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The Soviet Kingdom of Crooked Mirrors and its Legacy of ‘Twofold Constitutionalism’: Politically Motivated Trials against Citizens of Ukraine in the Russian Federation

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Abstract

After the collapse of the USSR, Russia and other former Soviet republics adopted democratic constitutions to signal the international community that they became democratic countries. Nevertheless, despite almost two decades of the alleged democratization, many post-Soviet states still display authoritarian practices of political justice, whose double standards resemble more the Communist ‘socialist legality’ rather than the Rule of Law. This article explores the Soviet legacy of ‘Twofold Constitutionalism’, which manifested itself in the politicized trials against citizens of Ukraine in the Russian Federation shortly after the illegal annexation of Crimea in 2014 and during the ongoing militant insurgency supported by the Government of Russia in eastern Ukraine. The author argues that Russia and many other post-Soviet states inherited from the USSR an unwritten constitution of extra-legal traditions and practices that nowadays can trump any legal provision and deter the transition from the communist regime to the Rule of Law.

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Notes

  1. See the UN General Assembly Resolution ‘Territorial Integrity of Ukraine’, 27 March 2014 calling upon States not to Recognize Changes in Status of Crimea Region, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/262. Accessed 17 November 2015.

  2. See the Declaration “Separatist tensions in Ukraine and neighboring countries” made by the Congress of Local and Regional Authorities of the Council of Europe, which ‘condemns Russia’s military intervention in the east of Ukraine, and condemns all forms of pressure by Russia on its neighbors.’ http://www.coe.md/images/stories/Articles/CLRA/2014-10-14_declaration_on_separatist_tensions_in_ukraine.pdf. Accessed on 17 November 2015.

  3. Osavoliuk et al. 2016..

  4. Wordsworth 2012.

  5. ‘Russia has not undergone “decommunization” as Germany did “denazification”.’ in Ryavec 2003, p. 13. See also ‘Russia’s forgotten past’ in Stan 2008, p. 227–229.

  6. In particular, Laughland (2008), Christenson (1999) and Kirchheimer (1961).

  7. Christenson 1999, p. 10–11 in Barna and Pető 2014, p. 25.

  8. Christenson 1999, p. 10.

  9. See ‘MFA of Russia | 01/21/2015 | Foreign Minister Sergey Lavrov’s Address and Annual News Conference on Russia’s Diplomatic Performance in 2014, Moscow, 21 January 2015,' accessed March 24, 2016, http://archive.mid.ru//brp_4.nsf/0/D1AFD0A22ABD9AB443257DD4004F33B5.

  10. The international character of the conflict in Ukraine manifested itself in numerous international sanctions introduced against Russia (see de Galbert 2015) and two interstate complaints ‘Ukraine v. Russia’ (no. 20958/14) and ‘Ukraine v. Russia II’ (no. 43800/14) lodged by Ukraine in the European Court of Human Rights in March and June 2014.

  11. See paragraph 84, p. 34, of the ICTY Appeals Chamber Judgment in ‘Prosecutor v. Tadic’, No. IT-94-1, 15 July 1999, available at http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf. Accessed 26 March 2016. In Wilmshurst 2012, p. 470.

  12. Posner 2005, p. 130.

  13. Trial materials in Savchenko’s case in Russian at http://advokat-feygin.ru/index.php?id=6. Accessed 20 November 2015.

  14. According to Article 42 of the Hague Convention (IV) respecting the Laws and Customs of War on Land from 18 October 1907, ‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’ See paragraph 217, p. 73–74, of the ICTY Trial Chamber judgment in the case ‘Prosecutor v. Mladen Naletilic and Vinko Martinovic, IT-98-34-T, 31 March 2003, which provided the guidelines to determine whether the authority of the occupying power has been actually established.

  15. See the principle of non-intervention established by the International Court of Justice (ICJ) in its Judgment of 27 June 1986 (Case Concerning Military and Paramilitary Activities in and against Nicaragua), ICJ Reports 1986, paragraph 205, p. 108. Available at http://www.icj-cij.org/docket/files/70/6503.pdf. Accessed 26 March 2016. In Fleck and Bothe 2007, paragraph 202, p 48. In this context, see Chancellor Angela Merkel’s interview on the destabilization of Eastern European countries by Russia. In ‚Merkel Wirft Moskau Vor, Osteuropa Zu Destabilisieren.‘Available in German at http://www.welt.de/politik/deutschland/article135095580/Merkel-wirft-Moskau-vor-Osteuropa-zu-destabilisieren.html Accessed 24 March 2016.

  16. I. National law. A) Violation of Ukrainian criminal law. Ukrainian prosecutors initiated criminal cases with regard to the kidnappings and illegal detention of Ukrainian citizens alleging violations of Article 146 Part 3 of the Criminal Code (illegal deprivation of freedom or kidnapping) and Article 332 Part 3 (illegal transfer of people through the state border of Ukraine. B) Arbitrary application of Russian criminal law. Citizens of Ukraine that allegedly committed war crimes can be prosecuted in accordance with Article 12 of the Russian Criminal Code, which permits prosecution of foreigners who committed crimes against Russian citizens. However, Article 356 of the Criminal Code (war crimes) has never been applied to war crimes committed during the Chechen and other wars conducted by the Russian military forces (See Chitayev and Chitayev v Russia, Imakayeva v Russia and others in the Human Rights Watch Report ‘Justice for Chechnya. The European Court of Human Rights Rules against Russia’, available at https://www.hrw.org/sites/default/files/related_material/justice_for_chechnya_2.pdf. Accessed 23 March 2016).

    II. International law. A) Violation of international norms and customs of war (see Geneva Convention III, the Treatment of Prisoners of War, pt. 1, Article 4, (A)(1), 12 August 1949, and Article 44 of the Additional Protocol I of 8 June 1977 ratified both by Russia and Ukraine). Nadia Savchenko was captured during an armed conflict while openly carrying her weapon and wearing her military uniform. Given Russia’s involvement in the conflict (see the previous footnotes), Ms. Savchenko should have enjoyed the protection of the 1949 Geneva Conventions regardless of the fact whether Russia disputed her status of a war prisoner. See ‘the presumption of prisoner of war in any case of doubt’ (Article 45 of the Additional Protocol I) in Fleck and Bothe 2007, paragraph 703, p 374. B) Violation of the European Convention on Human Rights (ECHR). Given the abduction of some Ukrainian citizens and their forceful transfer to Russia, their subsequent detention in Russia cannot be called lawful in the meaning of Article 5 ECHR (Right to Liberty and Security). In particular, the Court has already condemned the opaque practices of abduction and forceful transfer developed by Russian State authorities ‘in breach of their obligations under both Russian law and the Convention.’ In Savriddin Dzhurayev v. Russia—71386/10, paragraph 257. See also Iskandarov v. Russia, no. 17185/05; and Abdulkhakov v. Russia, no. 14743/11, where ‘applicants were removed outside the normal process of the law.’ In Rainey et al. 2014, p. 179.

  17. Article 322 of the Criminal Code of the Russian Federation.

  18. Article 105, Part 2 (L) of the Criminal Code (the murder of two or more persons motivated by hatred towards a social group).

  19. See the European Parliament resolution on Savchenko’s case, available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2015-0186&language=EN&ring=P8-RC-2015-0406. Accessed on 22 December 2015.

  20. Taking into account that the international community has not recognized the illegal annexation of Crimea, which remains an occupied territory, Sentsov and Kolchenko should have enjoyed the protection as civilian persons under the 1949 Geneva Conventions. According to Article 76 of the 1949 Geneva Convention IV, ‘[p]rotected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein.’ In Fleck and Bothe 2007, p. 309–310.

  21. Article 205.4 Part 1 of the Russian Criminal Code (establishing and running a terrorist group), Article 205.4 Part 2 (implementing a terrorist act), Article 30 Part 1 and Article 222 Part 2 (preparing a terrorist act), Article 30 Part 3 and Article 222 Part 3 (attempt to make an illegal purchase of explosive materials), Article 222 Part 3 (illegal purchase, transportation and storage of firearms and ammunition), Article 205.4 Part 2 (participation in activities of a terrorist group).

  22. Article 209 (Banditry) of the Criminal Code of the Russian Federation and Article 102 (V) (intentional murder of a state official) taken from the Soviet RSFSR Criminal Code (1960) still valid at the time of the alleged crimes.

  23. Article 222 of the Russian Criminal Code.

  24. Article 276 of the Russian Criminal Code.

  25. Article 356, Part 1 (cruel treatment of civilian population and war crimes).

  26. Solomon (1996) and Solomon (1978).

  27. Osakwe (1985).

  28. Rosenfeldt (2009).

  29. In particular, Jansen and Petrov (2002), Rayfield (2004), Rapoport (1991), Rubenstein and Naumov (2001), Yakovlev (2002).

  30. Osakwe (1985).

  31. For example, Joseph Stalin ordered a forced deportation of Crimean Tatars from the Crimean Peninsula in 1944.

  32. Mukomel’ 2014.

  33. Schuler 2013.

  34. Gessen 2015.

  35. Tsvetkova 2014.

  36. Elder 2013.

  37. Coyer 2015.

  38. Schreck 2015.

  39. Eremenko 2015.

  40. Shandro and Troshinska 2015.

  41. In 1995, 1997, 1999 and 2003 Russia introduced several amnesties to pardon Chechen insurgents.

  42. In particular, Chechen wars attracted various foreign jihadists such as Emir al-Khattab from the Saudi Arabia.

  43. Article 96, Parts 1 and 3 of the Russian Criminal Code of Procedure (Notification about the detention of a suspect).

  44. Russia is the party to the 1963 Vienna Convention on Consular Relations. See Article 36 ‘Communication and contact with nationals of the sending state’.

  45. Kovalev 2010, p. 145.

  46. Russian: Shakhtinskoye delo.

  47. Rosenbaum 1962.

  48. Rayfield 2004, p. 163.

  49. The presumption of innocence is protected under Article 49 of the Constitution of the Russian Federation.

  50. The text of the FSB Press Release from. 30 May 2014 is available in Russian at http://www.fsb.ru/fsb/press/message/single.htm!id%3D10437554%40fsbMessage.html. Accessed 10 November 2015.

  51. Kovalev 2010, p. 150.

  52. Coynash 2015, ‘Russia’s "Ukrainian Nationalist" Show Trial: No Bodies, No Proof, but Good ‘Confessions'’.

  53. See the case analysis provided by the Russian Human Rights Center ‘Memorial’, available in Russian at http://memohrc.org/news/sud-po-delu-chlenov-una-unso-v-groznom-zashchita-hodataystvuet-o-sude-prisyazhnyh-obvinyaemye. Accessed 14 November 2015.

  54. Illustrated reports on Savchenko’s trial available in Russian at https://savchenko.openrussia.org/. Accessed 10 November 2015.

  55. Rayfield 2004, p. 162.

  56. Rubenstein 1980, p. 244.

  57. Koestler 1941.

  58. The first Moscow trial was conducted in August 1936 against Zinoviev, Kamenev and other old Bolsheviks of the ‘United opposition’. The second trial took place in January 1937 against new participants of Trotsky’s ‘conspiracy’ exposed in the first trial. The third and final Moscow show trial of Trotskist conspirators followed in March 1938.

  59. Heilbrunn 1991.

  60. Conquest 1990, p. 352.

  61. Conquest 1988.

  62. NKVD—the People’s Commissariat for Internal Affairs (Russian: Narodnyy Komissariat Vnutrennikh Del). It was a successor agency of the Joint State Political Directorate (OGPU) and a predecessor of KGB.

  63. According to historian Roy Medvedev, Kosior’s daughter, ‘having been released from prison, committed suicide by throwing herself under a train.’ In Chirot 1994, p. 155.

  64. See the Report ‘28 Hostages of the Kremlin’ prepared by the Open Dialog Foundation, Center for Civil Liberties and Euromaidan SOS. Available at http://en.odfoundation.eu/i/fmfiles/pdf/28hostages-eng-ccl-mf-web-final.pdf, accessed 28 March 2016, and information about torture reported by the Russian Human Rights Center ‘Memorial’ in the cases of Karpyuk and Klykh, available in Russian at http://memohrc.org/news/sud-po-delu-chlenov-una-unso-v-groznom-zashchita-hodataystvuet-o-sude-prisyazhnyh-obvinyaemye. Accessed 28 March 2015.

  65. See the definition of inhuman treatment given by the ICTY Trial Chamber in ‘Prosecutor v. Tihomir Blaškic’, IT-95-14-T, 3 March 2000, paragraph 155, p. 52, http://www.icty.org/x/cases/blaskic/tjug/en/bla-tj000303e.pdf. Accessed 26 March 2016. See also the practices of torture and other forms of ill-treatment such as ‘infliction of electric shocks, asphyxiation with a gas mask or a plastic bag; extensive beating whilst handcuffed to a fixed object and/or blindfolded…and placing a heavy object on his back—a method referred to as ‘televizor’ [(a TV-set)]’ described in Sect. 2 of the latest Report to the Russian Government on the visit to the Russian Federation carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 May to 4 June 2012, d.d. 17 December 2013, available at http://www.cpt.coe.int/documents/rus/2013-41-inf-eng.htm. Accessed on 25 March 2016.

  66. The torture included putting on the rack, strangling, beating heavily a stomach, a head, kidneys and genitals. In Drach 2015.

  67. Walker 2015, ‘Ukrainian Film-Maker Tells Russian Court He Will ‘Suffer or Die’ for His Beliefs'.

  68. Stanko 2015.

  69. Coynash 2015, ‘Tourists Beware—Putin’s KGB-Kafkaesque Justice is for Foreigners Too.'

  70. Ibid.

  71. Conquest 1990, p. 202–203.

  72. Ibid., p. 202.

  73. Solomon 1996, p. 467.

  74. A campaign of large-scale political repressions organized by Joseph Stalin. Conquest 1990.

  75. Chikov 2015.

  76. The E Centers were created by the former President Medvedev within the general reform of fighting with organized crime.

  77. The deputy Prosecutor General Sabir Kehlerov made an official statement that the creation of the Investigative Committee contradicted the Russian Constitution, because the head of the Committee would be directly appointed and subordinated to the President of the Russian Federation. Furthermore, Mr. Kehlerov argued that the work of the Investigative Committee would be incompatible with international norms of criminal justice and could lead to numerous human rights violations. Mr. Kehlerov’s statement is available in Russian at http://www.kommersant.ru/doc/768181. Accessed 13 November 2015.

  78. ‘The Investigations Committee—Not so Much Russia’s FBI, More a Kremlin Watchdog,' In Moscow’s Shadows, available at https://inmoscowsshadows.wordpress.com/2010/10/05/the-investigations-committee-not-so-much-russias-fbi-more-a-kremlin-watchdog/. Accessed 13 November 2015.

  79. Coynash 2015, ‘Russia Claims ‘Universal Jurisdiction’ to Try Ukraine for Human Rights Crimes.'

  80. President Putin has recently signed a law, which allows the Constitutional Court overturning judgments of international courts. Critics of the new law claim that it does not only breach Russia’s obligations before the Council of Europe, but also violates the Constitution of Russia. In Schreck 2015.

  81. Chikov 2015.

  82. See the analysis of Sentsov and Kolchenko’s case, available in Russian on the website of the Human Rights Center ‘Memorial’ at http://www.memo.ru/d/242162.html. Accessed on 25 March 2016.

  83. The involuntary imposition of the Russian citizenship on Sentsov and Kolchenko has prevented them from using their right to meet a Ukrainian Consul guaranteed under the 1963 Vienna Convention on Consular Relations. See Article 36 ‘Communication and contact with nationals of the sending state’. Furthermore, despite Russia’s denial of the state of war with Ukraine, International Humanitarian Law (Article 76 of the 1949 Geneva Convention IV) is applicable towards the detained Ukrainian citizens, because the Geneva Conventions ‘apply to all cases of … armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.’ (Article 2 of the Geneva Conventions). Thus, ‘the fact that the concerned States deny the existence of a state of war is wholly irrelevant for this purpose.’ In Olásolo 2008, p. 58.

  84. Coynash 2015, ‘Mystery ‘Trial’ Begins of Russia’s Elderly Ukrainian Hostage.’.

  85. Nullum сrimen sine lеgе (Latin)—no punishment without law. In Solomon 1996, p. 31.

  86. ‘Article 16 of the Criminal Code stated: “If any socially dangerous act is not directly provided for by the present Code, the basis and limits of responsibility for it shall be determined by application of those articles of the Code which provide for crimes most similar to it in nature”.’ In Berman (1972), p. 22.

  87. Russian: Semyi vragov naroda.

  88. Solomon 1978, p. 174.

  89. ‘Gesundes Volksempfinden’ See ‘Law and Justice in the Third Reich’ in the Holocaust Encyclopedia available at http://www.ushmm.org/wlc/en/article.php?ModuleId=10005467. Accessed 8 March 2015.

  90. Burford 1974.

  91. Article 226, Part 1 of the Criminal Code of the Russian Federation. Yuri Yatsenko faced these charges when a person unknown to him came to Russian police and claimed that Yuri gave him a package for safekeeping. The package happened to contain gunpowder for hunting.

  92. Article 222, Part 1. In Drach 2015.

  93. Article 222, Part 1, § 1.

  94. See the analysis of Karpyuk and Klykh’s indictment, available in Russian on the website of the Human Rights Center ‘Memorial’ at http://www.memo.ru/uploads/files/1811.doc. Accessed 14 November 2015.

  95. Article 356 § 1 of the Russian Criminal Code: ‘brutal treatment of the civilian population, as well as the use in an armed conflict of means and methods prohibited by the Geneva Convention on the protection of the civil population during war.’.

  96. Coynash 2015, ‘Arrest a Ukrainian—Russia’s Investigative Committee Will Do the Rest.’.

  97. Krasnoshchekov was also known as Abraam Moiseevich Krasnoschek, born in the Ukrainian village of Chernobyl, who received his law degree from the University of Chicago, passed the bar exam in the US and became the first and the only president of the Soviet Far Eastern Republic. As opposed to Stalin, Krasnoshchekov supported the New Economic Policy (NEP).

  98. Ellman 2003.

  99. Russian: Delo molodyh spetsialistov. Also known as the ‘affair of young socialists’.

  100. The notorious Article 70 of the RSFSR Criminal Code (1960), which was used to persecute numerous Soviet dissidents.

  101. Delo Kagarlitskogo//Solidarnost’. 1991 # 12. S. 13 in Shubin 2008, S. 280.

  102. Coynash 2015, ‘Moscow Shouts ‘Abduction’ yet Holds Ukrainian Hostages Incommunicado.’.

  103. Presidential decree # 922 available in Russian at http://kremlin.ru/acts/bank/37895. Accessed 15 November 2015.

  104. See the Decree about the amnesty commemorated to the twentieth anniversary of the Constitution of the Russian Federation, available in Russian at http://publication.pravo.gov.ru/Document/View/0001201312180023. Accessed 15 November 2015.

  105. Savchenko was sentenced by a Donetsk city court in Russia to 22 years in prison and a fine of USD 440. In Naumluyk 2016.

  106. Article 15 (4) of the written Constitution of the Russian Federation: ‘Universally recognized principles and norms of international law as well as international agreements of the Russian Federation constitute an integral part of its legal system. In case of a conflict between rules envisaged by an international agreement of the Russian Federation and rules stipulated in the national legislation, rules of the international agreement prevail.’.

  107. See Point 6 of the Minsk II Agreement signed by leaders of France, Germany, Russia and Ukraine, which envisages ‘Release of all hostages and other illegally detained people, based on the ‘all for all' principle’ (the European Parliament Briefing ‘Ukraine and the Minsk II agreement on a frozen path to peace?’ January 2016. Available at http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573951/EPRS_BRI%282016%29573951_EN.pdf. Accessed 23 March 2016).

  108. The Parliamentary Assembly ‘holds that since the competent Russian authorities did not send it a request to waive Ms Savchenko’s parliamentary immunity, the Russian Federation has breached its obligations under international law.’ See the Opinion for the Bureau of the Parliamentary Assembly on the ‘status of Ms Nadiia Savchenko with regard to Council of Europe immunity’, AS/Pro (2015) 04, 28 January 2015, available at http://www.assembly.coe.int/CommitteeDocs/2015/adoc04_2015defimmunit%C3%A9MmeSavtchenko.pdf. Accessed on 18 March 2016.

  109. Khlevniuk 2015.

  110. Rosenfeldt 2009, p. 392.

  111. Conquest 1990, p. 90.

  112. Beckerman 2010.

  113. See ‘Politically Motivated Prosecutions and Article 18’ in Harris 2014, p. 859.

  114. Yavorsky 2013.

  115. See ‘Khodorkovskiy v. Russia’ (5829/04), page 64, paragraph 255. In Rainey et al. 2014, p. 124.

  116. See ‘Khodorkovskiy v. Russia’ (5829/04), page 64, paragraph 255. In Harris 2014, p. 859.

  117. Article 18 ECHR—Limitation on use of restrictions on rights. See Ilminska 2013, Rainey et al. 2014, p. 124–126.

  118. In Rainey et al. 2014, p. 125.

  119. To meet this burden of proof, it is necessary to provide direct and incontrovertible evidence ‘that the whole legal machinery of the respondent State…was ab initio misused, that from the beginning to the end the authorities were acting with bad faith and in blatant disregard of the Convention.’ ‘Khodorkovskiy v. Russia’, para 260. In Harris 2014, p. 860.

  120. Even in the few cases such as ‘Gusinskiy v. Russia’, ‘Tymoshenko v. Ukraine’ and ‘Lutsenko v Ukraine’, where a violation of Art. 18 was found, the Court stated that the restriction of applicants’ rights was for ‘other reasons’ than those permitted by the Convention. See Harris 2014, p. 860. Only in the case of ‘Ilgar Mammadov v. Azerbaijan’ the ECtHR found a violation under Article 18 on political grounds as ‘the actual purpose of the impugned measures was to silence or punish the applicant for criticising the Government.’ See the final judgment ‘Ilgar Mammadov v. Azerbaijan’ paragraph 143, available at http://hudoc.echr.coe.int/eng?i=001-144124#{%22itemid%22:[%22001-144124%22]}. Accessed 17 December 2015.

  121. See the final judgment in the case ‘Khodorkovskiy v. Russia’ (5829/04), page 65, paragraph 259.

  122. After Stalin’s death in 1953, the next leader of the USSR Nikita Khrushchev declared a policy of ‘destalinization’ in his speech ‘On the Cult of Personality and its Consequences’. In Jones 2006.

  123. Coalson 2015.

  124. The European Union criticized the Russian Supreme Court, which upheld Sentsov and Kolchenko’s verdicts. See ‘European Union—EEAS (European External Action Service) | Statement by the Spokesperson on the Upheld Convictions by the Russian Supreme Court of Oleg Sentsov and Oleksandr Kolchenko,' available at http://eeas.europa.eu/statements-eeas/2015/151125_01_en.htm. Accessed 29 November 2015.

  125. See a court statement made by Oleg Sentsov on 19 August 2015, available with English subtitles on the Radio Liberty website at http://www.rferl.org/media/video/ukraine-russia-sentsov/27197750.html. Accessed 17 November 2015.

  126. See a video of Karpyuk and Klykh that retracted their previous ‘confessions’ and showed signs of torture when they appeared in court, available at https://www.youtube.com/watch?v=sRB6Y4ZwI0Y. Accessed 11 November 2015.

  127. Wood 2005, p. 195.

  128. Belichenko 2015.

  129. Economic, political and social stagnation during the leadership of the Soviet General Secretary Leonid Brezhnev in 1964–1982.

  130. ‘Soviet Justice: Still on Trial. When politics enters in, legality goes out the window'; the Time magazine, 7/31/1978, Vol. 112 Issue 5, p46, 1p, available at http://content.time.com/time/magazine/article/0,9171,946923,00.html. Accessed 23 December 2015.

  131. In her five-year case study on the Soviet legacy of the legal dualism in Ukraine Tatiana Kyselova, in particular, referred to Richard Sakwa’s ‘dual state’ comprised of ‘a constitutional state and a prerogative state…[that] “operate in parallel” [in Russia].’ See Sakwa 2010, at p. 202, in Kyselova 2014, p. 7.

  132. Detention of Ms. Tymoshenko (application no. 49872/11), and Mr. Lutsenko, (application no. 6492/11) was recognized as arbitrary by the ECtHR. Ms. Tymoshenko’s imprisonment (application no. 65656/12) was recognized as politically motivated by the Government of Ukraine. Similar cases of politically motivated persecutions by the former authorities of Ukraine include ‘Ivashchenko v. Ukraine’ (no 41303/11), ‘Korniychuk v. Ukraine’ (no 10042/11), ‘Makarenko v. Ukraine’ (no 622/11).

  133. ‘Freed Belarus Opposition Figure Delivers Warning about Lukashenko | 24.08.2015,’ Deutsche Welle, http://www.dw.com/en/freed-belarus-opposition-figure-delivers-warning-about-lukashenko/a-18669993. Accessed 15 September 2015.

  134. According to the Amnesty International report 2014/2015, at the end of 2015 Azerbaijan had ‘at least 18 prisoners of conscience’, available at https://www.amnesty.org/en/countries/europe-and-central-asia/azerbaijan/report-azerbaijan/. Accessed 17 November 2015.

  135. The Freedom House Statement ‘Azerbaijan: Release of Political Prisoners Should Lead to More Releases’, available at https://freedomhouse.org/article/azerbaijan-release-political-prisoners-should-lead-more-releases. Accessed 19 March 2015.

  136. See Azerbaijan country profile on the Human Rights Watch website, available at http://www.hrw.org/europecentral-asia/azerbaijan. Accessed 17 November 2015.

  137. Law and Versteeg 2013.

  138. See Okoth-Ogendo 1988 in Greenberg et al. 1993, p. 65–80.

  139. Trochev 2008.

  140. Ibid., p. 127.

  141. Ibid., p. 41.

  142. Ibid., p. 303.

  143. Ibid., p. 300.

  144. Mazmanyan 2012.

  145. The Soviet movie ‘Kingdom of Crooked Mirrors’ (1963) (Russian: Korolevstvo Krivykh Zerkal) ‘is fairly explicit in its commentary, attacking a society’s ability to manufacture a false reality, which here translates as American capitalism…The core idea [of the fairytale]…[is] a society enslaved by a self-manufactured false reality, carries a powerful message regardless of time or place.’ http://www.thespinningimage.co.uk/cultfilms/displaycultfilm.asp?reviewid=3267 Accessed 6 August 2015.

  146. Actus reus (Latin) means ‘guilty act’. In combination with mens rea provides legal ground for criminal liability.

  147. Mens rea (Latin) means ‘guilty mind’, criminal or malicious intent.

  148. See Raz 2009 in Sadurski 2012, p. 45.

  149. Raz 2009, p. 325.

  150. The USSR existed for almost seventy years from 1922 to 1991.

  151. Medushevsky 2006, p. 99.

  152. In the USSR Homo Sovieticus was given a derogative name ‘Sovok’ (a scoop in English) to emphasize the instrumentalization of a human being by the Communist Party.

  153. Medushevsky 2011.

  154. Demonstrative implementation (Russian: v yavochnom poriadke) used by Soviet dissidents to expose the Soviet regime.

  155. Medushevsky 2011.

  156. Threlfall 2012.

  157. Osokina 2001 in Viola 2002, p. 178–200.

  158. Spencer 2002.

  159. See paragraph 67 of the ECtHR’s judgment in ‘Streletz, Kessler and Krenz v. Germany’, nos. 34044/96, 35532/97 and 44801/98. In Harris 2014, p. 495.

  160. Honne is used in the meaning of person’s true intentions and feelings.

  161. Tatemae is used in the meaning of opinions and actions displayed only in public (Tatemae literally means façade in Japanese).

  162. Zachmann 2014.

  163. ‘DOUBLETHINK means the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them…To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just so long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies…’ In Orwell (1977), 1984.

  164. The most recent list of political prisoners in Russia was compiled by the Human Rights Center ‘Memorial’, available in Russian at http://memohrc.org/pzk-list. Accessed 20 November 2015.

  165. In particular, criminal cases opened in occupied Crimea against Tair Smerdlyaev, Musa Apkerimov and Rustam Abdurakhmanov. See Human Rights Watch Report ‘Rights in Retreat,' available at https://www.hrw.org/report/2014/11/17/rights-retreat/abuses-crimea. Accessed 30 November 2015.

  166. RFE/RL, ‘Russian "Soldiers’ Mothers" Activist Detained,' RadioFreeEurope/RadioLiberty, available at http://www.rferl.org/content/detention-bogatenkova-soldiers-mothers-russia-ukraine/26643664.html. Accessed 18 October 2014.

  167. RFE/RL’s Russian Service, ‘Russian Woman Accused of Treason over Suspected Troop Deployment,' RadioFreeEurope/RadioLiberty, available at http://www.rferl.org/content/russia-treason-mother-charged-ukraine-troops/26821177.html. Accessed 30 January 2015.

  168. Reuters, ‘Russia Drops Treason Charges against Svetlana Davydova,' The Guardian, sec. World news, http://www.theguardian.com/world/2015/mar/13/russia-drops-treason-charges-against-svetlana-davydova-ukraine. Accessed 13 March 2015. See also ‘Russian Activist Bogatenkova Released from Custody,' RadioFreeEurope/RadioLiberty, available at http://www.rferl.org/content/bogatenkova-release-russia-ukraine-soldiers-mothers/26646242.html. Accessed 20 October 2014.

  169. Agence France-Presse, 'Russia Frees Estonian Officer in Cold War-Style Spy Swap,' The Guardian, available at http://www.theguardian.com/world/2015/sep/27/russia-frees-estonian-officer-spy-swap. Accessed 27 September 2015.

  170. Hodos 1987.

  171. Walker 2016, p. 53.

  172. See an analysis of Putin’s ratings in ‘Vladimir Unbound.’ The Economist, January 30, 2016. Available at http://www.economist.com/news/europe/21689626-russias-president-impervious-woes-afflict-normal-leaders-vladimir-unbound. Accessed 29 March 2016.

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  1. S.J.D. Candidate, Program in Comparative Constitutional Law, Department of Legal Studies, Central European University (CEU), Nador u. 9, 1051, Budapest, Hungary

    Artem Galushko

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Galushko, A. The Soviet Kingdom of Crooked Mirrors and its Legacy of ‘Twofold Constitutionalism’: Politically Motivated Trials against Citizens of Ukraine in the Russian Federation. Hague J Rule Law 8, 155–181 (2016). https://doi.org/10.1007/s40803-016-0026-x

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