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Декабрь 2021



Chief editor’s column



Interview of the issue


The Event. Comments of the Experts


Topic of the issue

Natalia A. Lopashenko On Criminal Punishments in Russia: Notes on the Margins of the Criminal Code (from the Present Time to the Future)
The author proposes the critical review of the current system of punishments in Russian criminal law. Firstly, she argues that this system includes too long a list of punishments and may be shortened by way of excluding or combining some of them. Secondly, the system is disbalanced, so that punishments are listed not in accordance with their gravity. Following her original methodology, she proposes a correct system of punishments based on their gravity. The second part of the article is concerned with the main problems in legislative formulation of some punishments. Lastly, the author argues in favour of creating a special system of measures of social defence in Russian criminal law. Long-term and life imprisonment should be included into such measures.
Keywords: punishment, system of punishments, measures of social defence, sentencing, purposes of punishment
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Vadim M. Zaripov Is Taxpayer’s Liability for Counterparty Proportionate?
Having established that the seller, being a fly-by-night company, does not pay taxes, tax authorities acknowledge buyers negligent in choosing the seller and thus deny them the right to deduct VAT and to claim expenses when calculating income tax. However, since buyers have no control over the seller, the denial of deductions and expenses imposes on them penalties, not taxes. The amount of such responsibility exceeds the amount of underpayment by several times and therefore is clearly disproportionate, which violates the requirements of Article 55 of the Constitution. The situation is aggravated by the facts that this responsibility is not established by law, and that persons who create and control shell organisations, i.e. real tax beneficiaries and criminals, are not prosecuted by tax and law enforcement authorities.
Keywords: legal responsibility, proportionality of responsibility, tax benefit, tax schemes, fly-by-night companies
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Aleksandr P. Evseev The Problems of Proportionality of Punishment in the Practice of the Organs of International Criminal Justice
The article is devoted to the problems that arise when judges of international criminal courts and tribunals try to take into account the general legal principle of proportionality when imposing a sentence. The author consistently analyses the practice of the International Military Tribunals in Nuremberg and Tokyo, ad hoc international criminal tribunals, the International Criminal Court and a number of internationalised (hybrid) courts for the proportionality of their decisions. Particular attention is paid to the regulations governing the system and types of punishments under international criminal law. The article highlights the general patterns that characterise the punitive policy of the international criminal justice authorities. Along the way, the author examines the procedural features that characterise the consideration of criminal cases at the international level. The paper concludes that the relevant ‘punitive’ practices will be humanised while maintaining the tendency to impose long prison sentences up to life imprisonment in cases where crimes are numerous and are committed by superiors.
Keywords: international criminal justice, proportionality of punishment, International criminal court, international criminal tribunals ad hoc
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Elena A. Yurishina Typical Practices of Judicial Investigation and Sentencing in High-Profile Criminal Cases
This article examines high-profile criminal cases from two perspectives simultaneously — the criminal proceedings view and the sociological one. The author aims to show 1) highlights of contemporary research field on the topic of high-profile criminal cases and public attention, and 2) analyse how and by what criteria a high-profile criminal case in Russia deviates from the way cases are resolved in the vast majority of examined cases. Examples from the six-year field study back each distinguishing criterion. The paper is divided into four paragraphs: introduction setting out the problem, description of the research field and methodology, main distinctive criteria explication and conclusion. The leading paragraph narrows formal proceedings rules from the Russian Criminal Procedure Code and how parties follow them in different situations. She uses practical examples to show how judges deal with the intention of the defence party to introduce new evidence, and the quality of judicial reasoning. From a sociological point of view, another essential aspect to consider is the interaction between a judge and a defence party. Finally, the article gives examples of different judges’ reactions to the aggressive behaviour of accused and their attorneys. The author ends up with the hypothesis that the public scrutiny — combined with several anomalies uncommon in a standard closed-door trial — may influence the final punishment. A high-profile criminal case, in its essence, presents a zero example, and the analysis of its anomalies and deviations can indicate the main problems inherent in closed-doors trials. The research findings can be used in the following studies on highprofile justice or the specifics of Russian law enforcement and practical strategy planning — for example, for attorneys.
Keywords: high-profile criminal case, evidence for the defence, sentencing, reasoning part of judgement, socio-legal studies
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Ekaterina A. Khodzhaeva Do Judges Punish the Defendant’s Choice of the Trial by Jury? Evidences from Recent Jury Reform in Russia
Most studies in the USA show that judges grant severe penalties in trials especially in jury trails comparing the plea. In Russia, court statistics shows the similar trend has been performed as by regional courts since 2014 just in the context of the decline in both the jurisdiction of jury trials and the number of jury cases. However, since mid-2018, jury trials have expanded their jurisdiction on the district courts, causing large logistical and time costs. Jury in Russia grant the acquittals hundred times more frequently than professional judges alone and this stimulates defendants to choose jury trials. Simultaneously, the court statistics shows that district courts punish more severely regardless of whether the jury has returned guilty verdict with the possibility of leniency or without it. Expert interviews with judges held in 2019-2021 discover that this sentencing policy has two main motives: first, to compensate with more severe punishment for the resources, time and risks that the defendant caused to judiciary and prosecution by his/her motion for a jury trial, and the second — use the policy of sentencing as a factor deterring other defendants from choosing jury trial.
Keywords: criminal justice in Russia, jury trial, sentencing, courts’ statistics
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Discussion Board

Nikolay A. Dmitrik Corporations in Their Right
The article analyses the current problems of creating rules and legal systems by transnational corporations. The author examines the characteristics of transnational corporations as global lawmakers, the framework in which their law operates, the main participants of this framework, and the relationship between them. Based on the results of the analysis, principles of ‘digital citizenship’ were developed, allowing the creation of fair rules of interaction between transnational corporations and their users.
Keywords: transnational corporations, international law, economic concentration, antitrust policy, digital citizenship
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Ivan A. Klepitskij Issue Estoppel and Res Judicata in Contemporary Criminal Procedure
‘Prejudicia’ (issue estoppel) in Russian criminal proceedings is a rule according to which the facts already established by a court decision in any (criminal, civil and administrative) legal proceedings could not be challenged in another case. This rule is linked to the ‘legal force’ of judicial decisions. Apologists for this concept often refer to foreign experience and practice of international courts in its justification. This article contains the results of the validation of such argumentation, and concludes that the arguments of the apologists are not based on facts. ‘Prejudicia’ as it is usually understood in Russia does not exist either in the Romano-Germanic legal tradition or in the common law family. ‘Prejudicia’ in its Russian understanding revives the theory of formal evidence and complicates the establishment of the truth in criminal proceedings. On the one hand, it entails a multiplication of errors in the form of unjustified criminal prosecution. On the other hand, it allows using courts for criminal purposes, thus denying victims access to justice. The situation is aggravated by the fact that it is frozen by the decision of the Constitutional Court. Recommendations for solving the problem are suggested for discussion in this article.
Keywords: criminal procedure, evidence, ‘prejudicia’ in Russia, issue estoppel, prejudicial issues, res judicata, Italy, Spain, France, Germany, England, USA, Russia, international courts
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Kseniya А. Barysheva, Fatima F. Mamedova The Criminal-Legal Significance of the Consent of the Minor in the Exercise of Somatic Rights
The article is devoted to the concept of somatic human rights, examines the possibilities of their implementation by persons who have not reached the age of majority, depending on the age and type of somatic rights. The right to informed voluntary consent to medical intervention is considered. The article reveals the criminal-legal significance of the consent of a minor to cause harm in the exercise of somatic rights, in particular, the right to artificial termination of pregnancy, donation, modification of the body for aesthetic or other purposes. Regarding the right to engage in sexual contact, it is concluded that the state significantly restricts the freedom of a person, being guided by certain ideas about traditional values. Authors conclude that it is necessary to bring prohibitions that are currently established by the criminal law into the line with the age of minor which can give the right to dispose of himself.
Keywords: somatic human rights, consent of victim, artificial termination of pregnancy, somatic modification, patient informed consent
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Olga P. Pleshanova Hopelessness. Dot. Ru
QR-codes — Consumer rights protection — Inflation and stock market fall — XI Moscow legal week — Civil law as an elusive reality — Advocates as taxi — Status of cryptocurrency miners and cryptocurrency turnover — Penitentiary thriller — YUKOS forever — The shadow of “The long bucket night” — Bullying in schools — Persecution of comedians and rappers
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Theory and practice

Anna А. Markelova, Anna V. Karachun Regulatory Takings in Russia and Foreign Countries (Part 2)
The article is the second part of research devoted to the doctrine of “regulatory takings”. This doctrine justifies the possibility of extending the constitutional principle of sanctity of property rights not only to cases of their forced termination in the name of public interest, but also to cases of their significant restriction by way of changing legal regulation in public interest, too (land law, urban planning, environmental law, other public restrictions). In the first part of the article foreign experience has been examined using the example of the United States and Germany. The second part shows how this doctrine applies and can be better applied in Russia.
Keywords: regulatory takings, principle of inviolability of property rights, expropriation, compensation, public restrictions
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Yuliya V. Gracheva, Aleksandr I. Chuchaev The Purposes of Punishment in Legislation, Theory and Public Opinion: The Real and Illusory Ones
The principal questions related to the purposes of punishment, that is their number, relevance, evolution, legislative approach to them etc. are analysed. Special attention is given to Russian criminal law science of XIX and the beginning of XX centuries. The authors give a critique of some proposals related to list of the purposes of punishment, their reshaping or renaming, accepting revenge as the purpose of punishment, creating the main purpose of punishment in criminal legislation, etc.
Keywords: theories of punishment, purposes of punishment, correctable and uncorrectable criminals, revenge, deterrence, rehabilitation, general prevention, special prevention
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