Conquer your good

Moscow responds to the arrests of Russian property in Europe in the spirit of the unforgettable Polykhaev: "What are they there, went crazy?", "And I will not give beds and washbasins." Well, of course, "in response to the arrogant atrocities of the accountant of Kukushkind ..."

When Russian officials refer to the Vienna Convention forbidding the arrest of the property of diplomatic murals, they lead a shadow to the wicker. The immunity of the state is not absolute. The state possesses them in the implementation of sovereign functions - such actions are called in the international law Acta Jure Imperii. However, when the state enters into business relations, it operates Jure Gestionis - as a private company. In the legislation of Western countries, the doctrine of the so -called functional immunity has long been operating: since a foreign state acts as an economic entity, it, of course, meets its obligations. His property does not use, in particular, by immunity from the preliminary support of the claim - with this case we are dealing with this case. In the United States, the relevant law was adopted in 1976. The America was followed by Australia, Great Britain, Canada, and in European countries - in particular, in the Austria, Belgium and France that interests us, judicial practice has started this path.

The theory of functional immunity is also reflected in international agreements, primarily in the European Convention on the immunity of the 1972 states. This document has Article 7, which says: "The Contracting State cannot refer to immunity from jurisdiction in the court of another Contracting State, if it has in the territory of the state where the trial takes place, bureau, agency or other institution through which it carries out in the same way as the private person, industrial, commercial or financial activities."

Russia is not a participant in this convention. In January 2005, the government introduced a draft law into the State Duma in which the doctrine of functional immunity was codified in detail. The project was adopted in the first reading, but then the profile committee changed its position to the diametrically opposite and refused to support it on the grounds that it contains "conceptual shortcomings that cannot be eliminated in the process of preparing for the second reading." The essence of these shortcomings in the conclusion of the committee is revealed. As a result, the bill was rejected and withdrawn from further consideration.

However, the norm of functional immunity is already enshrined in Russian legislation. Article 251 of the Arbitration Procedure Code says that a “foreign state acting as a carrier of power” uses judicial immunity. It directly follows from this clarification that in cases where a foreign state acts in a different capacity, it does not use judicial immunity.

The reaction of Russian officials to the actions of the judicial authorities of Belgium, France and Austria indicates confusion: the departments have not yet developed a single position, and their statements contradict each other. The head of the Ministry of Economic Development, Alexei Ulyukaev, says that Russia will dispute these court decisions, acting "through the legal systems of the relevant countries." The Minister of Justice Alexander Konovalov is going to contact the "National Courts". The Minister of Foreign Affairs, Sergei Lavrov, threatens "reciprocity": "Our economic operators are going to apply to the Russian court with a request in response to unlawful actions in relation to them to take the same actions in Russia - the arrest of property of foreign companies with state participation." The head of the Kremlin administration, Sergei Ivanov, considers response measures "inevitable." Finally, Vladimir Putin says that Russia will protect its interests "in the prescribed manner through judicial procedures."

In addition to a different opinion, there is a dense legal ignorance. Russian legislation does not provide for any reciprocity in this matter, the arrest of foreign property for the actions of foreign courts. Such a solution can only be unlawful and political. The phrase of Lavrov deserves special attention: "Representatives of the Belgian Ministry of Foreign Affairs send signals that they did not know and that they have an independent judicial system. Such explanations are not accepted." In fact, what kind of demagogy? What other independence of ships?

But Konovalov-Ulyukaev’s plan to appeal to national courts is not without meaning. In this case, the owner of the arrested property will need to prove one of two: either that he is not a state institution and in his assets there is no state property, or that, on the contrary, is, but does not conduct commercial activities, but carries out sovereign functions and therefore uses judicial immunity. Neither the first nor the second option is suitable for Russia Today: everyone knows that it is funded from the State Budget of the Russian Federation and at the same time is engaged in commerce. The same applies to TASS and VTB.

In relation to state information agencies, however, there are a precedent. In 1978, Soviet dissident Alexander Yesenin-Volpin, in the American court, in the American court, the APN, TASS and the newspaper of the USA Communist Party Daily World for the slander about him. Both agencies announced their immunity, referring to the law of 1976. The court agreed with them and rejected the lawsuit . But then it was about liability for diplomation, and not about property claims.

Another thing is "mutuality." Here Moscow has a rich experience of asymmetric measures. For example, in 1986, in response to expulsion from the United States, more than fifty Soviet diplomats, the USSR authorities recalled those who worked at the American embassy in Moscow and the Consulate General in Leningrad Soviet citizens, plumbers, shipyards, waiters, drivers who were then hired exclusively through a state institution - the Dip corruption management department. According to the embassy’s website, “starting in October 1986, members of the American diplomatic community had to do even the hardest work - wash embarrasses, remove snow, make sure that the goods brought from abroad are not stolen, until they undergo customs clearance.” The wives of the ambassadors of Hartman and Matlock themselves prepared food for receptions. These "sanctions" lasted two years. However, according to Arthur Hartman, the American government itself "tried to be less dependent on Soviet workers," so the actions of the Soviet authorities only "accelerated this process."

On Saturday, it became known that Belgium unlocked the bank accounts of the diplomatic mission of the Russian Federation - they were really protected by the Vienna Convention. But there is no talk of canceling the judicial decision regarding the ownership of other companies and organizations.

Of course, from the arrest of property to its implementation in the interests of the plaintiffs a huge distance. Former Yukos lawyer Dmitry Gololobov is absolutely right when he says that it is extremely difficult to recover such an amount from Russia. But do not forget that the case of royal debts, and the case of the USSR debts on Lend-Lease stretched for decades and still resolved in favor of creditors, although far from full.

Will the plaintiffs eventually retreat, as the holobs suggest? Well, why should they retreat? They have children, grandchildren. The action of Yukos, like the royal bonds, is not asking.