 Mr Putin told Mr Berezovsky that he was no longer beholden to him, and that Mr Berezovsky must leave Russia.

In late 2000, after the Russian Deputy Prosecutor General demanded that Berezovsky appear for questioning, he did not return from abroad and moved to the UK, which granted him political asylum in 2003. I was an expert witness in 2003 in Mr Berezovsky’s defence to a Russian request for his extradition, and acted as his expert on several occasions afterwards.

In Russia Mr Berezovsky was later convicted in absentia of fraud and embezzlement. The first charges were brought during Primakov’s government in 1999. Despite an Interpol Red Notice for Berezovsky’s arrest, Russia repeatedly failed to obtain the extradition of Berezovsky from Britain, which became a major point of diplomatic tension between the two countries.

Mr Berezovsky was found dead at his home, Titness Park, at Sunninghill, near Ascot in Berkshire, on 23 March 2013. A post-mortem examination found that his death was consistent with hanging and that there were no signs of a violent struggle. However the coroner at the inquest into Berezovsky’s death later recorded an open verdict.

In her 2019 book Heidi Blake devotes Chapter XIX to Mr Berezovsky.  She writes:

The police position was that Berezovsky had sustained his additional injuries when the scarf snapped and his body fell, and they told the coroner they were “content” that Berezovsky had taken his own life… [his daughter Elizaveta did not agree] The Kremlin had been trying for years to silence Berezovsky, and his daughter believed it had finally succeeded… With such conflicting testimony, the coroner, Dr Peter Bedford, said he could not determine beyond all reasonable doubt how Berezovsky had died, and the inquest recorded an open verdict.

The official police position did not sit easily in all quarters at Scotland Yard. Several officers in the Specialist Protection and counterterrorism units, who had spent years monitoring the threats to Berezovsky, would always suspect that he had, finally, been murdered. They knew Russia was perfectly capable of faking a person’s suicide, having slipped the victim mind-altering drugs beforehand to make it look believable.[19]

That is my own view, having got to know Mr Berezovsky since 2003.

(iii)       Scot Young appears to have been assassinated by the Russians

Chapter XX of Heidi Blake’s book concerns the case of Scot Young,[20] illustrating that the Putin Government does not merely go after “traitorous” Russians. His body, impaled on railings after falling from the fourth floor, was found on 8 December 2014. She writes:

The onetime superfixer was by then the ninth in Berezovsky’s circle of friends and business associates to die under suspicious circumstances in Britain. But when the police entered his penthouse… they didn’t even dust for fingerprints. They declared his death a suicide on the spot and closed the case.

 

There was more evidence which could have pointed to murder rather than suicide, but was never properly investigated. Once again the inquest into Young’s death recorded an open verdict. The coroner said “I have concluded that there is inconclusive evidence to determine his state of mind and intention when he came out of the window.” Blake concludes:

But while the police shut down the case, dismissed the Russian connection, and rebuffed their [his daughters’] concerns the spies in River House were secretly asking their American colleagues if the fixer’s risky dealings with Moscow had finally caught up with him.

 

The spies at Langley replied that yes, they did indeed suspect another assassination had slipped through Scotland Yard’s dragnet. Young’s death was yet another reason why US intelligence officials believed the Kremlin’s killing campaign was accelerating.[21]

 

(iv)               Gareth Williams is alleged to have been murdered by Russia

In Chapter XVII of her book[22] Heidi Blake assesses the death, in August 2010, of the British spy – a code breaker at Britain’s Government Communications Headquarters (GCHQ), but currently working in London at MI6 – Gareth Williams. After his sister was concerned at not hearing from him, police notified by GCHQ went to his flat and found his body, dead for ten days, inside a padlocked sports bag placed inside a bathtub. He could not have locked himself in the bag. Blake writes that the coroner, Dr Fiona Wilcox

…went on to deliver a devastating verdict for MI6 and Scotland Yard’s counterterrorism command. [She] dismissed the theory that the spy had suffocated in a sex game and condemned the leaks to the media about his private life as a possible attempt “by some third party to manipulate a section of the evidence.” She ruled that Williams’s death was “unnatural and likely to have been criminally mediated,” blaming the spies and counterrorism cops for obfuscation and failures in the handling of the evidence that made it impossible to determine exactly how he had been killed.

 

It turned out that Williams had been working on Russia. He had just qualified for operational deployment, and in the months before his death he had been traveling regularly to the Fort Meade headquarters of the US National Security Agency (NSA), in Maryland, where he was helping to crack complex financial webs used by Kremlin-linked mafia groups to move illicit money around the globe. His work was so sensitive that he had been given security clearance to visit the NSA’s facility in the Utah desert, which is classified as “above top secret”.

The US State Department demanded that none of this should be disclosed to the inquest, and that MI6 should spread the theory that Williams had died as a result of his “unusual sexual proclivities.”[23] However, “[i]ntelligence coming from US sources and listening posts suggested Williams was the victim of another Russian hit on British soil.”

 

  • The attempted murder of Sergei Skripal and his daughter Yulia in Salisbury

 

On 4 March 2018 senior officers of the Russian GRU attempted to murder the Skripals at their home in Salisbury, using weapons grade nerve agent, a novichok. This was not only an illegal use of force by Russia, but constituted an armed attack on the United Kingdom in international law. The UK’s response was muted to say the least.

Sergei Skripal was born in Kaliningrad on June 23, 1951. He was a military officer who had been co-opted to the military intelligence (GRU). In 1995 he was supposedly recruited to British Intelligence by Pablo Miller, and given the codename Forthwith. He is alleged by Russia to have blown the cover of 300 Russian agents. In 1999, he retired at the rank of colonel, and turned to other work, before being arrested in 2004, and subsequently convicted of high treason for which he was sentenced to 13 years in prison. On July 9, 2010, he was part of a spy swap and he went to live in Salisbury.

Skripal’s wife died of cancer in 2012, and his son died of unknown causes in Moscow in March 2017. Then, on March 4, 2018, he and his daughter were found poisoned on a bench in Salisbury.

On 12 March 2018, the Russian Ambassador, Alexander Yakovenko, was summoned by Foreign Secretary, Boris Johnson. The Foreign Secretary said that the nerve agent used against Sergei and Yulia had been identified as “A-234”. He invited Russia to respond, before the end of the next day, whether this was a direct act by the Russian State or acknowledge that the Russian government had lost control of this nerve agent. He also demanded Russia to provide full and complete disclosure of its chemical weapons programme to the Organisation for the Prohibition of Chemical Weapons (OPCW). Later that day Prime Minister Theresa May made a statement in Parliament:

It is now clear that Mr Skripal and his daughter were poisoned with a military-grade nerve agent of a type developed by Russia. It is part of a group of nerve agents known as Novichok. Based on the positive identification of this chemical agent by world-leading experts at the Defence Science and Technology Laboratory at Porton Down, our knowledge that Russia has previously produced this agent and would still be capable of doing so, Russia’s record of conducting state-sponsored assassinations and our assessment that Russia views some defectors as legitimate targets for assassinations, the Government have concluded that it is highly likely that Russia was responsible for the act against Sergei and Yulia Skripal. There are, therefore, only two plausible explanations for what happened in Salisbury on 4 March: either this was a direct act by the Russian state against our country; or the Russian Government lost control of their potentially catastrophically damaging nerve agent and allowed it to get into the hands of others. This action has happened against a backdrop of a well-established pattern of Russian state aggression”.

 

She added: “Should there be no credible response, we will conclude that this action amounts to an unlawful use of force by the Russian state against the United Kingdom, and I will come back to this House to set out the full range of measures that we will take in response”. [24]

The Skripals were saved only by the fact that they lived so close to Porton Down. An unfortunate woman who found the discarded container used by the GRU officers, a perfume flask, died.

Conclusion

Buzzfeed referred to 14 deaths in Britain which have raised questions as to Russian involvement. I have concentrated on five leading examples, in 2010, 2012, 2013, 2014 and 2018, where there is strong evidence of murder and attempted murder by the Russian authorities and their agents. These have all followed the dramatic changes in the law of 2006.

It would appear that Russia has followed and been encouraged by the behaviour of the United States. This may be a reason why the response of UK law enforcement and government has been weak and at times incompetent.

 

PRAYER FOR RELIEF

Amicus respectfully requests that the Court reverse the lower court and reinstate Appellant’s complaint, with guidance as to how best to assess the legal rights of an American citizen facing potential assassination by his or her own government.

 

Dated: 17 March, 2020

 

/S/ SANTHA SONENBERG        . 

Santha Sonenberg
[]

202-494-7083

santhasonenberg@yahoo.com

 

Professor William Bowring

Birkbeck College, University of London

Malet Street

London WC1E 7HX

+44 203 926 1598

b.bowring@bbk.ac.uk

 

Certificate of Service

I hereby certify that the foregoing brief has been served electronically upon the parties through their lawyers, Eric Lewis (Eric.Lewis@LBKMLAW.com) & Tara Plochocki (Tara.Plochocki@LBKMLAW.com) for Appellant, and Bradley Hinshelwood (Bradley.A.Hinshelwood@usdoj.gov) for Appellee this 17th day of March, 2020.

/S/ SANTHA SONENBERG        . 

 

CERTIFICATE OF COMPLIANCE

  1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because:

this brief contains 4,247 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

  1. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally-spaced typeface using Microsoft Word in 14 point Times New Roman font.

/S/ SANTHA SONENBERG        . 

 

 

 

Annex 1

 

Amicus’ Experience in Russia

 

  • I am fluent in Russian, and have since 1983 visited Russia and other countries of the former USSR regularly, and have studied the Russian language, history, and Soviet and Russian law and practice. I have published over 100 books, articles and book chapters on these and related subjects.[25]
  • From 1997 to the end of 2003 I was the contracted Adviser to the UK Government’s Department for International Development on “Human Rights in Russia”, and for the latter three years on “Access to Justice and Rights Issues in Russia.” In this capacity I initiated and monitored large projects in the Russian Federation in the field of judicial reform, reform of the penitentiary system, human rights monitoring, and alternative dispute resolution. This work took me to all parts of Russia, and allowed me to meet official and civil society actors at all levels.
  • The projects included the £1.2m Judicial Support Project working with the Courts of General Jurisdiction and Arbitrazh Courts in Russia, the £600,000 Independent Monitoring Project enabling NGOs to monitor human rights in Russia; and two large projects in the penitentiary system – the Alternatives to Imprisonment Project (with Penal Reform International) introducing community services orders across Russia, and the Prisons Partnership Project (with the International Centre for Prison Studies), twinning Moscow remand prisons with UK prisons.
  • In the course of these projects I became one of a relatively small number of Western experts in Russian law and practice, in all fields of law, especially in relation to the administration of justice and judicial reform. I have intimate knowledge of courts administration and practice, the drafting and implementation of judicial procedural laws, and the actuality of the judicial system in Moscow, St Petersburg and many regions of Russia.
  • The Russian government and Supreme Court (through its Judicial Department, responsible for administration and training) have on a number of occasions called on me to carry out training for senior judges and court administrators. Two examples are: first, training for senior judges of the Southern Federal District in 2005, when my two fellow trainers were the former Russian Agent (representative) at Strasbourg, Pavel Laptev, and the head of the Russian prison system, Yuri Kalinin; and second, in November 2007, when I trained senior judges of Astrakhan Oblast in the south of Russia. I also became closely acquainted with a wide range of Russian interlocutors, including senior judges, officials, and policy-makers, as appears below.
  • I am regularly called upon to assist and advise the Foreign and Commonwealth Office and other UK Government departments, and am also invited to give papers and take part in discussions at the Royal Institute for International Affairs (Chatham House).
  • I have also regularly acted and continue to act as an expert on Russian and other post-Soviet law and practice for the Council of Europe, European Union, Organisation on Security and Cooperation in Europe (OSCE), the US Department of Justice, and other national and international organisations.
  • I was one of the three experts nominated by the Council of Europe to work with senior Russian officials on the new Criminal Procedural Code which came into force on 1 July 2002. I worked closely with Dmitrii Kozak, formerly in charge of President Putin’s judicial reform programme, as well as senior figures from the courts, Ministry of the Interior (Police), Federal Security Service (FSB), and the parliament.
  • I was also nominated by the Council of Europe to work on the World Bank’s “Diagnostic Project” on the Russian judicial system in early 2002. I presently act regularly as expert and consultant with the European Union and the Council of Europe on human rights and minority rights issues.
  • I have worked in an expert capacity for EU projects since 1994, in the fields of reform of social welfare, reform of local government, and presently the establishment of a system of administrative courts in Russia. In October 2004 I hosted a week-long visit to London by the First Deputy Chairmen of the Supreme Court and Higher Arbitrazh Court of the Russian Federation, together with leading parliamentarians and members of the executive branch of government.
  • I have also advised professional clients on many occasions on questions of Soviet and Russian law, as well as conflict of laws (English and Russian) in civil cases. Details of these cases are given on my Chambers website.[26]
  • In March 2005 I gave written and oral expert evidence to the Bow Street Magistrates’ Court in the extradition application Russian Federation v Chernysheva and Maruev. On 18 March 2005 Senior District Judge Timothy Workman, referring to my evidence and that of other witnesses, held that the extradition proceedings were barred by virtue of section 81 of the Extradition Act 2003.
  • On 25 October 2005 I gave written and oral expert evidence in the Bow Street Magistrates Court in the further extradition case of Russian Federation v Temerko. Aleksandr Temerko was second in command to Mikhail Khodorkovsky in YUKOS. On that day there was time only for my evidence in chief, and the hearing was adjourned to 15 December 2005 for cross-examination.
  • On 15 November 2005, before my return to the court for cross-examination, I arrived at Moscow Airport at 0500 am and was detained at Passport Control and held for six hours. I was then deported from Russia, and my multi-entry visa was cancelled. On 23 December 2005, Judge Workman made a similar finding to that in Russian Federation v Chernysheva and Maruev, based to a large extent on my evidence, and refused extradition.
  • In his judgment of 23 December 2005, Judge Workman considered the circumstances of my deportation from Russia, and held:

In absence of any explanation I have concluded that it is more likely than not that the actions of the Russian authorities [by deporting me – WB] were directly associated with the fact that Professor Bowring had given evidence to this Court.

  • In January and February 2006 I also gave written and oral evidence for the Larnaca District Court, Cyprus, in the YUKOS-related extradition case of Russian Federation v Kolesnikov. The court refused extradition in that case, but for the reason that Russia had failed to comply with a number of the requirements of the 1957 European Extradition Convention (Article 12).
  • I have acted as expert witness in a number of extradition cases before the English and Cypriot courts. In the period immediately before Christmas 2007 the City of Westminster Magistrates Court (District Judge Nicholas Evans) refused extradition in the case of Russian Federation v Azarov, for which I also provided evidence for the defendant. I also gave evidence in late December 2007 in the extradition request against Vladislav Kartashov in the District Court of Nicosia, and was cross-examined on my expert report for six hours.
  • In 2008 I gave evidence in London in further extradition cases concerning the Russian Federation. On 8 December 2008 Senior District Judge Workman gave judgment in the case of Russian Federation v Nikitin and Skarga. The defendants in that case were not connected with YUKOS but with shipping interests. On the basis of my evidence and that of Professor Richard Sakwa, Judge Workman held that the prosecution was “mounted of political and economic reasons” and was barred. On the question of diplomatic assurances submitted by the Russian Government, he concluded on the basis of my evidence that “because I find that the charges preferred in this case are politically motivated I have concluded that it is more likely than not that the assurances offered will not be met.” He further held “By virtue of the influences which can be exerted both over the court and over the rights of defence advocates, I am satisfied that there is a strong likelihood of breach of Article 6 of the European Convention on Human Rights.”
  • On 22 December 2008 Judge Workman delivered his judgment in the case of Russian Federation v Izmaylov and Mikhaylyuk and reached very similar conclusions. He said as follows:

“16. The evidence of both Professor Bowring and Professor Sakwa is authoritative and compelling. It is, in my view, based on sound foundation based upon the historical evidence of the YUKOS and other cases. On that basis of that unrebutted evidence, I am satisfied that it is more likely than not that the request for their extradition has been made for the purpose of prosecuting them or punishing them on account of their political opinions.

  1. For the same reasons I am satisfied that the defendants might, if returned, be prejudiced at their trial or punished, detained or restricted in their personal liberty by reason of their political opinions.”
  • In early 2009 I gave evidence before Judge Workman once more in the case of Russian Federation v Makhlay and Makarov. On 8 May 2009 Judge Workman discharged both defendants referring to my “clear, balanced and well informed evidence” and accepting the conclusion I reached. He found that their prosecutions were politically inspired and that there was a risk of prejudice at trial on account of their political opinions.

“On the uncontested evidence before me, I am satisfied that these extradition proceedings are brought for the purpose of prosecuting or punishing the defendants for their political opinions and that they will be prejudiced at their trial or punished, detained or restricted in their personal liberty by reason of their political opinions. Both defendants extradition is therefore barred by reason of extraneous considerations under Section 81(a) and (b).”

  • It is worth referring to an extract from his judgement which illustrates the clear evidence of political interference in the judicial process:

“Judge Valyavina is a Judge of the Supreme Arbitration Court in Russia. In May 2008, she gave evidence before a Russian Court in relation to a defamation case. In the transcript of those proceedings, she said:- “At the beginning of my work in the summer of2005, I received a case from the Presiding Judge of the Second Judicial Bench with the message that other Judges did not want to examine it because they feared being pressured, and so the only person that could examine the case was myself. The case was connected with the Tolyatti Azot Corporation. I undertook the supervision of this case ….. I then issued a ruling to request the case file and immediately afterwards a call came from Boyev, then he came for a meeting. I thought this was connected with Human Resources and did not expect the conversation to turn out the way it did. It was a long conversation and he spoke in length about state interests, adding that I was probably failing to understand them correctly, and when we began to speak of this particular case, I reminded him that I was the Judge in this case and that he had no right to give me instructions. He was asking me to annul my determinations in this case. We did not discuss the details of the case, on the contrary, he said “Eleanor Valyavina, you still have to be reappointed!” Deputy Presiding Judges are appointed for six years and have a right to work for two six-year terms in a row ….. Boyev is present as the representative of the Presidential Administration and can gather material and voice his opinion including a negative opinion. The speed with which Judges are appointed depends on objections from people like him and Judges are afraid that they will not get what they should or what they have earned, if they take such principled positions.” This unchallenged evidence clearly implicates officials from the Presidential Administration in an attempt to influence a Judges decision in respect of the TOAZ Corporation.”

  • I also acted as an expert witness in Cherney v. Deripaska [2008] EWHC 1530 (Comm)[27] on the issue of forum non conveniens, whether Mr Cherney would have the prospect of a fair trial against Mr Deripaska in Russia, or whether he should have a trial in England. At para 202 Christopher Clarke J said at para 202:

“Mr Cherney instructed Professor Bowring, the Professor of Law at Birkbeck College.  He is a fluent Russian speaker with a particular interest in the independence of the Russian judiciary. It is apparent from his curriculum vitae that he is well qualified to give such a report, having extensive experience of the workings of the Russian legal system, having advised UK Government departments and European and other bodies on the Russian legal system and on access to justice in Russia, and having carried out training for senior Russian judges and administrators and worked with senior figures in the system. He has given expert evidence in a number of extradition cases. I am satisfied that he has an open minded attitude to the system, of which, as it happens he appears to have been both the victim and the beneficiary.”

  • In his judgment Christopher Clarke J concluded:

“264. Taking all those considerations into account, I am persuaded that the risks inherent in a trial in Russia (assassination, arrest on trumped up charges and lack of a fair trial) are sufficient to make England the forum in which the case can most suitably be tried in the interests of both parties and the ends of justice and, accordingly, the proper place for the determination of this claim.

265 I shall, therefore, give permission for the claim form to be served outside the jurisdiction.”

  • The judgment of Christopher Clarke J was upheld in the Court of Appeal.
  • In May 2010 I gave evidence in London before Judge Workman in the case of Russian Federation v Yuri Shefler. On 8th June 2010 he discharged the defendant, finding that the prosecution and extradition request were politically motivated, that the defendant would be prejudiced on his return on account of his imputed political opinions, and that his rights under the European Convention on Human Rights would be violated. My evidence to that effect was therefore accepted. Judge Workman said this at para 34 of his judgment:

“Both Professor Bowring and Professor Sakwa gave evidence to me about the independence of the Judiciary in Moscow.  Both Professors have given evidence to me in the past and contrary to the assertions of the Russian Federation in their response to the defence evidence, they both have an extensive knowledge and expertise and both have been extremely careful to see that their view is balanced and objective.  It is clear that their misgivings about the independence of the Judiciary are specific and well documented.”

  • Judge Workman said the following as to political motivation:

“31. I note that the Russian Federation has (with one exception) been unsuccessful in recovering in civil proceedings the international trademarks vested in the defendant’s company. I conclude that the Government now has only limited opportunities to take control of these trademarks and it would appear that one effective way to succeed with their political aims would be to secure the defendant’s return to Russia and incarceration.

  1. I have therefore concluded that there are substantial grounds for thinking that this extradition request is made for the purpose of prosecuting or punishing the defendant on account of his political opinions.”
  • Following a successful application in the Russian courts for judicial review of the decision to exclude me, the circumstances of which are set out above, I have returned to Russia on many occasions.
  • In February 2007 I acted, with the late Lord Slynn of Hadley and others, as one of the judges in the Russian round of the Philip C. Jessup international law moot court competition (the Jessup Competition). I returned in September 2007 to chair the International Steering Group of EHRAC in Moscow, and to train advocates from Chechnya and other regions of Russia in Pyatigorsk. In November 2007, as noted above, I travelled to Astrakhan on the Caspian Sea at the invitation of the Judicial Department of the Supreme Court of the Russian Federation in order to train judges of the district and appeal (Oblast) courts.
  • In February 2008 I returned once more to judge the Jessup Competition. I was a key speaker at a conference at the Moscow State Institute of International Relations (MGIMO) in March 2008. In June 2008, at the invitation of the Federal Service for Execution of Sentences (FSIN) of the Russian Federation, I took part as lead expert for Directorate General of Human Rights and Legal Affairs of the Council of Europe, at the Conference in Pskov, Russia: “The penitentiary system of the Russian Federation in the light of European standards”. In September 2008 I chaired the International Steering Group of the European Human Rights Advocacy Centre (EHRAC) in Moscow and carried out training of the project’s Russian lawyers from Chechnya and other regions.
  • I was invited in March 2009 by the Ministry of Foreign Affairs of the Russian Federation to accompany the High Commissioner on National Minorities of the Organisation for Security and Cooperation in Europe (OSCE) as his expert to investigate the situation of the Ukrainian minority in Russia (we returned to Ukraine with respect to the Russian minority in April 2009). We visited Moscow, Ufa (the capital of Bashkortostan) where we met the President of Bashkortostan, and Voronezh Oblast, on the border with Ukraine.
  • I returned to Russia twice in September 2009. I was a key speaker at a seminar marking the start of a joint Council of Europe and European Union project on minority rights in Russia, on the invitation of the Ministry of Regional Development. Later that month, I chaired once again the International Steering Group of EHRAC, and took part in training activities. I returned again for the minority rights project in November 2009 and February 2010. Also in February 2010 I acted once more as a judge of the Jessup Competition. I returned to Russia to take part in a seminar at the Moscow State Institute of International Relations (connected to the Russian Ministry of Foreign Affairs) in May 2010.
  • In 2010 I travelled to St Petersburg to speak at a conference “Higher Education and Civil Society: A New Social Mission of the University” organised by Smolniy College. It is now a Faculty of St Petersburg State University, the most prestigious university in Russia. In November 2010 I returned first to take part once again in a Working Group meeting of the joint Council of Europe, European Union and the Russian Federation programme “Minorities in Russia: Developing Languages, Culture, Media and Civil Society”, and I gave a paper at the annual conference of the Russian Association of Political Science (RAPN) in Moscow.
  • I returned in January 2011, and January 2012 again as a judge in the Jessup Competition, and in March 2011 and March 2012 I taught a course in the human rights law of the European Union at the Moscow State Institute for International Relations (MGIMO), one of the three leading universities of Russia, connected to the Ministry of Foreign Affairs of the Russian Federation.
  • In 2012 I taught at the universities at Novgorod Velikiy and Kaliningrad, and in 2013 returned for the 10th anniversary of my EHRAC litigation project[28]. I also travelled to Moscow with Sir Henry Brooke (formerly Lord Justice Brooke) for meetings connected with projects of the Slynn Foundation.
  • In January 2014 I was again in Moscow judging the Jessup Competition. My fellow judges included leading Russian lawyers and also Russian Court Registry lawyers at the European Court of Human Rights. I returned to Russia at the end of February 2014 as an expert in a project on constitutional litigation at the Constitutional Court of the Russian Federation, and in May 2014, to teach once again at the Mari State University in Yoshkar-Ola. I also met, in Kazan (the capital of Tatarstan) the founder of the leading Russian NGO “Agora”, Pavel Chikov, and his wife, the advocate Irina Khrunova, who represents one of the “Pussy Riot” defendants. “Agora” has now been placed against its will on the “Foreign Agents” list.
  • In October 2014 I took part as a project expert in a round table meeting in Moscow at the Institute of Law and Public Policy for the project on litigation at the Constitutional Court, with Tamara Morshchakov, the former Deputy Chairman of the Constitutional Court and now an outspoken critic of the regime’s legal and judicial policy, and Anatoly Kovler, until recently the Russian judge at the European Court of Human Rights.
  • In November 2014 I was invited by the former Minister of Finance, Mr Kudrin, to take part in the II All-Russia Civil Forum, with 700 NGO representatives from all over Russia. I returned inDecember 2014 to teach for the fourth time in Yoshkar-Ola, and to meet in Kazan two clients in an ongoing case (of confession obtained by torture) at the European Court of Human Rights. I once again acted as a judge in the Jessup Competition in Moscow in January 2015.
  • In April 2015 I lectured at the conference “Problems of the reform of the penitentiary system of Russia”, organised in Yekaterinburg by Sutyazhnik, the Yekaterinburg human rights NGO founded 20 years ago. I worked with them since 1997. Participants in the conference were members of ONK, Public Independent NGO Prison Monitoring Commissions, from all over Russia.
  • In June 2015 I visited once again Yoshkar-Ola, in the Republic of Marii El, Russia, to work with the Law Faculty at the State University. I also had two meetings with the local human rights NGO “Chelovek i Zakon” (Person and Law), which has been placed on Register of Foreign Agents under President Putin’s Law on Foreign Agents, and is taking a case to the European Court of Human Rights. I also visited Kazan, the capital of the Republic of Tatarstan, and met once again with Pavel Chikov the founder and head of the “Agora” and his wife Irina Khrunova, an advocate who is taking many cases to Strasbourg.
  • In July 2015 I participated in a Workshop at the Institute for Law and Public Policy (ILPP) in Moscow on effective litigation at the Constitutional Court of the Russian Federation.
  • In November 2015 I was invited to participate in the III All-Russian Civic Forum in Moscow by the former Minister of Finance, Mr Kudrin, whose acquaintance I made there. The Forum was attended by 1,200 delegates from all over Russia, including many leading judges and lawyers who are well known to me.
  • In February 2016 I once again acted as a judge in the Jessup Competition, and delivered lectures in events at Moscow State University and the National Research University – Higher School of Economics.
  • I returned to Moscow at the end of June 2016 to take part in events at ILPP. During that visit I met colleagues in order to discuss the applicability of transitional justice in Russia – I am a founder and on the Advisory Board of the Transitional Justice Institute at Ulster University in Belfast – and unknown to us we were filmed in the café where we met by the FSB, and this was then used as part of a scandalous programme on NTV, known to be the “voice of the FSB”, smearing the opposition for the forthcoming parliamentary elections. My presence was supposed to indicate that the Russian opposition is sponsored by the United Kingdom’s intelligence services. A photograph of me was used to publicise the programme. [29]
  • Notwithstanding this unwanted fame, I was again granted visas to visit Russia, in November 2016 to participate once again at the invitation of Mr Kudrin, the former Minister of Finance, in the All-Russian Civic Forum, and then to judge, for the 15th time, the Jessup Competition in Moscow, in February 2017. The Russian team I judged went on the win the world International finals – 90 countries – in Washington DC. The team members are now carrying out very important law reform work in Russia.
  • I returned in August 2017 to Russia to carry out human rights training and to lecture in Yekaterinburg, and met in Moscow with the leading human rights defender and prison reformed Lev Ponomaryov. I returned to Russia to present a paper in St Petersburg in October 2017, and to Yekaterinburg to teach at the end of October.
  • In 2018 I have once again acted as a judge in the Jessup Competition in Moscow, and have taken part in academic conferences in Moscow and St Petersburg. I returned to participate in conferences in Moscow and St Petersburg in May 2018. I will speak in a conference at Ivanovo State University in September 2018, so long, of course, as I am granted entry to Russia given the increasingly bad relations between Russia and the UK.
  • I visited Russia several times in 2019, for the Jessup competition, at which I had the honour to preside as President of the court in the Russian National Final, and also for academic conferences. My most recent visit was again for the Jessup competition in January-February 2020.
  • In all these visits I renew my acquaintance with legal practitioners, judges, and human rights activists.

 

[1] It is unfortunate that the U.S. chose to use this term, which had been coined by the German authorities prior to and during World War Two. See “Verschärfte Vernehmung”, The Atlantic (May 29, 2007), at https://www.theatlantic.com/daily-dish/archive/2007/05/-versch-auml-rfte-vernehmung/228158/ (accessed Nov. 21, 2019) (the phrase translates as enhanced interrogation, and while “the Nazis were adamant that their ‘enhanced interrogation techniques’ would be carefully restricted and controlled, monitored by an elite professional staff” the techniques they used were later deemed in some cases to be war crimes worthy of capital punishment).

[2] The Authorization for Use of Military Force (AUMF), Pub. L. 107-40, codified at 115 Stat. 224 and passed as S.J.Res. 23 by the United States Congress on September 14, 2001.

[3] No.35-ФЗ of 6 March 2006, at  http://www.consultant.ru/document/cons_doc_LAW_58840/

[4] Федеральный закон “О внесении изменений в отдельные законодательные акты Российской Федерации в связи с принятием Федерального закона “О ратификации конвенции совета Европы о предупреждении терроризма” и Федерального закона “О противодействии терроризму” от 27.07.2006 N 153-ФЗ (последняя редакция) Law no. FZ 153, first reading on 19 April 2006, signed by the President on 27 July 2006. http://www.consultant.ru/document/cons_doc_LAW_61802/ (Amended in 2011 and in 2016 by 06.07.2016 N 375-ФЗ).

[5] “Right to retribution (возмездие)” at http://www.rg.ru/2006/07/03/pravo.html.

[6] See http://news.bbc.co.uk/2/hi/middle_east/5118702.stm

[7] http://www.newsru.com/russia/11jan2007/ng.html; https://novayagazeta.ru/articles/2007/01/11/35242-zapasnye-organy.

[8] See http://news.bbc.co.uk/1/hi/world/europe/6035133.stm

[9] See, e.g., John W. Whitehead, Terror Tuesdays, Kill Lists And Drones: Has The President Become A Law Unto Himself? (June 20, 2012), at

https://www.huffpost.com/entry/terror-tuesdays-kill-list_b_1606371

[10] Shilpa Jindia, As Eight Guantánamo Detainees Ask For Freedom, The Trump Administration Says It Could Hold Them For 100 Years, The Intercept (July 12, 2018), https://theintercept.com/2018/07/12/trump-guantanamo-detainees-release/.

[11] Kimberly Amadeo, War on Terror Facts, Costs, and Timeline (June 25, 2019), at https://www.thebalance.com/war-on-terror-facts-costs-timeline-3306300.

[12] Heidi Black, Jason Leipold, Jane Bradley & Alex Campbell, Poison in the System, BuzzFeed (June 12, 2017), at https://www.buzzfeed.com/heidiblake/poison-in-the-system?utm_term=.msXLxak6E3#.nxgMkPBpVz.

[13] Heidi Black, Jason Leipold, Jane Bradley & Alex Campbell, From Russian with Blood, BuzzFeed (June 15, 2017), at https://www.buzzfeed.com/heidiblake/from-russia-with-blood-14-suspected-hits-on-british-soil.

[14] http://www.telegraph.co.uk/news/uknews/law-and-order/11880005/Russian-spies-may-have-killed-supergrass-Alexander-Perepilichnyy-inquest-hears.html.

[15] https://inews.co.uk/essentials/news/suspected-hit-man-target-list-questioned-british-police-urgently-perepilichnyy-case/.

[16] Heidi Blake From Russia with Blood: Putin’s Ruthless Killing Campaign and Secret War on the West (London, William Collins, 2019)

[17] Id. at 257-263.

[18] Id. at 266.

[19] Id. at 276.

[20] Id. at 281-293.

[21] Id. at 288.

[22] Id. at 239-245.

[23] Id. at 244.

[24] See Ashley Cowburn, Theresa May Says It’s ‘Highly Likely That Russia Was Responsible’ For Poisoning Spy Sergei Skripal, Independent (March 12, 2018), at https://www.independent.co.uk/news/uk/politics/theresa-may-russia-poisoning-spy-nerve-agent-sergei-skripal-salisbury-elections-crimea-a8252381.html and https://www.gov.uk/government/speeches/pm-commons-statement-on-salisbury-incident-12-march-2018

[25]     A full list of my publications is to be found at my Birbeck web-site,

http://www.bbk.ac.uk/law/our-staff/department-of-law/academic-staff/bowring

[26]  http://fieldcourt.co.uk/barrister/bill-bowring/

[27]     http://www.bailii.org/ew/cases/EWHC/Comm/2008/1530.html

[28] http://www.ehrac.org.uk/

[29]     http://www.ntv.ru/video/1308544/

A Lawyer’s View on Russia

Supplement: SCRSS Digest, September 2019

Contents

Introduction

Law, Rights & Ideology in Russia

The New Russian FBI – President Putin’s Bloodhound

Gay Rights in Russia

Russian Prisons: From GULAG to FSIN

The First Soviet Constitutions, Self- Determination & the Right to Secession

Russia’s Criminal Justice System: From Tsar Alexander II to President Putin 

This special supplement celebrates the 70th birthday this year of the SCRSS President, Bill Bowring. Professor Bowring has taught international law, human rights, and Soviet and Russian law at Birkbeck College, University of London, since 2006; he is a Barrister, taking cases to the Strasbourg Court; and a fluent Russian speaker and regular visitor to Russia.

Introduction
By Professor Bill Bowring
I am not the first lawyer to serve as President of the SCRSS (and its predecessor the SCR) since the Society was founded in 1924. Indeed, I am the fourth. I have been President since 19 May 2007 and was also Chair from 1989 to 1997. DN Pritt QC was Chair of the SCR for eighteen years from 1937 to 1955; a year later he became President, in which capacity he served for sixteen years until his death in 1972 at the age of 84. John Platts-Mills QC became President in July 1989 and served until his death in 2001, followed by the solicitor Jack Gaster who died on 12 March 2007 at the age of 99.
All four lawyers have been proud members of the Haldane Society of Socialist Lawyers, founded in 1929 and named after Viscount Richard Haldane. As a Liberal, Haldane had been Asquith’s Lord Chancellor from 1912 to 1915. He was hounded out of office by the Daily Mail, moved leftwards politically and was Labour’s first Lord Chancellor in the short-lived government of 1924. By 1929, when Labour was elected again, Haldane himself was dead. A small group of barristers formed the Haldane Club to provide legal expertise to the government, trade unions and the co-operative movement. Ever since, the Haldane Society has been a legal thorn in the side of every government, lobbying for law reforms, civil liberties and access to justice for all; supporting national liberation movements against colonialism; providing unstinting support to the trade union movement; and campaigning against racism and all forms of discrimination.
I became involved in the SCR (Society for Cultural Relations with the USSR) as a result of serving as an elected Lambeth Labour Councillor from 1978 to 1986, first for Herne Hill Ward, then for Angell. In 1986, together with my comrades on the Council, I was surcharged £120,000 and banned from holding public office for five years for “wilful misconduct”, namely protesting against Thatcher’s cuts. I joined the Haldane Society in 1986, served as its Chair in 1991–92, and am now its International Secretary. I am President of the European Lawyers for Democracy and Human Rights, of which Haldane was a founder member in 1992.
My first visit to the USSR was in 1983 as part of the long-standing (since 1946) town-twinning relationship between Lambeth and the former Moskvoretsky District in Moscow. I started learning Russian in 1985 through the SCR, and joined the SCR Council in 1987.
The articles that follow are edited versions of some of my contributions to the SCRSS Digest between 2012 and 2019.

Law, Rights and Ideology in Russia
SCRSS Digest, Spring 2012
The usual response, if the words ‘Russia’ and ‘ideology’ are put together, is to think of Marxism-Leninism or Scientific Communism. And my book Law, Rights and Ideology in Russia (Routledge 2013) explores, as I show below, the relationship of the ideology of the USSR to law and rights.
In fact, ideology, as the system of ideas legitimating Russia’s statehood and development, has much deeper roots and has taken a wide variety of forms. The ideology of the Putin regime and the ideas of ‘sovereignty’ and ‘sovereign democracy’ developed by the regime’s chief ideologist, Vladislav Surkov, have, as I explore below, surprising foundations.
A constant thread in Russian ideology is that of ‘messianism’, the idea that Russia has a special or sacred task of saving the world. With the fall of Constantinople in 1453, there was a growing tendency to refer to Moscow as the ‘Third Rome’. In 1510, during the reign of Henry VIII of England, the Russian Orthodox monk Filofey composed a panegyric letter to Vasily III (1479–33) in which he warned: “And now I say unto Thee, take care and take heed, pious Tsar: all the empires of Christendom are united in Thine. For two Romes have fallen, and the Third exists and there will not be a fourth. Thy Christian Empire, according to the great theologian, will not pass away […].” Moscow thus became, symbolically, the ‘Third Rome’ and the ‘Second Jerusalem’, inheritor of both the Roman Empire and the Christian Church.
The double-headed eagle was the symbol of the late Byzantine Empire, and symbolised the unity between the Orthodox Church and the Empire. It was adopted by Ivan III when he married the Byzantine princess Sophia Paleologue, whose uncle Constantine was the last Byzantine Emperor. It is the state symbol of Russia today.
One of the factors that precipitated the Crimean War was the Russian Empire’s claim to lead and protect the Christians of the Ottoman Empire, to reclaim Hagia Sophia in Istanbul as the ‘Mother Church’, and to re-establish Constantinople as the capital of Orthodoxy connecting Moscow to Jerusalem. Part of the reason for the downfall of Nicholas II in World War I was his ambition, egged on by Rasputin, to reclaim Constantinople for Orthodox Christendom.
Soviet ideology, too, had more than a trace of messianism: Soviet leadership of the Third International was intended – at least at first – to save the world from capitalism.
In the twentieth century the project of ‘Eurasianism’, first mooted by Count Trubetskoy in the White emigration after 1917, has become an important source of the ideology of the Putin regime. Aleksandr Dugin (born 1962), started as a propagandist of ‘Russian fascism’ and was deeply engaged in occultism. He summed up his ‘Eurasianism’ in 1997 as follows: “In principle, Eurasia and our space, the heartland Russia, remain the staging area of a new anti-bourgeois, anti-American revolution […] The new Eurasian empire will be constructed on the fundamental principle of the common enemy: the rejection of Atlanticism […] and the refusal to allow liberal values to dominate us.” Eurasianism is intended to unite the traditional religions of Russia – Orthodoxy, Islam, Judaism and
Buddhism – in common opposition to Western materialism and consumerism.
So, it is no surprise that many of the leading legal philosophers of Russia have been motivated by religious concerns. One of the most influential to this day is Vladimir Solovyov (1853–1900). His objective was the unification of all Christians, followed by a messianic Kingdom of God on earth, with political motivation under the Russian Tsar.
There are two other important sources of ideology affecting law and rights in Russia. First, the first full professor of law in Russia was Semyon Desnitsky (1740–89). He was sent to study at the University of Glasgow from 1760 to 1767 at the time of the Scottish Enlightenment, attended lectures by Adam Smith, successfully defended his doctorate on civil and church law, and was Professor of Law at Moscow University from 1767 to 1787. He was the first to teach in Russian rather than German. He translated William Blackstone’s Commentaries on the Laws of England into Russian. As a result of his inspiration, the academic discipline of law in Russia has remained strong to the present day.
Second, Marx and Engels both exerted great influence. Marx mastered the Russian language in his later years and entered into correspondence with the Russian Narodniks, including Vera Zasulich. In his letter to her of March 1881 he took very seriously the role of the Russian peasant and the ‘rural commune’. Marx wrote: “Theoretically speaking, then, the Russian ‘rural commune’ can preserve itself by developing its basis, the common ownership of land, and by eliminating the principle of private property which it also implies […] It can gain possession of the fruits with which capitalist production has enriched mankind, without passing through the capitalist regime […].”
Engels was the primary influence in relation to law. The article he wrote with Karl Kautsky in 1887, ‘Juridical Socialism’, was the touchstone for the Russian social democrats. Engels emphasised that the world view of the bourgeoisie was the ‘juridical world view’. He endorsed the dominant theory of legal positivism and saw law as an instrument of class domination. This view was taken up by Georgy Plekhanov and other social democrats and, after the 1905 Revolution, provoked a spirited response by the Russian ex-Marxist, liberal and religious legal theorists in the famous collection Vekhi (Landmarks, republished in paperback in 2011), in which writers such as Peter Struve and Bogdan Kistyakovsky argued for liberal values. Lenin denounced Vekhi as “an encyclopaedia of liberal renegacy”. In the early Soviet period there was a strenuous theoretical battle between Yevgeny Pashukanis, who held that law, like the state, must wither away under socialism, and Peter Stuchka, for whom the USSR must develop specifically socialist law. This became the USSR’s position, although the legal codes of the USSR were, in fact, based on German models.
Vladislav Surkov (born 1964) has emerged as the pre-eminent ideologist of the Putin regime. He was responsible for the doctrines of ‘sovereignty’ and ‘sovereign democracy’. In 2006 a collection entitled Sovereignty appeared, edited by the ‘young conservative’ Nikita Garadzha, with essays by Putin, Medvedev, Surkov and others. The key essay in this collection is ‘Sovereignty as a Political Choice’ by Aleksandr Filippov, the chief Russian translator and exponent of the Nazi legal theorist Carl Schmitt. Indeed, the whole collection is infused with Schmitt’s ideas. Surkov and his circle have strongly influenced senior figures in the judiciary, especially Valery Zorkin, the chairman of the Constitutional Court of the Russian Federation. Zorkin’s speeches and articles make frequent reference to ‘sovereignty’ in the special sense given to it by the Putin regime. Their main targets are liberalism and what is seen as the Western conception of human rights.

The New Russian FBI – President Putin’s Bloodhound
SCRSS Digest, Spring 2013
The fight against crime and, especially, corruption is a top priority for the Russian state. In the past two years Russia has taken steps to create its own FBI (Federal Bureau of Investigation in the USA). This is the Investigative Committee of the Russian Federation (ICRF) and, since September 2010, it has been completely independent of
its former parent, the Office of the General Prosecutor of the Russian Federation (the Prokuratura).
The history of the ICRF is as follows. In 1990, the last year of the USSR, 90 per cent of criminal investigations were carried out by investigators of the Ministry of the Interior (the police) and 9.1 per cent by investigators of the Prokuratura. The remainder were carried out by the KGB.
Since 1960 (Khrushchev’s ‘Thaw’) there had been a campaign to detach investigation from the police and in April 1990 the first attempt was made to legislate for a separate Investigative Committee. In 1993 a draft law was presented to the Supreme Soviet of the Russian Federation, but the abrogation of the Supreme Soviet meant that the law was never enacted.
Only in June and July 2007, in President Putin’s second term, was it possible to enact two new laws that effectively took away the investigative function from the Prokuratura. However, this legislation created an ‘Investigative Committee attached to the Prokuratura’, headed by the First Deputy General Prosecutor of the Russian Federation, Aleksandr Bastrykin, whose investigators were still part of the Prokuratura. A complicating factor was that, despite the apparent subordination of the Investigative Committee to the Prokuratura, both the Chairman of the Investigative Committee and the General Prosecutor were appointed by the Federation Council (the upper house of parliament) on the nomination of the President, and thus had equal status.
Mr Bastrykin is one of President Putin’s Leningrad protégés. He was born in 1953 and started work in the Soviet police. He was the senior member of the group in which Vladimir Putin studied law at Leningrad State University. They graduated together in 1975.
Mr Bastrykin made a brilliant career in the Leningrad State University Young Communist League (Komsomol). He then rose up through the ranks of the Prokuratura. The close relations he formed with President Putin at university have continued ever since. He worked in Leningrad / St Petersburg from 1975 to 2006, was an appointee and long-standing friend of Mr Putin, was close to Mr Putin’s colleague Igor Sechin, and on 7 September 2007 was appointed by President Putin as Chairman of the new Investigative Committee ‘attached to’ the Prokuratura. Mr Bastrykin has the rank of Colonel-General of Justice. The ICRF immediately came into conflict with its ‘parent’, the Prokuratura, headed by Yuri Chaika. In May 2008 Mr Bastrykin initiated a criminal case against the First Deputy General Prosecutor, Aleksandr Buksman (Mr Chaika’s closest deputy and colleague). Mr Chaika countermanded Mr Bastrykin’s order, and relations between them became very bad indeed. The conflict was resolved only in the Supreme Court, which in March 2009 ruled that Mr Bastrykin must rigorously obey any order given by Mr Chaika. However, even though he lost in court, Mr Bastrykin soon achieved independence from the Prokuratura. On 15 January 2011 a new law established the Committee as an independent agency outside the Prokuratura, with a view to ‘raising the objectivity of investigation’. In fact, many commentators would say that investigation has been brought under closer control by the regime.
The conflict burst out again in spring 2011 when the ICRF launched criminal investigations into a number of senior Moscow and Moscow oblast’ prosecutors, accusing them of providing krysha (paid protection), for a massive underground illegal gambling business. One of the prosecutors named was Mr Chaika’s son. Intense mass media interest in the conflict continued, and on 14 June 2012 Mr Bastrykin felt obliged to tell journalists that there was no such conflict between him and Mr Chaika. However, the fact that both are appointed by the President and have clearly overlapping competences makes conflict inevitable. Another major scandal broke in June 2012. This concerned alleged threats made by Mr Bastrykhin to a journalist of the critical and independent weekly newspaper Novaya Gazeta, owned by Aleksandr Lebedev, a former KGB agent based for five years in London who now owns the London Evening Standard and The Independent. In an open letter published on 13 June in the newspaper and on its website, the Chief Editor of Novaya Gazeta, Dmitri Muratov, accused Mr Bastrykin of threatening the senior editor, Sergei Sokolov.
In an interview in Izvestiya on 14 June Mr Bastrykin denied the allegation. However, on the same day he met Mr Muratov and apologised.
In 2012 Mr Bastrykin was playing the leading role in the regime’s reaction to Mr Navalny, whose renaming of Putin’s United Russia party as the ‘Party of Thieves and Rogues’ (Partiya Vorov i Zhulikov) entered the popular discourse. On 18 December 2012 it was announced on the Investigative Committee’s website that Mr Navalny was to face yet another criminal investigation.
Interviewed on the independent radio station Ekho Moskvy, Mr Navalny was asked whether he now had to choose between prison and emigration. He answered: “Of course, it will serve the interests of the regime much better if I am a political émigré, rather than a political prisoner. Because they will always be able to say – he fled. I do not intend to flee anywhere. Because I am absolutely innocent and I spit on what the investigators Markin, Bastrykin, Putin and ‘their own’ court have to say. I know that if all ordinary and normal people look at these documents and case materials, they will say that Navalny is innocent, naturally. And the opinions of those people are more valuable to me.”

Gay Rights in Russia
SCRSS Digest, No 2, Summer 2015
Homosexuality is not a criminal offence in Russia – since 1993. In 1999 it ceased to be regarded as a mental illness.
Indeed, Russian history has many famous homosexuals – the poet Alexei Apukhtin; Sergei Diaghilev, the founder of the Ballets Russes; and, of course, the composer Pyotr Ilyich Tchaikovsky. The younger brother of Tsar Alexander III, Grand Duke Sergei Alexandrovich Romanov, was famous for his homosexual exploits while serving as Governor of Moscow from 1891 to 1905.
Homosexuality was legalised following the Bolshevik Revolution in 1917. But in 1933, under Stalin, Article 121 of the Criminal Code made male homosexuality a crime punishable by up to five years of imprisonment with hard labour. This anti-gay law, like the prohibition of abortion at the same time, was strongly supported by the Russian Orthodox Church (ROC), which began to revive following the enactment of the 1936 USSR Constitution, Article 124 of which declared freedom of religion. The Church was fully rehabilitated by Stalin in 1943 to play a decisive role in the Great Patriotic War. The ROC is to this day a fierce opponent of gay rights.
In 2006 gay activists attempted to organise the first Gay Pride march in Moscow, but this was banned by the Moscow city authorities and marchers were forcibly dispersed. Applications to hold a Gay Pride march in Moscow have been rejected every year since. On 21 May 2015 the city once again rejected an application to hold a march on 30 May 2015. RIA Novosti news agency quoted the Mayor’s spokesman Alexey Mayorov as having said “[w]e have warned the organisers that the demonstration will not be authorised” and told them of the risks, should they ignore the ban. No reasons for the ban were given.
The gay rights activist Peter Tatchell was present with other foreign observers in 2006 and said: “We were immediately set upon by about 100 fascist thugs and religious fanatics who began pushing, punching and kicking us.” In 2007 Tatchell and the German parliamentarian Volker Beck were punched in the face by anti-gay protesters.
In 2007, 2008 and 2009 the leading Russian gay activist Nikolay Alekseyev applied to the European Court of Human Rights, complaining of a violation of his right to peaceful assembly on account of the repeated ban on public events he had organised in 2006, 2007 and 2008. He also complained that he had not had an effective remedy against the alleged violation of his freedom of assembly and that the Moscow authorities’ treatment of his applications to hold the events had been discriminatory.
He argued that his right under Article 30 of the Constitution of the Russian Federation, which provides that everyone has the right to freedom of association and peaceful assembly, had been violated. Article 55 (3) provides that rights and freedoms may be restricted by federal laws for the protection of constitutional principles, public morals, health, and the rights and lawful interests of others, and to ensure the defence and security of the State. The 2004 Federal Law On Assemblies, Meetings, Demonstrations, Marches and Picketing should, if applied properly, permit Gay Pride marches where application has been made beforehand.
On 21 October 2010 the Strasbourg Court unanimously – including the great Russian judge Anatoly Kovler – concluded that the ban on the events organised by Mr Alekseyev did not correspond to a pressing social need and was thus not necessary in a democratic society. Furthermore, he had been denied an effective legal remedy, and he had suffered discrimination.
This resounding judgment did not lead to a change in the policy of the Moscow authorities. Many more complaints to the European Court of Human Rights are pending. It is highly likely that the Court will adopt a ‘pilot judgment’ against Russia, setting out detailed instructions designed to resolve what is clearly a systemic issue.
On 13 December 2010 the Federal Law On Protection of Children from Information Leading to Harm to their Health and Development”, promoted by Yelena Mizulina, came into force, and has been amended – and made more severe – by amendments in 2012 and 2013. The 2013 amendment added “propaganda” promoting “non-traditional sexual relationships” as a class of harmful content under the Law. The Code of Administrative Misdemeanours (KOAP) provides by Article 6.17 for punishment of violation of the Law by large fines. Yelena Mizulina is the chairperson of the Russian Duma’s Committee on Family, Women and Children. She is the Russian Mary Whitehouse, a champion of high moral standards who promotes legislative initiatives to improve the morality of Russian society.
Nevertheless, there were few prosecutions. Here are two examples. In December 2013 Mr Alexeyev and Yaroslav Yevtushenko picketed outside a children’s library in Arkhangelsk holding banners that read: “Gays aren’t made, they’re born!” The two were fined 4,000 roubles and their appeal was rejected. The activist Dmitry Isakov protested the law in Kazan. Several months later, he was summoned to court after a teenager in Arkhangelsk had seen photos of his protest online and filed a complaint. Isakov was fined 4,000 roubles (about £50) in January 2014.
Every year 17 May is the International Day Against Homophobia, Transphobia and Biphobia. That date was chosen to commemorate the decision to remove homosexuality from the International Classification of Diseases of the World Health Organization (WHO) in 1990.
On 17 May 2015 various events devoted to the International Day took place all over the world. In Russia applications to hold LGBT pickets or demonstrations are highly likely to be rejected by the local authorities. Activists therefore organised ‘rainbow flash mobs’, and these and other events took place in sixteen Russian cities. Most rallies took place without serious incidents.

Russian Prisons: From GULAG to FSIN
SCRSS Digest, No 1, Spring 2017
On 8 December 2016 President Putin met his Council for Civil Society and Human Rights, which includes several leading Russian human rights activists and prison reformers. Some of them have been active in the independent prison Public Monitoring Commission (ONK), created in 2008 during Mr Medvedev’s presidency. The ONK, inspired by the British system of Prison Visitors, has rights to visit all places of detention, interview prisoners and report on conditions.
One of the members of the Council, the veteran human rights defender Ludmila Alekseeva (founder of the Moscow Helsinki Group), raised the issue of controversial recent elections to the new fourth composition of the ONK by the Civic Chamber of the Russian Federation. President Putin replied that he agreed with her on every point. She was followed by the journalist and former ONK member Elena Masyuk who made a forceful presentation about the fate of the ONK, and the attempted legal proceedings by her and others to overturn the Civic Chamber’s decision. She had written that the Civic Chamber was replacing all experts on the penitentiary system and human rights activists with unknowns from the penitentiary system itself, as well as former criminals. President Putin also agreed with her.
On 3 January 2017 President Putin published a list of orders (poruchenii) arising from the meeting of 8 December. One of these ordered the General Prosecutor of the Russian Federation Yuri Chaika to check the compliance of the Federal Penitentiary Service (FSIN) with public control of guarantees for human rights in prisons. He also ordered the Civic Chamber, together with the Council for Civil Society and Human Rights and the Federal Ombudsman for Human Rights, to analyse the effectiveness of the mechanism for appointing members of the ONK by the end of March.
What is the background to this? In part, it is the legacy of the GULAG (Chief Directorate of Camps), the USSR’s system of correctional labour camps whose population reached 100,000 in the 1920s, and in which it is estimated that 14 million people spent time between 1929 and 1953. The Russian Federation still has a prison population of more than 633,000, the third highest in the world after the USA with 2,217,947 and China with 1,649,804. In terms of its incarceration rate (the number of prisoners per 100,000 of population), Russia is now eighth in the world, having previously held the highest ranking: its rate is 439, compared with the USA’s 693, and 145 in England and Wales (the highest in Western Europe).
Indeed, Russia has experienced a dramatic fall in prison numbers – from more than 1,000,000 in 2000 (a rate of 729). Russia’s membership of the Council of Europe since 1996 has been one of the main drivers of reform. A condition of membership was transfer of the penitentiary system from the Ministry of the Interior (police and internal armed forces) to the Ministry of Justice, and Russia complied. In 2002 a new Criminal Procedural Code came into force (I was one of the Council of Europe experts working with senior Russian officials on the drafts), requiring judges rather than prosecutors to rule on bail or custody pre-trial. And there is a post-Soviet Criminal Code that has been amended many times. However, most prison officers are former servicemen and the service is highly militarised.
Convicted persons serve their sentences in 717 Correctional Colonies (IK), with compulsory paid work (much less well paid, relatively, than in the USSR). In many cases these are former GULAG camp establishments, in remote parts of Russia. Nearly eight per cent of prisoners are women, and 0.2 per cent are juveniles (under 18 years). The age of criminal responsibility in Russia is 14 years. According to a report published in January 2017, ten per cent of prisoners have HIV and four per cent drug-resistant tuberculosis. Narcotic abuse is rife in Russian prisons. Russia is presently suffering from what is described by officials as an HIV and AIDs epidemic. A major contributor to this crisis is the number of addicts and infected persons released from prison.
Russia’s greatest problem is the system of 217 pre-trial detention prisons called Investigative Isolators (SIZOs), which account for 17 per cent of prisoners. The most famous and notorious are SIZO No 1 (Matrosskaya Tishina), dating from the 1940s and where Mikhail Khodorkovsky was held during his trials, and SIZO No 2 (Butyrka), dating from the eighteenth century. I have visited both. SIZOs, which are obliged to accept every person sent to them by the courts, suffer from chronic and extreme overcrowding.
Since the case of Kalashnikov v Russia in 2002, the European Court of Human Rights had by 2012 ruled against Russia more than eighty times for violations of the right, under Article 3 of the European Convention on Human Rights, not to be subjected by reason of overcrowding to inhuman and degrading treatment. Cells with fifteen beds were at times holding forty-five prisoners, who were obliged to sleep in shifts, with an open toilet in the corner (horrifying conditions described in 1994 by Professor Nigel Rodley, then UN Special Rapporteur on Torture, as comparable only to Dante’s circles of hell or Hieronymus Bosch’s depiction of the sufferings of the damned). In 2012 the Strasbourg Court issued a ‘pilot judgment’ in Ananyev v Russia, ordering Russia to submit an Action Plan for reform of the SIZOs within six months. Russia submitted a Plan in time, but implementation is hampered by shortage of funds and corruption. The head of FSIN from 2009 to 2012, Colonel-General Aleksandr Reimer, was arrested in March 2015 and charged with embezzlement from FSIN on a grand scale. He is still in custody awaiting trial. He was appointed by Mr Medvedev, following the scandal of the death of the anti-corruption lawyer Sergei Magnitsky in custody in November 2009. FSIN is now led by a former intelligence officer.
On 8 January 2017, an article in the daily newspaper Vedomosti compared the responses to a survey on the Russian penitentiary system from 2000 and 2016. In 2000, 82 per cent of respondents said that they knew about problems in the penitentiary system, while 18 per cent did not know. By the end of 2016, 68 per cent said they knew nothing, while 32 per cent knew. This is due not only to the dramatic fall in the number of prisoners, but also to the fact that – with very few exceptions – the mass media in Russia are state-controlled, with news of prison conditions ‘filtered’.
That is why the future of the ONK is so controversial and at the top of the list of President Putin’s recent orders.

The First Soviet Constitutions, Self-Determination and the Right to Secession
SCRSS Digest, No 3, Autumn 2017 (1917 Russian Revolution Centenary Issue)
This article examines the central core of the first constitutions of Soviet Russia and of the USSR, and its continued relevance. Its predecessor, the Tsarist Russian Empire, was a multi-national, multi-ethnic empire whose components had varying degrees of autonomy. It included, among many others, Finland, a Grand Duchy with its own parliament, laws and Lutheran religion; Poland, incorporated into the empire as a result of the nineteenth-century Partitions; the Baltic territories, conquered from Sweden in the Great Northern War; the former Khanates of Kazan and Astrakhan, conquered by Ivan the Terrible in the sixteenth century; and the Khanate of Crimea, annexed by Catherine II in 1783.
Lenin had campaigned from before the outbreak of World War I for the destruction of the Tsarist (and other) empires, and for the principle of the right of nations to self-determination, on which he wrote a substantial book. He drew on the writings of Marx and Engels from the second half of the nineteenth century, as they fought for the right to self-determination of Ireland, Poland, Algeria, India and many others. Lenin’s opponents included Rosa Luxemburg, the Austro-Marxists Otto Bauer and Karl Renner, and the revolutionary Jewish Bund, all of whom rejected the break-up of their respective empires and regarded the right of nations to self-determination as a surrender to bourgeois nationalism. Their aim was to achieve socialism over the whole existing territories of the Russian and Austro-Hungarian Empires.
The first constitutional document of Soviet power, following victory in the October Revolution, was the Declaration of Rights of the Working and Exploited People1, drafted by Lenin on 16 January 1918 and published in Izvestiya on 17 January (note: this article uses New Style dates throughout). On 25 January it was approved by the Third All-Russia Congress of Soviets and subsequently formed the basis of the Soviet Russian Constitution of 1918. According to Chapter 1, Article 1: “Russia is hereby proclaimed a Republic of Soviets of Workers’, Soldiers’ and Peasants’ Deputies. All power, centrally and locally, is vested in these Soviets.” This was immediately followed by Article 2: “The Russian Soviet Republic is established on the principle of a free union of free nations, as a federation of Soviet national republics.”
The phrase “free nations” was crucial. Thus, Chapter 3 welcomed the proclamation of “the complete independence of Finland, commencing the evacuation of troops from Persia, and proclaiming freedom of self-determination for Armenia”.
These principles were put into practice immediately following the Revolution. On 19 December 1917 the Finnish Diet adopted a declaration of Finland’s independence; on 31 December 1917 the Council of People’s Commissars issued a Decree on the State Independence of Finland. At that meeting Lenin personally handed the text of the decree to Finnish Prime Minister Pehr Evind Svinhufvud. Following the signing of the armistice between Soviet Russia and the Central Powers (Germany, Austria-Hungary, Turkey and Bulgaria) at Brest-Litovsk on 15 December 1917, Soviet Russia and Persia worked out a common plan for the withdrawal of Russian troops from Persia. And on 11 January 1918 the Soviet Russian government issued the Decree on Turkish Armenia.
The next step was the Constitution of the Russian Socialist Federated Soviet Republic (RSFSR), which was adopted by the Fifth All-Russian Congress of Soviets on 10 July 1918.2 The Declaration, together with the Constitution, constituted a single fundamental law of the RSFSR. Altogether, they contained 90 articles, covering all constitutional aspects of the new socialist republic.
The following provision was of particular importance: “11. The soviets of those regions which differentiate themselves by a special form of existence and national character may unite in autonomous regional unions, ruled by the local congress of the soviets and their executive organs. These autonomous regional unions participate in the RSFSR upon a Federal basis.”
These were principles as to which Lenin was uncompromising. In 1919 the three Baltic republics of Estonia, Latvia and Lithuania became independent, despite their bourgeois governments, as did Poland, despite the war between it and Soviet Russia. In 1922, towards the end of his life, Lenin came into sharp conflict with Stalin as to whether Georgia should have the right to independence, albeit under a Menshevik government. On 31 December 1922 Lenin wrote in his Testament3: “It is quite natural that in such circumstances [i.e. Stalin’s actions in Georgia] the ‘freedom to secede from the union’ by which we justify ourselves will be a mere scrap of paper, unable to defend the non-Russians from the onslaught of that really Russian man, the Great-Russian chauvinist, in substance a rascal and a tyrant, such as the typical Russian bureaucrat is… Stalin’s haste and his infatuation with pure administration, together with his spite against the notorious ‘nationalist-socialism’ played a fatal role here.”4 Lenin died on 21 January 1924.
On 31 January 1924 the Constitution of the USSR was approved by the Second Congress of Soviets of the USSR.5 This formalised the December 1922 Treaty on the Creation of the USSR between the Russian SFSR, the Ukrainian SSR, the Byelorussian SSR and the Transcaucasian SFSR to form the Union of Soviet Socialist Republics.
It started with a Declaration, which included: “It is only in the camp of the Soviets, only under the conditions of the dictatorship of the proletariat that has grouped around itself the majority of the people, that it has been possible to eliminate the oppression of nationalities… The will of the peoples of the Soviet Republics recently assembled in Congress, where they decided unanimously to form the USSR, is a sure guarantee that this Union is a free federation of peoples equal in rights, that the right to freely withdraw from the Union is assured to each Republic…”
It was on this that Lenin had insisted in 1922. Article 4 proclaimed: “Each one of the member Republics retains the right to freely withdraw from the Union.” Article 6 stated: “The territory of the member Republics cannot be modified without their consent; also, any limitation or modification or suppression of [Article] 4 must have the approval of all the member Republics of the Union.”
Lenin’s principled position remains highly controversial in Russia.
As early as 1991, the year of the collapse of the USSR, Vladimir Putin denounced Lenin. A YouTube clip contains a number of such statements by him over the years.6 On 25 January 2016 Mr Putin accused Lenin of placing an ‘atomic bomb’ under Russia. In Mr Putin’s opinion, Lenin was responsible both for destroying the great Russian Empire, but also preparing the destruction of the great USSR. Thus, Mr Putin was particularly critical of Lenin’s concept of a federative state with its entities having the right to secede, saying it had heavily contributed to the 1991 breakup of the Soviet Union. He added that Lenin was wrong in his dispute with Stalin, who, in Mr Putin’s words, advocated a unitary state model. Mr Putin also said that Lenin’s government had whimsically drawn borders between parts of the USSR, placing Donbass under the Ukrainian jurisdiction in order to increase the percentage of proletariat, in a move Mr Putin called “delirious”.7
When the USSR collapsed in late 1991, the fifteen union republics, all of which had the right to secede under the 1978 Constitution of the USSR, duly became independent states, to the horror of Mr Putin and his fellow-thinkers. In 1990–91 many federative components of the RSFSR sought to gain the status of union republics, so as to have the right to secede. Several, including the republics of Chechnya, Tatarstan and Bashkortostan, declared sovereignty. Chechnya suffered two bloody wars from 1994 to 1997, and from 1999 to 2009; Tatarstan was granted special treaty status by President Yeltsin which it has only recently lost. Under the 1993 Russian Constitution there are twenty-one ethnic republics in the Russian Federation with, until recently, their own presidents, state languages (in addition to Russian) and other privileges, although no right to secede. Mr Putin is working hard to reverse Lenin’s policy of federative constitutionalism.
Footnotes
1 Marxists Internet Archive, URL: https://www.marxists.org/archive/lenin/works/1918/jan/03.htm
2 Ibid, URL: https://www.marxists.org/history/ ussr/government/constitution/1918/
3 Ibid, URL: https://www.marxists.org/archive/ lenin/works/1922/dec/testamnt/autonomy.htm
4 In 2010 Azbuka Klassika (St Petersburg) published this and other texts by Vladimir Lenin in a paperback edition of 5,000 copies under the title O natsionalnoy gordosti velikorossov (On the National Pride of Great Russians).
5 The Handwritten Constitution of the Russian Federation website, URL: http://constitution. sokolniki.com/eng/History/RussianConstitutions/10266.aspx
6 YouTube, URL: https://www.youtube.com/ watch?v=lIoEwESh320 (accessed 25 June 2019)
7 The Guardian website, URL: https://www.theguardian.com/world/2016/jan/25/vladmir-putin-accuses-lenin-of-placing-a-time-bomb-under-russia

Russia’s Criminal Justice System: From Tsar Alexander II to President Putin
SCRSS Digest, No 1, Spring 2019
A typical recent criticism of Russia reads as follows: “Although the equality of arms and the right to adversarial trial are guarantees of the Russian Constitution, many cases show deep flaws within the criminal justice system and gross misconduct of the judiciary and prosecution. This includes using fabricated evidence, forced confessions and impunity for perpetrators of crimes.”1 There is truth in this, especially in politically high-profile cases. But is it the whole story?
I start in the early nineteenth century. In March 1814 the Russian Army entered Paris, having defeated Napoleon – and returned to Russia having achieved its objectives. Russia appeared to be invincible. Ten years later, the Decembrist revolt of 26 December 1825, led by progressive aristocrats who wanted to prevent the accession of Nicholas I, to abolish serfdom and to establish a constitutional order in Russia, was crushed. Nicholas, a political conservative, ruled from 1825 to 1855.
Criminal justice under Nicholas I was aptly summed up as follows: “The secret inquisitional procedure, with its soulless records, with its formal evidence evaluated in advance and prescribing to the judge his decision, could be nothing else but a source of cruelty and inequity. The judge was deprived of liberty of decision, and bound by the rule of formal evidence. He could not acquit or condemn according to his conviction, but only act in conformity with the scale of value of evidence set forth by law. His sentence, though formally correct, was very often nothing but a flagrant injustice.”2 And “the best evidence in the whole world” was considered by the law to be the confession of the accused.
However, the Russian Empire lost the Crimean War, which lasted from October 1853 to February 1856, to an alliance of the Ottoman Empire, France, Britain and Sardinia. Nicholas I died on 2 March 1855, succeeded by his eldest son, Alexander II. Alexander was not a liberal, but could see that survival of the empire and of tsarism depended on radical reform. On 3 March 1861, in the Emancipation Manifesto, serfdom was abolished. Abolition of slavery in the USA came a few years later. Abraham Lincoln issued the Emancipation Proclamation on 1 January 1863, and the passage of the Thirteenth Amendment (ratified in December 1865) abolished slavery in the United States. Russia had led the way.
Abolition of serfdom was followed by the Great Legal Reforms of Alexander II. On 20 November 1864 he signed the decree that enforced four Regulations, including Regulations of Criminal Proceedings, and Regulations of Punishments Imposed by Justices of the Peace (in Russian Мировой суд, a direct translation from the English institution established by Edward II in 1361).
Alexander established a unified judicial system, and fundamental innovations in criminal trials. These included the principle of equality of the parties, the introduction of public hearings, trial by jury (again modelled on English practice) and a professional Bar. Previously there had been no legal representation in criminal cases. The powers of the procurator were substantially reduced, and mainly concerned prosecution in the criminal courts.
The most famous case of jury trial was the acquittal in 1878 of the social revolutionary Vera Zasulich (1851–1919). Her comrade, Alexei Bogolyubov, refused to remove his cap in the presence of Colonel Trepov, the notorious governor of St Petersburg. Trepov ordered him to be flogged. A group of six revolutionaries decided to assassinate Trepov. On 24 January 1878 Zasulich shot, and seriously wounded, Trepov in front of witnesses. She was tried by jury, with Anatoly Koni, the well-known reforming judge, presiding. The sympathetic jury found Zasulich not guilty. She went on to become a Marxist and, famously, corresponded with Karl Marx as to whether Russia could achieve socialism through the peasant commune. Judge Koni was a great legal reformer until the 1917 Revolution, became a leading law lecturer in Soviet Russia, and died in 1927.
The Bolsheviks abolished trial by jury and justices of the peace, but the Bar continued during the Soviet period as an independent profession, remunerated by fees, and defending the accused in cases of economic and political crimes. Fearless advocates in the Soviet period, often Jewish, included my colleagues Yuri Schmidt (1937–2013) in Leningrad and Semyon Ariya (1922–2013) in Moscow.3 However, the public prosecutors regained their full Tsarist powers and, as Vladimir Terebilov – Minister of Justice and Chairman of the USSR Supreme Court – wrote in his book The Soviet Court, published in Russian and English in 1973 and 1986, a prime function of the Soviet court was to educate the public in intolerance of crimes, respect for the law, and the rules of socialist community life.
The collapse of the USSR in 1991 has meant the restoration of many of the great reforms of Alexander II. An experiment in trial by jury in nine regions started in 1993, and covered the whole of Russia from 2003. Justice of the Peace courts were restored from 1998.
This restoration of the 1864 reforms took place against the backdrop of a revolutionary transformation in Russia’s attitude to international law. In the USSR there were two key principles of international law: state sovereignty, and non-interference in the internal affairs of states. Therefore, the USSR ratified UN human rights treaties but did not permit external scrutiny of domestic legality.
Under the first president of the Russian Federation, Boris Yeltsin, Russia adopted a new Constitution in 1993, with guarantees for the whole range of human rights and civil liberties, and a provision establishing the supremacy in the Russian legal system of international law. This has been explained by the Supreme Court in Resolutions of 2003 and 2013.
In 1996 the Russian Federation joined the Council of Europe (CoE) and in 1998 ratified the European Convention on Human Rights (ECHR), which immediately became part of Russian law. For the first time every person under Russian jurisdiction could complain of
violations of the ECHR to the European Court of Human Rights, and thousands have done so. As a result, legal textbooks and court judgments are now full of references to European human rights, and there have been substantial changes to Russian law and procedure.
In 2000 I had the honour of being nominated by the CoE to serve as one of three CoE experts working with Dmitry Kozak (now Deputy Prime Minister), Yelena Mizulina of the State Duma, Judge Radchenko of the Supreme Court, and Vladimir Shults, Deputy Director of the Federal Security Service (FSB). We drafted the new Criminal Procedural Code, which introduced the principle of adversariality into the Russian criminal process, transferred the power to remand on bail or in custody pre-trial, with a presumption for bail, from prosecutors to judges, and many other changes. These reforms have been strengthened by judgments of the Constitutional Court of the Russian Federation, referring to Strasbourg principles and judicial decisions.
Indeed, in the period from 2000 to 2003, President Putin encouraged these and other reforms, spoke often of the ‘dictatorship of law’, cited Judge Koni, and referred to himself as following in the footsteps of Alexander II. The arrest of Mikhail Khodorkovsky in late 2003, the expropriation of his oil company Yukos, his two criminal trials, and imprisonment in Chita (where Decembrists had been sent to serve their sentences after 1825), marked the end of this reform period.
Today, less than one per cent of criminal trials in Courts of General Jurisdiction end in acquittals (15–20 per cent in jury trials), lower than the acquittal rate in the USSR; and the judges are not, as in the UK, former advocates, but are drawn almost entirely from law enforcement and court administration. Members of the Russian Bar fight hard for their clients, but judges frequently read out the indictment prepared by the prosecutor by way of a judgment. All too often criminal proceedings are abused for the purpose of ‘criminal corporate raiding’, illegal takeovers and political vendettas. The further reform of criminal justice in Russia will require a new generation of genuinely independent judges.

Reviewed by Bill Bowring: Philip Cunliffe  “Lenin Lives! Reimagining the Russian Revolution 1917-2017”


Lenin Lives! Reimagining the Russian Revolution 1917-2017

Reviewed by Bill Bowring

Zero books, Charlotte, NC, 2017. 136pp., £9.99 pb
ISBN 9781785356971

 

Philip Cunliffe’s narrative account of how history might have happened comes with an enthusiastic endorsement by the founder of the Marx & Philosophy Review of Books. His University of Kent colleague Sean Sayers wrote “What if the hopes of the Russian Revolution had been realised? Setting out from this question Cunliffe shines a great deal of new critical light on our times. Hugely thought-provoking and entertaining. Full of contentious ideas and stimulating insights. A fire cracker of a book.”

There is no questioning Cunliffe’s expertise concerning the Russian Revolution, and what actually happened; and as he explores what might have happened in various parts of the world, he shows broad knowledge and genuine scholarly inquisitiveness. The book is always stimulating, and well-written. Cunliffe also has a wicked sense of humour.

Dr Cunliffe is a Senior Lecturer in International Conflict at Kent University, teaches a module on “Marxism: Politics and International Relations”, and dedicates the book to his students on the module. He completed his PhD in the War Studies Department at King’s College London, examining developing countries’ personnel contribution to United Nations peacekeeping operations. His critically acclaimed third book Legions of Peace: UN Peacekeepers from the Global South (Hurst, 2013) was based on his doctoral research.

So Cunliffe has splendid credentials. Nevertheless, for me at least this is a very odd book, for several reasons.

First, and highly relevant to the title of the book, Lenin, far from “living!” is put gently to a rather obscure sleep by Cunliffe. Chapter Three of the book is entitled “The Best Possible World: Global Socialism”. On p. 70 there is a section entitled – knowingly – “Lenin’s Last Struggle”. I cite the passage on p. 71, in full:

Lenin lives a few years longer into the 1920s, his health less battered by the strain of defending an isolated Russian Revolution. But in this timeline too, his last years are also consumed with a strenuous fight – not against Stalinism, but rather for the global right of nations to self-determination. Attacking the giants of German Marxism from a remote socialist outpost in the East, he is initially castigated and then eventually patronized as the great but backward-looking starik – “Old Man” – of the Revolution, increasingly out of time and too liberal in his concern for protecting the political rights of small nations in the new era of grand revolutionary federations.

Indeed, in this version Lenin has no need to warn his fellow Bolsheviks against Stalin, or to engage in his last struggle with Stalin over the right to independence of Georgia and the federative principle for Soviet Russia, with the right to secede. In Cunliffe’s counter-factual, Stalin continues his career as an obscure administrator, is secretly jealous of Trotsky’s success as a military leader, but remains a loyal Trotskyist until he dies in the 1950s (111)! This is one of the reasons that I admire Cunliffe’s sense of humour.

However, for myself, I consider that two of Lenin’s great achievements were his principled theoretical understanding of the right of nations to self-determination, drawing on Marx and Engels on Poland and Ireland, and fierce polemics with the Austro-Marxists Karl Renner and Otto Bauer; and his stunning implementation of his policy after 1919, with independence for Finland, the Baltics, Poland, and the federative principle in the first Soviet constitutions.

In fact, Lenin’s health was fatally damaged not so much by the strain of defending the Revolution, as by the Left Social Revolutionary Fanny Kaplan who on 30 August 1918, convinced that he was a traitor to the Revolution, shot him outside the Hammer and Sickle factory. Two bullets hit him, one passing through his neck, puncturing part of his left lung, and stopping near his right collarbone; the other lodging in his left shoulder. Lenin survived but never fully recovered. This helped to bring about his early death a few years later. Or perhaps in Cunliffe’s alternative version the shooting never happened either. In his counter-factual world, German socialism, which then spreads around the world, is victorious in 1925 (66).

Another example of Cunliffe’s sense of humour: the capitalist enclave in socialist Germany is named – the German Democratic Republic!

Second, the heroes and heroines of anti-colonial and national liberation struggles also disappear from this alternative history. Colonial empires are destroyed by revolution in the colonial powers, not by uprisings from below. More surprisingly, feminism and civil rights also “become redundant” in the improved twentieth century (111). Somehow the oppression of women, and patriarchy, magically disappear. Feminists might well consider that male privilege and violence and discrimination against women are too deep-rooted to be eradicated so speedily.

Third, Cunliffe imagines what might have been the consequence of the victory of socialism in developed industrial Germany rather than backward Russia. Here he joins the Marx of 1848 in believing that victory against capital would release the productive forces from the shackles of production relations, and would lead to abundance. Thus, he has the new socialist states drawing on Marx’s guidance, so that their “overarching” emphasis is “less on redistribution than on relentlessly improving labour productivity as fast as possible.” (88) Cunliffe adds that Marxism was not designed for the “poverty-stricken, rural and deeply uneven” countries of Latin America, but was designed to uplift, transform and improve the most advanced societies, “building not only on the civic and political freedoms of liberalism but also the economic achievements of capitalism” (90).

Nowhere, as far as I could see, does Cunliffe mention the environment, the planet as a whole, or the effects on it of rapid industrialisation. It is now increasingly understood that Marx’s later work, was characterised by his “turn from a utopian view of technological progress, and his growing recognition of the ecological limits to capital accumulation.” (Bob Jessop) The words cited are from one of many enthusiastic reviews of Kohei Saito’s Karl Marx’s Ecosocialism: Capital, Nature, and the Unfinished Critique of Political Economy (Monthly Review Press, 2017, reviewed here). Winner of the Deutscher Memorial Prize 2018. Michael Heinrich added: “Saito has not only an excellent knowledge of Marx’s oeuvre, he is also occupied with Marx’s sources. He provides an exciting journey, showing how deeply ecological questions are connected to Marx’s unfinished project of a ‘Critique of Political Economy’.” Cunliffe has apparently not noticed these developments in the understanding of Marx’s theoretical development.

Similarly, Cunliffe does not mention Marx’s investigation, towards the end of his life, of a road to socialism which did not have to pass through industrialisation, namely the Russian peasant commune. See Teodor Shanin Late Marx and the Russian Road: Marx and the Peripheries of Capitalism(Routledge, 1983). Marx studied and became adept in Russian, and after several drafts wrote to the Russian revolutionary Vera Zasulich on 8 March 1881.

The question remains: what is Cunliffe’s stand-point? This is not immediately clear from the book itself. But it is well known that he is closely associated with the former Living Marxism or LM network, known for promoting libertarian and anti-environmentalist ideas. Cunliffe with his Sovereignty And Its Discontents (SAID) Working Group, has been a sponsor of The Battle of Ideas organised by the Academy of Ideas (Institute of Ideas), since at least 2004, and he has participated and presented several times more recently. He like the former director and founder of the Institute of Ideas, Claire Fox, who is now an MEP for the Brexit Party, is a passionate supporter of Brexit. He describes himself on Twitter as a “Brexit Bolshevik”. He helped to found the “The Full Brexit”, a pro-Brexit campaigning network. He will be a speaker at The Battle of Ideas in September 2019.

And on 19 July 2019 he re-tweeted Bjorn Lomburg, author of ‘Cool It’ and ‘Skeptical Environmentalist’ (“which challenges widely held beliefs that the world environmental situation is getting worse and worse”), himself tweeting: “Lomborg deserves a medal for being one of the few to retain his sanity among the global intelligentsia.” Lomburg’s tweet?: “Unbridled alarmism: No, our current trajectory is about 4°C, not 6°C. No, 4°C is not the end-of-the-world, it is a problem, equivalent to reducing average income by about 3-4% in 2100 (when OECD will be 200-500% as rich as today and Africa 300-2,200% richer)”.

So I too recommend the book, for many of the same reasons as Sean Sayers. But Dr Cunliffe might have been rather more up-front as to where he is coming from, politically.

24 July 2019

Minority Rights in Russia

Trial observation in Madrid – the Catalan Referendum Case

Report by Professor Bill Bowring, Barrister

Introduction

I visited Madrid on Tuesday 19 and Wednesday 20 February, invited (at extremely short notice) by International Trial Watch – Catalan Referendum Case (https://internationaltrialwatch.org/en/homepage/), which is a coalition of civil society organisations

  • Associacio Catalana per a la Defensa deis Drets Humans (ACD ddhh)
  • Col-lectiu PRAGA
  • Institut de Drets Humans de Catalunya
  • Iridia – Associació Irídia, Centre per la Defensa dels Drets Humans (https://iridia.cat/)
  • NovAct International Institute for Nonviolent Action
  • OSPDH – Observatorio del Sistema Penal y los Derechos Humanos (OSPDH) de la Universidad de Barcelona (http://www.ub.edu/ospdh/es/presentacion-0)

I represented

  • the European Lawyers for Democracy and Human Rights (ELDH), of which I am President,
  • the Bar Human Rights Committee of England and Wales (BHRC) of which I am an Executive Committee Member.

I was one of three international observers on those days. The others were:

John Philpot, Avocat, practising in Montréal, Canada

Paul Newman, Lawyer in Bangalore, India

I am grateful for the support I received from Anais Avo and Andres Garcia, lawyers and activists in Iridia; and from Professor Louis Lemkow Zetterling, of the Institut de Ciència i Tecnologia Ambientals – Universitat Autònoma de Barcelona (ICTA-UAB). I now have close contact with all three.

The accused

The 12 accused are (from http://www.catalannews.com/catalan-trial/item/who-are-the-catalan-leaders-accused-in-the-independence-trial):

 

Oriol Junqueras Vies

 

Former Catalan vice president and ERC leader

 

Oriol Junqueras is the most senior political figure to face trial in the Supreme Court. He was the Catalan vice president and the finance minister at the time of the referendum, as well as the main independence leader along with then-president Puigdemont.

While Puigdemont left the country following Madrid’s takeover of Catalan institutions, Junqueras stayed and was subsequently incarcerated on November 2, 2017. While in prison, he ran as ERC’s candidate for president in the December 21 election.

Pro-independence parties had held on to a parliamentary majority but lost it last spring when the Supreme Court suspended Junqueras and other MPs charged in the Catalan trial, and they rejected being replaced. Junqueras will have spent 467 days in precautionary detention by the time the trial starts.

 

Prosecutor’s request: 25 years in prison for rebellion and misuse of public funds

 

Jordi Turull Negre

 

Former regional minister for the presidency and spokesman for the government of Catalonia

 

As the presidency minister and cabinet spokesperson, Jordi Turull was one of the highest-ranking government officials during the independence referendum. He entered prison on November 2, 2017, only to be released a month later on a €100,000 bail.

Elected as an MP for Junts per Catalunya (JxCat) party, led by Puigdemont, he was proposed by the former president as his successor, when Spanish courts prevented Puigdemont from retaking the post at a distance. He entered prison again on March 23, a day before he was to be elected as Catalan president in parliament.

He was subsequently suspended as MP, and prevented from retaking his post as presidency minister while in prison. Turull will have spent 359 days in precautionary detention when the trial starts.

 

Prosecutor’s request: 16 years in prison for rebellion and misuse of public funds

 

Joaquim Forn Chiarello

 

Former regional interior minister

 

As the interior minister, Joaquim Forn was in charge of Catalonia’s own police force, the Mossos d’Esquadra, during the independence referendum. Accused of not doing enough to stop the vote, Forn has denied any “political interference” with the Mossos’ work.

Along with Junqueras, Forn is the only minister who’s stayed behind bars consistently since November 2. He is to run for Barcelona mayor as JxCat’s candidate. Forn will have spent 467 days in precautionary detention when the trial starts.

 

Prosecutor’s request: 16 years for rebellion and misuse of public funds

 

Raül Romeva Rueda

 

Former regional minister for foreign affairs, institutional relations and transparency

 

After a decade serving as a member of the European Parliament for the Greens-EFA, Romeva returned to Catalonia in 2015 to lead pro-independence parties in a unity list.

He served as foreign action minister until Spain triggered Article 155 of the constitution to suspend the Catalan government, following a declaration of independence. He spent a month in jail, was released on bail, and was later re-imprisoned in March 2018. Elected as an MP for ERC, the Supreme Court suspended him last July. Romeva will have spent 359 days in precautionary detention when the trial starts.

 

Prosecutor’s request: 16 years for rebellion and misuse of public funds

 

Dolors Bassa Coll

 

Former social affairs minister

 

Dolors Bassa was the minister of social affairs when the referendum took place. She was released on bail after spending a month in prison from November to December 2017.

A member of ERC, she left her seat in parliament before appearing before the Supreme Court in March last year but was imprisoned regardless. Bassa will have spent 359 days in precautionary detention when the trial starts.

 

Prosecutor’s request: 16 years for rebellion and misuse of public funds

 

Josep Rull Andreu

 

Former minister for land and sustainability

 

A close ally of Puigdemont, Josep Rull has served as a member of the Catalan parliament for more than two decades. After spending one month in jail and being released on bail, he was imprisoned again last March.

Catalan president Quim Torra proposed that he retake his post as territory minister while in prison, but Spanish courts blocked his appointment and later suspended him as an MP. Rull will have spent 359 days in precautionary detention when the trial starts.

 

Prosecutor’s request: 16 years for rebellion and misuse of public funds

 

Meritxell Borràs Sole

 

Former regional minister for governance, public administration and housing

 

Catalonia’s governance minister during the independence referendum, Meritxell Borràs quit politics after spending 33 days in prison, thus abandoning a career spanning more than 20 years. Summoned to court last March, she was allowed to walk free while most of her colleagues were again incarcerated.

 

Prosecutor’s request: 7 years in prison + €30,000 fine for misuse of public funds and disobedience

 

 

Carles Mundó Blanch

 

Former justice minister

 

Just like Borràs, Carles Mundó quit politics after spending 33 days in jail in late 2017 for his role in the independence bid. He was the justice minister during the referendum.

 

Prosecutor’s request: 7 years in prison + €30,000 fine for misuse of public funds and disobedience

 

Santi Vila i Vicente

 

Former regional minister for business and knowledge

 

Santi Vila was always sceptical of unilateral moves to independence while a member of the Puigdemont cabinet. He was part of the government when the referendum was called, and the day before the declaration of independence, he stepped down from his post and from politics altogether soon afterward. This, after spending one day in prison. He was not MP in Parliament during that period, and said his department spent no money on referendum logistics.

 

Prosecutor’s request: 7 years in prison + €30,000 fine for misuse of public funds and disobedience.

 

 

Carme Forcadell Liuis

 

Former parliament speaker

 

Forcadell has been one of the main key players in the road to independence since its beginning in 2012. The first years, she was leader of a large grassroots pro-independence organization, the Catalan National Assembly (ANC), and from 2015 as parliament speaker.

The Spanish Constitutional Court sent her several warnings and the Spanish prosecutor filed criminal lawsuits against her while in office, for allowing debates and votes on independence. Forcadell, however, repeatedly stated that she always respected freedom of speech and the rights of MPs. She will have been behind bars for 327 days when the trial starts.

 

Prosecutor’s request: 17 years in prison for rebellion.

 

Jordi Sànchez Picanyol

 

Former grassroots leader

 

Jordi Sànchez took over ANC leadership in 2015 when Forcadell entered institutional politics. He led a protest outside the Catalan economy department on September 20, 2017, as a response to Spanish police raids against the referendum organization.

No-one was injured but the protest was considered a “tumultuous” one, and Sànchez was charged with sedition, and then rebellion. The grassroots leader maintains all pro-independence demonstrations in that period were peaceful. Yet he was incarcerated pending the trial, and when sessions start, he will have spent 484 days behind bars.

While in jail, he stepped down as ANC leader, was elected as MP for Puigdemont’s candidacy JxCat, attempted to be sworn in as Catalan president, and was then suspended as MP.

 

Prosecutor’s request: 17 years in prison for rebellion.

 

Jordi Cuixart Navarro

 

Grassroots leader

 

Jordi Cuixart is the only official to be judged who has never held any public post in politics. During the 2017 referendum, he was president of Òmnium Cultural, another large pro-independence organization, and is accused of the same events as Sànchez.

Both were the first leaders to be sent to precautionary jail in October 2017, and Cuixart will also have spent 484 days in prison when the trial starts.

Unlike Sànchez, he was not involved in the December 2017 election and remained Òmnium’s leader. This organization has dramatically increased its members since then, to 130,000.

 

Prosecutor’s request: 17 years in prison for rebellion.

 

All the elected politicians would be barred from holding public office for long periods of years if convicted.

Photo from El Pais, EMILIO NARANJO GTRES

 

The alleged crimes

The accused are charged with the following crimes arising out of the organisation of the independence referendum on 1 October 2017.

 

 

Rebellion

Article 472
A conviction for the offence of rebellion shall be handed down to those who violently and publicly rise up for any of the following purposes:

  1. To fully or partially repeal, suspend or amend the Constitution;
  2. To declare the independence of any part of the national territory
  3. To disaffect from obedience to the Government any armed force.

Article 473
1.  Those who, inducing the rebels, have promoted or sustain the rebellion, and its ringleaders, shall be punished with a sentence of imprisonment from fifteen to twenty- five years and absolute barring for the same time; those who act as subaltern commanders, with that of imprisonment from ten to fifteen years and absolute barring from ten to fifteen years, and mere participants, with that of imprisonment from five to ten years and special barring from public employment and office for a term from six to ten years.

  1. If weapons have been used, or if there has been combat between the rebellious force and the sectors loyal to the lawful authority, or when the rebellion has caused criminal damage to publicly or privately owned property, cutting off telegraphic and telephone lines, the airwaves, railways or any other kind of communications, with serious violence against persons, demanding contributions or diverting the public funds from their lawful investment, imprisonment shall be handed down, respectively, of twenty- five to thirty years for the former and from fifteen to twenty- five years for the second, and from ten to fifteen years for the latter.

Article 478
Should whoever commits any of the felonies foreseen in this Chapter be an authority, the punishment of barring foreseen in each case shall be substituted by that of absolute barring for a term from fifteen to twenty years, except if that circumstance is specifically included in the criminal classification concerned.

 

Sedition

Article 544
Conviction for sedition shall befall those who, without being included in the felony of rebellion, public and tumultuously rise up to prevent, by force or outside the legal channels, application of the laws, or any authority, official corporation or public officer from lawful exercise of the duties thereof or implementation of the resolutions thereof, or of administrative or judicial resolutions.

Article 545
1.  Those who have induced, sustained or directed the sedition or who appear as the main doers thereof, shall be punished with a sentence of imprisonment from eight to ten years, and with that ten to fifteen years if they are persons with the status of an authority. In both cases, absolute barring for the same term shall also be imposed.

  1. Apart from those cases, a punishment from four to eight years imprisonment and of special barring from public employment and office for a term from four to eight years shall be imposed.

 

Embezzlement

Article 432
1.The authority or public officer who, for profit, steals or allows a third party, with the same intention, to steal public funds or property he has under his charge due to his duties, shall incur a sentence of imprisonment from three to six years and absolute barring for a term from six to ten

2.A sentence of imprisonment shall be imposed from four to eight years and that of absolute barring for a term of ten to twenty years, if the embezzlement is especially serious, in view of the value of the sums embezzled and the damage or hindrance caused to the public The same penalties shall be applied if the items misappropriated are listed due to their heritage or artistic value, or if they are goods assigned to public catastrophe relief.

3.When the amount embezzled does not reach the sum of 4,000 euros, the penalties imposed shall be a fine exceeding two and up to four months, imprisonment from six months to three years and suspension from public employment and office for a term of up to three

 

Disobedience

Article 410
1.Authorities or civil servants who openly refuse to duly fulfil court resolutions, decisions or orders of a higher authority, handed down within the scope of their respective powers and complying with the legal formalities, shall be punished with a fine from three to twelve months and special barring from public employment and office

Article 73
Authorities or civil servants who openly refuse to duly fulfil court resolutions, decisions or orders of a higher authority, handed down within the scope of their respective powers and complying with the legal formalities, shall be punished with a fine from three to twelve months and special barring from public employment and office

Article 74
1. Notwithstanding what is set forth in the preceding Article, whoever perpetrates multiple actions or omissions, in the execution of a preconceived plan or taking advantage of an identical occasion, that offend one or several subjects and infringe the same criminal provision or provisions that are equal to or of a similar nature, shall be punished as the principal of a continued felony or misdemeanour with the punishment stated for the most serious offence, that shall be imposed in its upper half, it being possible to reach the lower half of the higher degree of punishment.

 

Criminal organisation

Article 570 bis
1. Whoever promotes, constitutes, organises, co-ordinates or directs a criminal organisation shall be punished with a sentence of imprisonment from four to eight years, if it has the purpose or object of committing serious felonies, and with a sentence of imprisonment from three to six years in other cases; and whoever actively participates in the organisation, forms part thereof or co-operates financially or in any other way therein, shall be punished with imprisonment from two to five years if its purpose is to commit serious felonies, and with a sentence of imprisonment from one to three years in other

For the purposes of this Code, a criminal organisation is construed to be a stable group formed by one or more persons, for an indefinite term, in collusion and co-ordination to distribute diverse tasks or duties in order to commit felonies, as well as to carry out reiterated commission of misdemeanours.

  1. The penalties foreseen in the preceding Section shall be imposed in the upper half when the organisation:
  2. a) is formed by a large number of persons;
  3. b) possesses weapons or dangerous instruments;
  4. c) has advanced technological resources for communication or transport that, due to their characteristics, are especially fit to facilitate commission of the offences or the impunity of the accused.

Should two or more of those circumstances concur, the higher degree penalties shall be imposed.

 

The three prosecutors

There are three prosecutors:

 

Public Prosecution Ministry

The Public Prosecution Ministry, without prejudice to the functions entrusted to other bodies, has as its mission, the promotion of Justice in defence of the rule of law, the rights of citizens and the public interest protected by the Law, ex officio or at the request of the interested parties, as well as to ensure the independence of the Courts and to seek before them the promotion of social interest (art. 124 EC). The Public Prosecution Ministry exercises its functions through its own bodies, in accordance with the principles of unity of operation and hierarchical subordination subject in all cases, to the rule of law and impartiality. The basic law that regulates the Spanish Public Prosecution Ministry is the Organic Statute of the Public Prosecution Ministry, approved by Law 50/81, of 30th December, and modified by Law 24/2007, of 9th October. The Public Prosecution Ministry is a single body for the entire State and its members are the authority for all purposes, always acting as representatives for the whole Institution.

 

Solicitor General of the State

The Solicitor General of the State represents the State and depends functionally on the Ministry of Justice. It is the governing body for the services that provide legal assistance to the State and to other public institutions. It is led by the Solicitor General of the State and appointed by the Council of Ministers.

 

People’s Prosecution

A concept regulated in article 125 of the Spanish Constitution, giving legitimacy to any citizen to present themselves in a criminal judicial process, even if they have not been directly affected by the crime in question. It is a form of civic participation in the justice system and characteristic to Spain; it does not exist in other countries. Even though it is permitted both for individuals and corporate entities, it is very common for it to be carried out by groups, associations or even political parties.

The people’s prosecution is being carried out by VOX, the far-right political party in Spain founded on 17 December 2013, by former members of the People’s Party (PP).

The ICJ’s analysis

I agree with the position of the International Commission of Jurists (ICJ) published on 12 February 2019 (https://www.icj.org/spain-trial-of-catalonian-leaders-imperils-human-rights/)

The very broad definition of the offence of rebellion being applied in this case risks unnecessary and disproportionate interference with rights of freedom of expression, association and assembly. The twelve political leaders – including high-ranking Catalan government officials – have been charged in connection with their part in the administration on 1 October 2017 of a referendum on Catalonian independence. The referendum was conducted despite having been declared illegal by the Constitutional Court. The voting process during the referendum was partially suppressed by the police, with credible reports of the use of unnecessary and disproportionate force in breach of Spain’s international law obligations.

Interference with peaceful political expression and protest must be justified as strictly necessary and proportionate under international human rights law. Where peaceful protests or political actions, even if declared unlawful by the authorities, provoke an excessive response by the police, it is solely the police and other state authorities who should be held responsible for the violence. It is crucial that the Supreme Court, in its consideration of these charges, takes full account of Spain’s obligations under international human rights law.

The ICJ is concerned that prosecutors, and the Supreme Court in admitting the indictment in the case, have ascribed an unduly broad meaning to the offence of “rebellion” under article 472 of the Criminal Code. According to that article, the offence requires violent insurrection to subvert the constitutional order. But the referendum organizers are not accused of using or advocating violence. Rather, they are being tried on the basis that they should have foreseen the risk of intervention and the use of force by the police. It is therefore alleged that the defendants were criminally responsible for the violence that ensued from their decision to carry on with the referendum, despite it being declared illegal.

Although the Supreme Court has held that the use of force by Spanish law enforcement authorities during the repression of the referendum of 1 October 2017 was “legitimate and, as such proportionate”, international observers have concluded that such use of force was excessive and disproportionate. In accordance with international human rights law, the mere fact that the use of force is considered to be legal under national law, does not of itself mean that it can be considered to be necessary and proportionate.

The Supreme Court has further already accepted that, if the facts alleged by prosecutors are proven, they could amount to the offence of sedition, which is committed by those that that rise up publicly and in a tumultuous way, by force or by unlawful means, to impede the implementation of laws or of authorities’ orders.

Vague, broadly defined offences of sedition or rebellion risk violation of the principle of legality, as well as arbitrary and disproportionate interference with human rights. In a highly sensitive and politicised case such as that of the Catalonian referendum, they would set a dangerous precedent for the targeting of peaceful independence movements and political dissent, not only in Spain but internationally.

Several of the accused have already been held in pre-trial detention for lengthy periods, further exacerbating the severity of the interference with rights to freedom of expression, association and assembly, and casting doubt on the proportionality of the response.

Observation

I arrived in Madrid on the morning of 19 February, and attended the hearing at the Supreme Court in the afternoon. I and the other two observers were not hindered in entering the court or the large, ornate court-room.

The judges sit – see picture, at the head of the court-room.

The presiding judge, with a 7 judge panel, is Justice Manuel Marchena Gomez. He is the President of the Criminal Chamber of the Court. He was born in 1959, 59 years old. He has been a prosecutor, judge, and professor.

The other judges are:

Antonio del Moral Garcia

Luciano Varela Castro

Andrés Martinex Arrieta

Juan Ramón Berdugo Gómez de la Torre

Ana Maria Ferrer Garcia

Andrés Palomo del Arco

 

 

 

 

Picture from El Pais, J.J.GUILLEN EFE

According to the Catalan newspaper, El Nacional[1]:

[Judge Marchena] has let the defence lawyers have twice as much time to make their points as they are allowed, according to the jurisprudence of the European Court of Human Rights (ECHR)[2] – the court whose presence hangs permanently over this courtroom. He has let family members enter the Supreme Court room where the accused are held during recesses. He has let the accused wear yellow ribbons. He did not cut off the political discourse of Oriol Junqueras, even though he had warned he didn’t want political meetings. Indeed, the seven judges who are hearing the independence leaders’ case remained silent and unfazed, and at no time interrupted the former Catalan vice-president, but rather, simply listened attentively, without making notes of any kind.

Marchena has allowed the prisoners to sit alongside their lawyers. Although it will have to be behind them, since the number of defence lawyers is so large, they won’t all fit right beside their clients.

Manuel Marchena was especially severe with the public prosecutor and the state solicitor, and also with the private prosecution led by Vox, of course. And strict he will have to be, because Vox’s status as a political party – combined with the calling of a Spanish general election – further complicates the role of this private prosecution and of Manuel Marchena himself, who has to act as referee.

The accused, as appears in the photo above, sat in the centre of the Court, with defence lawyers with them or to their left, and the prosecutors on the right. There were empty seats in the rear of the court, with seats reserved for the press, for the families, and for the public. The presence of international observers was not announced.

I had no translation during the session I observed, so I could not know whether the defence lawyers told the judges of the presence of observers, nor could I understand what was said.

I heard Raül Romeva, the former Foreign Action Minister, give evidence. He was not interrupted by the judges, and spoke at length. He showed a video film of a large, peaceful demonstration in Barcelona. The few interventions made by Judge Marchena appeared to be normal and restrained.

I was told that most of the defendants have agreed to answer questions from the Public Prosecutor and Solicitor General, but not from VOX.

In the evening the international observers had dinner in the hotel with some of the defence lawyers. We were told of the extreme and disproportionate nature of the charges against their clients, but we were not told of any hindrance suffered by the defence.

On the morning of 20 February I was not taken back to the Supreme Court, but to a room in what appeared to be a temporary office centre, where there was a large TV screen with direct transmission from the Supreme Court, and excellent simultaneous translation into English. It was thus possible to see the judges, prosecutor, and accused close-up.

I saw Josep Rull, the former Territory Minister, answering questions from the Public Prosecutor. The questioning was restrained and not aggressive, and Mr Rull spoke as long as he wanted to in answer. He was reminded a couple of times by Judge Marchena to try to answer the questions put to him, and not to make so many political points. But he was not hindered in saying what he wanted to say.

I was struck by the fact the Prosecutor did not ask Mr Rull any questions relating to violence, which is an essential ingredient of “rebellion”. Questions were directed much more to the misuse of public funds in organising a referendum which the Constitutional Court had declared to be illegal.

I was obliged to leave to return to England after lunch.

Although it had been intended that I should give interviews to the Spanish and Catalan media, this did not happen. It had also been intended that I should meet Senator Laura Castel from Tarragona, but this did not happen either.

[1] Gemma Liñán “Judge Manuel Marchena’s balancing act, with one eye on European justice” 18 February 2019 at

https://www.elnacional.cat/en/politics/spanish-judge-marchena-balancing-act-european-justice_356046_102.html

[2] Spain ratified the ECHR on 24 November 1977, and the ECHR came into force for Spain on 4 October 1979

Russia’s Criminal Justice System – from Tsar Alexander II to President Putin

SCRSS Digest, Spring 2019

A typical recent criticism of Russia reads as follows: “Although the equality of arms and the right to adversarial trial are guarantees of the Russian Constitution, many cases show deep flaws within the criminal justice system and gross misconduct of the judiciary and prosecution. This includes using fabricated evidence, forced confessions and impunity for perpetrators of crimes.”[1] There is truth in this, especially in politically high profile cases. But is it the whole story?

What follows is a summary of the lecture I gave at SCRSS on 19 October 2018, and draws on some of the material in my 2013 book Law, Rights and Ideology in Russia: Landmarks in the destiny of a great power (Routledge). I previewed the book in an article in the SCRSS Digest in the Spring 2012 issue, pages 5-7.

I start in the early 19th century. In March 1814 the Russian Army entered Paris, having defeated Napoleon – and returned to Russia having achieved its objectives. Russia appeared to be invincible. Ten years later, the Decembrist revolt of 26 December 1825, led by progressive aristocrats who wanted to prevent the accession of Nicholas I, to abolish serfdom and to establish a constitutional order in Russia, was crushed. Nicholas, a political conservative, ruled from 1825 to 1855.

Criminal justice under Nicholas was aptly summed up as follows: “The secret inquisitional procedure, with its soulless records, with its formal evidence evaluated in advance and prescribing to the judge his decision, could be nothing else but a source of cruelty and inequity. The judge was deprived of liberty of decision, and bound by the rule of formal evidence. He could not acquit or condemn according to his conviction, but only act in conformity with the scale of value of evidence set forth by law. His sentence, though formally correct, was very often nothing but a flagrant injustice.”[2] And “the best evidence in the whole world” was considered by the law to be the confession of the accused.”

However, the Russian Empire lost the Crimean War, which lasted from October 1853 to February 1856, to an alliance of the Ottoman Empire, France, Britain and Sardinia. Nicholas I died on 2 March 1855, succeeded by his eldest son, Alexander II. Alexander was not a liberal, but could see that survival of the Empire and of Tsarism dependent on radical reform. On 3 March 1861 in the Emancipation Manifesto, serfdom was abolished. Abolition of slavery in the USA came a few years later.  Abraham Lincoln issued the Emancipation Proclamation on 1 January 1863, and the passage of the Thirteenth Amendment (ratified in December 1865) abolished slavery in the United States. Russia had led the way.

Abolition of serfdom was followed by the Great Legal Reforms of Alexander II. On 20 November 1864 he signed the decree which enforced four Regulations including Regulations of Criminal Proceedings, and Regulations of Punishments Imposed by Justices of the Peace – in Russian Мировой суд, a direct translation from the English institution established by Edward II in 1361).

Alexander established a unified judicial system, and fundamental innovations in criminal trials. These included the principle of equality of the parties, the introduction of public hearings, trial by jury (again, modelled on English practice), and a professional Bar. Previously there was no legal representation in criminal cases. The powers of the Procurator were substantially reduced, and mainly concerned prosecution in the criminal courts.

The most famous case of jury trial was the acquittal in 1878 of the social revolutionary Vera Zasulich (1851-1919). Her comrade, Alexei Bogolyubov, refused to remove his cap in the presence of Colonel Trepov, the notorious governor of St. Petersburg. Trepov ordered him to be flogged. A group of six revolutionaries decided to assassinate Trepov. On 24 January 1878 Zasulich, shot and seriously wounded Trepov in front of witnesses. She was tried by jury, and the judge was the famous legal reformer Anatoly Koni. The sympathetic jury found Zasulich not guilty. She went on to become a Marxist, and, famously, corresponded with Karl Marx as to whether Russia could achieve socialism through the peasant commune. Judge Koni was a great legal reformer until the 1917 Revolution, became a leading law lecturer in Soviet Russia, and died in 1927.

The Bolsheviks abolished trial by jury and justices of the peace, but the Bar continued during the Soviet period as an independent profession, remunerated by fees, and defending the accused in cases of economic and political crimes. Fearless advocates, often Jewish, in the Soviet period included my colleagues Yuriy Shmidt (1937-2013) in Leningrad and Semeon Ariya (1923-2013 in Moscow). I have a book of Ariya’s defence speeches in Soviet courts. They continued, with their colleagues, in representing defendants persecuted by the post-Soviet regime. However, the Public Prosecutors regained their full Tsarist powers, and as Vladimir Terebilov – Minister of Justice and Chairman of the USSR Supreme Court – wrote in his book The Soviet Court, published in Russian and English in 1973 and 1986, a prime function of the Soviet court was to educate the public in intolerance of crimes, respect for the law, and the rules of socialist community life.

The collapse of the USSR in 1991 has meant the restoration of many of the great reforms of Alexander II. An experiment in trial by jury in 9 regions started in 1993, and covered the whole of Russia from 2003. Justice of the Peace courts were restored from 1998.

This restoration of 1864 took place against the backdrop of a revolutionary transformation in Russia’s attitude to international law. In the USSR, there were two key principles of international law: state sovereignty, and non-interference in internal affairs of states. So the USSR ratified UN human rights treaties, but did not permit external scrutiny of domestic legality.

Under the first president of the Russian Federation, Boris Yeltsin, Russia adopted a new Constitution in 1993, with guarantees for the whole range of human rights and civil liberties, and a provision establishing the supremacy in Russian legal system of international law. This has been explained by the Supreme Court in Resolutions of 2003 and 2013.

In 1996 the Russian Federation joined the Council of Europe (CoE) and in 1998 ratified the European Convention on Human Rights (ECHR), which immediately became part of Russian law. For the first time every person under Russian jurisdiction could complain of violations of the ECHR to the European Court of Human Rights, and thousands have done so. As a result legal textbooks and court judgments are now full of references to European human rights, and there have been substantial changes to Russian law and procedure.

In 2000 I had the honour of being nominated by the Council of Europe to serve as one of three CoE experts working with Dmitry Kozak (now Deputy Prime Minister), Yelena Mizulina of the State Duma, Judge Radchenko of the Supreme Court, and Vladimir Shults, Deputy Director of the FSB. We drafted the new Criminal Procedural Code, which introduced the principle of adversariality into the Russian criminal process, transferred the power to remand on bail or in custody pre-trial, with a presumption for bail, from prosecutors to judges, and many other changes. These reforms have been strengthened by judgments of the Constitutional Court of the Russian Federation, referring to Strasbourg principles and judicial decisions.

Indeed, in the period from 2000 to 2003, President Putin encouraged these and other reforms, spoke often of the “dictatorship of law”, cited Judge Koni, and referred to himself as following in the footsteps of Alexander II. The arrest of Mikhail Khodorkovsky in late 2003, the expropriation of his oil company Yukos, his two criminal trials, and imprisonment in Chita, where Decembrists had been sent to serve their sentences after 1825, marked the end of this reform period.

Today, less than 1% of criminal trials in Courts of General Jurisdiction end in acquittals (15-20% in jury trials), lower than the acquittal rate in the USSR; and the judges are not, as in the UK, former advocates, but are drawn almost entirely from law enforcement and court administration. Members of the Russian Bar fight hard for their clients, but judges frequently read out the indictment prepared by the prosecutor by way of a judgment. All too often criminal proceedings are abused for the purpose of “criminal corporate raiding”, illegal takeovers and political vendettas. The further reform of criminal justice in Russia will require a new generation of genuinely independent judges.

[1]Stefanie Lemke (Maastricht University) “Who Holds Russia’s Judges and Public Prosecutors to Account? How the International Community Fails to Effectively Address Judicial Harassment of Human Rights Defenders in the Russian Federation” 29 January 2018 at  https://voelkerrechtsblog.org/who-holds-russias-judges-and-public-prosecutors-to-account/

[2] Samuel Kutscheroff “Administration of Justice Under Nicholas I of Russia” The American Slavic and East European Review, Vol. 7, No. 2 (Apr., 1948), pp. 125-138, at p.138

‘Marx’ by Terrell Carver, reviewed by Bill Bowring


Marx

Polity, Cambridge, 2018. 222pp., £16.99 pb
ISBN 9781509518173

Reviewed by Bill Bowring

Why another book on Karl Marx?

Publications in the last decade have included Karl Marx by Paul Thomas (Reaktion, 2012); Karl Marx: A Nineteenth Century Life by Jonathan Sperber (Liveright, 2013); Karl Marx: Greatness and Illusion by Gareth Stedman Jones (Harvard, 2016); and Marx’s Inferno: The Political Theory of Capital by William Clare Roberts (Princeton, 2017).

Terrell Carver has reviewed several of these texts for the Marx & Philosophy Review of Books, and he is a formidable scholar of Marx and Engels, listing no less than 14 of his publications from 1983 to 2017 in the Bibliography of this new book.

In particular, I was fascinated by publication in 2014 of his two volumes with Daniel Blank,  A Political History of the Editions of Marx and Engels’s ‘German Ideology Manuscripts’, and Marx and Engels’s ‘German Ideology Manuscripts’: Presentation and Analysis of the ‘Feuerbach Chapter’ (Palgrave, 2014), reviewed on this site by Chris Arthur, where the reader can also find a critique by Meade McCloughan and responses and corrections from Carver. This was the “book” assembled as late as 1932 from manuscripts written by Marx and Engels but never published in their lifetimes, and published in English in 1970, edited by Chris Arthur, as “their major early philosophical work”.

In his new book Carver repeats (24) that both the Economic and Philosophical Manuscripts of 1844 and The German Ideology which are “now not only canonical but generally top of the list of excerpted ‘must-reads’ for students” were both “artefacts of twentieth century editorial scissors-and -paste practices, coincidentally published ‘in full’ in separate volumes in 1932.” Indeed, Carver’s first chapter is entitled “Making Marx ‘Marx’”, a process which, he says, did not begin until 1872 with the republication in a ‘feature’ edition including a signed authorial preface, of the – by then – historical document (as Marx and Engels pointed out in their Forward) Manifesto of the Communist Party of 1848, as The Communist Manifesto. Carver points out that until that point Marx “was very little known, and then hardly favourably, outside the limited circles of German socialism”.

Carver also reminds us that Marx published only one substantial  book in his lifetime:  Das Kapital. Kritik der politischen Ökonomie, published in German in 1867, with a French translation in 1872-5, a second German edition in 1872, and a third German edition including his substantial revisions in the French version, in 1883. The English translation, of the third German edition, was first published in 1887, only a few years before Marx’s death in 1883. A fourth German edition was prepared by Engels in 1890.

So why this new book? Carver states (8) that he is “…aiming for a refreshed way of encountering Marx, taking on board scholarly researches of textual and contextual significance, but also focusing the reader’s attention on the roles that his ideas and thinking have come to play – even if in uncredited form – in today’s political practices and academic cultures.” While his approach “does not aim to answer the impossible question, ‘What would Marx say now?’ it does, Carver says, encourage the practical question ‘How does reading Marx stimulate me to think again?’”

Thus, Carver presents what he himself calls a “set of essays” on topics to think about when reading Marx. Carver organises the book in five thematic chapters, which highlight selected ideas in pairs, first in their present day context, then working back to Marx himself. In this spirit, Chapter 2 is entitled “Class Struggle and Class Compromise”; Chapter 3 “History and Progress”; Chapter 4 “Democracy and Communism/Socialism”; Chapter 5 “Capitalism and Revolution”; and Chapter 6 “Exploitation and Alienation”. I entirely support Carver’s desire to avoid “making a spurious claim that [Marx’s] ‘thought’ was a unity (or intended as such), that it culminated in tidy-minded ‘theories’ (or scientific or political ‘doctrines’) achieved largely through purely intellectual struggle, or that ‘it’ – the thought – was really Marx himself the political activist.” (10).

I was curious therefore as to which aspect of the present day would command Carver’s attention. To my surprise this was the Occupy Wall Street protest movement that began on 17 September 2011, and lasted with diminishing effect until about 2013. Carver presents its main ideas and slogans on pages 35-6. Here he links Occupy to Marx’s early journalism in 1842-3 (pages 39, 41 and 42), notably “On the Theft of Wood”, in which, Carver says, Marx’s appeal was to “logic, fact and commonalities of moral experience – all without an ‘ism’” – adding that Occupy supporters fortunately for them, had the benefit of the US Bill of Rights, respected by the judiciary (this now sounds rather over-optimistic). Carver returns to Occupy to argue that there was “more compromise in Marx’s activities than he generally gets credit for” (56), though Marx and Engels, in their correspondence during the economic crisis of 1857-8, the first global ‘meltdown’, lacked, according to Carver, Occupy’s context of immediate popular activism.

Carver returns to Occupy in his discussion, in Chapter 3, of Marx’s theory of history, or lack of it (61-3), commenting that the absence of history lectures at Occupy events and debates does not mean that participants “aren’t making assumptions and using presumptions that are about history. These presumptions are about what is and is not significant in human affairs and how new history-in-the making (i.e. a better future) will drive present struggles forward.” (63). Later, in Chapter 4, Carver discusses Marx’s “Towards a Critique of Hegel’s Philosophy of Right: Introduction”, published in February 1844, and credits Marx with developing a brief but explicit strategy for, and understanding of, political activism that anyone in Occupy could readily understand (98). In Chapter 5, Carver refers to Marx’s 1844 summary of Engels’s article “Outlines of a Critique of Political Economy” of the same year, which Marx found inspirational, and adds that “It would not be difficult to find similar sentiments at any Occupy or climate-change protest” (119). And in Chapter 6, “Exploitation and Alienation”, Carver notes that “Occupy was less concerned with such abstractions as alienation – much less human nature … and more with distribution of property and the capture of democratic institutions by corporate interests.” (165).

It may be seen that Carver pays particular attention to Marx’s early writings and seeks to show their present day relevance by invoking the Occupy movement. But for me this was an (already) outdated distraction from Carver’s bracing debunking of the construction of Marx as a systematic thinker, bequeathing a canon of works – another Kant or Hegel. Carver rightly insists (172) that “In relation to collecting his own works, Marx was – as ever – an activist/journalist in his public persona, and his self-defined canon was a reflection of that.”

In this regard it is odd, for me, that Carver seems to miss some important works which support his thesis. Marx was a passionate and merciless polemicist, in particular his unveiling at length of British collusion in the Russian menace in “The Story of the Life of Lord Palmerston” published in American and British journals in 1853-6, and “Revelations of the Diplomatic History of the 18th Century”, published in The Free Press in 1856-7.

And in 1860 Marx took a whole year out from writing Capital to complete his Herr Vogt, answering at book length, published in German, the slanders against him, Engels and their supporters, by the revolutionary democrat (and Bonapartist agent) Karl Vogt in 1859, using forged police evidence produced against them in the 1852 at the time of the Cologne Communist Trial. Vogt alleged that they had engaged in secret and violent conspiracies and that Marx had acted as their dictator. The Prussian courts had denied Marx the right to sue Vogt, so Marx wrote his substantial book. An English translation was published in 1982. It is said that Engels considered Herr Vogt better than the “Eighteenth Brumaire”; Lassalle spoke of it as “a masterpiece in every respect”; Ryazanov thought that “in all literature there is no equal to this book”; Mehring wrote of its “being highly instructive even today” as to how to expose and deal with “a spy in the workers’ movement” – the subtitle of the English translation.

However, my chief criticism of Carver’s approach is his apparent downplaying of Marx’s achievement, on which he spent so many years, in writing and re-writing Capital. Marx did not underestimate his own achievement. In a letter of 17 April 1867 Marx wrote to Johann Philip Becker that “ I left London by steamer last Wednesday and after a tempestuous crossing reached Hamburg on Friday afternoon to deliver the manuscript of the first volume to Mr Meissner there… It is without question the most terrible missile that has yet been hurled at the heads of the bourgeoisie (landowners included).” History has shown that Marx was on this point quite right. Marx’s analysis of capital’s insatiable drive for valorisation, and of the law of value from which not even the most rapacious capitalist can escape any more than she can escape the law of gravity, has lost none of its relevance.  Carver seems not to have noticed some very serious recent work, notably (for me) Michael Heinrich’s An Introduction to the Three Volumes of Karl Marx’s Capital (2012)  and Alex Callinicos’s Deciphering Capital (2014) to name but two, quite apart from Evald Ilyenkov’s classic The Dialectics of the Abstract and the Concrete in Marx’s Capital (1982).

On 18 July this year, in a review of a recent collection published on this website, I highlighted a chapter by Michael Heinrich entitled “A Short History of Marx’s Economic Critique”, in which, while insisting that

we find in Marx a whole series of attempts, discontinuations, shifts, new concepts and new beginnings” (a view he shares to some extent with Carver), Heinrich adds that “Marx did not expect people to take action against capitalism on moral grounds, but because of the fact that their immediate vital interests are constantly put into question. When people repeatedly resist those relationships, however, they will learn to fight, not only for an immediate improvement in their situation under capitalism, but also, from time to time, to challenge the very existence of capitalism as such. Marx’s Capital is quite helpful in those struggles.

Despite my criticisms, I thoroughly enjoyed reading this new book by Terrell Carver, and recommend it for scholars of Marx, as well as for absolute beginners.

15 November 2018

Great letter from the great anti-Zionist Jewish scholar Dr Ephraim Nimni, http://www.qub.ac.uk/research-centres/CentrefortheStudyofEthnicConflict/Staff/Nimni/

Dear BBC

Your coverage in the World at One BBC radio 4 today 29th July 2018 is  an affront to freedom of speech and an anti-Semitic offense to the many Jews that do not support Zionism, as well as a serious breach of the BBC Charter.

Your reporter showed complete ignorance of the use of the terms “Zion” “Zionism” and “antisemitism” When you present a biased point of view, you are obliged by the BBC Charter to also air the opposite Jewish point of view. I refer to the Jewish view, orthodox and secular, that rejects Zionism as part of Judaism
For the information of your ignorant Journalist. The term Zionism was coined in the late nineteen century and has nothing to do with the long history of the Jewish people. Political Zionism is not an ethnicity nor a religious term but a nationalist political ideology. As such it can be challenged, and on occasions called racist by Jews and others. To call Jews that challenge Zionism as racism as “anti-Semites” is itself an act of antisemitism, which the BBC is guilty of. Furthermore, by ignoring the fundamental fact that there is a plurality of Jewish opinions on Israel, and that a significant number of Jews for religious and secular reasons reject the idea of Jewish state, you are seriously contravening the BBC charter by not providing impartial information.

For example, the ultra-orthodox Jewish group the “Naturei Karta” every year, burns the Israeli flag during the Jewish festivity of Purim. To accuse these God Fearing Jews of antisemitism is not only a travesty but an act of antisemitism itself. See:
http://www.nkusa.org/Abou…/Zionism/judaism_isnot_zionism.cfm
AND
https://www.youtube.com/watch?v=Rz4-r6Xen4c
This not to condone burning of flags which I oppose, but simply to show that there is a plurality of Jewish views on Israel and Zionism. To call Anti-Semites those Jews who deny the legitimacy of Israel as a Jewish state, is totalitarian, preposterous and anti-Semitic.

Another example, This is a prominent secular Jewish organization that calls Israel an Apartheid State.
https://jewishvoiceforpeace.org/

More to the point, here you have a Jewish organization in the UK and a large number of Jews that condemn the actions of the pro Zionist Jewish UK newspapers on the Labour party.
https://ijv.org.uk/2018/07/26/not-in-our-name/
They also say:
We urge our governments, municipalities, universities and other institutions to reject the IHRA definition and instead take effective measures to defeat white supremacist nationalist hate and violence and to end complicity in Israel’s human rights violations. Israel does not represent us <Jews> and cannot speak for us when committing crimes against Palestinians and denying their UN-stipulated rights.
https://ijv.org.uk/…/global-jewish-organizations-condemn-a…/

See also the debate below
https://www.theguardian.com/…/antisemitism-ihra-definition-…
The IHRA definition of Antisemitism has been challenged in numerous occasions because it wrongly includes the criticism of Israel as a form of antisemitism. This is a serious matter because the two are not related and it shields Israel for the gross violations of human rights and it is systemic discrimination of its non-Jewish citizens, which constitute 24% of the population of the State of Israel.
The senior Israeli journalist of the liberal newspaper Haaretz, Yossi Klein argues that “Israel Uses Diaspora Jews as Human Shields” he says Israel is a danger to the world’s Jews. It calls itself their protector, but doesn’t care about the consequences for them of its actions. Jews abroad pay the price of hostility to Israel.
Following your disastrous program the BBC Charter REQUIRES YOU TO INTERVIEW SOMEONE THAT HOLDS THE OPPOSING POINT OF VIEW. You are therefore obliged by the Charter of the Corporation to interview someone like your professional colleague Mr Yossi Klein, of the liberal Israeli newspaper Haaretz. SEE:
https://www.haaretz.com/…/.premium-israel-uses-diaspora-jew…

On the IHRA definition of antisemitism See the opinion of the distinguished Jewish Barrister Hugh Tomlinson QC.
http://freespeechonisrael.org.uk/ihra-opinion/…
and
https://jewishnews.timesofisrael.com/hugh-tomlinson-ihra/

For all the above, you are required by the Charter of BBC to air the opposing point of view from the biased and badly research program presented today 29 July at the Radio 4 World at One.

Dr Ephraim Nimni

Review of Sara R Farris (ed) Returns of Marxism: Marxist Theory in a Time of Crisis

 (ed)
Returns of Marxism: Marxist Theory in a Time of Crisis

Haymarket, Chicago, 2016. 396pp., $22 / £19.99 pb
ISBN 9781608465743

Reviewed by Bill Bowring

 This rich collection was initially published in 2014 by the International Institute for Research and Education (IIRE), which opened in Amsterdam in 1982. One of the founding Fellows of IIRE was Ernest Mandel. The book is edited by Sara R. Farris, who teaches sociology at Goldsmiths College, University of London.

The 20 chapters in the volume (including the Introduction) are all revised texts of papers presented during a two year seminar series at IIRE between 2007 and 2009, and a number of them are revised versions of earlier publications. The readers is therefore offered a series of insights into the state of Marxist theory some 10 years ago. Nonetheless, this reasonably priced collection is highly recommended, and contains, together with some oddly short chapters, some real gems.

In her Introduction Sara R. Farris writes: “The collection of essays presented in this volume aims to demonstrate the richness, rigour and importance of Marx s thought for developing alternative worldviews and politics in the present. We hope the reader will find these texts interesting and useful not only in her efforts to make sense of the world that surrounds us, but also in her fight against the many forms of injustice brought about by capitalism.”

Is this hope fulfilled?

The texts are divided into six different sections, with the aim of proposing, according to the editor, “a path for reading them as contributions to broader significant problematics within the Marxist tradition” (7). The sections have impressively diverse headings: Reading Capital (five chapters); Re-Reading Marx (three chapters); Marxism and International Politics (three chapters); Historicising Historical Materialism (three chapters); Feminism and Queer Marxisms (two chapters); and Many Marxisms (three chapters) – and an Introduction by Sara R. Farris.

The 22 authors of the chapters, only four of whom, disappointingly, are women, are geographically diverse, drawn from nine countries: two scholars from Australia, one from Canada, two from China, two from Denmark, three from England, five from Germany, one from Italy, five from Netherlands, and one from Scotland. The shortest chapter is 13 pages: Jeffrey Webber on the re-groupment of popular forces against Rafael Correa in Ecuador. Peter Drucker on socialist feminist questions about queer activism is 14 pages. The longest chapters, 25 pages each, are Guglielmo Carchedi on “The Crisis and Marx’s theory of knowledge”, and Frieder Otto Wolf on “What ‘capitalism’ is, what it means to be against it, and how to end it.”

For this reviewer a high point of the collection is the chapter by Michael Heinrich, “A Short History of Marx’s Economic Critique” (63-86). This is an excellent translation into English of a revised version of Heinrich’s 2009 “Theoriegeschichte der Marxschen Ökonomiekritik” in the collection Hello Marx: Zwischen “Arbeiterfrage” und sozialer Bewegung heute (Peter Bedcherer and Karen Schierhorn (eds), Hamburg: VSA Verlag). The title is rather deceptively modest for what is a lucid and bracing introduction to Heinrich’s central message: that Marx was categorically opposed to the assumption that he had established a “socialist system”. As Heinrich insists, “Above all, there are no texts to be found that show directly or indirectly that he wanted to build any kind -ism.” (66). Later in the article Heinrich explains that rather than a single consistent oeuvre, or, as for Althusser, a simple break between a younger, more philosophical Marx and a later focus on political economy, “we find in Marx a whole series of attempts, discontinuations, shifts, new concepts and new beginnings.” (72).

Heinrich concludes by declaring that “Marx did not expect people to take action against capitalism on moral grounds, but because of the fact that their immediate vital interests are constantly put into question. When people repeatedly resist those relationships, however, they will learn to fight, not only for an immediate improvement in their situation under capitalism, but also, from time to time, to challenge the very existence of capitalism as such. Marx’s Capital is quite helpful in those struggles. It may well turn out, as a self-confident Marx once claimed, to be “the most terrible missile that has yet been hurled at the heads of the bourgeoisie (landowners included).” (80-81, quoting Marx to Becker 17 April 1867, MECW vol. 42, p. 358).

At the conference “Capital.150: Marx’s Capital Today” held in London on 20 September 2017, Heinrich’s topic was “Communism in Marx’s Capital”, and is available at  https://youtu.be/cZSccinSMp8. This is well worth watching especially as he was speaking on a panel with three great young female Marx scholars, Tithi Bhattacharya on “Social reproduction theory: conceiving capital as social relation”; Lucia Pradella on “Marx’s Capital and the power of labour: imperialism, migration, and workers’ struggles”; and Beverly Silver on “Marx’s general law of capital accumulation and the making and remaking of the global reserve army of labour” – all on the same YouTube video. When he was asked by a participant whether he could sum up Marx’s lifetime of research and writing in one word, Heinrich replied “Struggle!” This reviewer agrees. It is now abundantly clear, as Heinrich insists, that there is no predetermined end of capitalism, but struggle is an open-ended process – “much is possible but nothing is for sure” (81).

Another chapter which caught this reviewer’s close attention is “Towards a Critical Political Economy of European Governance”, by Jan Drahokoupil, Bastiaan van Apeldoorn, and Laura Horn, from Germany, Netherlands and Denmark (193-213). This is a revised version of their Introduction to their edited volume on neoliberal governance in the European Union, Contradictions and Limits of Neoliberal European Governance: From Lisbon to Lisbon (Palgrave Macmillan, 2008). The revision has left in place a number of rather tantalising references to chapters in their collection, referred to, confusingly, as “this volume” ( 207, 208, 209).

Of particular interest to this reviewer is the fact that the authors mobilise a “critical realist perspective” for their critical political economy, drawing on Roy Bhaskar’s explosive 1979 The Possibility of Naturalism and Margaret Archer’s 1995 Realist Social Theory, as well as Hubert Buch-Hansen’s 2006 paper “Beyond rationalism and constructivism: a critical realist intervention in EU studies”, delivered at the ESA Critical Political Economy Workshop in Amsterdam, the “Amsterdam Project”. They stress “the dialectical interplay of structure and agency over time in which agency is never pre-social but always operating within the bounds of given social structures while the latter are at the same time dependent upon (individual, collective, strategic or less strategic) human agency for their reproduction or transformation.” (199) Furthermore, the authors start from the idea that (social) reality is stratified, “and that therefore we need research strategies that are able to probe at the deeper levels of non-observable but real structures that account for what we observe empirically.” This methodology, which Marx described as “science”, was, as the authors point out, developed in Andrew Sayer’s 1992 Method in Social Science: A Realist Approach. The 1971 edition of Antonio Gramsci’s Prison Notebooks also provides a rich source of development in the authors’ illuminating if brief analysis of the nature of the EU and its institutions.

Another thought-provoking chapter is Bertel Nygaard’s “Reconsidering Bourgeois Revolution” (247-70), drawing on his 2007 PhD Dissertation, which was in Danish. The focus is on the French Revolution of 1789-1799. Nygaard first points out “significant tensions in traditional uses of the category ‘bourgeois revolution’ through an outline of main points in its conceptual development, then suggesting a revised model for reconstructing the important issues involved in ‘bourgeois revolution’ while attempting to avoid the difficulties of earlier uses.” (248) Of particular interest is Nygaard’s focus on Marx’s notebooks of 1843-4, in which Marx conceived the French Revolution “not primarily in socio-economic class terms but as the foremost example of political emancipation, that is, the separation of the social sphere from the political sphere.” That is, the emergence of ‘the state as such’, the pure state, recognising each social individual as a citoyen, a public social being. The other side to this process was the emergence of the privatised social or economic sphere of human lives, the sphere of bourgeois existence. (253) Nygaard notes Marx’s insistence, basic to him and to Engels, that analysis should begin from the concrete and historically specific character of the object, not transhistorical schematism. (254)

Elsewhere, Carchedi’s chapter, mentioned above, proposes a reading of the theory of value as the necessary framework to articulate a theory of subjectivity and knowledge production, a Marxist theory of knowledge as the condition of possibility for a theory of crises. Bellofiore’s chapter, on the other hand, exotically entitled “Chrysalis and Butterfly, Ghost and Vampire: Marx’s Capital as the ‘Gothic critical economy of zombie capitalism,” (41-62, with no references), attempts to assess the nature of contemporary capitalism in terms of ‘centralisation’ without ‘concentration’, whereby financial capital is increasingly central to valorisation and workers’ organisation and struggles are made more difficult by the schizophrenic emergence of the labourer as a ‘traumatised’ worker, a ‘manic-depressive’ saver and an ‘indebted’ consumer.

Finally, this is indeed a rich collection, to be acquired and savoured.

Bill Bowring studied philosophy at the University of Kent, became a human rights barrister, and now teaches international law and human rights at Birkbeck College, London. He is International Secretary of the Haldane Society of Socialist Lawyers, and President of the European Lawyers for Democracy and Human Rights.

18 July 2018

Reviews

URL: https://marxandphilosophy.org.uk/reviews/15992_returns-of-marxism-marxist-theory-in-a-time-of-crisis-by-sara-r-farris-ed-reviewed-by-bill-bowring/

Higher education in danger – presentation at Academic Freedom as a Human Right Workshop, 9-10 June 2018 Ankara

Academic Freedom as a Human Right

Workshop, 9-10 June 2018

Ankara

 

Bill Bowring – notes for

Higher education in danger

 

Common factors.

Populism. Authoritarian and nationalist leaders. Trump, Putin, Erdogan. Netanyahu, Orban, May.

The consequences of intervention in Iraq, Libya, Syria – migrants risking their lives to reach a place of safety. Climate change means that there will be irresistible

Trade Wars. A war between capital in the US, EU, Russia, China.

Brexit for the UK – leaving the EU. May wants to denounce the European Convention on Human Rights, which she sees as protecting terrorists.

Brexit and May’s politics driven by xenophobia and fear/hatred of migrants, as well as the fanatical imposition of marketisation and commodification in education, health, the legal system. Young criminal defence barristers are now on strike.

Income inequality: OECD 2015 – Gini coefficient

Most unequal:

Mexico 0.459

Chile 0.454

Turkey 0.398

USA 0.39

Lithuania 0.381

Russia 0.376

UK 0.36

England

Privatisation of higher education.

Free university education started in 1962. This ended when student fees were introduced under Labour in 1998 at £1000 a year. In 2004 – raised to £3000. November 2010, proposals to increase to £9,000 a year. Mass student protests. 9 December 2010, the student Alfie Meadows. 13 charged, 50 injured. 8 March 2013 Meadows and others acquitted.

£9000 a year, that is a debt of £27000 for a three year law degree. This has created the opportunity for the entry of for-profit institutions. Within 1 km of University of London, BPP University and University of Las. Offering a law degree for the same price. Then the vocational year for qualification as a barrister or solicitor, for £20,000. So a debt of £47,000 when the prospects of entry to the professions are very small.

Of 250 students in the first year, maybe 25 have a real chance of becoming practising lawyers.

Where has the money gone? Not into academic salaries – real cuts of 20% in the last years. Increasingly casualised teaching. Sessional teachers in most subjects who have zero-hours contracts. My PhD student from Iran who is teaching two courses at my university and courses at others, and can barely live. No sick pay, no holiday pay, no job security.

Competition for students between Higher Education Institutions. Expensive building projects, especially Student Centres and other facilities.

“By decoupling the payment of fees from the subsidy of individual universities, and making them cover the full cost of provision, the field has been made attractive to for-profit organisations. The intention, pushed further in the 2015 Green Paper, is to encourage new ‘providers’ offering cheapness and flexibility. But in the eyes of critics it is part of a wider neoliberal programme of opening public services to globalised corporations, paving the way for general privatisation.”

Salaries of more than £300,000 a year for Rectors, 10 times more than academics.

Now a crisis with pensions, from a scheme which gave a fixed pension depending on final salary, to a scheme dependent on investments, maybe losing 20%.

So 14 days of strikes, leading to new negotiations. Loss of salary.

This is the operation of the market, the commodification of higher education, the possibility for private institutions to make huge profits.

UK’s counter-terrorism Prevent policy. Counter-Terrorism and Security Act 2015 (CTSA) imposes a legal duty upon schools, universities, the NHS and other institutions to ‘have due regard to the need to prevent people from being drawn into terrorism’. We have a campaign “Educators not Informants”.

 

Russia

The whole of civil society is under pressure and persecution in contemporary Russia. At the same time, the Federal government is putting substantial resources into raising the international ranking of Russian HEIs.

The European University at St Petersburg was founded in 1994. It is a private post-graduate and research HEI, which exists, basically on donations from Russian big business and on its own capital. It does not receive government money. To begin with it financed itself with grants from American and European NGOs, for example Soros Foundation, MacArthur Foundation, Ford Foundation. The activity of these organisations is now considered undesirable in Russia, and since 2007 EUSP has not received money from them.

According to the last published accounts (2015) EUSP has capital of 382.4 million roubles. Its board of trustees includes the banker Oleg Vyugin, ex-minister of finance, close to Mr Kudrin.

EUSP is considered to be one of the best non-governmental HEIs in Russia. It is the only Russian HEI in the LSE list of 100 best centres of political science. In January 2017 it was awarded top rating by the Russian Ministry of Education and Science, under the yearly evaluation introduced in 2012.

However, in early 2017 it lost both its licence to educate students, and the building it has occupied since 1994.

This is against the background of the assault on civil society which began in 2012, with the Law on Foreign Agents.

From 14 to 18 March 2016 EUSP underwent a check-up by Rosobrnadzor, the Russian state agency for control of education. From 1 April 2016 there was a “complete cessation” of state accreditation for EUSP’s programmes. The university’s leadership announced that this would not affect teaching.

On 6 May 2016 the accreditation of the university was withdrawn.

In June 2016 the Office of the Prosecutor on the request of the Deputy of the St Petersburg Legislature, now a Russian State Duma deputy, Vitaliy Milonov, started another investigation by Rosobrnadzor. 120 violations found. Mostly building faults etc.

22 August 2016 EUSP sent its report in response, about 1,800 pages of documentation.

On 23 August 2016 a further investigation was announced, and EUSP provided 8,500 pages, and 32 violations remained. Rosobrnadzor ordered that work cease on 30 September 2016.

On 20 September Rosobrnadzor forbade EUSP to take new students because of failure to comply with its orders. No new students have been taken since then.

Rosobrnadzor applied to Justice of the Peace courts 4 times. Problems include confirmation of qualifications of lecturers.

9 December 2016 Rosobrnadzor announced the cancellation of the Licence of EUSP. 7 December, forbidden to carry out any kind of educational activity from 7 December. From 14 December students were sent to other HEIs.

After an international protest, on 13 December cancellation of the Licence was reversed.

6 February 2017 EUSP received a letter from Rosobrnadzor withdrawing its objections to attestation of lecturers – and gave its positive evaluation of the qualifications of lecturer-practitioners (not defined)

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