Leonid Nikitinsky: The decree on runaway serfs. On the new law on confiscation of property from Russians the Duma deems insufficiently patriotic

31 January 2024

by Leonid Niktinsky

Source: Novaya gazeta

“The law on Scoundrels” — that’s what State Duma deputies called the bill in parliamentary debates, a bill just passed in the third reading that allows for the confiscation from political opponents of “instruments of crime” and any profits made with them. These opponents are in particular those who openly express anti-war positions, but also include those who “harm the homeland” in one of many ways.

Deputy Svetlana Razvorotneva, with an innocent smile on her face, asked the bill’s author Irina Yarovaya for clarity during discussions in the first reading, saying, “It will be difficult to charge…people caught making statements…to give them a serious punishment [if a smartphone is all you need to spread ‘fake news’]. What should we do?” “This is a far from unreasonable question,” Yarovaya answered. “If anyone’s interested, come and talk to me one-on-one.”

Let’s try to translate this exchange of encrypted messages into the language of precision in which laws ought to be phrased. Razvorotneva asked, “Will it be legal to take away apartments and cars, or homes? To nickel and dime people?” “Don’t ask idiotic questions,” Yarovaya said. “If you’re really such an idiot, I’ll explain everything to you out in the hallway.”

This is collusion, but not between the deputies. Let’s try to understand who’s involved.

Back in December 2022, when Vyacheslav Volodin first spoke of a similar initiative, Senator and Doctor of Law Andrei Klishas explained to him that confiscating property for non-property related crimes would violate the Russian Constitution.

The problem for the “elites,” however, wasn’t so much the Constitution as the realization that once this Pandora’s box is opened, the wave of “confiscations” and expropriations would likely reach them too, sooner or later.

It took a year to overcome this peculiar veto, and it likely took an angry exclamation from on high as well, which could have even been triggered by the “naked night out” party.

The initiator of the political decision remained on the periphery of its legal formalization. He addressed his wholly undocumented message primarily to the law enforcement agencies; it was addressed to the Duma as well, though only insofar as the police still lacked the tools to carry out the “attack!” command. The deputies, in an attempt to maintain constitutional airs, pretended that only “instruments and means of crime” and the resulting income would be subject to confiscation. The rupture between the law as enacted and the practice for which it was conceived will, by default, have to be mended by judges.

They already thought of this before the law was adopted. Yarovaya alluded to it to her colleagues in the above dialogue. But that’s the seamy side, the dirty laundry — why would you bring that up in front of everyone? The judges will also hear the ‘Z’ murmurs from the appropriate quarters with the explanation that ‘There’s good reason…” That’s why our judges are … independent.

“In my article “Totalitarianism’s Modernized Machine“, I described today’s totalitarianism as an assemblage that is brought together for a specific task each time from different parts seemingly unrelated to each other.” In this case, in addition to judicial discretion, the assemblage would also be made up of elements of the criminal and civil codes, which fall under different purposes and rules, and it would seem impossible to combine them like this into a legal framework. But if someone truly needed it, a judge who is able to take the hint will get around that and find a way to do it.

Ultimately, the law has not yet gone beyond confiscating “instruments of crime” and money or property gained as a result of the crimes. But there’s a caveat: if time goes by and it’s no longer possible to pinpoint exactly which money or property was gained, the equivalent could be confiscated instead.

This will greatly expand judicial discretion to include criminal cases that were filed before the law went into effect. The idea is that the law won’t be retroactive, and confiscation won’t take place for “crimes” committed before it was passed. But if instructed to do so, judges could also finagle something like “continuous crime” when, for example, something “defamatory” was published a while back but remains available somewhere on the Internet.

One can imagine it like this: a ‘slanderer’ from an unfriendly country is living it up there using funds received from renting out an apartment in Moscow. This means that these are funds ‘intended for perpetration of a crime,’ and we will seize this apartment here.

This is, of course, very distorted and circuitous logic from the point of view of normal law, but it will be judges specializing not in civil, but in criminal law who will be invoking confiscation, and they have different approaches: they can get it through.

In a number of its articles the law stipulates that confiscation is applicable only in cases where the crime was committed ‘for self-serving reasons or for hire.’ This is not only not reassuring, but sets off alarm bells – as a signal to action. In cases with journalists, ‘for hire’ will apply automatically, and in cases with bloggers, the ‘presumption of the hand of the State Department’ – as proclaimed by the president back in 2011, and his word is law – will most likely operate.

This is not the first precedent for confiscations of this kind. In my article UCLMV – unified code of legitimate mass violence’ of October 2022, I described in detail how the Civil Code was being used for repressive purposes to take away premises belonging to the Memorial Society.* On 8 April 2019, in combination with the law ‘On monitoring the correspondence of expenses of persons holding public positions and other persons with their incomes,’ which does not fall under the Civil Code, was used by the Krasnogorsk court in Moscow region to deprive the former head of Serpukhov district Aleksandr Shestun, already in custody, of all property, including his house. This decision (it has been executed) also concerned the  property of dozens of other people, some not even familiar with Shestun: in particular, the jewel of the district – the park near the village of Drakino – was handed over to the pro-Kremlin sports functionary Umar Kremlev.

A certain bashfulness accompanying the discussion of the bill on confiscation suggests that the property of insufficient patriots will also be obtainable at a reasonable price, and not by just anyone.

To this end, the list of articles of the Criminal Code permitting confiscation in addition to other types of criminal punishment, in the process of consideration of the draft bill, was expanded significantly (see my 22 January article on the same topic).

…Immediately after the adoption of the draft bill on the third reading, Pavel Krasheninnikov, chair of the Duma committee on state building and legislation, explained to journalists (as quoted by Interfax) that confiscation can be carried out as a ‘type of punishment’ and as a ‘measure of a criminal-law nature.’ ‘As a measure – this is when the material of the crime and the money received are confiscated, but as a type of punishment – this is Soviet history, and we do not want to return to it.’

‘Soviet history’ temporarily ended with the adoption of the Criminal Code of the Russian Federation in 1996 – confiscation of property was not provided for within it at all (though the instruments of crime could, in practice, be seized and destroyed as physical evidence). Chapter 15.1 on the confiscation of property appeared in it only 10 years later – in 2006. Article 104.2 on the confiscation of funds or other property in place of an object subject to confiscation – in 2012. It would not be a mistake to say that the process of returning confiscation went hand in hand with the ideological process of ‘Sovietization’ of Russian society.

Strongly ‘unfriendly’ European countries, however, oppose the seizure of frozen Russian assets to support Ukraine – purely legal considerations outweighing political intentions for now.

The sanctity and inviolability of property rights was proclaimed by the freedom-loving French Revolution of 1789. Today we can no longer say that property makes a person free, there are too many examples that contradict this.

Rather, it provides some independence – insofar as a person has something to live on.

From this point of view, the majority of citizens of the Russian Federation, if not all, are serfs. As such, those who, using the constitutional right of freedom of movement, went abroad after 24 February 2022, are ‘runaways’. Their lives must be made unbearable, even if they cannot be forced to return. Well, at least they must be made to suffer for it.

Translated by Nina dePalma and Alyssa Rider

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