Konstantin Dobrynin, Anton Imennov: Art is at risk. How to defend artist from criminal prosecution. Moscow Carnegie Center, 23 August 2018
At present, when filming and staging is financed by the state, changing important contract terms at the fulfilment stage is an infringement of not only a purchase legislation, but anti monopoly one as well, since it creates preferences for a certain participant of a competition. And that entails not only administrative responsibility, but also a criminal one. I.e. a director who has changed their initial decisions just a bit is balancing at the edge.
At present art, especially theatre and cinematography, is in the area of legal risk. Customs of business turnover which have existed for dozens of years (no matter how good or bad they are) happen to conflict either with the current legislation or with the changed law enforcement practice. Why does it happen with the art world and becomes so noticeable?
First of all, due to the vulnerability of the workers of art. Creative process has always been accompanied by doubts, worries and delusions commonly known as reflection. It sometimes results in stepping aside from the initial creative and production plan. But if creators are put in narrowly formal, not enough thought-out legislative frames, they become deprived of the freedom of creation, and the cultural area appears to be limited in development in all its manifestations. Maintaining "law and order" in art is actually a Procrustean bed for artists.
Examples are all around. Kirill Serebrennikov's case is of that kind. And it is one of the row. Advocates of our company were defending film director Aleksey Utchitel for more than a year. He faced various legal risks during making the film "Matilda". MP Natalia Poklonskaya sent 55 applications to the Prosecutor-General's Office asking to examine not only the film itself which was supposed to be an insult to the feelings of believers, but also how budget money had been spent.
At present we are giving legal support to Alexander Shein, producer and director of the film "VMayakovsky". Some "anonymous sources of mass media" suspect that one million roubles allocated for making of the film from the state budget by the Cinema Fund were stolen. They demand that the film director must be punished at once. Actually, the reason why the return of the subsidy was delayed for several months is banal – the film was released later than it had been planned because of the intensive festival schedule and the necessity of its promotion. It's a common practice for cinematography within the civil-legal relations, in other words – a normal creative life. By the way, the Cinema Fund understands it, and all obligations to it have been fulfilled by now.
Pressure of the resentful
The tendency to look for and find signs of "extremism" of every kind in works of art has intensified recently. Directors and actors are at risk of criminal prosecution under clauses which provide punishment for "insulting" somebody's feelings or "arousing hatred" towards a certain person or a group of people. Vague formulations of an "insult" or "arousal of hatred" in the legislation provide opportunities for their subjective interpretation and, consequently, for arbitrariness, and for attempts of censoring, of course.
Artists have the right to express their personal opinion, for exaggeration and creative provocation – it is an essential part of art. Sometimes their works cause strong reaction from emotionally unsteady people. It is natural. But it is unnatural and unlawful when someone's subjective perception results in unreasonable criminal prosecution of innocent people, provokes persecution, "witch hunt", obscurantism, especially when such fits find support of people in uniforms and robes.
We are reluctant to juggle with metaphors and claim that we are only one step from the Middle Ages, but it is obvious that the situation is deteriorating. Evidently, the subjective interpretation of the vague, purely evaluative concepts depends on the level of social, religious and ethnic tensions in the society, on the reining politicization, aggressiveness and intolerance which have almost reached their limits. Back in 2007 a criminal lawsuit under the "extremist" clause 282 was opened in connection with the exhibition "Forbidden Art – 2006" held in the Public Centre named after Andrey Sakharov. According to the investigators, religious symbols were exhibited next to the images of Mickey Mouse, Lenin and obscene inscriptions on this exhibition of modern art. Although freedom of speech and expression (constitutional values provided by the legislative ban on censorship) were not cancelled, organizers were found guilty and fined.
Unfortunately, these freedoms have retreated further under pressure from the defenders of "insulted feelings" and fighters against "extremism". Taking into consideration that every creative activity, especially a really talented one, evokes strong emotions, members of creative intelligentsia are at special risk of unjustified criminal prosecution for "actions of extremism".
A wise state would do its best to lower the level of passion, but not encourage and provoke it. But its not our story.
In order to prevent growth of censorship restrictions, aggression and intolerance, current legislative norms need to undergo substantial changes. Otherwise we will face unjustified criminal prosecution of workers of art as well as growing obscurantism and its forcefully-criminal consequences. In addition to the given examples we can recall a recent case of "Tannhäuser" and – once more – the "tsargod" hysterics over "Matilda", when leaflets "Burn for Matilda" were flying in the air with the smell of burning, and cars were in flames by the entrance to the Moscow office of our firm. The spirit of pogrom with its threats and insults reached its climax.
Imperfection of Law
Risks of the members of creative intelligentsia are not limited by "extremism" only. Unfortunately, investigators and even public prosecutors and judges have been recently looking at the civil-legal relations in art in the light of the criminal law – simply because it is more suitable for them.
Peculiarities of the law on the state purchase are well known. Its literal application to a creative process threatens unresolvable contradictions. Quite often the necessity of making substantial changes in a contract occurs during its fulfilment. Making a film or a performance is a creative process during which requirements to the scenery or costumes may change. But it is impossible to change the subject of a contract (the scenery size, costumes colours etc) legally.
It's important that changing substantial contract conditions during its fulfilment is an infringement of not only the purchase legislation, but the anti monopoly one as well, because it creates preferences for a particular competitor. And that entails not only administrative, but also criminal responsibility. A director who has changed their initial decisions just a bit is balancing at the edge.
The next obstacle to the people of art is the maximum size of the state purchase advance – not more than 30% of a contract. One should realize that the main partners of the establishments of culture are the subjects of small entrepreneurship or natural persons who most often can't afford to work without prepayment. Therefore, an advance of 30% of the contract price makes them unable to fulfil their obligations completely. Sometimes they can't even start working. For instance, such an advance is not enough to buy materials to make costumes. But work should be done, so people bypass the imperfect law: they draw up fictitious executive documents as if the work has been done, in order to get the money in full. We would like to emphasize that this money is not stolen at all, but is used for making a film, performance etc. But the main and the most serious risk is concealed exactly here, especially when the state funding is involved in the art process – criminal-legal repressive measures under such CC clauses as "fraud", "misappropriation, or perjury", "legalization", "tax evasion".
How does a civil risk turn into a criminal one? It's elementary. Here are some examples from our practice.
The Cinema Fund allocated money to shoot a film and concluded an agreement on a subsidy. After that a director was visited by a muse once more. As a result, the plot and the agreed script underwent a 60% change. The film definitely improved, but it wasn't finished on time provided by the initial agreement, and the budget money had been already spent. The law-enforcement, acting in their best tradition, tried to qualify the situation as a criminally charged fraud. Fortunately, unsuccessfully.
Another example. Often filmmakers have to pay in cash for one-time services. The need for such services occurs out of a sudden and can't be foreseen in the budget beforehand. This issue appears to be especially acute in expeditions.
Just imagine that a camera crew needs to get to an island somewhere in the Arkhangelsk region. The only available boats there belong to local fishermen. The crew has to pay the fishermen in cash without signing a contract and making any records in account documents. And nobody pays personal income tax, of course. And that may be qualified as a criminal offense.
What should be done
It's clear that the system of the state purchasing needs reforming. One of the authors of this text has recently delivered a speech on the matter at the round table in the Council of Federation. It gives hope that the upper chamber will step forward with such initiative. On our part, we, advocates, as experts, are ready to help our colleagues-MPs and pinpoint narrow places in the current law and work together to make changes for the better.
It's more difficult to deal with the law-enforcement. They often don't want to (or can't) realize that in order to bring criminal charges against a person, it must be established that his/her actions are a really substantial public menace and, most importantly, that this person had an intent to commit a particular acquisitive crime, i.e. the situation can't be resolved in the area of the civil law only.
Judges could be helpful in education of the operational-investigation system. Then unreasonable criminalization of normal economic and creative life could be stopped through the explanations of the Plenum of the Supreme Court of the Russian Federation and adequate judicial practice in concrete cases.
Besides, foreign experience should be taken into consideration, even being at the stage of legal experiment yet. For instance, in Kazakhstan, according to the Prosecutor-General's order from 2014, no action can be the subject of criminal proceedings before a decision is passed in a civil case if there is proof (contracts, receipts, commodity checks etc) that the case belongs to civil relations. A person may appeal to the law-enforcement only after the court decision is passed and in accordance with the facts established by it.
People of art also should not forget that they get involved in civil-legal relations through creative activity and, consequently, are subjected to entrepreneurial risks. Despite their creative exclusiveness artists are not better than other participants of such relations in the eyes of the law. Therefore, artists should think how to avoid legal risks. The law is tough and sometimes imperfect, but particularly because of that it requires to be treated as seriously as possible and people should do their best to comply with it.
Konstantin Dobrynin, advocate, Senior Partner of Pen & Paper
Anton Imennov, advocate, Pen & Paper Moscow office Managing Partner