Ai Weiwei and his legal team have, since 2011, fought allegations, arrests and fines for tax evasion case widely regarded as "political retaliation" by the Chinese goverment.
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The Ai Weiwei papers

On 27 September, the Chinese courts rejected Ai’s second appeal against a £1.5m fine for tax evasion. Here, his legal team sets out the facts of a case riddled with corruption and secrecy.

An Introduction
Jerome A Cohen

The New Statesman is rendering a great public service in making available an English-language account of the Chinese government’s use of its tax laws to persecute the innovative and courageous Chinese artist and activist Ai Weiwei. Having been pressured by world opinion to release Ai from the harsh and blatantly illegal confinement to which its police had subjected him for almost three months, the Chinese government decided to crush him by resorting to economic measures whose illegality would presumably be less apparent both to its own citizens and to the outside world.

Fortunately, thanks to the presentation that follows this introduction, the unfairness and abuses that have marked this tax case have been unmasked. As Ai’s lawyers make clear, at both the administrative and the judicial levels the proceedings against him have been a farce. Much of the evidence apparently used against Ai was unlawfully collected and retained by the police and the tax authorities. Administrative hearings that purported to determine his alleged tax liability were truncated and plainly in violation of international standards of due process of law, and the subsequent judicial reviews were no better.

I personally am saddened at this spectacle for reasons that transcend our friendship and my admiration for Ai. It is nauseating to witness the damage that the Chinese government has chosen to inflict on its reputation through the misuse of its criminal justice and tax systems. As an international lawyer and a law professor seeking to assist in China’s economic development, I spent over 20 years co-operating with Chinese officials who were seeking to develop a legal  system that would earn the confidence of its own people and of the foreign business community. Beginning in 1979, for several years I enjoyed especially close relations with the National Taxation Bureau, which, during the early period of the Deng Xiaoping reform era, led the way for other government agencies in establishing impressive regulations and procedures for carrying out its responsibilities and for developing a legal process worthy of respect.

The handling of the Ai Weiwei case has been totally inconsistent with that earlier accomplishment. Neither the Chinese nor the foreign communities can afford to ignore the scandalous mistreatment of Ai. If he can become the victim of criminal and commercial injustice, no one in China or who deals with China can feel safe.

Jerome Cohen is a professor of law at New York University and an expert in Chinese law

The Fake Cultural Development Ltd tax case

1. Process summary

On 3 April 2011 in the morning, Ai Weiwei was taken away by police at passport control at Beijing Capital International Airport.

On 3 April 2011 at midday, Beijing Public Security searched Ai Weiwei’s residence for almost 12 hours. They confiscated 127 items, including computers and CDs. Ten people were taken to the police station for questioning until the early morning.

On 3 April 2011 at midday, Ai Weiwei’s assistant Wen Tao was kidnapped by four plainclothes police officers and went missing. He was illegally detained at a secret location and not released by public security until 24 June. Before this, his family was unaware of his location and received no official notification.

On 6 April 2011 in the evening, Beijing Municipal Public Security went to Beijing Huxin Ltd, the bookkeepers of Fake Ltd. They searched company information, including bookkeeping records and financial statements, dating from its establishment. Xinhua News Agency then published an English bulletin: “Ai Weiwei is suspected of economic crimes and is now being investigated according to the law.”

On 7 April 2011, Beijing Public Security brought the company accountant, Hu Mingfen, who was visiting family in Lanzhou, back to Beijing. After being put in a detention centre for one month, she was transferred to a secret location and detained illegally until she was “granted bail” on 13 June. Her family received no official notification.

On 8 April 2011, the Second Tax Inspection Bureau and Beijing Public Security searched and confiscated all of Fake’s financial and accounting information, contracts and seals from 2005 to 2010.

On 9 April 2011, the Fake shareholder and manager Liu Zhenggang was kidnapped by four men in plain clothes. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 11 June. His family was unaware of his location and received no official notification.

On 10 April 2011, the driver Zhang Jinsong was taken away. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 23 June. During this time, his family was unaware of his location and received no official notification.

On 12 April, Beijing Local Taxation Bureau Second Tax Inspection Bureau questioned Fake’s legal representative, Lu Qing, for the first time. On 20 May 2011, Xinhua News Agency published a bulletin stating: “Public Security has investigated the alleged Ai Weiwei economic crimes case. The preliminary finding is that Beijing Fake Cultural Development Ltd, under the actual control of Ai Weiwei, has committed offences including evading a large tax payment and deliberately destroying accounting records.”

On 22 June 2011, after 81 days in detention, Ai Weiwei was released “on bail” and returned home. His family members received no official notification. They could not get information about his suspected crime, what forceful measures were used and where he had been detained.

On 14 July 2011, the Bejing Local Taxation Bureau Second Tax Inspection Bureau held a closed hearing.

On 1 November 2011, the Beijing Local Taxation Bureau Second Tax Inspection Bureau decided that Fake had committed tax evasion and was required to pay 5,263,756.61 yuan in back taxes, a 3,190,331.52 yuan late-payment penalty and a 6,766,822.37 yuan fine. The three payments totalled 15,220,910.50 yuan (£1.5m).  n 29 December 2011, Fake asked for an administrative review at the Beijing Local Taxation Bureau. On 29 March 2012, the Beijing Local Taxation Bureau turned down the request for a review.

On 13 April 2012, Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chaoyang District People’s Court. The trial opened on 20 June 2012. On 20 July, the court rejected the entire Fake case.

On 3 August 2012, Fake lodged an appeal at Beijing Second Intermediate People’s Court. On 27 September 2012, in the company’s second and final appeal, the intermediate court upheld the original decision.

2. Points of controversy in the tax case

The Fake tax case contains grave problems and controversy in terms of both procedure and facts.

1. Points of controversy in the procedure

Procedure is essential in implementing justice.

Although Fake repeatedly raised serious procedural issues, the tax authorities and courts gave
no response. The main problems at each stage of the procedure are as follows:

1.1. Beijing Municipal Public Security Bureau
1.1.1. Public security exceeded its authority in the Fake tax case.

According to the Criminal Law Amendment (7) and the regulations on the administrative pre-procedure related to “Provisions (II) of the Supreme People’s Procuratorate and the Ministry of Public Security on the Standards for Establishing Criminal Cases under the Juris - diction of the Public Security Organs for In - vestigation and Prosecution”, only after the offending party has declined to implement tax administration penalties and after the tax organs have transferred the case to public security organs can public security organs establish a criminal case against the responsible parties. The Second Tax Inspection Bureau made its decision against Fake only on 1 November 2011. It is clear that in April 2011 public security detained five people in secret, including Ai Weiwei, on the grounds of “tax evasion”. They searched and confiscated Fake financial information, which was exceeding their authority and handling the case illegally.

In the Fake tax case, the tax organs were completely reliant on the Public Security Bureau for their evidence, and the police were pushed to the legislative foreground, which strengthened the contradiction and artificially produced   case of “major impact”. The police administration was brought into the government administration mechanism, which in essence weakened the function of legal and responsible adminstration.

1.1.2. “Arrest before investigation” is a violation of the law. On 3 April 2011, public security took Ai Weiwei away. They then detained four people, including a Fake shareholder and the company accountant. However, of the evidence  in the file put together by public security, none was collected before 3 April 2011. The essence of “an arrest before investigation” is assuming that a suspect is guilty.

1.1.3. The authorities confiscated all the company’s account books and refused to give them back. During the Fake case review, first hearing and final hearing, the company’s account books were confiscated by Beijing Municipal Public Security and not given back.

1.2. Beijing Local Taxation Bureau Second Tax Inspection Bureau

The Bureau was responsible for the adminis - trative handling of the case. The following problems existed in its administration and law enforcement:

1.2.1. More than 95 per cent of the evidence came from public security and was obtained illegally. The Second Tax Inspection Bureau issued the following statement on the composition and source of the “evidence list”:

“1. Account books, certificates and related tax documents were provided to the defendant after they were obtained by public security  organs from the plaintiff’s bookkeeping company;

2. Third-party account books, certificates, instructions and other materials were provided to the defendant after public security organs obtained them;  

3. Notes from public security questioning were taken by public security and then provided to the defendant;

4. Bank statements etc were provided to the defendant after they were obtained from the bank by public security;

5. Inspection process documents and notes were produced by the defendant; 6. Tax records, inspection materials and certificates from tax organs were obtained by the defendant.”

This indicates that most of the evidence that the defendant cited in the Fake tax case and for making a decision came from the Public Security Bureau.

Fake believed that: first, the evidence “transferred” from public security organs was obtained while violating legal procedures. It therefore constituted illegal evidence and should be discounted. Second, the Law on the Administration of the Levy and Collection of Taxes has given tax organs tax inspection rights through legal means. This is the responsibility of the tax organs, and the public security organs should not be investigating on their behalf.

The Second Tax Inspection Bureau argued that the public security organisations exercise judicial authority. According to the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes, tax organs have the right to obtain relevant documents from organisations including public security organs. Based on this, obtaining evidence from public security organs is legal.

Fake believed that the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes gave tax organs the right to investigate “relevant organizations and individuals, regarding taxpayers, withholding agents and other parties and their situation regarding tax payments or tax withheld and remitted or collected and remitted”. This is completely different from public security investigating taxpayers and transferring evidence, so the defendant’s response was irrelevant.

1.2.2. None of the evidence had been crossexamined. This should be regarded as a lack of factual basis. During the hearing procedure, the bureau presented only part of the review document. It had not been checked. During the trial, the plaintiff’s right to cross-examine was also removed by the court.

1.2.3. In order to comply with public security, coercive methods were used to obtain evidence. The Second Tax Inspection Bureau and public security, on condition of “bail”, coerced Ai Weiwei, who was in prison, to sign a “recognition of alleged tax violations” on 22 June 2011.
This was self-incrimination, and was used as forceful evidence that Fake had evaded taxes. It would be hard to imagine that the “recognition of alleged tax violations” could be a legal document at the tax inspection trial stage. However, it appeared at the previous tax inspection stage, as if a man-made satellite had appeared in the Qin or Han Dynasty.

1.2.4. The tax inspection work had no statutory elements or contents.

The Second Tax Inspection Bureau did not have documents such as the “tax inspection working paper”, “tax inspection report” and “tax inspection trial report”. The contents of the “decision declaration” were incomplete. It did not mention how the “tax evasion” amount or the late-payment penalty amount were calculated.

1.2.5. The hearing process violated the law. The Second Tax Inspection Bureau did not conduct an open hearing on the basis that the case involved commercial secrets. This reason is not valid, and the facts later confirmed that the socalled commercial secrets did not exist.

1.3. Beijing Local Taxation Bureau

The bureau carried out the review. On 2 February 2012, Fake applied to the bureau for a review of the documents and hearing attendance. On 27 and 28 March the document inspection started. On 29 March, the bureau made a decision about the review. Not only did it refuse to conduct a hearing, it made a decision about the review in less than 12 hours after the lawyers finished inspecting the document. They deprived the attorney of his right to state his case and the right to defence.

1.4. Beijing Chaoyang District People’s Court

Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chao - yang District Court. The hearing was held on 20 June 2012.

1.4.1. It was called an open trial but in fact it was a secret trial. A trial as conspicuous as this was arranged in a small court, which could hold five spectators only. Five insiders were arranged to take up all the seats, and Fake was not allocated any spectator seats.

1.4.2. The court did not carry out its obligation in collecting evidence. Fake had previously requested the court to provide evidence of the plaintiff’s account books and certificates that were confiscated by public security, but the court had decided not to collect the evidence prior to the court session, nor had it sent a notification to the plaintiff saying that collecting this evidence was not allowed.

When Fake asked the court about this, the collegiate bench said, “We will answer this after the trial opens.”

1.4.3. The court did not carry out its obligationto call witnesses. Fake applied to summon Liu Zhenggang, Hu Mingfen and others as witnesses, but the court did not inform them. It claimed that the obligation to notify lay with the plaintiff. Fake asked for the defendant’s law- enforcement officials – ten people, including You Pengnan – to testify, but the court did not arrange for it.

On the contrary, however, after the court opened, You Pengnan appeared, representing the defendant. Fake raised an objection, but the collegiate bench replied that the company should raise it again after the trial.

1.4.4. The court removed the plaintiff’s right to present evidence. Fake requested evidence
from the collegiate bench prior to the opening of the court, but received no response. On 20
June in the morning, Fake went to the Three Shadows Cultural Exchange Centre and obtained evidence partly sufficient to overrule the decision. In the afternoon of 20 June, before the court opened and three times during the court session, the evidence was presented to the collegiate bench, but the court did not accept it, because it “overran the deadline for presenting evidence”.

1.4.5. The court refused to investigate the legitimacy of the sources of the evidence. According to law, the defendant can collect his own evidence, but it was all collected by public security authorities. More than 95 per cent of the evidence on administrative behaviour presented by the defendant was collected by public security organs.

Public security intervened in the tax case illegally, and the evidence was illegally obtained from detainees, which was not legitimate. Therefore, the plaintiff asked for the above evidence to be discounted. However, the court claimed that “the legitimacy of the public security investigations is not within the range of this court’s hearing”.

1.4.6. The court refused the plaintiff’s legitimate request to check the original evidence documents, and illegally removed the plaintiff’s right to cross-examination. During the session, the defendant failed to present any original documents for evidence. The presiding judge, Wu Nan, upon the request to see the documents, repeatedly struck his gavel and said, “As for the documents, the court has already made a decision; do not bring it up again!”

The court “summarised” when questioning the evidence and did not control the questioning time reasonably. Pieces of evidence numbering a thousand pages were given five minutes for questioning: on average, less than one second for every page of evidence. If the time exceeded five minutes, then the questioning would be regarded as abandoned.

1.4.7. The court removed the plaintiff’s right to debate. The plaintiff’s speech was repeatedly interrupted by the judges and was counted down. During the debate stage, three attorneys spoke for only ten minutes in total. The plaintiff could not fully express an opinion.

1.4.8. For these reasons, the plaintiff considered that the collegiate bench could not carry out this trial justly, and therefore requested the court to withdraw the case.

After the court was adjourned, the collegiate bench refused the request. The plaintiff appealed the decision, and the Chaoyang District Court refused orally, refusing to offer any written documentation.

1.4.9. The court refused to allow the litigants and the representatives to copy the court notes.
After the hearing, the court administrative divisional director promised the defendant that the following day at two o’clock in the afternoon they could come to the court to copy the notes, but the next day when they went to court, copying was no longer permitted, the court citing internal regulations.

1.4.10. The order of legal procedures was swapped when the court refused Fake’s request for evidence only after the trial. On 7 June 2012, Fake made its “application for collecting evidence” to the court.  The court did not respond. Yet after the court opened on 4 July, it decided not to allow any evidence to be collected. The reason given was that the defendant “did not meet the conditions for requesting evidence”. However, the decision did not contain a notification, required by law, to specify “which group and which piece of evidence violated which condition for evidence collection”.

2. Focus of controversy over the facts of the case 

Global Times, a subsidiary of the Chinese official newspaper the People’s Daily, published an editorial, entitled “The law will not bend for mavericks”, on the Ai Weiwei tax case, saying that certain western governments and “human rights organisations” had attacked China with strong commentary without understanding the true situation.

What is the truth behind the Ai tax case? Fake Ltd was established by the shareholders Lu Qing and Liu Zhenggang. Lu Qing was the legal representative and the wife of Ai Weiwei. Liu Zhenggang was business manager, responsible for company operations. The company’s income came mainly from design services. Ai Weiwei was not a staff member of Fake, but provided guidance and advice to the design services of Fake as an independent artist.

Fake went into operation in 2001. The tax organs believed that, over ten years of operation (until 2010), Fake concealed three counts of income, totalling 15,823,724.36 yuan. They pursued unpaid taxes of 5,263,756.61 yuan, a fine for overdue payment of 3,190,331.52 yuan and a penalty of 6,766,822.37 yuan, totaling 15,220,910.50 yuan.

Regarding the facts, the parties were in controversy over the following:

2.1. Who was the tax-paying entity for these three projects with alleged tax issues?

The standard for determining the tax-paying entity depends not on form, but on substance. This is the so-called principle of substance over formality in tax law. The heart of the problem is, who was the true controller of these three projects? Usually the actual controller is determined by who has the right to dispose of and the right to benefit from income. In tax law, the object of the test to determine the right to dispose of and the right to benefit from income is the sum of income. The public security organ, tax organ and the lawyers of Fake all acknowledged that Liu Zhenggang disposed of and controlled the project funding in the case. It is a shame that the conclusion drawn by each party was very different.

2.2. Was it tax evasion?

Regardless of whether the tax-paying entity was Ai Weiwei, Fake Ltd or Liu Zhenggang, the fact that tax duty had not been declared on the income for the three engineering projects is not in dispute. The key to the problem is, does the failure to declare taxable income constitute tax evasion?

According to China’s Law on the Administration of the Levy and Collection of Taxes, there are generally three types of failure to declare tax duty:

2.2.1. “Tax evasion”: falsely filing or deliberately failing to file taxes, causing an underpayment
of tax, following Term 63 of the Law on the Administration of the Levy and Collection of Taxes. This is breaking the law. If it reaches a certain ratio, it constitutes a crime.

According to Term 201 of the Criminal Law, it is the crime of evading payment of tax. The constituents must consist of the resulting elements, namely underpayment of tax and of a clear amount.

2.2.2. “Tax leakage”: not deception or concealment, but human error causing underpayment of tax, according to Term 64, Article 2 of the Law on the Administration of the Levy and Collection of Taxes. It counts as a normal administrative offence, not a criminal offence.

2.2.3. “Making up tax”: underpayment of tax caused by reasons not related to the actor (including incomplete factors in levying tax), as in Article 35 of the Law on the Administration of the Levy and Collection of Taxes. For example, where, although it is clearly income, the expenditure can’t be verified. The tax organ, by approving the profit rate, makes complete the factors in levying tax to realise the aim of levying tax. This type of underpayment of tax is the result of the expansion of administrative powers of the tax organs. It is not breaking the law, so the authorities cannot levy an overdue payment fine or penalty fine.

The contention of this case is focused on the dispute between “tax evasion” and “making up tax”. A simplified breakdown illustrates:

According to the law, when the cost is difficult to verify, an estimated tax should be levied. It should not be handled as a case of tax evasion. When the costs and expenses of a project cannot be checked, it cannot be asserted that the party has been evading tax.

2.3. The issue of verifying costs and expenditures for the three projects

The Second Tax Inspection Bureau said, “The defendant, upon confirming the total amount of taxes that the plaintiff should have paid, has also confirmed the costs related to the taxable income and subtracted it according to regulations.”

The plaintiff believed that the three projects that the tax bureau considered as evading taxes are defined by incomes that greatly mismatch with their costs. The Second Tax Inspection Bureau verified the income of the Boya Garden project as 1,107,716.00 yuan and its costs as nil. That goes against common sense. Income from the Three Shadows and Upper House projects was 14,716,008.36 yuan, the confirmed cost was nearly 1,047,349.39 yuan and the rate of profit was 92.88 per cent.

The costs were ridiculously low because the public security and tax organs jointly and deliberately concealed evidence of costs. For example, it has already been proved that Three Shadows, upon requests from the public security organ, presented it with receipts for expenditure of 3,738,551.06 yuan for materials used in the project. However, the total cost for all three projects that the tax organ received from the public security organ was only 1,047,349.39
yuan, less than a third of the cost for one project. Through this kind of deliberate selection of evidence, the profits of the projects were artificially enhanced to frame the company.

3. Conclusion

When one looks at the overall progress of the case, it is clearly an erroneous lawsuit. How could it have proceeded so smoothly? Because all the processes had already been arranged. The tax law-enforcement organ, the administrative review organ, the judicial court or representative lawyer were all following a set course. Administrative surveillance, independent trial and lawyer participation had no opportunity to exercise their rightful functions.

Tax cases such as that of Fake are ubiquitous in China. Unjust cases of sanctioning a party through tax means are also common. Most of the affected parties choose to remain silent in exchange for a reduction of the penalty by the tax organisation.

Fake used all means to fight its case, exposing illegality at each stage. This is unprecedented. The wish is that, through the heavy price paid by Fake, through the price for freedom paid by a person who doesn’t believe in following trends and who dares to speak the truth, we can make progress in China’s law enforcement.

The information used in this article was provided by Ai Weiwei’s lawyers

This article first appeared in the 22 October 2012 issue of the New Statesman, Ai Weiwei guest-edit

Andre Carrilho
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Putin's revenge

Twenty-five years after the demise of the Soviet Union, Russia is consumed by an insatiable desire for recognition as the equal of the USA.

President Trump meets President Putin. It’s the most eagerly awaited encounter in world politics. Will The Donald thaw the New Cold War? Or will he be trumped by “Vlad” – selling out the West, not to mention Ukraine and Syria?

The Donald v Vlad face-off comes at a sensitive moment for the Kremlin, 25 years after the demise of the USSR on Christmas Day 1991 and just before the centenary of the Russian Revolution. Were the heady hopes at the end of the Cold War about a new world order mere illusions? Was Mikhail Gorbachev an aberration? Or is Putin rowing against the tide of post-Cold War history? How did we end up in the mess we’re in today?

These are some of the questions that should be explored in Trump’s briefing book. He needs to get to grips with not only Putin, but also Russia.

 

****

Today President George H W Bush’s slogan “new world order” sounds utopian; even more so the pundit Francis Fukuyama’s catchphrase “the end of history”. But we need to remember just how remarkable that moment in world affairs was. The big issues of the Cold War had been negotiated peacefully between international leaders. First, the reduction of superpower nuclear arsenals, agreed in the Washington treaty of 1987: this defused Cold War tensions and the fears of a possible third world war. Then the 1989 revolutions across eastern Europe, which had to be managed especially when national boundaries were at stake. Here the German case was acutely sensitive because the Iron Curtain had split the nation into two rival states. By the time Germany unified in October 1990, the map of Europe had been fundamentally redrawn.

All this was accomplished in a spirit of co-operation – very different from other big shifts in European history such as 1815, 1871, 1918 and 1945, when great change had come about through great wars. Amid such excitement, it wasn’t surprising that people spoke of a new dawn. This was exemplified by the unprecedented working partnership between the US and the USSR during the First Gulf War in the winter of 1990-91 to reverse Saddam Hussein’s invasion of Kuwait. Bush and Gorbachev agreed that they shared a set of “democratic” and “universal” values, rooted in international law and in co-operation within the United Nations.

The new order of course assumed the continued existence of the Soviet Union. Despite the USSR’s growing economic and political problems, no one anticipated its free fall in the second half of 1991. First came the August coup, an attempt by a group of anti-Gorbachev communist hardliners to take control of the Union. Their failed putsch fatally undermined Gorbachev’s authority as Soviet leader and built up Boris Yeltsin as the democratic president of a Russian republic that was now bankrolling the USSR. Then followed the independence declarations of the Baltic states – Estonia, Latvia and Lithuania – and crucially Ukraine, which precipitated the complete unravelling of the Union. And so, on Christmas Day 1991, Gorbachev became history, and with him the whole Soviet era. It seemed like the final curtain on a drama that had opened in Petrograd in 1917. A grandiose project of forced modernisation and empire-building pursued at huge human and economic cost had imploded. The satellites in eastern Europe had gone their own way and so had the rimlands of historic Russia, from central Asia through Ukraine to the Baltic Sea. What remained was a rump state, the Russian Federation.

Despite all the rhetoric about a new world order, no new structures were created for Europe itself. Instead, over the next 15 years, the old Western institutions from the Cold War (the Atlantic Alliance and the European Union) were enlarged to embrace eastern Europe. By 2004, with the inclusion of Lithuania, Latvia and Estonia, Nato and the EU reached the borders of Russia, less than 100 miles from St Petersburg.

Initially the West’s eastward expansion wasn’t a big problem. The Kremlin did not feel threatened by the EU because that was seen as a political-economic project. Nato had been repackaged in 1990 as a more political organisation. Indeed, four years later, Russia joined the alliance’s “Partnership for Peace”. And in 1997, when Nato announced its first enlargement to include Poland, Hungary and the Czech Republic, Russia was invited to join the alliance’s new Permanent Joint Council. That same year, Russia became a member of the G8. In short, during the 1990s the consensual atmosphere of 1989-91 seemed to be maintained.

But Yeltsin failed to create a new Russia from the ruins of Soviet communism. Between 1989 and 1992, as the command economy disintegrated, inflation soared and national income fell by one-third – a crash as spectacular as those America and Germany had suffered in the early 1930s. The largest and fastest privatisation that the world had seen created a cohort of super-rich oligarchs. Crime and corruption became rampant, while millions of Russians were condemned to penury. “Everything was in a terrible, unbelievable mess,” Yeltsin’s adviser Yegor Gaidar later admitted. “It was like travelling in a jet and you go into the cockpit and you discover that there’s no one at the controls.”

Meanwhile, the proliferation of political parties resulted in chaos. Yeltsin managed to hang on, thanks to increasingly autocratic rule. In October 1993, after several months of wrangling over the balance of power between executive and legislature, he used army tanks to shell the parliament building in Moscow and imposed a new constitution built around a strong presidency. This and a succession of contrived referendums kept him in power for the rest of the decade. Finally, on New Year’s Eve 1999, an ill and exhausted Yeltsin orchestrated his own departure. Declaring that he would hand over to “a new generation” that “can do more and do it better” at the start of a new millennium, he said that he was conveying his powers to an acting president.

His designated successor was an apparently unassuming little man called Vladimir Vladimirovich Putin.

***

Who was Putin? Where had he come from? Most immediately he had been prime minister since August 1999 – the sixth man to serve as Yeltsin’s premier. Yet he had made his career as a discreet outsider, often underestimated by those around him. In fact, he was a long-serving KGB officer: he joined in 1975, at the age of 23, entering a culture that would define his persona and outlook.

Crucially, the Gorbachev era was almost a closed book to Putin: he never experienced the intoxicating passions of reform politics within the USSR – perestroika, glasnost and demokratizatsiya – because he spent 1985 to 1990 as a case officer in Dresden in East Germany. To him, Gorbachev’s reforms signified destruction: an empire discarded and a country ruined. During the 1990s, as Putin rose through the ranks of the city administration of his home town St Petersburg and was then moved to Moscow, he witnessed the disastrous effects of chaotic privatisation, the erosion of Russia as a great power and the collapse of the national economy.

Out of the traumatic 1990s came Putin’s passion for a strong state. He spelled this out in a 5,000-word document entitled Russia on the Threshold of the New Millennium, published on the Soviet government website on 29 December 1999. In it, he stated bluntly that the Bolshevik experiment had totally failed. “Communism and the power of the Soviets did not make Russia into a prosperous country,” he wrote. It had been “a road to a blind alley which is far away from the mainstream of civilisation”.

Putin welcomed recent “positive changes”, especially the Russian people’s embrace of “supranational universal values” such as freedom of expression and travel, as well as “fundamental human rights and political liberties”. But he also highlighted traditional “Russian values”, especially patriotism – pride in “a nation capable of great achievements” – and “social solidarity”, which, he asserted, had “always prevailed over individualism”. He did not believe that Russia would become “a second edition of, say, the US or Britain, in which liberal values have deep historic traditions”. What he presented as “the new Russian idea” would be “an alloy or organic unification of universal general values with traditional Russian values which had stood the test of the times, including the test of the turbulent 20th century”.

Woven into Putin’s manifesto was a distinctive conception of his place in politics. He envisaged himself as a “statesman” in the Russian sense – meaning a builder and servant of the state, in a country where the state has always been seen as superior to society and the individual. He considered the true leader to be above mere electoral politics, occupying a more permanent position as the guardian of state interests. He looked back admiringly to the autocratic reformers of the late tsarist era – men such as Nicholas II’s prime minister Pyotr Stolypin – and had no time for Gorbachev and Yeltsin, who had both been submerged by democracy and had undermined the state.

Above all, he believed that Russia had to resume its rightful historic place as a “great power”. He considered the vicissitudes of the 1990s an aberration that had to be overcome. Adapting one of Stolypin’s celebrated phrases, he liked to say that the people did not need “great upheavals”. They needed “a great Russia” – with a “strong state” as the “guarantor of order” and the “main driving force” of any durable change.

The “acting president” was elected in his own right in March 2000 and won re-election in 2004 for another four years. During the 2000s Putin concentrated on kick-starting the economy, bringing the oligarchs of the Yeltsin era under firm control and building monetary reserves, aided by rising prices for Russia’s oil and gas. This enabled the country to survive the financial crisis of 2008 and stood in marked contrast to a decade earlier, when the Asian crash of 1997-98 led Russia to default on its foreign debt and devalue the rouble. In rebuilding prosperity and pride, Putin earned the gratitude of millions of Russians, scarred by the poverty and humiliations of the Yeltsin era.

Showing himself off as a military strongman, he targeted Chechnya, which had claimed independence in 1991. Yeltsin had failed to tame the anarchic north Caucasus republic in the Chechen War of 1994-96; Putin imposed direct Russian rule brutally in the first year of his presidency, reducing the Chechen capital, Grozny, to rubble in 2000.

Increasingly secure at home, he began to reassert Russian power in the international arena. Initially, this did not involve confrontation with the West. He co-operated with the US in the post-9/11 “war on terror”, though he didn’t support the toppling of Saddam Hussein in Iraq, abstaining from the Bush-Blair mission of forceful regime change. In 2003-2004 he protested but ultimately accepted the Orange Revolution in Ukraine and the accession of the Baltic states into Nato and the EU – even if the Kremlin regarded them as part of Russia’s “near abroad”. In 2007, however, Washington’s plans for a Nato missile defence “shield” in eastern Europe (deploying interceptor missiles and radar tracking systems), officially justified as protection against “rogue states” such as Iran, prompted Russia to withdraw from the Conventional Forces in Europe (CFE) treaty. This was part of the fabric of co-operation woven in 1990-91. Nevertheless, foreign policy wasn’t Putin’s priority in his first stint as president.

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In 2008, after two terms in office, Putin was obliged under the constitution to step down from the presidency. Under a notorious job swap, however, he was elected as prime minister to the new (nominal) president, Dmitry Medvedev, who within months pushed through a law extending the term for future presidents from four to six years. Then, in September 2011, Putin announced that he would run for the presidency again.

For millions of Russians, this second job swap seemed a cynical power play. Putin won the election of March 2012, naturally – the Kremlin machine ensured that. Yet he gained only 64 per cent of the vote despite having no serious opposition. Rural areas run by local clans tied to him were easily manipulated, but in many big cities, including Moscow, he polled less than 50 per cent.

The 2012 election campaign was the moment when Putin’s conception of the statesman-strongman collided with the democratic expectations of Russia’s perestroika generation, now coming of age. It marked a crunch point in the history of post-Soviet Russia – a clash between different models of the country and its future. Ranged against Putin were those whom the opposition leader Vladimir Ryzhkov, of the liberal People’s Freedom Party, called the new “mass middle class”, formed over the previous two decades. Taking to the streets in protest against the Putin-Medvedev “tandem” were managers, engineers, journalists, lawyers, IT specialists and the like. For these people, Putin had passed his sell-by date. After his announcement that he wanted another term in the Kremlin, images circulated on the internet of an aged Putin dissolving into the geriatric visage of Leonid Brezhnev – whose near-two decades in office symbolised the “era of stagnation” that Mikhail Gorbachev had swept aside.

Social media was transforming urban Russia. Between 2008 and 2012 internet penetration among the over-16s doubled from 25 per cent to 50 per cent. Russia had its own version of Facebook: VKontakte. The Kremlin’s alarm at the upsurge of virtual opposition and street protest was intensified by the Arab spring in 2011. Much international comment highlighted the role of a young “Facebook Generation” in countries such as Egypt and Tunisia, fostering a “digital democracy” that toppled long-standing autocrats – supposedly financed and supported by Washington. Putin liked to claim that the protests in Russia had also been stirred up and/or funded by the then US secretary of state, Hillary Clinton. Little wonder that one of his priority projects after winning the 2012 election was refining a sophisticated system of internet surveillance known as Sorm, run from part of the old secret-police headquarters of Lenin’s Cheka and Stalin’s KGB in Lubyanka Square, Moscow. With that in mind, the oppositionist Ryzhkov declared that even though Russian society was now very mature and “European”, the regime was “still Chekist-Soviet”. This, he said, was the “main contradiction” in contemporary Russia.

The domestic protests and the Arab spring threatened Putin’s determination to rebuild Russia’s position in the world and consolidate its sphere of influence in the “near abroad”. He focused on a “Eurasian Union”, an idea first touted in the 1990s by some central Asian states, notably Kazakhstan, but picked up in earnest by Putin after 2011. Yet, for him, the crux of a viable Eurasian bloc lay in the west, not the east: in Ukraine, with 45 million people, a strong industrial base, and its critical geopolitical position. Putin didn’t just see Ukraine as Russia’s historic “borderland”. Celebrating Kievan Rus – the original east Slavic state of the 9th to 13th centuries – he insisted that Kyiv was “the mother of Russian cities”. Keeping Ukraine within Moscow’s sphere of influence was a red-line issue for the Kremlin.

That line was crossed in February 2014. For a decade Ukraine – an ethnically fractured country (78 per cent Ukrainian; 17 per cent Russian) – had hovered between Russia and the West, depending on the latest change of leaders in this corruption-riddled state. In November 2013 the Russia-leaning Ukrainian president, Viktor Yanukovych, stalled Ukraine’s long-discussed “association” agreement with the European Union. Thousands of pro-EU protesters surged into Maidan Nezalezhnosti (Independence Square) in Kyiv.

In the face of repressive police measures, the mass demonstrations continued for three months and spread across the country, including the Crimea, where Russians were the majority, bringing Ukraine to the brink of civil war. Yanukovych fled Kyiv for Russia on 21 February 2014. The next day Putin began a campaign of retaliation, culminating in the forcible annexation of the Crimea, rubber-stamped by a referendum in which (officially) 96.77 per cent of the Crimean electorate voted to join Russia.

For the West, Putin had finally overstepped the mark, because the Crimea had been part of Ukraine since 1954. Putin claimed that the Russian inhabitants of the region were invoking the right to “self-determination”, just like the Germans during unification in 1990, or the Albanians in Kosovo in 1999 when seceding from Yugoslavia. But in the West, Russia’s military intervention in an independent state was condemned as a flagrant breach of international law. The US and the EU imposed political and economic sanctions against Russia, precipitating a financial crisis and a collapse of the stock market. By the spring of 2016 the rouble had fallen 50 per cent in two years. This was coupled with a halving of the price of oil, on which Russia’s economy depends. The country slid into recession, reversing the economic success of the president’s first stint in power.

Yet the slump does not appear to have damaged his domestic popularity severely. The state-controlled media whipped up patriotic fervour: Russia v the West. And Putin – the “History Man”, as Fiona Hill and Clifford Gaddy dub him in their book Mr Putin – has deliberately constructed his own version of the recent past to justify his actions. Playing on the trauma and humiliation of the Soviet break-up, he appealed to national pride, touching the emotions of millions of Russians.

Putin has presented his intervention in the Crimea (and subsequently eastern Ukraine) as an assertion of Russia’s right as “an independent, active participant in international affairs”. In a major policy statement on 18 March 2014, he harked back to the era of “bipolarity” as a source of “stability”, arguing that America’s arrogant attempts after 1991 to create a “unipolar” world, exacerbated by Nato’s progressive enlargement, had pushed his country into a corner.

It was not just that Kyiv’s turn towards the EU threatened to detach Ukraine from Russia and its “Eurasian” sphere; talk about actually joining Nato raised the spectre of the Western military alliance being “right in our backyard” and on “our historic territory”. Putin conjured up the prospect of Nato warships entering the Black Sea and docking in Sevastopol, that “city of Russia’s military glory” – a “real threat to the whole of southern Russia”. Enough was enough, he declared: “If you compress the spring all the way to its limit, it will snap back hard.”

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To Western eyes the story looked very different. The enlargement of the EU and Nato was driven less from Brussels and Washington than by the desire of eastern European countries to escape from the clutches of “the Bear”. Putin had tolerated the loss from Russia’s “near abroad” of Warsaw Pact states from Poland to Bulgaria, but the Baltic states (former Russian imperial territory) were a very different matter. Estonia, Latvia and Lithuania had won their independence from the tsarist empire after the First World War, only to be absorbed into the Soviet Union after the Second World War. For the Balts, 1991 therefore represented the rebirth of freedom and statehood; they saw membership of the institutional West – the European Union and Nato – as an essential guarantee of national security.

Nato has become a “four-letter word” for Russia and one can argue that, ideally, the “new world order” should have been based on new institutions. But in 1989-90 the persistence of Nato was essential to allay European fears, not least in the USSR, about a unified Germany at the heart of the continent. There was no discussion at this moment about Nato’s further extension beyond Germany, let alone a firm pledge that it would not. Contrary to Putin’s assertions, an expansionary blueprint did not exist.

Whatever the arguments about ­history, however, relations between Russia and the West are deadlocked. So are we in a “New Cold War”, as touted by the Russian government since Dmitry Medvedev’s speech to the Munich Security Conference in February 2016? In fundamental ways: no. Russia and America are not engaged in an all-encompassing global power struggle, military, political, economic, cultural, ideological. The new Russia is essentially capitalist and fully integrated into the world economy, with a multitude of trade and financial links with the West.

Despite bellicose rhetoric at the top, Russian and US diplomats talk and work together behind the scenes, not least in the recent selection of a new UN secretary general, António Guterres. Above all, the language of “unipolarity” and “bipolarity” no longer reflects the reality of international affairs: a “multipolarity” of world powers, a profusion of “non-state actors” capable of terrorism and warfare, and potent transnational forces, notably mass migration – all of which are deeply destabilising. This is very different from the Cold War.

Amid this new world disorder, today’s Russian-American stand-off revolves around differing approaches to international relations. Putin’s policy is rooted in traditions of great-power politics: the control of territory and the assertion of state sovereignty, especially within what Russia regards as its historic sphere. By contrast, the United States, albeit erratically, has promoted humanitarian interventionism, pursued regime change and indulged in the rhetoric of global democracy, especially since the 9/11 attacks.

So, why the divergence? One can say that the West has failed to pay consistent attention to Russia’s sensitivities about its post-Soviet decline. Nor has it given due recognition to the reality of Russia as a great Eurasian power. On the other side, Putin has increasingly pulled his country out of the network of co-operative political forums and agreements forged with the West in the aftermath of the Cold War. He has also challenged the independence of small states on Russia’s periphery. Today, abandoning any vestiges of entente with America, Putin seems to believe that Russia can regain its great-power status only by distancing itself from the West and by overtly challenging the US in hot spots around the world. This is very different from the world imagined by Bush and Gorbachev and pursued to some degree by Bill Clinton and Boris Yeltsin. Putin is undoing what he sees as a “democratic” peace, made to Russia’s geopolitical disadvantage in 1989-91.

Take Syria: Putin knew that Barack Obama had no stomach for wholesale military intervention on such a fragmented battleground, where few direct US interests are at stake. As an appalling human tragedy has unfolded, especially in Aleppo, Putin has exploited his free hand by despatching Russia’s sole (Brezhnev-era) aircraft carrier, the Admiral Kuznetsov, to Syrian waters and building a Russian airbase near the key port of Latakia. US passivity has allowed him to establish a novel, if tenuous, military presence in the eastern Mediterranean and thereby to strengthen his position in the Middle East as a whole.

On the Baltics, Washington drew a firm line last summer: Nato’s Warsaw summit in July 2016 committed Alliance troops and aircraft to each of these states by way of a token but unequivocal act of deterrence. Putin responded by further beefing up the Russian short-range nuclear arsenal in Kaliningrad. This tit-for-tat in the Baltic Sea area is likely to spiral.

In the standoff over Ukraine – where Russia has done nothing to end the fighting – the Americans have been content to let Angela Merkel take the lead in trying to broker a peace deal. While playing tough in the Baltic, she has kept open channels of communication with Putin over Ukraine. Significantly, the president has not spurned her offer to talk. The two can converse without interpreters, in German and in Russian; Merkel seems to be one of the few foreign leaders for whom Putin entertains a certain respect, if only because she recognises Russia’s need to be taken seriously.

Nevertheless, all these various power plays reflect essentially conventional ways by which Putin seeks to unpick 1989-91. More significant is the Kremlin’s increasingly aggressive avant-garde methods of combating the Western “bloc” of liberal democracies – by manipulating transnational financial and commercial ties, spinning the global media and steering policy discourse in target states. Russia can leverage its relative weakness if it cleverly exploits its post-Cold War immersion within the global capitalist system and Western popular culture as a kind of “Trojan Horse” .This is what Putin’s personal adviser Vladislav Surkov has termed “non-linear war”.

It is no secret that, in this vein, Moscow used cyber-power in an attempt to mould American opinion during the 2016 presidential election campaign. For all the media hype about hacked computer systems and leaked emails, the Kremlin’s information warfare is not that innovative. After all, the underlying concepts and most of the techniques were developed by the USSR (and equally by the United States) to interfere in other countries’ internal affairs during the Cold War. Let’s not forget that the young Mr Putin was schooled in KGB Dresden.

So, although we may not be back in the era of bipolarity, some of the new ways are also old ways. Under Putin, Russia seems to have resumed its historic quest for position against the West and its insatiable desire for recognition as America’s equal. Will it ever be possible to forge a stable “alloy” blending “universal” and “Russian” values? That would truly be a Russian revolution. l

Kristina Spohr (London School of Economics) and David Reynolds (Cambridge) are the co-editors of “Transcending the Cold War” (Oxford University Press)

This article first appeared in the 12 January 2017 issue of the New Statesman, Putin's revenge