KAZAN UNIVERSITY LAW REVIEW, 2018, том 3, № 1


KAZAN UNIVERSITY LAW REVIEW ■ Volume 3, Spring 2018, Number 1





            TABLE OF CONTENTS


   Damir Valeev (Kazan, Russia) Welcoming remark of the Editor-in-Chief ..................................3

ARTICLES:

   Olga Alexandrova (Moscow, Russia)
   Anti-corruption policy as an institutional framework for countering terrorism..................................................7
   Richard C. Chissoe (New-Mexico, USA)
   Pueblo Lands and the Spanish Land Grants: A Punishment and an Accommodation ................................................... 16
   Aleksander Epihin (Kazan, Russia)
   Andrey Mishin (Kazan, Russia)
   Problems of improvement of security of participants of criminal procedure in Russia ........................................ 29
   Micha! Patryk Sadiowski (Warsaw, Poland)
   Selected actions and draft reforms of the Provisional Government concerning working class relations in 1917 ............................. 47
   Olga Kuznetsova (Perm, Russia) Private-public coercion in Civil Law ................................... 59

COMMENTARIES:

   Anastasiia Moskvina (Izhevsk, Russia)
   Party choice of lex mercatoria in International Commercial Arbitration . 71
   Lilia Sungatullina (Kazan, Russia)
   Lyaisan Mingazova (Kazan, Russia)
   Legal regulation of the activity of industrial parks: issues and trends....................................................... 87

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CONFERENCE REVIEWS:

    Yuri Lukin (Kazan, Russia)
    Yulia Nasyrova (Kazan, Russia)

   Review of the II International Scientific and Practical Convention
   of Undergraduate and Graduate Students “Revolution in Law:
   Breakthrough Ideas in Modern Russian Law
   (on occasion of the Centenary of the October Revolution)” ..... 100

   Elena Bazilevskikh (Kazan, Russia)
   Denis Khairullin (Kazan, Russia)
   Daria Kuznecova (Kazan, Russia)
   Review of the annual awards ceremony of Republic of Tatarstan
   “Lawyer of the Year” and Russian Legal Award named by Gabriel Shershenevich ...................................... 108

KAZAN UNIVERSITY LAW REVIEW ■ Volume 3, Spring 2018, Number 1






                ARTICLES





                                 Olga Alexandrova

                                 Rector of the All-Russian State University of Justice (RLA of the Ministry of Justice of Russia), Candidate of Legal Sciences



            ANTI-CORRUPTION POLICY AS AN INSTITUTIONAL FRAMEWORK FOR COUNTERING TERRORISM



DOI: 10.30729/2541-8823-2018-3-1-7-15

    Abstract: The article conceptually substantiates that corruption destructively affects the state of national security of the state as a whole and yet is one of the main negative legal and socio-economic phenomena that cause the growth of terrorist threats. The purpose of the research is to identify the internal cause and effect relationship of terrorism and corruption, develop directions for building anti-corruption activities in the area of strengthening the fight against terrorism. In the course of the analysis, the conclusion is drawn that corruption and terrorism presuppose the presence of rather definite destructive ideologies that, on the one hand, justify the commission of specifically targeted crimes, and on the other, mobilize persons inclined to commit them. In conclusion, the author summarizes her research, pointing out that in today’s society a serious reevaluation and further improvement of anti-corruption activities is required, which will certainly contribute to effective counteraction to terrorist threats.
    Key words: anti-corruption policy, terrorism, corruption, organized crime, prevention, counteraction to the ideology of corruption and terrorism.


    Among the main measures ensuring national security in the modern world is strengthening the role of the state as a guarantor of personal security and property rights and improving the legal regulation of crime prevention activities in general, as well as corruption, terrorism, extremism and organized crime in particular.

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   According to the National Concept¹, the main task of counteracting terrorism is to identify and eliminate the causes and conditions that contribute to the emergence and spread of terrorism, that is, its prevention. Therefore, in order to ensure that the state policy in the field of counterterrorism continues to be effective, it is necessary to constantly explore and identify the main determinants of modern terrorism and skillfully influence them with a view to minimize and phase them out.
   At this moment, the causes of terrorism are not geopolitical, but rather socioeconomic. One of the main negative social and economic phenomena that generate terrorism is corruption. The phenomenon of corruption is known to our society since ancient times. It is obvious that manifestations of corruption are among the most dangerous factors of public life, which destructively affect the state of national security of the state as a whole. However, the main danger of corruption is its destructive impact on the foundations of the state structure and the constitutional basis for the legal regulation of society’s life. The global scale of corruption creates favorable conditions for the creation of domestic sources of financing for terrorist and extremist activities.
   In May 2016, the Vienna International Anti-Corruption Academy hosted a special session of the UN Commission¹ ² dedicated to investigating the relationship between corruption and terrorism, where, in particular, the view was expressed that it was the destructive influence of corruption that promoted the growth of terrorism.
   Corruption, shaking the foundations of the statehood, creating the illusion of permissiveness in society, acts as a factor conducive to the development of terrorism, destructively influencing the political and economic systems, the army, law enforcement agencies, etc.
   In the framework of the above-mentioned event, it was also noted that corruption contributes to the creation of conditions in which terrorism flourishes abundantly. According to experts, punishing corrupt officials, uprooting corruption, it is possible to inflict decisive blows on terrorism³, and it is difficult to disagree with such a point of view.
   Corruption crime in any society is intertwined with other antisocial manifestations and, above all, with organized crime, shadow economy and terrorism, being at certain stages, on the one hand, the source of their financing, and on the other, is itself financed by them.⁴

¹ The concept of counteracting terrorism in the Russian Federation (approved by the President of the Russian Federation on October 5, 2009) // Russian newspaper, № 198, 20.10.2009.

² http://www.un.org/russian/news/. Reference date 15.01.2017

³ Commission on Crime Prevention and Criminal Justice. Twenty-fifth Session. Statement by the International Anticorruption Academy. Vienna. Austria. 24 May 2016. P. 2.

⁴ See: Stepanoj E. Countering the Financing of Terrorism // International Processes. - Volume 7. - 2009. -№1 (19); VAHANIJA V. Non-profit organizations and their connection with the financing of terrorism.// Criminal Law. - 2004. - №1; LUKASHUK I.I. International law. General part: textbook. М.: BEK, 1997. - P. 165; Ivanov E.A. The system of international legal regulation of combating the legalization (laundering) of criminally-obtained income: Thesis Diss. Doctor in Legal Science. М., 2001.- P. 141-149.

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    Thus, terrorism and organized crime take the form of a single whole, where organized crime often plays a leading role in the formation and operation of terrorist structures. At the same time, organized crime is a form of crime characterized, among other things, by links to government bodies based on corrupt mechanisms.¹
    Some authors¹ ² in their works note that the documents of the UN Secretariat indicate the corruption of organized crime. Organized crime, including terrorism, is not feasible without corrupt ties.
    However, it should be noted that corruption is by no means the only factor contributing to the intensification of the terrorist threat. Other factors also play a significant part: the radicalization of Islam, extremist sentiments, and a combination of these factors with economic tension in the society, that also lead to similar negative consequences.
    In this regard, the most important task in the study of this topic is analysis of the internal cause and effect relationship of terrorism and corruption, as well as study of the directions of building anti-corruption activities in the area of strengthening the fight against terrorism.
    Corruption and terrorism are not isolated social phenomena. They are in interrelation, and in some cases are the reason for formation of favorable conditions: corruption for terrorism, and terrorism for corruption. This interrelation is currently characterized by the fact that it becomes institutionalized, that is, rather stable relations are formed between different, previously (in historically preceding periods) non-contiguous asocially minded social groups (corrupt bureaucracy and terrorist groups and organizations). And it is characteristic that each of these social groups looks for achieving those unlawful goals that they set for themselves in interaction with each other. This is despite the fact that these goals differ: in one case, it is illegal enrichment, in another it is the destabilization of society, the imposition of political decisions through the use of various forms of violence.
    Terrorism for corruption is a growth medium through which it is possible to receive significant material benefits. Moreover, this aspect of interaction between terrorism and corruption has been drawing attention for quite some time. Thus, when investigating terrorist acts in Moscow in the fall of 1999, it was established that explosives with a mass of more than 14 tons were made by handicraft in Krasnodar Territory and from there were brought to commit crimes³. And already then the question was raised about how such a large volume of explosives was transported around the country without any obstacles.
    It is quite obvious that the origin of the money given to the corrupt official as a bribe and the goals pursued by the person who transfers them have no significance for the

¹ See: Big Law Dictionary / Ed. by Professor A.Ya.Sukharev. - 3-d enlarged ed. - М., 2007. - VI. - P. 658.

² See: GRIGOR’EV A.A. The relationship between terrorism and organized crime and corruption. // Management issues. Access mode: vestnik.uapa.ru.

³ The explosion of an apartment house on Kashirskoye // RIA News, 13 September 1999 [Electronic resource]. - Access mode: https://ria.ru/spravka/20140913/1023703052.html.

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official. The decisive argument here is the size of these funds. The corrupt official is indifferent to any human values, and therefore he or she can fully assist any antisocial phenomena including terrorism. Terrorism and corruption are antisocial phenomena that are destructive in nature: despite different goals, they both seek to destroy the foundations of the state, its structure, only using different methods and means, which certainly creates the prerequisites for their interaction.
    It should be noted that the statement about the interaction of corruption with terrorism, nevertheless, needs a clause. Corruption is patchy, and therefore not all its types are equally capable of contributing to the development of terrorism. From this point of view the most dangerous one is the systemic corruption. It is formed by dishonest officials and functions in the way when the whole structure is oriented not to the solution of state problems but exclusively to personal enrichment.
    In the recent history of Russia there are precedents, when this type of corruption was one of the reasons for extremist and separatist sentiments of entire regions. Everyone remembers that the Chechen issues followed after major financial frauds with the advice notes. In the era of so-called “wild capitalism” when almost everyone wanted to earn as much as possible, and state control was at a minimum, it turned out that getting the forms of advice notes and related information was easy enough. This could have been just a bribery of employees of cash settlement centers.¹ Significant financial resources, derived from the crimes committed, went to finance the activities of bandit formations and the commission of terrorist acts. Moreover, the distribution of extremist, terrorist and separatist ideas was in fact only a cover in order to conceal the desire of corrupt officials to evade criminal responsibility. These corrupt officials were united by a system which gave them the opportunity to strongly resist the identification and exposure of its members.
    As noted in the works of well-known criminal law experts,¹ ² terrorism has a public character, which is true in the view of the peculiarities of the construction of the relevant corpus delicti.
    However, on the other hand, terrorism, like corruption, is characterized by the secrecy (conspiracy) at a certain stage. Terrorism often uses those corruption links that can ensure not only the peaceful existence of the terrorist group or organization, but also create new channels for financing terrorist activities. Such connections allow terrorists to covertly move considerable money, both on the territory of the country and abroad; create conditions where law enforcement bodies do not notice the activities of terrorist associations at certain stages; allow involving corrupt officials for solving specific problems, etc. Corruption, in our opinion, made it possible to secretly form terrorist organizations of nationalists who actively participated in the coup in Ukraine in

¹ Chechen advice // Myrta. Reading room [Electronic resource]. - Access mode: http://myrt.ru/public/892   chechenskie-avizo.html.

2

   Rarog A.I. The Criminal Code of Russia against Terrorism // Lex Russica. 2017. № 4. P. 160; Emelyanov V.P.
   Terrorism as a phenomenon and as a component of a crime. Kharkov, 1999. P. 26. See also: EMELYANOV V.P.
   Terrorism and crimes with signs of terrorism: criminal law study. St. Petersburg, 2002. P. 36.

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2014. According to the Ukrainian media, it is for certain that the formation and training of the above-mentioned terrorist organizations was facilitated by law enforcement officers themselves, including state security bodies. For instance, V.A. Nalyvaichenko, who occupied the highest posts in the structure of the Security Service of Ukraine at various times, was in the closest connection with the militants of the “Right Sector”, as well as with other nationalist organizations. Moreover, he participated in organizing the training of militants, who later were involved in the Maidan.¹
    It is quite obvious that such interaction with terrorist organizations by high officials is often not a disinterested act. In this case, there is a mutual use of opportunities, both by terrorist organizations, and by relevant high-ranking corrupt officials.
    The logic of criminal activity in this situation is quite simple and consists of the fact that the achievement of this goal justifies any actions taken and committed. It allows officials involved in corruption relations, without any remorse or looking back at moral principles, to start connections with terrorists. The main thing for them in this case is getting illegal income. There are quite obvious moral (or rather immoral) prerequisites for the entry into contact with terrorists and persons sharing extremist views. The institutional foundations of terrorism also show themselves in this aspect, as relations, which manifest indifference to humanistic values that prevail in modern society, are formed.
    It is legitimate to assert that corruption presupposes the existence of a certain ideology justifying the commission of other unlawful acts. It is based on the seemingly obvious views. For example, the belief that corrupt activities are intended to make up for the insufficient payment of the relevant official. This and similar views become corrupt dogmas, which gradually supplant the generally accepted moral ideas. Gradually, not only ideology is formed, but also a special kind of morality, inherently destructive, because it not only justifies but encourages corrupt practices. That is, as ideology is supposed to do, it effectively influences consciousness of certain people, pushing them to active actions of a corrupt orientation.
    Ideology is also a characteristic of terrorist activities. According to the Art. 3 of Federal Law “On Counteracting Terrorism”,¹ ² terrorism is the ideology of violence. It affects the mind with the purpose of zombifying and transforming a person into an instrument for resolving definite political tasks. The ideology of terrorism contains primitive ideas and views, largely based on human fears and instincts. For example, the basis of nationalist ideas focused on appeals to terrorist activities is the fear that a specific national community may be deprived due to unjust actions on the part of other ethnic groups and nationalities. Often this is a formed sense of deprivation. At the same time, this ideology tends to

¹ Right Sector: the organization and activities of the main forces of the coup. [Electronic resource]. -Access mode: http://zarodinu.org.ua/page/675.

2

   Federal Law of 06.03.2006 No. 35-FZ “On Counteracting Terrorism” // Collection of Legislation of the Russian Federation, 13.03.2006, No. 11, Art. 1146.

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be as understandable and accessible as possible, for which it resorts to simplifying the situations that develop in the domestic political life of the country. Furthermore, in order to increase the attractiveness of terrorist activities, its ideologists resort to symbolism designed to glorify the bearers of relevant ideas. Symbolic is one of the instruments for “zombification” the consciousness of the people, turning them into a means of achieving quite definite political goals.
    Consequently, both corruption and terrorism presuppose that the actors have a very definite ideological orientation, which, on the one hand, justifies the commission of specific crimes, and on the other hand, mobilizes persons inclined to commit them.
    However, both ideologies, in our opinion, are quite compatible, since they consider a specific person only as an instrument to achieve certain goals: it is unreasonable enrichment in corruption; and in terrorism - influencing decision-making process by government bodies or international organizations. Both ideologies are inherently destructive, as the result of their spread is only the collapse of society and the state, and not the improvement of their individual institutions and bodies, as often proclaimed by other ideologies. Therefore, due to the destructiveness of ideologies, we can conclude that corruption and terrorism are close enough to each other.
    Moreover, it should be noted that corruption creates social conditions that contribute to terrorism, its ideology and activity. Thus, corruption leads to underperformance of state bodies. They stop reacting on time to problems and solving them. At first their work is seen as bureaucratization with its overwhelming formalization and red tape in making decisions in important situations. Then it starts to irritate, because it becomes obvious that state bodies stop justifying their existence. Moreover the work of the state bodies start to entail multiple mistakes and power misuse by the officials. That leads to the situation when population feels that state bodies live their own life, which is far apart from the needs of common people, who have to live on their own. This way corruption contributes to the rise of social tension, which is a fruitful soil for the growth of terroristic ideas and movements.
    Corruption is especially dangerous in the law enforcement agencies and courts. In that case law enforcement agencies turn out to be unable to respond quickly to the so-called “widely publicized” crimes and felonies and do not promote social justice when citizens expect it from them. Usually it is a consequence of the phenomenon which was already mentioned in this work. It is called a system corruption and it unifies all the unlawful activity of the officials in different law enforcement bodies. When such corruption becomes widely practiced, people lose their faith in justice and they feel the desire to find it beyond the existing government institutions. And that is what the leaders of terrorist ideology rely on. They try to exaggerate the impression of injustice, weakness of state authorities and to offer their allegedly fairer model of court system, state and society as a whole.
    This leads us to conclusion that corruption creates a congenial climate among people for development and spread of extremism and terrorism, which acknowledge only the

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supremacy of violence and usage of the most radical means of achieving of terrorist aims. Therefore corruption becomes an institutional base for terrorist ideology, and consequently, terrorist actions.
    To a large extent the conditions for extremist and terrorist ideology are being created by social inequality among people which is partly a result of corruption. One of the conditions promoting inequality is offshoring of capital. Firstly, it creates the status of anonymity of the owner of this capital. Secondly, it gives opportunity to hide income criminally obtained. And thirdly, it creates a possibility of using money for sponsoring crime. This feature of offshores is appealing to both corrupt officials and to terrorist organizations. Via offshores terrorist organizations are able to pay the officials who “provided services”, without which crimes could not be prepared and committed. And there can be cases when terrorist organizations are receiving “replenishment” via offshore accounts. Therefore the illicit relations between terrorist organizations and corrupt officials using offshore accounts become obvious.
    Of particular note is that offshores facilitate a great concentration of money and other values in hands of a small group of people which leads to social stratification. At the same time living beyond one’s means is conspicuous, it creates social discontent and feeling of inequality and injustice which is a favorable condition for promoting extremist and terrorist ideology. Unfortunately it is hard to give the examples when offshores are linked with terrorism. This is due to carefully hidden financial flows where it is difficult to identify either the direction of the money flowing or its source.
    However a conclusion can be drawn that frequently the direct purpose of the offshore functioning is concealment of proceeds of crime.
    One can see the link between corruption and extremist-terrorist ideology through the example of ex-mayor of Makhachkala Said Amirov. Being a high-ranking official, he created a criminal group which not only committed a series of corruption-orientated crimes, but also acted violently against political rivals and other oppositionists of ex-mayor.
    In particular, this organized criminal group prepared and committed an assassination of the official of Investigative committee of Russia Arsen Gadzibekov¹. The investigation revealed that during preparation for crimes this group had acquired an anti-aircraft missile system and had planned to shoot down a plane* ². The activity of this criminal group represents a symbiosis of corruption and terrorist actions of organized crime, when corrupt officials found a certain territory and sphere of influence as a source of illegal money.
    Summing up we come to the conclusion that the inner factor contributing to the genesis and spread of extremism and terrorism in Russia is insufficient efforts in adopting

   Aliyev T. The mayor of Makhachkala was officially indicted // Rossiyskaya gazeta [Russian newspaper], 04.06.2013 [E-database] - https://rg.ru/2013/06/04/reg-skfo/prediavleno-anons.html

2

    Larina A. The assistant prosecutor will be convicted for terrorism // Rossiyskaya gazeta [Russian newspaper], 10.09.2014 [E-database] - https://rg.ru/2014/09/10/reg-ufo/proces-anons.html.

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and implementing measures aimed at fighting organized crime and corruption. Only creation of effective mechanism of counteracting corruption and organized crime will allow our society to anticipate considerable success in counteracting terrorism in the long run. It can be surely stated that anti-corruption activity is an institutional basis for fighting terrorism.
    In view of the above, we think that on a national scale a serious reflection and further development of anti-corruption measures have to take place, and that will effectively broaden our options in the sphere of fighting terrorist threat.

    References

1.   Aliyev T. Mjeru Mahachkaly pred’javleno oficial’noe obvinenie [The mayor of Makhachkala was officially indicted] // Rossiyskaya gazeta = Russian newspaper, 04.06.2013 [Electronic resource] - https://rg.ru/2013/06/04/reg-skfo/prediavleno-anons.html. (in Russian)
2.   Bol’shoj juridicheskij slovar’ [Big Law Dictionary] / Ed. by Professor A.Ya.Sukharev. -3-d enlarged ed. - М., 2007. - VI. - P. 658. (in Russian)
3.   Emelyanov V.P. Terrorizm kak yavleniye I kak sostav prestupleniya [Terrorism as a phenomenon and as a component of a crime]. Kharkov, 1999. P. 26. (in Russian)
4.   Emelyanov V.P. Terrorizm i prestupleniya s priznakami terrorizirovaniya [Terrorism and crimes with signs of terrorism: criminal law study]. St. Petersburg, 2002. P. 36. (in Russian)
5.   Grigor’ev A.A. Vzaimosvjaz’ terrorizma s organizovannoj prestupnost’ju i korrupciej
     [The relationship between terrorism and organized crime and corruption.] // Voprosy upravlenija = Management issues. Access mode: vestnik.uapa.ru. (in Russian)
6.   Ivanov E.A. Sistema mezhdunarodno-pravovogo regulirovanija bor’by s legalizaciej (otmyvaniem) dohodov, poluchennyh prestupnym putem [The system of international legal regulation of combating the legalization (laundering) of criminally-obtained income]: Thesis Diss. Doctor in Legal Science. М., 2001.- P. 141-149. (in Russian)
7.   Larina A. Pomoshhnika prokurora osudjat za terrorizm [The assistant prosecutor will be convicted for terrorism] // Rossiyskaya gazeta = Russian newspaper, 10.09.2014 [E-database] - https://rg.ru/2014/09/10/reg-ufo/proces-anons.html. (in Russian)
8.   Lukashuk I.I. Mezhdunarodnoe pravo Obshhaja chast’: uchebnik [International law. General part: textbook] . М.: BEK, 1997. - P. 165. (in Russian)
9.   Rarog A.I. Ugolovniy kodeks Rossii protiv terrorizma [The Criminal Code of Russia
     against Terrorism] // Lex Russica. 2017. № 4. P. 160. (in Russian)
10.  Stepanoj E. Protivodejstvie finansirovaniju terrorizma [Countering the Financing of Terrorism] // Mezhdunarodnye process = International Processes. - Volume 7. -2009. - №1(19). (in Russian)

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11. Vahanija V. Nekommercheskie organizacii i ih svjazi s finansirovaniem terrorizma [Non-profit organizations and their connection with the financing of terrorism] // Ugolovnoe pravo = Criminal Law. - 2004. - № 1. (in Russian)

    Information about the author

   Olga Alexandrova (Moscow, Russia) - Rector of the All-Russian State University of Justice (the RLA of the Ministry of Justice of Russia), Candidate of Legal Sciences (10A Bolshoi Karetny Lane, room 308, Moscow, 117149, Russia; e-mail: rpa@rpa-mjust. ru).

    Recommended citation

   Olga Alexandrova Anti-corruption policy as an institutional framework for countering terrorism. Kazan University Law Review. 2018; 1(3): 7-15. DOI: 10.30729/ 2541-8823-2018-3-1-7-15

KAZAN UNIVERSITY LAW REVIEW ■ Volume 3, Spring 2018, Number 1






                                   Richard C. Chissoe

                                   (New-Mexico, USA)
                                   Attorney in Law, Homer Law Chartered



            PUEBLO LANDS AND THE SPANISH LAND GRANTS: A PUNISHMENT AND AN ACCOMMODATION



DOI: 10.30729/2541-8823-2018-3-1-16-28

    Abstract: The author presents specific but interesting and indicative problem generated by the history of the state of New Mexico. The state passed from the jurisdiction of Spain and Mexico to the jurisdiction of the United States at different times and this, in turn, had influence on the land issue and the regulation of the land grants in that area. The European concept of private property was foreign to the people of the Pueblos territory. The western notion of “owning” individual portions of land as a property right was simply incompatible there as the Pueblos territory had special rules of regulation. Anyway, Spanish Conquest and religion had influenced it. The author analyses the history and reasons of the established order of a punishment and an accommodation on land grants; presents understanding of continued politics. The article is given in unusual form of narration for this issue.
    Key words: pueblo lands, Spanish lands, history, New Mexico, punishment


    A Narrative

    It is a cloudy spring morning in New Mexico around the turn of the 18th century. At a Pueblo village, men have gathered in the square near the mission church. They have prepared themselves for a long and exhausting task, bringing water and food for the day. Among these men are Spanish and Pueblo officials, assistants, witnesses, helpers, and an all-important “counter”. Two men carry a long, thick cord. When all have assembled, the men gather at the door of the mission church - generally considered by Spanish officials to be the center of the village - and begin the long, tedious, critically important task that lies ahead. A Spanish official takes position at the door of the church, holding one end of the long cord, or cordel. Another, holding the opposite end, proceeds due east. He unravels the cordel as he walks and checks his direction by compass. Others in the group