Crushed hopes

The law enforcement practice has not improved. Half-hearted steps in this direction have been ineffective and contradictory (as with the amendments designed to reduce the arrests of business people). But things have deteriorated in other directions. The adoption of the amendments to expand the FSB powers bears this out.

On July 29, Russian President Dmitry Medvedev signed into law a bill introducing amendments to the Federal Law on Security and to the Russian Federation’s Code on Administrative Offenses, expanding the powers of the Federal Security Service (FSB). The State Duma and the Federation Council have already approved this law. This is a strange move considering that earlier Medvedev positioned himself as a fastidious lawyer.

The logic behind these amendments is that they give the FSB the right to subject citizens who do not comply with legal requirements by FSB personnel to administrative arrest or other administrative punishment. The law also allows the FSB to issue mandatory warrants to prevent crimes if it decides that particular conditions pose a security threat. This is a very general formula that gives the FSB the right to act as it sees fit.

The original draft included a scandalous idea, not present in the final version, under which the failure to observe a warrant could also be punished by arrest. However, it is not clear now how compliance with mandatory warrants can be ensured. If a failure to comply with a law carries no penalty, the law is pointless. But if there is some liability, the punishment will not be legal because this is punishment for the deed without there being any corpus delicti.

Maybe this issue of punishment for the failure to abide by a mandatory warrant will soon be raised again because in its final version the law nonetheless includes the fact that failure to observe a warrant is tantamount to the violation of law. In this sense the law is an attempt to enhance the repressive powers and functions of the FSB. Thanks to the efforts of human rights champions and the public in Russia and abroad this attempt remains somewhat half-hearted.

The appearance of the original draft in the State Duma and its adoption in the first reading is highly indicative. In its original version the draft envisaged direct responsibility for deeds that are not currently qualified as breaking the law in Russia. In effect, this is not legal, if we interpret legality as the system to implement society’s ideas of justice, here meaning those fundamental traditions on which the European justice system as a whole is based.

The adoption of delegated legislation may be politically possible on occasion, but it should be borne in mind that these are non-legal acts that undermine the entire system of law. Like bacteria, they destroy the entire system of law in society that exists today. There are some famous historical examples of societies that had their own systems of legality, for instance, socialist legality, which was based not on the general humanitarian idea of law, but on the law interpreted as in the interests of definite social and political groups. To a certain extent, we are also moving towards certain bureaucratic legality in today’s Russia.

It is good that the law was not adopted in its original, scandalous form, even though this has provoked confusion and contradiction. Interestingly, Medvedev either could not prevent its adoption or decided not to, which would be logical under the circumstances. This demonstrates the extent of his political influence where the interests of the law-enforcement bodies are at stake. Moreover, the adoption of a law that is vague and contradictory, in this country where the law-enforcement bodies are in fact out of control, not only does nothing to reign it in, but even makes it seem legitimate.

The signing of this law and the resignation of Ella Pamfilova, the Russian presidential human rights council chief have become the symbolic end of this political season. It started in September 2009 with Medvedev’s article “Forward, Russia.” This article raised many hopes and prompted many debates but during this year the claim made in this article has been considerably if not entirely devalued. Medvedev has failed to formulate any agenda based on what the article contained, or take any practical steps towards resolving the issues he raised in it. The law enforcement practice has not improved. Half-hearted steps in this direction have been ineffective and contradictory (as with the amendments designed to reduce the arrests of business people). But things have deteriorated in other directions. The adoption of the amendments to expand the FSB powers bears this out.

Kirill Rogov is Head of the Subdepartment of Social and Political Communications, Department of State Administration, the Russian Government’s Academy of the National Economy; Co-Founder and Chief Editor of Polit.ru, an Internet publication (since 1999)