Annotations № 3 (144) / 2022

PUBLIC ISSUES AND POLITICAL SCIENCE

Polyakova T., Smirnov A. (Moscow) Legal support for international information security: problems and prospects

The article examines issues of the formation of a system of legal support for international information security in the context of geopolitical transformations and turbulence. The strategic tasks fixed in the new edition of the Fundamentals of State Policy in the Field of International Information Security are highlighted. The state of the system of international legal regulation of international information security is investigated; the priority directions of the development of this system are substantiated. The article considers the absence of a universal international treaty on ensuring international information security as a main problem of the formation of this system. Attention is drawn to the problem of promoting on the UN platform the conception of the Convention on Ensuring International Information Security presented by the Russian Federation, the adoption of which is blocked by the United States and other unfriendly countries. The authors substantiate a thesis about the fragmentary regulation of the field of international information security by separate universal and regional international treaties, acts of «soft law» and political documents. Special attention is paid to the analysis of the content and nature of voluntary non-binding norms for responsible States behaviour in the ICT environment enshrined in the reports of the UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security.

Key words: international information security, information threats, international law, norms for responsible States behaviour in the ICT environment

Zobnin V. (Moscow) The legal nature of relationships between union republics before the conclusion of the Treaty on the Creation of the USSR

The article reveals contradictory approaches, existing in the Soviet and modern doctrine, to the definition of the legal nature of relationships between union republics before the conclusion of the Treaty on the Creation of the USSR in 1922. The author conducts a legalistic analysis of treaties and agreements between union republics: the Russian Socialist Federative Soviet Republic, the Ukrainian Socialist Soviet Republic, the Socialist Soviet Republic of Byelorussia, the Azerbaijan Soviet Socialist Republic, the Soviet Socialist Republic of Georgia, the Soviet Socialist Republic of Armenia, the Bukharan People’s Soviet Republic, and the Khwarazmi Soviet People’s Republic. The author distinguishes the factors that complicate the determination of the nature of relationships between union republics: the political and ideological influence, the divergence of practice and its legal formalization, the heterogeneous legal status of union republics. The article consistently studies relationships of union republics with Soviet Russia and union relationships within the framework of the Union Treaty of Transcaucasian Socialist Soviet Republics formalized in union agreements. Based on the established differences in the legal status of union republics, the author concludes that the nature of union relationships was heterogeneous.

Key words: USSR creation, RSFSR, union republics, union relationships, confederacy

INTERNATIONAL LAW

Ispolinov A. (Moscow) Strengths and weaknesses of universal human rights treaties

According to conventional understanding, the creation of network of universal human rights treaties and a system of controlling treaty bodies as well as almost universal participation of the states in such treaties is one of the most significant achievements in the sphere of human rights protection and an indicator of the genuine commitments of the states to the values and spirit of the UN Charter. While acknowledging significance and unique character of such treaties and their treaty bodies the author claims that ratification of such treaties in some cases did not lead to the improvement of human rights situation in the countries meaning an existence of some another hidden reasons to ratify these treaties. One of the factors facilitating ratification in such cases is the design of human rights treaties permitting any possible reservation which in fact allows the states unilaterally regulate the scope and depth of the obligations under these treaties. Another factor of such kind for the states is arguable effectiveness and crisis of the controlling mechanism envisaged by these treaties. Arguably it might explain the lack of will and even resistance from the states towards any suggestion to make structural reforms of the treaty bodies system. The policy of priority of the universal participation in human rights treaties over integrity of their texts and over compliance actually means that at least in the middle term perspective a situation with reservations will not be resolved and the current crisis of the treaty bodies system will likely get worse.

Key words: human rights, treaty bodies, reservations, universal treaties, compliance

Lazutin L. (Yekaterinburg) Problems of the temporal effect of certain regimes of international humanitarian law

The article deals with certain problems of establishing time limits for the application of international humanitarian law for situations of international and non-international armed conflicts. A similarity and some normative and practical differences in the application of the legal regimes of different conflicts are noted. The situations of transformation of one type of armed conflict into another are assessed. The author’s position on the beginning and end of the application of international humanitarian law in the armed conflict in Ukraine is presented.

Key words: international humanitarian law, application procedure, international armed conflict

CONSTITUTIONAL LAW AND PROCEDURE

Afonina O. (Kaluga) The concept and legal regulation of conciliation procedures (on the example of the adoption of the federal law on the federal budget)

The article is devoted to the study of the institution of conciliation procedures in financial law. The absence of a legal definition of the concept of «conciliation procedures» is noted and the positions of researchers on this issue are given. The author reveals the essence of conciliation procedures in the budgetary process of Russia and points out the problems of their application in resolving disputes arising from the adoption of the federal law on the federal budget.

Key words: financial legal relations, budget process, federal law, budget, conciliation procedures, conciliation commissions

CRIMINAL LAW AND PROCEDURE

Azarenok N. (Yekaterinburg) Improvement of the procedural order for involvement of a specialist by a defender who has signed a non-disclosure agreement on the preliminary investigation data

One of the main directions of the domestic criminal proceedings is to strengthen the defense lawyer’s powers in the preliminary investigation. The article considers, in particular, such a possibility of a lawyer as the involvement of a specialist. The problem hindering the implementation of the designated competence of a defender is revealed. That is the imperfection of the current mechanism of legal regulation of public relations arising when the lawyer, who is warned of criminal liability under article 310 of the Criminal Code of the Russian Federation, needs to obtain from the specialist a written obligation of non-disclosure of the information about the preliminary investigation in order to involve him in the case and not to disclose this information (paragraph 2 of part 6 of article 161 of the Criminal Procedure Code of the Russian Federation). It is mentioned that, within the framework of a mixed type of domestic criminal process, the investigator remains a «master» of the case who is authorized to make key decisions. It is proved that the involvement of a specialist, being an effective authority of the defender, should not depend on anyone’s discretion. In this connection it is necessary to directly oblige the investigator (inquirer) to satisfy the defender’s request to explain to the specialist indicated by him criminal liability under article 310 of the Criminal Code of the Russian Federation in the order and within the time limits provided for in articles 121 and 122 of the Criminal Procedure Code of the Russian Federation.

Key words: preliminary investigation, secrecy of the investigation, defender, specialist, expert opinion

Gorobets D. (Rostov-on-Don) The criminal legal qualification of refusal to pay taxes by managers who did not directly evade paying taxes

The article analyses the practice of prosecuting persons guilty of tax evasion. The author proposes different approaches to the criminal law qualification of the actions of managers who did not directly evade paying taxes but contributed to this by refusing to compensate for damages caused to the budget; these actions could be considered as complicity or co-execution.

Key words: subjects of tax and criminal legal relations, change of managers, complicity in the commission of tax crimes

Beryoza Z. (Moscow) International approaches to evidential process in domestic violence cases

Notwithstanding the staggering scale of domestic violence around the globe, it is estimated that not all acts of family abuse are reflected in the statistics. One of the reasons therefore is the complexity of evidential process at all stages of consideration of a criminal case, which leads to situations when the victims are not protected adequately, and the assailants do not receive fair punishment. Considering that the States’ obligation to protect victims of domestic violence is the one of not only national, but also international nature, which implies the necessity to implement relevant international standards into national legal systems, the author assumes that evidentiary issues in those standards are not left without attention. The author analyses special international treaties in the sphere of protection of women from violence in order to ascertain the requirements for the evidence procedure in domestic violence cases. In this context, Istanbul and Belen-du-Para Conventions and precedential practice of the European and Inter-American Courts of Human Rights are examined. The author concludes that evidentiary issues in domestic violence cases attract relatively little attention within the framework of international human rights protection mechanisms, and the existing requirements in this sphere are not systematic. Meanwhile, the need for a simplified approach to the evidentiary process, fair distribution of the burden of proof, which does not imply the imposition of excessive obligations on the injured party, as well as adequate activities of law enforcement in terms of proper collection of evidence are almost generally accepted. A separate aspect is a gender approach to the evaluation of evidence in domestic violence cases, including in cases where it is not the assailant but the victim of domestic abuse who is being subjected to criminal prosecution.

Key words: evidence, domestic violence, international treaties, international courts, evidentiary requirements

CIVIL LAW AND PROCEDURE

Nazarova N., Kusakin A. (Nizhny Novgorod) Features of the functioning of the institute of arbitration managers in Russia

The authors consider the functioning of the institute of arbitration managers in Russia and find gaps in its legislative regulation. In particular, they indicate the indefinite legal position of arbitration managers and their ambiguous organizational and legal status. The question of the arbitration manager’s liability in the competitive process is touched upon. The conclusion about the improper provision of arbitration managers with legal guarantees is made. The authors propose to amend the Federal Law on Insolvency (Bankruptcy), in particular, to establish the rules, according to which arbitration managers could not be held legally responsible for lost profits; to allow arbitration managers to conduct competitive events without personal presence; etc.

Key words: arbitration manager, bankruptcy proceedings, bankruptcy, self-regulatory organization, debtor’s property, creditor

PROCURACY SUPERVISION

Mishakova N., Nadin A. (Moscow) Agreements between a prosecution body and local governments on interaction and cooperation: a theoretical and practical analysis

The authors determine the normative legal acts that serve as the basis for the conclusion by prosecution bodies of agreements on interaction and cooperation with local governments, describe the practice of their application, and explore the legal nature of these agreements. The article notes that the agreement on the interaction and cooperation of prosecution bodies with public authorities, based on the will of autonomous entities, ensures the legalization (regulation) of state and other public activities and contributes to the achievement of the public order goals through use of parity (conciliation) structures. Some changes of the current legislation and departmental legal acts of the Russian Prosecutor’s Office are proposed in order to ensure the principle of legal certainty in the relationship between prosecution bodies and local governments as well as to increase the efficiency of supervisory activities.

Key words: Prosecutor’s Office, local government, agreement, interaction, law-making activity, public authorities

ECONOMICS AND LAW

Volkov I. (Tambov) On some aspects of termination of tax obligation

The adoption of a decision on recognizing tax arrears, debts on penalties and fines as uncollectible is considered as an independent basis for termination of tax relationships. A number of law enforcement problems that arise out of such a decision are investigated.

Key words: legal fact in tax law, legally binding legal fact, termination of tax obligation, recognition of a tax debt as uncollectible

Tarasenko V. (Chelyabinsk) Compensation for the use of the main subscriber’s gas pipeline during gas transportation

The article deals with the problem of qualification of relations arising from the fact of unjust enrichment caused by the non-contractual use of a gas pipeline belonging to the main subscriber. The law enforcement practice is based on the position that expenses for maintenance of gas pipelines may be compensated to their owners only as a fee for provision of gas transportation services, which are state-regulated. The author criticizes the mentioned law enforcement practice and proposes the ways of individual (at the level of court practice) and legislative regulation of the relations arising from the use of main subscribers’ gas pipelines for gas transportation, which could ensure a balance of private and public interests of the parties to these relations.

Key words: gas transportation, main subscriber, gas supply, unjust enrichment, burden of property maintenance

LEGAL ASPECTS OF ECOLOGY

Yakovleva T. (Yakutsk) The model of the «environment» concept in ecological law of Russia

The article analyses the conceptual and categorical apparatus of ecological law in order to identify signs, properties, and content of the concept of the environment and its components, establish their relationship and features of legal meaning. The research material is the legislative definitions of such concepts of Russian environmental law as «environment», «natural environment», «natural objects», «natural-anthropogenic objects», «anthropogenic objects», «forest», «land», «subsoil», «soil», «animal world», «water bodies», «atmospheric air», etc. The methodological basis of the study is the method of legal modelling. A brief overview of doctrinal approaches to understanding the environment in Russian science is presented, and directions for improving the conceptual apparatus of ecological law are described.

Key words: modelling, legal model, environment, natural environment, legislation, ecological law

LEGAL HERITAGE

V. G. Grafsky on integral law as a direction in the development of modern legal science (a brief introduction by S. Kodan)

PAGES OF HISTORY

Tumanova A., Bogatyrev G. (Moscow) Continuity of legal mechanisms of social institutions modernization in Soviet Russia in 1917–1929

The reforms of the Soviet government are traditionally considered in science as a radical social experiment. However, the content and methods of social transformation proposed by the Soviet authorities were not unique. The Soviet modernization project in a number of areas was a continuation of imperial modernization. The similarity with the pre-revolutionary stage was most noticeable in those areas where the state did not play an active role before the revolution: civil legal relations, social security, and legal policy towards the public sphere. In the 1920s a balance between strengthening state intervention and activating private initiative was being sought in the field of civil law. The instrument for achieving this balance was the widespread use of the domestic legal heritage and the latest European legal doctrines. Largely due to the state intervention a progressive system of pensions, healthcare, maternity and childhood protection, etc was formed in Soviet Russia. Social security became one of the key functions of the state. The Soviet government returned to the permissive regime for the creation of voluntary societies, which had been in effect until 1906. The relative freedom and independence of the voluntary societies had been replaced by a growing regulation of all aspects of their life after the October Revolution of 1917; the government endeavoured to involve the voluntary societies as much as possible in the implementation of socialist construction plans. The results of these reforms were mixed. The sphere of market relations was narrowed and the development of private initiative and the possibilities of social self-organization were obstructed; however, the Soviet government made noticeable efforts to create a developed social sphere. The common denominator of the reforms was the desire for material progress, based on the increased state intervention in the private and public spheres, as well as the need to rely on traditional social institutions.

Key words: Soviet social modernization, legal mechanisms, civil law, social security, non-governmental organizations

Smirnov V. (Yekaterinburg) «The enemy in the board of defenders» (1937–1939) (continuation)

May 26, 2022 marks the 100th anniversary of the Decree of the Central Executive Committee of the RSFSR on the establishment of boards of defenders. Initially, they united the «best legal forces», and since the mid-1930s they have moved to the backyard of the legal system after personnel purges and repressions. In the summer of 1937, the chairman of the Sverdlovsk Regional Board of Defenders N. F. Ostrovsky, his deputy V. P. Postnikov, chairman of the local trade union committee A. F. Toropova, members of the presidium of the Board V. A. Bryushkov, M. N. Vetlugin, A. N. Kuznetsov, chief accountant I. I. Zalevsky, defenders N. E. Ilyin and N. I. Korpachev were arrested. The last six fell under the order No. 00447 of the People’s Commissar of Internal Affairs of the USSR N. I. Yezhov from July 30, 1937 «On the operation to repress former kulaks, criminals and other anti-Soviet elements». The troika of the Sverdlovsk NKVD sentenced five of them to execution, and V. A. Bryushkov was sentenced to ten years in a camp. All were rehabilitated in the 1950s. Ostrovsky, Postnikov and Toropova, according to criminal case No. 3098, were held as members of a «subversive counter-revolutionary group associated with representatives of the right». The investigation materials were sent to a special meeting at the NKVD of the USSR, but they decided to take the case to court. It was considered on September 11–16, 1939 in Sverdlovsk on a visiting session of the Chelyabinsk Regional Court. All the defendants were acquitted after serving more than two years in prison. The pages of that case mirror the situation of the 1930s and the place of the defendants, assigned to it by the authorities, among other legal institutions. The current article is a follow-up of the article «Red Terror in the Urals (1923–1940)» published in the 1st issue of the journal for 2018.

Key words: enemies of the people, order of the USSR NKVD No. 00447, simplified investigation, troika, troika, Special Council of the USSR NKVD, execution, rehabilitation, Sverdlovsk Regional Board of Defenders