Russia and its Constitution: Promise and Political Reality

Russia and its Constitution: Promise and Political Reality

Law in Eastern Europe A series published in cooperation with the Institute of East European Law and Russian Studies of Leiden University, the Universities of Trento and Graz and the European Academy of Bozen/Bolzano General Editor William Simons No. 58

Russia and its Constitution: Promise and Political Reality

Edited by Gordon B. Smith and Robert Sharlet

Leiden • Boston

A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISSN 0075-823X ISBN: 978 90 04 15535 0 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change.

Printed and bound in The Netherlands.

This book is dedicated to the memory of John N. Hazard mentor, colleague and friend

Table of Contents Acknowledgments Preface William B. Simons Introduction: The Promise of the Russian Constitution Gordon B. Smith Chief Justices of the Constitutional Court of the Russian Federation: 1990 to the Present

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Part I: Constitutional Promise and Political Realities Chapter 1: Constitutionalism and Accountability in Contemporary Russia:The Problem of Displaced Sovereignty Richard Sakwa

1

The relationship between constitutional accountability and the imperatives of governability is viewed through the gap between formal and informal politics and para-constitutional practices. Sakwa concludes that Putin’s emphasis has been on short-term stability, leaving unresolved underlying contradictions, and para-constitutional actions which, while not formally infringing the letter of the Constitution, undermine the spirit of constitutionalism.

Chapter 2: The Russian Constitutional Court’s Long Struggle for Viable Federalism Robert Sharlet

23

The question asked is why did the search for a symmetrical federal system proceed so poorly under El’tsin, yet prove to be more effective under Putin. Attention is given to the Constitution’s ambivalence—intent is clearly toward symmetrical federalism, but a constitutional back door was left open for asymmetrical exceptions. Executive policies and leading Constitutional Court cases on federal issues under each president are reviewed, as well as relevant implementation problems and legal and political cultural factors. Sharlet concludes that Putin’s federal campaign, while more successful, met provincial resistance. His response has been to move from elected to appointed governors.

Chapter 3: Russia’s Constitutional Spirit: Judge-Made Principles in Theory and Practice Alexei Trochev An analysis of how the Constitutional Court is forging a constitutional culture by developing a jurisprudence of individual rights based on its elucidation of universal but unwritten legal principles it holds to be inherent in the Russian Constitution. In building its rights jurisprudence, the Court has drawn

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Russia and its Constitution: Promise and Political Reality on international legal norms found in UN and European rights documents. Constitutional Court cases are discussed to illustrate the found principles of equality and fairness. In conclusion, Trochev observes that the Court’s ultimate challenge in the long run will be to persuade government officials that its rights decisions should prevail over traditional Russian habits of governance.

Part II: Constitutional Practice and Legal Obstacles Chapter 4: Press Freedom in Russia: Does the Constitution Matter? Peter Krug 79 A careful exploration of the status of the constitutional right of freedom of the press in Russia, with the emphasis upon the judiciary’s ambivalent role in the process. Often the courts have abstained from protecting press freedom by finding for competing constitutional and statutory claims, although Krug notes a possible trend toward judicial engagement on behalf of media rights as a result of the influence of case law from the European Court of Human Rights.

Chapter 5: The Procuracy: Constitutional Questions Deferred Gordon B. Smith

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A systematic examination of the still unresolved constitutional status of the Procuracy in the Russian legal system. Having weathered several reform attempts to scale back its ample powers largely inherited from the Soviet system, Smith concludes that—with the exception of its erstwhile control over arrest and search warrants—the Procuracy continues to exercise considerable authority over both legal process and administrative behavior in Russia.

Chapter 6: Modern Russian Criminal Procedure: The Adversarial Principle and Guilty Plea Stanislaw Pomorski A close study of the implementation of a defendant’s constitutional right to adversarial proceedings based on equality of the parties in a criminal trial through its codification in the new post-Soviet Russian Code of Criminal Procedure. Many jurists have criticized the Code’s corresponding redefinition of the court from an active participant in the trial in the former Soviet and Continental legal tradition, to a neutral, passive guarantor of adversariness and equality during the proceedings.

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Chapter 7: Jury Trial and Adversary Procedure in Russia: Reform of Soviet Inquisitorial Procedure or Democratic Window-Dressing? Stephen C. Thaman

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A comparative-historical analysis of current Russian jury practice in the context of its nineteenth-century Russian antecedent and contemporary European experience. Special attention is given to cases illustrating the questions jurors must answer in reaching their verdict, including the question of intent. Instances in which a jury might mitigate a law’s impact sub rosa are also discussed. Finally, Thaman criticizes the Russian Supreme Court’s high rate of reversing jury verdicts of acquittal as a violation of defendants’ constitutional right to trial by jury.

Chapter 8: Russia’s Constitutional Project and Prospects for the Future Gordon B. Smith

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Assessing Russia’s progress of constitutional development requires adopting a comparative developmental approach—neither measuring Russia’s performance with abstract ideals, nor comparing it with the most advanced, evolved legal and constitutional systems. Smith surveys constitutional developments in the United States during its early years, post-war evolutions in Germany and Japan, and post-colonial developments in India, and concludes that Russia’s uneven path of constitutional development is neither unusual nor as bleak as some commentators allege. It remains a work in progress.

About the Authors List of Russian-Language Abbreviations Index

195 199 201

Acknowledgements Constitutions do not spring forth fully developed and self-executing. Rather, they develop and evolve organically through time as nations encounter new conditions, public expectations change, governing institutions grow as power shifts among them, and international norms evolve. This book brings together a group of seven distinguished scholars on Russian politics and law to assess the promise and the realities of Russian constitutionalism in the years since the ratification of the Constitution of the Russian Federation. Collaboration among several of the contributors to this book has been a career-long endeavor, spanning more than thirty years. None of us would have predicted thirty years ago that the USSR would collapse, a new more democratic system would evolve and we would be compiling a set of papers to assess Russia’s efforts to live up to internationally recognized standards of political accountability, federal power-sharing, judicial independence, press freedom, and fair and equitable criminal procedure. Not surprisingly, the record of Russia living up to the aspirations and promises embedded in the new Constitution is mixed. Moreover, contributors to this volume do not always agree as to whether the glass is half empty or half full, or three-quarters empty, or one-quarter full. Then again, academics seldom agree when it comes to assessing things Russian and collaboration seldom results in consensus. Book projects, like constitutions, also do not spring forth fully developed and self-executing; they depend on the wisdom and work of many people whom we wish to acknowledge. First and foremost, we salute our contributors to this book for their insightful and careful analyses, their diligent research, and good humored responses to our editing, requests for cross-checking citations, and stylistic standardization. William B. Simons, the general editor of the Law in Eastern Europe series, has for many years been a driving force for important scholarly publication on Russian and East European law. We deeply appreciate his support for our efforts. We also wish to thank Messrs Hylke Faber and Peter Buschman of Martinus Nijhoff Publishers, an imprint of Koninklijke Brill NV, for facilitating the publication of this volume as well as Ms. Alice Engl and Dr. Francesco Dalba for their valuable editorial assistance in its preparation and publication. Mr. Young Hoon Song provided indispensable support in preparing the manuscript for publication. In addition, we would like to acknowledge the support of the RF Constitutional Court in arranging for the publication in this volume of photographs of the Chief Justices of the Court. In addition, Dr. M.V. Gorbunov of the RF Research Center for Private Law (Moscow), and Mr. Dmitrii Mazein, a graduate of the RCPL’s School for Private Law, have also provided us with welcome advice and

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assistance for which we are most grateful. Professor Stanislaw Pomorski’s chapter, “Modern Russian Criminal Procedure: The Adversarial Principle and Guilty Plea”, originally appeared in (17)2 Criminal Law Forum (2006), 129-148, and is reprinted herein with kind permission from Springer Science and Business Media. Gordon B. Smith Columbia, South Carolina

Robert Sharlet Schenectady, New York

Preface Limited Access to Law in Action in the USSR The publication of judicial decisions in the Soviet era, at best, generated vague impressions about the working of the system of justice. It could not be otherwise; judicial decisions were only published in part: selected cases and, then, only parts of these cases. However, this was not particular to the USSR. Traditionally, Continental (civil law) jurisdictions have offered the legal community and the public at large only a portion of the output of their courts in published form. But then, cases were not a source of law on the continent; so, a selected dose of judicial thinking seemed to suffice. This of course suited Soviet rulers. Only those cases would be selected for publication which enlightened the legal profession in particular, and Soviet society in general, about how law should be interpreted and enforced. And this convergence of Soviet pragmatism and civil law tradition fitted neatly in with the Soviet penchant for total control over information flows in other areas such as the publication of works of literature and the publication of laws: some literature was censored and some laws were secret.1 Yet perhaps there was no great need for anything more than impressions about how the Soviet judicial system operated. The 1977 Brezhnev Constitution contained the simple proclamation that judges are only subject to the law (Art.155). However, sharp wits would often add that these same judges were also subject to the telephone; hence, the reference to “telephone law” or “telephone justice”. Thus, in an important case, the vertushka (the closed-circuit telephone system for high-level party and state functionaries) would ring and the judge would be given guidance, if required, on how to resolve the matter at hand using such precepts as “revolutionary consciousness”, “socialist legality”, etc. But there was another reason to devalue the proclamation in the Brezhnev Constitution about subjecting judges only to the law. After all, what serious meaning could such a provision about judicial independence have when court decisions were rendered on the basis of laws, some of which were kept secret? This comment admittely reflects a “Western” point of view: the “rules of the game” must be made known to all on a timely basis; otherwise, the game is patently unfair where some have special access to crucial rules while others are (intentionally) kept in the dark. 1

At times, it may seem more convenient to view (Russian) history through a narrow prism. But a broader view of the landscape allows one to readily see that censorship was not particular to the Soviet era. See, e.g., Michael Karpovich, Imperial Russia: 1801-1917 (The Dryden Press, Hinsdale, IL, 1932), 25.

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However, most Soviet citizens would probably have simply shrugged their shoulders and accepted this tilted field, which by the great majority of “Westerners” would be deemed grossly unfair, as simply yet another example of the “spetsifika” (pecularities) of the system. No, here, vague impressions were enough: a clear vision of how justice worked, in those days, would have been extremely hard to acquire and very difficult to put to practical use.

Access Elsewhere: Leiden Provides Some Light and Literature In any event, these vague impressions were, at best, that upon which scholars outside the USSR were forced to rely in attempting to describe and analyze justice in the USSR. To make matters even more complicated, some national (once again, “Western”) research efforts had (great) difficulty accessing even the limited resources which gave rise to these impressions. It was in these “dark days” of the post-World War Two period that the Documentation Office for East European Law was founded in Leiden in 1953; one of its main goals was to gather primary-resource legal documentation from the USSR and other East European jurisdictions. As part of that effort to enlighten the legal and other communities in The Netherlands and elsewhere,2 the first director of the Documentation Office—Professor Z. Szirmai—established the Law in Eastern Europe series. Its first volume was prepared for publication in 1957 and appeared in print in 1958. The series provided authors with a welcome vehicle through which to disseminate their thinking and gave readers an oasis in a barren intellectual landscape.3 Legal sources on East European law, however, were not easy to find in the West despite the documentation efforts in Leiden and elsewhere such as German research institutes and the US Library of Congress. The burden upon the shoulders of a good researcher dealing with Soviet law 2

“Before World War 11, only a few books and about twenty articles had been published on the law of the Soviet Union.” Lucy Cox, Book review of Soviet Law in English: Research Guide and Bibliography, 1970-1987. by Igor I. Kavass, 49(3) Slavic Review (1990), 466-467. (This presumably refers to the US, the country in which the author of the review and of the book under review were resident.) While it is outside the scope of this Preface, it is appropriate to mention that Germany in particular was noted for its research facilities and publications in the field in the post-war period. But the latter were in German and thus reached a different audience.

3

This would be augmented in 1973 by the second Documentation Office publication: the Review of Socialist Law, now known as the Review of Central and East EuropeanLaw.

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was twofold: (1) accessing original sources; and (2) making conclusions about the nature of the legal system based upon case law reports that were known to be incomplete due to the confluence of civil law traditions and Soviet censorship as described in brief above. Yet here, the better would clearly have been the enemy of the good if inquiring minds in the West had decided not to engage in research in the field of Soviet law because of the inadequacy of sources on the law and its implementation—because of secret laws and secret court cases. Fortunately, a number of scholars and practitioners were willing to take up the challenge and to offer their readers their analyses of the information at hand—even if the latter was known to be (woefully) incomplete.

The Fiftieth Anniversary of the Series This volume of the Law in Eastern Europe series marks five decades during which the works of researchers in the field have been made available to its readership. After the death of Professor Szirmai in 1973, this effort was carried on by his successor, Professor F.J.M. Feldbrugge, who occupied the chair of East European Law at Leiden until 1997. Since that time, it has been my privilege and honor to seek to do the same. Despite the limitations upon authors in their efforts to access and analyze East European law, the results of their work published in the series were impressive—but they were still impressions. Impressions based upon partial information at best. Nevertheless, reactions to the series were positive. A reviewer in those early years,4 who surveyed the first seven volumes of Law in Eastern Europe, wrote: “In the face of the difficulties of undertaking an examination of the content and operation of law in Communist countries, Law in Eastern Europe provides useful and scholarly studies. It usually manages to avoid both cynicism and mere description, and in this way affirms the role of legal scholarship in the study of Communist society.”

On the other hand, this same scholar could not help but observe the “scarcity of meaningful information about its [i.e. the law’s] operation”.5 Nachalo, Konets It is not always easy to mark the beginning or the end of a historical period. The dates of historical events are helpful but not always dispositive. In thinking about Russia, one can of course look at its history by using a timeline marking, e.g., the revolutions of 1917 or the breakup of the USSR 1991. But it is much more difficult to determine the beginning of the end 4

5

Stanley Lubman, Book review of Law in Eastern Europe by Z. Szirmai, 64(7) Columbia Law Review (1964), 1369. Ibid.

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of the “restricted access to legal information” policy which characterized the USSR. Yet the end of this policy—at least as regards access to the laws on the books—is clearly demarcated in the 1990 landmark decision of the USSR Committee of Constitutional Supervision which declared “secret laws” affecting human rights were void.6 I accept that this decision may not be firmly emblazoned in the minds of present-day actors on the political and economic—or even legal—stages of the Russian Federation. Nevertheless, it is one which, without a doubt, helped to set the tone for legal—as well as other—changes in the transition from the Soviet era to the new order. Yet while the 1990 ruling of the Committee of Constitutional Supervision set a landmark for an open-access policy to Russian legislation, access to judicial decisions remained one which was obstructed by tradition and inertia in the early days of the post-perestroika period. Laws could no longer be kept secret if they were to be lawfully implemented; alas, some court decisions still remained secret—since they were not accessible to the general public—and yet were expected to be implemented. Of course, the parties to a court case knew the result of the judicial disposition thereof in post-perestroika times as they did, in fact, during the Soviet era. This reminded one of the formal reasoning underlying the “secret laws” policy of the USSR: only those who really “needed” to know did. Laws which were directed to a narrow group only needed to be made known to that group. Yet those who are committed to robust democratic principles would argue that such an approach undermines the pillars of fairness and equality. It is unfair if the rules which govern the game—even only a small part thereof—remain hidden from the view of those in whose interests the system is (should be) operating. And court decisions establish such rules in a broad sense of the word—even if these decisions are not formally deemed to be “sources of law”. When only private parties are involved in a (legal) relationship, they should be entitled to keep their own rules secret—if they so desire. But where the state is involved and operating in the interests of all of its members (citizens), the rules (even informal ones) should not be kept secret by the state—unless the system is one which has no democratic values.

6

Decision No.12 2-12 of 29 November 1990, Vedomosti S”ezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR (1990) No.50 item 1080. See, also, Iu. Feofanov, “Sposobna li vlast’ byt’ chestnoi: Otmeneny sekretnye akty”, Izvestiia, 16 December 1990 and T. Moskal’kova, “Tainye prava ostalis’ v taine”, Izvestiia, 4 March 1991.

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Open Laws, Closed Court Reports; Followed by Changes for the Better Thus, since the USSR Constitutional Committee’s 1990 decision, legislation in Russia has finally become “open-source”. But the reports of court cases in Russia in the 1990s were not equated with laws. It did not seem unfair or undemocratic to decision-makers to keep the result of judicial deliberations partially in the dark. After all, the parties to the litigation had access to the judgment of the Court and the decision was not a formal source of law. Yet giving the matter a bit more thought should prompt one to realize that court cases are not only private-to-private transactions; rather, their resolution involves the state as a neutral arbiter among disputing parties. Furthermore, in certain instances, the state itself can be a party to legal proceedings as a complainant or a respondent in civil proceedings or as the accuser in criminal cases. Therefore, the same logic which holds that court proceedings themselves must be open to the public (with certain limited exceptions),7 should also compel one to conclude that the outcome of these proceedings must likewise be freely accessible to the public at large—not limited only to the disputants or to a small circle of “insiders” who might have access to the court’s judgment because they know someone on the court staff, because they teach or practice law, etc. It may have been, however, more the press of operational issues of the times—than the failure of Russian decision-makers in the 1990s to understand the analogy between the power of laws and the power of judicial decisions—which accounted for continuing the limited Soviet access policy to judicial decisions in the post-Soviet period. New laws needed, first of all, to be enacted to provide for market-type economic and democratic-oriented political institutions. Until a sufficient body of new legislation had been enacted and implemented, there seemed to be little time for (or interest in) removing the pale of partial secrecy which had been cast across the Russian judicial system 7

Art.123(1), 1993 RF Constitution sets forth: (a) the rule, “The examination of cases in all courts is open.” (b) The exception, “Hearing a case in a closed session is permitted in the instances provided for in a federal law.” Translation from the late Ger van den Berg’s work on the RF Constitution: “Russia’s Constitutional Court: A Decade of Legal Reforms”, 27(2-3, special issue) Review of Central and East European Law (2001) and 28(3-4, special issue) Review of Central and East European Law (2003); see, in particular, his annotation of Constitutional Court rulings on “Article 123: Openness of trials, adversary system, jury” at 543 et seq. And in an international context, see for example the 1950 European Convention on Human Rights, Art.6 (1), (“[...]everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”), reproduced at .

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by its Soviet big brother. Yet, gradually, the openness policy proclaimed in 1990 by the Constitutional Committee for the legislative branch also began to penetrate the judiciary. Furthermore, as more and more new laws were promulgated, decision-makers and others came to appreciate that good implementation of these same laws would be problematic if this implementation could not be observed through the primary vehicle for interpreting and enforcing legislation, i.e., decisions of state courts. Lastly, Russian society has also been paying increasing attention to the issue of access to information in another important area, i.e., the environment.8 The Russian Constitutional Court, the successor to the Committee of Constitutional Supervision, has steadfastly followed the “open access” policy proclaimed by its predecessor vis-à-vis legislation in its own decisions: all judgments and rulings of the RF Constitutional Court are reportedly published in full-text form.9 In addition—as the reader can see inter alia from the chapters in this volume of Law in Eastern Europe—dissenting opinions are also published in full. As a result, scholars and practitioners at last have primary research tools on “law in action” at the top of the Russian Federation which offers them much more than mere impressions of the workings of the Russian justice system. In turn, authors can use this full access policy to provide the consumers of their works (i.e., their readers and their clients) with rigorous analyses, not only descriptions and sketches. In short, the study of Constitutional Court decisions in Russia is a much more valuable exercise than was the case with the Soviet court reports.

Vpered: Forward! The progress which this represents in improving one’s knowledge of how law is—or is not—implemented in Russia is substantial. The present volume—celebrating the 50th year of the preparation of the first volume of the Law in Eastern Europe series—provides the reader with a collection of works of legal thinkers devoted to the topic: “Russia and its Constitution: Promise and Political Reality”. The research for these articles has been based on this full access policy; now at least there are no secrets as concerns the implementation of legal rules and principles (national as well 8

Art.42, 1993 RF Constitution: “Everyone has the right to [...] reliable information about the state of the environment [...]”. See van den Berg, op.cit. note 6, 28(3-4, special issue) Review of Central and East European Law (2003), 400 et seq. Here, too, however, a broader look at history shows that the interest in environmental issues in Russia extends in the Soviet past, e.g., Chernobyl’ or the Lake Baikal paper mill.

9

In an informal conversation at a 1998 Conference of the Leiden Institute for East European Law and Russian Studies (successor to the Documentation Office), one RF Constitutional Court justice debated with my late Institute colleague, Dr. Ger van den Berg, whether or not truly all RF Constitutional Court output was being published. The former claimed that it was; the later took the contrary position.

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as international) by the Russian Constitutional Court; a fitting milestone for this august series which now enters its sixth decade. It is, therefore, with pride as well as pleasure that I recommend to our readers the present volume under the editorship of Professors Gordon B. Smith and Robert Sharlet. The changes in Russian law and society, reflected in the judgments of the RF Constitutional Court, now allow lawyers and others to assess with increasing precision the way in which the provisions of Russian legislation—as well as generally recognized principles and norms of international law—are implemented; one is no longer limited to relying upon vague impressions. Access to all the judicial wisdom of the Russian Constitutional Court also means that developments in Russian law can also be more readily viewed in a comparative context—something which was problematic in the past10 but now provides hearty food for thought such as that which has been sprinkled among the chapters in this volume. However, as the editors to this volume have remarked in their introductory words, constitution drafting is not an overnight matter—neither is engineering a full access policy for a judicial system which was grounded in large part in secrecy owing to civil-law custom and Soviet practices. A truly transparent system will require more than merely a Constitutional Court which publishes the totality of its output. True, in 2006, a senior Russian minister reported to the RF Government that the other branches of the Soviet judiciary—the Supreme Arbitration Court and the Supreme Court of the Russian Federation—were also prepared to move to a mandatory regime of full publication of their decisions.11 But even when all three senior Russian benches—the Constitutional Court, the Supreme Arbitration Court, and the Supreme Court of the Russian Federation—publish the entirety of their output (rulings, determinations, and decisions (provisional and final)) in full-text form on a timely basis, much still remains to be done. Access should be full and unhindered not only at the highest levels of the judicial system but, also, at the intermediate as well as at the very lowest levels. I realize that there are numerous arguments against such an “acrossthe-board” approach: (a) the “we-do-not-do-this-in-civil-law-countries” response is the first; but there is also: (b) the “judges-are-reticent-andpoorly-paid-and-poorly-staffed” answer. This is usually followed by: (c) the “what-will-the-poor-lawyers-do-with-all-these-materials?” retort which is perhaps the “best” because it is the most ludicrous and, also, can be 10

See, e.g., John N. Hazard, “Area Studies and Comparison of Law: The Experience with Eastern Europe”, 19(4) The American Journal of Comparative Law (1971), 645-654.

11

Ol’ga Kiseleva, “Arbitrazhnyi i Verkhovnyi sudy gotovy publikovat’ svoi resheniia”, 19 January 2006, available at .

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readily observed in other parts of Europe—besides Russia (and the CIS region). These “anti-access” responses can, and should, be overcome by reference to a simple principle: democracies and market economies require fundamental state operating procedures to be made available to one and all, i.e., laws and regulations (what is permitted and what is prohibited) and court decisions (the manner in which rules and regulations are implemented in practice and across time). But doing so only at the top level would make a mockery of the democratic expectations and market-economy needs which are the bedrock of a full access policy. No one who supports democratic values and (social) market goals would ever believe that it is sufficient to publish all the laws at the center but to keep the rules and regulations at the mid-field and local levels shrouded in secrecy. So why should the framework continue to be diffferent for court judgments? Arguing that the full publication of judicial decisions at the central level is adequate and one can, therefore, do without full publication at lower levels of the judiciary is—to my mind—a “cloud cuckoo land” argument.12 Yet once the whole of the Russian judiciary succeeds in publishing all of its decisions in full-text form and on a timely basis, additional steps will need to be taken to further enhance the ability of the legal community in particular and society at large to access data on the ways in which legislation is being implemented in Russia. To my mind, these steps are at least twofold: One, there must be full publication, on a timely basis, of the arguments (pleadings) of complainants and respondents—of state prosecutors and criminal defendants. Two, the (often still handwritten) summaries which are made of courtroom proceedings in Russia must be replaced by verbatim transcripts which are also made available to the general public on a timely basis. These simple tools—which are used in most Anglo-Saxon countries as well as in some international judicial institutions—are no panacea for the charges that justice in Russia or elsewhere continues to serve narrow (political, economic, and/or social) interests rather than those of the country, the region, or even the world at large; that democratic institutions are, in fact, country (golf) club-like bodies whose members are primarily concerned about retaining their opulent privileges, and that markets are manipulated rather than competitive. However, finally achieving a “full access” policy in the judicial branch of the Russian ship of state will at least allow scholars and practitioners, students and teachers—domestic and foreign—to continue focusing evermore closely on issues of implementation of legislative policies at all levels, in all regions and localities. Among other things, it will allow researchers to 12

See, e.g., an earlier article which I have authored on “freedom of judicial information”: “Access To Judicial Decisions In The Netherlands and Russia: All or Nothing at All?”, in P.B. Cliteur, H.J. van den Herik, N.J.H. Huls, A.H.J. Schmidt (eds.), It Ain’t Necessarily So: Festschrift in Honor of Professor mr. Hans Franken (Kluwer, Leiden, 2001), 427-487.

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more fully consider answers to questions which will remain open for debate and discussion even after a full access policy has been implemented. I.e., why is there a perception of low enforcement rates of court decisions, of a lack of expertise among legal professionals, and of “poor understanding of the issues at stake among the general public”?13 Impressions can be wonderful in certain fields of human endeavor such as the arts and music; however, impressions in the area of dispute resolution by state agencies, owing to the retention of antiquated access-to-information policies, are unacceptable in the twenty-first century when information technology brings people and institutions incredibly close to one another. The chapters in this volume offer meaningful guidance to the reader in assessing how much has been done to improve the workings of the justice system in Russia since the end of the Soviet era. It will also help her to understand how much remains to be done in Russia—as is also the case elsewhere—to ensure that justice is rendered to all in a competent fashion and on a timely basis.

William B. Simons Trento, Italy/St. Petersburg, Russia

13

These are particular concerns which were voiced at the February 2005 Third Meeting of the UN’s Economic Commission of Europe Task Force on Access to Justice in Environmental Matters. However, similar concerns can also be voiced for other parts of the legal and social fabric in Russia (and elsewhere). See “Report on the Third Meeting”, ECE/MP.PP/WG.1/2005/5 22 November 2004 (sic), available (in English and Russian) at .

Introduction: The Promise of the Russian Constitution Gordon B. Smith The Constitution of the Russian Federation—ratified by a popular referendum on 12 December 1993—was born out of the collapse of the Soviet system and the ensuing conflict between the Executive, led by President Boris El’tsin, and the parliament, the Congress of People’s Deputies. By September 1993, the impasse had become so severe that El’tsin had issued edicts suspending the 1978 Constitution and dissolving the Congress of People’s Deputies. A handful of deputies to the Congress refused to leave the chambers in the “White House”.. Military forces were brought in to shell the building, and the leaders of the parliamentary resistance were arrested. In the aftermath of the violent confrontation, a draft text of a new Constitution was prepared by a hastily convened Constitutional Assembly, which included representatives of the Presidential Administration, the Congress of People’s Deputies, the Constitutional and Supreme Courts, the Procuracy, regional governments, political parties, trade unions, business enterprises, and the Academy of Sciences. The final draft document incorporated much of an earlier draft submitted by El’tsin, which proposed the creation of a strong presidential system. Despite the troubled origin of the new Constitution, and reservations about the legitimacy of the process by which it was drafted and approved, the Constitution of the Russian Federation has gained widespread acceptance among the Russian public, Russian politicians of all political persuasions, and the international community. The new document proclaims the goal of establishing Russia as a “democratic, federal, rule-of-law state”.. To this end, the Constitution specifies that ultimate authority resides with the Russian people, enumerates various rights and freedoms of citizens, and establishes the supremacy of the constitution and laws of the Russian Federation, which are binding on state bodies and authorities. Like constitutions in most nations, the 1993 Constitution of the Russian Federation proclaims a number of principles that are best understood as goals and aspirations for the fledgling post-communist state, rather than statements of the current status of governance in the country. Although Russia has made important strides toward the establishment of democratic institutions and practices, restrictions on civil society, interest groups, the media, and an imbalance of power among the executive, legislative and judicial branches limit the full realization of democracy.1 Similarly, after more than a decade in which power flowed from the center to the 1

Article 10 addresses the issues of separation of powers.

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regions, the recent reassertion of central power (e.g.., President Putin’s move to appoint provincial governors) raises serious questions about the degree to which the Russian Federation is, in fact, a federal system; that is, whether the constituent “subjects” of the federation enjoy “full state power” promised in Article 73 in areas not delegated to the Federation in Article 71 or identified in Article 72 as falling within the sphere of “joint authority”.. The meaning of “rule-of-law rule-of-law state”” ((pravovoe gosudarstvo) also remains ill-defined and less than fully realized in practice. Article 2 proclaims it the duty of the state “to respect and protect the rights and freedoms of human beings and citizens”.. Article 3 states that the people of the Russian Federation are the source of its power and sovereignty and that they exercise this power directly through referenda and free elections. The Constitution and laws of the Russian Federation have “supreme legal force” and direct effect and it is the responsibility of political officials to implement and abide by the laws and Constitution of the Russian Federation. Article 55 stipulates that no laws denying or diminishing these rights or freedoms may be passed by the Russian Federation. The Constitution enumerates a long list of rights, freedoms and protections of citizens, including equality before the law, the right to life, liberty, personal security, freedom of information, privacy, freedom of speech, movement, association, and assembly. Perhaps drawing on the seventy-five-year socialist legacy of the USSR, the Constitution also enumerates various social and economic protections: social security, adequate housing, health care, a clean environment, public education, artistic freedom, and free legal assistance. Article 15 adds a provision upholding the application of “generally recognized principles and norms of international law and international treaties”.. Constitutions, by their very nature, are both political and technical legal documents, and the Russian Constitution is no exception. Not only does the Constitution establish and define the powers, jurisdictions and structure of the parliament, presidency, courts, and other bodies, it also enumerates important legal principles, such as a presumption of innocence (Art.49), prohibition against double jeopardy (Art.50), prohibition on obliging people to testify against themselves, their spouses, or close relatives, the right of citizens to seek compensation for harm or damage through the courts, and openness in judicial proceedings conducted by adversarial procedure with equality of parties and a right to counsel (Art.48). Article 25 protects against unreasonable searches and seizures, requiring judicial authorization of search warrants.

Introduction

xxv

The rights, freedoms and protections embodied in the 1993 Russian Constitution are admirable goals and statements of aspiration for a new democratic state. Full realization of such goals has yet to be achieved in even the most advanced, established democracies. The question this book addresses, then, is to what extent is Russia fulfilling the promises of the 1993 Constitution.. The book is divided into two sections, the first focuses on the macro-level political-constitutional dimensions of the Russian political system. In Chapter 1, Richard Sakwa explores the extent to which the constitution affords citizens and their elected representatives the ability to exercise effective controls over government authorities, most importantly the Executive. In Chapter 2, Robert Sharlet documents the long struggle of the Constitutional Court to devise and ensure the implementation of genuine federal power-sharing, as articulated in Article 5 and Articles 65-79. Alexei Trochev, in Chapter 3, argues that despite political and bureaucratic resistance, the Russian Constitutional Court has been able to build a “political space” for unwritten constitutional values, especially in the areas of human rights and norms of rule of law articulated by the European Court of Human Rights. Chapter 4, by Peter Krug, examines the constitutional promise of freedom of the press, as well as the very mixed record of implementation of that constitutional provision. He notes an ambivalence of the courts in resolving competing constitutional and statutory claims, yet he also observes, like the previous author, a possible trend toward judicial engagement on behalf of media rights as a result of decisions of the European Court of Human Rights. The second section of the book focuses specifically on the functioning of the judiciary and law enforcement agencies in light of the Constitution’s stated goal of ensuring the development of a rule-of-law -of-law of-law -law law state in Russia. The Procuracy has long held a preeminent place in the Russian and Soviet legal systems, representing the State’s abiding interests and protecting state power. As such, the Procuracy has vigorously resisted reforms that threatened to scale back its powers. In Chapter 5, Gordon Smith charts the evolution of the Procuracy’s power and authority under the new Constitution and argues that several important issues remain intentionally unresolved, thus preserving the Procuracy’s central position in the legal system. Stanislaw Pomorski explores the implementation of a defendant’s constitutional right to adversarial proceedings with equality of parties in Chapter 6. He finds considerable resistance to the introduction of consensual guilty pleas because they evoke unpleasant memories of the forced confessions of Soviet times. Jury trials in serious criminal cases were introduced on an experimental basis in some regions of the Russian Federation in 1993 and extended to the entirety of the Federation

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in 2003. In Chapter 7, Stephen Thaman analyzes the impact of appellate procedures and the growing influence of the “victims’ rights” movement on the functioning of jury trials. Chapter 8, by Gordon Smith, adopts a comparative developmental perspective in assessing Russia’s progress and future prospects for constitutional evolution. From this perspective, he sees encouraging signs, most importantly the growing “demand for law” throughout Russia society. Nevertheless, he argues, constitutionalism in Russia remains a work in progress.

Chief Justices of the Constitutional Court of the Russian Federation: 1990 - *

Sergei Sergeevich Alexseev 1990–1991 (USSR Committee of Constitutional Supervision)

Valerii Dmitrievich Zor’kin: 1991–1993; 2003- (reelected 2006)

*

Photograph of Chief Justice Alexseev by Sergei Novkov. Photographs of Chief Justices Zor’kin, Tumanov, and Baglai courtesy of the Constitutional Court of the Russian Federation.

xxviii

Russia and its Constitution: Promise and Political Reality

Vladimir Alexsandrovich Tumanov: 1995–1997

Marat Viktorovich Baglai: 1997 (reelected 2000) –2003

Constitutionalism and Accountability in Contemporary Russia: The Problem of Displaced Sovereignty Richard Sakwa “I should have wished to be born in a country where the sovereign and the people could have had only the one and the same interest, so that all the motions of the machine might only tend to the common happiness; since this is impossible unless the people and the sovereign are the same person, it follows that I should have wished to have been born under a democratic government.” Jean-Jacques Rousseau1 “Western institutional theorists have concerned themselves with the problem of ensuring that the exercise of governmental power, which is essential to the realization of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote.” M. J. C. Vile2

Democracy is fundamentally about controlling government. For Aristotle, democracy was more than the will of the majority but a way in which authorities could be held accountable to citizens and the unprivileged.3 This is what genuine constitutionalism is all about. It is how this accountability can be achieved in practice and the dilemmas associated with it that is the subject of a considerable literature, both classical and modern. Contemporary theories of comparative democratization zation ation have generated numerous models that describe the gulf between systems that enjoy the formal attributes of democracy, including constitutions enshrining the principle of the separation of power, and practices that fall far short of genuine constitutionalism.4 Students of comparative politics describe a range of methods that are used to achieve accountability of the executive in a classical parliamentary democracy, ranging from ex ante to ex post measures.5 In new democracies, problems of political accountability are 1

Jean-Jacques Rousseau, Discourse on the Origins and Foundations of Inequality, dedicatory epistle.

2

M. J. C. Vile, Constitutionalism and the Separation of Powers (Liberty Fund, Indianapolis, 2nd. ed. 1998), 2.

3

Aristotle, The Politics, translated by T. A. Sinclair (Penguin, Penguin, Harmondsworth, 1962), ), Book IV, Chapter 4; Book VI, Chapters 1-4.

4

For an overview, see David Collier and Steven Levitsky, “Democracy With Adjectives: Conceptual Innovation in Comparative Research”, 49 World Politics (1997), 1997), ),, 430-451. 451. 51.

5

For a wide-ranging analysis, see Kaare Strøm, Wolfgang C. Müller and Torbjörn Bergman (eds.), .), ), Delegation and Accountability in Parliamentary Democracies (Oxford University Press, Oxford, 2003). For a detailed application of accountability mecha-

Gordon B. Smith and Robert Sharlet, eds. Russia and its Constitution: Promise and Political Reality 1-21 Copyright Koninklijke Brill NV, Leiden, 2008

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Richard Sakwa

particularly acute and have been the subject of some particularly interesting studies.6 The fundamental problem is how to ensure that the agent (executive bodies) can be rendered accountable to the principal (the sovereign people and its representatives). The principal-agent model helps establish the contours of the problem and we will draw on some of its insights, although there will be no detailed discussion of this approach. In Russia’s newly-formed democracy, formal measures of accountability are relatively weak, and in any case tend to be overwhelmed by informal practices. This chapter will explore some of the dimensions of this accountability gap and seek to examine some frameworks for understanding contemporary Russian politics.

From Sham ham to Pseudo seudo Constitutionalism? onstitutionalism? According to Weber, Russia’s 1906 Constitution represented sham constitutionalism (Scheinkonstitutionalismus), in that it was not able effectively to establish accountable government. overnment.7 Weber may well have had the German system of that time more in mind, but Russia’s first steps towards constitutional government were undoubtedly hesitant.8 The pressure exerted by the Tsarist authorities on the newly-established State Duma, notably in the Third of June system of managing the democratic process, is in some ways reminiscent of Vladimir Putin’s attempts to ensure that the exercise of popular sovereignty remains within controlled limits. Even less effective in terms of accountability were the various iterations of Soviet Constitutions (1918, 1924, 1936 and 1977), since they signally failed to define and thus to limit the powers of the leadership. Bolshevism in the Leninist form represented a radical repudiation of classical theories of representative democracy and the separation of powers.9 The Soviet experiment was a form of Europeanism that Europe itself had repudiated. nisms, see Thomas Saalfeld, “Government and Politics”, in Richard Sakwa and Anne Stevens (eds.), .), ), Contemporary Europe (Palgrave Macmillan, Basingstoke, 2000), 109-136, especially ecially 125-130. 130. 30. 6

Notably Andreas Schedler, Larry Diamond and Marc F. Plattner (eds.), .), ), The Self-Restraining State: Power and Accountability in New Democracies (Lynne Rienner Publishers, Boulder, CO, 1999).

7

Max Weber, The Russian Revolutions, translated and edited by Gordon C. Wells and Peter Baehr (Polity Press, Oxford, 1995).

8

Geoffrey Hosking, The Russian Constitutional Experiment: Government and Duma, 1907-1914 (Cambridge University Press, Cambridge, 1973); Terence Emmons, The Formation of Political Parties and the First National Elections in Russia (Harvard University Press, Cambridge, MA, 1983).

9

The Democratic Centralist group in 1919-1920 1920 20 did try to achieve some sort of Soviet constitutionalism, with a basic idea of the separation of powers, but the idea was repudiated by Lenin.

Constitutionalism and Accountability in Contemporary Russia

3

The development of the institutions of commune democracy, exercised formally by Soviets of people’s deputies, was based on a system of delegation, sectoral representation and fused government. Accountability was to be exercised directly by electors through their ability to recall their delegates from Soviets. In The Civil War in France Marx had argued that in this way the social powers alienated to the state were brought back to society. Lenin took up this theme in 1917 in his The State and Revolution as he sought to find a way to structure the representative system of an emancipated society. However, as we know, the institutions of utopia failed to make allowance for opposition within the revolution, while of course suppressing opposition to the revolution,10 and thus the utopian vision soon gave way to dystopian realities. The actual structure of authority relations that emerged was persistently archaic, with the Communist Party acting as the new collective prince, to use Gramsci’s term, and thus republican ideals deals of an active and responsible citizenship failed to materialize zee and a new form of patrimonial power emerged. The model of cohesion implied by the Marxist-Leninist vision of commune democracy was one that was essentially organic, with those within the new political community allegedly united by a single purpose and inspired by the ethos of an emancipated people, while the enemies of the new order would be swept aside mercilessly, a principle that Stalin took to extremes.11 The Soviet model was based on the myth of social self-identification, to use Kolakowski’s term, in which there could be no scope for formal accountability procedures and certainly no need for the separation of powers.12 Since society was governing itself, what need was there for formal structures of accountability, and would not the separation of powers weaken the revolutionary will of the people? From the principal-agent perspective, this would be a situation where the principal and the agent have identical preferences. It is an unproblematic case of delegation where the agent will always act in line with the principal’s preferences.

10

On this, see David W. Lovell, From Marx to Lenin: An Evaluation of Marx’ x’’s Responsibility for Soviet Authoritarianism (Cambridge University Press, Cambridge, 1984).

11

Erik van Ree, The Political Thought of Joseph Stalin (Routledge, London, 2002) stresses Stalin’s organicist view of socialism that subordinated individual emancipation to social structures, derived ultimately from Marx’s vision of a conflict-free post-revolutionary society.

12

Leszek Kolakowski, “The Myth of Human Self-Identity: Unity of Civil and Political Society in Socialist Thought”, in Leszek Kolakowski and Stuart Hampshire (eds.), .), ), The Socialist Idea: A Reappraisal (Weidenfeld & Nicolson, London, 1974), ),, 18-35.

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Richard Sakwa

At first Mikhail Gorbachev’s reforms were based on an attempt to breathe real life into the moribund system of commune democracy.13 However, by the time of the Nineteenth Party Conference in June-July 1988, Gorbachev was fast moving towards the idea of reconstituting a classical liberal democratic state, and this was confirmed by the adoption of constitutional amendments in November 1988 that created a peculiar new hybrid parliamentary system. A large Congress of People’s Deputies (it is significant that the word “soviet” was now dropped) consisting of three equal chambers of 750 members each and meeting normally twice a year was to elect a smaller working parliament, still called the Supreme Soviet, that was to adopt current legislation and the like. In March 1990 Gorbachev had himself elected president by the CPD, reflecting the persistent influence of practices of displaced sovereignty. Instead of the people choosing who would be president, the Congress took it upon itself to decide. Presidential powers were increased during the course of the year, and at the Fourth USSR Congress of People’s Deputies (CPD) in December 1990 the shift was completed by the transformation of the old Council of Ministers into a more limited “cabinet”, with the prime minister and ministers nominated by the president and accountable to him. At the same time, the purge and reorganization of the Politburo in July 1990 conclusively marginalized it as a policy-making body and ended its ability to assert collective accountability on Gorbachev.14 As Breslauer puts it: “Without seats for leaders of the state, military, or police bureaucracies, the Politburo ceased to be an oligarchy of elites that could pretend to dictate policy in all sectors or that could attempt to subject Gorbachev to the discipline of the collective leadership.”15 The new constitutional system proved cumbersome and unwieldy, and even more so once this model was transferred to Russia. The Russian CPD was elected in March 1990, and at its first convocation in May-June all factions united in favor of a strong leadership. With El’tsin’s election to chair the Supreme Soviet in a hard-fought contest in May a significant step was taken towards the development of the presidential system. In 1990, the Russian parliament passed some 150 acts affecting virtually every aspect of Russian life. Even so, El’tsin insisted that the crisis of executive power 13

Richard Sakwa, “Commune Democracy and Gorbachev’s Reforms”, XXXVII(2) (2) 2)) Political Studies (June June 1989), ),, 224-243. 243. 43. See, also, Michael E. Urban, More Power to the Soviets: The Democratic Revolution in the USSR (Edward Elgar, Aldershot, 1990).

14

Jonathan Harris, Subverting the System: Gorbachev’s Reform of the Party Apparat, 19861991 (Rowman & Littlefield, Lanham, MD, 2003).

15

George W. Breslauer, Gorbachev and Yeltsin as Leaders (Cambridge University Press, Cambridge, 2002), 89.

Constitutionalism and Accountability in Contemporary Russia

5

remained acute.16 El’tsin’s conservative opponents began to have second thoughts over the merits of a presidential system. They were outmanoeuvred, however, by the opportunity offered by Gorbachev’s referendum of 17 March 1991 on the “renewed Union”. In Russia a second question was added to the ballot asking the people to endorse the creation of a directly elected presidency. Russians voted by the same margin for the union and a directly elected president of Russia.17 If during the Communist era the ‘leading and guiding’ role of the Party was legitimated by its claims to be guiding the country in building communism, now the presidency’s leading role was legitimated by the need for strong leadership in the “reforms” required to build capitalism.18 It would be a long struggle, however, before El’tsin could dominate the political system. When El’tsin became chair of the Russian Supreme Soviet in May 1990 he gained executive authority but his powers were firmly subordinated to the legislature. The strengthening of parliament, designed initially to compensate for the declining power of the CPSU and to ensure the continuation of “reform”, was stymied by the emergence of a presidential system rooted in the newly “empowered” legislature, but which gradually increased its powers at the expense of the parliament that had given it birth. The party-state was replaced by a presidentialstate. The Congress, headed at the time by Ruslan Khasbulatov, sought to challenge this to create a parliamentary state. Khasbulatov’s ambitions were no less hegemonic than El’tsin’s, and the restoration of Soviet-type “parliamentarianism” under his leadership would have been as much of a challenge to the liberal separation of powers as the triumph of El’tsin’s presidentialism appeared to be. The capture of the Russian parliament in 1992-1993 1993 93 by rejectionists of various hues posed the threat of what Simon Bolivar in his Angostura address in 1819 called “deliberative despotism”.19 Parliamentary patrimonial hegemonism came into conflict with presidential hegemonism. The constitutional state as an independent arena for the impartial operation of the rule of law in both versions remained 16

Moscow News, 23 June 1991,, 1.

17

A total of 73.6% of the vote was cast for the Union, and 69% for the presidency in Russia.

18

See Breslauer, op.cit. note 15, 145-146 146 6 and passim.

19

The relevant passage in the address, in which Bolivar calls for the establishment of a presidential system, runs as follows: “In seeking to vest in the executive a sum total of powers greater than that which it previously enjoyed, I have no desire to grant a despot the authority to tyrannize the Republic, but I do wish to prevent deliberative despotism from being the immediate source of a vicious circle of despotic situations, in which anarchy alternates with oligarchy and monocracy.”

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under-developed, as did the ability of the popular representative system to hold the authorities to account. The Russian Constitution was amended at the Fourth CPD on 22 May to create an executive presidency,20 and the session also adopted a law on the election of the president. After an intense two-week campaign, the first direct elections for Russia’s presidency were held on 12 June 1991 in which El’tsin emerged victorious, polling fifty-seven percent of the vote and thus winning outright in the first round.21 Instead of the largely ceremonial presidency, as in Czechoslovakia (and later in the Czech Republic) and Hungary, Russia found itself with an executive presidency on the American model. The presidency and El’tsin’s personal leadership were much strengthened by victory over the attempted coup of 18-21 August 1991. However, as with the Soviet parliament earlier, while the authority of the presidency had increased, the powers of parliament had not correspondingly diminished. The strong presidential powers enshrined in the 1993 Constitution had their roots in the way that the presidency as an institution emerged in the final Soviet years, and did not simply represent the victory in October 1993 of the presidency over Khasbulatov’s parliament. While defending strong executive authority, El’tsin’s entourage recognized zed ed the need for some separation of powers to avoid a return to a new form of despotism, which would once again exclude Russia, as they put it, from “civilized zed ed society”.22 The idea of ‘delegated legislation’, in which a government is allowed to rule for a time through decrees with the force of law, is used by democratic states in times of emergency. In general there is much evidence of a dramatic increase in the use of decrees and delegated legislation in mature democracies, notably in the UK and France. The idea was taken up in an analogous way by Guillermo O’Donnell in his notion of delegative ive democracy.23 In periods of delegated legislation, however, the legislature usually establishes limits to the emergency powers, overseen by a constitutional court, and a set period that can only be renewed with the assent of parliament. In Russia, no such stable system emerged. The expanding powers of the presidency were at first delegated by parliament, but thereafter were converted into a self-sustaining presidential system. The appeal to the logic of the struggle against Communism and the de20

Law on the Presidency, VSND i VS RSFSR (1991) 1991)) No.17 item 512.

21

For details of the vote, including regional analysis, see D. Iur’ev, Prezidentskie vybory (Moscow, 1991).

22

12(15) Demokraticheskaia gazeta, 12-19 September 1991, 3.

23

Guillermo O’Donnell, “Delegative Democracy”, 5(1) Journal of Democracy (January 1994), 55-69.

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caying Soviet state, already seen in 1990-1991 1991 91 in the form of “wars of the laws” and declarations of sovereignty, perpetuated the legacy of administrative arbitrariness. Axiological politics and developmental liberalism came to the fore. No longer the challenger but the incumbent, El’tsin soon came to rely on the instruments of the state rather than the mass politics of the street, though on occasion he was not averse to using the crowd. El’tsin soon freed himself from the popular movement (above all Democratic Russia) that had brought him to power while, at the same time, ensuring that the presidential regime remained relatively unconstrained by the legal-normative principles represented by a constitutional state. While this meant that El’tsin remained a free agent politically, it also exposed the failure to ensure an adequate institutional framework or political constituency to support the presidency. El’tsin went on to build the presidency on the basis of his personal authority, to the detriment of institutions and mass political structures. Just as Gorbachev had freed himself from the discipline of collective leadership by establishing the presidency so, too, for El’tsin the presidency served as an instrument to free himself from the constituency that had propelled him to power.24 However, as Gorbachev had discovered earlier and Vladimir Putin was to find later, strengthened presidential power was no guarantee of legitimacy or effective government. The forcible dissolution of the Russian Parliament in October 1993 was not such a watershed as is often suggested. The Constitution had already been largely drafted, although some important changes strengthening the role of the president and the Federation Council were inserted into the version put to the people on 12 December 1993. The new Constitution sought to prevent a repetition of the conflict between executive and legislative authorities that had so nearly destroyed the Russian state. A strong and largely irremovable president was to act as the focus of stability, while the government was largely removed from the control of parliament. The problem of presidential systems, however, is their rigidity; it is almost impossible to change the president in mid-term without bringing down the regime itself. Parliamentary systems, on the other hand, allow more flexibility in forming governments and in responding to popular moods.25 This to a degree is precisely what the advocates of 24

Breslauer, op.cit. note 15,, 89 and passim.

25

See Juan Linz, “The Perils of Presidentialism”, 1(1) Journal of Democracy (Winter 1990), 72-84; Juan J. Linz, “Presidential or Parliamentary Democracy: Does it Make a Difference?”, in Juan J. Linz and Arturo Valenzuela (eds.), .), ), The Failure of Presidential Democracy: Comparative Perspectives (Johns Hopkins University Press, Baltimore, 1994), 7; Arend Lijphart (ed.), Parliamentary versus Presidential Government (Oxford

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presidential government in Russia tried to avoid; only a strong executive, the reformers believed, could drive through the necessary transformation of the country. The teleological goal of systemic transformation over-rode traditional forms of accountability. A single sovereign power in the form of a strong presidency was seen as the way of overcoming the legacy of the past. It was also seen as a centre of stability in a social order that had fragmented into numerous pre-modern contesting authorities, ranging from regional bosses, economic interests and mafia gangs. It was against this that Putin set his face by restoring the “power vertical”. The executive was able to free itself from effective popular oversight and accountability while becoming parasitic on the state and inhibiting the institutionalization zation ation of the latter. Three categories of explanation can help account for this. The first is based on the functional demand for undisputed executive sovereignty in the transition, in a society allegedly characterized zed ed by a lack of trust.26 The functionalist approach imputes Hobbesian characteristics to Russian political life, assuming that classical forms of responsibility of principal to agent cannot operate in an environment where the agent is deigned to know better than the principal to whom it was nominally responsible. The second is the societal approach, focusing above all on the absence of strong and legitimate democratic subjects that could constrain the executive and embed governmental authority in a polyarchical sharing of power. Russia under El’tsin had elements of polycentrism but not polyarchy; with the latter in Dahl’s model acting as a countervailing force to administrative power.27 The third is the axiological approach, sharply dividing society into adherents of a modernizing zing ing agenda and opponents of Russia’s adaptation to Western norms and international economic integration. The struggle against the vestiges of Communist power represented by the Soviet state was followed by the battle to assert presidential autonomy against the re-sovietizing zing ing legislature. In these struggles it was unclear who or what was the principal and what the agent. One thing was clear, however, and that was the reduction of the putatively sovereign people to the role of University Press, Oxford, 1992), 19. See, also, his “Presidentialism and Majoritarian Democracy: Theoretical Observations”, in Juan J. Linz and Arturo Valenzuela (eds.), .), ), The Failure of Presidential Democracy: Comparative Perspectives (Johns Hopkins University Press, Baltimore, 1994), 91-105, in which he examines the origins and maintenance of executive power. 26

Thomas M. Nichols, The Russian Presidency: Society and Politics in the Second Russian Republic (Macmillan, Basingstoke, 2000).

27

Robert Dahl, Polyarchy: Participation and Opposition (Yale University Press, New Haven, 1971).

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9

observers, like the animals peering through the window in amazement and disgust as the ruling class of pigs disporting themselves in Orwell’s Animal Farm.

The Constitution onstitution and the Presidency residency François Mitterand referred to the post of president, as created by Charles De Gaulle in 1958, as a “permanent coup d’etat”,28 and shortly before his death he warned that French political institutions “were dangerous before me and could become so after me”.29 The president concentrates power in their own person and can govern with relatively little accountability to representative institutions or constraints from other state institutions, whose membership in many cases is nominated by the president. Many felt that this warning was no less appropriate for Russia. The presidency there overshadows all other political institutions, to the degree that Klyamkin and Shevtsova call it an “elected monarchy”.30 The paradox under El’tsin, however, was the emergence of a strong presidency in a weak state, something that created a whole range of power asymmetries and distortions. This was not a problem unique to Russia. As Stephen Holmes has argued, the “universal problem of post-communism is the crisis of governability produced by the diminution of state capacity after the collapse of communism”.31 The creation of the presidency had been intended to compensate for the weakening power of the Communist Party, and now it filled the vacuum created by the ebbing of state authority and the weakness of civic initiative. While there may be some force to the arguments of latter-day behaviorists that once again a type of nominal or façade constitutionalism has emerged in Russia, the neo-institutionalist response that institutional arrangements do matter is no less convincing. The adoption of a genuine constitution and the move towards real constitutionalism is not only a matter of establishing the boundaries of power, the contours of accountability, the framework of responsibility, but also of establishing the normative terrain in which politics can be conducted. As Carl J. Friedrich puts it in his work on constitutional government and democracy: “The constitution, 28

François Mitterand, Un coup d’etat permanent (Plon, Plon, Paris, 1964).

29

Nichols, op.cit. note 26,, 2.

30

Igor Klyamkin and Liliya Shevtsova, This Omnipotent and Impotent Government: The Evolution of the Political System in Post-Communist Russia (Carnegie Endowment for International Peace, Washington, DC, 1999).

31

Stephen Holmes, “Cultural Legacies or State Collapse? Probing the Post-Communist Dilemma”, in M. Mandelbaum (ed.), Post-Communism: Four Views (Council for Foreign Relations, New York, 1996), 50.

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then, is the process by which governmental action is effectively restrained, functions also as the most effective unifying force in a community.”32 The letter of the Constitution is the ground over which much of politics in contemporary Russia is fought. The rulings of the Constitutional Court do matter and constrain the actions of the administrative regime, although not as effectively as may be desired. Thus, whatever its failing, the 1993 Constitution is more than window-dressing, and indeed provides the normative impetus for Putin’s attempt to reconstitute the state. The most controversial aspects of the 1993 Constitution concern the provisions dealing with the presidency. The adoption of the new Constitution, to replace the much-amended “Brezhnev” Constitution of 1977 and its Russian variant of 1978, took place in the heat of bitter conflicts over the most appropriate institutional arrangements for the newly independent Russia.33 The framers of the Constitution sought to avoid the instability and conflicts that had wracked late Soviet and early Russian politics by creating a firm source of executive authority; but at the same time they were keen to ensure that the new political system repudiated Russian imperial and Soviet authoritarian to create a liberal and democratic system. In the event, they were perhaps more successful in enshrining the principles of liberalism than they were in ensuring the balanced democratic separation of powers. The precise responsibilities of executive power outlined in Articles 110-117 of the Constitution were excessively wide and diffuse.34 Nevertheless, for the first time in Russian history a constitution made a serious attempt to define, and thus to limit, state power. The problem, however, is not that the Constitution lacks the idea of the separation of powers, but that this separation is allegedly fundamentally unbalanced. As Robert Sharlet puts it: “The Russian Constitution of 1993 created a strong executive presidency to which the government is subordinated within an imbalanced separation of powers arrangement. This constitutional model has been a major source of Russia’s chronic crises.”35 32

Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America (Blaisdell Publishing Company, London, 4th ed. 1968), 170. Italics in original.

33

These are discussed in my “The Struggle for the Constitution in Russia and the Triumph of Ethical Individualism”, 48(2-4) Studies in East European Thought (September 1996), 115-157. 157. 57.

34

This is argued by K.S. Bel’skii, “O funktsiyakh ispolnitel’noi vlasti”, Gosudarstvo i pravo (1997) No.3,, 14-21.

35

Robert Sharlet, “Russian Constitutional Change: Proposed Power-Sharing Models”, in Roger Clark, Ferdinand Feldbrugge and Stanislaw Pomorski (eds.), .), ), International and National Law in Russia and Eastern Europe: Essays in Honor of George Ginsburgs, in William B. Simons (ed.), Law in Eastern Europe, No.49 (Martinus Nijhoff Publishers, The Hague, London, Boston, 2001), 361.

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The powers of the presidency are based on a combination of appointment powers and policy prerogatives. The 1993 Constitution grants the presidency extensive powers in naming governments, introducing legislation and making policy. The president is the head of state and the “guarantor” of the Constitution (Art.80), elected for a four-year term with a maximum of two terms but without an age limit (Art.81). The president nominates the prime minister and can chair cabinet meetings, proposes to the State Duma the director of the Central Bank, nominates to the Federation Council members of the Constitutional, Supreme and Supreme Arbitration Courts, and also nominates the Procurator-General. The president is also head of the Security Council, confirms Russia’s military doctrine, appoints the commander-in-chief of the Armed Forces, and “exercises leadership of the foreign policy of the Russian Federation” (Art.86). The president is granted the right to introduce a state of emergency and suspend civil freedoms until new federal laws are adopted. The president reports annually to a joint meeting of the two houses of the Federal Assembly on the government’s domestic and foreign policy. The president has the right to issue binding edicts (ukazy), which do not have to be approved by parliament, that have the power of law; they must not, however, contradict the Constitution; and they are superseded by legislative acts. Impeachment is extremely difficult, requiring a ruling on a demand by a Duma’s commission (set up with at least 150 votes) by both the Supreme and Constitutional Courts, to be confirmed by two-thirds of both the State Duma and the Federation Council, and can be initiated only in the event of “treason or commission of some other grave crime” (Art.93(1)). The Russian system meets the criteria established by Elgie, who defines a semi-presidential system as one in which there is a popularly elected fixed term president working with a prime minister and cabinet responsible to parliament.36 The level of governmental accountability to parliament, however, is contentious since the government is appointed by the president and responsible to him or her. The government is chaired by a prime minister, but at the same time a large block of “power” ministries come under the direct responsibility of the presidency. Like the Tsar according to the 1906 Constitution, who reserved responsibility for foreign policy, control of the armed forces and the executive, the 1993 Constitution (Art.80) grants the president control over four key areas: security, defense, se, e, home and foreign affairs. Russia’s presidency in effect acts as a duplicate government, with the functions of ministries often shadowed by agencies under the presidency. 36

Robert Elgie (ed.), Semi-presidentialism in Europe (Oxford, Oxford University Press, 1999).

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The institutional aspects of this have been dubbed the politics of “institutional redundancy” by Huskey.37 The prime minister exerts only partial control over his or her own ministers, and is deprived of control over the so-called “power ministries” (siloviki) responsible for domestic security. The president plays an active role in the policy process, initiating and vetoing legislation. El’tsin used his edict powers with great gusto, issuing over 1500 policy-relevant ukazy during his terms in office.38 Thus the nature of prime ministerial and cabinet responsibility to the Duma is episodic and unclear. The Duma has the choice of rejecting the president’s nomination to the premiership and can adopt no-confidence motions in the cabinet, but other than that the lines of accountability between government and parliament are relatively weak. The government is subordinated to the president and, formally, does not have to represent the majority party or coalition in parliament. At the heart of Russia’s governmental system is the presidential administration based in the Kremlin and in the former Central Committee offices in Old Square. The administration acts as a shadow government, although Putin did early on make some attempts to give the cabinet under Prime rime Minister inister Mikhail Kasianov greater autonomy. Nevertheless, it is clear that all fundamental ministerial decisions have to be coordinated with the presidential administration, and in some cases policy is driven from the Kremlin, as in the case of the reform of the electricity sector or the assault on Mikhail Khodorkovskii’s Yukos oil company. On other occasions the Kremlin acts as the broker between the government and interest groups. The 1993 Constitution has little to say about the presidential administration, mentioning it briefly in Article 83. The basis of its powers today is a presidential edict issued in 1996, which stated that the administration prepares presidential bills, edicts, directives, instructions and addresses. It monitors and supervises the observance of edicts and laws, and it works with political parties, non-governmental organizations zations ations and foreign politicians. The administration also has a powerful political role, monitoring the political situation in Russia and abroad and suggesting strategies to the president. At the head of the presidential administration is the chief of staff, a post filled for most of Putin’s first term by Alexander Voloshin until his resignation in late October 1993 over the Yukos affair. His replacement, Dmitrii Medvedev, was one of Putin’s legal colleagues from St Petersburg. The manner of Voloshin’s departure and the swirling intrigues at the time reflected the lack of transparency in the workings of 37

Eugene Huskey, Presidential Power in Russia (M.E. Sharpe, Armonk, NY, 1999).

38

John P. Willerton Jr.,“The .,“The “The Presidency: From Yeltsin to Putin”, in Stephen White, Alex Pravda and Zvi Gitelman (eds.), .), ), Developments in Russian Politics (Palgrave, Basingstoke, 5th th ed. 2001), 29.

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the administration. The reform of federal relations under Putin favored bureaucratic solutions that promoted the centralization zation ation of the federal system rather than its liberalization. zation. ation.39 There was an ever-decreasing legal space for regional parliaments to find creative solutions tailored to local needs, while the appointment of governors reduced local accountability and responsibility. At the same time, Putin’s style of leadership did little to enhance the government’s accountability to society or the legislature. The distinction between Regierung and Verwaltung, or between “politics” and “administration”, remains as narrow as ever. As Vile notes, “the nature of the governmental structures through which decisions are arrived at is critically important for the actual content of these decisions”.40 Executive authority became more independent of parliament, though it remained constrained by law and regulated by parliament within the framework of “delegated legislation”. Remington stresses that the 1993 constitutional settlement, while indeed granting the presidency considerable powers as part of the “adaptive evolution” of the system in response to the chronic political crisis of 1990-1993, 1993, 93, nevertheless provides significant “compensatory side payments” to other actors to ensure their participation in the new constitutional order. Paradoxically, according to Remington, the Russian parliament emerged as a more effective and representative body than earlier legislatures.41 Many questions remained, however, including the limits to presidential power. Would a strong executive encourage the development of democracy in society, or would it act as a substitute for popular democratic organization? zation? ation? Would not the “strong hand” inevitably take on aspects of the Bolshevism that it sought to extirpate, and perpetuate rather than overcome traditions of authoritarianism and arbitrariness? While the 1993 Constitution embodies the principles of liberalism, it is predicated on the assumption that the strong president will also be a liberal. In the event of this not being the case, the authoritative (if not authoritarian) elements in the Constitution come into contradiction with its liberal provisions. Is this what has happened? 39

For example the Federal Law of 4 July 2003: “On Amendments and Additions to the Federal Law ‘On the General Principles of the Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation’”, which provided an exhaustive list of forty-one tasks within the framework of joint responsibility to be achieved by regional authorities at their expense. Instead of the three-level model suggested in the Constitution (federal, joint and regional competencies), a two-level model was imposed (federal and regional).

40

Vile, op.cit. note 2, 1.

41

Thomas F. Remington, The Russian Parliament: Institutional Evolution in a Transitional Regime (Yale University Press, New Haven, 2001).

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Meta-Political Political olitical Processes rocesses and Para-Constitutionalism ara-Constitutionalism Constitutionalism onstitutionalism Russia’s 1993 Constitution does finally do what a constitution is supposed to do: establish the basic principles of the polity and define the roles of the institutions of government. At the heart of the idea of modern constitutionalism is the separation of powers, and this the 1993 document does, although this separation in various aspects is unbalanced. The problem is perhaps another one: the very logic of Russian politics may be based on principles other than modernist governmental rationality and divided governmental powers inherent in constitutionalist approaches. We shall examine some of these below. We offer four basic characteristics that define an accountable leadership in a polity based on constitutionalism, and contrast them with a range of para-constitutional practices. These meta-political processes define the context in which genuine constitutionalism is struggling to be born, and identify the fundamental impediments in this evolution. For clarity, the exposition is starkly binary, although in reality the various ideal types merge into each other.

Neo-Patrimonialism Patrimonialism atrimonialism versus Liberalism iberalism According to Weber the boundaries of patrimonial authority are typically unclear, with the powers exercised by leaders and officials considered personal and derived from the relationship to the office-holder rather than from a clearly demarcated and institutionalized zed ed office.42 Although highly bureaucratized, zed, ed, the state in Russia does not function as a clearly delineated bureaucracy. To compensate, there is an expansive dynamic to the powers of office holders as they try to reduce risk by extending their prerogatives. This process is characteristic not only of the government but also of all other social organizations. zations. ations. For example, the legislature under Khasbulatov tried to establish its own neo-patrimonial hegemony (by controlling the disbursement of funds, allocation of posts and so on) that by the end became an explicit attempt to establish a neo-Soviet regime, the “deliberative despotism” against which Bolivar warned. This tendency towards neo-patrimonial hegemony is equally applicable to ministries and enterprises.43 A comparison can also be drawn with late communist China, where according to Walder authority patterns in enterprises were “neo-traditional”. The authority of the director reinforced by the party-state reproduced in new forms traditional authority patterns 42

H. H. Gerth and C. Wright Mills (eds.), .), ), From Max Weber: Essays in Sociology (Oxford University Press, New York, 1946), 244 and 297-298. 298. 8.

43

This process of empire building was also sharply in evidence in Ukraine. See Hans Van Zon, “Neo-Patrimonialism as an Impediment to Economic Development: The Case of Ukraine”, 17(3) Journal of Communist Studies and Transition Politics (September September 2001), ),, 71-95.

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of personal loyalty and discretionary powers of leaders.44 In Russia the old political class of apparatchiks, ministerial and security officials, remains a potent political force still largely unaccountable to the people, parliament and the law. This class tends to rule by law than by applying the rule of law to itself and its acts. In contrast to neo-patrimonial or neo-traditional systems, a liberal order corresponds to Weber’s rational administrative system governed by genuine constitutionalism, the separation of powers, the rule of law and a depoliticized zed ed and accountable officialdom. Of course, we have established these pairs as ideal types, and contemporary Western liberal democracies show no lack of signs of patrimonial traditional elements.

Emergency versus “Normal” Normal” ormal” (Non-Emergency) Forms orms of Rule ule In his book A Theory of Justice John Rawls argues that “liberty can be restricted only for the sake of liberty itself ”, but he does not enter into the details of the circumstances in which the liberty of today should be sacrificed for the greater liberty of tomorrow.45 In the Russian context the issue is far from abstract, and much of Russian history is characterized by the tension between emergency as opposed to “normal” (non-emergency) forms of rule. In his Discourses Machiavelli makes the following crucial observation. “In a well-ordered republic it should never be necessary to resort to extra-constitutional measures; for although they may for the time be beneficial, yet the precedent is pernicious, for if the practice is once established of disregarding the laws for good objects, they will in a little while be disregarded under the pretext for evil purposes. Thus no republic will ever be perfect if she has not by law provided for everything, having a remedy for emergency, and fixed rules for applying it.”46

Politics under El’tsin remained embroiled in what might be called a permanent state of insurgency (axiological politics), reminiscent of the definition of politics—the ability to distinguish between friend and foeadvanced by Carl Schmitt. El’tsin’s rule was less anti-constitutional than, to use Machiavelli’s phrase, “extra-constitutional”. No settled legal order emerged where the executive itself became subordinate to law. The issue was explored in revolutionary England by John Selden, where he distin44

Andrew Walder, Communist Neo-Traditionalism: Work and Authority in Chinese Industry (University of California Press, Berkeley,, 1986).

45

John Rawls, A Theory of Justice (Belknap Press/Harvard University Press, Cambridge, MA, 1971), 244.

46

Niccolo Machiavelli, Discourses on the First Ten Books of Titus Livius, in Max Lerner (ed.), The Prince and the Discourses, translated by Christian E. Detmold (Modern Library, New York, 1950), 203.

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guished, as Richard Tuck puts it, “between the arena of law and that of necessity”.47 Selden insisted that the plea of necessity “could never be used within the legal order”,48 and its use is an implicit admission that the civil order has broken down, or, in Russia’s case, has not yet been constituted. As with the Bolsheviks earlier, a displacement of sovereignty took place; the regime eschewed responsibility to the actual people existing at that time, and instead a mythical people of the future was invoked that would emerge as a result of the “transition” policies of the regime. The politics of transition required the subordination of today’s constitutionalism to tomorrow’s capitalist democracy; while under Putin the emphasis on the struggle against chaos and to maintain the territorial integrity of the state sacrificed liberty in exchange for the promise of security. Just as Communism was built on the bones of the contemporary generation so, too, El’tsin’s regime took on neo-Bolshevik features insofar as it appeared willing to sacrifice the needs of this generation for the good of the next. Politics, defined as the acceptance of the legitimacy of conflict over policy and the attempt to find structured ways to manage and mediate, if not to resolve, them, was subverted by an administrative rationality that precludes open-ended debates. It is this common purposive nature of power, which by definition displaces sovereignty away from the people as they actually exist at any given time towards the sovereignty of an over-riding ideal that prompted Reddaway and Glinski to dub El’tsin’s regime “market Bolshevism”.49 Jerzy Szacki calls this economic liberalism, which he argues was predominant in post-communist Europe at the expense of political liberalism.50 The key here is the process of developmental liberalism, where the emancipatory aspects of liberalism are subordinated to economic tasks. Under Putin the new social contract was far more basic: political liberty in exchange for state consolidation, economic modernization zation ation and national security.

Stability versus Order rder Stability is the short-term attempt to achieve political and social stabilizazaation without having resolved the underlying problems and contradictions 47

Richard Tuck, “Grotius and Selden”, in J. H. Burns (ed.), The Cambridge History of Political Thought, 1450-1700 (Cambridge University Press, Cambridge, 1991), 529.

48

Ibid., 528.

49

Peter Reddaway and Dmitri Glinski, The Tragedy of Russia’ a’’s Reforms: Market Bolshevism against Democracy (The United States Institute of Peace Press, Washington, DC, 2001).

50

Jerzy Szacki, Liberalism after Communism (Central European University Press, Budapest, 1995).

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besetting society, while order suggests a degree of effective congruence between the political regime and the structures and process in society.51 The tension between stability and order was a feature of Brezhnev’s rule that in the end gave way to stagnation. Brezhnev refused to take the hard choices that could have threatened the regime’s precarious political stability, and thus his stability gave way to stagnation. Stability politics can be seen as a feature of mismodernization zation ation or pseudo-modernization, zation, ation, of the type that is characteristic of Russia earlier or of Iran under the Shah, where a top-down drive for modernization zation ation ruptures organic or evolutionary patterns of development. Economists talk of “equilibrium”, a type of stability based on the preferences and constraints faced by the actors themselves. Equilibria, of course, can be socially inefficient, as Brezhnev’s rule demonstrated. Order in this context is something that arises when society, economy and political system are in some sort of balance.52 An ordered society operates according to spontaneous processes, whereas in a system based on the politics of stability administrative measures tend to predominate. In an ordered society in the contemporary world there are clear rules of the game backed by the rule of law, secure property rights and governmental accountability. In a stability regime the bureaucrat exercises arbitrary authority and the government acts in a neo-patrimonial manner. In a stability regime everything is typically politicized, zed, ed, but nothing is political—with the political defined as a framework for debate and the contest of organized zed ed and informal views on important policy questions that shape the life of the political community. While Russia had the full panoply of democratic institutions by the end of the 1990s, something was clearly missing. New social actors had emerged, but the Russian power system could hardly be termed a polyarchy. Shevtsova identified it as the absence “of a mechanism for elaborating and implementing socially effective decisions. [The power system] cannot develop independently and depends entirely on manual control”.53 The new order was not working automatically but depended on 51

I first discussed this distinction in “The Soviet State, Civil Society and Moscow Politics: Stability and Order in Early NEP, 1921-24”, in Julian Cooper, Maureen Perrie and E. A. Rees (eds.), .), ), Soviet History 1917-1945: Essays in Honour of R.W. Davies (Macmillan, London, 1995), 42-77.

52

For the theory of congruence and its application to Russia, see Harry Eckstein, Frederic J. Fleron Jr., Erik P. Hoffmann and William M. Reisinger, Can Democracy Take Root in Post-Soviet Russia? Explorations in State-Society Relations (Rowman & Littlefield Publishers, Inc., Lanham, MD, 1998). The order discussed here is not the poriadok so beloved by Russian authoritarians (in effect, no more than artificially imposed stability politics), but a system in which Eckstein’s “balanced disparities” allows a natural balance to emerge.

53

Liliia Shevtsova, “Beg na meste”, Izvestiia, 12 February 1998, 4.

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individual management, something that continued into the Putin years. The shift from stability to order is the politics of normalization. zation. ation. As Gleb Pavlovskii argued, the main source of conflict in the Russian political elite is “resistance to normalization”. zation”. ation”. As far as he was concerned, Russia faced a choice between the rule of the new security establishment and “the financial rule of the seven boyars”.54 The éminence grise of Putinite stability politics, Pavlovskii and his ilk in the sphere of “political technologies” in the event became the greatest obstacles in the way of the emergence of a politics based on the natural equilibrium of an ordered democratic polity.

Administrative Regime egime versus the Constitutional onstitutional State tate The contrast between the informal relations of power established within the framework of regime politics, on the one hand, based on administrative and bureaucratic power, and the institutionalized zed ed politics characteristic of a genuinely constitutional state is characteristic of many democracies in the post-Communist era. Informal practices were in tension with the attempt to assert the prerogatives of the constitutional state. Under El’tsin personalized zed ed leadership came to the fore, with the political regime and its oligarchical allies operating largely independently from the formal rules of the political system, whose main structural features were outlined in the Constitution. Behind the formal façade of democratic politics conducted at the level of the state, the regime considered itself largely free from genuine democratic accountability and popular oversight. These features, as Hahn stresses, were accentuated by the high degree of institutional and personal continuity between the Soviet and “democratic” political systems.55 While a party-state ruled up to 1991, the emergence of a presidential-state by the mid-1990s had given way to a regime-state that perpetuated in new forms much of the arbitrariness of the old system. Both the administrative regime and the constitutional state succumbed to clientelist elist list pressures exerted by powerful interests in society, some of whom (above all the so-called oligarchs) had been spawned by the regime itself.56 A number of terms have been devised to try to capture this gulf between formal and informal practices, which is in effect the practice of displaced sovereignty.57 Instead of government being accountable to the 54

Izvestiia, 9 September 2003.

55

Gordon M. Hahn, Russia’s Revolution from Above, 1985-2000: Reform, Transition, and Revolution in the Fall of the Soviet Communist Regime (Transaction Publishers, New Brunswick, NJ, 2002).

56

For details, see A. A. Mukhin and P. A. Kozlov, “Semeinye” tainy ili neofitsial’nyi lobbizm v Rossii (Centre for Political Information, Moscow, 2003).

57

For example, delegative democracy; Guillermo O’Donnell, op.cit. note 23.

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representative institutions of the people and constrained by the constitutional state and its legal instruments, the government assumes an independent political existence.58 It is at this point that a politically responsible and accountable government becomes a regime; formal institutions are unable to constrain political actors and informal practices predominate.59 A regime here is defined as the network of governing institutions that is broader than the government and reflects formal and informal ways of governing, and is usually accompanied by a particular ideology, often defined in terms of advancing or defending some sort of substantive goal (for the Turkish military it was the secular nature of the state; for many ex-colonial states it was development and modernization; for the Soviet regime it was the building of socialism; and for El’tsin’s regime it was building capitalism). The administrative regime can thus be contrasted with the constitutional state.60 The outward forms of the constitutional state are preserved, but legality and accountability are subverted.61

Para-Constitutionalism Constitutionalism onstitutionalism and the Presidency residency In the administrative regime a set of para-constitutional behavioral norms predominate (dubbed by Machiavelli extra-constitutional measures) that while not formally violating the letter of the Constitution undermine the spirit of constitutionalism.62 As in America, para-constitutional behavior gets things done, but ultimately provess counter-productive because they rely on the mechanical armory of stability politics rather than the selfsustaining practices of the politics of order. During Putin’s presidency the practices of para-constitutionalism have been sharply accentuated. His regime has been careful not overtly to overstep the bounds of the letter of the Constitution, but the ability of the system of “managed democracy” to 58

For an analysis of the problem, see András Sajó, Limiting Government: An Introduction to Constitutionalism (Central European University Press, Budapest, 1999). For a recent overview applied to the post-Communist world, see Levent Gönenç, Prospects for Constitutionalism in Post-Communist Countries, in William B. Simons (ed.), Law in Eastern Europe, No.50 (Martinus Nijhoff Publishers, The Hague, London, Boston, 2002).

59

See Douglass North, Institutions, Institutional Changes and Economic Performance (Cambridge University Press, Cambridge, 1990), 3 and passim.

60

Richard Sakwa, Russian Politics and Society (Routledge, New York, 3rd ed. 2002), 454-458; 458; 8; see, also, “The Regime System in Russia”, 3(1) Contemporary Politics (1997), 1997), ),, 7-25.

61

Cf. Gary Lawson, “The Rise and Rise of the Administrative State”, 107 Harvard Law Review (1994), 1994), ),, 1231-1254. 1254. 54.

62

Cf. F. Riggs, “The Survival of Presidentialism in America: Para-Constitutional Practices”, 9(4) International Political Science Review (1988), 1988), ),, 247-278. 278. 78.

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conduct itself with relative impunity and lack of effective accountability means that it is firmly located in the grey area of para-constitutionalism. This was most marked in his reform of the federal system in 2000, and then in the reorganization of regional administration in the wake of the Beslan massacre of 1-3 September 2004. From the above discussion we can derive a concept of displaced sovereignty, whereby the principals (in this case the allegedly sovereign Russia people and its representatives) are unable to exercise effective means of control over its agents (the administrative regime with the presidency at its center). Thus it would appear that the behaviorists of an earlier generation were vindicated. As Vile puts it, writing in 1967: “There was a diminution of belief in the efficacy of constitutional barriers to the exercise of political power, and students of politics demonstrated how legal rules could be evaded or employed to produce an effect directly opposite to that intended.”63 In pursuing a policy of reconstitution by reasserting state autonomy from societal actors, Putin at the same time sought to reassert the political independence of the presidency from the informal practices of the administrative regime. This two-fold struggle for autonomy was intended to be mutually reinforcing: a constitutional state would be crowned by a free president defending the universal application of constitutional norms. However, things did not quite turn out as intended. In a constitutional state the activist presidency would itself be constrained, and all history demonstrates that such an act of subordination is not normally voluntary, but derives from the constraining effect of conflicts within the political elite or from the pressure of social forces. Putin’s state-building project followed in the French Jacobin tradition of establishing a homogeneous legal space and the universal application of governmental norms, but the associated development of the republican concept of an active citizenry was neglected.64 Putin’s system was legalistic, but it often acted in a spirit contrary to that of constitutionalism. Putin’s sovereignty games—restoring the autonomy of the constitutional state, challenging the autonomy of regional bosses, weakening the ability of the oligarchs to impose their preferences on the government, and freeing the presidency from the administrative regime—neglected one important element: the sovereignty of the people in a federal state.

63

Vile, op.cit. note 2, 7.

64

See Philip Pettit, Republicanism (Oxford University Press, Oxford, 1997).

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Conclusion In organizational economics principal-agent theory is applied to describe asymmetric information under incomplete contracts between two parties in which one, the agent, acts on behalf of the other—the principal. The interests of the two parties do not necessarily always coincide, and thus the fundamental problem is how to prevent the agent from reneging on its obligations to the principal. Reneging is perhaps an extreme case, and more typically the problem is adverse selection (the incompetent and/or corrupt agent), usually in the agent’s favor. This is typically difficult to discover given the asymmetry between principal and agent. When applied to politics the issue focuses on ensuring accountability of the executive to the people and its representatives in parliament. Of no less significance is the ability for the government to be checked internally by the establishment of autonomous agencies with the ability to hold other administrative agencies accountable for their actions. In the Soviet period the Communist Party and its various control committees fulfilled this role and exercised at least some minimal constraint on the bureaucracy. The fall of Soviet power removed this “principal”, and in a sense represented the liberation of its former “agent”. Throughout the post-Soviet world the problem of bringing the bureaucracy to account remains acute. Only when the regime is brought under the control of law and the Constitution and within the ambit of political accountability can Russia be considered to have achieved democratic consolidation. This would be a revolution every bit as significant as the fall of Communism itself in 1991. Only when political processes and regime actors are subordinate to the legal constitutional system and responsive to the needs of citizens as reflected by their representatives in a freely and fairly elected parliament could we say that the rudiments of democratic accountability have been achieved. What Max Weber had called sham constitutionalism would give way to real constitutionalism where political institutions are subordinated to the rule of law and where human and civil rights are defensible by law. Genuine liberalism would replace the neo-patrimonial struggle for hegemony, impartial rules would take the place of prerogatives, order would replace stability, and the emergency would give way to the normal.

The Russian Constitutional Court’s ’ss Long Struggle for or Viable Federalism Robert Sharlet In the first years of the twenty-first century, both the Russian Constitution and the Constitutional Court passed their respective tenth anniversaries amidst a chorus of praise from all corners. A self-congratulatory mood prevailed—the country had managed, in spite of a turbulent transition, to live within the Constitution of 1993, and its custodian, the Constitutional Court, since its inception in 1991, had steadily gained in public respect with one major exception. The Court’s journey through its first decade and now beyond, had not been easy, not the least for its role in the struggle to help create a constitutionally viable or balanced federal system in Russia. The Court continues to play an active part on the federalism front with more success since Putin’s incumbency, but still not without some resistance to its writ in the provinces. Constitutionalism, in the words of a prominent Russian jurist, “arrived in Russia like a cyclone and came on like driving rain”.1 Much has been achieved in building a constitutional system and much still remains to be accomplished. Contemporary Russia finds itself somewhere between stability and order, between near-term stability marked by administrative expediency and a longer term, more ordered society.2 In the realm of constitutional jurisprudence, Chief Justice John Marshall’s description of the early American Republic existing in the “shadowy borderland between law and politics”,3 seems apt for Russia as well.

Constitutional Anniversary The keynote on the tenth anniversary of the Constitution was the document’s great contribution to political stability since the collapse of the first Russian Republic in the fall of 1993. President Putin sounded the stability theme which was taken up by other commentators as well. Constitutional Court Chief Justice Valerii Zor’kin added that the Constitution’s emphasis on a strong presidency had “saved Russia from political disintegration”.4 1

Vladimir Pastukhov, “Filosofiia Russkogo konstitutsionalizma”, 4(45) Konstitutsionnoe pravo: Vostochnoevropeiskoe obozrenie (2003), 18-27, at 25 (hereinafter “Konst. pravo”).

2

Richard Sakwa, Putin: Russia’s Choice (Routledge, London, 2004),, 57.

3

Robert Sharlet, “Russia’s Second Constitutional Court”, in Victoria E. Bonnell and George W. Breslauer (eds.), Russia in the New Century (Westview, Boulder, CO, 2001), 59-77, at 74.

4

Valery Zorkin, “RF Constitution, a Decade On”, Moscow News, 10-16 December 2003 in Johnson’s Russia List (11 December 2003) No.7463 item 22.

Gordon B. Smith and Robert Sharlet, eds. Russia and its Constitution: Promise and Political Reality 23-51 Copyright Koninklijke Brill NV, Leiden, 2008

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Given the high value placed on stability, Putin also reaffirmed his opposition to amending or revising Russia’s basic law, reiterating El’tsin’s earlier steadfast position that the Constitution’s potential has not been exhausted, hence revision would be premature. Once again, Putin denied rumors that he would seek an amendment permitting him to run for a third term, but speculation on the possibility remains rife. Most public officials’ commentary concurred with the president’s constitutional assessment. Many public intellectuals also agreed, but not all. Shakhrai, a constitutional draftsman, argued for reform within the existing Constitution; Krasnov, a former El’tsin legal adviser, feared reform could lead to possible “destabilization of the state”;;5 Putin’s adviser, Kozak, simply worried that constitutional change could be bad for the country, while the Speaker of the Federation Council merely repeated Putin’s formulaic position on the status quo. Krasnov explained why incumbent officials take the line “Hands off the Constitution!”, arguing they prefer to “adapt it to their momentary needs and requirements in order to sit more comfortably in their arm chairs”.6 The jurists also chimed in with Zor’kin saying the “present Constitution of Russia will last another 200 years”,7 while former Chief Justice Marat Baglai begged off by observing that amending the Constitution would be “practically impossible”8 since the process is so difficult. Academic jurists were not as unanimous on the subject. Opposing change, the chair of the Constitutional Law Department of St. Petersburg University at least argued that many constitutional norms require a “long perspective” for realization, even “an entire historical period”.9 Another distinguished academic, however, was highly critical of the Constitution, including its treatment of the Federation subjects, and flatly stated a “new Constitution is needed”.10 5

Quoted in Richard Sakwa, Chapter One of this book.

6

Mikhail Krasnov, “Meniat’ nado, no–opasno”, 43(46) Politicheskii zhurnal, 22 November 2004, available at ..

7

Valerii Zor’kin, “Nekotorye iz rossiiskikh zakonov protivorechat dukhu i bukve Konstitutsii”, Biuro pravovoi informatsii, 27 February 2004, available at ..

8

Marat Baglai, “Konstitutsiia—rubashka na vyrost”, Rossiiskaiia gazeta, 3 October 2003, available at ..

9

L.B. Eskin, “Konstitutsionnaiia reforma v Rossii: Krizis ili ocherednoi etap?”, Pravovedenie (2001) No.2(235), 4-24, at 8.

10

Suren Abak’ian, “Konstitutsiia Rossii: Slozhnyi iubilei”, RF Segodniia (1 December 2003) No.22, available at ..

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The Constitutional Court Comes of Age On its decennial anniversary and as part of the Constitution’s retrospective, there was no dispute on the Constitutional Court’s performance in recent Russian political and legal development. While the Court’s primary function is defined as verifying the constitutionality of federal laws, its two other principal responsibilities include ensuring federal compliance of constitutions, charters, and normative acts of the Federation subjects, as well as bilateral treaties between the center and selected subnational units.11 Addressing the justices, Putin specifically thanked the Court for carrying out its latter functions, in particular, for its assistance in his first term campaign to bring provincial constitutions, charters and laws into compliance with the federal Constitution, in effect helping restore to Russia “nearly complete legal unity”.12 If full unity has not yet been achieved, he added, it was due to the fact that Russia is in the process of growing a supportive legal culture as the sufficient condition for Rule of Law development. On a broader plane, the Constitutional Court was acknowledged for its contribution to constitutional maintenance during the past decade. This took two forms. No less applicable for the Russian Constitutional Court is a significant observation about the US Supreme Court: “Political Stability can be achieved only when the Court’s authority to bind the nation through its constitutional interpretations is generally accepted.” Although unquestioned acceptance of the Russian court’s writ has not yet been attained, over the years the Court has accrued political capital and moral stature, essential properties for the long run. The second aspect of the Court’s success also echoes a familiar American practice, to wit, by refusing to accept a petition, “the Court can duck important constitutional issues, sometimes forever”,13 an essential option in Russia where the Court in its first incarnation frequently rushed into political frays, damaging its reputation. Less discussed during the celebrations were the Constitutional Court’s running difficulties with the subjects of the Federation, especially the republics. The Court inherited a difficult beat. From the start of Russia’s post-Soviet existence in 1991, the country was beset with centrifugalism. Even before the Russian Federation exited the USSR, the Chechens had 11

S.M. Shakhrai et al., Konstitutsiia Rossiiskoi Federatsii: Entsiklopedicheskii slovar’ (Izdatel’stvo Bol’shaia Rossiiskaia Entsiklopediia, Moscow, 1995),, 101.

12

Vladimir Putin, “Opening address at a meeting with judges from the Constitutional Court”, 12 December 2003, available at ..

13

Neal Devins and Louis Fisher, The Democratic Constitution (Oxford University Press, Oxford, 2004), 224 and 231.

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declared their independence. Given the onrushing events of fall 1991, there was little Russia could do at the time to prevent the secession. Centrifugal trends were generally most pronounced among the former autonomous republics of the RSFSR which had declared themselves republics of the Russian Federation and were anxious to join the “parade of sovereignties” going on among the union republics as the Soviet Union came to an end. As leader of the Russian Republic in 1990, El’tsin inadvertently encouraged the problems he later had to deal with when he told the Tatars: “If you want to govern yourselves completely, go ahead”, and shortly thereafter, the Bashkirs were invited to take as much power “as you can swallow”.14 The Constitutional Court’s task in policing center-periphery relations was not made easier by the fact that the draftsmen of the new Constitution did not have a firm idea of what they intended in the chapter on the federal system. Earlier versions of the chapter had proved controversial and the final version was hastily drafted with crucial concepts thinly described which, during the 1990s, became the source of much conflict. To further complicate the adjudication function, the Constitution provided for a symmetrical federation while simultaneously granting special privileges to the republics not enjoyed by the regions. In a later authoritative textbook on the Constitution, one of whose authors was to become a chief justice of the Constitutional Court, the best they could do was locate the concept of federalism between confederation and unitarism without adequately defining their terms.15 Another source of later conflict was the fact that several Federation subjects established their Constitutions before the final drafting and ratification of the federal Constitution. These included the Republics of Tatarstan, Sakha and Tyva as well as the Sverdlovsk Region. The republics were entitled to have Constitutions, but Sverdlovsk, a region, was not. It was only entitled to enact a charter. However, its ambitious leadership sought to convert the region into the Urals Republic in order to achieve equal status with the more privileged republics. To this end, they even drafted a “Constitution” in mid-1993 while the draft federal Constitution was still in contention. The center first dissuaded Sverdlovsk from its course of action, later taking strong action, but it is no coincidence that of the four constitutional predecessors, all but Tyva later became among the most resistant to central authority. In Germany, the main source of Russian constitutional borrowing, a similar situation arose without, however, becoming a source of conflict. Before the new postwar German Constitution came into being in 1949, 14

Leon Aron, Yeltsin (St. Martin’s Press, New York, 2000), 394.

15

Shakhrai, op.cit. note 11, 250-253. 253. 53.

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several of the Länder or states had already created their own constitutions. However, after the federal Constitution, the states amended their constitutions as necessary to be in compliance. While a German state enjoys considerable autonomy, it “exists simultaneously with the necessity of federal ‘homogeneity’”,,16 a balance that only began to come into sight in Russia after Putin launched his 2000 campaign to restore the power vertical. The latter is still a work in progress, but sufficient change in center-periphery relations has already occurred to cause a Russian specialist to comment “the Russia of 1993 and the Russia of 2001 are essentially two different federations”.17

The Constitutional Court on the Federalism Front Because of its active role on the federalism jurisprudential front, the Constitutional Court has been described as an “instrument actively defending […] the federal state structure”, and, derivatively, “the single economic space established by our Constitution”.18 In the course of its institutional history, the Court has consistently come down on the side of symmetrical federalism, and to this end has occasionally been assisted by the Russian Federation Supreme Court operating within its jurisdiction. However, therein lies the rub—the Constitutional Court is trying to enforce the draftsmen’s intent for federal symmetry in which citizens enjoy equal rights, and all subjects have the same rights, while mainly, but not exclusively, the republics resist in favor of an asymmetrical Spanishtype federation. Under El’tsin from 1995 through 1999, the Court was often very cautious in selecting cases for its federalism docket, sometimes tentative in its decision-making, and occasionally Solomonic in its rulings, the precedent for which of trying to give something to both parties was established in the politically fraught Communist Party case of 1992.19 In effect, the Court would emphasize symmetry in its main ruling, but sometimes on narrow, technical grounds in a subsidiary conclusion, leaving a back door open for continuing asymmetrical behavior. 16

Arthur Gunlicks, The Lander and German Federalism (Manchester University Press, Manchester, 2003), 146.

17

Vladimir Leksin, “The New Russian Federalism”, in Peter H. Solomon, Jr. (ed.), The Dynamics of “Real Federalism” (Centre for Russian and East European Studies, University of Toronto, Toronto, 2004), 52-76, at 52.

18

Vladimir Putin in “K 10-letiiu Konstitutsionnogo Suda Rossiiskoi Federatsii” (hereinafter “10th Anniversary”), Gosudarstvo i pravo (2002) No.4, 5-18, at 5.

19

Robert Sharlet, “The Russian Constitutional Court: The First Term”, 9(1) Post-Soviet Affairs (1993), 1-39.

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However, as previously mentioned, the Constitutional Court vis-àvis the provinces became much more assertive and emphatic on behalf of federal symmetry during Putin’s first term. Thus at the Court’s tenth anniversary convocation in 2001, it was honored for its federalism work, to a great extent for its casework since spring of 2000. In this respect, the most generous remarks were made by Academician Topornin, Director of the Institute of State and Law of the Russian Academy of Sciences. Topornin praised the Court for its position that “federalism must be balanced, and that federalism not become confederalism”. Then with obvious reference to the Court’s recent cases in restoring the power vertical, he added: “The Constitutional Court has taken a firm position to the effect that sovereignty overeignty is a concept connected with a single state, with the federal state, and that the parts of the federation can have a very broad, but not a sovereign area of competency.”20

A Very Brief Court History A short history of the Russian Constitutional Court begins with its first sitting in late 1991. The statute under which it operated permitted the Court to initiate cases as well as receive cases from petitioners. By law, the Court’s full complement was fifteen justices, but the Soviet-era, Russian Parliament was only able to fill thirteen seats. The new justices selected as their chief justice, Professor Zor’kin, a legal academic who had been a member of the commission laboring to draft a new Russian Constitution. Although Zor’kin had no personal political ambitions, he was a highly activist court leader, frequently leading the Court into the middle of the increasingly sharp conflict between President El’tsin and his parliamentary opposition from spring of 1992 through summer of 1993. As a result, the chief justice and the Court were considered by the El’tsin camp to be highly politicized. By September 1993, the struggle between the power branches became a dangerous zero-sum game. When the conflict turned violent, the first Russian Republic came to an end with the Court suspended by the President, and Zor’kin forced to step down as its chief. After a brief interregnum, a post-Soviet Russian Constitution which included a Constitutional Court, was ratified. The Parliament of the second Russian Republic convened in early 1994. By mid-summer, a new Constitutional Court Statute was in place, increasing the size of the Court to 19 justices, narrowing the standing rules, and permitting the Court to hear only cases brought to it by qualified petitioners. The original 13 justices were grandfathered on to the new Court, but it took the Parliament and President until early 1995 to fill the remaining six seats. A new justice, Vladimir Tumanov, a think tank scholar, was chosen 20

B.N. Topornin, “10th Anniversary”, op.cit. note 18, 18.

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as chief justice. Tumanov led the Court until reaching the age of mandatory retirement in 1997. Justice Marat Baglai, a specialist in labor law, succeeded as the Constitutional Court’s third chief justice. He led the Court until early 2003 when Justice Zor’kin prevailed in a contested election between the two. Chief Justice Zor’kin continues to be a very active public intellectual, but the jury remains out on whether he learned any lessons from his previous rocky tenure as a “judicial politician”.21

Court Leadership Zor’kin is generally blamed for bring the Constitutional Court low by the end of the First Republic. His interventions in the raucous politics of the day were successful in a few instances, but at other times ill-considered. Zor’kin was a judicial activist in the sense that he tended to constitutionalize his “judicial policy preferences”.22 The chief justice had a special weakness for extra-judicial comment on politics, and even on cases. His remarks were often intemperate as in his well publicized warning to former Soviet President Gorbachev who refused a summons to testify in the Communist Party case, and especially in his repeated shrill threats against the Tatar leadership which had defied the Court in the Tatarstan Referendum case of early 1992. His invective against the Tatars was to no avail and only resulted in displaying the young Court’s weakness publicly. Zor’kin could also be quite excitable on his perceived fear of Russia disintegrating into a multitude of micro-states as the USSR had broken up earlier. He spoke of this frequently and usually in apocalyptic terms like the need to “save Russia” from the abyss, catastrophe, chaos, disaster, perdition, or the “brink of a precipice” which he darkly predicted would be a hundred times worse than the ongoing Yugoslav wars.23 Fast forwarding a decade ahead, back bencher Zor’kin is now once again leading the Constitutional Court, and again manifesting a similar pattern of extrajudicial behavior. He has already provoked the chief justices of the Constitutional Court’s two sister courts. Supreme Court Chief Justice Lebedev openly challenged Zor’kin to back up his public allegations about extensive corruption in the Courts of general jurisdiction, while former Chief Justice Iakovlev of the Supreme Commercial 21

Robert Sharlet, “Chief Justice as Judicial Politician”, 2(2) East European Constitutional Review (1993), 32-37.

22

Sujit Choudhry, “The Lochner Era and Comparative Constitutionalism”, 2(1) International Journal of Constitutional Law (2004), 1-55, at 3.

23

Sharlet, op.cit. note 21, 34-35; and Sharlet, op.cit. note 19, 15.

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Court complained about the Constitutional Court’s encroachment upon his court’s jurisdiction.24 What has concerned Chief Justice Zor’kin most, however, are the sovereignty cases of the past several years as part of Putin’s campaign. While the Court spoke quite eloquently in its decisions on these cases, the Chief Justice has chosen to publicly reiterate the central finding that “[t]here can be no kind of sovereignty by a part of the whole. […] The Constitution of our state does not recognize sovereignty of the constituent parts of the federation”. Reacting to a characteristic remark by an outspoken Republic President, Zor’kin added that any “attempt to avoid the [court’s] decision de facto is a gross violation of the Constitution”.25 During summer 2004 in one of his many public interviews, Zor’kin was still referring to the collapse of the USSR and Yugoslavia and in that mindset commented “from the mouths of certain regional leaders from time to time one hears talk about the necessity of building a federation on ‘divided sovereignty’”.. He added, indignantly: “And this in spite of decisions adopted by the Constitutional Court.”26 It surely did not escape Zor’kin’s attention that among the offending chief executives was his old adversary, President Shaimiev from the days of the Court’s 1992 collision with Tatarstan. In a 2004 article, Zor’kin expressed his additional concern over the Chechen situation and the dangers of global terrorism for Russia, and once again a tone of high anxiety can be heard coupled with doomsday imagery.27 The Constitutional Court’s second leader, Chief Justice Tumanov, could not have been more different than his predecessor. Tumanov was more politically savvy and skilled in navigating the still rough seas of Russian elite politics. On his election as chief justice in 1995, he reportedly said the task would be to avoid provoking “the presidential administration against a still weak court”.28 Thus, on the occasion of the Court’s tenth an24

V. Iakovlev, Novosti, 11 November 2004, available at ;; RFE/RL, “Supreme Court Asks Constitutional Court to Prove Corruption”, 29 October 2004, available at <[email protected]>;; and Valerii Zor’kin, “Ot sud’i i slyshu”, Vremia novostei (28 October 2004) No.198, available at ..

25

Valerii Zor’kin quoted in inAnna Anna Zakatnova, “Konstitutsiia—eto matematika svobody”, Rossiiskaiia gazeta, 9 December 2003, available at ..

26

Valerii Zor’kin, “Apologiia Vestfal’skoi sistemy”, Rossiiskaia gazeta, 13 July 2004, available at ..

27

Valerii Zor’kin, “Rol’ Konstitutsionnogo Suda v obespechenii stabil’nosti i razvitiia Konstitutsii”, 3(48) Sravnitel’noe konstitutsionnoe obozrenie (2004), 83-87.

28

Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (University of Chicago, Chicago, 2000), 162.

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niversary, Tumanov, by then retired, was lauded for having “depoliticized” the Court29 which was only partially true. Yes, Chief Justice Tumanov had kept the Court out of the political fray, even going to great lengths to try to avoid hearing the politically dangerous Chechen case of 1995, but in his frequent press conferences he often displayed a pronounced pro-presidential bias. In a public appearance even before the formal hearing on the Chechen case, Tumanov signaled his position on the issues, a type of extrajudicial comment forbidden by the Court’s governing statute. Perhaps Tumanov’s most injudicious moment came following the Court’s pro-Kremlin ruling in the case, when he admitted that “legal argument was sometimes adjusted to political goals”.30 Under Chief Justice Tumanov, the Court became very cautious in granting what in the US is called writs of certiorari to the large number of petitioners who greeted the convening of the second Constitutional Court. Whenever possible, cases involving narrow or technical jurisprudential issues were favored. In decision-making, Tumanov followed the principle of the “golden mean” which upon his retirement in 1997 a critic dubbed the “golden half-heartedness” for his timid leadership of the Court, especially on federalism issues.31 Still, in retrospect, Tumanov was uncommonly shrewd on the unavoidable relationship of politics and law in Russia. Rejecting as “nonsense” a legal academic’s insistence on a strict “political questions” doctrine for the Court, Tumanov commented: “The Constitutional Court is doomed to address political issues. [...] The Americans have learned to view every political issue as a legal problem. That’s the trick.”32

Chief Justice Baglai was elected by his fellow justices to a three-year term in 1997 and re-elected to another term in 2000. He was the first leader of the Court to bring management experience to the post, and set for the Constitutional Court the task of promoting the stabilization of Russia’s emerging constitutional system. The results were evident, and in 2001 Baglai was justly honored for having “regularized the work of the Constitutional Court”..33 The chief justice was also an author, publishing a respected textbook on Russian constitutional law.34 29

V.N. Kudriavtsev, “10th Anniversary”, op.cit. note 18, 15.

30

Sharlet, op.cit. note 3, 72

31

Ibid., 69. Ibid

32

Ibid., 74. Ibid

33

Iu. F. Feofanov, “10th Anniversary”, op.cit. note 18, 16.

34

Marat Baglai, Konstitutsionnoe pravo Rossiiskoi Federatsii (NORMA-INFRA, Moscow, 1998).

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Noted for his pragmatism, Chief Justice Baglai initially continued his predecessor’s careful course in case selection. However, as the Constitutional Court began to garner increased respect from the political elite and informed public, Baglai became more venturesome in accepting cases for consideration, including the Third Term case in which the Court ruled that El’tsin could not run for a third term. Nevertheless, the Baglai court was regarded as a friendly ally of the executive branch under both Presidents El’tsin and Putin. The Putin administration even engineered a legislative exception to the statutory mandatory retirement age to keep Baglai at his post. Unlike his two predecessors, Chief Justice Baglai was circumspect in his public rhetoric, both in tone and content. In deference to the Court’s statute, he would consistently decline to answer journalists’ questions about pending cases. His remarks were always constructive and to the point of an issue. In his extrajudicial capacity, it could be said that Baglai contributed to broad public education on the role of constitutional justice in the Russian system of justice. The Chief Justice could also as necessary be quite forthright. In one instance when a Kremlin aide suggested that El’tsin could issue a presidential edict changing the law on parliamentary elections, the chief justice publicly retorted: “A presidential edict abrogating a law in our country is impossible.”35 Upon expiration of Baglai’s second term, satisfaction with his leadership was apparent when Putin aides lobbied the justices for his re-election in early 2003. Zor’kin’s surprise return to the Court leadership that year was taken as a signal that the justices were voting for more judicial independence from the executive branch, and in the person of Zor’kin, greater judicial activism.

The Constitution’s Mixed Message on Viable Federalism For the most part, the Constitution is clear, straightforward, and supportive of the concept of viable center-periphery relations in the form of symmetrical federalism, but other clauses of the basic law can be construed as potentially subversive of the federalism project. The Case for Symmetrical Federalism in Russia The following summaries of relevant constitutional clauses constitute a strong and unambiguous case for symmetrical federalism in Russia:

35

Sharlet, op.cit. note 3, 70.

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Sovereignty and Supremacy The Constitution unequivocally vests sovereignty solely in the Russian federal state, and extends its reach throughout the entire country (Art.4(1)). The sole source of state sovereignty is the multinational people of Russia (Art.3(1)). The basic law itself, as well as all federal laws, enjoyss supremacy in the hierarchy of laws throughout the Russian Federation (Arts. s. 4(2) and 15(1)). 5(1)). All subnational governments and officials must observe the Constitution and federal laws (Art.15(2)). Federalism and Equality Principle The Russian Federation is a federative state governed by law (Art.1(1)). All subordinate entities of the federation shall enjoy equal rights (Art.5(1)). In relations with the federal state, they shall be equal with one another (Arts. s. 5(4) and 72(2)). Each citizen of Russia shall enjoy all rights and freedoms granted in Chapter Two throughout its territory (Art.6(2)). Unified System and Power-Sharing Federal relations between center and periphery shall be based on a unified federal system of political, legal and administrative authority (Art.5(3)). The federal state guarantees a common economic space throughout the federation (Arts. s. 8(1) and 74(1)). Land and natural resources on Russian territory may be subject to a variety of forms of ownership implying powersharing (Arts. s. 9(2) and 72(e)). The territory of the federal state comprises the territories of its subordinate governments and all related waters, seas and air space (Art.67). Federal and Subject Jurisdictions The exclusive jurisdiction of the federal state encompasses 18 designated areas of competency (Art.71). As the equivalent of Article 10 of the US Constitution, the sub-national governments of the federation shall enjoy exclusive jurisdiction over all matters assigned neither exclusively to the federal state nor to joint jurisdiction (Arts.73 s.73 .73 and 76(4)). The Federal President and the Government of the Federation shall be responsible for implementation of all federal powers and authorities throughout the entire territory of the country (Art.78(4)). Role of the President The Federal President serves as guarantor of the Constitution and may take steps to protect the sovereignty of the Federation (Art.80(2)). The writ of presidential edicts shall run throughout the Federation (Art.90(2)). The President may suspend subnational executive acts which conflict

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with the Constitution, federal laws, or international obligations of the Federation pending court action (Art.85(2)). Constitutional Adjudication The federal Constitutional Court on request from qualified petitioners including the President, shall adjudicate questions of conformity to the federal Constitution of subnational constitutions, charters, and others laws on matters under sole federal jurisdiction or joint jurisdiction (Art.125(2)(b)), as well as bilateral treaties between federal and subnational governmental entities (Art.125(2)(c)). Acts or parts thereof found to be unconstitutional shall lose force (Art.125(6)). The enabling act for the federal Constitutional Court shall be in the form of a federal constitutional law (Art.128(3)). Constitutional Court decisions are binding throughout the territory of the Russian Federation for all governmental and non-governmental entities and persons. All decisions are final and not subject to appeal (Arts. s. 6 and 79 of the 1994 FCL on the Constitutional Court of the Russian Federation).36 Supremacy of Basic Principles Within the Constitution, the fundamental principles of Chapter One enjoy hegemony, brooking no conflict from other parts of the Constitution (Art.16(2)). Constitutional Symbols, Gaps and Ambiguities: Backdoor to Asymmetrical Federalism The following clauses muddy the otherwise clear route to a viable symmetrical federalism in Russia by sowing misperception, confusion, and, derivatively, contradiction among Federation subjects, In effect, a constitutional backdoor is opened for pursuit of asymmetrical federalism: Symbolic Sovereignty and Subject Inequality “A republic (state)” may have a constitution and its own legislation (Art.5(2)). A republic’s status shall be determined by the federal and republic constitutions (Art.66(1)). Dispersed Inequality and Uncommon Space Power and jurisdiction-sharing treaties may be negotiated between the federal executive and the regional state bodies of Federation subjects with no indicated limits on negotiable topics, and general silence on the place of such bilateral treaties in the hierarchy of laws (Art.11(3)). 36

Sbornik zakonov Rossiiskoi Federatsii (ONIKS, Voronezh, 1998), 21 and 30.

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One commentary on the Constitution describes the treaties as paraconstitutional means of modifying the rigid Constitution in the interest of “securing internal peace and calm in the country”.37 Gaps, Ambiguities and Confusion The federal state and Federation subjects shall share “joint jurisdiction” over fourteen indicated areas of competency (Art.72), some of which are relatively easy to jointly manage, e.g., protection of historical monuments (Art.72(1)(e)); others of which are ambiguous, e.g., tax issues (Art.72(1)(i); cf. Art.72(h)); while still others are inherently conflictual, e.g., natural resource use, and judicial appointments (Art.72(1)(e) and k); and finally some are immensely complex, e.g., joint jurisdiction over eight new law codes, most of which were not in place for most of the 1990s, thus sowing legislative confusion among the subjects (Art.72(1)(j)).. Conflict and Contradictions Both the federal and subject legislators are permitted to adopt the necessary coordinated legislation to implement joint jurisdiction competencies (Art.76(2)). In reality, the production of federal legislation on many of the joint topics lagged behind under El’tsin, while it was imperative for the subjects to fill the gaps with the necessary laws for local legal regulation. Not infrequently these laws were contradictory of and in conflict with other federal legislation and legal principles. Supremacy of Basic Principles (Again) Given the importance of Articles 5(2) and 11(3) above for the asymmetry brief, it bears repeating that no other constitutional clauses may conflict with the fundamental principles of Chapter One (Art.16(2)). Other Factors Militating Against Symmetrical Federalism While the hastily drafted Constitution of 1993 itself was the source of much of the Constitutional Court’s difficulties on the federalism beat, other factors also militated against a viable federal system based on the principle of symmetry. 1. Chechnia Declaring its independence of Russia and the USSR in the fall of 1991, successfully defying Russian President El’tsin’s call to cease and desist, refusing to sign the Federation Treaty of 1992, and then withstanding the might of the Russian armed forces in two wars, the Chechen Republic has been a major irritation to the Russian elite in its federation building efforts. The Republic’s consistent defiance of Moscow has turned the 37

I.S. Iatsenko, Konstitutsiia Rossiiskoi Federatsii (Berator-Press, Moscow, 2003), 40.

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de jure Federation of eighty-nine subjects into a de facto Federation of eighty-eight. All efforts to buy off the insurgent Chechens with a generous power-sharing treaty and other special concessions have been to no avail. Of late, the Chechen fighters have successfully projected violence into neighboring republics giving rise to fears that the entire Russian Caucasus might become destabilized by indigenous and global terrorism. 2. Tatarstan Although fortunately not a site of violence, the Republic of Tatarstan has probably consistently done more than any other subject to derail federal symmetry and advance the cause of treaty-based federalism. The Tatar President with his Bashkir colleague usually just a step behind, has consistently but peacefully defied Moscow’s effort to create a level federal playing field. Even under Stalin, the Tatars were restless, seeking to upgrade their status in the USSR from an autonomous republic of the RSFSR to a union republic. Stalin reportedly commented that the Tatars had as much chance of becoming a union republic “as they had of seeing their own ears”.38 As the USSR was coming to an end, Tatarstan was among the first autonomies to reclassify themselves republics of the Russian Federation, and include the new popular term “sovereignty” in their Soviet-period basic law. Upon Russia’s independence, Tatarstan declined to sign El’tsin’s Federation Treaty in early 1992, a rushed effort to keep the Federation from following the course of the USSR. The Tatars went a step further, scheduling a republic referendum on independence, and then defying the new Constitutional Court’s order to cease and desist. Later, Tatarstan promulgated one of the first post-Soviet constitutions ahead of Russia. Although the results of the referendum were positive, the leadership made no effort to secede from Russia; however, its 1992 constitution bore all the earmarks of putative independent statehood. Then as the price of good relations with Moscow, the Republic extracted from El’tsin the first power-sharing treaty in 1994 which led to what Jeffrey Kahn called the “parade of treaties”.39 Armed then with a constitution at variance with the new federal document coupled with El’tsin’s customized concessions, and as a net contributor to the federal Treasury not vulnerable to Moscow’s economic leverage, Tatarstan throughout the 1990s enacted republic legislation, and conducted its domestic and even its international business as if it was a quasi-separate state associated with the Russian Federation. In effect, the Tatars became the role model for legal and financial separatism elsewhere in the Federation. 38

Quoted in Schwartz, op.cit. note 28, 285-86, and endnote 98.

39

Jeffrey Kahn, Federalism, Democratization, and the Rule of Law in Russia (Oxford University Press, Oxford, 2002), 180.

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3. Elite Bidding for Support From early in the first Russian Republic into the Second Republic, elite bidding for support among Federation subjects created fertile ground for Tatarstan’s deviant example. El’tsin began handing out concessions to various subjects very early in the game beginning in spring 1992, in order to persuade various republics and regions to sign the three treaties which collectively constitute the Federation Treaty. The Republic treaty which set the republics apart from the regions by granting them constitutions, state languages and other symbols of statehood, was the first Russia-wide document to codify inequality between the Federation subjects, and advance the cause of asymmetry. Following the example of Gorbachev’s 1991 attempts to secure a new decentralized Union Treaty, El’tsin’s Federation Treaty represented considerable concessions to the subjects through decentralization and devolution of federal powers and authority. Nonetheless at the eleventh hour, Bashkortostan still refused to sign until El’tsin cut a special sidebar deal with its president. To bring the Federation Treaty to life, an estimated one hundred legislative acts would have been necessary as enabling legislation. However, little of this work was accomplished as President and Parliament intensified their differences. Eventually, the treaty was downgraded as a source of authority in an annex to the new Russian Constitution of 1993. Nevertheless, this did not discourage various subnational players from occasionally invoking it as a defense against the Constitutional Court’s attempts to enforce symmetrical federalism. As late as 1998, the Komi President cited the Federation Treaty which despite its legally devalued status, clearly lived on in the mythology of asymmetrical federalism.40 The next round of elite bidding occurred in spring of 1993 on the occasion of the referendum on El’tsin’s leadership and policies. Some Federation subjects were not going to set up polls until persuaded as El’tsin barnstormed for a “Yes” vote with a bag full of gifts from the center to hand out at every stop. It worked:: El’tsin won the referendum, and later re-employed the technique in his come-from-behind re-election campaign during spring of 1996. By then the most prized object in the provinces was a bilateral treaty with Moscow, loaded with special concessions. El’tsin did not disappoint, a new round of treaty negotiations were targeted at the most vote-rich regions and republics. Thus by the end of El’tsin’s presidency what the provinces had not appropriated from below, they had been given by a central government constantly trying to maintain social peace. The result was a badly imbalanced and skewed Federation populated by runaway provinces withholding tax revenues and generally ignoring federal legal writ. In this political and 40

Ibid.

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legal environment, it is not surprising that an American observer reported that “The [Constitutional] Court has been an ineffective and infrequent arbiter of federalism disputes”.41 4. Bilateral Treaties El’tsin’s preferred method of dealing with the provinces by cutting deals in the form of bilateral power-sharing treaties, further weakened the legal and economic fabric of the Russian Federation. As Eugene Huskey pointed out, political bargaining was El’tsin’s primary means for resolving center-periphery conflicts. Since the treaties contributed to asymmetry by fostering conditions of inequality between the subjects themselves as well as in the federal center’s relations with them, most if not all were concluded in violation of the Constitution. Generally referenced to the federal executive’s discretionary authority under Article 11(3), any treaty or annex that accorded special privileges to one Federation subject that were not available to all others contradicted Article 78(2) of the Federation Chapter which reiterated Article 11(3), but with the proviso that the agreement “does not conflict with the Constitution of the RF and federal laws”. There appeared to be little limit to El’tsin’s generosity with federal powers. Treaties with Tatarstan, Bashkortostan and two other republics even placed the defense and territorial integrity of the Russian Federation under joint rather than exclusive federal control as provided in the Constitution (Arts. s. 71(m), 80(2), 87(1), and 114(1)(e)).42 An especially astonishing deal occurred in 1998 when the Supreme Court ruled that the Ingush President could not conduct a referendum about making all federal legal personnel in the Republic beholden to him through personal appointment. The Ingush leader refused to comply until El’tsin bribed him with a power-sharing treaty. When a year later, the Ingush President again raised the specter of the referendum, El’tsin once more bought him off with an additional side agreement granting more concessions.43 As a consequence, by the end of his incumbency, El’tsin had granted treaties comprising nearly a thousand individual agreements44 to more than half the Federation subjects in a process marked by little transparency so that the full extent of the federal give-aways was not readily evident. The 41

Ibid., 178. Ibid

42

William Pomeranz, “The Russian Constitutional Court’s Interpretation of Federalism: Balancing Center-Regional Relations”, 4(4) Parker School Journal of East European Law (1997), 401-443, 443, 43, at 414.

43

Kahn, op.cit. note 39, 181-182. 182. 82.

44

William E. Butler, Russian Law (Oxford University Press, Oxford, 2nd ed. 2003), 92.

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Federation has begun to resemble a mosaic of autonomous principalities. Hence: “In the nascent Russian federalism, politics, not law or administration, was in command”.45 5. Article 72—Deferred Maintenance Article 72 has become over time much more than just a constitutionallegal quandary. Left largely unattended to during the Constitution’s first decade, it became a political problem with adverse implications for the Russian polity. In the rush to ready a final draft Constitution back in fall 1993, El’tsin’s draftsmen papered over regional/republic demands to constitutionalize their then accrued autonomy from the center, by deferring the issues in the form of Article 72, a commodious basket containing sketches for the future structure of Russian federalism. As mentioned, the sketches were to be the outlines for a massive legislative undertaking, possibly more than a hundred statutes and a number of codes, which would give legal shape and effect to the many interfaces along which the federal state and its constituent units were to cooperate in the construction of a viable federal system. For the most part, the grand expectations were not realized. Two main reasons for this failure of constitutional implementation can be offered. First, the new Russian polity of the Second Republic was faced with an enormous legislative task of more urgent priority, the recodification of received Soviet law into a modern legal system consonant with an emerging market economy and a developing democratic system. This would involve several thousand new statutes and nearly two dozen codes, all of which had to be cross-referenced with each other as well as with extant laws awaiting revision. Because of worsening legislative-executive policy differences, the work moved slowly under El’tsin, but has greatly accelerated under Putin, especially with the end of Communist Party strength and opposition in the State Duma. As previously discussed, the other reason for failing to implement Article 72 was El’tsin’s choice of a near term shortcut to political stability in the form of several dozen bilateral treaties instead of pursuing the more demanding legislative route of harmonizing national and subnational interests in the direction of a long term ordered society. As quoted above, politics trumped law in considerations of Russian federalism throughout the 1990s, the fractured result being virtually hundreds of ad hoc arrangements over natural resources, tax revenues, and federal personnel appointments between the center and more than half its subjects. 45

Eugene Huskey, Presidential Power in Russia (M.E. Sharpe, Armonk, NY, 1999), 206.

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Understandably in the absence of much needed legislation on federal relations and faced with provincial elites empowered by treaties which rent great holes in the existing legal fabric of the country, the Constitutional Court’s task on the federalism front was formidable. Early on, Chief Justice Baglai called attention to how the ambiguities of Article 72 had brought down on the Court a veritable avalanche of law suits and counterclaims. To no avail, he called for a separate Code on Federal Relations.46 Five years later on the occasion of the Constitution’s anniversary, Putin turning his attention to the problem, commented on the familiar phenomenon of regional laws that violated the Constitution and federal legislation, but then added in mitigation: “It was not entirely clear which precise areas fall within the region’s legislative competence, especially within the framework of Article 72 of the Constitution, and this only further complicated the situation. Many of these problems have still not been resolved to this day.”47

In effect, legislative neglect and political dereliction has left Russia with a significant problem of trying to catch up on constitutional deferred maintenance. Added to the problem are the thousand or so existing laws requiring some form of joint responsibility that remain disconnected absent a law or mechanism for intergovernmental negotiations and cooperation.48 The current chief justice, Zor’kin, acknowledging Article 72’s “shortcomings”, believes they can be overcome through the creation of good laws within the current Constitution, but another jurist, a Russian specialist on federalism, has recently taken a different tack, seeing creative opportunity in the constitutional dilemma: “The Constitution obviously does not have sufficient capacity for the regulation of the problems of the federal system. However, owever, the existing inadequacy of constitutional regulation makes it possible for federal relations to evolve in different directions, to seek a federal model that is optimal for Russian ussian conditions.”49

6. Claw-Back and Resistance Putin assumed the presidency in 2000 with a mission to take back the runaway provinces which had enjoyed considerable license under El’tsin. In his determination to bring an end to legal separatism which was driving Russia toward legal chaos, Putin shortly after his election decreed the division of the country into seven large administrative districts, each to be run by trusted subordinates referred to as presidential envoys. The 46

Schwartz, op.cit. note 28, 160.

47

Vladimir Putin, “Excerpts from speech at meeting of the Council of Lawmakers”, 9 December 2003, available at ..

48

Alexei Trochev, “Broad Strokes” in Solomon, op.cit. note 17, 18.

49

T. Ia. Khabrieva, “Rossiiskaia Konstitutsiia i evoliutsiia federativnykh otnoshenii”, Gosudarstvo i pravo (2004) No.8, 5-13, at 13.

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task he set for the envoys was the restoration of Russia as a unified legal space under the Constitution and federal laws by clawing back many of the federal concessions made to the subjects over the years. The main line of attack was a coordinated legal offensive in each federal district to harmonize the wayward constitutions and charters consistent with the federal Constitution, and standardize derivative legislation to correspond to superior federal law. Subsequently, the bilateral treaties were added to the federal target list. Undoing nearly a decade of excessive and erratic federal devolution along with further unauthorized local appropriations of federal prerogatives, was often a hard struggle over the next two years, but a great deal of progress was achieved by the envoys and their staffs assisted where needed by the Procuracy and federal courts. As Putin put political and administrative muscle to the rectification campaign, the Constitutional Court finally had the enforcement support it required to take on unconstitutional claims from below on divisible sovereignty, the right to nullify federal laws, and a treaty-based federalism. In Richard Sakwa’s words: “The writ of the Constitution now began to run unimpeded throughout the territory of Russia.”50 However, that was not the end of the center-periphery struggle. Most of the republics and regions brought their basic laws into line, repealed or amended offending legislation, and gave up their treaties with the center. There were exceptions. In some instances, harmonized constitutions were like “palimpsests” or “documents that have been written, imperfectly erased and written over again, with the result that the original work often remains visible underneath more recent revisions”.51 Similarly, giving up the treaties was sometimes a “soft” abrogation with the mindset shaped by the power-sharing concessions still influencing relations with the federal center.52 Among the last-standers in the provinces that continued to resist the renewed federal writ were the Republics of Tatarstan, Bashkortostan and Sakha, as well as the Sverdlovsk Region. Their resistance was fairly predictable since they had been among the stalwarts driving forward the idea of an asymmetrical federation. In addition, unlike most of the Federation subjects which were subsidized by Moscow and over which the Kremlin had economic leverage, three of the four major resisters were 50

Sakwa, op.cit. note 2, 158.

51

Kahn, op.cit. note 39, 268.

52

Quoted in Sharlet, “Resisting Putin’s Federal Reforms on the Legal Front”, 11(3) Demokratizatsiya (2003), 335-342, 342, 42, at 338.

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net contributors to the federal Treasury while Sakha was a diamond-rich territory. Sverdlovsk and the two Muslim republics brought to the fight a history of either confronting or evading the authority of the federal state in the past. As mentioned, although Sverdlovsk’s 1993 attempt to republicanize its status was blocked, when the region’s charter was adopted in 1994, it was based on the defunct Urals Constitution.53 Similarly, the wily presidents of Tatarstan and Bashkortostan ran their republics like benevolent autocracies during the 1990s, often going their own ways on a wide range of issues either belonging to federal control or subject to central writ. Shaimiev, a secular Tatar Muslim, would play the “Islamic card” as needed if Moscow pressed, while in Bashkortostan, only those sections of the new Russian Civil Code, the pride of Russian legal reform, which did not contradict either the Bashkir Constitution or its bilateral treaty, were permitted to operate in the Republic.54 Even after the Constitutional Court’s decisions of June 2000, the jewels in the crown of the Court’s federalism jurisprudence, resistance persisted. In the Altai Republic case of early June, the Court struck down the Republic’s constitutional claim to sovereignty as well as its equally unconstitutional pretension to exclusive control of natural resources on its territory, among other sections of the Altai Constitution. The sovereignty clause was overturned on two grounds, the impermissibility of divisible sovereignty in the Russian Federation, and the Constitution’s federal equality principle: “In Russia as a federal state, there cannot be two levels of sovereign authority located in a single system of state power. […] [A]ll subjects of the RF are equal, and if republics epublics possessed sovereignty, and other subjects of the RF did not, then the constitutional principle of equality would turn out to be flagrantly violated.”55

Mitiukov, the presidential representative to the Constitutional Court, elated with the ruling, hopefully projected that it would be automatically binding against all other invalid sovereignty claims by Federation subjects. In fact, just several weeks later the Court considered the Six Constitutions case brought by a petition from a group of Duma deputies challenging the constitutionality of provisions in the constitutions of Tatarstan, Bashkortostan and four other republics. Because the issues were analogous to those adjudicated in the Altai Republic case, the Court declined to hear the 53

Grigorii V. Golosov, Political Parties in the Regions of Russia (Lynne Reinner, Boulder, CO, 2004), 129.

54

Aleksei Petrov, “Delo o prezidentskikh vyborakh v Bashkortostane”, 4(29) Konst. pravo (1999), 254-259, 259, 59, at 254.

55

Anna Malysheva, “Obzor del, rassmotrennykh Konstitutsionnym Sudom Rossiiskoi Federatsii”, 2(3) Konst. pravo (2000), 166-176, 176, 76, at 173.

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complaint and render a ruling (postanovlenie), but instead issued a lengthy explanation (opredelenie) on the applicability of the Altai findings to the constitutions in question. Writing for the Court, Justice Luchin explicated the Altai ruling, explaining in considerable detail its full implications for the six constitutions, including reminding the parties that no republic sovereignty claims could be based on the 1992 Federation Treaty which was subordinate to the Constitution (Section tion 2.1.part 3). Nor could such claims be made on the basis of power-sharing treaties in conflict with the Constitution. In a moment of poetic constitutional justice, Tatarstan was reminded that its assertion of sovereignty had been declared unconstitutional eight years earlier in the Court’s ruling on the Tatarstan Referendum case of 1992 which the Republic had ignored. Other examples of Luchin’s extension of the Altai ruling included, finding unconstitutional Bashkortostan’s clause declaring the supremacy of the Republic Constitution and law on its territory in defiance of federal supremacy; Komi’s nullification clause by which federal legislation could be suspended in the Republic; Ingushetia’s claim to exclusive jurisdiction over land on its territory, a matter of joint jurisdiction; and Tatarstan’s self-designation as a subject of international law, a status reserved to the federal state.56 Coming at the very outset of Putin’s harmonization campaign, the Constitutional Court’s two June 2000 pronouncements had major implications for the restoration of constitution order in Russian federal relations. A Tatar scholar subsequently commented that as a result of the constitutional contradictions having existed for nearly a decade, a great deal of republic legislation had been based on them in the course of time. In Tatarstan alone, he noted, over three hundred laws were rendered unconstitutional by the Six Constitutions case.57 Dashing Mitiukov’s nearterm hopes for an easy resolution to the subnational constitutional crisis in Russia, the Bashkir President promptly rebutted the Court, denying its jurisdiction and accusing the justices of “political speculation and opportunism”.58 A senior official, invoking the Republic’s power-sharing treaty, put the matter even more bluntly: “In Russia, the political process is more important than the law itself. So the agreements of our president with the Russian Federation President are more important than the law. The Constitutional Court of Russia is just a body, highly respected, 56

B.S. Ebzeev (ed.), Kommentarii k postanovleniiam Konstitutsionnogo Suda Rossiiskoi Federatsii Vol. 3 (Iurist”, Moscow, 2002), 86-111.

57

Mikhail Stoliarov, Federalism and the Dictatorship of Power in Russia (Routledge, London, 2003), 83-84.

58

V. O. Luchin, Konstitutsiia Rossiiskoi Federatsii (Iuniti, Moscow, 2002), 599.

44

Robert Sharlet but just a body of the Russian Federation. Itt has nothing to do with the Republic of Bashkortostan.”59

By the end of 2002, most republic constitutions and regional charters had been brought into compliance with the federal Constitution, but not without some fights in the ordinary courts along the way, as well as continued rearguard actions over revising the Tatar and Bashkir Constitutions. Nearly three-quarters of the bilateral treaties had been renounced with the remainder renegotiated within new guidelines spelled out in a 1999 federal law. Retaining their treaties subject to revision were predictably Tatarstan and Bashkortostan whose compacts dated back to early 1994. In mid-2004, Tatarstan presented a new re-drafted version to the Kremlin for consideration. Along the way, the envoys and the federal district procurators reported that thousands of errant laws had been standardized. And the Constitutional Court weighed in with two more rulings supportive of Putin’s federalism reform package. In November 2000 in the Tax Police case, the Court eliminated republic presidents’ prerogative to appoint the chief of the federal tax police in their jurisdictions, a decision which had an adverse impact on the chief executives’ ability to withhold federal tax revenues.60 Then, in the Dismissal Law case of April 2002, the Court rejected a challenge from two republic assemblies on the constitutionality of the new law permitting the President to dismiss a governor or disband an assembly, subject to due process, when either are consistently in defiance of federal legal supremacy. The Court confirmed the law.61 Two other Constitutional Court cases involving the Procuracy were also directly relevant to the harmonization and standardization campaigns for legal order. In the first case in April 2000, the Court ruled that procurators could challenge local laws violating federal legal standards in the ordinary district courts. As Alexei Trochev put it, the Court “gave the green light to Putin’s campaign to ‘harmonize’ regional laws and allow ordinary courts to declare regional laws ‘non-enforceable’”.62 In the second Procuracy case three years later, however, the Court ruled in favor of a petition from Tatarstan and Bashkortostan that procurators could no longer challenge republic constitutions or regional charters in ordinary courts. Only 59

Kahn, op.cit. note 39, 250-251. 251. 51.

60

Ger P. van den Berg (comp.), “Russia’s Constitutional Court: A Decade of Legal Reforms”, 27(2-3,, special issue)) Review of Central and East European Law (2001), 429.

61

Sharlet, op.cit. note 52, 341, and Anna Malysheva, “Obzor del, rassmotrennykh Konstitutsionnym Sudom Rossiiskoi Federatsii”, 2(39) Konst. pravo (2002), 226-232, 232, 32, at 229-230. 230. 30.

62

Alexei Trochev, “Less Democracy, More Courts: A Puzzle of Judicial Review in Russia”, 38(3) Law & Society Review (2004), 513-548, 548, 48, at 538.

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the Procurator-General could thereafter bring such challenges and only in the federal Constitutional Court,63 a retreat of sorts that some felt might slow progress in the effort to unify legal space in Russia. By 2003, pressure from Putin on the Federation subjects eased a bit as the Kremlin began preparing for the December parliamentary elections when help from governors and presidents would be needed to ensure a strong majority for the administration’s “party” in the Duma. The Constitutional Court had made its own contribution toward a better mood in the beleaguered provinces in mid-2002. In the Governors Term Limits case the Court construed a relevant law to allow most governors extended tenures.64 In another conciliatory step, the President had set to work his trusted legal lieutenant, Kozak, as chair of a commission to finally sort out the quandaries of Article 72 by delineating the jurisdictional boundaries and responsibilities of the several levels of government. Consistent with this step, Putin introduced a new mantra for federalism—synchronization. In an address to the newly created State Council of Regional Legislators shortly before the third anniversary of his first edict setting the reform of federalism in motion, the President called for carefully synchronizing all future federal and subnational legislation to avoid the mistakes of the past on both sides of the center-periphery relationship.65

Implementation: n:: The Achilles Heel of Federalism Jurisprudence The problem of implementing judicial decisions is inextricably bound up with the question of legal culture. Apropos, a Constitutional Court justice told me a story in the mid-1990s about a visit paid by Russian justices to the German Constitutional Court. One of the Russians asked the German judges how they handled the problem of compliance with their decisions. There was a perceptible pause in the conversation as the puzzled Germans looked at each other. Then one of the German judges broke the silence, saying: “Oh yes, once the Court secretary had to drive down to have a talk with an official in a Land where implementation of a court decision was proceeding a little slowly.” In Russia, a Constitutional Court was established in a country not only without a supportive legal culture, but, worse, a tradition of elite legal nihilism. From the outset, the justices had no choice but to be concerned about the reception of their learned opinions. In their initial case on a El’tsin edict during the first weeks of post-Soviet Russia, Chief Justice 63

Trochev, op.cit. note 48, 14.

64

Sakwa, op.cit. note 2, 153.

65

Sharlet, op.cit. note 52, 341.

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Zor’kin had to go to the Kremlin to persuade an annoyed El’tsin to comply with the Court’s ruling. The Court was soon to find its federalism jurisdiction far more challenging. Formally, as one justice later wrote, if an act is found unconstitutional in one Federation subject, then in keeping with the “logic of the law”, similar acts in all other subjects should automatically lose force.66 In transitional Russia, the brethren would learn in the next several years that expedient political reality often trumped legal logic. Justice Vitruk, who had served as acting chief justice during the interval between the first and second Constitutional Court, was especially critical of the “weakness [and] ineffectiveness” of the Court’s past implementation record which “in many cases caused […] a general undervaluing of the role and significance of constitutional justice in securing legal stabilization [and] consolidating the constitutional system […]”.67 The tale of the Court’s implementation troubles of course begins not in El’tsin’s reception room, but with the already mentioned Tatarstan Referendum case a few months later. The case is well known and has always been recited from the perspective of Zor’kin’s overreach and humiliation at the hands of Tatar President. Only recently has Shaimiev’s side at that infamous nadir in the Court’s history been heard. He told a British journalist: “The situation was very complex here in 1991-1992 1992 92 […]. Extreme nationalist forces gained the upper hand and called for full independence. […] Most of the population accused me of cowardice in comparison with Dudayev [the leader of “independent” Chechnia].”68

Zor’kin, who was politically tone deaf and obsessed with the possibility of Russia’s collapse, probably did not perceive Shaimiev’s dilemma, and if he had, no doubt would have proceeded on the same course; hence, the collision of wills so unfortunate for the young Court’s image, was inevitable. Later, when the second Constitutional Court appeared, El’tsin had already set in motion the train of constitutionally subversive power-sharing treaties. The Court then under the aegis of the hyper-cautious Tumanov, however, steered clear of the treaties although explicitly empowered by the new Constitution to verify their constitutionality. Although implementation became the Court’s principal problem during its first decade, it was not evident in every case. Of course, the cases of failure of nerve or implementation failure drew a great deal of adverse attention to the Court. In ducking the Mordovian Presidency case of 1993, should we not ask whether a chastened Zor’kin, who personally opposed 66

Luchin, op.cit. note 58, 600.

67

Nikolai Vitruk, “Rossiiskaia Federatsiia”, 3(40) Konst. pravo (2002), 53-63, at 53.

68

Quoted in Andrew Jack, Inside Putin’s Russia (Oxford University Press, Oxford, 2004), 231.

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the Mordovian act, experienced a failure of nerve, or was merely acting prudently since with the ever intensifying legislative-executive battle going on in Moscow, local non-compliance would have been a sure bet, and the Court could not have counted on the power branches to back it up. A series of Propiska cases from 1995-1997 1997 97 again revealed the Court’s weakness in spite of issuing soundly reasoned and well grounded rulings. Then in the 1997 Udmurt Local Government case, the Court saw its decision initially defied, but finally complied with, thanks to a threatening presidential edict from El’tsin. Successful implementation occurred, but at the expense of the Court’s legal distinctions in its well crafted ruling which was intended to leave in place part of the relevant Udmurt law.69 The following year, however, the Constitutional Court’s weakness on the federalism front was again in evidence in two cases. The Komi Local Government case was decided in January 1998. Parts of the Republic’s Constitution and its law on executive authority were pronounced unconstitutional, but to no avail. Komi’s President publicly lectured the Court that the authority for his unorthodox local government scheme flowed from the Federation Treaty which had preceded the federal Constitution and gave to the republics exclusive jurisdiction in the matter. The Court’s ruling was thus ignored.70 A few months later in April, the Court ruled on the Bashkir Language case. The Bashkir President’s entourage had re-engineered the Republic’s electoral legislation to discourage possible challengers to his reelection. Added to the requirements for candidacy was fluency in the Bashkir language, the state language of the Republic, in addition to Russian, the official language of the Russian Federation. When the case first arose, the Court, no doubt recalling Bashkortostan’s dismissive reaction to the 1992 Tatarstan ruling, tried to duck the case by postponing decision indefinitely, but as the presidential election approached, the Court was finally compelled to act. However, the justices then ruled timidly and narrowly on a gap in the offending electoral law, a tactical approach often taken by the US Supreme Court, except that in this instance, a conspicuous violation of the Russian Constitution was passed over in silence.71 Other cases presented no implementation problems. Because of the outcomes, it might be said that these cases were self-implementing. In the Chechen case of 1995, the most politically inflamed and notorious of the Constitutional Court’s entire tenure and not just its federalism jurisprudence, the ruling by the close margin of 11-8 favored the President 69

Luchin, op.cit. note 58, 604-605. 605. 05.

70

Kahn, op.cit. note 39, 180.

71

Ibid., 179. Ibid.

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and Government over the petitioners. Since the issue was the question of constitutional authority for the war being waged in Chechnia and the Court generally found for the executive powers, no implementation was necessary. After tentative peace talks being coincidentally held concurrently with the Court’s hearing on the case, the war resumed. Conversely, one can only imagine the implementation difficulties if the majority ruling had gone the other way, and El’tsin and the Government were censored for waging war on an internal province of the Federation with no constitutional authority after so much death and carnage. Similarly, two recent cases on the limits of legal standardization required no implementation due to their outcomes favorable to the petitioners. In the Ivanovo Civil Service case decided in late 2003, the regional Duma asked the Constitutional Court to check the constitutionality of its law on municipal civil service, a topic under joint jurisdiction. The Court confirmed that the Region could legislate on the matter in the absence of corresponding federal legislation, and that the statute at hand was consistent with the Constitution. Hence, no further action by petitioner was necessary.72 In the Pskov Civil Defense case several months later in 2004, the regional assembly turned to the Constitutional Court as its last resort. The federal procurator had challenged the constitutionality of the Region’s law on emergency situations in federal district court and won. The Region appealed to the Supreme Court which sustained the lower court. The Constitutional Court then overruled its sister titular court by finding that the Region’s law did not contradict the Constitution, or the Federal Law “On Civil Defense”. Hence, again no further action was indicated.73 In the middle on the implementation question are three other recent cases from the Court’s jurisdiction on federal relations. One of the Court’s rulings has already been implemented, but it is still too early to know whether the other two rulings will be observed given the nature of the issue in one case, and the reputation of the respondent in the other. The constitutional principle of equality for all citizens, in this instance on electoral rights, was the issue in the Tatarstan Election Law case of 2002. The Court ruled for the individual petitioner and against the Republic, ordering implementation within six months. The ruling was in fact implemented, but only after nearly twice the time limit, ten months.74 72

Anna Malysheva, “Obzor del, rassmotrennykh Konstitutsionnym Sudom Rossiiskoi Federatsii”, 1(46) Konst. pravo (2004), 178-185, 185, 85, at 182-183. 183. 83.

73

Anna Malysheva, “Obzor del, rassmotrennykh Konstitutsionnym Sudom Rossiiskoi Federatsii”, 3(48) Sravnitel’noe konstitutsionnoe obozrenie (2004), 204-205. 205. 05.

74

Lev Ivanov, “O postanovlenniakh Konstitutsionnogo Suda Rossiiskoi Federatsii 2002 goda”, 1(42) Konst. pravo (2003), 187-198, 198, 98, at 188-189. 189. 89.

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In the Murmansk Land Code case of April 2004, the Court found the Russian Federation Land Code constitutional. The Murmansk region had petitioned against foreigners having the right to buy land on its territory under the Land Code. The Court ruled that foreigners on Russian territory enjoy the same rights as Russian citizens—including the right to purchase or lease land—except for a justifiable national security proviso in the case of foreigners that they may not hold land in frontier areas. The question now is will the Murmansk authorities comply if and when a foreign citizen seeks to buy land in their jurisdiction, or will such attempt result in a tangle of further litigation.75 Another case decided on 16 November 2004 again involved Tatarstan. In the Tatarstan Alphabet case, the Court ruled against the Republic switching from the Cyrillic to the Latin alphabet for publications in the Tatar language. The question immediately comes to mind of whether this long time maverick Republic will easily comply on a matter of such cultural sensitivity.76 An American scholar who followed the federalism cases closely has concluded that the Constitutional Court’s ability to interpret Russian federalism is “absolutely dependent on the political will to enforce its decisions […]”.77 Former Chief Justice Baglai, who consistently lobbied the Kremlin on the issue of implementation for several years, strongly agreed. As soon as he took office as chief justice in 1997, Baglai spoke on the matter, saying that the executive branch, including the Procuracy, was “not sufficiently active” in assisting compliance with the Court’s decisions.78 He again raised the issue during the final year of El’tsin’s tenure in 1999, lamenting the myriad ways Federation subjects contradicted the Constitution and defied the Constitutional Court. Upon Putin assuming the presidency, Baglai took the question up with the new chief executive who, during summer 2000, promised the chief justice support for strict execution of the Court’s rulings.79 Putin followed up by pushing through the legislative process a law holding provincial executives and assemblies accountable for non-implementation of federal laws and court decisions. Thereafter, Baglai could observe the federal offensive to restore legal unity pick up momentum, but he still 75

Malysheva, op.cit. note 73, 202-203. 203. 03.

76

Anton Iugov, “Kirillitsa pobedila latinitsu”, Rossiiskaia gazeta, 17 November 2004, available at ..

77

Pomeranz, op.cit. note 42, 429.

78

Quoted in Schwartz, op.cit. note 38, 160.

79

Robert Sharlet, “Putin and the Politics of Law in Russia”, 17(3) Post-Soviet Affairs (2001), 195-234, at 219.

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remained concerned about the attitude of indifference toward the Court and its decisions that he perceived among many of the republic elites. After the Court’s two sovereignty cases in June of 2000 were followed by continued resistance in certain republics to the decisions, the chief justice retorted that “[t]hese people […] simply do not understand what is written in the Constitution of Russia: a law declared unconstitutional loses force”.80 In what was his final verdict on the subject, Chief Justice Baglai reflecting back on the 1990s said unambiguously that the lack of political will to enforce the Constitutional Court’s federalism decisions may have led to the epidemic of republic constitutions contradicting the Russian Constitution.81 Putin delivered further on his commitment to support the Constitutional Court with an amendment in 2001 to the 1994 Federal Constitutional Law on the Court that now permits the Court to file suit in the ordinary courts if, after six months, its writ has not been observed. Still, for one of the more thoughtful justices writing a year later, that was not enough. Echoing the chief justice, he concluded that implementation of the Court’s decisions “requires active involvement of the legislative and executive branches of government”.82

Coming Changes in Russian Federalism The next big change in Russian federalism will be President Putin’s latest initiative to eliminate direct elections of governors and presidents in favor of a modified prefect system of subnational administrators. The proposal has stirred an intense and wide-ranging constitutional debate in Russia, including among leading jurists. Tumanov and Zor’kin have publicly taken opposite sides on the constitutionality of Putin’s plan, with the former chief justice favoring it while the current court leader opposes. Meanwhile, a bill is making its way through the legislative process. No doubt a constitutional question on the matter will eventually arrive at the Constitutional Court’s doorstep. Tatarstan which strongly opposes Putin’s idea and has already sent more than a dozen amendments to the Duma, is showing every sign of bringing a challenge to the Court in the future. Aside from the merits of the issue should it come to the Court, and whether Zor’kin might recuse himself given his public remarks, a hypothetical question needs to be posed: Would a modified prefect system be 80

Luchin, op.cit. note 58, 600.

81

Tat’iana Vasil’eva, “Razreshenie pravovykh kollizii mezhdu Federatsiei i sub”ektami Federatsii”, 1(38) Konst. pravo (2002), 105-118, at 117, endnote 42.

82

Luchin, op.cit. note 58, 608.

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good for the Court? A tentative answer would be probably “Yes” since the main opposition to the Court’s writ over the years has come from the popularly elected chief executives of certain republics and regions. Should presidential nomination and indirect election by local assemblies replace the present electoral system, a long time obstruction to implementation of the Court’s rulings would be eliminated. In its place, the new prefects would become the president’s principal agents for enforcing federal law and court decisions in the Federation subjects. This is, of course, merely speculation at this point. Therefore, to conclude, it would appear that the 1990s was a lost decade in terms of the Constitutional Court’s effectiveness on questions of federalism in Russia. The situation could only get better and it did in the first half of this decade. Still, absent the necessary legal cultural prerequisites that would ensure ready compliance with its writ, the Court will need all the future support it can get from the other two branches if it is to progress further in helping Russia develop a viable federal system enroute to building a Rule of Law society.

Russia’s Constitutional Spirit: Judge-Made Principles in Theory and Practice Alexei Trochev Exploring the promise of any constitution is impossible without paying attention to both the letter and the spirit of the legal document. Traditionally, liberal democracies empower judicial review tribunals to elaborate the spirit of the constitution in order to determine the constitutionality of laws and regulations. Judges define this spirit through a catalogue of hidden and unwritten constitutional principles, however contradictory they may be. Where do judges find this constitutional spirit? Sometimes, they discover it in the past: in long-established social customs or in the “original intent” of the constitution-makers. In other cases, judges find the spirit of the constitution by drawing on the legal principles of other countries. Since the end of the World War II, judges around the world have been increasingly defining the constitutional spirit through the principles of international law, particularly in the area of human rights and particularly in Europe.1 However, a focus on a modern constitutional text filled with a healthy spirit alone is not enough to assess the practice of the constitution. To be practiced, constitutional spirit must be widely known to the public and to the state officials. To be effective, unwritten constitutional principles must permeate the everyday workings of high-level officials and street-level bureaucrats. To be well-entrenched, hidden constitutional foundations must address the needs of ordinary citizens and must rest on a broad social acceptance. What this means, is that the spirit of the constitution must be made public and convincing enough to persuade other power-holders to practice the court-ordered constitutional principles. In short, in addition to searching for constitutional spirit, judges face the challenge of educating and persuading the voters and government officials that hidden constitutional principles exist and do good for the nation. This chapter explores how the Russian Constitutional Court (RCC) dealt with both: challenges of defining the constitutional spirit and compelling others to respect the unwritten principles of the 1993 Russian Constitution with respect to individual rights. The main argument here is that this young Court deserves high marks for successfully overcoming both of these challenges. This was not an easy task for the Court in a country like Russia where legacies of arbitrary rule and Soviet legal positivism still play a visible role in public governance. Facing outright 1

Anne-Marie Slaughter, A New World Order (Princeton University Press, Princeton, 2004).

Gordon B. Smith and Robert Sharlet, eds. Russia and its Constitution: Promise and Political Practice 53-77 Copyright Koninklijke Brill NV, Leiden, 2008

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resistance and sabotage on the part of politicians, bureaucrats and other courts, the RCC has gradually been able to build a political space for unwritten constitutional values. This Court succeeded because it developed these values by both catering to and exploiting the short-term needs of politicians. Catering to the ever-changing interests of Russia’s rulers was important for the recovery of the RCC after a sixteen-month suspension in the wake of El’tsin’s attack on the Court in the fall of 1993. However, catering to the power needs of the rulers alone would undermine the Court’s reputation because “hidden” constitutional principles would simply mask the arbitrariness of the powerful. Instead of masking the choices of the powerful, the RCC boldly exploited their interest in joining the “civilized West” and drew on international legal standards to elaborate a whole system of invisible constitutional principles which would bring Russia closer to the West. In short, Russia’s constitutional spirit has both domestic and international ingredients. To be sure, judge-made constitutional spirit complicates public governance because law-makers and bureaucrats may not know about its existence and may prefer to follow their own informal operating procedures. However, public officials still benefit from respecting this spirit in the area of human rights to minimize the damage from politically costly litigation in the European Court of Human Rights in Strasbourg. Designing various tests, the Court applied hidden constitutional principles to check the constitutionality of core El’tsin and Putin policies, to balance countervailing constitutional values, and to champion both negative and positive rights. More importantly, this Court succeeded, more or less, in imposing its own version of the spirit of the Constitution on other key Russian political actors. This does not mean that Russia’s public policies fully comply with abstract unwritten constitutional principles. What this means is that many reforms of Russian governance have been inspired by the RCC jurisprudence (criminal justice, taxation, and federalism) while others face the constant threat of constitutional litigation. The question remains, however, whether abstract and hidden constitutional principles can prevail over informal rules of Russian governance in the long term. To develop these arguments, this chapter proceeds as follows. First, it explores how—through a not uncritical elaboration of international legal norms—the RCC established a hierarchy of both written and unwritten constitutional principles. Next, it discusses the trials and tribulations of defining and instilling the principles of formal and real equality and social fairness. Finally, the chapter concludes by outlining the challenges to the viability of the Russian constitutional spirit.

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Constructing a Hierarchy of Constitutional Principles From the beginning of its operation, the RCC has been developing its own hierarchy of both written and unwritten legal principles. Initially, the Court was forced to draw on the unwritten principles to make up for the gaps and internal contradictions in the heavily amended Soviet-era 1978 Russian Constitution. The January 1993 RCC decision in the Illegal Dismissals case illustrates this practice. In this case, the RCC clashed with the Russian Supreme Court over the practice of awarding damages in illegal dismissal disputes.2 Nine individual complainants asked the Constitutional Court to annul judicial decisions that recognized the fact of illegal dismissal, yet failed to award the salary for the whole period out of work. For example, one of the nine complainants, engineer Sergei Mazanov from Lenin’s hometown of Ulianovsk, fought his dismissal in courts for twelve years and eventually won his case. Yet the court applied Article 213 of the Labor Code that restricted compensation for illegal dismissal to one year regardless of the actual length of unemployment and awarded him compensation only for one year of lost work. Outraged at this injustice, the Russian Constitutional Court judges discovered that these limits were initially set in the Stalin-era regulation of 1938. The RCC ruled that these limits on damages in the illegal dismissal cases violated the fundamental “principles of fairness, legal equality, state guarantees of individual rights and just compensation of harm caused by illegal actions of state officials”. More importantly, the Court found that these principles—which existed in the Russian Constitution since 1978—bound courts to award damages in full for the whole period of dismissal and required the state, not the employer, to adjust the amount of damages according to the inflation rate. This line of reasoning reflected the aspiration of the RCC to develop constitutional principles as a way of protecting basic rights against their abuse by the ever-expanding administrative state. Here, throughout the decade, the Court achieved the most in the area of due process rights in criminal and civil procedure, commercial litigation and administrative justice. However, the RCC justices also quickly discovered that many litigants asked them to uphold their rights versus the rights of other individuals or groups. An elaborate catalogue of rights in the Chapter 2 of the 1993 Russian Constitution did not specify which rights are supreme. To balance countervailing rights, the RCC chose to develop a three-tiered hierarchy of written and unwritten constitutional principles. 2

RCC decision 1-P of 27 January 1993, VSND i VS RSFSR (1993) No.14 14 item 508 (Illegal Dismissal).

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“Generally accepted principles of law”, such as fairness, equality, proportionality, legal certainty, judicial independence, “behavior in good faith”, the inviolability of property rights, freedom of contract, and a ban on the abuse of rights are at the top of this judge-made hierarchy. The RCC judges believe that this group of legal principles is the foundation of all well-developed legal systems in the world. Most of these principles are hidden in the 1993 Constitution, which refers only to “fairness” in its preamble, to equality under law in its Articles 8 and 19, and to “property” in its Articles 8, 34 and 35. Below these are “constitutional principles”, which are specific to the Russian constitutional order and include federalism, separation of powers, Sozialstaat and so on. Further down this hierarchy are legal principles, which are specific to various branches of law. For example, freedom of private activity, unity of economic space, free movement of goods and capital, equal protection of property rights and economic competition are the constitutional principles which govern Russia’s market economy.3 This hierarchy of fundamental legal principles is not set in stone. As Justice Gadzhiev pointed out in the Court’s 2000 case involving state subsidies to the mass media,4 the RCC elevated the constitutional principles of inviolability of property rights and freedom of contract to the top category of “generally accepted” legal principles. The Court “upgraded” these principles in order to declare that the 1993 Constitution protected property rights of municipalities and the regions and required the federal government to observe Article 55(3), which refers only to “human and civil rights”.5 Therefore, the RCC often departs from a strictly literal interpretive methodology in developing its own vision of “rights as trumps”.6 According to the Constitutional Court, constitutional clauses express these “hidden” fundamental legal principles, and all courts must apply these 3

Gadis Gadzhiev, Konstitutsionnye printsipy rynochnoi ekonomiki (Iurist”, Moscow,, 2002), ),, 146-211.

4

RCC decision 14-P of 22 November 2000, SZ RF (2000) 2000)) No.49 49 item 4861 (State Subsidies to the Mass Media). For commentary, see Peter Krug, “Glasnost as a Constitutional Norm: The Article 29 Jurisprudence of the Constitutional Court and Other Courts in the Russian Federation”,, paper aper presented at the Annual Convention of the American Association for the Advancement of Slavic Studies, Arlington, VA, November 2001.

5

Gadis Gadzhiev, “Kommentarii”,, in Boris Ebzeev (ed.), Kommentarii k postanovleniiam Konstitutsionnogo Suda Rossiiskoi Federatsii. Tom 3 (Iurist (Iurist”, Moscow,, 2002), 243.

6

Peter Krug, “Assessing Legislative Restrictions on Constitutional Rights: The Russian Constitutional Court and Article 55(3)”,, 56 Oklahoma Law Review (2003), 689. “Rights as trumps” is borrowed from Ronald Dworkin, “Rights as Trumps”,, in Jeremy Waldron (ed.), Theories of Rights (Oxford Oxford University Press, Oxford, 1984), ),, 153-167. 167. 67.

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principles even if ordinary legislation does not mention them.7 But where would Russian judges find these principles? Most RCC justices believe that they lie in international human rights law rather than in the spirit of the Constitution or in natural law.8 Between 1995 and 2005, forty-three judgments cited the 1948 Universal Declaration of Human Rights, one hundred ten referred to the 1966 ICCPR; nine to the 1966 ICESCR in addition to three dozen judgments which mentioned non-binding resolutions and declarations of various United Nations bodies.9 That the RCC chose to invoke non-binding international legal acts and to make them binding on Russian branches of government shows another side of the bold court. After prolonged debate among justices on the subject of acceptable international legal norms, the majority of them agreed pragmatically that their Court had “implied” constitutional authority to determine which norms were generally recognized in international law, and, thus, were binding on Russia.10 Drawing the criticism of international law professors, the RCC did not wait for political branches to ratify certain international treaties or declarations and resolutions of international organizations. For example, the Court referred thrice to the 1950 European Convention of Human Rights as binding before 5 May 1998, when Russia ratified this Convention.11 Between that date and 2005, 7

Gadzhiev, op.cit. note 3, 54-55.

8

RCC decisions: 14-P of 22 July 2002, VKS RF (2002) 2002)) No.6, 6,, 29-41; and VKS RF (2003) 2003)) No.1, 3-6 (Iaroslavtsev, dissenting) (Bank Bankruptcy Protection); and 228-O of 1 October 2002, VKS RF (2003) 2003)) No.2, 2,, 3-6 (Bankruptcy Protection). Justices Vitruk and Oleinik repeatedly referred to the spirit of the Constitution in their dissents. See, e.g., RCC decisions: 86-O of 14 July 1998, VKS RF (1998) 1998)) No.6, 6,, 10 (Oleinik, dissenting); 17-P of 10 June 1998, VKS RF (1998) 1998)) No.5, 5,, 28-41 (Vitruk, dissenting) (Local Elections); and 1-P of 14 January 2000, Rossiiskaia gazeta, 2 February 2000 (Vitruk, dissenting) (Criminal Charges).

9

On applying international law in the RCC, see, e.g., Oleg Tiunov, “Mezhdunarodnopravovye aspekty obespecheniia prava sobstvennosti i praktika Konstitutsionnogo Suda Rossiiskoi Federatsii”,, in Rossiia i Sovet Evropy: Perspektivy vzaimodeistviia (ILPP, Moscow,, 2001), ),, 113-124. 124. 24.

10

Tamara Morshchakova, “Primenenie mezhdunarodnogo prava v konstitutsionnom pravosudii: itogi i perspectivy”,, Konstitutsionnoe pravosudie (2001) No.4, 119; Nikolai Vitruk, Konstitutsionnoe pravosudie v Rossii (1991-2001 gg.) (Gorodets-izdat, Gorodets-izdat, Moscow, 2001), ), 125-133. On the hostility towards applying international human rights law in the RCC, see Kim Lane Scheppele, “Constitutional Ethnography: An Introduction”,, 38(3) Law & Society Review (2004), 398.

11

RCC decisions: 9-P of 4 April 1996, VKS RF (1996) 1996)) No.2, 2, 42 (freedom of movement in Art. 2 of the Protocol No.4 to the 1950 Convention); 9-P of 16 March 1998, SZ RF (1998) 1998)) No.12 12 item 1459 (fair trial in Art. 6 of the 1950 Convention); and 13-P of 29 April 1998, SZ RF (1998) 1998)) No.19 19 item 2142 (fair trial in Art. 6 of the 1950 Convention).

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the RCC mentioned this Convention in some two hundred decisions and cited the judgments of the European Court of Human Rights (ECtHR), a judicial body in charge of interpreting this Convention, in sixty decisions. In 2005 alone, the Constitutional Court cited ECtHR judgments and decisions in fifteen cases. This growing reliance of the RCC on ECtHR jurisprudence, which involved other countries, shows that Russian justices took the ideas coming from the European Court seriously.12 The ECtHR jurisprudence also helps Russian judges to find the way out of the conflict between countervailing constitutional principles. Two examples of judicial decision-making, in the areas of property takings and electoral freedoms, illustrate the usefulness of the Strasbourg Court. Consider how the RCC dealt with the issue of the compensation for property takings by the state in its May 2000 Bankruptcy Protection decision.13 Article 35(3) of the Russian Constitution unequivocally states that the state authorities can expropriate property “for state needs” only via a judicial decision and only “on the condition of prior and equivalent compensation”. Thus, the constitutional text requires the state to compensate property owners in full. However, the RCC—citing several ECtHR judgments—lowered this threshold for the state.14 The Court ruled that neither the Constitution nor the 1950 European Convention of Human Rights envision full compensation. In the Court’s view, the amount of compensation must be fair, reasonable and commensurate with the public interests to achieve more social justice. Thus, the unwritten principle of fairness inspired by the jurisprudence of the ECtHR overrode the explicit constitutional clause of full compensation for property taking by the state. On the one hand, making this clause into a “dead” letter of the Russian Constitution eases the financial burden of the government. On the other hand, upholding “fair” instead of “equivalent” compensation still requires the Russian government to compensate property owners, who, prior to this RCC judgment, were never compensated during the bankruptcy procedure. Similarly, the ECtHR judgment in the Bowman v. UK case,15 was instrumental in getting Russian justices to strike down in November 12

See, e.g., Oleg Tiunov, “O roli konventsii o zashchite prav i osnovnykh svobod i reshenii Evropeiskogo suda po pravam cheloveka v praktike Konstitutsionnogo Suda Rossiiskoi Federatsii”,, in Rossiia i Sovet Evropy, op.cit. note 9, 75-88.

13

RCC decision 8-P of 16 May 2000, SZ RF (2000) 2000)) No.21 21 item 2258 (Bankruptcy Protection).

14

ECtHR judgments: Sporrong and Lonnroth v. Sweden, 23 September 1982; James and Others v. United Kingdom, 21 February 1986; and Lithgow and Others v. United Kingdom, 8 July 1986.

15

Bowman v. UK (1998), 26 European Human Rights Reports 1.

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2005 the legislative ban on electioneering “against all” candidates prior to elections.16 The RCC ruled, in a 5-4 vote, that the federal legislature had no right to introduce laws that lead to the deprivation of the right to campaign against all candidates if there was a box marked “against all” on the ballot paper.17 Both the majority and the minority opinions referred to the ECtHR Bowman judgment but they fiercely disagreed on the meaning of this Strasbourg Court judgment. The majority ruled that the constitutional freedoms of speech and information protected the right of citizens to campaign against all candidates prior to elections. In fact, the majority opinion followed the earlier RCC judgment, in which the Court upheld the constitutionality of having the “against all” option on the ballot box.18 According to the logic of the majority opinion, if Russians can vote “against all,” then they can surely campaign “against all” candidates. The minority rejected such logic. Dissenters stressed that such approach overrode the earlier RCC decision in which the Court had held that freedom of speech, namely the freedom to inform others about electoral candidates, was constitutionally protected, while the right to electioneer was a statutory right, subject to numerous legislative restrictions, such as limits on party financing, TV coverage of the candidates, and so on.19 As one Russian justice put it, the Bowman judgment was “the last straw” in helping to garner the majority on the bench in the context of the serious political pressure on the Court to uphold the ban that was introduced before the 2003 State Duma elections.20 In sum, as Justice Ebzeev told his colleagues from abroad, ignoring the jurisprudence of the Strasbourg Court is not acceptable when it comes to the protection of basic rights and societal values which make these rights work.21 Indeed, the Russian justices examine ECtHR judgments in every constitutional rights litigation; nonetheless, the Court does not always include references to them in the text of the decision, which is always 16

“Against all” is a compulsory option in federal elections but is optional in regional and city elections. Political opposition favors keeping this option on the ballot because elections are ruled invalid if “against all” wins more votes than any of the candidates.

17

RCC decision 10-P of 14 November 2005, SZ RF (2005) 2005)) No.47 47 item 4968 (Bondar, Krasavchikova, and Mavrin, dissenting) (Electioneering “Against All” Candidates).

18

RCC decision 17-P of 29 November 2004, SZ RF (2004) 2004)) No.49 49 item 4948 (Bondar and Kononov, dissenting) (“Against All” Option on the Ballot).

19

RCC decision 15-P of 30 October 2003, SZ RF (2003) 2003)) No.44 44 item 4358 (Gadzhiev, Iaroslavtsev, and Kononov, dissenting) (Freedom of Speech during Elections).

20

Interview with the author, Moscow, 9 December 2005.

21

Boris Ebzeev, “Zashchita prav cheloveka v Konstitutsionnom Sude Rossiiskoi Federatsii”, Konstitutsionnoe pravosudie (2002) No.4, 95-96.

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a result of bargaining among justices. What is more interesting is that the RCC judges routinely study the jurisprudence of high courts from abroad. For example, Justice Gadzhiev, in his concurring opinion in the Electioneering ‘Against All’ case discussed above, referred to the decisions of the US Supreme Court and the seventh Circuit Court of Appeals.22 Justice Kononov, who failed to convince the majority of his colleagues of the unconstitutionality of criminal punishment for “hit-and-run” traffic accidents, referred to the decisions of Croatian, German, Korean and Spanish Constitutional Courts, the French Constitutional Council and the Supreme Court of Canada.23 In short, the RCC is increasingly active in bringing Russia into what Anne-Marie Slaughter calls a “global community of human rights law”.24 The Court’s collegial decision-making contributes to the critical assessment of this global exchange of ideas among high courts. Similar to the Italian and Spanish Constitutional Courts, the RCC has played an important role in incorporating European human rights law into Russia’s domestic legal system, and in warning political branches of potential controversies which could find their way to the Strasbourg Court. The following two sections discuss how the Russian Constitutional Court dealt with the fundamental issues of equality and fairness.

Constitutional Equality: Formal and Real As the RCC repeatedly argued, public policies implicating basic rights have to respect the constitutional principles of formal and substantive equality. In the Rural Teachers’ Dwellings case, the Court annulled a federal ban on privatization of teachers’ apartments in villages and boldly declared that the constitutional principle of equality protects both constitutional and statutory rights.25 Furthermore, the choice of its justices to champion the absolute nature of due process rights (see the chapter by Stanislaw Pomorski in this volume) has resulted in the frequent use of the principle of equality “before the law and the court”, which, by the end of 2003, had been invoked in more than one hundred sixty judgments and about thirty dissenting opinions. The Court has been suspicious of the vague provisions of federal statutes that allowed government authorities to discriminate 22

Majors v. Abell 361 F3d 349 (7th 7th th Cir. ir. 2004); McConnell v. Federal Election Commission 124 SCt 619 (2003).

23

RCC decision 6-P of 25 April 2001, SZ RF (2001) 2001)) No.23 23 item 2408 (“Hit-and-run” Traffic Accidents).

24

Slaughter, op.cit. note 1, chapter 2.

25

RCC decision 13-P of 24 October 2000, SZ RF (2000) 2000)) No.49 49 item 4861 (Rural Teachers’ Dwellings).

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against certain groups, or to deprive them of certain basic rights. In the Court’s view, constitutional equality requires the legislature to make laws certain, clear and unambiguous in order for them to be applied in a uniform and consistent manner. Vague and ambiguous legal rules open the door for discretion by the executive authority, and, inevitably, result in arbitrariness and violations of equality and the supremacy of law.26 For example, the Court struck down or offered its own interpretation of federal statutes that discriminated against suspects, accused, witnesses, victims, plaintiffs, defendants and all other parties involved in the judicial procedure. Suspending pension payments to convicts, revoking their “forced migrant” status, and evicting them from their apartments also violated constitutional equality, according to the RCC.27 In addition to this, the Court also chose to champion formal equality, or “equality of opportunity”, in religious freedoms and electoral rights. For example, in a series of decisions, the RCC interpreted the highly restrictive 1997 Act “On the Freedom of Conscience and Religious Associations” in such a way that this law could not treat differently and could not impose new requirements on religious groups which were legally functioning before its entry into force.28 The Russian Orthodox Church criticized the RCC for this approach even though the Court upheld various measures to prohibit the proliferation of sects “which practice illegal and criminal activities” and use “psychological pressure or threats of violence”.29 Equal voting rights, in the Court’s view, require a formal procedural equality during free and fair elections even if there is only a single name on the ballot.30 Equal electoral rights do not mean equal outcomes be26

RCC decision 11-P of 15 July 1999, SZ RF (1999) 1999)) No.30 30 item 3988 (Tax Penalties).

27

RCC decisions: 8-P of 23 June 1995, SZ RF (1995) 1995)) No.27 27 item 2622 (Danilov, dissenting) (Prisoner Housing); 11-P of 16 October 1995, SZ RF (1995) 1995)) No.43 43 item 4110 (Prisoner Pensions); and 15-P of 21 November 2002, SZ RF (2002) 2002) No.48 48 item tem 4829 (“Forced Migrant” Status).

28

RCC decisions: 16-P of 23 November 1999, SZ RF (1999) 1999)) No.51 51 item 6363 (Jehovah’s Witness); 46-O of 13 April 2000,, SZ RF (2000) 2000)) No.19 19 item 2101 (Jesuit Order); and 7-O of 7 February 2002, SZ RF (2002) 2002) No.9 9 item tem 963 (Salvation Army).

29

For further analysis of these issues, see Marat Shterin, “Legislating on Religion in the Face of Uncertainty”,, in Denis J. Galligan and Marina Kurkchiyan (eds.), Law and Informal Practices: The Post-Communist Experience (Oxford Oxford University Press, New York, 2003), ),, 113-134. 134. 34.

30

See, e.g., RCC decisions: 4-P of 23 March 2000, SZ RF (2000) 2000)) No.13 13 item 1429 (Orenburg Electoral Districts); 7-P of 25 April 2000, SZ RF (2000) 2000)) No.19 19 item tem 2102 (Changes to the Party Lists in the Duma Elections); 1-P of 15 January 2002, SZ RF (2002) 2002)) No.6 6 item 626 (Bondar, dissenting) (Annulment of Election Results); 2-P of 22 January 2002, SZ RF (2002) 2002)) No.6 6 item 627 (Tatarstan Electoral Districts); and 10-P of 11 June 2002, SZ RF (2002) 2002)) No.25 25 item 2515 (One Name on the Electoral Ballot).

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cause elections give the opportunity to voters to define their preferences and to vote for their preferred candidates; thus, elections determine the winners and the losers.31 Yet, at the same time, the Court recognized that the equality of voting rights has its limits. In 2000, the RCC hesitated to intervene in Dagestan’s gerrymandering scheme with its fragile polyethnic peace.32 The Court also required the federal legislature to balance equal voting rights with federalist principles in order to ensure representation of the less-populated regions in the State Duma.33 Moreover, the RCC made inroads to entrench real or substantive equality for disadvantaged groups, or “equality of the outcome”. As Justice Gadzhiev pointed out, formal equality in economic rights is not sufficient to secure “equal opportunities” and may result in grave inequality.34 For example, in the 1999 Bank Accounts case, the Court ruled that banks could not arbitrarily lower interest rates on term deposits. According to the Court, the 1993 Constitution requires the state to ensure both formal and real equality among the contracting parties, so that a weaker party (bank customer) receives certain advantages over the stronger party (bank). These advantages, e.g., the right to close a bank account at any time, are necessary to balance the economic freedom of financial institutions with that of their clients.35 The Court further ruled that the contractual freedom of creditors to be protected in bankruptcy proceedings must be analogous to the freedom of minority shareholders in corporations.36 Similarly, the Court later ruled that medical institutions could not arbitrarily cancel contracts to perform health-related services. Here, the Court found that the Article 41 right to health protection trumped the economic freedom of clinics in order to ensure stronger protection of patients’ rights.37 The RCC also expanded the freedom of contract to labor relations by invali31

RCC decision 26-P of 17 November 1998, SZ RF (1998) 1998)) No.49 49 item 5969 (Mixed Electoral System).

32

Robert Ware and Enver Kisriev, “Russian Recentralization Arrives in the Republic of Dagestan: Implications for Institutional Integrity and Political Stability”,, 10(1) East European Constitutional Review (2001), 68-75.

33

RCC decision 26-P of 17 November 1998, SZ RF (1998) 1998)) No.49 49 item 5969.

34

Gadzhiev, op.cit. note 3, 125.

35

RCC decisions: 4-P of 23 February 1999, 999, VKS RF (1999) 1999)) No.3, 3,, 49 (Bank Accounts); and 10-P of 3 July 2001, VKS RF (2001) No.6, 6,, 15 (Ebzeev, dissenting) (Bank Bankruptcy Protection).

36

RCC decisions: 9-P of 6 June 2000, VKS RF (2000) 2000)) No.4, 4,, 46 (Long-Term Contracts during Bankruptcy); and 5-P of 10 April 2003, SZ RF (2003) 2003)) No.17 17 item 1656 (Dissenting Shareholders’ Rights).

37

RCC decision 115-O of 6 June 2002, VKS RF (2003) 2003)) No.1, 1,, 61-67 (Private Health Services).

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dating Socialist-era protections of job security and expanding the rights of employers in the private sector while recognizing the constitutionality of keeping certain advantages for vulnerable employees, such as parents with disabled children.38 Recognizing the disadvantages of the “little” people in the uncharted waters of corporate governance, the Court upheld the federal law “On Joint Stock Ventures”, which granted extra protection to minor shareholders in large public corporations.39 The contested provision, Article 80 of the law, required the buyer of 30% of the shares of a corporation with over 1,000 shareholders to notify all of them about the purchase. Two petitioners had alleged that this rule violated the equality rights of stockholders of smaller corporations and asked the RCC to annul this rule. In essence, they wanted the RCC to extend this provision to small corporations. The Court dismissed their complaint by ruling that equality meant equal rights under equal conditions. In the Court’s view, a federal statute could require the disclosure of large transfers of shares in large corporations to protect the rights of minor shareholders and to prevent the monopolization of stock. Minor shareholders in large corporations have difficulty making alliances among themselves, and, thus, are vulnerable to being overridden by major shareholders. Moreover, the contested statute did not violate the equality principle because it allowed small corporations to include a similar mechanism of disclosure in their governance structure.40 In the area of social rights, the RCC consistently upheld substantive equality of disadvantaged (handicapped) persons. At the request of fifteen regional associations of disabled persons, the Court struck down the federal “social tax” statute, which granted exemptions from social tax payments to nationwide associations of disabled persons, but not local associations. In the same decision, the RCC annulled the provision, which granted exemptions from these taxes only to the self-employed 38

RCC decisions: 33-O of 8 February 2001, VKS RF (2001) 2001)) No.3, 3,, 70 (Khokhriakova and Zhilin, dissenting) (Dismissal of Employees in Joint-Stock Businesses); and 3-P of 24 January 2002, VKS RF (2002) 2002)) No.3, 3,, 24-31 (Dismissal of the Labor Union Leaders and Parents with Disabled Children).

39

Protection of stockholders, particularly of minority stockholders is also of great importance in encouraging investment, since stock is worthless if stockholders’ rights are not protected. For an analysis of the Russian “judge-made” law in this area, see William Burnham, Peter B. Maggs, and Gennady M. Danilenko, Law and Legal System of the Russian Federation (Juris Publishing,, Huntington, NY,, 3rd ed. 2004), ),, 307-314. 314. 14.

40

RCC decision 255-O of 6 December er 2001, VKS RF (2002) 2002)) No.2, 2,, 80-83 (Dissenting Shareholders’ Rights). For the “historical institutionalist” analysis of Russia’s experiments with corporate governance, see David M. Woodruff, “Rules for Followers: Institutional Theory and the New Politics of Economic Backwardness in Russia”,, 28 Politics & Society (2000), 437-482. 482. 82.

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handicapped recipients of a disability pension, as discriminating against other categories of disabled self-employed. Moreover, the Court noted that “special measures aimed at achieving real equality of opportunities for disabled persons could not be considered discriminatory”.41 The RCC also repeatedly struck down federal statutes which limited the amount of disability payments to both the victims and clean-up workers of nuclear plant accidents, including the 1986 Chernobyl disaster, as violating constitutional equality. According to the Court, the state had to use maximum resources to compensate affected individuals for the harmful effects of radiation leaks, to adjust disability payments to the rate of inflation and to compensate, equally, all those who suffered from radiation in the affected area. In effect, these decisions recognized that the Article 42 right to a “favorable environment”, which the Court ruled was both an individual and a collective right of current and future generations, imposed on the state obligations to “take adequate measures to protect the environment and the people from nuclear accidents and catastrophes”, and to establish a “system of benefits and compensation” that would go beyond the limits of ordinary compensation of harm caused by environmental law violations.42 What would these “adequate measures” entail, and how much would they cost? The RCC attempted to answer these complicated public policy questions by elaborating the constitutional requirements of fairness and by urging the political branches of government to respect them.

Elaborating Fairness Reviewing cases on constitutional rights, the RCC rarely relies on a single principle and usually uses a combination of principles in its judgments. Unlike “equality,” which is enshrined in Article 19 of the Russian Constitution, the principle of “fairness” belongs to the constitutional preamble: “We, the multi-ethnic people of the Russian Federation, […] honoring the memory of our ancestors, who bequeathed to us their love and respect for our homeland and their faith in goodness and fairness, […] adopt this Constitution of the Russian Federation.” This rooting in the constitutional text may partly explain why fairness is, after equality, the second most-often-cited principle in RCC decisions. Six out of ninety judgments 41

RCC decision 18-P of 23 December 1999, SZ RF (2000) 2000)) No.33 item 353 (Pension Fund Contributions).

42

RCC decisions: 7-P of 11 March 1996, SZ RF (1996) 1996)) No.14 14 item 1550 (Benefits for the Victims of Radioactive Spills); 18-P of 1 December 1997, 997, SZ RF (1997) No.50 50 item 5711 (Morshchakova and Vitruk, dissenting) (Chernobyl Compensation); and 11-P of 19 June 2002, VKS RF (2002) 2002)) No.5, 5,, 69 (Vitruk, dissenting) (Chernobyl Compensation).

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which cited “fairness” directly referred to the preamble of the 1993 Constitution,43 and one decision referred to Articles 1 (rule-of-law state) and 7 (Sozialstaat).44 Thus, already by the end of its first year, the RCC had chosen to make the constitutional preamble binding on the government and to strike down laws which violated fundamental principles found in the preamble, something that took the constitutional review tribunals of France, India and Israel more than a decade.45 Stemming from the RCC’s focus on due process rights, twenty-four of these judgments demanded “fair” administration of justice from the Russian courts as a fundamental tenet of the 1993 Constitution. Just as its predecessor, the Constitutional Court continued to criticize the regular courts for their formalism in adjudication, and encouraged them to apply statutes in light of new constitutional principles.46 Therefore, the RCC consistently voided federal statutes, which restricted judicial discretion, in hopes that abstract constitutional principles would restrict judicial arbitrariness.47 The fact that a dozen dissenting opinions referred to fairness shows that justices have not come to a conclusion about what this notion really means. Consider how the RCC elaborated constitutionally prescribed limits on the repressive powers of the state. In the 2003 Recidivism decision, the Court ruled that fairness in criminal law dictates the imposition of punishment according to the nature of the crime, the degree of harm caused by it and the extent of guilt of the perpetrator. Facing enormous pressure 43

RCC decisions: 4-P of 2 February 1996, SZ RF (1996) 1996)) No.77 item tem 701 (Correction of Judicial Errors in Criminal Cases); 4-P of 23 February 1999, VKS RF (1999) 1999)) No.3, 3,, 49 (Bank Accounts); 33-O of 8 February 2001, SZ RF (2001) 2001)) No.14 14 item tem 1429 (Dismissal of Employees in Joint-Stock Businesses); 11-P of 5 July 2001, SZ RF (2001) No.29 29 item 3059 (Amnesty); 3-P of 19 March 2003, VKS RF (2003) 2003)) No.3, 3,, 17-40 (Vitruk and Kononov, dissenting) (Amnesty); and 270-O of 10 July 2003, VKS RF (2003) 2003)) No.5, 5,, 91-93 (Petty Theft).

44

RCC decision 11-P of 9 June 2002, VKS RF (2001) 2001)) No.5, 5,, 69 (Chernobyl Compensation).

45

See Kim Lane Scheppele, “Declarations of Independence: Judicial Reactions to Political Pressures”,, in Stephen B. Burbank and Barry Friedman (eds.), Judicial Independence at the Crossroads (SAGE Publications, Thousands Oaks, CA,, 2002), 248-251 and references therein.

46

See, e.g., RCC decisions: 244-O of 14 December 2000, SZ RF (2001) 2001)) No.33 item em 272 (Fines for the Failure to Use Cash Registers); and 48-O of 20 February 2002, VKS RF (2002) 2002)) No.4, 67-70 (Property Restitution).

47

See, e.g., RCC decisions: 20-P of 2 July 2 1998, SZ RF (1998) 1998)) No.28 28 item 3393 (Judicial Review of Court Orders during Trial); 4-P of 12 March 2001, SZ RF (2001) No.12 item 1138 (Judicial Review of Bankruptcy Procedure); and 48-O of 20 February 2002, VKS RF (2002) 2002)) No.4, 4,, 67-70 (Property Restitution).

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from law-enforcement agencies and surging crime rates, the majority was unwilling to strike down the Criminal Code provisions, imposing heavier sentences on recidivists. In a 17-2 decision, the Court ruled that heavier punishment for repeated felonies did not violate either the Article 50 “ne bis in idem” ban on “trying twice for the same crime” or “fair” criminal justice, and pushed this “hot potato” back to the legislature. The majority opinion did emphasize that fairness required that first-time offenders would not be punished in a similar way as ex-convicts. Dissenters Kononov and Vitruk disagreed and argued that heavier sentences for recidivists violated both “ne bis in idem” and constitutional fairness, and higher moral principles. Vitruk blasted heavier sentences as an amoral legacy of Tsarist and Soviet regimes, while Kononov appealed to the Aristotelian purpose of fairness as a measure to soften punishment and the Kantian belief in moral sovereignty as the only way to repentance.48 Challenges in applying fairness to social rights and in elaborating social justice also abound in the RCC’s case law.49 Although many judges were outraged by the plight of ordinary Russians in what Chief Justice Baglai called the “raging sea of liberalism”, they refused to interpret the Article 7 provisions of “a decent life” and “free development of every individual” at the request of the State Duma. In July 1999, the Court ruled that this would involve justices in law-making. Thus, reviewing social protection bills pending in the Duma was beyond its powers. According to Justice Olga Khokhriakova, who authored most of the social rights judgments, the RCC has not tried to give an overarching definition of the Sozialstaat.50 At the same time, the RCC ordered other courts to be guided by the principle of “social justice” in determining the size of an obligatory share of an estate to balance Article 35 inheritance rights of all successors, and of compensation for taking “public purpose” property, such as daycare centers, boiler houses and so on, from bankrupt companies.51 Still, one could make several observations on how the RCC responded to 33,080 social rights complaints, received by the Court between 1995 and 2006. First, the RCC embraced a “socially-oriented” concept of individual freedoms, thus, rejecting the neo-liberal hegemony of negative 48

RCC decision 3-P of 19 March 2003, VKS RF (2003) 2003)) No.3, o.3,, 17-40 (Vitruk and Kononov, dissenting) (Amnesty).

49

See Nikolai Bondar, “Rossiiskaia Federatsiia”,, in Konstitutsionnoe pravosudie i sotsial’noe gosudarstvo: Sbornik dokladov (IPPP, Moscow,, 2003),, 160-187.

50

RCC decision 98-O of 1 July 1999 (unpublished) (Refusal to Interpret Art.7 of the 1993 Constitution). See Olga Khokhriakova, “Rossiiskaia Federatsiia”,, 42(1) (1) Konstitutsionnoe pravo: Vostochnoevropeiskoe obozrenie (2003), 90.

51

RCC decisions: 209-O of 9 December 1999, 999, VKS RF (2000) 2000)) No.2, 2,, 41 (Inheritance of Property); and 8-P of 16 May 2000, SZ RF (2000) 2000)) No.21 21 item tem 2258 (Bankruptcy Protection).

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rights and a minimalist state.52 The justices recognized that balancing classic negative rights with positive rights was the only way to maintain social peace in the course of the historically-unprecedented redistribution of property and skyrocketing socioeconomic inequality. Unlike the high courts in well-established democracies, the RCC interpreted social rights as a mechanism to enhance human dignity and to enable a free and fair interpersonal exchange.53 The constitutional catalogue of social rights (Arts.37-44) together with acquired positive rights impose a constitutional duty on the state, and, thus, these rights can be protected through judicial review.54 Therefore, the real issue before the Court is not whether these rights exist, they do. Instead, the Court sought to reform the social safety net: how to reduce Soviet-era paternalism in the social sphere on the one hand, and how to protect the disadvantaged on the other. Realizing that budgetary constraints determine the availability of social services, the justices focused on the welfare of the most vulnerable groups of the population, such as the disabled, orphans, pensioners and the unemployed, who clearly lacked “equal opportunity” and depended on the state for their survival. For example, in 1997, the RCC struck down the Employment Act, which provided no allowance to temporarily disabled unemployed persons beyond the first thirty days of their illness.55 In 2002, the RCC upheld the constitutionality of the Orphans Benefits Act, which limited higher education subsidies to orphans under twenty-three years of age, yet the judges hinted that universities could provide free education to such students regardless of their age, given the availability of funds.56 The Court has also tried to apply abstract notions of fairness, equality and proportionality to resolve a nationwide crisis of non-payment of wages and taxes.57 In December 1997, the RCC struck down Article 855 of the Civil Code, which gave priority to the payment of wages (and payments to pension, social security and employment funds, which by law have to be 52

For a theoretical justification of constitutionalizing social rights, see Cecile Fabre, Social Rights under the Constitution (Oxford Oxford University Press, Oxford, 2000). ).. For an analysis of judicial defense of social rights in Eastern Europe, see Kim Scheppele, “A Realpolitik Defense of Social Rights”,, 82 Texas Law Review (2004), 1921.

53

Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, Cambridge, ambridge, MA,, 2004). )..

54

Bondar, op.cit. note 49, 160-187.

55

RCC decision 20-P of 16 December 1997, VKS RF (1998) 1998)) No.1, 1,, 17 (Allowance to Temporarily Disabled Unemployed Persons).

56

RCC decision 258-O of 10 October 2002, VKS RF (2003) No.2, 13-16 (Higher Education Subsidies to Orphans).

57

See Padma Desai and Todd Idson, Work Without Wages: Russia’s Non-Payment Crisis (MIT Press, Cambridge, MA,, 2000). )..

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paid at the same time as wages) over payment of taxes. Here, the Court ruled that this priority was unfair and, thus, unconstitutional, because it favored non-state over budget-sector employees whose wages depended on the receipt of tax revenues, and it failed to balance constitutional obligations of paying wages and taxes.58 According to Justice Gadzhiev, this priority of wages over taxes opened a loophole for cash-strapped employers, who could keep high levels of wage arrears and delay payments to pension, social security and employment funds, resulting in both non-payment of wages and mandatory contributions to these funds.59 Generally, however, the RCC has often deferred to the political branches in the areas of social security, unemployment and housing reforms. The Court agreed with most aspects of these reforms and with the reduction of the scope of acquired social rights. At the same time, the RCC repeatedly argued that rollback of the welfare state should be carried out in conformity with constitutional principles.60 In a series of decisions, the RCC ruled that the principles of fairness and equality serve as a basis for the Article 39 right to social security and require legal certainty, predictability of the legislation and clarity of legal provisions so that affected individuals could reasonably expect to receive their pensions and other benefits.61 While approving the authority of the legislature to regulate the eligibility of recipients of social services and the size of their pension and other social benefits, the RCC insisted that legislative rollbacks could be applied retroactively only if the recipients were offered adequate compensation.62 To soften the impact of these rollbacks, the RCC encouraged reformers to allow for a transitional period of several years during which the recipients could adjust to the new regulations. 58

RCC decision 21-P of 23 December 1997, SZ RF (1997) No.51 51 item tem 5878 (Kononov, dissenting) (Payment of Taxes during Bankruptcy). For the politics of this litigation, see Sarah Ashwin and Simon Clarke, Russian Trade Unions and Industrial Relations in Transition (Palgrave Palgrave Macmillan, London, 2003), ),, 53-55.

59

Gadis Gadzhiev, “Kommentarii”,, in Boris Ebzeev (ed.), Kommentarii k postanovleniiam Konstitutsionnogo Suda Rossiiskoi Federatsii. Tom 2 (Iurist (Iurist”, Moscow,, 2000), ),, 322-329. 329. 29.

60

See, e.g., RCC decisions: 9-P of 23 April 2004, SZ RF (2004) No.19 19 item tem 1923 (Bondar, concurring) (Housing for Army Officers); 308-O of 30 September 2004, VKS RF (2005) No.22 (Prison Guards Salary Reform); and 502-O of 27 December 2005, SZ RF (2006) No.88 item tem 944 (Transportation Benefits for the War Veterans).

61

For a similar meaning of legal certainty in the context of European Union law, see Winfried Brugger, “European Integration and the Ideal of the Common Good”,, in Vicki C. Jackson and Mark Tushnet (eds.), Defining the Field of Comparative Constitutional Law (Praeger, Westport, CT,, 2002), ),, 95-97.

62

Belgian judicial review has come up with a similar requirement of “adequate compensation” in 1994. See Fabre, op.cit. note 52, 162-163. 163. 3.

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For example, in a recent judgment that upheld one of the key social policy reforms of President Putin—the 2001 Labor Pensions Act, the RCC allowed existing pensioners, themselves, to decide whether to switch to the new scheme of calculating pensions.63 Although the RCC maintained that offering this choice would enhance the trust of pensioners in the legitimacy of pension reform, Justice-Rapporteur Sergei Kazantsev admitted that this decision was the product of a serious compromise among his colleagues, some of whom felt that the contested Act that deleted advantages for hundreds of thousands of workers in the Northern regions, as well as university graduates and mothers of many children, undermined the trust of the public. According to him, justices had to struggle between their sincere concern for the plight of retired persons and “progressive” pension reform, the reversal of which would cost Russia twelve billion rubles (US $400 million) annually. Indeed, in the wake of this decision, 335 out of 450 State Duma members, the Sakha and Chukotka Legislative Assemblies, and forty-one outraged pensioners announced that they were preparing to appeal this “unfair” reduction of retirement benefits to the ECtHR in Strasbourg.64 To summarize, the Court’s vision of social justice is a complicated and multi-layered compromise between private and public interests, in which formal and real equality co-exists with fairness, and social rights require state action. In the Court’s view, by carrying out social policy reforms in a fair and non-discriminatory fashion, the state would benefit from increased public trust, and the citizens would have their entitlements protected. While the RCC cannot be accused of “killing welfare reform” as had transpired in Hungary, the Court can certainly be credited with persistent efforts to “constitutionalize” social justice, which are based on the notion that the 1993 Constitution protects individuals from both the state and other individuals.65

Constitutional Principles on the Ground Making the unwritten and abstract principles of equality and fairness work on the ground is no easy task, particularly when they reverse long-stand63

RCC decision 2-P of 29 January 2004, VKS RF (2004) 2004) No.2, 2,, 22-31 (Labor Pensions Reform).

64

Anna Zakatnova, “Pensii po-novomu”, Rossiiskaia gazeta, 30 January 2004, available at ; Irina Nevinnaia, “Ne v polzu pensionerov”,, Rossiiskaia gazeta, 4 February 2004, available at ; and Svetlana Borozdina, “Budut dengi—budet sotsialnoe gosudarstvo”,, GAZETA, 30 January 2004.

65

András Sajó, “How the Rule of Law Killed Hungarian Welfare Reform”,, 5(1) East European Constitutional Review (1996), 31-41.

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ing practices of other courts, require change in governmental policies and impose financial burden on the state. Consider what happened with the very first decision in which the RCC went outside the constitutional text to protect basic rights. As I discussed above, in the Illegal Dismissals case of January 1993, the RCC struck down the way that the regular courts applied Article 213 of the Labor Code that restricted compensation for illegal dismissal to one year regardless of the actual length of unemployment.66 Appealing to the principles of fairness and equality, the Court ruled that employers had to pay wages for the total period of unemployment arising from illegal dismissals. However, the Russian Supreme Court refused to obey and continued limiting the compensation for wrongful dismissals to one-year’s pay. Complainants again asked the RCC to protect their rights, and in June 1995, the latter stood by its previous decision and accused the Supreme Court of violating the Constitution and sabotaging the RCC decisions.67 This June 1995 ruling was the first of some six hundred rulings with “positive content”, in which the RCC confirmed the validity of its previous judgments and monitored compliance with them. The Supreme Court continued to resist, arguing that the RCC could not review the constitutionality of judicial decisions and could not issue orders to ordinary courts under the new 1993 Constitution. Finally, the political branches settled this clash between the high courts in favor of the Constitutional Court by amending the Labor Code in March 1997.68 Still, the RCC continued to order the regular courts to re-open wrongful dismissal cases and to award full compensation for the period of forced absence well into 2000.69 Indeed, one of the original complainants, engineer Sergei Mazanov, was still not awarded a full compensation by 2001 and proceeded to sue Russia in the ECtHR.70 This means that the regular courts defied this RCC decision for more than a decade! To be sure, such resistance of ordinary courts to follow the unwritten constitutional principles had to do both with keeping their own power to settle the labor disputes and with fiscal constraints faced by the employers and the Russian state. Indeed, the RCC encountered strong resistance on the part of federal and local bureaucracy every time the Court ordered to 66

RCC decision 1-P of 27 January 1993, VKS RF (1993) 1993)) No.2-3 2-3 (Illegal Dismissals).

67

RCC decision 29-O of 15 June 1995, VKS RF (1995) 1995)) No.2-3, 2-3,, 67 (Illegal Dismissals).

68

Federal’nyi Zakon,, “O vnesenii izmenenii i dopolnenii v KZoT RF” ot 17.03.1997, SZ RF (1997) 1997)) No.12 12 item 1382. Rozaliia Ivanova, “Kommentarii”,, in Boris Ebzeev (ed.), Kommentarii k postanovleniiam Konstitutsionnogo Suda RF. Tom 2 (Iurist”, Moscow,, 2000), 611-613. 613. 13.

69

RCC decision 198-O of 5 October 2000, VKS RF (2001) 2001)) No.1, 1,, 60 (Illegal Dismissals).

70

Gennadii Iakimchev, “Za pravdoi—vo Frantsiiu”,, Simbirskii kur’er, 18 February 2003.

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enlarge compensation to aggrieved individuals. As I discussed above, the RCC justices used fairness and equality to protect the positive rights of the most vulnerable groups in the population, such as victims of Stalin’s purges, pensioners, disabled persons, and so on. Protecting their rights on the ground usually requires more public spending, and the lack of money is the usual excuse of governments around the world when they do not want to carry out a certain policy (not necessarily Court-mandated). Thus, according to Justice Nikolai Vitruk, it took many years to implement the RCC decisions which called for the payment of compensation to injured parties—e.g., illegally discharged employees, children of parents who were purged under Stalin’s regime, workers who cleaned up the 1986 Chernobyl radiation leak, and individuals suffering from illegal judicial decisions.71 For instance, several cases involving the discriminatory compensation to workers who cleaned up the 1986 Chernobyl radiation leak clearly demonstrate that both federal and local authorities tried their best not to pay any compensation in a clear sign of consistent disregard for fairness and equality. Here, the RCC gradually succeeded in persuading ordinary courts to respect both principles and award full compensation to the clean-up workers who became disabled as a result of the work in Chernobyl. To be sure, Russian courts lacked clear guidelines in determining the amount of compensation, which would satisfy the abstract requirements of fairness and non-discrimination as compared to other remedies for health damage. According to one source, between 1994 and 2004, Russian courts awarded full compensation in some 4,000 “Chernobyl compensation” cases and refused to do so in some 21,000 cases. In early 2005, the Russian Supreme Court with the support of the Procurator General decided to authorize local courts to award full compensation in such claims.72 However, the Russian Cabinet quickly intervened to prevent the Russian Supreme Court from issuing such guidelines to lower courts. The executive claimed that allowing full compensation for this group of the disabled (47,000 people): 1) 2)

would open the door for other disadvantaged groups to sue the state and, thus, overload the judiciary; would be impossible to implement due to lack of financial means: by early 2005, Russia owed some 1.9 billion rubles to Chernobyl

71

Nikolai Vitruk, “Ispolneniie reshenii Konstitutsionnogo Suda Rossiiskoi Federatsii”,, 40(3) (3) Konstitutsionnoe pravo: Vostochnoevropeiskoe obozrenie (2002), 53-63.

72

Iurii Kolesov, “Atomnye dolgi po sudam”,, Vremia novostei, 19 January 2005, available at ; Pavel Aptekar and Aleksandr Bystrykh, “Chernobyltsy dobivaiutsia indeksatsii cherez sud”,, GAZETA , 18 January 2005.

72

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workers in court-awarded compensation yet the 2005 federal budget allocated only 300 million to serve this debt; and would result in the avalanche of lawsuits against Russia in the ECtHR: the claimants could sue Russia for both the slow adjudication of their claims in overloaded courts and the non-implementation of judicial decisions on full compensation.73

In essence, the federal executive threatened that if the judiciary upholds principles of fairness and equality inspired by the ECtHR judgments in “Chernobyl compensation” cases, this respect for constitutional principles by the Russian courts would invite more litigation in Strasbourg! This move by the executive effectively delayed the Supreme Court’s approval of full compensation. Moreover, the fiscal considerations and informal bureaucratic politics appear to prevail over the unwritten constitutional principles. In March 2005, the Russian Supreme Court refused to hear the cases from Chernobyl clean-up workers who based their claims on these ECtHR judgments.74 Meanwhile, since May 2002, Russia has been losing its “Chernobyl compensation” cases in the ECtHR which repeatedly fined Russia for the failure to pay out court-awarded compensation to the clean-up workers.75 And, by early 2005, several hundred similar cases were on the docket of the ECtHR.76 It is clear that this sabotage to enforce the unwritten constitutional principles will amount to more cases against Russia in the Strasbourg court. A similar clash between unwritten constitutional principles and informal bureaucratic norms influenced the fate of the 1995 RCC decision in which the Court ordered the Russian Parliament to amend the 1991 statute on compensating children whose parents vanished during the Stalin’s purges.77 In effect, the Court wanted the legislature to compensate these 73

Letter of the Russian Minister of Healthcare and Social Development Mikhail Zurabov to the Chairman of the Russian Supreme Court Viacheslav Lebedev, (7 February 2005) No.44-MZ (unpublished document).

74

Iaroslav Zorin, “Chernobyltsev poslali v Evropeiskii sud”,, GAZETA, 15 March 2005.

75

Burdov v. Russia, No.59498/00, o.59498/00, ECtHR 2002-III,, 7 May 2002; Yakovlev v. Russia, No.72701/01, 72701/01, ECtHR 2005-I,, 15 March 2005; and Gorokhov and Rusiaev v. Russia, No.38305/02, 38305/02, ECtHR 2005-I,, 17 March 2005.

76

See, e.g., Sergei Zhdakaev, “Chernobyltsy doshli do Strasburga”,, Izvestiia, 22 November 2002, available at “Uchastniki likvidatsii posledstvii na Chernobylskoi AES iz Zheleznogorska (Krasnoiarskii krai) obratilis v Strasburgskii sud”,, IA REGNUM, 15 August 2003, available at . >..

77

RCC decision 6-P of 23 May 1995, SZ RF (1995) 1995)) No.22 22 item 2168 (Status of Children of Victims of Stalin’s Purges).

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orphans for their damages and suffering in full, and the then Chief Justice Tumanov wrote a detailed letter to the State Duma on how to achieve this fair compensation. However, the Duma placed drafting this bill on the backburner, and President El’tsin was unwilling and unable to intervene. Only in March 2000, when President Putin came to power and almost five years after the RCC decision on the matter, did the liberal Duma members introduce a bill that met the guidelines of the Court. The Federal Cabinet, however, criticized the bill on the grounds that expanding compensation of orphans-victims of Stalin’s purges would create social tension (!) and require significant public spending.78 The RCC immediately stepped in and in April 2000, reiterated that such orphans should be treated and compensated in full, the same way as other victims of Stalin’s purges.79 The State Duma, however, agreed with the Federal Cabinet and in October 2000 buried the bill on compensating the orphans. Similarly, the law-enforcement bodies, which are responsible on the ground for issuing certificates to the victims of the purges refused to enforce both RCC decisions on the orphans. Officials claimed that they could recognize orphans as victims only after the 1991 Law “On the Rehabilitation of Victims of Stalin’s Purges” was amended accordingly.80 Finally, the regular courts consistently refused to compensate victims of Stalin’s terror in full, contrary to the RCC decisions.81 Needless to say, hundreds of victims of the purges flooded the Court, complaining at such open sabotage of courts and bureaucrats, and the RCC justices repeatedly criticized this disobedience. Only in the fall of 2001, did the Procuracy, the police and the Labor Ministry give up their resistance and started to recognize children as victims, according to the RCC guidelines.82 The fact 78

Khiil Sheinin, “Problemy ispolneniia reshenii Konstitutsionnogo Suda Rossiiskoi Federatsii”,, in Mikhail Mitiukov, Sergei Kabyshev, Vera Bobrova and Sergei Andreev (eds.), Problemy ispolneniia federal’nymi organami gosudarstvennoi vlasti i organami gosudarstvennoi vlasti sub”ektov Rossiiskoi Federatsii reshenii Konstitutsionnogo Suda Rossiiskoi Federatsii i konstitutsionnykh (ustavnykh) sudov sub”ektov Rossiiskoi Federatsii (Formula Formula prava, Moscow, 2001), ),, 110-111. 1..

79

RCC decision 103-O of 18 April 2000, SZ RF (2000) 2000)) No.33 33 item 3429 (Status of Children of Victims of Stalin’s Purges).

80

Sheinin, op.cit. note 78, 111-112; 11-112; 12; 2; Vladimir Davydov, “Uchastie organov prokuratury v realizatsii reshenii Konstitutsionnogo Suda Rossiiskoi Federatsii”,, in Mitiukov et al., op.cit. note 78, 65.

81

See, e.g., RCC decision 19-O of 5 February 1998, VKS RF (1998) 1998)) No.3, 3,, 24 (Inheritance of Property of Victims of Stalin’s Purges).

82

See Letter of the Russian Procuracy General,, “O poriadke ispolneniia Opredeleniia Konstitutsionnogo Suda Rossiiskoi Federatsii ot 18.04.2000 N 103-O” (33 August 2000), 000), No.13r 13rr (unpublished document); Order of the Russian Minister of Internal Affairs,, “O vnesenii izmenenii i dopolnenii v instruktsiiu, utv. Prikazom MVD Rossii

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that these federal ministries, which are usually fighting among themselves, reversed their resistance simultaneously, secretly and in a concerted fashion indicates that they did so according to orders from the Kremlin, but not out of respect for the Court and the rule of law. In sum, fearing no punishment for non-compliance, politicians, bureaucrats and regular courts applied secret government instructions instead of the RCC judgments. Stalin’s victims began to feel the impact of the landmark 1995 RCC decision only after President Putin chose to intervene in the fall of 2001. This (still unfinished) saga of dealing with the past clearly shows that the RCC decisions lacked binding force on the ground, and they acquired this force only after powerful political actors chose to make judicial decisions binding. Ignoring the 2001 “implementation” amendments to the 1994 RCC Act that gave six months to amend the bill,83 the Russian government amended the 1991 law “On the Rehabilitation of Victims of Stalin’s Purges” to include orphans only in early 2003.84 Meanwhile, the Federal Cabinet routinely failed to disburse funds to regional governments to provide benefits for victims of Stalin’s terror, thus, rendering meaningless the efforts of the RCC to compensate the victims.85 Moreover, as a result of the welfare reform of 2004, the so-called “monetization” of social benefits, all victims of Stalin’s purges receive a meager 300 rubles (US $10) per month from regional governments and can no longer claim compensation for moral harm caused by the purges.86 Not surprisingly, victims of Stalin’s terror came back to the Constitutional Court and asked to overturn the abolition of their benefits. In July 2005, the Court agreed with petitioners and ordered the Federal Cabinet to reinstate social benefits to the victims in a “full and speedy” fashion.87 To be sure, the executive branch will find ways to disobey this ot 22 iunia 2000 g. N 675” (25 October 2001), No.938, 938, Rossiiskaia gazeta, 28 November 2001; and Directive of the Russian Ministry of Labor,, “O realizatsii Opredeleniia Konstitutsionnogo Suda Rossiiskoi Federatsii ot 18.04.2000 N 103-O” (18 18 September 2001), No.2294-14 2294-14 (unpublished document). 83

Alexei Trochev, “Implementing Constitutional Court Decisions”,, 11 (1-2) East European AlexeiTrochev, Constitutional Review (2002), 95-103.

84

Although President Putin signed the amendments in February 2003, the bill entered into force on 1 January 2003. See Federal’nyi Zakon 26-FZ,, “O vnesenii izmenenii i dopolnenii v Zakon Rossiiskoi Federatsii ‘O reabilitatsii zhertv politicheskikh repressii’”,, 9 February 2003, SZ RF (2003) 2003)) No.6 6 item tem 509.

85

See, e.g., RCC decision 282-O of 10 July 2003, VKS RF (2003) 2003)) No.6, 6,, 76-78 (Timely Disbursement of Funds Earmarked for the Victims of Stalin’s Purges).

86

Nataliia Biianova, “450 rublei na odnogo repressirovannogo”,, GAZETA, 28 March 2005.

87

RCC decision 246-O of 5 July 2005, SZ RF (2005) 2005)) No.33 33 item 3493 (Transport Benefits for Victims of Stalin’s Purges).

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and other RCC decisions in the area of welfare reforms, unless there is a strong political pressure from the Chief Executive.

Conclusion Why has the impact of the Russian constitutional principles on the lives of ordinary citizens who courageously kept suing the state, been limited? This chapter attempted to show that making constitutional promises work in practice is an inherently political matter. Defining the unwritten constitutional principles, the Russian Constitutional Court led the battles against the rest of the Russian judiciary, similar to the early years of Italian, Korean and Spanish Constitutional Courts. Instilling these principles among the federal and local bureaucracy, the RCC faced strong resistance in overcoming secret government instructions and informal bureaucratic rules. The authoritativeness of the judge-made constitutional spirit or the readiness of government officials and members of the public to comply, stems from a mixture of ingrained attitudes toward judicial power and the Constitution, and short-term calculations.88 These attitudes and calculations do not exist in a vacuum. They shape and are shaped by the structure of informal sanctions and incentives in the political branches of government and the rest of the judiciary. Just like the infrastructure of public governance, this informal structure is not court-friendly by default.89 Instead, it may promote obedience to bureaucratic bosses, who frequently change their preferences, as discussed above. Thus, street-level bureaucrats may obey the Constitutional Court because their superiors tell them to do so (coercive power of department heads), but not because of voluntary acceptance of judicial authority (legitimate power of the court).90 Such selective implementation of Constitutional Court decisions may damage the reputation of the Court in the eyes of the citizenry, and create a gap 88

Peter H. Solomon, Jr., “Judicial Power in Russia: Through the Prism of Administrative Justice”,, 38(3) Law and Society Review (2004), 553.

89

For a similar argument to treat courts as part of a network of a modern administrative state, see Edward L. Rubin, “Independence as a Governance Mechanism”,, in Stephen B. Burbank and Barry Friedman (eds.), Judicial Independence at the Crossroads: An Interdisciplinary Approach (SAGE Publications, Thousand Oaks, CA,, 2002), ),, 56100.

90

For the distinction between “coercive” power, contingent on external negative outcomes, and “legitimate” power, internalized by the voluntary acceptance of the legitimate authority, see John R. P. French, Jr. and Bertram H. Raven, “The Bases of Social Power”,, in Dorwin Cartwright (ed.), Studies in Social Power (Research Center for Group Dynamics, Institute for Social Research, University of Michigan, Ann Arbor, MI,, 1959), ),, 150 and 156-161, 161, 61, as quoted in Tom Tyler and Gregory Mitchell, “Legitimacy and Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights”,, 43 Duke Law Journal (1994), 721 and note 54.

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between negative public perceptions of the Court and an increased possibility of successful litigation against the state. Here, Russia provides an important addition to Epp’s theory of the rights revolution: in addition to bills of rights, independent judges and human rights activists, an effective state apparatus is vital to making the rights revolutions real.91 While President Putin’s reforms may appear to streamline the Russian governance, his “dictatorship of law” agenda, which was borrowed from the Russian Constitutional Court, is not that different from El’tsin’s regime with its disorderly governance. Under both El’tsin and Putin, federal and local governments continued to resist unfavorable Constitutional Court decisions, and disrespect constitutional spirit. Taking into account the severe economic crisis in Russia of the 1990s, one could understand El’tsin’s ignorance of constitutional principles. On the contrary, Russia’s remarkable economic growth under Putin cannot excuse his regime for ignoring these principles when it comes to the social benefits of the disadvantaged groups. To Putin’s credit, the Russian government promptly enforced all judgments of the ECtHR and compensated the aggrieved individuals. This total obedience to the Strasbourg and inconsistent enforcement of the judgments of domestic courts may help to entrench the Russian constitutional spirit in the short-term. However, to make the Russian constitutional spirit stick in the longterm, the RCC Justices have to maintain the link between the Olympus of unwritten constitutional principles and the everyday needs of broad groups of Russian society. As Jennifer Widner reminds us, to secure and to maintain an independent judiciary, it is vital for the judges “to find more permanent allies” at home and abroad.92 However, the desire of judges to be popular may damage their independence. In other words, the RCC must turn its abstract constitutional principles into concrete and widely known tools for social change so that ordinary Russians, who hold abstract commitments to the rule of law, can learn the benefits of using the spirit of the Constitution to hold ever-myopic Russian elites accountable. This is an arduous task, which should begin with informing the public about the essence of Constitutional Court decisions in plain language. This is an important educational responsibility of judges in those societies which have very thin constitutional traditions.93 The “global diffusion of judicial 91

Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (University University of Chicago Press, Chicago, 1998). )..

92

Jennifer Widner, Building the Rule of Law (W. W. W. Norton & Company, New York, 2001), ),, 394. 94.

93

Wojciech Sadurski, “Review of The Struggle for Constitutional Justice in Post-Communist Europe by Herman Schwartz (University of Chicago Press, Chicago, 2000)”,, 1(1) I.CON: International Journal of Constitutional Law (2003), 160.

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power” may help judges to cultivate constitutional rights consciousness among the citizenry, and constitutional scholars may also help them by measuring the actual impact of judicial review (judgments and their enforcement) on the political process, the capacity of the state, and on the well-being of ordinary citizens.

Press Freedom in Russia: Does the Constitution Matter?1 Peter Krug My title asks whether the 1993 Constitution has helped to protect the exercise of press freedoms2 in the Russian Federation. The answer must be “No”, although as a result of very recent developments it is possible that a more nuanced answer to this question might soon be required. Certainly, however, to this point very little evidence exists of examples where the Constitution, despite explicit guarantees in Article 29 of freedom for the news media, as well as for individuals, to seek, receive, and disseminate information by any lawful means, has been applied to shield the press from arbitrary or manipulative interferences.3 At the same time, a voluminous record of such interferences has been assembled,4 including numerous highly-visible and well-documented examples that have attracted global attention.5 Examples include the maintenance or acquisition of state ownership or control of national broadcasting, including the hostile takeovers several years ago of private broadcasters, physical attacks on journalists, and the active use of criminal and civil defamation laws, including rap1

This essay is based on a paper of the same title read at the National Convention of the AAASS, Boston, MA, December 2004. Information in the paper concerning certain developments has been updated to mid-April 2005.

2

Throughout, oughout, ughout, I will use the terms “press” and “news media” interchangeably to refer to print and electronic media organizations engaged in the gathering, editing, and dissemination of information to broad audiences. The term “press freedoms” covers the legal rights of news media entities to engage in these activities independently, without arbitrary interference by governmental institutions or private parties.

3

This observation includes not only the absence of judicial action, but legislative as well. The only significant legislation directed toward protection of press freedoms was enacted in the early 1990s, prior to adoption of the 1993 Constitution: the 1990 USSR “Law on the Press and Other Means of Mass Information” and the 1991 Russian Federation Law “On Mass Media”. These defined the core principles of the prohibition of formal, direct pre-publication censorship and of state monopoly ownership of the mass media. The 1991 Law (Zakon,, “O sredstvakh massovoi informatsii”, VSND i VS RSFSR (1992) No.7 item 300 (enacted 27 December ember 1991, effective 8 February ruary 1992)) remains in effect,, available, with subsequent amendments, at . >..

4

See, for example, the results of monitoring activities of organizations such as the Center for Journalism in Extreme Situations http://www.cjes.ru/about/?lang=eng> > and the Glasnost’ Defense Foundation . http://www.gdf.ru/monitor/index.shtml>. >..

5

Among numerous international non-governmental organizations that have monitored and regularly protested developments in Russia are the Committee to Protect Journalists (see ) and Reporters Without Frontiers (see ).

Gordon B. Smith and Robert Sharlet, eds. Russia and its Constitution: Promise and Political Reality 79-103 Copyright Koninklijke Brill NV, Leiden, 2008

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idly escalating damages awards in civil cases, against the news media. Of particular significance is the ample evidence demonstrating the Putin administration’s active involvement in efforts to control certain media entities or individual journalists.6 The absence of the Constitution from all this cannot, however, be attributed entirely to governmental and third party intervention. Instead, with the exception of certain isolated examples, the judiciary in the Constitution’s first decade did not recognize a constitutional dimension in news media activity or its regulation, and this remains the prevailing pattern. This absence of judicial recognition is significant for two reasons: first, because of the role assigned to the courts in the Constitution’s scheme for protection of fundamental rights and second, because the nature of the Putin administration’s style of governance does not rule out such development. As to the first of these, if press freedoms do have a constitutional dimension, the starting point is Article 29 of the Constitution. It states in full: (1) (2)

(3) (4)

(5)

Everyone shall have the right to freedom of thought and speech. Propaganda paganda or agitation exciting social, racial, national, or religious hatred and enmity nmity is not permitted. Propaganda of social, racial, national, religious, or linguistic supremacy is prohibited. No one may be compelled to express his opinions and convictions or to renounce them. em. Everyone shall have the right to seek, get, transfer, produce and disseminate information nformation by any lawful means. The list of information constituting a state secret is determined by federal law. The freedom of the mass media shall be guaranteed. Censorship shall be prohibited.

The potential effectiveness of Article 29 is anchored in the normativity provisions of the Constitution—in n—in —in other words, those that identify the legal effect and status of constitutional norms. According to Articles 15(1) and 18, the Constitution’s provisions are binding, operate with direct effect, and are supreme in the Russian Federation’s hierarchy of sources of 6

See detailed reports in: Masha Lipman and Michael McFaul, “Putin and the Media”, in Dale R. Herspring (ed.), Putin’s Russia: Past Imperfect, Future Uncertain (Rowman & Littlefield Publishers, Inc., New York, 2nd ed. 2005), ),, chapter 4; Richard Sawka, Putin: Russia’s Choice (Routledge, New York,, 2004), ),, 103-107; and Laura Belin, “The Rise and Fall of Russia’s NTV”,, 38(1) Stanford Journal of International Law (2002), 19-42. See, also, the recital of facts in European Court of Human Rights, Case of Gusinskiy v. Russia (Judgment of 19 May 2004), paras. 9-44.

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law. The Constitution also might be relevant to protection of press freedoms in another way: through the incorporation of international norms. Articles 15(4) and 17(1) mandate the incorporation into the legal system of generally recognized principles and norms of international law and international treaties to which the Russian Federation is a party, and the former provision dictates that treaty norms are superior to legislative acts. In all, the Constitution envisions an active, central role for the courts in constitutional development. Of particular significance for the role of the courts and advancement of judicial empowerment is that part of Article 18 which states that the Constitution’s human rights norms, including Article 29, shall “determine the meaning, content, and application of the laws” and “shall be secured by the judiciary”. As to the governing style of the Putin administration, commentators emphasize its selective nature. Selective in its application of power, this style allows, and in fact encourages, institutions to act within zones of autonomy whose boundaries are continually expanding or shrinking.7 Thus, despite the examples of interference cited above, and the absence of an effective domestic institutional counter-weight to the exercise of executive branch power or coercion by powerful private entities, this style allows the judiciary and the news media certain leeway to operate autonomously within their respective zones. 8 So, for example, regarding the courts, Professor Peter Solomon recently reported that the activity of the Russian courts in administrative justice—cases in which the government or one of its officials is a party—is increasing significantly in Putin’s Russia.9 As to the news media, control over it is not absolute. Observers continue to point out that an abundant number of news media entities operate in Russia, free from direct interference in their day-by-day operations.10 7

Harley Balzer, “Managed Pluralism: Vladimir Putin’s Emerging Regime”, 19(3) PostSoviet Affairs (2003), 189-227; 89-227; Sakwa, op.cit. note 6, 111-112 and 122-129.

8

Regarding the relationship between press freedoms and the need for development of an “independent and uncorrupted judiciary” in Russia, see Lipman and McFaul, op.cit. note 6, 69.

9

Peter H. Solomon Jr., “Judicial Power in Russia: Through the Prism of Administrative Justice”,, 38(3) Law and Society Review (2004), 549.

10

Lipman and McFaul, op.cit. note 6, 67-68; Masha Lipman, “Fear and Fury in Russia”,, The Washington Post, 3 November 2004 (reporting reporting that “not all voices have been silenced”). ).. See, also, the remarks of Alexander Vershbow, “U.S. Ambassador to Russia”, 16 November 2004. After citing “increasing state control over the broadcast media” in Russia, he stated that: “I don’t want to overstate what has happened so far. The Russian print media, as opposed to the broadcast media, continue to air a diversity of views. As someone who served in Moscow in the Soviet years, I am still sometimes amazed at the hard-hitting criticism of the government that I see in some newspapers. There is some airing of critical views on the NTV television

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Professor Harley Balzer described the situation within the context of his examination of what he calls the Putin style of “managed pluralism”::11 “Managed pluralism does not require a one-party political system; instead, the government seeks to limit participation to parties that might question specific policies or budget priorities but do not effectively challenge the current executive leadership [citation deleted]. The mass media are not directly censored, but mechanisms are in place to guarantee that the media ‘understands its responsibilities’: the press is free to criticize, but can be brought to heel at specific times and on important issues through selective application of economic and physical pressure. Small-circulation print media and the Internet provide a useful outlet for intellectuals to ventilate, but national broadcast media are subjected to a more stringent standard. Managed pluralism entails both encouraging and constraining civil society.”

In light of these considerations, my goal in this essay is narrow. It is not to catalog infringements on press freedoms, nor to describe the broad political environment in which the news media operate; instead, it is to examine judicial legal doctrine and practice, as developed within the judiciary’s zone of autonomy, so as to assess the place of Article 29 as a normative element affecting the status of news media activity in Russia. For the long term, a key question will be the extent to which this zone will be fortified and expanded. Part II of this essay will examine judicial doctrine and practice in areas affecting press freedoms. In Part III, I will speculate as to future developments in this area.

Judicial Doctrine and Practice in Areas Affecting Press Freedoms: Abstention and Engagement It is important here to identify what I mean by judicial recognition of a constitutional dimension in news media law. It is the judicial act of placing press freedom questions in a constitutional context: recognition that the free expression values identified in a constitutional text must be taken into account when governmental or third-party acts implicate the editorial aspects of news media activity. Recognition thereby interjects those values into the application of the legal system’s normative hierarchy.12 This might station, although it has lost the independence it once enjoyed. News coverage on the most influential Moscow-based radio station, Ekho Moskvy, is decidedly feisty. The Internet also remains a source of a broad range of views, including sharp criticism of the Kremlin” (From From Johnson’s Russia List (11 December 2004) item 19, available at ).. 11

Balzer, op.cit. note 7, 191.

12

A landmark illustration of recognition is the 1958 Luth decision of the German Federal Constitutional Court (77 BVerfGE 198 (1958)), ),, discussed in Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press, Durham,, 2nd. ed. 1997), ),, 361-369 (including lengthy excerpts of the Judgment

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mean one of two things. When another constitutional value or interest is present in a legal dispute—for example, the protection of individual reputation in defamation law—the inclusion of an Article 29 dimension will require a balancing in some fashion of the competing constitutional interests, rather than the automatic supremacy of the non-Article 29 interest. On the other hand, if a competing constitutional value or interest is not present, but instead one found in legislation or a sub-legislative act, then the recognition of an Article 29 dimension either will introduce a superior norm or the necessity of conducting an analysis under Article 55(3) of the Constitution to determine if the exercise of the Article 29 right may be restricted.13 Currently, judicial doctrine and practice on the matter of recognition reflect a mix of two tendencies: what I will call “abstention” and “engagement”. Of these, the former is of older vintage, and remains dominant. It has been marked generally by an absence of recognition of a constitutional dimension in cases involving the press, or of an absence of a sense of normative development in those rare cases where Article 29 was cited. The latter tendency, however, suggests that an incipient constitutional jurisprudence might be in the making. Abstention The judiciary’s role in the evolution of press freedoms in Russia since the mid-1980s—both the expansion and contraction of such freedoms—has been minimal.14 Instead, other institutional and public actors have dominated the process. The notion of press freedom that arose in the 1980s with the glasnost’ movement was a political concept, originating with the political leadership in response to aspirations of journalists and human in English translation); and Peter E. Quint, “Free Speech and Private Law in German Constitutional Theory”,, 48(2) Maryland Law Review (1989), 252-265. 13

Art.55(3) states in full: “Human and civil rights and liberties may be restricted by the federal law only to the extent necessary for the protection of the fundamentals of the constitutional system, morality, health, rights and lawful interests of other persons, for ensuring the defense of the country and the security of the state.” For a study of the Russian Federation Constitutional Court’s treatment of Art.55(3), see Peter Krug, “Assessing Legislative Restrictions on Constitutional Rights: The Russian Constitutional Court and Article 55(3)”,, 56(3) Oklahoma Law Review (2003), 677-696.

14

An exception is the first Russian Constitutional Court’s 1993 Izvestiia decision in which the Court applied the existing freedom of expression provision in the pre-1993 Constitution (Art.43) to invalidate the Parliament’s efforts to assume ownership of the newspaper. The Court stated that the Parliament’s acts exerted pressure on the newspaper, threatening its existence as an independent means of mass information and thereby restricting freedom of the press. Izvestiia case, VKS RF (1994) 1994)) No.2-3, 2-3,, 60.

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rights advocates. It informed the policies of the Communist Party and thereby the work of the legislative and executive branches. In sum, glasnost’ did not emerge as a judicially crafted or recognized principle. Following adoption of the 1993 Constitution, despite the provisions of Article 18, it was the executive branch, and not the judiciary, that dominated the process of defining the parameters of press freedoms. This was particularly evident in the El’tsin years, featuring the executive’s overt legislative and administrative initiatives designed to shape Russia’s “information sphere”.15 The El’tsin years also were marked in the broader political environment by an intense public debate over various theoretical underpinnings for press freedoms. Such dialogue appears to have diminished substantially in the Putin era. Indeed, the Putin administration’s style has been markedly different, abandoning the aggressive championing of information politics to adopt a less openly interventionist posture, acting far more selectively and covertly in its targeting of perceived press freedom abuses. Since 1993, the courts have adjudicated many disputes involving news media entities. In the great majority of these cases, however, Article 29 has not been applied as a source of law in resolving those disputes, nor has it been enlisted to “determine the meaning, content, and application of the laws” as called for in Article 18. The rare isolated cases where it was cited, and perhaps applied, were not part of any pattern of normative development.16 Beyond the obvious facts of the judiciary’s absence of experience in constitutional interpretation and application, and the absence of incentives to do so, numerous explanations might exist for the dominance of the abstention tendency. While space considerations preclude close analysis of possible reasons here,17 I will present some examples. One can identify four categories of cases in which the courts in the first decade of the Constitution did not recognize a constitutional dimension or, having done so, did not engage in development of an Article 29 jurisprudence: 15

Frances H. Foster, “Information and the Problem of Democracy: The Russian Experience”,, 44(2) American Journal of Comparative Law (1996), 243, 249-253, 256-258, 262-264, 269-272, and 277-291.

16

For a survey, see the Glasnost’ Foundation report available at . >..

17

I have examined these matters elsewhere: Peter Krug, “Civil Defamation Law and the Press in Russia: Private and Public Interests, the 1995 Civil Code, and the Constitution”,, Part One, 13(3) Cardozo Arts and Entertainment Law Journal (1995), 847879, and Part Two, 14(2) Cardozo Arts and Entertainment Law Journal (1996), 297-342; Peter Krug, “Glasnost’ as a Constitutional Norm: the Article 29 Jurisprudence of the Constitutional Court and Other Courts in the Russian Federation”,, paper aper read at National Convention of the AAASS, Crystal City, VA, November 2001.

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isolated recognition and application; recognition, but without further development; non-recognition in cases involving a competing constitutional interest; and non-recognition in cases involving a competing statutory interest. Isolated Recognition and Application

In these cases, the courts relied in whole or in part on Article 29 to invalidate governmental acts. These decisions did not, however, include elaboration of doctrine in the courts’ statements of reasons or result in subsequent decisions that demonstrated the decisions’ persuasive authority. For example, in its 1995 Chechnia decision, the Constitutional Court cited Articles 29(4-5), along with other constitutional provisions, in invalidating a Government Decree that authorized the withdrawal of accreditation from journalists working in an armed conflict zone, if they disseminated false information or propaganda of national or religious enmity. The Court’s brief discussion indicated only that the Decree’s fatal error in this regard was in establishing a new basis for deprivation of accreditation, and a new procedure, that were not enumerated in the 1991 Law “On Mass Media”.18 Beyond this statement, the decision did not include any further guidance for prospective recognition or application of Article 29. In the year 2000, the Criminal Collegium of the Russian Federation Supreme Court, and subsequently the Court’s Presidium, upheld a first instance court’s decision to apply Article 29(4) in the treason case against A.K. Nikitin.19 In its judgment of acquittal, the first instance court ruled that the state’s claim that Nikitin had illegally disseminated state secrets was ineffective in part because the purported state secrets had not been codified in legislation and therefore were unenforceable under the second sentence of Article 29(4). While an important development, these decisions were limited to interpretation and application of one specific provision, and therefore did not reflect an important step in the overall development of Article 29 itself.

18

Chechnia case, VKS RF (1995) 1995)) No.5, 5,, 16.

19

The decisions, dated 17 April 2000 and 13 September 2000, respectively, are available at http://www.bellona.no/data/dump/0/00/36/1.html> > and , >,, respectively.

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Recognition, but without Further Development The Constitutional Court again considered Article 29 in its 22 November 2000 Media Subsidies case decision.20 In this case, a challenge brought by property owners against provisions of a legislative act that required them to make facilities available to local media outlets, the Constitutional Court recognized that media entities’ exercise of Article 29 rights was implicated. Employing a balancing test, the Court determined that these constitutional interests were outweighed by the interests underlying the countervailing constitutional economic rights asserted by the property owners21 and the rights of municipal organs of self-administration.22 As a result, the provisions in question were found unconstitutional. While reflecting recognition of an Article 29 dimension in the context of media subsidies, the decision’s treatment of the question was limited in that the Court did not address the question of whether rights of the public under Article 29(4) might have been implicated. Non-Recognition in Cases involving a Competing Constitutional Interest: Defamation Law In the mid-1990s, following the legislative adoption of monetary compensation for non-material harm (moral damages) as a civil remedy for false factual allegations injurious to personal reputation, civil defamation lawsuits by individuals (often politicians) against the news media proliferated in the courts of general jurisdiction.23 While based on a legislative act—the Civil Code of the Russian Federation, Articles 150-152 and 10991101— individual claims of damage to personal reputation also are grounded in the Constitution, which in Article 23(1) states that “Everyone shall have the right to privacy, to personal and family secrets, and to protection of one’s honor and good name”.. Until very recently, the approach of the courts of general jurisdiction in personal reputation cases was marked by recognition of the Article 23 dimension, but not a countervailing Article 29 interest as well. On at least four occasions in the development of a body of defamation law, judicial bodies were presented with circumstances that might have led to recognition of an Article 29 dimension, but did not. 20

Media Subsidies case, VKS RF (2001) 2001)) No.1, 1,, 10.

21

Constitution of the Russian Federation, Arts.35(2-3).

22

Constitution of the Russian Federation, Arts.130(1), 132(1), and 133.

23

Parliamentary Deputy Vladimir Zhirinovskii, for example, by early 1994 had already filed some seventy different defamation lawsuits. Krug,, op.cit. note 17, Part One,, 850 n.. 14.

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The first of these occasions was the adoption in 1992 by the Plenum of the Russian Federation Supreme Court of a Decree, or “Explanation”,, providing clarifications of the relevant Civil Code provisions for use by the courts of general jurisdiction.24 As amended in 1993 and 1995, this Explanation cited the constitutional right to judicial protection of personal reputation in Article 23, but did not identify Article 29 as a factor in the defamation calculus. The Explanation remained in effect until its displacement in February 2005—a significant development that I will address below. The second occasion came in 1995, in the aftermath of a highlypublicized defamation lawsuit in which Deputy Vladimir Zhirinovskii successfully sued former Prime Minister Egor Gaidar and the newspaper Izvestiia in the Moscow courts of general jurisdiction. The dispute centered on an Izvestiia article in which Gaidar described Zhirinovskii as “a fascist populist” and “the most popular fascist in Russia”. Russia’s Deputy Procurator-General filed a “protest” against these decisions, asking the Supreme Court Civil Chamber to review it because it implicated the defendants’ exercise of free expression under the Constitution. The Civil Chamber denied the protest and thereby declined to review the decision.25 The third occasion also arose in 1995, when Foreign Minister Andrei Kozyrev unsuccessfully asked the Russian Federation Constitutional Court to review the constitutional validity of the statutory basis for civil defamation lawsuits. Kozyrev’s complaint grew out of a defamation lawsuit brought by Vladimir Zhirinovskii against him and television broadcasting company NTV. While stating that Kozyrev had raised “an important and topical question”, the Court found his complaint inadmissible on jurisdictional grounds: because it entailed examination of factual questions, review of the complaint lay outside the Court’s competence and was a matter only for the courts of general jurisdiction.26 In this regard, the Court suggested strongly to the Supreme Court that it issue an Explanation for resolution

24

Postanovlenie Plenuma Verhkovnogo Suda Rossiiskoi Federatsii, (18 August 1992) No.11, “O nekotorykh voprosakh, voznikshikh pri rassmotrenii sudami del o zashchite chestii dostoinstva grazhdan, a takzhe delovoi reputatsii grazhdan i iuridicheskikh lits”, in the redaction of a Decree of the Plenum (21 December 1993) No.11, with amendments and additions made by a Decree of the Plenum (25 April 1995) No.6. The 1992 Postanovlenie was published in BVS RF (1992) 1992)) No.11, 7-8. For the 1993 amendments, see BVS RF (1994) 1994)) No.3, 8. For the 1995 amendments, see BVS RF (1995) 1995)) No.7, 4-6. -6.

25

Krug, Cardozo Part One, op.cit. note 17, 860-861.

26

Complaint of A.V. Kozyrev, VKS RF (1995) No.6, 6, 2.

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of the difficult questions posed by Kozyrev’s complaint.27 The Supreme Court did not act on this suggestion. The fourth occasion came in 1997, when the Vologda Provincial Court Civil Chamber and Presidium applied Article 29 to sustain a defense to a defamation lawsuit. However, the Supreme Court’s Civil Chamber reversed these decisions on the grounds that false defamatory statements fall outside the Article 29 protections, and therefore the exercise of free expression is always subject to the superior effect of Article 23.28 The defamation cases highlight a broader question, which I will call the “normative paradox”. In these cases, as a general matter, it can be said that the courts faithfully apply the relevant Civil Code provisions, in compliance with the constitutional mandate in Article 120 that they not deviate from the dictates of federal laws.29 At the same time, free press advocates have viewed these outcomes as unjust. This apparent paradox is illustrated by the complaint of an observer in 1995 who acknowledged the literal correctness of the Moscow appellate court’s decision in the Zhirinovskii v. Gaidar case, but at the same time lamented that the court lacked “the least particle of civil responsibility”.30 Non-Recognition in Cases involving a Competing Statutory Interest These cases have presented the most high-profile court decisions involving defenses based on Article 29 rights. In them, plaintiffs have asserted statutory claims and the courts have done so to uphold those claims, although unlike section “Cases involving a Competing Constitutional Interest” above, no competing constitutional interest was at issue. Such circumstances again arguably present the normative paradox because the courts did not consider a possible Article 29 dimension. The cases have involved disputes over media ownership and claims of harm to business reputation.

27

Krug, op.cit. note 17, Part Two, 303-306. Since Kozyrev, the Constitutional Court has issued similar opredeleniia, the most recent of which were issued on 4 December 2003 and 27 May 2004, respectively: Complaint of V.A. Shlafman, VKS RF (2004), No.3, 55; and Complaint of E.N. Zarovniatnykh, (not published in VKS RF; available at ).

28

Peter Krug, “Departure from the Centralized Model: The Russian Supreme Court and Constitutional Control of Legislation”,, 37(3) Virginia Journal of International Law (1997), 778, n. 230.

29

Art.120 states in full: “1. Judges shall be independent and shall obey only the Constitution of the Russian Federation and the federal law. 2.. A court of law, having established the illegality of an act of government or any other body, shall pass a ruling in accordance with law.”

30

Krug, op.cit. note 17, Part Two, 300.

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Media Ownership: The NTV and TV-6 Cases Globally, the most visible actions affecting press freedoms have been the disputes over ownership of the broadcasting networks NTV and TV-6.31 These disputes included protracted litigation in the Arbitrazh courts, as well as a subsequent Constitutional Court decision.32 Accompanying these complex controversies were follow-up actions by the Media Ministry withdrawing the broadcast licenses held by TV-6 and its successor, the network TVS.33 The outcomes in these cases—successfully brought by parastatal or private entities against companies owned by the so-called “oligarchs”, Vladimir Gusinskii and Boris Berezovskii—were the removal of these opposition figures from ownership or control and their replacement with owners, managers, and journalists much more amenable to good relations with the Kremlin, relations that included editorial decision-making as to program content. For purposes of this chapter, the defining feature of these disputes is the fact that they were conducted through legal process, with the state or government not a party, and without suggestion anywhere in the judicial records—including the 2003 case at the Constitutional Court—that press freedoms were implicated. Instead, the courts, as in the defamation cases, interpreted and applied statutory provisions from the Civil Code and the 1995 Law on Joint-Stock Companies.34 Indeed, again reflecting the normative paradox, the January 2002 decision of the High Arbitration Court centered on the significant question, for business law, of the hierarchical relationship between conflicting provisions in the Civil Code and Law on Joint-Stock Companies.35 Protection of Business Reputation: Al’fa Bank v. Kommersant” While defamation law developed as political combat in the courts of general jurisdiction, it has become a popular remedy for business entities, through lawsuits in the Arbitrazh courts. For purposes of this essay, a fact distinguishing the protection of business reputation is that it is not an

31

Belin, op.cit. note 6, 32-40.

32

No.14-P (18 18 July 2003), VKS RF (2003) No.5, 5, 30.

33

Belin, op.cit. note 6, 40 (regarding TV-6); Laura Belin, “TVS: Another Failed Experiment in Private Television”,, 3(25) RFE/RL Russian Political Weekly, 26 June 2003.

34

Federal’nyi Zakon,, “Ob aktsionernykh obshchestvakh”,, SZ RF (1996) No.1 item 1 (signed by President El’tsin on 26 December 1995).

35

Postanovlenie Prezidiuma Vysshego Arbitrazhnogo Suda Rossiiskoi Federatsii, (11 January 2002) No.32/02 (Decree of the Presidium of the High Arbitrazh Court of the Russian Federation) available at . >..

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identified right in the Constitution;36 instead, it is a protected interest in the defamation provisions found in Articles 150-152 and 1099-1101 of the Civil Code. This shift recently has been accompanied by escalating damages awards, culminating in an Arbitrazh court’s award in October 2004, of damages totaling 320 million rubles (approximately 11 million USD) in a case brought by Al’fa Bank against the newspaper Kommersant”.37 As of this writing, the case has since been heard at the appellate and cassation levels, and might well soon go to the High Arbitrazh Court.38 The written decisions of the three Arbitrazh courts in the Al’fa Bank case did not discuss an Article 29 dimension. In addition to other possible constitutional issues, the case poses important questions concerning the possibility of constitutional limits on the quantum of damages awards.39

36

It arguably might be an implied right within the entrepreneurial rights in Art.34, but such argument does not appear to have been submitted to a court, nor has a court recognized such a right.

37

Of the 320 million rubles, 300 million rubles were awarded as compensation for nonmaterial harm. The judgment is available at http://www.kommersant.ru/alfa.html> > (A copy of the judgment is in the possession of the author). It should be noted that Boris Berezovskii is the owner of Kommersant”, a fact that has led to considerable speculation that this lawsuit is an example of Kremlin manipulation. See, for example, Committee to Protect Journalists, press release “From Russian repression to new risks in Iraq, CPJ’s Attacks on the Press recounts deadly year”, 16 March 2005 (“In addition to these overt tactics to control the media, pro-Kremlin forces also find indirect pressure to be useful” (citing citing the Al’fa Bank case as an example of the latter)), )), ),, available at . http://www.cpj.org/attacks04/pages/aop_04_presser.html#more>. >.. The newspaper itself has expressly rejected this contention, although perhaps with a sense of irony. In its 31 January 2005 edition (1), Kommersant” published this statement: “It has been suggested in some circles that the Al’fa Bank suit against Kommersant” Publishing House was inspired by the Kremlin. The staff of Kommersant” does not think so.” However, the statement was placed as a caption to a photograph of President Putin shaking hands with Mikhail Fridman, President of Al’fa Bank.

38

On 23 March 2005, following an appellate court’s 27 December 2004 affirmation of the first instance court’s ruling (available at ), >),, the Moscow Circuit Federal Arbitrazh Court affirmed the finding of liability but reduced the total damages award to 40.5 million rubles, 30 million of which is compensation for non-material harm. See the report in Kommersant” (“Arbitrazh umeril appetit Al’fa-banka v 10 raz”) dated 23 March 2005.

39

For more information, see Peter Krug, “Protection of Business Reputation in the Civil Code: Damages, the Constitution, and International Norms”,, paper aper read at Conference on Commercial Law Reform on Russia and Eurasia, Washington, DC, 9 April 2005 (posted at ). >). ).

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Engagement Meanwhile, recent developments within the courts of general jurisdiction and the Constitutional Court suggest that the judiciary is on the verge of pursuing a more active approach to recognition of Article 29’s applicability and definition of its parameters. The clearest sign of this tendency came with the Supreme Court’s adoption, in February 2005, of a new Explanation40 on the subject of defamation law.41 The Explanation, however, was preceded by certain forerunners of change. Forerunners Both the Constitutional Court and certain local courts of general jurisdiction signaled a receptivity to engagement in the last several years. The Constitutional Court, in its 30 October 2003 decision regarding legislation that imposed restrictions on news media coverage of election campaigns,42 took two noteworthy steps. First, the Court’s determination that the restrictions in question implicated the exercise of Article 29 rights, including the right of the public to receive information, and its choice of 40

Supreme Court “Explanations” (Raz”iasneniia) are directives of general applicability to the lower courts of general jurisdiction on particular matters of legal interpretation and application arising in judicial practice. They are adopted after consideration of reports prepared by the individual Justices and the Court’s staff on lower court practice in the area of law in question. In such sessions, outside specialists on the topic in question often are invited to participate. Soviet and post-Soviet Russian scholars have long debated the legal effect of Explanations. Under 1981 legislation, the Supreme Court’s decrees were designated as “Guiding Explanations” (Rukovodiashchie Raz”iasneniia) and expressly made binding on all lower courts and government officials. Under the 1993 Constitution and the 1996 Court Act, however, the adjective “Guiding” and the reference to binding effect were deleted in an apparent attempt to retract their normative binding character and place them in the category of persuasive authority. Regardless, Explanations serve at least as signals to the lower courts of the Supreme Court's expectations for judicial performance. See Krug, op.cit. note 28, 735-736. According to the Supreme Court, courts of general jurisdiction must in their written decisions cite to Explanations that are applicable to resolution of the case. See Postanovlenie Plenuma Verkhovnogo Suda Rossiiskoi Federatsii (19 19 December 2003) No.23, “O sudebnom reshenii”, para. 4 (Decree of the Plenum of the Supreme Court of the Russian Federation “On Judicial Decisions”),, available at . http://www.supcourt.ru/solution/current.php?id=116>. >..

41

Postanovlenie Plenuma Verkhovnogo Suda Rossiiskoi Federatsii (24 24 February 2005) No.3, “O sudebnoi praktike po delam o zashchite chesti i dostoinstva grazhdan, a takzhe delovoi reputatsii grazhdan i iuridicheskikh lits” (Decree of the Plenum of the Supreme Court of the Russian Federation “On Judicial Practice in Cases concerning Protection of the Honor and Dignity of Individuals, and the Business Reputation of Individuals and Legal Persons”),, available at . >..

42

Voting Rights Law case, VKS RF (2003) 2003)) No.6, 6,, 3.

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methodology for assessing the validity of the restrictions, are recurring themes throughout the decision.43 Second, while the Court upheld many of the law’s challenged provisions, it recognized in particular the value of journalists’ expressions of “opinion” in the context of electoral campaigns. In so doing, it invalidated a provision of the law that prohibited journalists from voicing opinions concerning the issues or candidates, concluding that it violated freedom of the press and the right of citizens to receive information, necessary for the formation of voters’ views in an election.44 Developments in the local courts of general jurisdiction reflect the intensifying influence of the European Court of Human Rights. A series of decisions of the Supreme Court and lower courts of general jurisdiction, beginning in 2002, reflect the penetrating influence of the Strasbourg Court’s case law in its interpretation and application of the freedom of expression provisions in Article 10 of the European Convention on Human Rights. Affirmation of the European Court’s impact came in the Supreme Court Plenum’s October, 2003 adoption of a detailed Explanation entitled “On Application by Courts of General Jurisdiction of the Commonly Recognized Principles and Norms of International Law and the International Treaties of the Russian Federation”..45 While not expressly addressing Article 29 or press freedom issues more generally, the Explanation serves as a basis for instructions to the lower ordinary courts to incorporate not only international norms, but also the decisions of international courts interpreting and applying those norms. In this regard, the Explanation placed particular emphasis on the European Court of Human Rights.46 In the field of news media law, particularly defamation, the Explanation may be viewed as recognition of a grass-roots tendency that already was underway. Prior to its adoption, some seven decisions in 2002-2003 in the lower courts had applied the European Convention, and six others had expressly cited decisions of the Strasbourg Court.47 Since the Explanation’s 43

Ibid bidd., sec. 2, paras. 1 and 3; sec. 3, paras. 1 and 3; sec. 4.2, paras. 1, 4, and 7; and sec. 5, paras. 4-5.

44

Ibid bidd., section 5, paras. 4-5.

45

Postanovlenie Plenuma Verkhovnogo Suda Rossiiskoi Federatsii (10 October 2003) No.5,, “O primenenii sudami obshchei iurisdiktsii obshchepriznannykh printsipov i norm mezhdunarodnogo prava i mezhdunarodnykh dogovorov Rossiiskoi Federatsii”, available, vailable, including English translation, at the Supreme Court’s website:: ..

46

Ibid bidd., secs. 10-15. 0-15. The Supreme Court’s 19 December 2003 Explanation, op.cit. note 40, requires the courts of general jurisdiction to cite applicable judgments of the European Court of Human Rights in their decisions.

47

The texts of these decisions also are available at . >..

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adoption, at least eleven more lower-court decisions applied the Convention, and at least nine cited Strasbourg Court decisions.48 The Supreme Court itself also invoked Article 10 of the Convention in a decision prior to the Explanation. On 10 February 2003, the Court’s Civil Chamber used Article 10 to reverse a Volgograd Oblast’ court decision that had imposed administrative liability for the offense of insult.49 The grass-roots movement has not been limited to application of the European Convention and/or European Court decisions. In fact, examples of constitutional application can be traced back at least as far as the Vologda defamation decision in 1997,50 and to a conference on judges and journalists in Krasnodar Krai in 1999. Spurred by the ever-rising number of defamation cases in Krasnodar Krai, the participants in the 1999 meeting authored a resolution addressed to the Supreme Court, in which they informed the Court that they recognized a free press dimension in defamation law, and asked the Court to address several methodological questions related to the balancing of constitutional rights of free press and individual rights of reputation.51 Such exhortations may be assumed to have contributed to the Supreme Court’s decision to re-evaluate its approach to defamation law. The 24 February 2005 Explanation The Supreme Court Plenum’s adoption, in February 2005, of a new Explanation regarding defamation law is a new incremental step in these developments.52 In marked contrast to the 1992-1995 Explanation, which it replaces, the new Explanation assertively endorses the recognition of a 48

The texts of these decisions also are available at . >..

49

This decision (in Delo No.16-GOZ-1) is at . >.. The defendant in this case was an individual, not a news media organization or journalist.

50

See Krug, op.cit. note 28 and accompanying text. More recent decisions include a decision of the Moscow Oblast’ Court (22 September 2002) (Delo No.44g-622) (copy copy in possession of the author), ),, and a September 2004 decision of the Arkhangel’sk Oblast’ Court (Report of 23 September 2004 available at ). >). ).

51

According to the published report, 120 people took part in the conference. The number of judges participating was not provided. Iurii Luchinskii, “Konferentsiia sudei i zhurnalistov”,, Zakonodatel’stvo i praktika sredstv massovoi informatsii (May 1999). The monthly journal ZiP is available on the web site of the Moscow Media Law and Policy Center at . http://www.medialaw.ru>. >.

52

For commentaries on the Explanation, see Mikhail Fedotov, “Supreme Court Opens Door to Better Rules”,, The Moscow Times, 2 March 2005, 10,, available at ; >;; and Andrei Richter, “Chest’ i dostoinstvo: shag k svobode slova”,, Vedomosti (55 March 2005) No.39.

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constitutional dimension in defamation law, referring throughout to Article 29 and to Article 10 of the European Convention on Human Rights. At several points, it directs the courts to balance the competing constitutional interests of protection of reputation and freedom of expression.53 First, in a change of position, the Explanation states that defamation plaintiffs now bear the burden of proving not only that the statement in question was disseminated, but also that it is defamatory.54 Second, it expressly addresses the problem of opinion (or “value judgments”), informing the courts that Article 29, along with Article 10 of the European Convention on Human Rights, requires them to distinguish between factual assertions, which are subject to proof, and value judgments and opinions, which are not and therefore cannot in themselves be grounds for liability.55 In addition to this major shift, the Explanation also departs from the former Explanation by introducing the public dimension into calculation of moral damages. When assessing damages for non-material injury, the Explanation states, a court must insure that the quantum of damages is proportional to the plaintiff ’s harm and does not lead to infringement of freedom of the information.56 Finally, on a closely-related topic, the Explanation tells the courts, when assessing invasion of privacy lawsuits, to preclude liability when news media defendants have disseminated information about a plaintiff ’s private life in order to protect public interests.57 The Explanation adds that this provision is in accord with Article 8 (protection of privacy) in the European Convention on Human Rights.

53

For example, Section One of the Explanation states in part: “Taking into account these constitutional provisions, courts in deciding disputes on the protection of honor, dignity and business reputation must insure a balance between the rights of persons to protection of honor, dignity, and also business reputation, on the one hand, and other rights and freedoms guaranteed by the Constitution of the Russian Federation—freedom of thought, of speech, of mass information, the right freely to seek, receive, transfer, produce, and disseminate information by all lawful means, the right to inviolability of private life, personal and family secrets, the right to petition state bodies and bodies of local self-administration (Arts.23, 29, and 33 of the Constitution of the Russian Federation)—on the other.” According to one commentator, Mikhail Fedotov, the Explanation finds “a balance between the right to defend oneself against defamation and the right of access to information, freedom of self-expression and freedom of the press”.. Fedotov, op.cit. note 52.

54

The 24 February 2005 Explanation, op.cit. note 41, Section 9.

55

Ibid. bid. d.

56

Ibid bidd., Section 15.

57

Ibid bidd., Section 8 (citing Art.49(5) (5) of the Law on Mass Media).

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Prospects The Supreme Court’s new direction has framed the agenda for courts of general jurisdiction when they confront defamation cases. It may be expected that focus now will shift to the courts’ application of the February 2005 Explanation’s directives in their practice, and the Supreme Court’s supervision of their decision-making. For example, many practical questions may be expected in the lower courts’ treatment of the Explanation’s broad directive on assessment of non-material damages. However, while undoubtedly important for the development of substantive questions in defamation law, the Explanation’s most significant effects might lie beyond this. As the most detailed, comprehensive judicial articulation of a constitutional dimension in the regulation of news media activity, the Explanation has the potential to serve as a basis for legitimization of the notion that judicial protection of press freedoms must be taken seriously. Another outcome could be to spur use of Articles 29 and 10 as tools of judicial empowerment. Finally, as did the October 2003 Explanation, the new Explanation signals Russia’s entry into the global judicial dialogue on the complexities of defamation law. Whether the Explanation indeed will gain traction in Russia as a watershed development will depend upon the degree of its radiating effect within the judiciary and the larger legal community. It may be expected that factors relevant to this question will include the challenges posed by Russia’s splintered system of judicial competence, the nature of the influence of the European Court of Human Rights on development of a general body of news media law, and the development of legal theories in this field. Assessing the Explanation’s Impact: Judicial Competencies and the Broad Scope of News Media Law Considerations of the Explanation’s impact may be expected to center on two questions: its influence on other components within Russia’s judiciary, and its impact on news media law issues outside the defamation context. Judicial Competence Up to this point, it may be said that the splintered nature [trifurcation] of judicial competence between the Constitutional Court, the courts of general jurisdiction, and the Arbitrazh courts has been a factor impeding the development of an Article 29 jurisprudence. Under the constitutional allocation of competencies, for example, the Constitutional Court is precluded from reviewing individual complaints against acts of law applica-

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tion.58 Because so many constitutional issues arise in the context of law application, rather than examination of legislative texts, this means that the Constitutional Court’s potential as a focal point for development of Article 29 is significantly diminished. However, despite the shackles on the Court’s competence, possibilities exist for some activity in this field if the Court were to be receptive to the Supreme Court’s notions. Thus, the Court has developed some creative mechanisms, based on certain provisions of its Statute, that allow it to shape constitutional jurisprudence even in those cases where it might be precluded from rendering a final judgment.59 Second, many of the Court’s members have demonstrated a strong interest in participating in the ever-expanding global judicial dialogue on constitutional issues. Will they deem it worthwhile to do this in regard to free press issues? Here, it should be noted that, looking back to the Court’s initial contribution to constitutional news media law—the Izvestiia decision in 1993—that current Chief Justice Valerii Zor’kin was Chief Justice at the time of that decision, and that current Justice Gadis Gadzhiev was the dokladchik (reporter) for that decision. Regardless, it remains evident that Article 29’s development is largely in the hands of the courts of general jurisdiction and the Arbitrazh courts, and their competence is divided. This is significant because most cases involving claims of harm to business reputation are in the competence of the Arbitrazh courts. Might this division of competencies impede or advance development of an Article 29 jurisprudence? To my knowledge, no Arbitrazh court has cited Article 29 or free press concerns generally, despite the significant number of business reputation cases heard in those courts. The on-going litigation in the Al’fa Bank v. Kommersant” case perhaps will indicate whether the Supreme Court’s February, 2005 Explanation will have any immediate impact. In this regard, an important step would be a signal from the Supreme Court’s counterpart in the Arbitrazh courts—the the he High Arbitrazh Court—that it agrees with the Explanation. On certain occasions, the Supreme Court and High Arbitrazh Court have issued joint decrees on 58

Constitution of the Russian Federation, Art.125(4); Federal’nyi Konstitutsionnyi Zakon “O konstitutsionnom sude Rossiiskoi Federatsii”,, SZ RF (1994) No.13 item 1447 (signed by President El’tsin on 21 July 1994), Art.3. See discussion in Krug, op.cit. note 28, 744 and 748.

59

Among these, for example, is the Court’s technique of identifying the “constitutional law meaning” (konstitutsionno-pravovoi smysl) of a statutory provision. According to the Court (relying, among other authority, on Art.74(2) of the Court’s Statute), the “constitutional law meaning” will then serve as the only permissible construction available to the courts in their prospective application of the statute in question. See discussion in William Burnham, Peter B. Maggs, and Gennady M. Danilenko, Law and Legal System of the Russian Federation (Juris Publishing, Huntington, NY,, 3rd. ed. 2004), ),, 85-91.

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subjects relevant to both the courts of general jurisdiction and the Arbitrazh courts,60 and it would advance the substantive goals of the Explanation, as well as the goals of uniformity and legal certainty, if something akin to this were to occur in regard to the Explanation. Such a step currently might encounter obstacles. For example, the Supreme and High Arbitrazh Courts would have to resolve their existing disagreement on a key question in cases involving protection of business reputation: the standing of legal persons to seek moral (non-material) damages.61 Beyond Defamation Law The effect of governmental and third party acts on news media activity, of course, is not limited to protection of personal or business reputation. For example, one of the broad issues largely unresolved in Russian law is access to governmental records and meetings. One of the many facets of this question is that of news media access to judicial records. In November 2004, a Supreme Court justice rendered a decision in a case with significant implications for freedom of information law. The case involved a challenge to instructions issued by the Supreme Court’s administrative arm to all ordinary courts concerning the non-disclosure of certain records in judicial proceedings. The petitioner’s case was grounded in part on the Constitution and on the European Convention on Human Rights, including decisions by the European Court of Human Rights. The court denied the petition—in so doing, its lengthy, detailed decision did not address the constitutional and European Convention arguments.62 Another area, particularly acute in the Russian context in light of cases such as those of NTV and TV-6, is the licensing of electronic broadcasting. To this point, the judiciary has not recognized constitutional implications in this area. 60

See, for example, Postanovlenie Plenuma Verkhovnogo Suda Rossiiskoi Federatsii i Plenuma Vysshego Arbitrazhnogo Suda Rossiiskoi Federatsii (18 18 and 20 November 2003) No.19/20, BVS RF (2004) No.1, 1,, also available at . >..

61

This has been viewed primarily as a matter of statutory interpretation, with the Supreme Court accepting recovery of moral damages, and the High Arbitrazh Court rejecting it. However, the Constitutional Court also has addressed the question from a constitutional perspective, centering on its conclusion that a legal persons must be eligible for such damages as included among its rights to judicial remedies under Art.45(2) of the Constitution. See discussion of these matters in Krug, “Protection of Business Reputation”,, op.cit. note 39.

62

Materials concerning the case, including the petition and the court’s judgment, may be found in the November 2004 issue of Zakonodatel’stvo i praktika mass-media, found at the website of Moscow State University’s Moscow Media Law and Policy Institute available at . http://www.medialaw.ru/zip.html>. >..

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Whether Article 29’s scope will reach to other fields of news media activity such as these is a question that raises another issue: the current linkage between Article 29 and the case law of the European Court of Human Rights. Clearly, the latter has been the driving force behind the engagement tendency in the courts of general jurisdiction. As a result, nearly all Article 29 jurisprudence to this point is Strasbourg Courtdependent.63 However, this has its limits, particularly due to nature of the European Court’s case law, much of which is weighted toward defamation and articulation of defensive rights of the news media against unwarranted interferences. In comparison, the Court’s case law in areas such as affirmative rights of access to information or procedural rights in broadcast licensing is much thinner. Thus, perhaps if the Russian courts are to further develop the scope and contours of Article 29, they must become less ‘Strasbourg-conscious’, at least to the point of relying on specific European Court decisions. Thus, while the methodology found in Article 10(2) of the European Convention64 might serve as a basis for assessing the constitutionality of interferences, Russia has a similar provision in Article 55(3) of the Constitution.65 Perhaps the evolution of free press jurisprudence in Russia will lie in development of Article 55(3). If 63

Consider, for example, this excerpt from Section tion 1 of the 24 February 2005 Explanation: “In the resolution of disputes on protection of honor, dignity and business reputation, courts should be guided not only by the norms of the Russian legislation (Art.152 of the Civil Code of the Russian Federation), but also by virtue of Art.1 of the Federal Law dated 30 March 1998 No.54-FZ ‘On the Ratification of the Convention on Protection of Human Rights and Fundamental Freedoms and its Protocols’, to take into account the legal position of the European Court of Human Rights, expressed in its decisions concerning questions of interpretation and application of the given Convention (first of all Art.10), having in mind, that the concept of defamation used by the European Court of Human Rights in its decisions is identical to the concept of widespread defamation not in conformity with the real state of things, contained in Art.152 of the Civil Code of the Russian Federation.”

64

Art. 10 of the European Convention states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

65

See supra note 13.

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so, attention to theoretical bases of free press freedoms will be a necessary component. Toward an Article 29 Theory: What is the Nature of Free Press Rights? Another element in determining the impact of the courts’ engagement tendency, highlighted by the February 2005 Explanation, will be the extent of its radiating influence in the larger legal community of legal scholars and educators. Their degree of interest will be crucial in determining whether the movement toward an incipient constitutional dimension in news media law—particularly the development of an expanded, indigenous Article 29—will be maintained. In turn, this will depend on the degree to which judicial engagement has stimulated interest in exploration of the theoretical bases in constitutional news media law. Development of theory must confront what in my opinion is the fundamental question in news media law: the dual nature of press freedoms. Put simply, are free press rights primarily (or entirely) individual or collective, negative or affirmative? In a thought-provoking article published in 1996, Professor Frances Foster directly addressed these questions, identifying four theories of press freedom that were advanced in the debate in Russia over press freedoms in the 1990s.66 She was critical of all these, arguing that they were grounded in a collectivist or communitarian theory of press freedoms that provided legitimacy for the El’tsin administration’s interventionist measures, particularly in the absence of judicial interpretation of Article 29. Instead, she argued, the exercise of press freedoms would be better advanced by reliance on theories grounded in recognition of such freedoms as individual negative rights insulating the media against state intervention no matter how well-intentioned. These questions should now be revisited. The setting for such considerations, meanwhile, has changed considerably. For one thing, the problem Professor Foster identified in the 1990s was the executive branch’s heavyhanded intervention into efforts to balance collective and individual free speech rights. In the past five years, however, the Putin administration, while from time to time engaging in acts against certain media organizations and individual journalists, has rarely pursued an activist approach through public articulation of defined information theories.67 66

Foster, op.cit. note 15, 276-278 and 289-291. As Professor Foster’s article illustrates, nearly all of the discourse on press freedoms in the 1990s took place outside the legal community, among journalists and within the El’tsin administration.

67

The “Information Security Doctrine” (Doktrina informatsionnoi bezopasnosti Rossiiskoi Federatsii),, written by the President’s Security Council and signed by President Putin on 9 September 2000, was one effort to set forth a policy pronouncement in this field.

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Among the various approaches suggested by Professor Foster, those engaged in a free press dialogue in 2005 perhaps should re-consider an off-shoot of one of the theories (which she called the “informed citizenry” theory) that she discounted. Briefly put, there are two steps toward such a “public dimension” theory, grounded in the public’s right to receive information and ideas and its value for democratic governance. The first step is expansion of Article 29’s scope to include recognition of the constitutional implications of “incidental (or indirect) impacts” on the exercise of Article 29 rights, such as in defamation law and the NTV/TV-6 ownership cases. Put another way, this step calls for abandonment of the notion that only a direct targeting of the core protections regarding formal censorship or ownership plurality will implicate the exercise of Article 29 rights. This approach to human rights adjudication is not foreign to the Constitutional Court, for example: in one of its earliest cases, the Court recognized that local fee requirements imposed on applicants for residence permits posed an incidental impact on the exercise of the constitutional rights of freedom of movement and choice of residence under Article 27(1) of the Constitution.68 The second step toward development of a public dimension theory involves the elevation of the weight of the free press interest due to its “public dimension” aspects. In contrast, significant weight might not be forthcoming if only negative individual rights are recognized. Thus, under a “public dimension” theory, as distinct from the state interventionist theories identified by Professor Foster, a court might recognize at least a weighty constitutional dimension in cases such as defamation, the ownership cases, freedom of information, and broadcast licensing. This would not pre-determine the outcome in such cases, but it would revise the methodology.69 However, Putin’s administration has not indicated any interest in the development and publication of further refinements or applications of the doctrine. Indeed, in a 2001 news conference, President Putin stated that “not everything [in the doctrine] was successful”. ITAR-TASS News Agency, “Putin admits drawbacks of information security doctrine”,, 18 July 2001. The Doctrine is available at . >.. An English translation is available at . http://www.medialaw.ru/indep/en/d2-4.htm>. >.. 68

Residency Permit case, VKS RF (1996) 1996)) No.2, 2,, 50-51.

69

Some of the judicial decisions described in this chapter reflect explicit recognition of the dual nature of free press rights. See, for example, the Constitutional Court’s 30 October 2003 decision (op.cit. ( note 42 and accompanying text), and the September 2004 decision of the Arkhangel’sk Oblast’ Court (op.cit. note 50). Upholding a lower court’s dismissal of a defamation lawsuit against a local newspaper, the Arkhangel’sk Court stated that: “Freedom of speech, in particular freedom of political discussion, forms the basis of the democratic system, and the press plays a most important role

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Conclusion Operating within their zone of autonomy, the courts perhaps are on the threshold of developing constitutional press protections in Russia. These developments have occurred without apparent interference from extrajudicial forces, suggesting either that the regime approves or that they are so innocuous that they do not warrant the Kremlin’s attention. Particularly if the latter is the case, the question must be asked whether the development of constitutional news media law matters in Putin’s Russia. For the long term, I believe that it does, not only as a source of protection to news media activity, but also as a form of judicial empowerment that would be essential to make such protection effective. In turn, the development of the judiciary as an effective institutional counterweight is a necessary component of a durable environment for freedom of the press in Russia. To some degree, such judicial empowerment may hinge on development of a constitutional news media law jurisprudence and practice that would serve as a bulwark against a static status of the zone of autonomy, or its diminution. Obviously, everything depends here on the approach of Russia’s ruling circles. If the Kremlin leadership were to engage broad-scale efforts to reduce or eliminate the judiciary’s zone of autonomy in the field of news media law, the development of constitutional jurisprudence would doubtless be ineffective and of little practical consequence. Certainly, the Putin administration could be expected to oppose any legislative or judicial dismantling of the existing broadcasting structure, where the state either owns or controls the national broadcasting networks, and to continue to foster an environment where reporting of conditions in the Caucasus is tightly controlled. However, this essay assumes that the general governance style will continue. If so, there appears to be room for sustained, patient development of Article 29. As the recent developments in defamation law demonstrate, opportunities for constitutional development are not precluded in this political environment.

Epilogue In this author’s opinion, the above discussion and conclusions remain valid in mid-June 2006. Viewed from the perspective of the mass media sphere in general, manifestations of the overall restrictive nature of press freedoms continue.70 Meanwhile, operating within their zone of autonomy, in democratic society. It is the duty of the press to communicate information in the public interest.” 70

For two recent assessments, both quite pessimistic, of the status of press freedoms

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the branches of the Russian judiciary continue to address issues related to the gathering and mass dissemination of information and ideas and in so doing at times to consider them in light of constitutional norms. In the summer of 2005, the litigation of the Al’fa Bank v. Kommersant” dispute in the Arbitrazh courts ended without recognition of a constitutional or international law dimension. The defendant newspaper petitioned the High Arbitrazh Court of the Russian Federation in June, 2005, seeking supervisory review by that Court’s Presidium of the lower court legal determinations. In a 21 July 2005 Opredelenie, a three-judge panel of the High Arbitrazh Court denied the petition, ruling that such review was not warranted under the criteria of Article 304 of the Arbitrazh Procedure Code.71 On 27 September 2005, Kommersant” filed an application at the European Court of Human Rights, claiming violation of its rights under the European Convention on Human Rights, including the free expression provisions in Article 10. As of mid-June 2006, the Strasbourg Court has not ruled on the admissibility of the application. On the other hand, Article 29 received considerable attention in a 14 November 2005 decision of the Constitutional Court.72 Although it did not involve a mass media entity or representative, the decision had significant implications for freedom of expression generally. In the decision, the Court ruled that provisions in the laws on basic voting rights and election of deputies to the State Duma, permitting only the in Russia, see Andrei Richter, “Opportunities Lost”, The Moscow Times, 5 June 2006, 8; and Masha Lipman, “Russia’s Lid on the Media”, The Washington Post, 15 June 2006, A27. 71

(1) (2)

(3)

72

A copy of the judgment is in the possession of the author, who is grateful to Dr. Andrei Richter, Director of the Moscow Media Law and Policy Institute, for supplying it to him. Art.304 (“Grounds for revision or vacating in supervisory review of judicial acts that have entered into legal force”) states in full: “Judicial acts of the Arbitrazh courts that have entered into legal force are subject to revision or vacating if, pursuant to supervisory review, the Presidium of the High Arbitrazh Court of the Russian Federation determines that the judicial act in question: violates uniformity in the Arbitrazh courts’ interpretation and application of legal norms; violates rights and freedoms of the individual and citizen in conformity with generally recognized principles and norms of international law and international agreements of the Russian Federation; or violates rights and legal interests of an un-defined class of persons or other public interests.” (Translation by the author.) Of particular note is the text of Art.304(2), which was added as an amendment to Article 304 in March, 2005. See Federal Law No.25-FZ, SZ RF (2005) No.14 item 1210 (4 April 2005). The amendment became effective on 5 April 2005. Protest Voting case, VKS RF (2006) No.1, 3.

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campaign funds of candidates and parties to pay for campaign advertising, were unconstitutional because they did not allow comparable use of campaign funds for an “against all candidates” ballot option. The Court, in a 6-3 vote, concluded that the provisions in question were an excessive interference with the exercise of freedom of speech under Article 29. The Court’s opinion, a concurring opinion by Justice Gadzhiev, and a dissenting opinion by Justice Bondar’ (joined by Justices Krasavchikova and Mavrin) combine to present a detailed debate on the extent to which, if at all, the statutory regulation of dissemination of campaign literature on behalf of a certain ballot position implicates the constitutional free speech protections. On the question of access to judicial proceedings and records, the Plenum of the Russian Federation Supreme Court on 9 March 2006, approved the submission to the State Duma of draft legislation “securing the rights of citizens and organizations to information about the judicial activity of the courts of general jurisdiction”.73 Although the draft does not refer expressly to the Constitution, it does state in Article 1 that the proposed legislation regulates the securing of the “informational openness of judicial proceedings and the rights of citizens and organizations” to receive information about the activity of the courts of general jurisdiction.74

73

The Plenum’s Decree, entitled “O vnesenii v Gosudarstvennuiu Dumu Federal’nogo Sobraniia Rossiiskoi Federatsii proekta federal’nogo zakona ‘Ob obespechenii prav grazhdan i organizatsii na informatsiiu o sudebnoi deiatel’nosti sudov obshchei iurisdiktsii v Rossiiskoi Federatsii’”, is available at .

74

In this regard, in addition to the right to receive information in Art.29(4), Art.123(1) of the Constitution states that: “Proceedings in all courts shall be open to the public. The hearings closed to the public may only be allowed in cases provided for by federal law.” (Translation from Burnham et al., op.cit. note 59, 668.)

The Procuracy: Constitutional Questions Deferred Gordon B. Smith The status of the Procuracy in the Soviet/Russian legal system assumed a central place in legal reform debates during the late 1980s and early 1990s. Historically, the Procuracy enjoyed broad-ranging powers, which had long been criticized by legal reformers. Prior to the enactment of the Russian Constitution in 1993, a new Law on the Procuracy of the Russian Federation was approved in January 1992. It preserved the Procuracy as a unified, centralized institution with extensive prosecutorial and supervisory powers to ensure compliance with laws. The most important substantive change introduced by the 1992 law was eliminating the Procuracy’s supervision of the activities of the courts. With the growing demand for judicial independence, the courts were placed under the Ministry of Justice. During the process of drafting the 1993 Constitution, the powers of the Procuracy were again challenged by some who felt that as long as the Procuracy dominated the legal system, the courts would never emerge as strong and independent entities. In particular, proposals were floated to limit the Procuracy to prosecuting criminal cases and coordinating anti-crime measures. The 1993 Constitution avoided the issue in Article 129 by deferring the question: “The power, organization of work, and the procedure regulating the activities of the Prosecutor’s Office of the Russian Federation shall be established by federal law.” Almost immediately after enacting the Constitution, criticism of the Procuracy’s powers resumed, this time focusing on its role in supervising criminal investigations. In 1994, the State Duma authorized creation of a special state agency to conduct criminal investigations, but it failed to provide necessary funding to establish the new organization. In 1995 work began on a revised Law on the Procuracy of the Russian Federation. As in previous debates, the issues that drew the most ardent discussion on both sides related to the Procuracy’s powers of general supervision, supervision over normative acts passed by local and regional authorities, the Procuracy’s role in enforcement of court decisions, and its powers to intervene in civil and commercial cases. This chapter reviews the legal landscape relating to procuratorial powers in these areas since 1993 and concludes that many of the fundamental questions relating to the Procuracy’s powers remain unresolved today.

Gordon B. Smith and Robert Sharlet, eds. Russia and its Constitution: Promise and Political Reality 105-122 Copyright Koninklijke Brill NV, Leiden, 2008

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The Continuing Fight over General Supervision General supervision, which dates back to 1955, refers to the Procuracy’s responsibility to supervise the legality of administrative officials, agencies, and citizens; demand official documents, records, and information concerning possible violations of laws; and issue protests, representations, and proposals to rectify illegal actions. When a procurator encounters a ministerial decree or other “normative act”, action, or decision of an executive body that violates established laws, the Procuracy files a protest, citing reasons for the protest and demanding that the illegal act be rescinded or amended. In some cases, the Procuracy has the power to suspend implementation of the act or decision, pending consideration of the protest. If the agency disagrees with the procurator’s position and rejects the protest, the procurator can refer the matter to a procurator at a higher level. Procuratorial protests are successful in reversing illegal administrative actions in more than ninety-six percent of all cases in the first instance.1 Procuratorial representations are issued when prosecutors encounter numerous acts that they consider to be illegal or improperly handled by administrative officials. Because representations are not issued to a particular party, they do not require compliance or any particular response; rather, they serve merely as a warning to administrative officials. Procuratorial proposals are non-binding suggestions to administrative agencies and officials and are not usually issued in reaction to legal violations. As the work proceeded on drafting a new constitution, liberal reformers proposed weakening the Procuracy by abolishing its general supervisory powers, among others responsibilities and restricting it to the prosecution of cases in court and coordinating the fight against crime. The newly-appointed Procurator-General Alexei Kazannik mounted a strenuous effort to preserve the Procuracy’s status in various drafts of a new constitution that were circulating in the capital. When the final presidential draft of the constitution appeared to limit the Procuracy’s power to prosecuting criminals, Kazannik lobbied El’tsin and within one day the section delineating the Procuracy’s powers was dropped. Kazannik argued successfully in favor of leaving out any listing of procuratorial powers from Article 129, which in effect meant that the Procuracy would continue to be governed by the 1992 Law on the Procuracy, which reaffirmed the Procuracy’s power of general supervision.2 1

This figure is based on an analysis of protests during the period 1955-1974; see Gordon B. Smith, The Soviet Procuracy and the Supervision of Administration (Sijthoff & Noordhoff, Alphen aan den Rijn, The Netherlands, 1978), 88.

2

This account came from a consultation with Professor Alexander M. Larin, Institute of State and Law, Moscow, 25 November 1993.

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A new Law on the Procuracy of the Russian Federation, enacted in 1995, reinforced the status quo by reaffirming the Procuracy’s responsibility for supervising the implementation of laws by government bodies and officials and investigating citizens’ complaints. Article 23 of the Law on the Procuracy appears to limit procuratorial protests to supervision of “legal acts” of governmental bodies. However, Article 27 assigns to the Procuracy responsibility for investigating statements, complaints, or any reports of violations of the rights and freedoms of individuals and citizens and directs prosecutors to pursue rectification through the appropriate channels, whether criminal, administrative, civil or commercial (arbitrazh) ( tribunals. Article 28 also recognizes the right of prosecutors to issue protests directly to the body or official responsible for an act that violates the rights of citizens and other individuals.3 The retention of the “general supervision” powers of the Procuracy means that citizens who encounter acts of government officials, impinging on their interests or rights, have two alternative courses of relief: to the courts or lodging complaints with the Procuracy. The Procuracy looks into more than one million such complaints each year.4 However, many of these are found to be groundless or are handled informally. In 2003, the Procuracy reported issuing 147,722 formal protests, of which 142,089 (or 96.2%) were satisfied.5 As a result of procuratorial protests 135,437 improper normative acts or regulations were amended or annulled.6 The development of a fairer and more accessible judicial system for handling citizen’s grievances arising out of actions of state administration may eventually reduce the popularity for general supervision by the Procuracy. However, citizens and prosecutors themselves are quick to point out that procuratorial handling of citizens’ complaints is quicker, cheaper and more efficacious than pursuing legal action through the courts. For many poor, less-educated, or elderly citizens, the prospects of securing legal representation to pursue a court case is prohibitively daunting, whereas calling, sending a letter, or visiting the prosecutor’s office to lodge a complaint is both familiar and convenient. Speaking to a gathering of prosecutors in 2002, President Putin acknowledged the popularity and effectiveness of general supervision: “People go to the prosecutor’s office 3

Zakon o prokurature Rossiiskoi Federatsiia (Os’-89, Moscow, 2003), 16.

4

In 2003, the Procuracy pursued 1,145,274 violations under its powers of general supervision.

5

Reported in T. Reshetnikova, “Akty prokurorskogo nadzora”, Zakonnost’ (2004) No.8, 54.

6

Ibid.

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for redress of grievances much more often than they go to the courts, and they get quick assistance there free of charge.”7 It is the popularity of the Procuracy’s general supervision that so rankles legal reformers who champion the idea of judicial review of citizens’ grievances. A new Code of the Russian Federation on Administrative Violations went into effect on 1 July 2002.8 Rather than diminish the role of the Procuracy, the new Code expands and codifies it. The new legislation enumerates a wide range of administrative bodies—legislative and executive bodies, commissions, agencies, and officials—who are empowered to impose administrative sanctions. It charges the regular courts with hearing cases of citizens’ grievances arising out of administrative regulations and imposition of fines or other sanctions and it assigns to the Procuracy the responsibility to oversee the legal functioning of bodies possessing the power to impose administrative sanctions.9 In addition, procurators are obliged to participate in court hearings if, in their view the case involves potential infringement of the rights or freedoms of individuals or citizens, infringement of the public interest or the interests of the State, or administrative normative acts that contradict federal laws or the Constitution. According to the procurator of Vladimir Oblast’, the focus of procuratorial attention has shifted from obtaining compliance with administrative regulations to the proper legal functioning of agencies empowered to impose administrative sanctions, especially the police.10 In Saint Petersburg, a city of 4.6 million, in 2000 the police issued more than 1.5 million administrative fines and other sanctions.11 Similarly, in Moscow one-third of all illegally imposed administrative sanctions are imposed by various branches of the police.12 A. Kazarina, a department head in the Procuracy’s institute for training procuratorial officials, observes that procuratorial supervision over administrative agencies imposing administrative sanctions “is especially important, when, as the world community recognizes, the extent of corruption of the state apparatus in Russia exceeds all limits, and legal nihilism has become a commonplace phenomenon”..13 7

Ibid.

8

Kodeks Rossiiskoi Federatsii ob administrativnykh pravonarusheniiakh (Lex Star, St. Petersburg, 2002).

9

Ibid., Art.25(11), (11), 11), at 198.

10

A. Kazarina, “Obshchii nadzor: vosmozhnosti i predely”, Zakonnost’ (2003) No.7, 9.

11

Reported in V. Rokhlin and A. Stukanov, “Pravozashchitnaia deiatel’nost’ prokurora po delam ob administrativnykh pravonarusheniiakh”, Zakonnost’ (2003) No.7, 10.

12

Ibid.

13

Kazarina, op. p. cit. note 10,, 9.

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The Constitutional Court of the Russian Federation also indirectly affirmed the Procuracy’s power of general supervision in a decision of 18 February 2000. In that case, a citizen in Samara complained to the district procurator when the local administration demolished the building in which he owned an apartment. The district procurator investigated the matter under his powers of general supervision and found the complaint groundless. When the citizen requested to inspect the documents of the prosecutor’s investigation, the request was denied. The citizen then pursued the matter through the courts all the way to the Supreme Court of the Russian Federation, but without satisfaction. Finally, the case was heard by the RF Constitutional Court which found in his favor, affirming the right of citizens to gain access to information. At no point in this stream of litigation was the legitimacy of the Procuracy’s initial investigation of the citizen’s complaint challenged by the court. The Procuracy’s powers of general supervision, thus, remain intact today. Citizens wishing to pursue grievances arising out of the actions or decisions of administrative officials may challenge those actions in court and they may also choose to bring their grievances to prosecutors who are empowered to investigate and pursue those matters directly with the responsible administrative officials.

Procuratorial Supervision of Normative Acts A second area of dispute today is the constitutionality of procuratorial supervision over the legality of regulations and other normative acts passed by local and regional authorities. The 1995 Law on the Procuracy provides for “supervision over the implementation of laws by ministries, departments, and their officials”.. But the question that is being hotly debated today is whether prosecutors should have the right to issue protests against laws, regulations and other normative acts that are in violation of the Constitution or federal legislation or whether this is usurping the proper function of the courts. In his televised address to the nation upon being named Acting President following the resignation of Boris El’tsin on 31 December 1999, Vladimir Putin observed: “Russia currently has more than one thousand federal laws and several thousand laws of the republics, territories, regions and autonomous areas. Not all of them correspond to the above criterion [of constitutionality]. If the justice ministry, the prosecutor’s office and the judiciary continue to be as slow in dealing with this matter as they are today, the mass of questionable or simply unconstitutional laws may become critical legally and politically. The constitutional safety of the state,

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Gordon B. Smith the federal center’s capabilities, the country’s manageability and Russia’s integrity would then be in jeopardy.”14

The President of the Constitutional Court of the Republic of Buriatiia reported that, in 1999 alone, procuratorial protests resulted in the nullification of more than 800 illegal normative acts.15 Similarly, in 2001, the prosecutor’s office in Riazan’ undertook 130 investigations into illegal normative acts and, in all cases, the acts were amended or nullified.16 In June 2000, Russian Prosecutor General Vladimir Ustinov gave regional prosecutors one month to bring regional laws and regulations into conformity with federal legislation. He noted that electoral legislation was significantly out of line with federal law in the entire North Caucasus region, citing in particular Ingushetiia, Kabardino-Balkariia, and Karachaevo-Cherkessiia. He estimated that one-third of Russia’s regional laws and regulations contradicted the Constitution and/or federal legislation.17 Ustinov’s call for procuratorial activism in scrutinizing local and regional legislation was formalized in two instructions (ukazaniia) issued by the Procurator-General on 1 June 2000.18 In November 2000, it was reported that a review of normative acts issued by state organs and subjects of the Federation identified more than 3,000 illegal acts, of which 2,500 were nullified or amended in response to procuratorial protests.19 A report, issued at the end of 2000 by the Procuracy, noted that the campaign to correct regional legislation resulted in overturning some 52,000 illegal acts.20 Speaking to a conference of prosecutors in January 2001, President Putin reiterated his call for prosecutors to scrutinize the legality of normative acts of various executive and legislative bodies to insure consistency with the Constitution and federal laws. He admonished prosecutors to review “the legal content and legitimacy of regional laws (including those enacted by agencies of local self-government) and ministry-level instruc14

Vladimir Putin, “Russia at the Turn of the Millennium”,, 31 December 1999, available at the website of the Government of the Russian Federation .

15

K. Budaev, “Prokuratura i konstitutsionnye, ustavnye sudy sub”ektov RF”, Zakonnost’ (2000) No. 9, 2-3.

16

A. Solov’ev, “Reforma prokuratury”, Zakonnost’ (2002) No.1, 36.

17

See Il’ia Maksakov, “Labirinty federalisma”, Nezavisimaia gazeta, 3 July 2001, 9 and 11 (reproduced at ).

18

Reported in B. Bessarabov and A. Rybchinskii, “Prokuratura Rossii: Federalizm i konstitutsionnaia zakonnost’”,, Zakonnost’ (2001) No.7, 2-5..

19

Ibid.

20

Cited by Anna Zakatnova in “Genprokuratura nakanune reform”,, Nezavisimaia gazeta, 12 January 2001, 01, 3 (reproduced at ).

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tions”.21 Putin reported that sixty constitutions and charters of subjects of the federation and 2,312 normative acts were brought into line with the Constitution as a result of procuratorial protests. “It is simply incredible that we can continue to exist in such conditions”, he remarked.22 The Procuracy reported 5,421 violations of law and 1,856 illegal normative acts of legislative bodies of subjects of the Federation, and 12,019 violations and 2,408 illegal normative acts of executive agencies in 2001.23 Initially, many of the Procuracy’s protests of illegal normative acts of the subjects of the Federation related to elections or to encroachments on matters of federal jurisdiction identified in Article 71 of the Constitution. In recent years, Sokolova notes that more and more illegal regulatory acts are issued by state agencies and bodies in the sphere of economic activity. In particular, she points to an especially acute problem: subjects of the Federation creating “off-budget” funds.24 Republic, regional, and local officials often characterize procuratorial supervision over their legislative and administrative acts as procuratorial “meddling” (vmeshatel’stvo). Judicial reformers wishing to limit the scope of the Procuracy also denounce “procuratorial overreach”.. They argue that the Procuracy is not a court; it is not empowered to interpret the constitutionality or legality of such normative acts.25 Of the three branches of government—legislative, executive, and judicial—they argue that that the Procuracy has neither the power to make laws nor to adjudicate legal disputes, thus, they conclude, it belongs to the executive branch and should be subordinated to the Ministry of Justice. Procurators counter by observing that Article 129 of the Constitution, which is the only place where the Procuracy is mentioned in the 1993 Constitution, appears in Chapter 7 entitled, “Judicial Power”.. Furthermore, they argue that the Procuracy has a long history of not only supervising the proper enforcement of laws but, also, of issuing protests against laws and other normative acts that it considers unconstitutional or inconsistent with federal laws. The scholarly jurists most critical of “procuratorial meddling” overstate the clear separation of functions in Western legal systems, where, in fact, attorneys general routinely issue rulings and advisory opinions on normative acts that they consider to be inconsistent with state or federal 21

Ibid.

22

Bessarabov and Rybchinskii, op.cit. note 18.

23

Reported in I. Sokolova, “Otsenka sootvetstviia regional’nykh pravovykh aktov Konstitutsii RF”, Zakonnost’ (2002) No.8, 14-17.

24

Ibid., 16.

25

For a summary of the debate, see G. Chuglazov, “Prokuratura v sisteme organov gosudarstvennoi vlasti”, Zakonnost’ (2003) No.2, 30-32.

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law.26 Such rulings are not binding, nor are the protests of a prosecutor in the Russian Federation binding. But in both cases, governmental bodies generally defer to opinions of an attorney general and to protests of a Russian prosecutor. Some Russian prosecutors have advocated amendments to the Law on the Procuracy and the Constitution giving prosecutors the right to appeal to a court when its protests issued under its general supervision authority or in protesting laws and other normative acts that are unconstitutional or inconsistent with federal laws are ignored.27 In some jurisdictions, prosecutors are permitted to appeal to the courts. For example, the President of the Constitutional Court of the Republic of Buriatiia notes that, during the period 1995-1999, the Constitutional Court of Buriatiia handled twenty-one appeals, of which seven came from the Procurator of Buriatiia. He noted that, unlike the Constitutional Court, the Procuracy has its own system of local organs for monitoring potential violations of constitutional norms and is thus better positioned to intervene.28 In 2000 and 2003, the Constitutional Court of the Russian Federation clarified the Procuracy’s ability to petition the courts to nullify or modify laws of subjects of the Federation that the Procuracy considers to be inconsistent with federal law and the Constitution. In the first case, the prosecutor in Kemerovo Oblast’ petitioned the oblast’ court to invalidate a law on price policy which had been adopted by Kemerovo regional authorities. The court agreed with the Procuracy; however, the RF Constitutional Court reversed the decision, noting that the Constitution grants jurisdiction in these matters only to itself. The 2003 case arose when prosecutors in Tatarstan and Bashkortostan petitioned courts of general jurisdiction challenging various aspects of their constitutions or charters that they believed contravened the RF Constitution. In both cases, the republic courts sided with the prosecutors. Authorities in Tatarstan and Bashkortostan then directed an inquiry to the RF Constitutional Court which issued a decree on 18 July 2003 asserting its sole jurisdiction in all such cases. These decisions will require amendments to both the Code of Civil Procedure (Arts.251 and 253) and the Law on the Procuracy (Art.26), which give the Procuracy the power to make recourse to a court (e.g., a court of general jurisdiction) to challenge laws, charters, or constitutions that it deems to contravene the Constitution of the Russian Federation or 26

A Russian analysis of the role of attorneys general in the US appears in M. Peshkov, “Attorneiskaia sluzhba v rassledovanie prestuplenii v SShA”, Zakonnost’ (2004) No.5, 52-56.

27

For example, see K. Amirbekov, “Obshchii nadzor v usoviiakh reformirovaniia sudoproizvodstva”,, Zakonnost’ (2003) 2003)) No.9, 2-6.

28

Budaev, op.cit. note 15.

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federal laws. However, it is notable that neither case invalidates the role of prosecutors in making challenges; they simply clarify which court has jurisdiction to make such determinations (i.e., the Constitutional Court of the Russian Federation). Some opponents of procuratorial supervision have suggested that Article 35 of the Law on the Procuracy restricts procuratorial intervention to “concrete cases” where the laws or decisions being challenged violate the constitutional rights and freedoms of citizens. The aforementioned decree of the Constitutional Court of the Russian Federation in the Tatarstan and Bashkortostan cases specifically recognizes the right of prosecutors to protest against legal acts “without reference to their application in a concrete case”; indeed, it authorizes prospective protests to prevent violations of citizens’ rights before they occur. Not only have decisions of the Constitutional Court reaffirmed or broadened the right of prosecutors to protest normative acts, laws, and actions of local and regional officials, prosecutors are also being urged to play a much more active role at all levels in the drafting of legislation to insure conformity with federal laws and the Constitution. Although the Constitution of the Russian Federation does not give the Procurator-General or his subordinates the right of legislative initiative, the constitutions and charters of many of the subjects of the Federation do grant this power to prosecutors at those levels and it is widely used.29

Procuratorial Enforcement of Constitutional Court Decisions Closely related to the power of the Procuracy to issue protests against normative acts that contradict the Constitution and federal laws, is the controversy over whether the Procuracy is empowered (or should be empowered) to enforce Constitutional Court decisions. Articles 1 and 21 of the Law on the Procuracy charge the Procuracy with overseeing the “observance [sobliudeniie] of the Constitution” by governmental ministries, agencies, officials, and enterprises.30 But what constitutes “observance”? Neither the Constitution nor the Law on the Procuracy explicitly state that the Procuracy has the responsibility to enforce decisions of the Constitutional Court. Procuratorial scrutiny of compliance with the Court’s decisions is undertaken not as an independent actor, but under the guise of the Procuracy’s charge to review the conformity of normative 29

E. Berkovich, “Prokuror i pravotvorcheskaia deiatel’nost’ mestnogo samoupravleniia”, Zakonnost’ (2003) No.9, 12.

30

References to the Constitutional Court were added by amendments adopted on 10 February 1999, No.19-F3.

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acts of regional bodies with the Constitution and federal laws of the Russian Federation.31 As a practical matter, the Constitutional Court does not have the means to know when regional bodies or officials take actions or pass normative acts that contradict the Constitution or federal laws unless an injured party challenges the act in court, or prosecutors at the local, regional or federal levels bring it to the Court’s attention. When such a discovery has been made the Court will normally notify the responsible official or body, giving them six months to take corrective action. The most common examples cited of non-compliance with the Court’s decisions arise out of the subjects of the Federation passing legislation, rules or taking other action that contradict the Constitution or encroach on the powers of the federal government. In the 1990s, President El’tsin’s admonition to the subjects of the Federation to “take as much uch sovereignty as you can swallow” was taken to heart by many regional officials. Local, regional and republic governmental bodies passed literally thousands of new laws, regulations and rules, often disregarding advisory opinions of federal officials and prosecutors in their own jurisdictions. Taking corrective action to bring acts at the local or regional levels into conformity with the Constitution can be a slow and factious process, however. What, then, are the consequences for non-compliance with the Court’s order to amend unconstitutional acts? The Constitutional Court, in a decision of 19 April 2001,, No. 65-O, declared that failure to abide by the decisions of the court by government bodies and officials can lead to application of criminal sanctions under Article 315 of the Criminal Code as well as administrative sanctions imposed by the President or other bodies. Criminal sanctions are rarely invoked and normally only in cases of willful disregard (zlostnost’). Willful disregard is interpreted as failure to comply after a written warning from the court is received.32 However, the Constitutional Court lacks the staff to monitor compliance with its decisions, especially in the far-flung regions of the Russian Federation. Consequently, the court relies on the Procuracy to bring such cases to the court’s attention by issuing a representation (predstavlenie). For obvious reasons, invoking criminal sanctions under Article 315 is problematic, especially when the offending normative act is the collective product of a parliamentary body. Thus, the issuance of procuratorial protests or representations has become the mostly commonly used vehicle for seeking compliance with the decisions of the Constitutional Court. Article 23 of the Law on the 31

See E. Chumanov, “Osnovaniia konstitutsionno-pravovoi otvetstvennosti organov gosudarstvennoi vlasti sub”ektov RF”,, Zakonnost’ (2004) 2004)) No.7,, 24-26.

32

A.. Chun’kov, “Nadzor za ispolneniem reshenii konstitutsionnogo suda RF—delo prokurora”,, Zakonnost’ (2004) 2004)) No.4, 11-13.

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Procuracy specifies that a procuratorial protest must be reviewed and a written response delivered to the Procuracy within ten days of the issuance of the protest, in the case of officials or agencies. Protests issued against the actions of a legislative body must be reviewed at the next scheduled session of that body; however, in exceptional circumstances the Procuracy is empowered to shorten the review period. If the official or legislative body fails to take satisfactory action, the only recourse of the prosecutor is to refer the protest to the superior official or body. However, procuratorial protests appear to carry a considerable amount of political clout and most often result in compliance. Representations of the prosecutor mandate the urgent review by the recipient, whether it is an official or a legislative body. The recipient has one month to take corrective action and report in writing to the Procuracy. Like the protest, the representation carries a presumption of compliance. In cases where the representation arises from actions of the executive or legislative bodies of the Russian Federation, the Procurator-General informs the President. In addition, the Procurator-General regularly reports statistics on protests and representations directed against unconstitutional acts of subjects of the Federation to the President. A recent case arising in Chitinsk Oblast’ illustrates the dilemmas confronting the Constitutional Court and the Procuracy as they seek to enforce the Court’s decisions. A. Chun’kov, a prosecutor in the Siberian federal district, reports that the Chitinsk Oblast’ Duma received a representation of the prosecutor on the obligation to carry out in a timely manner the decision of the Constitutional Court of the Russian Federation of 15 January 2002, No. 1-P and of 2 April 2002, No. 7-P, concerning unconstitutional electoral regulations. On 3 September 2002, the Chitinsk Oblast’ court recognized the validity of the prosecutors’ case, yet delayed in taking corrective action. They cited as support Article 87 of the Law on the Federal Constitutional Court, which establishes a six-month period after the court’s decision for subordinate governing bodies to bring unconstitutional normative acts into compliance. The he Chitinsk case establishes the right and obligation of the Procuracy to intervene by issuing protests or representations against unconstitutional normative acts any time after the Constitutional Court announces its decision, not waiting for the six-month period to expire.33 Although some legal scholars chafe at ceding to the Procuracy the power to enforce the decisions of the Constitutional Court, no viable alternatives have been found to overcoming the willful disregard or stalling tactics of regional bodies and officials. The Procuracy will continue to undertake this essential function for the foreseeable future and rely on 33

Ibid.

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the political power of the Executive to insure enforcement when protests and representations fail to win compliance.

The Prosecutor’s Role in Civil and Commercial Cases The Procuracy has long been empowered to intervene at any stage of civil cases to protect rotect the interests of the State or the public.34 A new Code of Civil Procedure, enacted in late 2002, limits the Procuracy’s role to protecting the interests of the Russian Federation, its subjects, and municipal bodies and the rights and freedoms and legal interests of citizens who because of health, age, disability or other factors cannot bring a case in court themselves. According to the new Code, the prosecutor cannot intervene on his own initiative at any stage in the process of any civil case. He may participate only in certain types of civil cases, specified by the Code and other federal laws.35 They include the hiring, firing and transfer of workers; compensation for damages to life and health; matters pertaining to electoral or rule-making procedures; adoptions and other matters pertaining to child protection; declaration of missing persons to be dead; restriction of the rights of people declared to be incompetent; restriction of the rights of juveniles ages fourteen to eighteen to independently manage their own financial affairs, and involuntary hospitalization of a citizen in a psychiatric institution. It is obvious from this listing that prosecutors participating in such civil cases are acting in a public capacity, that is, in defense of the public’s interest. However, the range of cases in which prosecutors may invoke the State’s or public interest is greatly narrowed, compared to the previous RSFSR Code of Civil Procedure which granted the Procuracy almost unlimited authority to involve itself in civil cases. The Procuracy’s authority in cassation appeals has also been changed. The new Code of Civil Procedure declares that a procurator is only eligible to submit an appeal petition in those cases in which s/he took part in the trial of first instance. Article 35 of the Law on the Procuracy assigns to prosecutors the right to petition the court, including arbitrazh (commercial) courts, in order to protect the rights and legally recognized interests of citizens or the State. Since President Putin assumed office on 1 January 2000, the practice of procuratorial involvement in commercial affairs has been quite inconsistent. On the one hand, there have been high-profile searches and prosecutions involving officials of Media-Most holding company, the ORT television network, and Yukos Oil Company. On the other hand, President Putin was been quite outspoken in admonishing law enforce34

See Art.41, RSFSR Code of Civil Procedure (1964 as amended).

35

See Art.45, RF Code of Civil Procedure (2002 as amended).

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ment agencies to avoid interfering in the activities of private enterprises without solid legal grounds. In the Media-Most and ORT cases masked FSB, Internal Affairs, and Tax Police agents armed with assault weapons sealed off buildings and confiscated documents, computers, and even cell phones of employees.36 The Media-Most search was authorized with a warrant signed by a senior procuratorial investigator and approved by Deputy Procurator-General Sabir Kekhlerov.37 (Since the adoption of the new Code of Criminal Procedure in 2003, all search warrants must be approved by judges, not the Procuracy.) Procurator-General Ustinov was openly critical of the December 2000 search at ORT, which involved special forces from the FSB and the Ministry of Internal Affairs.38 Ustinov ordered an internal investigation and dismissed the investigator in charge of the case. According to Leonid Trophin, the chief of the Procuracy’s information and public relations office: “There is nothing unusual about opening a criminal case and undertaking investigative actions, but the methods used in the investigation must be correct and appropriate. In this particular instance there was absolutely no need to use masked security men armed with automatic weapons.”39 It is conceivable that the public outcry from the Media-Most and ORT investigations convinced President Putin that law enforcement agencies needed to be reined in. Addressing a conference of prosecutors in January 2001, Putin stressed the role of the Procuracy in protecting private and state property and the rights of entrepreneurs, adding that “the development of the Russian economy is going to depend on our prosecutors and courts”..40 Kommersant” reported, in late 2003, that the President supported stripping the Ministry of Internal Affairs and the Ministry for Emergency Situations of the power to close various types of commercial businesses without a court order. Similarly, the State Construction Committee and the Ministry of Labor would no longer be able to close production facilities for violations of construction or labor laws, until the violations are proven in court.41 In his state-of-the-nation address of 24 April 2005, the President denounced law enforcement and tax officers 36

See the report by Dmitrii Pavlov and Sergei Topol in Kommersant”, 12 May 2000, 1 and 3.

37

Ibid.

38

See the report of Oleg Stulov in Kommersant”, 7 December 2000, 3.

39

Ibid.

40

See Zakatnova, op.cit. note 20, 3.

41

See the report by Konstantin Smirnov in Kommersant”, 15 December 2003, 15.

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that “terrorize business”..42 He added: “Having sent the law enforcement agencies in to combat crime, including tax crime, we sometimes encounter crude violations of businessmen’s rights and at times open racketeering by state structures.”43 The demarcation of cases in which the Procuracy becomes involved in commercial affairs today is being established as much de facto as de jure. It is clear that the Procuracy is fully empowered to enter cases of criminal wrongdoing, including criminal actions of private commercial enterprises. It is also clear that the Procuracy’s jurisdiction extends to any non-criminal, commercial matter involving state-owned enterprises or contractual matters between governmental entities and private enterprises. Given the pervasive practice of governments continuing to hold large shares of many commercial “privatized” companies, the public/private line is fuzzy and gives the Procuracy entrée to a wide range of commercial transactions. Finally, the Procuracy’s power to enter cases to protect “the public interest” remains ill-defined. In these cases, the procurator assumes the role of a public plaintiff representing societal interests, for example in environmental cases.44 However, without greater clarification in the Constitution or the Law on the Procuracy,, the meaning of the term “the public interest” is both vague and expansive.

Federal Districts and Other Internal Rivalries Soon after his election in March 2000, President Putin divided the Russian Federation into seven federal districts, each headed by his own appointed special representative. This move, the constitutionality of which is still being debated seven years later, was designed to reinforce “vertical power”.. Coincident with the creation of the federal districts was the President’s admonishment of law enforcement agencies, and in particular the Ministry of Justice, to establish “a common legal space” in the Russian Federation.45 Minister of Justice Iurii Chaika soon issued an order establishing judicial bodies in each of the federal districts. Chaika’s example was followed by Viacheslav Soltaganov, director of the Federal Tax Police Service, who issued an order establishing tax police administrations in each federal

42

The text of the State-of-the-nation address is available from BBC Monitoring at .

43

Ibid.

44

William Burnham, Peter Maggs, and Gennady Danilenko, Law and Legal System of the Russian Federation (Juris Publishing, Huntington, NY, 2nd ed. 2000), 104.

45

N. Makarov, “Upravleniia General’noi Prokuratury RF v federal’nykh okrugakh”, Zakonnost’ (2001) No.6, 5-9.

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district, with a combined staff of 195 people, assigned to focus on interregional and economic crimes.46 On 29 May 2000, Procurator-General Vladimir Ustinov issued an order creating prosecutor’s offices in each of the several federal districts. These offices report directly to a deputy procurator-general in Moscow. However, owever, a statute on the federal regions, enacted on 25 July 2000, does not define or elaborate on the powers or responsibilities of prosecutors of various ranks in the federal regions.47 The last law enforcement agency to fall into line on the federal districts was the Ministry of Internal Affairs and they only did so by presidential action. On 31 July 2000 the President issued an edict creating police and investigatory bodies in the seven federal districts. The President has the power to appoint and remove heads of these structures and their deputies. The addition of this new level of executive authority, not envisioned in the Constitution, has raised several questions; including the proper role and function of prosecutors in the federal regions vis-à-vis their subordinates at the oblast’, krai, and republic levels on the one hand, and their jurisdiction vis-à-vis their superiors in the Russian Federation’s Procurator-General’s Office in Moscow, on the other. Speaking at a conference of prosecutors on 11 January 2001 in Moscow, President Putin acknowledged that the practice of procuratorial supervision was not entirely consistent with the official functions of the Procuracy, which are vaguely prescribed by the Constitution and federal legislation. At the same time, he noted that “prosecutor’s offices cannot be held responsible for all the faults in the [law-enforcement] system”..48 In particular, Putin proposed shifting the coordination of the fight against crime from the federal level to the regional level, noting that the central Procuracy would remain “responsible for the state of the law-enforcement system”..49 The reaction of prosecutors’ offices in the federal districts points to a fundamental contradiction between the concept of federalism in Russia and the “centralized” and “unitary” nature of the Procuracy. Both Putin and Procurator-General Ustinov recognized this duality, stressing that a centralized single hierarchy of prosecutors has historical roots in

46

Lidiia Andrusenko, “Vertikal’ vlasti usilivaetsia ‘silovikami’: Putin schitaet, chto usilenie roli militsii-zadacha gosudarstvennaia”, Nezavisimaia gazeta, 2 August 2000, 3 (reproduced at ).

47

See Makarov, op.cit. note 45, 8.

48

Zakatnova, op.cit. note 20, 3.

49

Ibid.

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Russia and is necessary for the effective supervision of legality in Russia’s “common legal space”..50 There is little doubt that the federal districts were established to rein in provincial governors, some of whom had ignored centrally enacted legislation with impunity. Parliamentary immunity of governors who, until 2003, held seats in the Federation Council, further insulated them from prosecution. The establishment of federal district prosecutors’ offices also provides more effective supervision over prosecutors at the regional and local levels, some of whom had turned a blind eye to corruption and other forms of illegality in their jurisdictions. While the Procuracy welcomed the opportunity to strengthen law enforcement in Russia’s regions and combat corruption even within its own ranks, there remained the danger, however remote, that the insertion of prosecutors in the federal regions would weaken the central apparatus of the Procuracy. N. Makarov, Deputy Procurator-General of the Russian Federation, argues that rather than weakening the central Procuracy, the establishment of procuratorial offices in the federal districts frees the central apparatus to focus on “analytical, methodological, coordination, and organizational functions”,, leaving to subordinate procurators the messy operational business of fighting crime.51 In 2003 a challenge was lodged with the Constitutional Court relating to the creation of the seven federal districts. To date, the court has shown no interest in ruling on the constitutionality of the federal districts, thus, it appears that they have become a permanent and legitimate feature of the Russian executive apparatus.

Reorganization of Law Enforcement and the Status of the Procuracy This chapter has argued that the decision to leave out of the Constitution a detailed enumeration of the powers of the Procuracy has resulted in considerable ambiguity about its functioning and legitimacy in the Russian legal system. As a result, for more than a decade we have witnessed periodic attempts to clarify (or limit) procuratorial authority. Every attempt to open the subject for discussion has been met with vigorous bureaucratic resistance from the Procuracy, which views such moves as clear and present threats to its institutional interests.

50

For an anlysis of Putin’s centralization of law enforcement, see Andrusenko, op.cit. note 46, 3.

51

Ibid., 9.

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In 2002, President Putin initiated a comprehensive review of more than 2,900 federal government agencies, ministries inistries and offices.52 The goal of the review was to reduce duplication, improve performance, and limit government interference, especially in private commerce. By early 2003, the focus of the review turned to law enforcement agencies. In January G. Chuglazov, Councilor in the Procurator-General’s Office in Moscow, mentioned that revisions to The Law on the Procuracy were under discussion.53 Soon a series of articles appeared in the Procuracy’s journal, Zakonnost’, defending the Procuracy and warning against limiting its authority or powers.54 On the one hand, revising The Law on the Procuracy could potentially clarify the questions left unresolved in Article 129 of the Constitution and in the current law. On the other hand, opening the law for discussion created an opportunity for opponents of the Procuracy to limit its powers. Chuglazov warned: “No reform or revision of procuratorial functions should alter a basic principle: that the Procuracy is independent of all organs of state power, social organizations, and parties. If reform departs from this principle, it isn’t reform, but liquidation of the Procuracy as an independent organ of state power”..55 On 11 March 2003, major structural changes in police and security organizations were announced, including the elimination of the Tax Police. The following day, President Putin, speaking to the chiefs of law enforcement agencies at the headquarters of the Procuracy of the Russian Federation, was especially critical of the police and tax police. Vremia novostei summarized the meeting: “[...t]he President harshly criticized their performance, singling out the Ministry of Internal Affairs in particular. Prosecutor General Vladimir Ustinov also spoke his mind, hurling a whole ‘package’ of accusations at the Internal Affairs Ministry’s Investigative Committee (SK). He also read the riot act to the Customs Committee and even to the Tax Police, which is living out its last days. The only people who escaped criticism were representatives of the FSB [Federal Security Service].”56

The visibility of Ustinov in the review process and his public denunciation of the work of several other law enforcement agencies demonstrated 52

Reported by Smirnov, op.cit. note 41.

53

G. Chuglazov, “Prokuratura v sisteme organov gosudarstvennoi vlasti”, Zakonnost’ (2003) No.2, 30-32.

54

For example, M. Orlov, “Net prokuratury—net problemy?”, Zakonnost’ (2003) No.1, 23-26; Kazarina, op.cit. note 11, 5-9; and Amirbekov, op.cit. note 27, 2-6.

55

Chuglazov, op.cit. note 53.

56

Aleksandr Shvarev, “Prezident ustroil spetssluzhbam ‘raznos’”, Vremia novostei, 13 March 2003, 1-2 (reproduced at ). English translation from: 55(10) Current Digest of the Post-Soviet Press (9 April 2003), 12.

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the privileged position of the Procuracy in the Putin Administration. A Kommersant” correspondent concluded: “White House officials have somehow stopped talking about cutting back the functions of the Prosecutor-General’s Office. They were doubtless given to understand by the Kremlin that this would not be an opportune time for that.”57

It appeared that the Procuracy had again successfully preserved its privileged place among Russia’s law enforcement agencies. In 2004, the back-to-back Beslan school tragedy and the bombings of two commercial Russian airliners further solidified the place of the Procuracy—which together with the FSB—is a central player in the fight against terrorism. Thus, for the foreseeable future the status of the Procuracy in the Russian legal system appears secure, despite the fact that many of the questions surrounding its constitutionally and legislatively defined authority and operation remain unresolved.

57

Ibid.

Modern Russian Criminal Procedure: The Adversarial Principle and Guilty Plea Stanislaw Pomorski Introduction The 1993 Constitution of the Russian Federation, Article 123(3), declares: “Judicial proceedings shall be conducted based on the principle of adversariness and equality of the parties.” This very general, if vague, constitutional language should be read in the political context of the early 1990s, a period when the Soviet system of criminal justice was subject to devastating criticism by liberal, reform minded politicians and lawyers. Usage of the terms “inquisitorial” and “adversarial” criminal proceedings was then—and still remains—politically charged. The former acquired a definitely pejorative meaning, as identified with the Soviet past, whereas the latter has been associated with liberal values.1 Such usage still prevails in the current Russian discourse. Thus, an authoritative commentary to Article 123 of the Constitution points out that unlike the currently prevailing 2001 Code of Criminal Procedure (hereinafter the “2001 Code”), its Soviet predecessor did not embrace the adversarial principle. The Commentary opines, “This circumstance had deep ideological roots; it reflected the past Soviet concept of the “active” functions of the court, which was supposed to not just decide a dispute between equal parties, but should rather zealously seek the truth, interfere in the dispute and even […] take over the prosecutorial function […].”2 (Emphasis added.)

1

The “Conception of Judicial Reform in the RSFSR”, adopted by the Decree of the Supreme Soviet of the RSFSR, 24 October 1991. Postanovlenie Verkhovnogo Soveta RSFSR, “O kontseptsii sudebnoi reformy v RSFSR”,, VVS RSFSR (1991) 1991)) No.44 item tem 1435. The Decree states (Section Section ection tion 3) that one of the most important “directions of the judicial reform” shall be, “organization of judicial proceedings [sudoproizvodstvo] according to principles of adversariness, equality of the parties, presumption of innocence of the accused”.. An English translation of both documents appeared in Statutes and Decisions (1994) 1994)) No.2,, 7-92. Regarding the postulate of structuring criminal procedure according to the principles of “true adversariality”,, see in particular 70-71. The “Conception of Judicial Reform” left its clear imprint on subsequent jurisprudence of the Constitutional Court as well as the 2001 Code of Criminal Procedure.

2

B.N. Topornin (ed.), Konstitutsiia, Rossiiskoi Federatsii, Nauchno-prakticheskii kommentarii (Iurist”, Moscow,, 3rd ed. 2003), ),, 727. For a devastating criticism of the Soviet system of criminal justice see, the “Conception of Judicial Reform in the RSFSR”, op.cit. note 1, 10-28. 0-28. See, also, a survey of Soviet publications of the period of perestroika in Stanislaw Pomorski, “Communists and Their Criminal Law Revisited”,, 14(3) Law and Social Inquiry (1989), 581 and 594 et seq.

Gordon B. Smith and Robert Sharlet, eds. Russia and its Constitution: Promise and Political Reality 123-140 Copyright Koninklijke Brill NV, Leiden, 2008

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With the passage of time, the general language of Article 123(3) gradually acquired more specific meaning, first via authoritative jurisprudence of the Constitutional Court and later by the 2001 Code. In part one of this chapter, I will provide a brief, general overview of this process. In part two, I will focus on the procedure of guilty pleas, which epitomizes the adversarial principle and represents the most radical break with the indigenous tradition of Russian law. Closing remarks are presented in part three.

I In a string of decisions stretching back to the mid-1990s, the Constitutional Court invalidated several provisions of the 1960 RSFSR Code of Criminal Procedure (hereinafter the “1960 Code”) as incompatible with the constitutionally mandated adversarial principle. Illustrative are the following decisions: A.

B.

By Decree of 28 November 1996, the Court struck down Article 418(1) and (2) of the 1960 Code. Those provisions authorized the judge—in a certain limited category of cases—to initiate criminal prosecution, to draft a charging document and then to decide the case. It was held that those provisions impermissibly merged the functions of prosecution and adjudication and thereby violated Article 123(3).3 In the decision of 20 April 1999, the Court considered the validity of two sets of procedural rules: first, Article 232 and Article 258 of the 1960 Code requiring the trial court, acting on its own motion, to return to the procuracy—for additional investigation—cases in which the previous investigation had been incomplete or where there was a need to file more serious charges or to indict individuals other than those originally charged. The Court held that the challenged rules violated several constitutional provisions, among them Article 123(3) and Article 123(3), reasoned the Court, “means, first of all, strict separation of the judicial function of deciding cases from the function of the prosecution”.4 Secondly, the Court invalidated

3

SZ RF (1996) No.50 item 5679. For criticism of this line of jurisprudence,, see V. Bozh’ev, “‘Tikhaia revolutsiia’ Konstitutsionnogo Suda v ugolovnom protsesse”,, Rossiiskaia iustitsiia (2000) 2000)) No.10,, 9-11. Professor essor Bozh’ev considers the Constitutional Court’s decisions not only wrong on the merits as misinterpreting Art.123(3) .123(3) of the Basic Law but, in addition, as an illegitimate judicial activism invading the legislative province.. Ibid., 11..

4

Resheniia Konstitutsionnogo Suda Rossiiskoi Federatsii, 1997-1999 (Diliia, Moskva–St. Peterburg,, 2003), 515 and 517.

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Article 248(4) of the 1960 Code; the provision had obliged the trial court faced, with the prosecutor’s refusal to press charges, to continue the trial and decide the case on its merits. The Court held the provision unconstitutional as imposing upon the court prosecutorial function and, thereby, violating constitutional principles of division of powers, judicial independence, as well as the adversarial nature of the proceedings.5 By Decree of 14 February 2000, the Court struck down Article 377 of the 1960 Code, which allowed courts reviewing final judgments in “supervisory proceedings” to exclude defendants and victims from oral arguments. It held that the challenged provision violated the principle of legal equality, the adversarial principle as well as the right to judicial protection. (The Constitution, Arts.19(1), 46(1) and 123(3).) The Court opined: “Principles of adversariness and equality of the parties shall be extended to all stages of criminal proceedings.”6 (Emphasis added.)

Jurisprudence of the Constitutional Court as well as the ideas of the 1991 “Conception of Judicial Reform” left their clear imprint on the 2001 Code of Criminal Procedure.7 The draftsmen not only incorporated specific teachings of the Court, but amplified and further developed the adversarial theme. A few highlights will illustrate the point: The 2001 Code elevated the adversarial structure of criminal proceedings to one of its basic principles. Article 15(1) declares: “Criminal proceedings shall be conducted on the principle of adversariness of the parties.” Section 2 of Article 15 echoes the familiar teachings of the Constitutional Court that the functions of prosecution, defense and adjudication shall be separated from one another. Section 3 reads as follows: “The court shall not be an agency of criminal prosecution and shall not be partial to the prosecution or the defense. The court shall create the necessary conditions for the parties to fulfill their procedural duties and exercise the rights afforded to them.”

5

Ibid bidd., 518-519. See, also, Decree of 14 January 2000 striking down Art.256(1-2) .256(1-2) of the 1960 Code. The provision authorized the trial court to initiate criminal proceedings against individuals not included in the indictment when evidence disclosed at the trial point out to their criminal activity. Resheniia Konstitutsionnogo nogo ogo Suda Rossiiskoi Federatsii,, 2000-2002 (Diliia, Moskva-St.. Peterburg,, 2003), 16-25.

6

Resheniia 2000-2002, op.cit. note 5, 27 and 33.

7

Law of 18 December 2001 as amended, SZ RF (2001) No.52 52 item 4921; SZ RF (2002) No.222 item 2027; SZ RF (2002) No.30 0 items 3015, 3020, and 3029; SZ RF (2002) No.44 44 item 4298; SZ RF (2003) No.27 item 2706; SZ RF (2005) No.11 item tem 13.

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Thus, the posture of impartiality, neutrality towards the outcome of the litigation, and fair and equal treatment of the prosecution and the defense are envisioned as essential qualities of the court. According to this vision, the task of the adjudicator is resolution of the dispute between the litigants rather than independent pursuit of the truth and correct application of the substantive law. In the absence of a dispute, adjudication appears to be out of place as a purposeless activity. Consistent with this idea, pleadings by the litigants acquired a new status under the 2001 Code. First, the defendant, by pleading guilty, may now eliminate a formal trial altogether, since a guilty plea extinguishes the dispute. This radical novelty introduced by the 2001 Code will be discussed in some detail in the next section of the chapter. Second, the prosecutor’s motion to dismiss the charges was made binding upon the trial court and should result in termination of the proceedings (Arts.246 and 254).8 Moreover, the parties are now burdened with primary responsibility for the collection and presentation of evidence whereas the court’s responsibility in this regard has receded into the background. As a semi-official textbook put it: “The court is not duty bound to collect evidence and may not be reproached for failing to investigate the circumstances of the case thoroughly and objectively.”9 Indeed, as it was perceptively observed by 8

Art.246(7-9) and Art.254 .254 clearly articulated one of the main consequences of the adversarial principle: the proceedings without a willing and active prosecutor seem to be a purposeless undertaking since, under the circumstances, there remains no dispute to be resolved by the court. M.R. Damaška, The Faces of Justice and State Authority (Yale University Press, New Haven and London, 1986),, 100-110. -110. 110. Initially, Russian commentators interpreted these articles as providing for a free exit from the judicial forum. See P.A. .A. A. Lupinskaia, Ugolovno-protsessual’noe pravo Rossiiskoi Federatsii (Iurist”, Moscow,, 2004), ),, 205; A.Ia. Sukharev (ed.), Kommentarii k ugolovno-protsessual’nomu kodeksu Rossiiskoi Federatsii (Norma, Moscow,, 2002), 451; Alla G. Kovalenko (ed.), Kommentarii k ugolovno-protsessual’nomu kodeksu Rossiiskoi Federatsii (Eksmo, Moscow,, 2003), 524-525; Topornin, op.cit. note 2, 388; I.L. Petrukhin, “Ot inkvizitsii-k sostiaztel’nosti”, Gosudarstvo i pravo (2003) 2003)) No.7,, 28 and 35.. Such interpretation was entirely consistent with the plain meaning of the statutory language. Moreover, it was consistent with the jurisprudence of the Constitutional Court which existed prior to the adoption of the 2001 Code. (See note 5 and the accompanying text.) At the same time, Arts.246 .246 and 254 represented a major departure not only from Soviet but, more generally, continental European tradition according to which the trial court, after formal charges are filed, retains full control over the course of the litigation regardless of the wishes of the parties. This tradition reasserted itself in more recent decisions of the Russian high courts which reinterpreted Arts.246 .246 and 254 accordingly. See note 48 infra and the accompanying text.

9

Lupinskaia, op.cit. note 8, 252. Compare the Code of Criminal Procedure of the RSFSR, Art.20(1) .20(1) which reads: “A court, prosecutor, investigator, and person conducting an inquiry shall be obliged to take all measures provided by law for a thorough, complete, and objective analysis of the circumstances of the case, and to expose

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a Russian commentator, an active pursuit of evidence by the court can easily compromise its neutrality by giving aid to one of the parties.10 The 2001 Code introduced broad exclusionary rules (Art.75). The teaching of the Constitutional Court that the adversarial principle should apply to all stages of criminal proceedings was not overlooked by the draftsmen either. Some elements of contest were even injected at the investigatory stages which otherwise retained their traditional structure. And so, decisions as well as other actions of investigators and prosecutors affecting rights of the defendant or the victim may be challenged before the court.11 The right of the defense counsel to participate in the preliminary investigation was expanded.12 At the same time, the defense counsel was granted a limited (if poorly defined) authority to conduct his own quasi-investigation; thus a practice hitherto frowned upon as suspect, if not plainly illegal, received a sort of legitimacy.13 Also, the appellate procedure was injected with the adversarial element. Contrary to the well established doctrine of the Soviet era, the purview of the appellate tribunals is restricted under the 2001 Code: they are allowed to review judgments below only within the limits determined by the complaint. Again, the task of the tribunal is envisioned as dispute resolution rather than arriving at a substantively accurate outcome:14 the appellant is entrusted with shaping the scope and content of the dispute before the review court. As even this brief survey demonstrates, the 2001 Code injected numerous elements of adversariness into criminal proceedings. These novelties have not been greeted with unqualified enthusiasm in the Russian legal community. On the contrary, opposition has been quite vocal both during the 2001 Code preparation, as well as after its adoption. The abandonment of the central axiom of traditional procedural doctrine that circumstances tending both to convict and to acquit the accused, as well as those tending to aggravate and to mitigate his guilt” (translated ated by Harold J. Berman and James D. Spindler in Soviet Criminal Law and Procedure (Harvard University Press, Cambridge, MA, 2nd ed. 1972). 10

M. Adamitis, “Pravo suda na initsiativu v issledovanii dokazatel’stv meshaet ego bespristrastnosti”, Rossiiskaia iustitsiia (2003) 2003)) No.11, 32.

11

The 2001 Code, Art.125. .125. For a further discussion,, see Petrukhin, op.cit. note 8, 31.

12

The 2001 Code, Arts.49-53. .49-53.

13

Ibid., Art.86(3). .86(3). (3).. For a critical discussion of this procedural novelty as an awkward graft in the traditional model of criminal investigation,, see I. Maslov, “Advokatskoe rassledovaniie”, Zakonnost’ (2004) 2004)) No.10,, 34-38.

14

The 2001 Code, Art.360(2), .360(2), 360(2),, first sentence. This provision represents a radical departure from the Soviet concept of appellate review. Under the Soviet procedure, the appellate courts exercised broad authority of reviewing the trial courts’ judgments in toto, regardless of the contentions raised by the appellants. Sukharev, op.cit. note 8, 583; Lupinskaia, op.cit. note 8, 613.

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“truth finding” shall be the paramount goal of criminal proceedings15 has been particularly unpalatable to many critics. Consequently, the concept of the court as the neutral moderator over partisan disputes, rather than the active truth seeker, has been perceived by many as iconoclastic.16

II Given this background, it is hardly surprising that the very idea of criminal convictions based on consensual arrangement between the parties rather than evidence presented at trial has met with particularly vigorous opposition. Even some eminent reform minded academics protested. For example Professor I. Petrukhin, in an essay entitled: “Agreements Regarding Confession of Guilt Are Alien to Russian Mentality”, fulminated: “In the Russian criminal justice an agreement [sdelka] is an immoral, reprehensible, dishonest phenomenon; it is a bargain demeaning the government [vlast’] suggesting its helplessness, its inability to solve crimes […] Negotiations will demean the investigator, the prosecutor and the judge since they will have to bargain with the criminal […].”17

Professor Petrukhin’s view had many adherents among legal commentators as well as deputies to the Parliament.18 Notwithstanding the opposition, the legislature, for reasons of perceived practical necessity of unburdening overcrowded courts, adopted a special procedure authorizing convictions without trial upon guilty pleas. However, the first steps in this direction were taken cautiously: guilty pleas were initially allowed only in cases where the maximum penalty did not exceed five years deprivation of freedom.19 Publications which appeared in the prestigious academic 15

M.S. Strogovich, Kurs sovetskogo ugolovnogo protsessa (Akademiia Akademiia Nauk SSSR, Moscow, 1958), ),, 23; M.A. Cheltsov, Sovetskii ugolovnyi protsess (Gos. Gos. Izd. Iuridicheskoi Literatury, Moscow, 1962), ),, 122; M.A. Cheltsov (ed.), Ugolovnyi protsess (Iuridicheskaia Iuridicheskaia Literatura, Moscow, 1969), ),, 88.

16

“Nauchno-prakticheskaia konferentsiia ‘Pravovaia i kriminologicheskaia otsenka novogo UPK RF’”, Gosudarstvo i pravo (2002) 2002)) No.9,, 89-90 (statement byV.V. by V. V. Luneev), 92 and 97-98 (statement by byA. A. L. Boikov); Ia Orlov, “Printsip sostiazatel’nosti v ugolovnom protsesse: Znacheniie i predely deistviia”, Rossiiskaia iustitsiia (2004) 2004)) No.2,, 52-53; V. I. Zazhitskii, “O napravleniiakh sovershenstvovaniia ugolovno-protsessual’nogo kodeksa”,, Gosudarstvo i pravo (2004) 2004)) No.4,, 28-35.

17

I. Petrukhin, “Sdelki o priznanii viny chuzhdy rossiiskomu mentalitetu”, Rossiiskaia iustitsiia (2001) 2001)) No.5,, 35.

18

P. Mikhailov, “Sdelki o priznanii viny-ne v interesakh poterpevshikh”, Rossiiskaia iustitsiia (2001) 2001)) No.5,, 37; L.V. Golovko, “Novyi UPK Rossiiskoi Federatsii v kontekste sravnitel’nogo ugolovno-protsessual’nogo prava”, Gosudarstvo i pravo (2002) 2002)) No.5,, 57; L. Orland, “A Russian Legal Revolution: The 2002 Criminal Procedure Code”,, 18 Connecticut Journal of International Law (2002), 2002), ),, 133 and 147.

19

Art.314 in its original version. Subsequently, the scope of the guilty plea procedure

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periodical Gosudarstvo i pravo suggest that the procedure met with a very chilly reception. While one writer called it a “dangerous phenomenon”,20 another complained that the caseload pressures and a desire to please “foreign experts” made the legislature ignore the horrific Russian experience regarding false confessions.21 The procedure was subject to a forceful criticism at an important conference devoted to the 2001 Code, organized by the Institute of State and Law of the Russian Academy of Science.22 The guilty plea procedure is regulated by Chapter 40 of the 2001 Code (Arts.314-317), entitled “Special Regimen of Rendering Court’s Decision When Defendant Agrees with the Charges Presented to Him”. The procedure, as amended by Law of 4 July 4 2003,23 applies in cases where the maximum penalty for the crime charged does not exceed ten years of deprivation of freedom. Therefore, it is operational in the overwhelming majority of cases, and may be used before trial courts of all levels including justices of the peace.24 The defendant, with consent of the prosecutor and the victim, may announce his “agreement with the accusation presented to him” (obviniaemyi v prave zaiavit’ o soglasii s prediavlennym emu obvineniiem) and move the court to enter a judgment of conviction without a trial. The motion may be made either at the close of investigation or at the preliminary hearing after consultation with and in the presence of defense counsel. The motion to be valid must be made voluntarily and knowingly (Arts.314(2) and 315). After a hearing on the motion, with mandatory personal participation of the defendant as well as his counsel, the court, if it is satisfied that the charges are “well founded” as supported by the “evidence gathered in the case”,25 may render the judgment of conviction and was expanded. Currently, it is applicable to all cases where the maximum penalty does not exceed 10 years’ deprivation of freedom. See Art.314 .314 in its current version as amended by Law of 4 July 2003, SZ RF (2003) No.27 item 2706. 20

Golovko, op.cit. note 18, 57.

21

A.V. Pobedkin, “Nekotorye voprosy sobiraniia dokazatel’stv po novomu ugolovnoprotsessual’nomu zakonodatel’stvu Rossii”, Gosudarstvo i pravo 2003 No.1,, 57 and 62. Still others, like Professor Petrukhin, who had opposed legislative adoption of “agreements regarding confession of guilt”, argue that the Russian guilty plea procedure is qualitatively different from American plea bargaining. I. L. Petrukhin, “Rol’ priznaniia obvinaemogo v ugolovnom protsesse”, Rossiiskaia iustitsiia (2003) No.2, 26.

22

“Nauchno-prakticheskaia konferentsiia ‘Pravovaia i kriminologicheskaia otsenka novogo UPK RF’”, op.cit. note 16, 97-98. See, also, o,, William Burnham, Peter B. Maggs, and Gennady M. Danilenko, Law and Legal System of the Russian Federation (Juris Publishing,, Huntington, NY,, 3rd ed. 2004), 631.

23

Op.cit. note 19.

24

Lupinskaia, op.cit. note 8, 540.

25

The phrase “evidence gathered in the case” refers to the evidence of defendant’s

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impose the sentence not exceeding two thirds of the statutory maximum provided for the crime charged. Only evidence relevant to the sentencing decision is presented at the hearing (Art.316 (5-7)). The judgment may not be appealed on the ground of factual errors (Art.317). When the court entertains doubts regarding the validity of a guilty plea either because of the insufficiency of the factual basis or for other reasons, the case should be set for trial. Judgments of acquittal are impermissible under the special procedure.26 That much follows rather clearly from the four corners of the statutory text. The Russian Supreme Court, in a thinly veiled manner, signaled its own opposition to the guilty plea procedure by imposing additional restrictions warranted neither by the plain meaning of the relevant 2001 Code provisions, nor by their rationale. The Court held that in cases of group prosecution, the procedure may not be applied unless all the defendants enter guilty pleas. This bizarre ruling means that many individuals will be forced to stand trial on uncontested charges. The Court also held that when a single defendant charged with multiple offenses pleads guilty only to some counts, a trial must be held on all charges, including uncontested ones.27 Finally, the Court ruled that the defendant who does not contest his guilt, but is unwilling to fully satisfy a civil suit for damages caused by his offense, is barred from entering a guilty plea. The negative consequences of these rulings are easy to predict.28 The guilty plea procedure raises a number of issues which have been explicitly dealt with neither by the legislature not by the High Court. Some such issues are discussed below. The 2001 Code requires that the defendant should declare his “agreement with the accusation” suggesting that only a formal statement is expected rather than a full confession of guilt or even factual admission. guilt collected and formally recorded by the investigation and transmitted to the trial court in a dossier, but not presented at the hearing. Thus, the judgment of conviction is based on defendant’s “agreement with the accusation” rather than a presentation of incriminating evidence. 26

Decree No.1 of the Plenary Session of the Supreme Court of the Russian Federation, 5 March 2004 at §28, BVS RF (2004) 2004)) No.5..

27

Ibid bid., § 28.

28

Ibid bidd., §§ 27-28. The most obvious negative consequence is wasteful use of resources to try cases of well founded and uncontested charges. On the other hand, one can expect false guilty pleas to unfounded charges by defendants who seek statutory leniency. Moreover, in cases of group prosecutions, there is a danger of pressure exerted by co-defendants who want to enter guilty pleas upon the one who makes it legally impossible by contesting his own guilt. The holding that the guilty plea procedure may be applied only to defendants who agree to fully satisfy claims by civil plaintiffs can easily lead to extortionist demands.

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The Russian phrase “soglasiie s obvineniem” (Art.314) is markedly different from the language referring to confession—“priznanie viny” (Art.77(2)). Russian commentators are split on the issue: some writers, relying on the textual argument, insist that confession is not essential,29 while others reason that a grant of leniency is justified only with regard to individuals who fully confess their guilt.30 Reportedly, some lower courts lean towards the latter position insisting that the defendant must “acknowledge all the facts as alleged by the prosecution”.31 In this connection, a question arises whether confessions or admissions made by the defendant as a part of the plea arrangement may be later admitted at his trial in case his plea is not accepted by the court. An affirmative answer would probably discourage some individuals from activating the guilty plea procedure in the first place. Another major unresolved issue is the status of negotiations leading to guilty pleas, known in the US as plea bargaining. The 2001 Code’s silence is probably attributable to the draftsmen’s desire to avoid another irritant in the already heated debate. The idea of sovereign state authority negotiating with “criminals” as equals must have been perceived, by the minds steeped in “hierarchical” thinking, as a heresy.32 The 2001 Code’s tactically motivated silence, however, should not be interpreted as a ban on plea negotiations. To the contrary, as I stated on an earlier occasion, a strong argument can be made that plea negotiations, although not explicitly authorized, are legitimate. “The Code adopted a consensual as well as discretionary form of the procedure and gave the parties incentives to pursue it. Therefore, it is only reasonable to imply that the legislature must have also tacitly approved of the process leading to such desirable result. Consent rarely occurs without prior communication and exchanges between the parties concerned. Since negotiations are the natural path to a legislatively favored

29

Golovko, op.cit. note 18,, 58; Lupinskaia, op.cit. .cit. cit. note 8,, 540. See, also, authority reviewed in N. Dubovik, “‘Sdelka o priznanii viny’ i ‘osobyi poriadok’, sravnitel’nyi analiz”, Rossiiskaia iustitsiia (2004) 2004)) No.4, 53.

30

Kovalenko, op.cit. note 8, 585; V.I. Rodchenko (ed.), Kommentarii k ugolovnoprotsessual’nomu kodeksu Rossiiskoi Federatsii (Iustitsinform, Iustitsinform,, Moscow, 2003), ),, 684; A.S. Aleksandrov, “Osnovaniie i uslovia dlia osobogo poriadka priniatiia sudebnogo resheniia pri soglasii obviniaemogo s pred”iavlennym obvinieniem”, Gosudarstvo i pravo (2003) 2003)) No.12,, 43 and 49; Petrukhin, op.cit. note 21,, 26; Dubovik, op cit. note 29, 53.

31

Personal communication from Judge Jonathan Silbert of 1 November 2004 relating his recent (October 2004) observation of the local court in Pskov.

32

According to the mindset steeped in “hierarchical thinking”, the sovereign never bargains with the criminal defendant. Domaška, op.cit. note 8, 184.

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Once legitimacy of plea negotiations is acknowledged, it is necessary next to address a permissible scope and subject of bargaining. “The parties may bring to the bargaining table only such concessions which they are legally free to tender or deny. In other words, legally negotiable are only subjects within the discretionary authority of a party. This, in the context of the Russian code, is an important caveat. It seems unproblematic that before making a move, the defense counsel should be allowed to check with the prosecutor (and the victim) whether they will consent. Since the prosecutor’s authority to consent is discretionary he may make his consent contingent upon some concessions by the defendant. For example, the prosecutor may ask the defendant for some factual admissions or other acts of cooperation. The victim may ask for restitution, a monetary compensation for a harm caused by the defendant or for an apology. The defendant in turn, may seek some additional concessions from the prosecutor such as a specific recommendation of leniency, for example, a recommendation that the court impose a fine or a suspended sentence, instead of a jail term. This type of agreement, preferably reduced to writing, should be enforceable in some form worked out by the courts. Whether judges should be allowed to participate in bargaining about sentences is to be doubted. Such involvement would compromise their neutrality further undermining what appears to be already low prestige of the courts. What is clearly beyond the scope of legitimate negotiations is ‘charge bargaining’ because Russian public prosecutors do not have charging discretion and hence no lawful authority to offer reduction of charges. And so, for example, the Russian prosecutor in a case of provable armed robbery may not offer to charge only for a lesser offense of larceny in exchange for a guilty plea. Likewise, the Russian prosecutor may not offer to drop some charges in return for guilty plea to other counts. This type of agreements would be clearly invalid. Moreover, the prosecutor would be subject to disciplinary, and possibly criminal, responsibility for abuse of authority since he is legally bound to charge all provable offenses to the full extent permitted by law. There is, however, a possibility that a ‘low visibility’ type of charge bargaining will emerge in Russia in spite of the declared principle of mandatory prosecution: To what extent the declared principle of mandatory prosecution in fact confines the prosecutor’s charging freedom depends, inter alia, upon flexibility of the prevailing substantive penal law. The current Russian criminal code includes several broad, soft-edged provisions which create a fairly large space for free decisions whether or not to prosecute. Illustrative is Article 14 Section 2 of the penal code which provides that an act, although technically prohibited, should not be considered a crime if, due to its ‘insignificance’, it is not ‘socially dangerous’. Or consider the following clause of exemption from criminal responsibility: ‘A person who has committed a crime for the first time of a minor or average gravity may be relieved from criminal responsibility if it is established that as a con33

Stanislaw Pomorski, “Consensual Justice in Russia. Guilty Pleas under the 2001 Code of Criminal Procedure”, in F.J.M. Feldbrugge and Robert Sharlet, Public Policy and Law in Russia: In Search of a Unified Legal and Political Space, in William B. Simons (ed.), Law in Eastern Europe, No.55 (Martinus Nijhoff Publishers, Leiden, Boston, 2005), 194..

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sequence of a change of situation this person or the act committed by him ceased to be socially dangerous’. Criminal Code of the Russian Federation, Translation by W. E. Butler (Simmonds and Hill, London, 3rd ed. 1999), Article 77. Such provisions represent a de facto grant of discretionary power not to prosecute which can be brought in some manner to the bargaining table. Let us imagine, for example, that the prosecutor has sufficient evidence to charge one Ivanov with three offenses—X, Y and Z of which X is more serious while Y and Z are minor. Let us further assume that the trial promises some difficulty and the prosecutor wants to forego it. For that reason, he offers Ivanov and his counsel not to file charges for offenses Y and Z on the ground of their ‘insignificance’ in return for a guilty plea to offense X. One can have serious doubts about legitimacy of such deals. That they will become a part of the Russian ‘procedural reality’ is nonetheless quite plausible as some past experience suggests.”34

My discussion of guilty pleas addresses legal doctrine, the “law on the books”. How the procedure will actually function in Russia depends on its reception “on the ground” by the actors of the judicial process—prosecutors, investigators, judges, defendants and their lawyers. Given its novel as well as controversial nature, the short period of its operation, and the lack of empirical studies on this subject, making informed predictions is not possible at this time. Available official statistics suggest that initially the procedure has not been applied widely. In the year 2002, it was applied in 10,400 cases representing 0.9% of all criminal cases decided nationally by the trial courts. District courts dispensed of 7,800 cases in this manner which represented 1.1% of their total caseload, whereas corresponding numbers for justices of the peace were 2,600 cases representing 1.1% of the total number of cases at this level. Regional and republican trial courts applied the procedure in only 0.2% of cases decided at their level.35 In 2003, the number of cases where the procedure was applied increased quite substantially. Practically all of them were processed by justices of the peace and district courts. Regional courts applied the procedure in thirty-eight cases representing only 0.6% of the total number of cases brought to judgment. District courts dispensed of 45,500 cases in this manner which represented 8.6% of all cases brought to a conclusion at the district courts’ level. During the same period, justices of the peace, dispensed of over 17,000 cases applying the guilty plea of procedure (14.3% of the total). Year 2004 witnessed further significant increase of the volume of cases disposed via guilty plea procedure. Regional courts applied the procedure in fifty-four cases (0.9% of the total number of cases brought to judgment). The procedure was applied by district court in 117,700 cases (16.4% of the total) and by justices of the peace in 35,500 34

Ibid. bid. d.

35

“Rabota sudov Rossiiskoi Federatsii v 2002 godu”, Rossiiskaia iustitsiia (2003) 2003)) No.8,, 70. The guilty plea procedure was most frequently applied in drug related cases as well as in cases involving illegal possession of firearms and automobile accidents.

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cases which represent 26.6% of the total. Apparently, the guilty plea procedure has taken root in Russia in spite of its novelty and the controversy accompanying its adoption. The procedure has found relatively broad application in cases of theft, as well as cases involving weapons charges, assaults and hooliganism.36 The increase of absolute numbers should be considered, however, in context. While the procedure was in operation only during the second half of 2002, it was effective throughout 2003 and 2004. Moreover, the scope of the procedure’s applicability was broadened in the middle of 2003.37

III Developments in Russian criminal procedure, examined from the vantage point of the constitutionally mandated adversarial principle, present a complicated picture. On the one hand, those developments include a number of innovative features advancing the principle. At the same time, certain basic arrangements, deeply rooted in the indigenous legal culture and incompatible with the principle, persist. A big question is whether the totality of the novel features created a “critical mass” that changed the procedural style? Has Russian criminal procedure in effect acquired the quality of adversarial procedure? Have all the novelties transformed its deep structure? There are good reasons to believe that such qualitative transformation has not occurred. The pretrial, investigatory stages remain well within the grip of tradition. Government agents of law enforcement—investigators and prosecutors—retain their official monopoly of procedural action, that is to say the authority of formal collection and recording of evidence backed by the compulsory process. Defense counsel, on the other hand, may conduct only consensual interviews with witnesses, but has no authority to create a formal record of their statements usable in the courts. In order to create such a record, defense counsel has to petition a government investigator or a prosecutor to summon and formally interrogate the witness.38 The dossier, a formal summary of the official investigatory activity, remains a backbone of the case: transmitted to the court along with the 36

“Rabota sudov Rossiiskoi Federatsii v 2003 godu,” Rossiiskaia iustitsiia (2004) 2004)) No.4,, 68 and 70-71; “Obzor deiatel’nosti federal’nykh sudov obshchei iurisdiktsii i mirovykh sudei v 2004 godu”,, Rossiiskaia iustitsiia (2005) 2005)) No.6,, 26 and 29-32.

37

See op.cit. notes 19 and 23 and the accompanying text.

38

A. Davletov, “Pravo zashchitnika sobirat’ dokazatel’stva”, Rossiiskaia iustitsiia (2003) 2003)) No.7,, 50-51; Id., “Problema sostiazatel’nosti reshena v UPK RF neudachno”, Rossiiskaia iustitsiia (2003) 2003)) No.8,, 16-18; Iu.P. Garmaev, Nezakonnaia deiatel’nost’ advokatov v ugolovnom sudoproizvodstve (Ekzamen, Ekzamen,, Moscow,, 2005), ),, 31-35; Maslov, op.cit. note 13, 35.

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indictment, it still remains a basic, if informal, source of judicial knowledge about the crime charged. Thus, the minds of the judges are in a way “tainted” by the prosecutorial version of the case even before the trial commences. This feature seems iconoclastic from the perspective of the adversarial model. Under the circumstances, the effectiveness of the broad exclusionary rules, adopted by the 2001 Code, is seriously undermined since the fact-finders have an access to information contained in the unlawfully obtained and formally inadmissible evidence. Moreover, the content of the dossier may be easily used at trial for substantive evidentiary purposes as a substitute for live testimony, thus seriously undermining defendant’s right to confront and cross examine witnesses.39 A non-bifurcated trial before a single tribunal with the authority to decide all issues of guilt and punishment in a single proceeding remain the norm. The option of trial by jury is limited to a very narrow category of cases.40 A narrow interpretation of the 2001 Code provisions regarding guilty pleas by the Russian Supreme Court41 created much room for uncontested trials which epitomize the non-adversarial style of criminal procedure. Moreover, the 2001 Code, consistent with the Soviet tradition, assigned to the victims of offenses subject to public prosecution the posture of a party with a broad array of procedural rights.42 That structural feature to some extent impedes consistent implementation of the adversarial principle which functions best within the framework of a clear binary opposition between the two contestants: the prosecution and the defense. One consequence of the elevated procedural posture of the victim is that s/he may veto the agreement between the public prosecutor and the defendant regarding a guilty plea thus forcing a trial on uncontested charges. In addition, the victim has the right to challenge prosecutorial decisions to terminate proceedings at the pretrial stages. In effect, the court was vested with the mandamus power of ordering the unwilling

39

The 2001 Code, Art.281. .281. The right to confront and cross examine witnesses is guaranteed by Art.45(2) of the Russian Constitution as well as by the international human rights instruments binding upon the Russian Federation. For a further discussion see V. Kholodenko, “Pravo obvinaemogo na dopros izoblichaiushchikh ego lits-zakonnoe sredstvo zashchity ot prediavlennogo obvineniia”, Rossiiskaia iustitsiia (2003) 2003)) No.11,, 26-27.

40

The 2001 Code, Arts.30-31. s.30-31.

41

See op.cit. note 28 and the accompanying text.

42

The 2001 Code, Art.42. .42. The Constitutional Court interprets rights of the victim broadly. See Decree of 8 December 2003, SZ RF (2003) No.511 item 5026,, §6.

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prosecutor to file formal charges, a situation clearly at odds with the adversarial procedural model.43 Soon after the 2001 Code took effect (1 July 2002) some traditional non-adversarial features of the procedure reasserted themselves: First, responding to the demands of the prosecutorial agencies, the legislature substantially expanded the trial court’s authority to use the contents of the dossier for substantive evidentiary purposes in lieu of live testimony.44 The broad and vague language of the amended Article 281 was, in this regard, a throwback to the Soviet past.45 Finally, the 2001 Code’s provisions which made the public prosecutor’s refusal to press charges at trial binding upon the court (an eminently adversarial procedural arrangement) were rewritten in part and invalidated in part by the Constitutional Court.46 In a long and convoluted opinion which clearly contradicts its own earlier decision,47 the Court recast the meaning of Articles 246 and 254 to the effect that the public prosecutor’s motion to dismiss or to reduce charges should be treated by the trial courts as a non-binding suggestion subject to judicial scrutiny on the merits in view of facts established at trial and applicable substantive law.48 It was also held that individuals affected by such decisions have a constitutionally guaranteed right to appeal; consequently Section 9 of Article 246 which banned appellate review was declared void.49 Thus, the Constitutional Court rejected one of the most radical departures from the traditional non-adversarial model into which the draftsmen of the 2001 Code ventured. By doing that, the Court returned Russian law in this regard to the well trodden path of the Continental procedural tradition according to which pleadings by the parties amount to no more than non-binding suggestions for the fully sovereign evaluation by the trial court. The deep doctrinal underpinning of the decision is the idea of the court as an active truth seeker rather than a moderator presiding over a dispute between the prosecution and the defense. How the adversarial features introduced by the 2001 Code have been implemented in practice and whether and to what extent they have become a part of “procedural reality” are questions calling for a broad empirical 43

The 2001 Code, Art.125. .125.

44

Law of 4 July 2003, 003, op.cit. note 19.

45

Kholodenko, op.cit. note 39,, 27.

46

Decree of 8 December 2003, op.cit. note 42.

47

See Decree of 20 April 1999, op.cit. note 5.

48

Arts.246 (7-8) and Art.254 .254 point 2 were reinterpreted or rather rewritten in such a way. Decree of 8 December 2003, op. cit. note 42,, §7. See, also, Decree of the Plenary Session of the Supreme Court, 5 March 2004, op.cit. note 26,, §29.

49

Decree of the Constitutional Court, 8 December 2003, op.cit. note 42,, §8.

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investigation. Such study, as far as I know, has not yet been undertaken. It seems, however, that adversarial arrangements in criminal proceedings can become operational only within an institutional environment which includes at least three essential elements: 1. 2. 3.

Independent, impartial and assertive judiciary capable of reining in lawless actions of police, security and prosecutorial agencies; Well-trained prosecutorial corps dedicated to professional trial work; Independent, assertive, free from governmental interference defense bar adequately compensated from public funds for services to indigent defendants.

Available evidence suggests that the three conditions are conspicuously absent in Russia. Russian judges are heavily dependent on court administrators of various ranks who, in turn, do the bidding of prosecutorial agencies. Displeasing these bureaucracies carries a serious career risk since reappointments, promotions, maintaining tenured positions and access to social services depend largely on them. Consequently, judges are often afraid to render decisions consistent with their conscience and the pertinent rules of law if such decisions would violate policies or wishes of the superior bureaucracy.50 For example, rendering a judgment fully exonerating the accused involves a serious professional risk since it transgresses a non-acquittal policy imposed by superior legal bureaucracy.51

50

The Council of Europe’s Parliamentary Assembly’s Monitoring Committee, “Honoring of Obligations and Commitments by the Russian Federation”,, 26 March 2002,, §§16, 38, and 41 (hereinafter the “Monitoring Committee”); The Council of Europe’s Parliamentary Assembly’s Committee on Legal Affairs and Human Rights, “The Circumstances Surrounding the Arrest and Prosecution of Leading Yukos Executives”,, November 2004 (hereinafter the “Legal Affairs Committee”)—The Explanatory Memorandum at §59; Stanislaw Pomorski, “Justice in Siberia: A Case Study of a Lower Criminal Court in the City of Krasnoyarsk”, 34 Communist and Post-Communist Studies (2001), 447 and 474.

51

Pomorski,, op.cit. note 50, 456-457. Judgments of acquittal, both nationally and regionally, represent a miniscule, statistically remarkable, fraction of the total number of judgments in spite of dismal quality of investigative and prosecutorial work. In 2004, acquittals represented only 0.7% .7% of all judgments and only less than one-half of these acquittals were rendered in cases brought by public prosecution. Reportedly, over 56% of acquittals occurred in cases filed by private prosecutors. “Obzor deiatel’nosti federal’nykh sudov obshchei iurisdiktsii i mirovykh sudei v 2004 godu”, Rossiiskaia iustitsiia (2005) 2005)) No.6,, 26..

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Recent years have witnessed a rapid deterioration of the situation marked by abuse of the criminal process for political purposes,52 legislative changes eroding remaining vestiges of judicial independence53 as well as an undisguised campaign of purge and intimidation of the Moscow judiciary by the City Court administrator.54 Under the circumstances, it is not surprising that Russian judges fail to rein in even egregious excesses of the law enforcement, but instead rather condone and rubberstamp them.55 The trial work of public prosecutors in various parts of Russia, from remote provinces to the center of Moscow, has been consistently rated from poor to dismal. Public prosecutors either do not participate in the proceedings in any meaningful way or their input is inadequate.56 52

The Human Rights Watch, Russia’s ‘Spy Mania’ (October 2003); US Department of State, Russia Country Report on Human Rights Practices 2002 (31 31 March 2003), 1-2 and 8; US Department artment of State, Russia Country Report on Human Rights Practices 2003 (25 25 February 2004), 1, 8-9, and 17; The Committee on Legal Affairs, op.cit. note 50, The Draft Resolution at §§ 8-12; E. J. Chivers, “Return of the Show Trials. Stalin and the Czars Haunt Khodorkovsky in the Dock”,, The New York Times, Week in Review, 7 November 2004, 7; Masha Lipman, “Russian Relapse”, The Washington Post, 21 April 2004, 004, 4,, A-23.

53

See, for example, Law of 15 December 2001 amending the law “On the Status of Judges in the Russian Federation”. For criticism of the legislation as undermining judicial independence,, see The Monitoring Committee, op.cit. note 50,, §41; The Legal Affairs Committee, op.cit. note 50, Explanatory Memorandum at §60, Draft Resolution at §6.

54

The Legal Affairs Committee, op.cit. note 50, Explanatory Memorandum at §61; Izvestiia, 9 October 2004, 5; Iurii Kolesov, “Sudebnaia diuzhina”, Vremia novostei online, 23 November 2004, available at ; ; “Judge Says He Lost His Job for Being Soft”, The Moscow Times.com, 10 December 2004, 3.

55

Amnesty International, The Russian Federation Denial of Justice (2001). For recent reports of docility of judges faced with egregious abuse by law enforcement,, see V.V. Konstantinov, “Zakon v teni bezzakoniia”, Rossiiskaia iustitsiia (2005) 2005)) No.9,, 3-11 and No.10,, 58-61. (The author is identified as a high ranking police investigator.) On widespread corruption in the investigative agencies, including Procuracy,, see Iu. Zakkharov and P. Skoblikov, “V teni zakona. Korruptsionnye tekhnologii pri rassledovanni ugolovnykh del”, Rossiiskaia iustitsiia (2005) 2005)) No.6,, 14-21. Russia’s overall rating on official corruption deteriorated dramatically since 2004. “‘Dvoika’ po vziatkam”,, Izvestiia, 19 October 2005. According to The 2005 Transparency International Corruption Perception Index, Russia occupies position 126 among 158 countries covered being flanked by Niger and Sierra Leone, scoring 2.4 on the range “from 10 (squeaky clean) to zero (highly corrupt)”. The two most corrupt countries on the Index: Bangladesh and Chad, scored 1.7. “A score of 5.0 is the number Transparency International considers the borderline figure distinguishing countries that do and do not have a serious corruption problem.” Ibid bidd.

56

Pomorski, op.cit. note 50, 456; Basmannoe pravosudie. Uroki somooborony. Posobie dlia advokatov (Publichnaia Reputatsiia, Moscow, 2004); Pamela A. Jordan, Defending

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The adversarial rhetoric of the 2001 Code has not changed much in this regard. As an author of a recent book-length study reports, “The criminal trial I observed at Petrozavodsk City Court on 23 June 2003 […] attests to the fact that old habits die hard at least in a provincial setting […] the weakest link in the proceedings was the state prosecutor, who looked and acted as if he had just graduate from law school. He asked very few questions during the court examination phase, with the result being that most questions were posed by the judge […] The judge […] said that he typically needed to compensate for prosecutors’ lack of preparation by asking their questions for them […] Like the defense attorney, the prosecutor was also absent during the last half of the trial.”57 (Emphasis added.)

Monitoring one of Moscow’s lower criminal courts conducted in October 2003 by the Russian chapter of the International Commission of Jurists documented essentially a similar pattern of criminal trial proceedings in the country’s capital.58 One reason for very poor prosecutorial trial performance is that the no-acquittals policy, followed by the courts, practically guarantees successful results in any event. Under the circumstances, the trial work is seen as a low priority task, assigned to individuals with limited experience, abilities and/or diligence. There are good reasons to believe that trial performance of the defense bar leaves much to be desired as well. One main reason is economic. Many, probably most, defendants in Russia are indigent and unable to pay for legal services, while organizations analogous to public defenders’ offices here in the US do not exist. The old system of court appointed lawyers functions very poorly, if at all, under conditions of Russian capitalism. Government funded payment for legal services for the indigent is grossly inadequate and services delivered correspondingly substandard. The problems identified by this writer during his empirical investigation in the city of Krasnoiarsk a few years ago59 still persist on a nationwide scale.60 Reports Pamela Jordan: “In 2003, Professor Larissa Maslennikova of the Moscow State Law Academy traveled the country observing the work of advocates [61] in criminal trials. She found that, in general, advocates were still acting passively, largely because so many of them are state appointed and therefore not paid.”62

Rights in Russia: Lawyers, the State, and Legal Reform in the Post-Soviet Era (University of British Columbia Press, Vancouver, Toronto, 2005),, 170 et seq. 57

Jordan, op.cit. note 56, 170-171.

58

Basmannoe pravosudie, op.cit. note 56.

59

Pomorski, op.cit. .cit. cit. note 50, 464-68.

60

Jordan, op.cit. note 56, 135 and 170.

61

Here: defense attorneys..

62

Jordan, op.cit. note 56, 170.

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More recently, defense bar members participating in politically sensitive cases have become targets of harassment and persecution by the government.63 Although the campaign of persecution launched by the Putin administration targeted, so far, relatively few defense lawyers, it will, no doubt, have a wide ripple effect upon the legal community at large. Members of the Russian bar now are on notice that representing defendants in politically sensitive cases is risky and can easily be fatal to one’s professional career or even one’s freedom. Under the circumstances, as a leading Russian daily recently editorialized, the principle of adversariness and equality of the parties to criminal proceedings is being turned into an empty slogan.64

Epilogue Since completion of this chapter, the Plenary Session of the Russian Supreme Court issued Decree No.60, 5 December 2006, entirely devoted to the judicial application of the guilty plea proceedings.65 Some of the restrictions previously imposed have been either explicitly repealed or phrased in a more flexible manner. For example, the Court explicitly repealed the requirement that the defendant who wants to use the guilty plea proceedings may not contest the civil action for damages caused by the offense.66 The Court also ruled that the defendant who pleads guilty must fully endorse the factual allegations as well as the legal theory of the indictment.67

63

Lipman, op.cit. note 52; Steven Lee Meyers, “Russia: Khodorkovsky Lawyers Pressured”, The New York Times, 9 September 2005, A-5. Editorial, “Mnimaia sostiazatel’nost’”, Izvestiia, 26 September 2005, 6.

64

“Mnimaia sostiazatel’nost”, op.cit. note 63. The author has served as a consultant to Western law firms representing Russian defendants in politically sensitive cases.

65

BVS RF (2007) No.2.

66

Ibid., §12, 18.

67

Ibid., §5.

Jury Trial and Adversary Procedure in Russia: Reform of Soviet Inquisitorial Procedure or Democratic Window-Dressing? Stephen C. Thaman Prologue rologue The Problem The rebirth of jury trial and the move from inquisitorial to adversary procedure have been the centerpieces of the reform of the administration of justice in Russia, since they were first openly voiced during the waning years of Soviet perestroika under the leadership of Mikhail S. Gorbachev, systematically articulated by the Supreme Soviet of the Russian Soviet Federative Socialist Republic (RSFSR) on 21 October 1991, and finally put into practice with the Russian jury law of 1993. They were seen to be the prime catalysts for the democratization and humanization of the SovietRussian criminal justice system, as the country moved from a totalitarian system with a command economy to democracy and capitalism. The broadening of freedom of the press (so-called glasnost’, or transparency) in the late 1980s led to widespread critique of the Soviet-era court system for its incapacity to provide a quality of justice worthy of a civilized country, indeed for its condemnation and execution of the innocent. All Soviet trial courts were composed of one professional judge and two “people’s assessors”, derisively called “nodders” because they were completely dependent on, and acted in no way as a check to the power of the professional judge. The professional judge, on the one hand, was completely dependent on instructions from Communist Party or other local officials (so-called “telephone law”), and on the considerably more powerful public prosecutor’s office (Prokuratura) on the other, which resulted in a routinized rubber-stamping of the results of the preliminary investigation and the virtual absence of acquittal judgments, despite the universally recognized low quality and reliability of police investigative work. Unable or unwilling to professionally investigate crimes, investigative organs resorted to coercing confessions, which were the centerpiece of nearly all prosecutions, despite their inherent unreliability as evidence. There was virtually no adversarial testing of the credibility of the evidence gathered in inquisitorial secrecy by law enforcement officials, adversary procedure and the presumption of innocence long having been impugned as institutions of bourgeois legal culture. The trial judge would effectively prejudge the case in the preparatory trial stage by establishing a priori the sufficiency of the evidence in the preliminary investigation dossier Gordon B. Smith and Robert Sharlet, eds. Russia and its Constitution: Promise and Political Reality 141-180 Copyright Koninklijke Brill NV, Leiden, 2008

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to prove guilt, and then would transform himself into a trier of fact in the evidentiary portion of the trial armed with what was tantamount to a presumption of guilt. If, as often occurred, the evidence produced in court turned out to be woefully insufficient to prove guilt, the judge would send the case back to the investigating officials with the clear understanding that “new” evidence would be found, or the case would disappear without an acquittal to clear the name of the accused. This was again a clear violation of the presumption of innocence. A new adversary system of jury trial was introduced in 1993-1994, preliminarily in nine political subjects or constituencies of the Russian Federation, and the constitutional rights to jury trial, adversary procedure, the presumption of innocence, and the mandatory exclusion of illegally gathered evidence were incorporated into the new Constitution of the Russian Federation in December of 1993. Finally, the new Criminal Procedure Code of the Russian Federation, passed in December 2001, led to the extension of jury trial to the entire country with the exception of the Republic of Chechnia in 2003-2004. This chapter will explore the extent to which the Russian jury system and adversary procedure have humanized criminal procedure. The replacement of the judge-dominated mixed court by the jury was meant to eliminate the judiciary from the task of deciding guilt, replacing them with a group of citizens who were not caught in the web of dependence in which Russian judges found themselves. Insufficient, corrupt, or illegal evidence would, in theory, lead to acquittals and innocence would be protected. A Continental European Model of Trial by Jury The new Russian jury system is based on the Russian jury system (1864 until 1917), which was itself the product of great reforms throughout Europe in the late eighteenth and nineteenth centuries. In the late seventeenth and early eighteenth centuries the right to trial by jury became a rallying cry of English religious dissidents and republicans in their struggles against repression. It was this transformation of the jury from institution of customary law to a revolutionary check against arbitrary monarchical power that led to the constitutionalization of the right to trial by jury in the US, and to its becoming a battle cry in the French Revolution and the bourgeois anti-monarchist movements on the European Continent in its wake. Jury trial was introduced in France in 1789 and in most German States after the abortive revolutions of 1848 (although the Rhine States had maintained the institution since the time of Napoleonic occupation). It was extended to all of Germany with its unification in 1871. Russia introduced trial by jury in the great judicial reforms instituted by Tsar

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Alexander II in 1864, and nearly all European countries followed suit with the exception of Luxembourg and The Netherlands. But these reforms were not only political. Trial by jury was seen as a catalyst in strengthening the principles of orality, immediacy, presumption of innocence and the evidentiary standard of intime conviction, which all became recognized as indispensable in a civilized criminal procedure. The rise of dictatorial regimes in Europe in the wake of World War I led to the abolition of jury trial and its replacement by the German model of mixed court; in Russia in 1917 following the Bolshevik Revolution, and in 1924 in Germany following a decree of the Minister of Justice. The Fascists in Italy eliminated jury trial in 1931, the dictator Francisco Franco in Spain in 1939, and the Vichy government in France, which collaborated with Nazi Germany, in 1941. Italy and France maintained a mixed court which was still called an assizes court (Cour d’Assises, Corte d’Assise), whereas Spain got rid of all lay participation. Until the Russians reintroduced jury trial in 1993, the only continental European countries that preserved their jury courts were Austria, Belgium, Norway and Denmark, although the Danish converted their jury court into a mixed court in 2006. The issue of lay participation, however, is not purely a legal question, but rather a political question of the separation of powers. The most repressive regimes throughout human history have always been supported (willingly or grudgingly) by a professional career judiciary without lay participation and an inquisitorial system in which the ideology of the search for truth had strict priority over any concern for human rights. Democratic, egalitarian countries can exist without lay participation, but it is difficult for repressive dictatorships to exist with it, unless it is deformed into a ‘kangaroo court of yes-sayers’. Prior to 1864 the Russian courts were subservient to notoriously corrupt provincial governors and doled out justice to the highest bidder. The 1864 reforms set up the framework for a genuinely independent judiciary with life tenure and introduced trial by jury as a further guarantee of liberating judges from control by the executive and local influences. As in other continental European systems, the jury was composed of twelve citizens and presided over by three professional judges. Verdicts were by a simple majority and consisted of a list of questions, almost in the form of interrogatories, relating to the elements of the charged case and possible aggravating, mitigating or exculpatory factors. The Bolshevik Decree on the Courts of 7 December 1917, however, put an end to an independent judiciary and replaced the jury with a mixed court composed of one career judge, elected for a term of five years by local party officials, and two

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“people’s assessors” also selected by party-controlled workers’, peasants’, or housing collectives. An Outline of Modern Jury Trial Procedure in Russia The procedure—under the 2001 Code of Criminal Procedure—does not substantially differ from the that under the 1993 Jury Law. Today, the defendant has the right to trial by jury in all criminal cases subject to the jurisdiction of the second-level courts of original jurisdiction, which include formerly capital offenses such as aggravated murder, other serious felonies and some lesser crimes. The right belongs to the defendant and may be waived. Jurors are drawn from registered voters in the territorial jurisdiction in which the crime was committed. They must be at least twenty-five years of age and have no pending criminal cases or unexpunged criminal convictions. The parties, including the aggrieved party, may conduct individual voir dire of the prospective jurors during jury selection, which takes placed in closed session. If the aggrieved party has expressed his or her desire to participate in the trial, then she constitutes one of the prosecuting parties, and has a right to participate in exercising peremptory challenges along with the public prosecutor. The jury is finally composed of twelve jurors and two alternates. Russian jury trials begin with the reading of the accusatory pleading and by the judge questioning the defendant as to whether she understands it and admits guilt or wishes to express her position in relation to the charges. This is followed by opening statements of the prosecutor and defense. If the defendant decides to testify, she may do so at any time during the trial. Otherwise, the prosecution parties first present their evidence, followed by that of the defense. Unlike in the US, the aggrieved party enjoys the rights of a full party, that is, to testify, present evidence, make motions, be represented by a lawyer, have full discovery of the contents of the preliminary investigation dossier, make a closing argument, and appeal a judgment, whether of acquittal or conviction. In Russian jury trials, the closing arguments of the parties (including the aggrieved party) precede the formulation of the “question list” which is submitted to the jury. The presiding judge makes a summation which consists in a recounting of the evidence and the positions of the parties, an explication of the applicable law and the rules of deliberation with emphasis placed on the presumption of innocence, or the resolution of doubt in favor of the defendant, and the fact that neither the defendant’s silence, nor evidence declared inadmissible may be used to prove guilt.

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Factual or guilt questions which are unfavorable to the defendant must be answered with a simple majority of seven of the twelve votes. Six votes suffice to answer a question favorable to the defendant. The jury must try for at least three hours to reach a unanimous verdict as to guilt. If it is not able to reach unanimity during this time, it may return a verdict based on the aforementioned majorities. The jury may recommend lenience, which compels a sentence below the maximum and even sometimes below the mandatory statutory minimum. The trial judge prepares the judgment and, based on the jury’s answers to the question list, either acquits or attaches a legal qualification to the wrongful acts found proved by the jury. Judgments of guilt and acquittal may be appealed in cassation, that is, based on errors of law by both prosecution (including aggrieved party) and defense on the basis of lack of congruence between the arguments of the court in the judgment and the factual circumstances of the case, violations of the rules of criminal procedure, incorrect application of the criminal law, and “injustice of the judgment”. An Outline of this Chapter Section I and II will discuss the problem of judicial dependency on the executive branch and how the modern Russian theory of adversary procedure—with its notion of a distinct separation of power between prosecution, defense and the decision, left to the judiciary (and juries)—was designed to counteract it. Section III will begin the discussion of the extent to which the jury is actually replacing the judge (or the now abolished mixed court) as the arbiter of the guilt issue. It will explore mechanisms that have been used for avoiding trial by jury, from manipulating the charges, to coercing waivers of the right to jury trial. Section III, will focus on the extent to which the introduction of the jury system has humanized the handling of the individual case, i.e., the extent to which the jury alone is responsible for deciding guilt. The reformers did believe that jurors should be able to nullify the law and return verdicts of not guilty for reasons of humanity, even if the evidence was actually sufficient to prove guilt. They also gave the jury the power to mandate leniency in sentencing in cases where they did find the defendant guilty. The complicated nature of the question lists used in Russia has led to a marginalization of the jury as guilt-finder. The Russian jury must answer three principal questions in every case: (1) Was the corpus delicti proved? (2) Was the defendant the perpetrator of these criminal acts? And (3) Was the defendant guilty of the commission of these criminal acts? If

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the jury answers the third question in the negative, after answering the first two affirmatively, one has a case of nullification. But the question list itself may contain other questions related to facts which may justify the act such as issues of self-defense, or partially excuse the act such as heat of passion. It may also contain questions related to aggravating and mitigating circumstances. The Supreme Court of the Russian Federation (SCRF) has unfortunately interpreted the jury provisions of both the 1993 and 2001 laws to limit the jury in many respects to only deciding issues of fact, and leaving it to the professional judge to “qualify” the answers the jury gives to the questions to determine whether the acts found proved by the jury constitute this or that criminal homicide (aggravated murder, murder in the heat of passion), or perhaps even justified self-defense. Thus, even though juries decide “guilt” it is interpreted only as guilt for having committed certain acts, and it is the judge who will decide whether those acts constitute a crime. This effectively deprives the jury of the power to determine guilt. Section V will discuss the factors that have allowed a massive reversal of acquittals in Russian jury cases. The fact that judgments of acquittal may be appealed by the prosecutor or the aggrieved party, and that Russian law does not require the party appealing to have objected to the error, which lies at the base of the appeal during trial, mean that the SCRF, which hears all appeals in cassation from jury court judgments, may overturn virtually any judgment with which it disagrees, and, in reality the Supreme Court reverses the great majority of all acquittals. Indeed, the wide-open rules on appeal allow judge and prosecutor to collude during the trial to build in error, which will allow reversal in the event of an acquittal. Even without such collusion, the rules of adversary procedure and the exclusionary rule, along with the overly complicated nature of the Russian question list addressed to the jury, allow the SCRF to cynically turn the rules originally meant to protect defendants against them by claiming that their violation prejudiced the prosecutor or the aggrieved party. As a result of this perversion of human rights guarantees and the maintenance of inquisitorial appellate practices, the old Soviet practice of error-free justice has been resurrected. My regrettable conclusion, in Section VI, is that these ambitious reforms are looking more and more like democratic window-dressing for a system that is continuing to function as it did in Soviet times. I have suggested some reforms which could save the institution from becoming a cynical “decoration” of an otherwise authoritarian Soviet-style criminal justice system.

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I. Russian Adversary Procedure: Theory and Practice Russian Theories of Adversary Procedure “Only in state service will you recognize truth”!1

One must first analyze what the Russian legal reformers understood, when they mandated “adversary procedure” (sostiazatel’nost’) as the underlying concept for court procedure, both civil and criminal. Although the reform movement began in 1988-1989, towards the end of Gorbachev’s perestroika reforms,2 the main blueprint for the reforms was and remains the “Concept of Judicial Reform”. Soviet theory, when it actually addressed the principle of adversary procedure, traditionally held that it could exist even with an active trial judge who was obligated to ascertain the truth. This was the understanding in Tsarist Russia even after the 1864 reforms which introduced trial by jury3 and was also seconded by A.Ia. Vyshinskii when he was Minister of Justice during the late Stalinist period.4 Some conservative voices in Russia today still supported this thesis well into the reform period.5 The theory, now entrenched in §15 Criminal Procedure Code of 2001 of the Russian Federation (UPK RF),6 that the tri-partite division of labor between prosecution, defense, and court is the crucial factor in 1

A.P. Chekhov, Sobranie Sochinenii Vol. 7 (State State Publishing House of Fictional Literature,, Moscow,, 1956), 199.

2

Stephen C. Thaman, “The Resurrection of Trial by Jury in Russia”, 31 Stanford Journal of International and Comparative Law (1995), 70.

3

Samuel Kucherov, Courts, Lawyers and Trials under the Last Three Tsars (Praeger, Praeger,, New York,, 1953), 43.

4

Henrike Franz, Die Hauptverhandlung im Russischen Strafverfahren (Dr. Dr. Köster,, Berlin, 2000), 217; I.B. Mikhailovskaia, Tseli, funktsii i printsipy Rossiiskogo ugolovnogo sudoproizvodstva (Prospekt, Prospekt,, Moscow,, 2003), 69.

5

S.B. Romazin, “Die Strafprozeßordnung und die Rolle der Staatsanwaltschaft”, Recht in Ost und West (1992) No.2, 53-56. Romazin headed up a group of experts in the Ministry of Justice in the early 1990s which prepared a draft Code of Criminal Procedure, which was eventually adopted on first reading by the State Duma, Franz, op.cit. note 4, 146-153, 153, 53, but was then shelved in favor of the 2001 Code.

6

§15 UPK RF reads: “(1) Criminal court procedure is realized on the basis of adversariality of the parties; (2) the functions of prosecution, defense and decision of the criminal case are separated one from the other and may not be attributed to one and the same organ or one and the same public official; (3) the court is not an organ of criminal prosecution and does not appear on either the side of the prosecution or the side of the defense. The court creates the necessary conditions for the parties’ fulfillment of their procedural duties and the realization of the rights accorded them; (4) the prosecution and defense parties have equal rights before the court.”

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achieving adversariality, was championed by M.S. Strogovich in writings from 1939 into the 1950s,7 but the term was omitted in the 1960 Criminal Procedure Code of the RSFSR (UPK RSFSR) and vanished from academic discussions for the most part until the late 1980s.8 This theory was clearly articulated in some crucial decisions of the Constitutional Court of the RF (CCRF) before the enactment of the 2001 Code.9 This theory, of course,, requires a passive judge, and that the procurator, in his/her role as public prosecutor, act as a party on equal footing with the defense.10 In Soviet-Russian criminal procedure the procurator in criminal proceedings had a judge-like position, supposedly duty-bound to guarantee the legality of all proceedings, but, in reality, he/she ducked responsibility for the quality of the proceedings at every step. Apologists still claim that the procurator, even when acting as public prosecutor, is not a party11 and is not responsible for the truth of the accusatory pleading, for it is filed by the investigator.12 The need to pronounce such a separation, which is axiomatic in a Common Law adversarial system, is based in the fact that the judge in Russian-Soviet inquisitorial procedure shared the same duty to ascertain the truth as did the police, the investigator and the public prosecutor or 7

I.L. Petrukhin, Teoreticheskie osnovy reformy ugolovnogo protessa v Rossii Part II (ProsProspekt,, Moscow,, 2005), 122; Mikhailovskaia, op.cit. note 4, 9 and 216-217. 217. 17.

8

Franz, op.. cit. note 4, 221; Petrukhin, op.cit. note 7, 123.

9

For instance, in the Decision of the CCRF of 20 April 1999, republished in Konstitutsionyi sud Rossiiskoi Federatsii: Postanovleniia.Opredeleniia 1999 (Iurist”, Iurist”,, Moscow,, 2000), 78, the court explained the principle of adversary procedure in the following way: “This principle in criminal proceedings means above all a strict delimitation of the judicial function of deciding cases and the function of the prosecution which, thus, is realized by different subjects.” For an English translation of the case, see Stephen C. Thaman, Comparative Criminal Procedure:A A CasebookApproach Casebook Approach (Carolina Carolina Academic Press,, Durham, NC,, 2002), 181.

10

“O kontseptsii sudebnoi reformy”, VVS RSFSR (1991) No.44 item 1435, reprinted in Kontseptsiia sudebnoi reformy v Rossiiskoi Federatsii (Respublika, Respublika,, Moscow,, 1992), 62 (hereinafter “Concept of Judicial Reform”); Mikhailovskaia, op.cit. note 4,, 114-15; I. L. Petrukhin, “Sud prisiazhnykh: Problemy i perspektivy”, Gosudarstvo i pravo (2001) No.3, 8.

11

The Germans share this view. See Claus Roxin, Strafverfahrensrecht (Beck, Beck,, München,, 24th ed. 1995), 50; Wolfgang Wohlers, Entstehung und Funktion der Staatsanwaltschaft (Duncker Duncker & Humblot,, Berlin,, 1994), 28-31.

12

This theory is still propagated, despite the fact that the procurator has the ability to reject the investigator’s pleadings, send the case back for further investigation, etc. See I. F. Demidov, “Proekt UPK v svete ego osnovnykh poniatii”, in Sudebnaia reforma v Rossii: Problemy sovershenstvovaniia protsessual’nogo zakonodatel’stva (GoroGorodets,, Moscow,, 2001), 233-235; 235; 35; L. A. Kurochkina, “O deiatel’nosti prokurora v stadii sudebnogo razbiratel’stva”, in id., 249.

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procurator, or, in the words of §20 UPK RSFSR, to “take all measures provided by law towards the all-sided, complete and objective investigation of the circumstances necessary and sufficient to decide the case”. This provision was not merely theoretical, for before the 1993 Jury Law required prosecutors to appear in all jury cases and the §246(1) UPK RF required them to appear in all non-jury cases as well, prosecutors did not even show up for trial in more than 50% of all cases, thus leaving the task of determining the truth to the trial judge, who became, in essence, an ersatz prosecutor who was compelled to prove the truth of the charge.13

II. Separation of Powers: Enabling the Judiciary to Acquit Structurally Solidifying the Independence of the Judiciary “Do you know any of the Russian judges?” Anthony Kennedy asked Richard Goldstone. “They are so resilient.” “I’ve met good and bad”, Goldstone replied. “Now the court belongs to the President—Vladimir Putin.” (Conversation between US Supreme Court Justice Anthony Kennedy and Richard Goldstone, South African Constitutional Court Judge and former Prosecutor of the International Tribunal for the Former Yugoslavia.) .))14

One of the main goals of judicial reform in Russia since perestroika has been that of creating a judiciary truly independent from the executive branch, whether in the form of a political party, as was the case in Soviet times, federal or local executive branch officials or the procuracy. Although judges in pre-revolutionary Russia enjoyed appointments for life, under Soviet law, judges were elected for five-year terms and would not be proposed for re-election by the Communist Party if they had not performed to its liking.15 The 1992 Law on the Status of Judges and the 1993 Constitution of the Russian Federation (hereinafter “Const. RF”) provided that the 13

Thaman, op.cit. note 2, 67. Peter H. Solomon, Jr. and Todd S. Foglesong, Courts and Transition in Russia: The Challenge of Judicial Reform (Westview, Westview,, Boulder, CO,, 2000), 126. Cf. “Concept of Judicial Reform”, op.cit. note 10, 27; Franz, op.cit. note 4, 61. As late as 1998-1999, 1999, 99, prosecutors were absent in anywhere from 53% to 64% of trials according to a study of certain courts in the city of Krasnoiarsk. Stanislaw Pomorski, “Justice in Siberia: A Case Study of a Lower Criminal Court in the city of Krasnoyarsk”, 34 Communist and Post-Communist Studies (2001), 462. Soviet theory saw the judge as just another law enforcement official with the duty to determine the truth, and, as last in line he was obligated to ratify the results of the investigations conducted by police, investigator and prosecutor. T.G. Morshchakova, “O Rossiiskoi sudebnoi reforme”, in id., Rossiiskoe pravosudie v kontekste sudebnoi reformy (R. R. Balent,, Moscow,, 2004), 178.

14

Jeffrey Toobin, “Swing Shift”, New Yorker, 12 September 2005, 48.

15

Morshchakova, op.cit. note 13, 181-182. 182. 82.

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President, and not local governmental authorities, would appoint judges at the local level so as to free judges from local tutelage, and provided for the non-transferability and non-removability of judges until the retirement age of sixty-five.16 Housing was guaranteed so as to liberate judges from dependency on local officials who otherwise controlled the housing stock and could use this as a lever to influence judicial decision making, while judicial salaries were set at a comparatively high level.17 The promise of the 1992 law was undercut by amendments which introduced three-year probationary periods for judges which implicitly allows them to be removed, if they are not performing to the satisfaction of executive branch officials, the presiding judge of the court, or the higher judicial hierarchy.18 The failure of the federal government to adequately fund the judiciary in the mid-to-late 1990s also caused judges to fall into renewed dependency on local government officials for housing, staffing and renovation of courthouses, etc.19 At the time of this writing, commentators generally see an increasing dependency of the judiciary on the Office of the President of the Russian Federation, Vladimir Putin.20 This has been achieved by the presidency’s 16

This was a recommendation of the “Concept of Judicial Reform”, op.cit. note 10, 45.

17

Thaman, op.cit. note 2, 75-76.

18

Morshchakova, op.cit. note 13, 183.

19

Peter H. Solomon, Jr., “Putin’s Judicial Reform: Making Judges Accountable as well as Independent”, 11 East European Constitutional Review (2002), 119, talks of the “sponsorship” of courts by regional and local governments and private firms, and by compensation packages for individual judges that included bonuses and perks (such as apartments) arranged by the chairmen of courts and their friends in local government. Gordon B. Smith, Reforming the Russian Legal System (Cambridge Cambridge University Press,, Cambridge, UK,, 1996), 16, cites a University of Toronto study that found that more than half of the 300 district court judges questioned received money from regional governments. In 1996 and 1997 58% of courts received some “help” from local governments and one out of 7 judges reported receiving aid from private sources. 7% of judges surveyed reported that specific demands accompanied the assistance they received and of those receiving support from private firms, 22% admitted that the support had some influence on their handling of cases. Sergei Pashin has reported that Moscow Mayor Iurii Luzhkov has been paying bonuses to all Moscow judges (apparently between 1,500 and 2,000 rubles for district level judges) several times a year. Human Rights Watch, Confessions at Any Cost: Police Torture in Russia (Human Human Rights Watch,, New York, 1999), 115.

20

Sergei Pashin, a former Moscow City Court judge and one of the most prominent reform voices in the El’tsin years, claims the new dominance of the presidency over the courts is a result of the influence of Dmitrii Kozak, the Putin Administration’s head of judicial reform, who was also influential in pushing through the UPK RF and other laws. Evgenii Natarov, “Sudy Bogdykhanov”, Gazeta.Ru., 26 November

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control of the chairpersons of the courts through its power of appointment and of the rank and file through a substantial raising of salaries.21 So, one could say there is a vertical of dependency: lower district court judges are controlled by the chairpersons of their respective courts,22 and the courts themselves by the hierarchy in the second-level courts of general jurisdiction (the regional, territorial courts, the Moscow and St. Petersburg City Courts and the Republican Supreme Courts, the jury trial courts).23 They in turn are controlled by the Supreme Court of the Russian Federation. Finally, the President has the last word on appointment power and the power of the purse. In the individual case, four variants of “telephone law” are still persistent: influence by federal and local administrative officials; influence by the chairpersons of the courts; influence by the prosecutor’s office; and the influence of private money, i.e., bribery. There continue to be reports that local administration officials will call judges to suggest how they should best decide cases.24 In the trial courts, judges will either discuss a civil case with the chairperson of the court to determine the proper way of deciding it,25 or, in criminal cases, sit down with the procurator and determine in advance 2003, available at (Indem: 11.14-30.03). A reform in 2001 reduced the term of the chairpersons of the various courts from life to six years, thus making them more dependent on the President’s administration. “As Increasing Executive-Branch Influence on the Judiciary is Decried”, RFE-RL, 11 August 2004. 21

According to Dmitrii Kozak, the administration intended to raise judicial salaries fourfold in 2006 in order to reduce the dependence of judges on regional government. Grigorii Vdovin, “Razrabotka reformy zaniala okolo chetyrekh mesiatsev”, Strana ru, 26 May 2001,, available at . >.

22

The chairpersons of courts and, now, the new Judicial Administration, decides when judges can get money to remodel their apartments, etc. Morshchakova, op.cit. note 13, 193.

23

According to Solomon and Foglesong, op.cit. note 13, 49-51, “stability of sentences” and absence of reversals determines whether a district court judge is promoted. Every judge and every district court has an appointed supervisor (kurator) in the higher level court who functions as an informal “mentor” and as the official judge of their decisions in cassation. Cf. Pomorski, op.cit. note 13, 455.

24

Pomorski, op.cit. note 13, 474-475, 475, 75, was made aware of this during his Krasnoiarsk study and concludes: “Behind a thin façade of a new legal ideology, the band plays an only slightly modified old tune.” Id., 476.

25

Human Rights Watch, op.cit. note 19, 115-16. Smith, op.cit. note 19, 29, notes that all judges interested in appointment need to appear obedient and display loyalty to the chairperson of the court.

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what the outcome will be.26 Judges who buck the will of the prosecutor or the judicial hierarchy are either reassigned to handle trivial cases or hounded out of the judiciary altogether.27 Moscow City Court judge Ol’ga Kudeshkina revealed on Moscow radio that the Office of the Procurator General was pressuring Moscow City Court judges to decide cases a certain way, and that Chairperson Elena Egorova was supporting them by attempting to suspend any judges who resisted.28 She also claimed in an open letter to President Putin that more than eighty Moscow City Court judges had quit because of being unable to tolerate Egorova’s heavy-handed methods.29 Political cases are routinely transferred to one of the compliant Moscow District Courts, such as that of the Basmanyi District, or to Moscow City Court, where judges are known to grant all of the prosecutor’s motions and where Chairperson Egorova, who also controls the Qualifications Collegia which discipline judges, routinely has judges suspended or expelled 26

Pashin notes that fear of reversal induces judges to work out a solution in criminal cases that is acceptable to the procurator so there will be no appeal. Sergei Pashin, “Mertvye dushi?”, Novye izvestiia, 11 September 2003; Human Rights Watch, op.cit. note 19, 115-117. 117. 17. A natural closeness between judges and prosecutors can also be explained by the fact that, as in the US, many judges are former prosecutors, police officials or investigators, at least 32% according to a recent study. Vladislav Kulikov, “Sud’i seli”, Rossiiskaia gazeta, 28 January 2004 (Indem: 1.25-2.7.04). See, also, Tamara Morshchakova, “Printsip nezavisimosti i mekhanizm zavisimosti”, Gazeta.ru., 31 March 2005, available at , >,, also emphasizes the fact that judges are afraid to rule against the procuracy and are transferred or suspended if they do.

27

Sergei Pashin says he refused to follow the orders of members of the procuracy and the president of the court to ignore obvious signs of torture in the trial of three suspects for kidnapping a Russian businessman and subsequently received no more serious cases, and was later expelled from the judiciary. Andrew Jack, “Justice System”, Financial Times, 9 April 2001, reprinted in Pericles Russian Law Letter, available at . >.. For the story of three Novosibirsk judges who were removed after refusing to follow orders of the chairperson of the court, see Konstantin Poleskov, “Tudy-sudy: Tainy soveshchatel’nykh komnat”, Novaia gazeta, 5-8 August 2004, 10-15, available at . Particularly notorious was Zhumabai Ramazanov, ex-president of Astrakhan Regional Court (and former judge of the SCRF and the Soviet Supreme Court), who never sat on a case or in any meeting of the presidium of the court, but evaluated cases and told judges how to decide them. Zoia Svetova, “Astrakhanskie uzly”, Russkii kur’er (web-sait), 28 August 2003 (Indem: 8.22-28.03).

28

“Supreme Court Upholds Dismissal of Judge for Criticizing Prosecutors”, RFE-RL, 20 January 2005.

29

Ol’ga Kudeshkina, “Otkrytoe pis’mo prezidentu RF V.V. Putinu”, Novaia gazeta, 14 March 2005, available at .

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from the judiciary if they refuse to accede to the prosecutor’s demands.30 In general, the chairperson of the court has unlimited power to assign any case to any particular judge, violating the right under Article icle 47(1) of the Russian Constitution to have one’s case heard by “the court and judge to whose jurisdiction it is assigned by law”.31 The fourth source of “telephone law” would be that of private bribery which, while perhaps more rampant in the civil and economic courts, also takes place in the criminal courts.32 Corruption is, even according to officials of the presidential administration, the main reason why public trust in the courts is abysmally low.33 Furthermore, as we will see in the jury trial jurisprudence, the SCRF actively develops binding guidelines for lower court judges that, in principle, instruct them how to decide cases and wise trial judges will not challenge these norms for fear of either not advancing in the judicial hierarchy or of even not surviving their probationary period. The standards set by

30

Ekaterina Zapodinskaia, “Samyi Basmannyi Sud v Mire”, Kommersant” Vlast’, 3 November 2003, available at . This happened to Mikhail Khodorkovskii who was flown to Basmannyi District Court though it was not the closest district court. See, also, Basmannoe pravosudie: Uroki somooborony. Posobie dlia advokatov (Publichnaia Reputatsiia, Moscow, 2004), 83-84.

31

On this version of “judge shopping”, see Solomon and Foglesong, op.cit. note 13, 4748. In Germany, where the Art.101(1) of the Basic Law contains a similar provision, the courts are required to develop a plan to distribute cases which determines in advance to what court a case will go so it will not be subject to the discretion of the chairperson of the court. The chairperson, however, still has the power to determine which judge will be presiding judge or rapporteur in the case. Hans-Heiner Kühne, Strafprozessrecht (C.F. Müller, Heidelberg, 6th ed. 2003), 64-65.

32

For discussions of “price-lists”, see Marina Gridneva, “Sud prodazhnykh”, Moskovskii komsomolets, 3 July 2003 (Indem: 7.1-7.03).

33

Ivan Sukhov, “Nastorazhivaiushchii pokazatel’”, Vremia novostei ovostei, 28 January 2004, available at . In early 2004, a poll found that 53% of the population felt the courts were ineffective and 17% had no confidence in them. Id. Later in the year, another poll found that 46% of respondents had a negative attitude toward judges and only 12% agreed that most judges are honest and incorruptible. 62% said that judges do not base their decisions solely on the law, but on “other considerations” as well. Of those who said so, 40% said those considerations include judges’ personal interests, and 8% said they include political pressure from other branches of government. “Public Confidence in Judges Weak”, RFE-RL, 18 October 2004. A poll in 2002 revealed that 78.6% of those questioned agreed with the statement: “Many people do not resort to the courts because they do not expect to find justice there.” Mikhail Krasnov, “Is the ‘Concept of Judicial Reform’ Timely?”,, 11 East European Constitutional Review (2002), 94.

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the SCRF continue to “zigzag” with the law enforcement policies of the government much as was the case in Soviet times.34 In the words of Stephen Holmes, Russia has created a “rule by law”, rather than a “rule of law” system, in which power “is tightly held by a small social elite that uses the legal system to protect and consolidate its privileges and power”, whereas in a “rule of law” system “power is fragmented and dispersed among rival social groups and organized interests, none being powerful enough to work its will by intimidation or force”.35 Professional Judges’ Continuing Unwillingness or Inability to Acquit Of course, the clearest proof of a new independence of trial judges in the post-Soviet Russian system, would be a rise of the percentage of acquittals in criminal cases returned by professional courts (or courts with lay assessors before 2003) than existed before the reforms began. The rise in the rate of acquittals should be ineluctable considering the universal recognition that the quality of criminal investigations is still abysmally low, probably worse than it was in Soviet times, and public opinion reveals a complete lack of distrust of police and law enforcement officials. Since the people’s assessors in Russia had notoriously little if any effect on the guilt issue in criminal cases, we can treat the statistics relating to the court with lay assessors, and the cases tried by single judges and three-judge panels as one category in trying to determine whether the non-jury courts began to acquit more after the reforms, thus revealing an increased independence they did not enjoy or express during Soviet times. The authors of the “Concept of Judicial Reform” were aware that pre-revolutionary Tsarist courts acquitted around one-third of all defendants and the Soviet regular courts acquitted one in ten defendants even in Stalin’s times.36 34

It is disputed whether the SCRF’s “Explanations” are “exercises of statutory interpretation” or the development of “independent normative sources of law”. While a 1981 law made them binding on all lower courts, a 1996 law has reduced them to mere persuasive authority. Peter Krug, “Departure From the Centralized Model: The Russian Supreme Court and Constitutional Control of Legislation”, 37 Virginia Journal of International Law (1997),, 735-736. 736. 36. Morshchakova, op.cit. note 13, 193, interprets the SCRF’s Explanations as, however, being “quasi-normative” and still binding on the lower courts. For an opinion supporting the continuing use of “Guiding Explanations”, but for eliminating the SCRF plenary’s commentaries on judicial practice, see Solomon and Foglesong, op.cit. note 13, 53-54. (I fail to see the difference in the function of these two practices.) .))

35

Stephen Holmes, “Reforming Russia’s Courts: Introduction”, 11 East European Constitutional Review (2002), 90-91.

36

“Concept of Judicial Reform”, op.cit. note 10, 11. But acquittals were less than 1% in 1991 at the time of its writing, and less than one-third of a percent were actually acquitted due to innocence.

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Before the passage of the UPK RF in 2001, cases were handled by either the jury court, the mixed court with lay assessors, panels of three judges or a single judge.37 Pomorski noted in his study of some Krasnoiarsk courts, in the late 1990s, that no court ever acquitted. In fact, there was a “no acquittal” policy. Though judges acknowledged the miserable quality of the preliminary investigation, they knew that all acquittals were overturned if the prosecutor (who hardly ever appeared in court) appealed. This converted the trial court, in reality, into a mere sentencing court, imposing the judgment sanctioned in advance by the prosecutor. As a result of their lack of power, many judges were actually eager for the introduction of jury trials, which began in January 2003.38 The statistics for the three-judge panels are remarkable. From 1994 through 1998, 1,564 persons were tried before the rarely used three-judge panels (which were a possible alternative for trial by jury), and not one person was acquitted! Only twenty-two were not convicted because their cases were returned for further investigation.39 In the first three years following passage of the UPK RF in 2001, the overall acquittal rate (including jury trials) rose from 0.3% .3% to 0.9%. .9%.40 This, however, is still an infinitesimal rate when one bears in mind the lack of professionalism of criminal investigators, and the lack of credibility of the evidence they gather to support the prosecutions. We will now evaluate whether the introduction of jury trial has helped in eliminating the reasons for “telephone law” and the crude subjugation of professional judges to the procuracy41 by allocating to the jury, rather 37

Juries and three-judge panels heard cases punishable by more than fifteen years in prison or the death penalty (until a moratorium was declared in 1996). §15 UPK RSFSR. A mixed court of one judge and two lay assessors handled cases punishable by between five and fifteen years, and a single judge would hear cases where punishment did not exceed five years. §35 UPK RSFSR.

38

Pomorski, op.cit. note 13, 456-458. 458. 58. Human Rights Watch noted that the procuracy and the appellate courts go over acquittals meticulously to find any reason to reverse whereas guilty judgments are accepted with little scrutiny. To enforce this “no-acquittals” policy, the SCRF routinely reverses a much higher percentage of acquittals (which constitute less than one-half of 1% of all judgments) than they do of convictions. For instance, in 1996, it reversed 29.4% of acquittals and only 2.2% of convictions, and in 1997, 33.1% of acquittals and only 2.5% of convictions. Human Rights Watch, op.cit. note 19, 118-119. 119. 19.

39

V. V. Mel’nik, Iskusstvo dokazavaniia v sostiazatel’nom protsesse (Delo, Delo,, Moscow, 2000), 42. The Ministry of Justice confirmed the lack of acquittals for the years 1994-1996. “Miniust podvodit itogi raboty sudov”, Rossiiskaia iustitsiia (1996) No.8, 4.

40

Petrukhin, op.cit. note 7, 101. Sergei Pashin noted that district court judges acquitted only 0.73% .73% of all defendants in 2002. Pashin, op.cit. note 27.

41

Another reason judges are afraid to acquit is that law enforcement organs will blatantly violate the law and re-arrest the defendant after the acquittal, and hold him

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than the professional judge, the resolution of the most important issue in a criminal trial, that of guilt.42

III. Separation eparation of Powers: Has the Jury as Independent Guilt-Finder Promoted the Toleration of Acquittals?? Strategies to Avoid Trial by Jury and Insure that Judges Determine Guilt Waiver of Trial by Jury Despite the virtual impossibility of obtaining an acquittal in the non-jury courts, more Russian defendants subject to jury court jurisdiction have chosen to be tried by the court with lay assessors (“nodders”) before 2003, or a three-judge or single judge court thereafter. In the first nine months of jury trial between 1 January and 1 September 1994, jury trials were requested in only 254 of the first 1,465 cases filed in the original nine jury trial jurisdictions. My original conclusion, after having interviewed many prosecutors, lawyers, and judges involved in the first cases, was that investigators, prosecutors and reluctant defense lawyers convinced the defendants to forego the new trial procedure, because of their reluctance to change their old ways and fear of the demands placed on them by the new system. In fact there is evidence that law enforcement officials pressure lawyers to get their clients to waive the right to jury trial. Undercharging the Case to Avoid Trial by Jury There is a long history in Europe of intentionally avoiding trial by jury by intentionally undercharging the case, so that it will not fit the criteria for trial by jury. This is done in England and Wales in relation to so-called “either-way” offenses that may be tried before a jury or the magistrate’s court composed of three lay judges, or in France through a non-codified practice called correctionnalisation.43 on other trumped-up charges or until the case can be appealed. For a discussion of the Litvinenko/Gusak case (Moscow Military Court), where this happened on 26 November 1999, see “Pokushenie na nezavisimost’ suda: Sovremennye khroniki”, Rossiiskaia iustitsiia (2000) No.2, 3;; I.L. Petrukhin,, “Sudebnaia vlast’, razdavlennaia politseiskim sapogom”, Rossiiskaia iustitsiia (2000) No.2, 4-5. 42

According to former Ivanovo jury court judge and current judge on the Cassational Panel of the SCRF, Valerii Stepalin: “Ask a judge nowadays who tries cases in the jury courts and he answers, that it is just in that form of procedure that he feels he is a judge, and not a lackey of the prosecutor, required to rewrite the accusatory pleading in the judgment.” V. Stepalin, “Sudebnyi marafon s prepiatstviiami”, Rossiiskaia iustitsiia (1998) No.3,, 7.

43

Thaman, op.cit. note 9, 141-143. 143. 43.

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In Russia in the first full year of jury trial nearly all of the cases tried were for aggravated (potentially capital) murder, with only twelve of the first one hundred-nine trials involving a non-capital crime (bribery, etc.), which were also subject to the jury court’s jurisdiction. One can only surmise that investigators and prosecutors were intentionally charging other offenses to avoid the jury court’s jurisdiction, as was openly the case in Spain which also included some fairly minor crimes within the jury court’s jurisdiction.44 More recently, investigative journalists have reported that Russian investigators are explicitly engaging in this practice to avoid jury trials.45

IV. The he Question of Jury Nullification The “sphinx like” general verdict of “guilty” or “not guilty” in American and British jury trials and the non-appealability of acquittals, enable juries to sometimes render a verdict contrary to the facts and the law. But it must be remembered that juries are virtually never instructed as to their power to nullify the law.46 The trifurcation of the guilt question in Russian special jury verdicts which allowed the jury to acquit even when all the elements of the crime had been proven, roven, was criticized by Foinitskii as being French legalistic casuistry which had been rejected by Germany.47

44

Stephen C. Thaman, “Europe’s New Jury Systems”, in Neil Vidmar (ed.), World Jury Systems (Oxford Oxford University Press, Oxford, 2000), ),, 325-326. 326. 26.

45

Georgii Tselms, “Gospoda prisiazhnye, zabud’te […]”, Russkii kur’er, 24 January 2004 (Indem: 1.25-2.7-04). Pashin notes that the investigator will charge, instead of murder with aggravating circumstances, “infliction of serious injuries to health causing the death of the victim” which is not subject to jury trial. Pashin interviewed in Leonid Nikitinskii, “Prestuplenie i opravdanie”, Moskovskie novosti, 8 April 2003 (Indem: April 7-11.03), 152.

46

See United States v. Dougherty, 473 F2d 1113, 1132-37 (DCCir. 1972) for the classic enunciation of this principle.

47

I.Ia. Foinitskii, Kurs ugolovnogo sudoproizvodstva (Al’fa, ’fa, fa, St. Petersburg,, 1996), reprint of 1910 edition. Vol.II, 457-458. 458. 58. Foinitskii was not in favor of recognizing the jury’s power to nullify and was a proponent of amending the laws to prevent the influence of “public opinion” in the jury’s guilt decisions. Id. 360-61. He cites later opinions of the Cassational Senate from 1904-1905 1905 05 which held that the presiding judge had to instruct the jurors that they would violate their duties if they answered negatively as to guilt, if they were convinced that the defendant committed the criminal act and the act included the necessary elements of the crime. Id., 452. The new Spanish jury law avoids these problems by declaring that such a verdict is legally contradictory, and in such a case the judge would have to return the jury to the jury room to correct the inconsistency. Stephen C. Thaman, “Spain Returns to Trial by Jury”, 21 Hastings International and Comparative Law Review (1998), 377-378. 378. 78.

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The official position of the pre-revolutionary Cassational Senate was that the third question relating to guilt was designed to relate to the classic excuses or justifications of the criminal law: insanity, unconsciousness, mistake, deception, or self-defense.48 This position has been followed by some voices in the modern literature.49 But juries did nullify before the revolution, such as in the Vera Zasulich case in 1878, and such acquittals were welcomed by many in the legal community, including the famous judge in that case, A. F. Koni: “Jurors are asked not whether the defendant committed the criminal act, but whether he is guilty of having committed it; not the fact, but the inner aspect thereof and the personality of the defendant expressed therein, is for their decision. With its question as to guilt, the court establishes a general gap between fact and guilt and requests that the jury, based exclusively on the ‘conviction of its conscience’ and mindful of its great moral responsibility, bridges this gap with considerations, that determine whether the defendant is guilty or not-guilty.”50

This broad approach to the jury’s guilt decision is seconded by BobrishchevPushkin who saw juries as “self-proclaimed legislators”, and their verdict as “social facts” which should be considered by the actual legislators in revising outdated and unpopular laws. He wrote that the “[…] content of the word ‘guilty’ in the verdict of the jury, embraces such a countless quantity of aspects of the offense, particularities in the personality of the defendant, shades of the manifestations of his will, utilitarian and ethical considerations, which can possibly be contained in each separate case, that it can never be rendered precise either by the law, by morals or by a complete juridical understanding.”51

Russian juries before the Bolshevik Revolution would exercise the power of so-called “nullification” typically in the following situations: (1) to prevent the enforcement of unpopular laws; (2) to apply popular social notions as 48

M. Selitrennikov, O postanovke voprosov na sude ugolovnom, po resheniiam Kassatsionnogo Senata (A.M. Kotomin, St. Petersburg,, 1875),, 254. Kucherov, op.cit. note 3, 66-67, claims that the Cassational Senate allowed nullification in a decision of 1870, but reversed itself in 1884. In 1894 it ordered judges to instruct juries that they must convict if convinced of guilt. Juries, of course, often ignored this.

49

Petrukhin, op.cit. note 7, 133, alludes that the third “guilt” question refers to the subjective side of the offense, the presence of negligence, self-defense, etc. See, also, Petrukhin, in Kommentarii k Ugolovno-protsessual’nomu kodeksu Rossiiskoi Federatsii (Kodeks, Moscow,, 2003), 417.

50

A.F. Koni, Sobranie sochinenii Vol.4 (Iuridicheskaia Iuridicheskaia literatura,, Moscow, 1967), 201.

51

Bobrischev-Pushkin, Empirecheskie zakony deiatel’nosti Russkogo suda prisiazhnykh (A.I. A.I. Snegireva,, Moscow, 1896), 38-39. Juries would “determine whether the act of the defendant was an evil which must be punished as a dangerous or immoral act, or just something prohibited by law. If this question is difficult or too controversial, they either acquit, or limit themselves to an exact establishment of factual details in their answers, leaving the decision on the question of law to the judge”. Id., 584-585. 585. 85. They also acquit at times just to prevent the judge from unjustly formulating the juridical consequences of the verdict. Id., 380.

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to the relative seriousness of certain conduct which differed from those expressed in the criminal law; (3) to prevent the imposition of what they viewed to be excessively severe sentences; (4) to correct for injustices in the administration of criminal justice which were sometimes unrelated to guilt or innocence; and (5) for reasons of social custom completely unrelated to the facts of the case. Several of these situations are described below. Nullification Due to Social Attitudes Contrary to the Principles of the Criminal Law The following description of the relation of drunkenness to criminality in Tsarist Russia could just as well apply to the social situation in today’s Russia: “The question of the extraordinary use of alcoholic beverages represents one of the most serious social questions. Drunkenness as a vice in many cases in its most ruinous manifestation, is among things reflected in a great mass of different kinds of crimes committed primarily by simple people exclusively under the influence of their non-sober condition. Whoever has watched jury trials cannot but be struck by the huge number of cases in which drunkenness, a non-sober condition, reckless holiday drinking sprees, and different gross instincts arising due to the extravagant consumption of vodka, are the main, and sometimes the direct factors in the commission of the crime.”52

Due to its connection with so much crime, Russian law has traditionally considered drunkenness to be an aggravating factor in the imposition of sentence.53 But Tsarist juries viewed drunkenness at the moment of the commission of a crime in an entirely different way than did the old Russian penal code.54 Russian juries were aware that excessive consumption of alcohol could affect volition and consciousness, and therefore negate the mental states necessary for the commission of certain crimes and they often tried to gauge how much had been drunk and to determine if it was sufficient to diminish the defendant’s criminal responsibility.55 In the first 52

N.P. Timofeev, Sud prisiazhnykh v Rossii: Sudebnye ocherki (A.I. A.I. Mamontov,, Moscow, 1881), 380. Bobrishchev-Pushkin, op.cit. note 51, 577, also notes the “overwhelming and specific meaning of drunkenness in Russian life”.

53

In Tsarist Russia, it was an aggravating circumstance if it could be shown that the defendant drank liquor to summon up courage to commit a crime. Timofeev, op.cit. note 52, 381. Former §39(10) of the UK RSFSR made drunkenness an aggravating circumstance in all cases. Ugolovnyy Kodeks RSFSR (11 January 1961), cited from Zakony RSFSR i postanovleniia Verkhovnogo Soveta RSFSR (Supreme Supreme Soviet RSFSR,, Moscow, 1960), 75-76. This provision was eliminated from the new UK RF, enacted in 1995.

54

Ibid., 381. Bobrishchev-Pushkin, op.cit. note 51, 355-356. 356. 56.

55

Timofeev, op.cit. note 52, 382. Timofeev, a prosecutor, recalled a case in which the jury acquitted the defendant of mayhem and answered: “No, not guilty, and not

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year of modern Russian jury trials, the aggravating factor of drunkenness was alleged as to eighty-nine defendants in seventy-six of the first one hundred-nine trials to go to verdict. In forty-seven cases the defendants were convicted of lesser-included offenses or granted lenience.56 Cases in which battered and abused wives attacked their husbands have also been typically ones in which the jury has nullified or softened the law. In the Kras’kina case, a 1995 case out of Ivanovo, the jury answered the three crucial guilt questions in the following manner. 1)

2)

3)

Was it proved, that on 17 October 1994, at around 4:00 p.m. in apartment No. 1, at 8, Ul. Ul’ianova, in the city of Navoloki, Kineshemskii Raion, the victim Iurii Anatol’evich Smirnov was caused serious bodily injury in the form of a knife-wound to the brain, complicated by spinal shock, which caused his death in a short time, in minutes? (Yes, proved, unanimous). In the event of an affirmative answer to the first question, was it proved that the above wounds were administered to the victim, who was in a serious state of alcoholic intoxication, by the defendant. V.A. Kras’kina, who threw him to the ground and intentionally stabbed him once with a home-made knife, which she prepared specially for this purpose, having been dissatisfied with the conduct of her companion, who had expressed in a drunken stupor, profanity, and extorted money to buy alcohol? (Yes, proved, unanimous); In the event of an affirmative answer to the second question, is V.A. Kras’kina guilty of the intentional infliction of the above bodily injuries on Iu.A. Smirnov, intending or knowingly allowing him to die? (No, not guilty, unanimous).

This clear acquittal of a battered woman, through the exercise of jury nullification (no legal justifications or excuses were offered in her defense), was upheld by the SCRF on appeal in an opinion which upheld the jury’s right to nullify the law.57 Although Tsarist juries usually did not acquit a woman guilty, because he was not in a human shape”, (ne v chelovecheskom obraze) Id., 383. Bobrishchev-Pushkin, another prosecutor, also noted that drunkenness often led to juries not finding criminal intent in crimes of passion, but seldom in crimes of theft, unless the victim of the theft was also drunk. Bobrishchev-Pushkin, op.cit. note 51, 35 and 577-579. 579. 79. 56

Stephen C. Thaman, “The Jury as Catalyst for the Reform of Criminal Evidentiary Procedure in Continental Europe: The Cases of Russia and Spain”, in J. F. Nijboer and J. M. Reijntjes (eds.),, Proceedings of the First World Conference on New Trends in Criminal Justice and Evidence (Koninklijke Koninklijke Vermande,, Lelystad,, 1997), 405..

57

Kras’kina case (Ivanovo), Judgment 7.20.95. For an English translation of the verdict and the opinion of SCRF, see Thaman, op.cit. note 9, 197-198.Another 198.Another 98. Another alleged battered

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when she killed her husband while sleeping, in one pre-revolution case the jury found a peasant woman guilty of the lesser offense of infliction of bodily injury resulting in death without intent to kill, although she poured an entire boiling samovar onto his genitals while he was sleeping, locked the door of their hut, and let him suffer for five days until he died.58 Tsarist juries would also tend to be exceedingly lenient and even acquit in cases in which the defendant gave a full judicial confession and expressed remorse before the jury.59 Such in-court conduct was often more important for the jury than the evidence of past acts presented by the prosecutor.60 Timofeev noted that before 1864 criminal investigators used all kinds of tricks to get the suspects to confess, including the use of priests, but after the introduction of trial by jury defendants veritably threw themselves at the mercy of the jury.61 Vestiges of this old Russian tradition were evident in the third jury trial in Ivanovo, witnessed by the author, in which the defendant fully admitted guilt to all the charges in the accusatory pleadings, including attempted rape and aggravated murder, but claimed he did not remember doing any of them because of his drunkenness. The jury acquitted as to all of the most serious charges, most likely because the young man had no prior criminal record, had been a model village dweller, and appeared sincere in his remorse.62

woman did not fare so well, however. In the retrial of the Shaiko case (Ul’ianovsk), No.80-kp-096-33sp (9.24.96), the defendant was convicted of aggravated murder after her conviction for homicide in the heat of passion of her battering husband was overturned. In the retrial, the trial judge refused to allow the defendant to admit evidence of the bad character of her husband and his previous acts of violence, thus making a nullification or sympathy verdict more difficult. The SCRF refused to set aside the conviction. Shaiko case (Ulianovsk),, No.80-kp-097-28sp (6.3.97). 58

Cited in Bobrishchev-Pushkin, op.cit. note 51, 389.

59

Ibid bidd.,, 207.

60

Ibid. bid. d., 32.

61

Timofeev, op.cit. note 52, 23-24. In one judicial district, 22 of 33 defendants pleaded guilty in front of the jury. Id., 24. One attorney claimed that 26 of 84 clients pleaded guilty in the first year of jury trials, forty-two of one hundred-twelve in the second and fifty-nine of one hundred-six in the third. Id.,, 23. Timofeev also tells the story of a sympathetic peasant woman who was on trial for trying to poison her tyrant husband. Jail-house lawyers told her to admit her guilt and the jury would surely acquit. She stubbornly asserted innocence and was found guilty. When asked about her unwise decision, she told her fellow cellmates that she preferred exile and hard labor to her “unwanted forced labor” with her husband. Id.,, 24-25.

62

Kulakov case (Ivanovo), Judgment of 2.11.94, Upheld by SCRF, No.7-kp-094-7sp (4.20.94). See Thaman, op.cit. note 2, 104-105 and 159-160. 160. 60.

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Sanction Nullification Tsarist juries often acquitted because they felt the provisions of the sentencing rules of the code were too severe.63 Theft by force, for instance, was punished much more severely than secret theft, yet many jurors saw the sneak thief as a more dangerous social menace. They would therefore often acquit the strong-arm robber. The same was true of burglary and theft when only something of insignificant value was stolen.64 Nullification to Correct for Injustices in the Administration of Criminal Justice Juries in Tsarist Russia often acquitted the defendant in cases in which s/he had spent a long time in pre-trial detention, due to the snail’s pace of criminal investigations at the time.65 The “premature doing of time” was considered, in the eyes of the jury to be a completely adequate basis for acquitting defendants who, under other conditions, would be found guilty.66 Attempts to make the defendant appear to be a victim of the system, despite having committed a serious crime, were certainly instrumental in the acquittal of O.J. Simpson and played a considerable role in the first modern Russian jury trials, in which defendants claimed that their confessions of guilt during the preliminary investigations were the results of police use of coercion, threats, or promises.67 Such attempts by the defense to gain sympathy with the jury, but also to explain why they confessed to crimes they claimed they did not commit, have been greatly undermined by subsequent decisions of the SCRF which have reversed acquittals and otherwise pro-defense verdicts because the lawyer, the defendant, or witnesses have tried to convince the jury that the defendant’s earlier incriminating statements had been the product of unlawful force, 63

Juries’ knowledge of the severe punishments led them to return seemingly illogical verdicts. Minister of Justice N.V. Murav’ev attributed the high percentage of acquittals to “the cruel provisions of the Criminal Code which no longer meet the requirements of life”. Kucherov, op.cit. note 3, 70-71. Pre-revolutionary theorists Butkovskii and Viktorskii also acknowledge that many acquittals were to avoid the “antiquated punishments” or lack of proportionality thereof. Discussed in L.M. Karnozova, Vozrozhdennyi Sud Prisiazhnykh (Nota Nota Bene,, Moscow, 2000), 225-226. 226. 26.

64

Timofeev, op.cit. note 52, 267-271.

65

Bobrishchev-Pushkin, op.cit. note 51, 207. Juries would also acquit if they were aware that the defendant’s co-partner in crime had escaped punishment.

66

Timofeev, op.cit. note 52, 387.

67

On the allegations of coercion in the first year of modern Russian jury trials and of use of torture by Russian criminal investigators, see ee Thaman, op.cit. note 2, 103-104. 104. 04. In three of sixteen prosecutions for multiple murders, juries acquitted despite the fact of a previous confession. Id., 137.

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threats, or other tactics by the investigator.68 Tsarist juries would base their verdicts on coerced confessions, which were also not uncommon then, if the admissions were corroborated by independent evidence.69

V. Nullification ullification of Nullification:: The he Mass Reversal of Acquittals by the Supreme Court of the Russian Federation “Our obtuse, our blinkered, our hulking brute of a judicial system can live only if it is infallible.” Alexander Solzhenitsyn, The Gulag Archipelago70

The Appealability of Acquittals and the Impossibility of Nullification The ability of the jury to acquit on its intime conviction based on reasons perhaps unrelated to the technical legal proof of guilt is only possible if acquittals are, as in the US, not subject to appeal.71 Although the SCRF has occasionally allowed a “nullifying” acquittal to stand, such as in the Kras’kina case, it has persistently reversed acquittals, especially in particularly heinous murder cases, often involving more than one victim, where the jury is clearly not nullifying, but doubts the quality of the prosecution evidence. This section will first discuss the lack of adversarial procedure at the appellate stage of proceedings, which allows the SCRF to comb the record of the trials and sua sponte select often pretextual reasons for overturning acquittals (and occasionally convictions), and will discuss how the procedure allows prosecutor and judge to actually connive to build in reversible error in cases at the pre-trial and trial level. It will then provide the statistics relating to reversals of acquittals in general and note how many of these reversals are in very serious murder cases. Finally, it will outline the way the SCRF has manipulated the new principles of adversary procedure to reverse acquittals based on denial of the adversarial and equal 68

See brief discussion in the Prologue dealing with exclusion of testimony as to coerced confessions and infra, in discussing reasons for reversals of acquittals.

69

Bobrishchev-Pushkin, op.cit. note 51, 527.

70

Alexander Solzhenitsyn, The Gulag Archipelago Vol.3 ol.3 (Collins Collins Fontana,, Glasgow, 1979), 520.

71

One could restrict appeals of acquittals to instances where fraud was used to obtain them, but there is little precedent in Anglo-American jurisprudence in this respect. David S. Rudstein, "Double Jeopardy and the Fraudulently Obtained Acquittal", 60 Modern Law Review (1995), 607, 620-635. However, an Illinois court recently reversed an acquittal in a court trial procured through bribery, and the 7th Circuit let the decision stand. People v. Aleman, 667 NE2d 615, 623-27 (Ill. App. 1996); Aleman v. Honorable Judges of Cook County Circuit Court, 138 F3d 302, 307-08 (7th Cir. 1998).

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protection rights of prosecutors and aggrieved parties, as well as on other grounds, such as jury selection and jury misconduct. The Lack of Adversary Procedure in the Appellate Courts Soviet trial courts avoided acquittals, not only so as not to incur the wrath of the all-powerful Procuracy, but also due to fear of being reversed by the higher courts. Soviet appellate courts acted more like administrative review agencies than courts, responding to pleadings by the contesting parties. Lower courts were under the tutelage of their superiors in the higher branches, who issued “recommendations” to lower courts on how to handle particular types of cases. This practice in Russia has been criticized by Solomon and Foglesong though they do not recommend that the SCRF cease the practice, citing the opinion of the judges that such recommendations are helpful.72 Article 127 of the RF Constitution provides for adversary procedure in the courts and the Supreme Court and other appellate courts should be limited to deciding issues which are raised in concrete cases by the parties (the defendant, prosecutor, and the victim or aggrieved party). The SCRF has used its unlimited power to review jury court decisions in cassation, to comb the file and to reverse jury verdicts (often acquittals) on grounds that were not even raised by the appellants (whether public prosecutor or victim).73 The ability for appellate judges to thus substitute themselves for jurors in determining guilt was easier under the UPK-RSFSR because reversals could be based on “one-sidedness or incompleteness of the inquest, preliminary investigation, or trial”,74 which gave the SCRF in jury cases the power to determine that new evidence of guilt could have been introduced at trial.75 This seems to be a complete violation of the 72

Solomon and Foglesong, op.cit. note 13, 54. I have personally overheard telephone conversations between judges of the Cassational Panel of the SCRF discussing the proper way to handle questions in jury cases with trial court judges during my visits to the SCRF.

73

Although Mikhailovskaia, op.cit. note 4, 109, claims that §360(2) UPK RF eliminated the SCRF’s ability to go beyond the appellate issues raised, this is belied by §22 Postanovlenie No.1 Plenuma Verkhovnogo Suda Rossiiskoi Federatsii ot 5 marta 2004 “O primenenii norm Ugolovno-protsessual’nogo Kodeksa RF”, available at > in which the doctrine is upheld.

74

§343 UPK RSFSR.

75

Mel’nik, op.cit. note 39, 58, felt that §343 UPK RSFSR and the appeal ground that “reasons in the court’s judgment do not correspond to the factual circumstances of the case”, §344 UPK RSFSR, §379(1)(1) UPK RF, “open a very wide field for arbitrary reversals of such [acquittal] judgments. He continued: “In such cases, the most important arbiters of questions of guilt are again professional judges, who in the cassational instance can determine the legality of the conclusions of the jury not

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principle of adversary procedure.76 I have found several such cases in my study of the practice of the Cassational Panel and the Presidium of the SCRF in its handling of Russian jury cases from 1993 to 1999.77 Giving the high courts complete inquisitorial-administrative power to change the decisions of adversarial lower courts might occasionally help an unfortunate innocent person who is serving a prison sentence, but will much more often be used to administratively control courts which have become too independent, too lenient, too acquittal-prone. The practice of the SCRF of reversing jury acquittals has greatly reduced the newly won independence of courts with lay participation. The inquisitorial powers of the review courts should be limited, so that the courts only decide legal questions raised by the parties, thus strengthening the constitutional principle of adversary procedure.78 The SCRF also does not recognize a “harmless error” rule, for it has often reversed acquittals (and convictions) based on errors that could not have had an impact on the jury’s decision as to guilt or innocence.79 on the basis of immediately heard evidence, but on the basis of paper, while studying the dossier.” 76

Agreeing with my view are: P.A. A. Lupinskaia, “Poriadok obzhalovaniia, oprotestovaniia i proverki, ne vstupivshikh v zakonnuiu silu prigovorov i postanovlenii vynesennykh v usloviiakh al’ternativnoi formy sudoproizvodstva”, in Vestnik Saratovskoi gosudarstvennoi akademii prava (1996) No.3, 240-241; M. Nemytina, “Sud prisiazhykh: Rossiiskaia traditsiia ili zapadnaia model’”, Vestnik Saratovskoi gosudarstvennoi akademii prava (1996) No.3, 29. See, also, Solomon and Foglesong, op.cit. note 13, 50.

77

I visited the SCRF and reviewed the files of all reversed cases in these years. My special thanks go to Judges A. P. Shurygin and V. P. Stepalin for allowing me access to the files. Some examples: Paziev et al. case (Altai), No.51 kp-097-21 sp (4.24.97), in which Paziev appealed his conviction because he was tried by jury along with Beziakin and Pashkov although he had requested a three-judge panel. The SCRF unilaterally also reversed the acquittals of Beziakin and Pashkin based on jury misconduct, an issue not raised in the appellate briefs. One judge told Karnozova, that the SCRF reversed an acquittal in his court using a “thought-up” argument, precisely because it was an acquittal. Karnozova, op.cit. note 53, 158.

78

In the US, errors of constitutional magnitude may not be raised on appeal if they were not objected to by the parties during the trial, where they could have been corrected. On the so-called “raise or waive” doctrine, see Wayne R. LaFave et al., Criminal Procedure (Thomson/West, St. Paul, MN,, 5th ed. 2004), 1293-1294. 1294. 94.

79

On the US harmless error doctrines, ibid. d., 1298-1310. The following passage from Saltykov-Shchedrin quotes a Tsarist judicial official, shedding light on the old mentality which still seems to exist at the SCRF: “I don’t look into my conscience, I don’t consult with my own convictions; I look only as to whether all formalities were observed, and in this respect, strictly to the point of pedantry. If I have in my hands two witness statements, formulated in the appropriate manner, I am satisfied and write: they exist. If they do not exist, I am also satisfied and write: they don’t exist. What does it concern me whether the crime was committed or not in reality!

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The defendant, the procurator and the victim may appeal judgments at each level of the court structure.80 The appellate courts, in panels of three professional judges, are empowered to review questions of fact as well as law. If the defendant appeals, ls,, the appellate court may not find the defendant guilty of a more serious offense or impose a more severe punishment. The procurator or the victim may appeal, however, and seek to have the judgment overturned, and a more severe punishment may be imposed upon retrial. Unlike in the US, the procurator or the victim may appeal an acquittal.81 Since errors need not be raised in the trial court in order to preserve them for appeal, and since the appellate courts may cull the record for errors also not raised in the appellate briefs, prosecutors and judges can intentionally commit errors at the pretrial and trial stage and, in the event of an acquittal, later raise them on appeal. This is a tactic admittedly used by Russian judges.82 One area where this tactic has been successfully used more than once is for the prosecutor to conceal the fact that he knows jurors have lied about or not volunteered the fact that family members have been charged or convicted of crimes and then bringing this fact up on appeal only in the case of an acquittal.83 I want to know, whether it was proved or not, and nothing else.” Mel’nik, op.cit. p.cit. note 39, 7. 80

§§19(2), §19(2), 42(2)(19), 354(1) UPK RF.

81

§§ 370(1),, 385 UPK RF.

82

Karnozova, op.cit. note 63, 152, interviewed a judge who said he intentionally does not refer to all the evidence in his summation at the end of the trial to give the prosecutor grounds for objection. She says there is a clear collusion between judge and prosecutor to create reversible error. The revival of the court’s power to remand a case for further investigation in the decision of the CCRF of 12 December 2003, has also been criticized as giving prosecutors and judges leeway to build errors into the case so as to avoid possible acquittals by remanding the case. “KS razreshil sudam ispravliat’ oshibki prokurorov”, Kolokol.Ru. 9 December 2003 (Indem: Dec. 1-15, 2003).

83

Most recently this happened following the acquittal of “Iaponchik” in Moscow Regional Court, see Aleksei Sokovnin and Sergei Mashkin, “Viacheslav Ivan’kov opravdal opaseniia obvineniia”, Kommersant”, 19 July 2005, 3, available at , where the prosecutor on the day after the verdict claimed that seven of the twelve jurors were thus “prejudiced”. This has become a common ground for reversal of acquittals though being related to a felon does not disqualify a juror according to any statute of the RF. “Kollegiia nebespristrastnykh”, Kommersant”, 29 July 2005, 3, available at . The original investigator in the “Iaponchik” case publicly claimed he was sending the case to the courts intentionally with errors to facilitate reversal of an eventual acquittal, and was later fired for his indiscretion. Sokovnin and Mashkin, idd. For other cases reversing acquittals due to belated revelation of juror bias: BVS RF (2002) 2002)) No.5, available at
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The Zeal in Reversing Acquittals Despite the serious nature of the crimes tried in the jury courts, there has been a much higher rate of acquittals (around 15%) in those courts than in the regular courts with lay assessors or single judges (less than 1%).84 It is generally recognized that juries acquit accused murderers because of the poor quality of the preliminary investigation and because they in many cases believed the defendants’ allegations that confessions had been extorted by the use of coercion, threats, or even torture.85 The Cassational Panel of the SCRF has shown great zeal in reversing such jury acquittals. The statistics relating to acquittals in the first nine years of jury trial, when it was restricted to just nine regions of the RF, ru/bullettin/02/02-057/6120.htm> > (acquittal of double murder in Ul’ianovsk, where juror had once worked as investigative official for the Ministry of Interior); Raikin et al. case (Saratov), Thaman, op.cit. note 2, 116-117 117 17 (death sentence of Raikin and acquittals of two others for quadruple murder reversed because juror had prior unexpunged conviction); Volkov case (Moscow Region), No.4-kp-095-111sp, (7.6.96) (acquittal of double murder reversed because juror knew of circumstances of case, though prosecutor agreed in court to let her sit); Paziev et al. case (Altai), op.cit. note 77; G. case (Krasnodar) (acquittal of murder reversed because a juror did not reveal he had been sentenced to six months probation and had a brother who had been charged but not convicted of a crime), “Obzor sudebnoi praktiki rassmotreniia ugolovnykh del s uchastiem prisiazhnykh zasedatelelei”, BVS RF (2002) No.7,, available at http://www.supcourt.ru/bullettin/02/02-07/6120.htm> > (hereinafter “SCRF-Jury Review (2001)”); P’ianzin case (Mordovia), No.15-003-25spr (8.14.03) (acquittal of double murder reversed because foreperson did not reveal he had been charged with crime),, BVS RF (2004) 2004)) No.8, available at ; >;; Tsereev case, No.42-003-05 (acquittal reversed because juror did not reveal son had prior conviction). “Obzor sudebnoi praktiki Verkhovnogo Suda Rossiiskoi Federatsii za 4 Kvartal 2003 goda”,, available at http://www.supcourt.ru/vscourt)_detale.php?id=153> > (hereinafter “SCRFCriminal Case Review (4th Quarter 2003)”); finally in Slabochkov case (Cheliabinsk), No.48-004-512p (6.30.04), (3) BVS RF (2005), available at > (acquittal of two not reversed where prosecutor withheld information that ten of twelve jurors had relatives who had been administratively fined by the police, claiming the jurors could not have known of this fact!). 84

Thaman, “Europe’s New Jury Systems”, op.cit. note 44, 348. If one includes partial acquittals, i.e., of some counts or of the charged offense in favor of a lesser offense, lawyer Sergei Nasonov estimates that from 20-40% of defendants before juries are acquitted. Georgii Tselms, op.cit. note 45.

85

Ibid. bid. d. See, also, Human Rights Watch, op.cit. note 19, 21; Mel’nik,, op.cit. note 39,, 46; Iu. Liakhav and V. Zolotykh, “Sud prisiazhnykh—put’ k spravedlivoi iustitsii”, Rossiiskaia iustitsiia (1997) No.3,, 9, claim that juries are more careful in analyzing evidence, more objective as to whether the indictment has been proved and do not go along with the prosecutor blindly and close their eyes to insufficiencies of the preliminary investigation.

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are revealing. In 1994, one hundred-seventy-three cases were tried by the jury courts in relation to two hundred-forty-one defendants. 18.2% ended in acquittal, in comparison to an only 1% acquittal rate in trials without juries. Yet according to the author’s investigation, of the nineteen judgments reversed by the SCRF, nine were acquittals, and only one acquittal that was appealed by the public prosecutor was not overturned.86 In 1995, three hundred cases were tried with respect to five hundred-forty-four defendants and the acquittal rate fell to 14%. 17.3% of these acquittals were reversed. In 1996, three hundred-thirty-six cases were tried in relation to six hundred-twenty-two defendants and the acquittal rate rose to 19.1% (eighty acquittals as to one hundred-eighteen defendants). The SCRF reversed fifty-five acquittals, that is, 34.2% of all that were challenged on appeal. In 1997, four hundred-nineteen cases were tried in the nine regions/territories as to eight hundred-twenty-five defendants. The acquittal rate rose to 22.9% (one hundred-nine acquittals as to one hundred-eightynine defendants). The SCRF reversed fifty acquittals, 48.6% of all those inally, in 1998, four hundred-six cases were tried in relation appealed.87 Finally, to eight hundred defendants, and the acquittal rate was 20.6%, (eightysix acquittals involving one hundred-sixty-five defendants). The SCRF reversed 66% of the acquittals, however.88 In 2000, the acquittal rate fell to 15.2%, and it was 15.6% in 2001.89 In 2001, the SCRF reversed 43% of acquittals as opposed to only 6.7% of convictions. 32.4% of all acquittals were reversed in 2002 as opposed to 5.9% of all convictions.90 By 2003, in the first year of trials after jury trial began expanding throughout Russia, courts heard 492 trials in relation to 1,000 defendants.91 SCRF reversed 86

Stephen C. Thaman, “Geschworenengerichte in Ost und West: Die klassische Jury und das adversarische Verfahren im Strafverfahren Russlands und Spaniens”, in 41 Recht in Ost und West (1997), 80.

87

“Spravka o praktike rassmotrenii ugolovnykh del sudami prisiazhnykh v 1997 godu”, 21 March 1998. Copy on file with author.. (Hereinafter “SCRF-Jury-Spravka Spravka pravka (1997)”.) .)) The figures for 1994-1996 1996 96 were from another Spravka given to the author by President of the Cassational Panel of the SCRF, A.P. Shurygin (on file with the author).

88

“Spravka po resul’tatam izucheniia prichin otmeny i izmeneniia prigovorov suda prisiazhnykh, rassmotrennykh Verkhovnym Sudom Rossiiskoi Federatsii v 1998 godu” (1999), 3, 6-7. Copy on file with the author. (Hereinafter “SCRF-Jury-Spravka (1998)”.) 42.9% of all acquittals were reversed whereas only 1.85% of convictions were reversed in the same year. A. Gagarskii, “Rabota sudov Rossiiskoi Federatsii v 1998 godu”, Rossiiskaia iustitsiia (1999) No.8,, 54.

89

SCRF-Jury Review (2001), op.cit. note 83.

90

“Obzor praktiki Kassatsionnoi palaty Verkhovnogo suda RF za 2002 god po delam, rassmotrennym kraevymi i oblastnymi sudami s uchastiem prisiazhnykh zasedatelei”, available at hppt://www.supcourt.ru/vscourt_detale.php?od=170> > (hereinafter “SCRF-Jury Review (2002)”).

91

Kulikov, op.cit. note 26, quoting Viacheslav Lebedev, President of the SCRF.

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24% of those acquitted as opposed to 5% of convictions.92 Finally, 549 jury cases were heard in 2004 in relation to 1,017 defendants. Eighty-four acquittals were reversed, 53.5% of all those appealed.93 I believe that one factor pushing the SCRF to reverse so many acquittals, despite the acknowledged incompetence of investigative organs and their inability to present credible inculpatory evidence, is the ugly fact that the murder rate in Russia has risen progressively since jury trials began in 1993 and the SCRF is unwilling to release alleged murderers who often have killed more than one person in very cruel and brutal manners. Of the jury acquittals94 reversed by the SCRF, at least twenty were in cases involving two murder victims,95 at least two in cases involv-

92

BVS RF (2003) No.8, 14. Cf. William Burnham (ed.), The Russian Code of Criminal Procedure (USDOJ, USDOJ,, Moscow, 2004), 67. E.B. Mizulina cites that from 1997 to 2001 the SCRF reversed over 50% of acquittals and only 15-16% of guilty verdicts. In the Krasnoiarsk Territorial Court ten jury trials were held from 1 January 2003 through 23 July 2004. Of the five acquittals, four were reversed and the fifth was still pending appeal before the Cassational Panel. Discussion with judges of the Krasnoiarsk Territorial Court, 23 July 2004, Krasnoiarsk Territorial Court, Krasnoiarsk, Russia.

93

Among all cases heard by the SCRF on appeal, 3.9% of convictions and 45.8% of acquittals were reversed. In the first quarter of 2004, there were 21% acquittals in jury trials but only 0.5% .5% in non-jury trials. Andrei Sharov, “12 stul’ev’”, Rossiiskaia gazeta, 11 November 2004, available at (Indem: 11.4-12.4.04).

94

I will note when the case involved a complete acquittal, or the finding of a lesser offense, such as manslaughter or inflicting injuries leading to death.

95

Viazovets case (Rostov), No.41 kp-094-109sp (11.24.94); Bulochnikov case (Altai), No.51kp-094-68sp (9.1.94); Sushko case (Stavropol’) No.19 kp-096-87 sp. (10.31.96) (second acquittal); Minakhmedov case (Stavropol’) No.19 kp-097-81 sp (10.31.96) (lesser-included offense); Bulychev case (Saratov), No.32 kp-096-55 sp. (10.8.96); Likhonin et al. case (Saratov), No.32 kp-095-76 sp (1.23.96); Volkov case (Moscow Region), M.V. Nemytina, Rossiiskii sud prisiazhnykh (Beck, Moscow,, 1995), 32; Baikov case (Moscow Region), No.4kp-097-25sp (2.6.97); Kurnosikov case (Moscow Region), No.4 kp-097-44sp (5.15.97); Reznik/Borozdin case (Moscow Region), No.4 kp-099-45sp (4.21.99); Marchenko et al. case (Moscow Region), No.4 kp-099-49sp (5.18.99); Kuznetsov case (Krasnodar), No.18 kp099-26sp (4.29.99); Aliev case (Moscow Region), No.4 kp-098-141sp, (8.27.98); Topchii case (Krasnodar), No.18-kp-098-103sp (10.28.98); Karzhemanov et al. case and Kruglov case, “Obzor po delam rassmotrennym sudami s uchastiem priasizhnykh zasedateli v 2003 godu”, available at http://www.supcourt.ru/vscourt_detale.php?id=165> 5> (hereinafter “SCRF-Jury Review (2003)”); P’ianzin case, op.cit. note 83; Belichenko et al. case (Moscow Region), No.1268p96pr. Acquittal affirmed by Cassational Panel, reversed by Presidium of SCRF (1.29.97); Kh. case (Moscow Region), Karnozova, op.cit. note 63, 197.

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ing three victims,96 four in cases involving four victims97 and at least one case involving more victims.98 There have also been further acquittals in multi-body cases recently and it is unclear whether they have yet been reversed. The chances are, however, that they will.99 Converting Adversarial Procedure into a Weapon Against the Defense: Pretextual Reversal of Acquittals Based in the Complexity of the Rules of Adversary and Jury Procedure “Errors” in the Formulation of Question List The most common reason for reversals of jury judgments (and especially acquittal judgments) has been errors in the formulation of the question list by trial judges.100 43% of all reversals were related to these problems in the first three years of jury trial.101 The same was true in 1997.102 Question list “errors” played a comparable role in reversals in 2002 and 2003.103 In 1998, however, the SCRF reversed more cases due to improper attempts by the defense to influence the jurors (by complaining of coercive tactics by investigators), improper exclusion of incriminating evidence, and violations of the rights of victims, all of which tend to result in acquittals.104 96

Vlasov et al. case (Rostov), No.41 kp-097-32 sp (4.16.97); Denisov case (Moscow Region), No.4 kp-098-201 sp) (1.20.99).

97

Shpeko et al. case (Krasnodar), No.18 kp-096-8 sp (9.3.96); Garkusha/Logachev case (Krasnodar), No.18 kp-097-21 sp (3.18.97); Makarov et al. case (Moscow Region), No.4 kp-098-172 sp (11.26.98) (those who were acquitted had acquittals reversed); Kornilov et al. case (Rostov), No.41 kp-096-39 sp (5.14.96) (three trials, in which judge dismissed jury in first case, convicted in second, but reversed, and acquitted in third, also reversed), L.F. Markina, Prava cheloveka v Rossii: Informatsionnaia set’ (1997) No.25, 17-21.

98

Ulman case (Stavropol’) (6 Chechen civilian victims), Vladimir Voronov, “Juries on Trial”, Russian Life, November/December 2004, 53-54.

99

Slobodchikov case (Cheliabinsk) (2 bodies), “V Cheliabinske sud prisiazhnykh vynes svoy pervyy prigovor: Opravdatel’nyi”,, Polit.Ru, 27 February 2003 (Indem: 2.24-28.03); Skripnikov case (Kemerovo) (3 bodies), Viktor Vernii, “Logika samozashchity”, Trud, 18 February 2004 (Indem: 2-19-19-2004).

100

For a general discussion of the mass confusion created by the question lists and the SCRF’s interpretation thereof, see Karnozova, op.cit. note 63.

101

A. Shurygin, “Zashchita, v sudoproizvodstve s uchastiem kollegii prisiazhnykh zasedatelei”, Part I, Rossiiskaia iustitsiia (1997) No.8, 6.

102

SCRF-Jury-Spravka (1997),, op.cit. note 87.

103

44.8% of all reversals in 2002, SCRF-Jury Review (2002), op.cit. note 90. As to 2003, see SCRF-Jury Review (2003), op.cit. note 95.

104

SCRF-Jury Review (1998), op.cit. note 88, 9.

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The SCRF has seized not infrequently on the failure of the trial court to return the verdict to the jury to correct errors in the question list, in order to reverse acquittals.105 This is a questionable reason for reversal, for the judge can intentionally not return the case to build in reversible error when juries are determined to acquit.106 Many of the other question list errors noted have led, if they were not indeed recognized for that purpose, to reversals of acquittals, for instance, for uniting questions relating to more than one crime in a single question,107 for not formulating the question verbatim in the terms of the accusatory pleading,108 or for doing it,109 for asking a number of separate questions instead of uniting the questions into one,110 for not asking a lesser-included question upon which the jury could have hung its hat,111 and finally for using “legal terms” in questions, relating, for instance, to mens rea, aggravating circumstances, the nomen juris of the crime.112 105

Drygin case (Saratov), No.41 kp-099-135sp (1.20.99) (acquittal of aggravated murder and rape); Kovalev case (Saratov), No.32 kp-096-28sp (6.10.96) (reversal of attempted aggravated murder). In the first modern Moscow City Court jury trial, the judge sent the jury back five times, in vain trying to coax a guilty verdict. The jury foreman, obviously thinking the jury was at fault, sighed: “It’s the first time. The first pancake is always messed up.” Peter Baker, “Russia Tests Juries By Trial and Error”, Washington Post, 2 September 2003, A1.

106

Karnozova, op.cit. note 63, 231-234, notes that when the presiding judge “sees an acquittal or lenient verdict, he has to declare it to be unclear and contradictory and ask supplementary questions” and “do this until at least some guilty verdict is accepted”. This gives the judge a “loophole” because he knows acquittals will be reversed.

107

Pavlov case, No.919p01pr: “Obzor sudebnoi praktiki Verkhovnogo Suda Rossiiskoi Federatsii za IV Kvartal 2001 goda po ugolovnym delam”, BVS RF (2002) No.2, available at (hereinafter “SCRF-Judicial Practice Review (4th. Quarter-2001)”).

108

Shveidel’ case, “Obzor kassatsionnoi praktiki Sudebnoi kollegii po ugolovnym delam Verkhovnogo Suda Rossiiskoi Federatsii za 2002 god”, BVS RF (2003) No.8 (hereinafter “SCRF-Criminal Case Review (2002)”); Abdullov et al. case (Ul’ianovsk), No.80kp-098-35 sp (7.30.98); Volodin/Kotenko case (Saratov), No.32-kp-098-53 sp (10.22.98); Trofimov et al. case (Ivanovo), No.7-kp-002-9 sp, SCRF-Jury Review (2002), op.cit. note 90; Kharchevnikov case (Ivanovo), No.7 kp-002-15 sp, SCRF-Jury Review (2002), ibid bid.

109

SCRF-Jury Review (2001), op.cit. note 83.

110

Kushchenko/Kushchenko case (Stavropol’) No.19 kp-002-9 sp, SCRF-Jury Review (2002), op.cit. note 90.

111

Karakaev case (Krasnodar), No.18 kp-096-87 sp (11.13.96); Baykov case (Moscow Region), op.cit. note 95; Troitskii case (Ivanovo), No.7 kp-002-26 sp; Kondrashin case (Riazan’), BVS RF (1998) No.9, 9, translated in William Burnham, Peter Maggs and Gennady Danilenko, Law and Legal System of the Russian Federation (Juris Publishing, Huntington, NY, 3rd ed. 2004), 537.

112

Manukian case (Stavropol’), No.19 kp-096-75 sp (10.29.96); Solomatov/Kharitonov case (Stavropol’), No.4 kp-096-28 sp (3.30.96); Kuz’kin case (Moscow Region), see Kar-

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Erroneous Exclusion of Evidence Not only has the jury question list been manipulated by the courts to nullify the verdicts (usually those of acquittal) which they find not to their liking. The new adversary rules of evidence, introduced to protect defendants in criminal trials have also been turned against them to nullify verdicts favorable to them. Thus when a defendant successfully suppresses illegally gathered evidence under the new Russian exclusionary rule, it is not infrequently the prosecutor or the aggrieved party which complains that their adversary rights or rights to equality of arms have been violated, resulting in the reversal of acquittals.113 Similarly, the reform of confession nozova, op.cit. note 63, 168-188; Zhila case (Krasnodar), No.18 kp-097-17 sp. (3.11.97); Garkusha/Logachev et al. case (Krasnodar), op.cit. note 97; Markelov case (Ul’ianovsk), No.80 kp-097-4 sp (2.13.97) (reversal of negligent homicide); Perfil’ev case (Ul’ianovsk) et al., No.80 kp-097-19 sp (4.10.97) (reversing lesser homicide charges); Boitsov et al. case, SCRF-Jury Review (2003), op. cit. note 95; Shchepakin case (Rostov), No.41 kp-094-112 sp (11.24.94); Riazanov case (Altai),, No.51 kp 096-6 sp (3.5.96) (reversal of homicide in the heat of passion). 113

Nikitin et al. case (Moscow Region), No.4 kp -097-13 sp. (1.26.97) (exclusion of report of search of the scene and a knife leads to reverse of acquittal for attempted murder); Kurnosikov case (Moscow Region), op.cit. note 95 (reversal of murder acquittal due to exclusion of autopsy report); Kozyrialin case (Stavropol’), No.19 kp-096-115 sp (1.28.97) (conviction of lesser homicide reversed due to exclusion of defendant’s alleged report of the crime); Samoilov case (Saratov), No.32 kp-099-16 sp (3.23.99) (murder acquittal reversed due to suppression of report of search of a house); Kurochkin et al. case (Moscow Region), No.4 kp-098-130 sp (8.6.98) (murder acquittals reversed due to exclusion of report of photographic identification and “clean-hearted” confession due to lack of reasons); Aliev case (Moscow Region), op.cit. note 95 (murder acquittals reversed due to exclusion of report of forensic-ballistic expert and of a confrontation between the defendant and a witness; Bulochnikov case (Altai), op.cit. note 95 (acquittal of double murder reversed due to exclusion of defendant’s statements); Viazovets case (Rostov), op.cit. note 95 (acquittal of double murder reversed due to exclusion of testimony of aggrieved party and a witness who did not appear for court); Uvarov/ Sosiurko case (Moscow Region), No.4 kp-003-188 sp (1.8.04), BVS RF (2004) No.10, available at (acquittals of bribery reversed due to exclusion of confessions); Darchuk case (Saratov) (reversal of murder acquittal due to exclusion of defendant’s report of crime) and Mediantsev case (Altai) (reversed of murder acquittal due to exclusion of forensic medical examination of weapon based on chain of custody problems), Procuracy Institute, “Informatsionnoe pis’mo, ‘O nekotorykh voprosakh obespecheniia gosudarstvennogo obvineniia v sude s uchastiem kollegii prisiazhnykh zasedatelei’”, No.12/13-96 (5.16.96), 3-4; SCRF-Criminal Case Review (2004), op. cit. note 93;; Novikov case (Iaroslavl) (acquittal of murder solicitation reversed due to suppression of taped solicitation of bribe because it had too many swear words in it), id.; Nazarov et al. case (Buriatiia), a non-jury case in which an acquittal was reversed because judge excluded allegedly coerced confession and reenactment of the crime, “Obzor kassatsionnoi praktiki sudebnoi kollegii po ugolovnym delam Verkhovnogo Suda Rossiiskoi Federatsii za 2004 god”, BVS RF (2005) No.8, available at (hereinafter “SCRF-Criminal Case Review (2004)”).

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law in Russia, the implementation of Miranda rights and exclusionary rules relating to confessions obtained through illegal means have bizarrely been turned against the defendant by virtue of the rule fabricated by the SCRF which makes it reversible error for defendants or their lawyers to allege the use of torture or other illegal methods to obtain confessions. This rule has, as was noted, also led to a massive reversal of acquittals when violated.114 Due to fear of having jury acquittals reversed, some lawyers in the first modern jury trials even refused to make suppression motions so as to deprive the prosecution of a reason to ask the SCRF to reverse the acquittal, or to prevent the prosecutor from moving to return the case to the investigator for “supplementary investigation” to fill the gaps left by the suppressed evidence.115 Errors in the Presiding Judge’s Summation Following the formulation of the question list the presiding judge is required to instruct the jury on the principles of criminal law related to answering the questions on the question list, and on the procedural rules applicable to their deliberations.116 Unlike in the US, however, the Russian trial judge is required to summarize the evidence presented by the parties117 114

Kornilov et al. case (Rostov), op.cit. note 97; Zhevak case (Rostov), No.41 kp-096-24 sp (4.10.96); Popov case (Saratov), No.32 kp-097-21 sp (5.29.97); Antipov case (Rostov), No.41 kp-097-27 sp (4.9.97); Grigor’ev case (Altai), No.51 kp-097-26 sp (5.7.97); Aleshin et al. case (Moscow), No.4 kp-098-94 sp (6.3.98); Grafov case (Moscow Region), ),, No.4 kp-098-179 sp (11.25.98); Topchii case (Krasnodar), op.cit. note 95; Lipkin et al. case (Moscow Region), No.4 kp-099-9 sp (2.23.99); Agafonov et al. case (Stavropol’), No.19 kp-099-48 sp (5.5.99); Ermolaev/Drachenko case (Rostov), No.41 kp-099-15 sp (3.10.99); Arustamov case (Stavropol’), SCRF-Criminal Case Review (2002),, op.cit. note 108; Morozov case (Ivanovo) and K. case (Krasnodar), SCRF-Jury Review (2001), op.cit. note 83; Isakov case (Altai), SCRF-Jury Review (2003), op.cit., note 95; Pomazan case (Volgograd), No.16 kp-004-36 sp (7.14.04), BVS RF (2005) No.2, available at ; Turischev et al. case (Volgograd), ),, SCRF-Criminal Case Review (2004), op.cit. note 113.

115

Thaman, op.cit. note 2, 94. It was suggested that requiring the judge to give reasons for excluding or failing to exclude evidence would serve to prevent some of the abuses of the new exclusion jurisprudence, such as the motions for supplemental investigation. P.A. Lupinskaia, “Nekotorye voprosy, voznikaiushchie v praktike primeneniia ugolovno protsessual’nogo zakonodatel’stva pri rassmotrenii ugolovnykh del sudom prisiazhnykh” in Vestnik Saratovskoi gosudarstvennoi akademii prava (1996) No.3, 7076.

116

§340(3)(2, 5) UPK RF; § 451(3,, 5) UPK RSFSR.

117

§340(3)(3,4) UPK RF; § 451(3) UPK RSFSR; the summation of the facts and the law relevant to the case also was required in the pre-revolutionary Russian jury system, whereas in nineteenth-century Germany only the legal side was explained, and in nineteenth-century Italy only the factual side. Kucherov, op.cit. note 3, 60.

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and in doing so must not reveal his or her opinion as to what facts were proved or what verdict should ensue.118 Under the 1993 jury provisions, if one of the parties believed the judge was biased or otherwise lacked impartiality in the summation, the party had to raise an objection at the time or the issue could not serve as a reason for appealing the judgment.119 This is the only explicit area where the Russian jury laws have included a “raise or waive” limitation on the right to appeal. Alleged “errors” in the judge’s summation have led to reversals of some convictions,120 but, most importantly, a number of acquittals.121 Acquittals have even been reversed when the trial judge was compelled to mention to the jury that there was no evidence to support a conviction, because it had all been suppressed in defense motions.122 Several Moscow Region 118

§340(3) UPK RF; §451(5) UPK RSFSR.

119

§451(9) UPK RSFSR. On the provisions of the 1993 law and how they were applied in the first year of Russian jury trials, see Thaman, op.cit. note 2, 123-124. This was the only explicit area where the Russian jury law included a “raise or waive” limitation on the right of appeal. The requirement was removed, however, in § 340(6) UPK RF in 2001.

120

Syropiatov/Eterle case (Rostov), No.51 kp-096-40 sp (7.4.96), Obzor zakonodatel’sta i sudebnoi praktiki Verkhovnogo Suda Rossiikskoi Federatsii za Tretii i Chetvertyi Kvartaly 1996 goda (Moscow, 1997), 45; Nikolaev/Buntov case (Moscow Region), No.4 kp-095125 sp (12.13.95); Sokolov/Gladkikh case (Altai), No.52 kp-097-9 sp (3.4.97); P. et al. case (Moscow Region), No.4- kp-096-157 sp, discussed along with Sokolov/Gladkikh case, in “Zashchita v sudoproizvodstve s uchastiem kollegii prisiazhnykh zasedatelei”, Part II, Rossiiskaia iustitsiia (1997) No.9, 7.

121

Minakhmedov case (Stavropol’), op.cit. note 95 (reversal of conviction of lesser-included offense to murder because not clear in record that judge summarized prosecutor’s position); Kustov/Sobolevskii case (Moscow Region), No.4 kp-096-10 sp (3.7.96) (acquittals of aggravated murder reversed, inter alia because not clear that judge summarized prosecutor’s position); Shevchenko/Shevchenko case (Rostov), No.41 kp-095-103 sp (1.29.96) (SCRF found that position of one defendant, who was found guilty of lesser offense to murder was not properly summarized by judge, but reversed both the conviction for a lesser offense and the aggravated murder acquittal of the other defendant!); Nemchikov case (Moscow Region), No.4 kp-095-94 sp (9.7. 95) (acquittal of attempted murder reversed because judge called prosecution evidence into question, Obzor zakonodatel’stva i sudebnoi praktiki Verkhovnogo Suda Rossiiskoi Federatsii za IV Kvartal 1995 goda (Moscow, 1996) (hereinafter “SCRF-Review of Legislation and Judicial Practice (4th Quarter 1995)”) (for the judge’s critique of the SCRF decisions, see N.V. Grigor’eva, “Naputstvennoe slovo predsedatel’stuvuiushchego sud’i”, in S.A. Pashin and L.M Karnozova, Sostiazatel’noe pravosudie Vol. I (Mezhdunarodnyi komitet sodeistviia pravovoi reforme, Moscow, 1996), 171-172); );; P. case (Moscow Region) and K. case (Krasnodar) (murder acquittals reversed), SCRF-Jury Review (2001), op.cit. note 83.

122

Karnozova, op.cit. note 63, 293-294, mentioning cases tried by Nataliia Grigor’eva in Moscow Region and V.V. Zolotykh in Rostov.

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convictions were also reversed because the judge did not give the parties a chance to object to the summation in front of the jury.123 The rules as to the summation have unfortunately allowed the trial judge to plant the seeds for the reversal of what might seem as a looming acquittal due to the weakness of the prosecution’s evidence, by negligently or intentionally recounting the prosecution’s evidence in an incomplete or skewed manner. Observers have also witnessed cases, in which the trial judge made comments clearly prejudicial to the defense, but then excluded those remarks from the copy of the summation which becomes part of the official record, making it difficult to allege error.124 Double Jeopardy and Limitations on the Reversibility of Acquittals The surest way to guarantee that the Russian jury will be autonomous and that the verdicts they reach will be respected is to disallow appeals of acquittals.125 Although jury acquittals may not be appealed in England126 and the US, they may be appealed in Russia, Spain and other European countries. In 1997 the Spanish Supreme Court reversed the acquittal of a young Basque sympathizer with the independence movement for the murder of two policemen, arguably because of the social uproar the verdict brought in its wake.127 The reluctance of the SCRF to accept jury acquittals has, as has been discussed above, led to their mass reversal. This practice alone should 123

Gushchin/Zhirnov case (Moscow Region), No.4 kp-095-42 vt sp (11.15.95); Kuz’kin case (Moscow Region), No.4 kp-095-114 sp (10.18.95); Obusov case (Moscow Region), No.4 kp-95-106 sp (10.11.95). Nataliia Grigor’eva, the judge who presided over the first Moscow Region jury trial, criticized such rulings and also noted that this ground was not even mentioned in the appellate briefs. Grigor’eva, op.cit. note 121, 177-78; Chair of the Cassational Panel of the SCRF, A.P. Shurygin, citing Profs. I.L. Petrukhin and P.A. Lupinskaia as support, defends the court’s position. Shurygin, “Zashchita”, Part II, op.cit. note 120, 7-8.

124

One judge told the jury that the guilt question “usually raises no doubt”, and that the main issue was that of leniency. In another case the judge said the jury could find the defendant not-guilty due to self-defense “in the case of extreme necessity”, but then indicated that this was not present in the instant case. Karnozova, op.cit. note 83, 137-138.

125

See Solomon and Foglesong, op.cit. note 13, 189, who suggest that Russia not allow appeals of jury acquittals.

126

Richard Hatchard, “Criminal Procedure in England and Wales”, in Richard Hatchard et al., Comparative Criminal Procedure (British Institute of International and Comparative Law, London, 1996), 204.

127

On the Otegi case, see Thaman, op.cit. note 47, 405-412 and 497-503; for an English translation of the Otegi verdict and Supreme Court decision reversing the acquittal, see Thaman, op.cit. note 9, 189-195.

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make many criminal defendants think twice before exercising their constitutional right to trial by jury. The idea that retrial of acquittals could violate the principle of double jeopardy was first brought before the CCRF in a case where the Cassational Panel of the SCRF affirmed the acquittal and it became final, only to be overturned by the Presidium of the SCRF in a procedure to review final judgments (so-called nadzor).128 The CCRF refused to hear the case, but remanded it, saying that the trial court should decide the case in accordance with the United Nations International Pact for Civil and Political Rights (IPCPR). The case was thereby dismissed in Moscow Regional Court, only to have the Presidium of the SCRF again reverse the dismissal and send the case back to trial.129 The evil in the nadzor procedure is that presidents of the courts could themselves trigger review of final judgments, and then serve as the judges on their own motions. In this capacity they often worked hand in hand with prosecutors to overturn acquittals that had become final.130 The 2001 UPK RF made some first steps to prevent the reversal of acquittals on review, thus following the recommendation of the “Concept of Judicial Reform” that there should be no judicial role in appealing acquittals131 nor any appeals in cassation which would worsen the position of the defendant.132 §405 UPK RF in the original version clearly prohibited appeals of acquittals which had become final under the review procedure as well as the worsening of the defendant’s situation upon review of guilty judgments.133 This step forwards in permitting the occasional acquittal which became final was sabotaged by a CCRF decision of 11 May 2005, which allows the victim to move to reopen a final judgment of acquittal or conviction using the review procedure. Thus the CCRF has heeled precisely to the position of the prosecution’s original criticisms of the limitations on review in the original draft of the 2001 Code.134 A group of sixty victims 128

Belichenko et al. case, op.cit. note 95.

129

For a discussion, see Karnozova, op.cit. note 63, 354 (note 46).

130

I.L. Petrukhin, Teoreticheskie osnovy reformy ugolovnogo protsessa v Rossii Part I (Prospekt, Moscow, 2004),, 128.

131

"Concept Concept of Judicial Reform”, op.cit. note 10, 85.

132

Ibid., 98

133

§ 405 UPK RF, Kommentarii, D.N. Kozak and E.B. Mizulina (eds.), Kommentarii k ugolovno-protsessual’nomu kodeksu Rossiiskoi Federatsii (Iurist”, Moscow, 2002), 651. Review of final judgments of acquittal were also not allowed under the 1864 code. §21 Ustav ugolovnogo sudoproizvodstva, 20 November 1864, recently published in Sudoustroistvo i ugolovnyi protsess Rossii, 1864 god: Sbornik normativnykh aktov (Moscow, 1997),, 73-238 (all translations by the author).

134

S.G. Kekhlerov, Letter to E.B. Mizulina, Vice-Chair, Legislative Committee of the

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supported by the human rights ombudsman successfully petitioned the CCRF to declare the unconstitutionality of §405 UPK RF, claiming it violated the rights of victims to access to justice.135 Again, the victim has become the Trojan horse for the prosecution in the quest to undermine and ultimately repeal the aspects of the 2001 UPK RF which sought to protect defendants from the depredations of Soviet-era procedure. E.B. Mizulina, former State Duma Deputy, Professor of Criminal Procedure and chair of the working group that drafted the UPK RF called the decision “primitive”, and thought it signaled a “step back, approximately fifty years”.136 The real question is: will the Russian judicial nomenklatura permit a truly independent jury system as a check on the corruption and incompetence of law enforcement, or will the jury just be a piece of democratic window dressing in a justice system that still in many ways functions as it did in Soviet times, with lower court judges taking orders from their superiors, on up to the SCRF, which could take any case it sought fit, order any case to be reheard, and reverse any acquittal it does not like?

VI. Conclusion: onclusion: Democratic emocratic Reform or Window Dressing?? “Our social life is like a swampy, shaky ground. No matter how wonderful a building is erected on this ground, it vanishes in an unseen manner into this ground, little by little it is sucked up by this soil.” V. D. Spasovich137 “We have a strange symbiosis of a democratic model of institutions and a Stalinist model of their functioning.” Sergei Stepashin138

State Duma, Federal Assembly, RF, 3 September 2001, 2-4 (on file with author) (hereinafter “Procuracy Letter”), in which S.G. Kekhlerov explicitly calls for allowing the victim to petition for review of acquittals within one year and notes that this would not violate Protocol 7(4) of the European Court of Human Rights. 135

Postanovlenie Konstitutsionnogo Suda Rossiiskoi Federatsii po delu o proverke konstitutsionnosti stat’i 405 Ugolovno-protsessual’nogo kodeksa Rossiiskoi Federatsii v sviazi s zaprosom Kurganskogo oblastnogo suda, zhalobami Upolnomochennogo po pravam cheloveka v Rossiiksoi Federatsii, proizvostvenno-technicheskogo kooperativa “Sodeistvie”, obshchestva s ogranichennoi otvetstvennost’iu “Kareliia” i riada grazhdam, 11 May 2005.

136

Anna Zakatnova, “Ugolovnye problemy”, Rossiiskaia gazeta, 12 May 2005, available at .

137

Cited in Bobrishchev-Pushkin, op.cit. note 51, 13.

138

S. Stepashin, “Protiv kriminalizatsii Rossii”, Rossiiskaia iustitsiia (2000) No.1, 2.

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Today one is faced with a seeming contradiction. The 2001 UPK RF led to the consolidation of jury trial throughout the Russian Federation,139 yet the elimination of the mixed court and the simultaneous expansion of the cases subject to trial by a single judge,140 combined with the undermining of the jury’s power to determine guilt or to acquit by the jurisprudence of the SCRF have made the jury largely unable to fulfill the functions envisioned for it by the reformers: that of acting as a catalyst for the implementation of adversary procedure and allowing independent popular notions of justice and truth to correct the prosecutorial-inclinations of the Russian “no-acquittal” justice system. In order to ensure the future of lay participation in general, in Russia, as a counterweight to the domination by the still dependent and unreliable Russian judiciary, the mixed court should be reintroduced to handle all mid-level criminal cases and the lay assessors should be chosen as are jurors, from the voter’s rolls and for one case only. The jury should be made mandatory for the most serious offenses, such as murder, as is the case in Spain, in order to avoid pressures exercised on the defendant by lawyers, investigators, prosecutors, and judges to waive the right. One could argue that jury trials should not be called for in certain sensitive cases involving state secrets, or in cases involving terrorism or violent organized crime. This was the approach Spain took in leaving such cases to the jurisdiction of a special National Court composed exclusively of professional judges.141 The Procuracy and the successor of the KGB, the Federal Security Service (FSB), sought to eliminate jury trials in espionage cases142 after the acquittal of Valentin Danilov in Krasnoiarsk on 30 December 2003,143 and before the jury trial of Igor’ Sutiagin in Moscow 139

It was never assured that the jury trial would spread beyond the nine participants in the “experiment” begun in 1993-1994. The Russian government refused to fund an extension to twelve further regions in 1995-1996 and certain of the regions, notably Riazan’ and Altai, even threatened to stop hearing jury cases due to lack of funds. Irina Dline and Olga Schwartz, “The Jury Is Still Out on the Future of Jury Trials in Russia”, 11 East European Constitutional Review (2002), 105-106.

140

The turn to a capitalist, privatized economy led to a failure of bosses to allow employees to sit on the mixed court. Solomon and Foglesong, op.cit. note 13, 120-121 and 131-132. For this reason, single-judge courts were introduced in 1992. Franz, op.cit. note 4, 44. Pashin opines that, following the implementation of the UPK RF, there will be lay participation in only eighty-nine of Russia’s 2,500 courts and in only 0.8% of criminal cases. Sergei Pashin, “Who Needs a Dependent Judge?”, Moscow Times, 2 July 2001, 10.

141

Sec. 72, Ley Orgánuca del Poder Judicial, available at .

142

Pavel Aptekar’, “Iuristy otnosiatsia k prisiazhnym luchshe, chem FSB”, Stolichnaia vecherniaia gazeta, 20 February 2004 (Indem: 2.19-29.04).

143

Seth Mydans, “Rare Russian Jury Acquits Scientist in Spy Case”, New York Times, 30 December 2003. Of course, Danilov’s acquittal was reversed due to “pressures

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City Court. This step has not yet been taken, likely because Sutiagin was acquitted in a secret trial,144 with a secret question list, where the jury was not allowed to decide whether the defendant was, or was not, a spy. In Russia’s case, I do not believe espionage cases should be taken from the jurisdiction of the jury court. First, the defendants in the Russian cases are typically harmless scientists who in no way could intimidate the jurors. Secondly, it appears that the state is using these cases to intimidate those critical of Russian policy and, like the eighteenth-century English seditious libel trials, are precisely the types of cases where a jury should intervene. In the case of trials of terrorists or members of violent gangs, jury trials have sometimes become excessively cumbersome in Russia due to the number of defendants, and the ensuing questions the jury must decide. Here, too, jurors could justifiably be afraid of reprisals from the Russian gang members who are among the most ruthless and violent in the world. However, again the slipshod nature of criminal investigations in Russia and the inability to trust the professional judiciary to fairly evaluate the evidence produced in such investigations, militates against entrusting such cases to a purely professional court, other than, perhaps, the SCRF itself, located in Moscow and enjoying greater protection, and thus, hopefully, greater ability to resist intimidation than local judges. Either the Russian jury should adopt the Anglo-American general verdict, or should explicitly instruct jurors as to the juridical meaning of each of the questions asked in the special verdict or question list so that they will know precisely what crime or crimes the defendant will be convicted or acquitted of if they answer in a given way. Juries should apply the law explained to them in the judge’s summation, to the facts they find to have been proved, and they—not the professional judges—should determine guilt. Guilty verdicts should be by qualified majority, at least nine or ten of the twelve jurors.145 Russia must also definitely introduce a “raise or waive” rule for bringing appeals, as well as a harmless error rule for deciding whether an error will lead to reversal of a conviction. The SCRF should be bound by the being placed on the jury” by defense counsel, and he was convicted in a secret trial in September 2004. Voronov, op.cit. note 98, 52. 144

“Jury Convicts Scientist of Espionage”, RFE-RL, 6 April 2004. Sutiagin was later declared to be a political prisoner by Amnesty International, and has appealed to the European Court of Human Rights. “Sutyagin Declared Political Prisoner”, RFE-RL, 27 April 2004; “Sutyagin Loses Another Appeal”, RFE-RL, 18 August 2004.

145

Mel’nik op.cit. note 39, 121, suggests raising the votes necessary for a guilty judgment to eight from seven. Petrukhin, “Sudebnaia vlast’”, op. cit. note 41, 11, supports unanimous, or at least qualified verdicts.

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appellate issues which were objected to at the trial court level and raised by appellate counsel. Acquittals should be final and not subject to reversal. Otherwise, the SCRF will continue to overturn any acquittals which displease it on any reasons it sees fit, and the jury will continue to appear as an irrelevant decorative institution. The aggrieved party or victim in Russian criminal trials should only play the role of the civil party seeking civil damages, and not that of a party with equal rights to the defendant as is now the case. But if the Russian legislator insists on allowing the aggrieved party to be a collateral prosecutor, then he or she should be required to hire counsel, or have court-appointed counsel as in Spain, and be responsible for raising all issues at the pre-trial or trial stages of proceedings, or forfeit the chance of raising them in the event of an acquittal. The recent decisions of the CCRF which treat the aggrieved party like a helpless juvenile and use the (often intentional) violation of their rights as a pretext to overturn acquittals or return shoddy cases to the prosecutor for further investigation, are scandalous and completely undermine the equality of arms and adversary procedure mandated by the RF Constitution. Finally, the Russian courts must take the issue of torture seriously and discontinue the practice of tacitly tolerating it, by preventing defendants from alleging improper interrogation tactics before the jury in their attempts to explain why they confessed to a crime they claim they did not commit. The “Concept of Judicial Reform” of 1991 remains an excellent blueprint for judicial and criminal procedure reform, and the courts and executive and legislative branches should once again use it as their compass in moving toward a criminal procedure that comports with internationally accepted principles of due process and human rights.146 Finally, the reform voices in Russia must not cede the initiative to President Putin as they did in 2000 and 2001 because there are serious doubts whether Putin is genuinely committed to democracy and democratic change. There are indications that he has used the attractive issue of jury trial (and adversary procedure) as window-dressing to palliate the West as he violently and ruthlessly pursues his policy in Chechnia, and his consolidation of presidential power.147

146

Krasnov, op.cit. note 33, 93, maintains that approximately 95 of the 160 clearly articulated positions in the “Concept”, or 59% remain unrealized.

147

Matthew J. Spence, “The Complexity of Success: The US Role in Russian Rule of Law Reform”, Carnegie Papers No.60 (Carnegie Endowment for International Peace, Washington, DC, 2005), 23.

Russia’s Constitutional Project and Prospects for the Future Gordon B. Smith Constitutions and constitutional arrangements for distribution of power in democratic systems—whether among the executive, legislative, and judicial branches, or among national, regional and local bodies, or between all of the above and the citizens and the various interests groups and parties with whom they affiliate to pursue their common interests—are by nature organic and marked by evolutionary change. The analysis of Russia’s progress in instituting constitutional democracy offered by the distinguished contributors to this volume provides ample fodder for both: optimists and pessimists. This should not surprise us; “constitutional democracy” and “rule of law” are both abstract principles, but also simultaneously, works in progress that inevitably fall short of perfection embodied in the abstract ideal in all countries. The challenges, compromises and setbacks experienced in the Russian constitutional project, some of which were elaborated in the preceding pages, are not unique. Other democratic states have struggled with perhaps not identical, but no less daunting challenges, especially in the early stages of their democratic development. The only perspective by which one can fairly analyze and assess Russia’s progress is by adopting a comparative developmental approach—not comparing Russia’s performance with an abstract ideal and not comparing it with standards in the most advanced democratic systems that have evolved legal and constitutional cultures over the span of hundreds of years. We would do well to remember the mixed track record of some of today’s democracies and emerging democracies to gain greater perspective on Russia’s constitutional development.

The American Experience Drafters of the US Constitution confronted strong sectional differences over slavery, the clash of large versus small states, and federal versus state jurisdictions. The constitution that emerged was the product of a protracted, sometimes conflict-ridden process. Some of the most sharply divisive issues were ignored entirely or masked in vaguely-worded provisions. No issue divided the drafters more than slavery. African-Americans, approximately twenty percent of the population in 1789, were not accorded any rights whatsoever in the Constitution, and were only covered under property provisions in Article 4. For purposes of determining the number of representatives in the House of Representatives, however, the Southern states wished to include slaves in their official Gordon B. Smith and Robert Sharlet, eds. Russia and its Constitution: Promise and Political Reality 181-193 Copyright Koninklijke Brill NV, Leiden, 2008

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population totals. A compromise worked out in 1787 held that each slave counted as three-fifths of a person. This provision was repealed by the XVI Amendment in 1868. On the political front, the development of democratic institutions in the early history of the United States was also slow and troubled. George Washington ran unopposed for both terms as president and without a party affiliation, since political parties only emerged during his presidency. He viewed parties as fractious and dangerous groups that seek to undermine domestic tranquility and national unity. In his “Farewell Address” in 1796, Washington warned: “The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so highly prize. But as it is easy to foresee that from different causes and from different quarters much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth.”1

Initially, only white males were entitled to vote. In most states there were additional provisions for excluding non-owners of property, Catholics and non-Christians. These restrictions were eliminated in most states during the 1840s, one-half century after the adoption of the Constitution. The XV Amendment, adopted in 1870, extended the vote to black males, but numerous impediments effectively limited African-Americans in exercising their right to vote in many states up to the 1950s and 1960s. Women were only granted the right to vote in 1920 with the passage of the XIX Amendment. The Supreme Court was a woefully weak third branch of the federal government that did not enjoy the power of judicial review until 1803. It was dependent on the Executive to enforce its decisions and the justices were aware that the Congress could effectively reverse their decisions by legislative action, thus, marginalizing the Court and undermining its legitimacy. As a consequence the justices avoided taking on the most controversial cases for more than fifty years, when they waded into the Dred Scott case in 1857. Serious breaches of due process—whether racially motivated lynching, vigilante justice, selective prosecution, official corruption and racketeering, forced confessions, and jury tampering—continued to exist in the United States well into the twentieth century, while racial profiling in police checks continues today. The landmark case Miranda v. Arizona, which established the rights of suspects to be informed of their right to an attorney and that any statements they make can be used in court against 1

The text of Washington’s Farewell Address is available at .

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them, was decided by the Supreme Court in 1966 almost 200 years after the American Revolution. The powers of the Executive branch and the use of Presidential discretion have fluctuated considerably over the more than two centuries of American democracy. During the Civil War, President Lincoln suspended habeas corpus and imposed martial law on sections of the country. During the Vietnam War, President Nixon had assumed such power that scholars began to refer to the “Imperial Presidency”.2 In more recent times, following the 9/11 attacks, the Congress gave the Executive branch sweeping powers under the Patriot Act to detain or deport foreigners on mere suspicion, monitor the activities and wiretap political organizations suspected of engaging in or supporting “domestic terrorism”, and authorize secret searches and surveillance including access to highly person medical, financial, and student records with minimal judicial oversight. These broad discretionary powers have resulted in the detention of American citizens as “enemy combatants” who have been held indefinitely in military custody without being charged and without access to lawyers. President Bush has also authorized the National Security Agency to monitor telephone and email communications without benefit of a warrant. Of course, no nation really begins at ground zero on its path toward the development of a functioning democratic, constitutional system. Internationally recognized norms and the experiences of other countries and cultures inevitably influence the development of rule of law and constitutional development in democratizing nations. No reasonable person would have expected the Russian Federation to begin its democratic and constitutional development at a level of recognizing the rights of individuals that prevailed in America in 1789. But neither should we expect the fledgling Russian Constitution and the institutions it created to emerge fully developed, robust, legitimate, equitable, and efficient in span of a little more than a decade.

The German and Japanese Cases Perhaps more analogous cases are presented by Germany and Japan, states that had only limited experience with constitutional democracy prior to 1945. The development of rule of law predated the rise of constitutionalism and democracy in Germany. Until the beginning of the nineteenth century, law in Germany, in the words of Erhard Blankenburg, “was a patchwork of jurisdictions sometimes based on locality and usually on 2

See, for example, Arthur M. Schlesinger, The Imperial Presidency (Houghton Mifflin, New York, 1973).

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status”.3 Following the Congress of Vienna in 1815 Europe embarked on nation-building. In 1871, German national unification and the spread of codified law patterned on the Napoleonic codes were realized. Blankenburg observes: “While the codification process established rule of law free of political interference, it did not mean that the judiciary was rooted in egalitarian values.”4 A legal culture was evolving in nineteenth-century Germany well before democratic principles took root. In the continental legal tradition of viewing law and politics as being two separate arenas, there arose a tendency to view the judicial determinations as apolitical and technical applications of exhaustively detailed and comprehensive codes. The task of the court was to relate the particulars of the case to the prescriptive details of the relevant code, rather than to dwell on larger questions of equity, due process, human rights, or the greater societal welfare. Nor did the courts extend their powers to include judging the unconstitutionality of the application of legislation to a particular case.5 It was precisely this preoccupation with the technical details of the law that blinded German judges to the abuses occurring during the Nazi years. The dominance of the German Ministry of Justice in legal education, licensure, recruitment, and professional advancement, further reinforced anti-democratic attitudes among judges. Jews were barred from state service until 1918 and women until 1922. In the 1920s under the Weimar regime, the mutual relationship of rule of law and democratic ideals gradually became accepted by lawyers and legal scholars.6 But any progress in this direction was abruptly halted in 1933 with the Nazi seizure of power. It is instructive that under the Third Reich, much of the Weimar Republic’s statutory law remained in place unaltered, but in the application of the laws the courts and other law enforcement agencies were manipulated to legitimize totalitarian rule, elimination of political enemies, and genocide. After the defeat of Germany in World War II, the occupying powers in both East and West introduced constitutions reflecting the political values of their respective systems. In the Western zone of military occupation a provisional constitution, the Basic Law, was promulgated in May 1949 3

Erhard Blankenburg, “Changes in Political Regimes and Continuity of Rule of Law in Germany”, in Herbert Jacob et al. (eds.), Courts, Law and Politics in Comparative Perspective (Yale University Press, New Haven, 1996), 251.

4

Ibid.

5

H. G. Peter Wallack, “Judicial Activism in Germany”, in Kenneth M. Holland (ed.), Judicial Activism in Comparative Perspective (St. Martin’s Press, New York, 1991), 157.

6

Blankenburg, op.cit. note 3, 251.

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and elections to the parliament followed in October 1949. A coalition led by the Christian Democratic Party governed for the next twenty years, led for most of that time (1949-1961) by the popular Chancellor Konrad Adenauer. Foreign occupation forces guaranteed stability and facilitated democratization until mid-1955, when they were removed. The reinstitution of rule of law required expunging from the German legal landscape all vestiges of the Nazi regime, including anti-Semitic statutes and reversing many particularly notorious court rulings. In reaction to its recent past, the post-war German constitution elevates human rights to a central place. The first twenty articles enumerate an impressive array of fundamental rights and liberties. However, influenced by the Weimar experience, the Basic Law also contains provisions for revoking certain political and civil rights in order to defend the constitutional system, including banning political parties and other groups that advocate violent or unconstitutional activities. Modern Japan is generally considered to have begun with the Meiji Restoration in 1868. A band of powerful oligarchical, regional, and military leaders seized power in the name of the emperor, moved the capital to Tokyo, and began a series of “Westernizing” reforms, including drafting a constitution and codes of law on the Prussian model. In large measure, the flurry of legal development was undertaken in order to force western powers to give up their consular jurisdiction, which resulted from the unequal treaties forced on the last Tokugawa Shogun. By the late 1890s and early twentieth century, all western powers renounced their rights to extraterritoriality. As one scholar concludes: “Through the adoption of a western form of legal system the Japanese had regained their sovereignty.”7 Nevertheless, the development of western-style codes of law and courts failed to take root among the populace; deeply imbedded cultural values continued to hold sway. After Japan’s defeat in World War II, US military authorities occupying the country directed the drafting of a new constitution. An initial attempt by the interim Japanese cabinet to revise the Meiji Constitution failed to win the support of General Douglas MacArthur, Commander of Allied Forces in Japan. MacArthur directed a team of American officials to draft the document, which they did in only six days. In an effort to placate the Japanese, the draft constitution maintained the ceremonial role of the emperor, and created a parliamentary system modeled on the British system. The new constitution, which was technically adopted as a series of amendments to the Meiji Constitution, was approved in November 1946 and took effect in May 1947. Elections were held and a leftist coalition 7

Carl. F. Goodman, The Rule of Law in Japan: A Comparative Analysis (Kluwer Law International, The Hague, 2003), 19.

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formed a government for ten months, to be replaced by a conservative coalition. In 1955 the two largest conservative parties merged to form the Liberal Democratic Party (LDP), which governed without interruption until 1993. The LDP finally lost support of the voters in the 1990s for its failure to deal with corruption, policy stagnation, and problems caused by continued shuffling of the same faces through successive cabinet posts in the wake of scandals. The Constitution established an independent judiciary headed by a Supreme Court with power of judicial review. However, the Court has been reluctant to overturn laws passed by the Diet; only a handful of laws have been declared unconstitutional in more than fifty years of the Court’s operation.8 The Japanese Supreme Court lacks enforcement powers and the necessary legitimacy to compel acceptance of its decisions, leaving it a weak and mainly ineffective defender of constitutionalism.9 At the same time the Supreme Court’s independence is challenged by political influences. Justices are generally appointed late in life. This—combined with a mandatory retirement age of seventy—results in a rapid rotation of justices on the bench. Nomination of justices has been controlled by the LDP for most of the post-war period, giving the party the power to shape the Court to its liking. Lower level judges are appointed for a term of ten years by the Supreme Court justices working with the Secretariat of the Court. Political pressures derived from the LDP’s influence on the composition of the Supreme Court filter down to lower judgeships where judges can be non-reappointed or threatened with non-reappointment for not deciding cases “properly”.10 Although Article 14 of the Japanese Constitution prohibits discrimination on the basis of sex, race, family background, or social status, problems persist in the treatment of resident Koreans, the Ainu, and the Burakumin.11 Reflecting the lower profile of the courts in the Japanese system, progress in defending human rights has tended to come through legislative rather than legal action. Problems also continue to arise in the Japanese criminal justice system. The Constitution and the Code of Criminal Procedure protect citizens against forced confessions. However, confessions are still the norm; it is 8

Rolf H. W. Theen and Frank L. Wilson put the number at ten in 2000 in Comparative Politics (Prentice Hall, Upper Saddle River, NJ, 4th ed. 2001), 357.

9

Ibid.

10

Goodman, op.cit. note 7, 116-119.

11

The Ainu are the indigenous people of Hokkaido. “Burakumin” “ is a social/familial classification of people engaged in trades such a slaughtering, tanning hides, and leatherwork.

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estimated that confessions are obtained in more than eighty-five percent of all cases.12 Goodman concludes: “A prosecutor who does not obtain a confession feels he has not done his duty.”13 Torture is illegal; but sleep deprivation, long interrogation sessions, and cultural and familial values—that view confession and contrition as the necessary steps toward rehabilitation and reintegration of offenders into society—result in high rates of confessions. Furthermore, defense attorneys can meet privately with their clients only at dates, times, and places designated by prosecutors. In practice, such restrictions can easily lead to abuses and restrict suspects’ right to defense. Article 34 of the Criminal Procedure code establishes the State’s obligation to provide counsel, but this guarantee only applies to persons who have been formally indicted, not to suspects during the all-important preliminary investigation. It is estimated that less than twenty percent of all suspects retain their own counsel during investigations, largely for financial reasons.14 Article 35 of the Japanese Constitution parallels the language of the Fourth Amendment to the US Constitution. Nevertheless, searches and seizures without warrants and without demonstrating “adequate cause” often occur and Japanese courts are reluctant to dismiss cases due to illegally-obtained evidence.15 Japan is often pointed to as an “Asian success story” due to its post-war economic and political progress. As impressive as its post-war development has been, it is also apparent the deeply-held cultural values with roots in the imperial, authoritarian past combine to limit the full exercise of both constitutional democracy and rule of law almost half a century after the enactment of the Constitution.

The Case of India Germany and Japan shared a legacy of nationalistic, authoritarian regimes defeated in war, and constitutional systems imposed by occupying forces of foreign powers. The stabilizing influence of the American military, combined with political pressure for democratic reform and economic assistance was critical to the successful transformation of both countries. 12

Joseph Sander, “Courts and Law in Japan”, in Jacob et al., op.cit. note 3, 335.

13

Goodman, op.cit. note 7, 306.

14

Ibid., 308. Ibid.

15

See David Bayley, Forces of Order: Policing in Modern Japan (University of California Press, Berkeley, 1991), 37.

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Russia has enjoyed none of these advantages. India may present more similarities to the Russian case. Neither India nor Russia had an occupying power to maintain order, or assist in drafting constitutions or creating democratic institutions. India, like Russia, is a large and diverse country, with sharp religious, ethnic, linguistic, and regional differences. However, in contrast to Russia, India had developed some affinity for constitutional democracy during the colonial period. The colonial experience planted in India the seeds of modern parliamentary democracy, constitutionalism, efficient public administration, and rule of law, especially among English-speaking elites. The rise of the Indian National Congress in 1885—largely dominated by westernized, educated merchants, teachers, doctors, lawyers, and public officials who advocated democratic values and rule of law that transcended caste, religion or region—became the spearhead of India’s movement for national independence. India gained its independence from Great Britain in 1947 and work began almost immediately on a new constitution; a final document was ratified in 1949 and took effect in early 1950. The large geographic size of the country, combined with an extremely large and diverse population complicated the task of constitutional drafting and implementation. Among the thorny issues tackled by the drafters was differentiating the powers of the “union”, (central government) from those of the twentythree states and eight union territories, as well as enumerating a list of concurrent powers shared by both levels of government. The Indian constitution is perhaps the most comprehensive, elaborate, and detailed constitution in the world. Part IV of the Constitution incorporates many “directive principles” of the State to end social and economic inequalities, enhance social welfare, provide free legal assistance, guarantee “just and humane” working conditions and maternity relief, workers’ participation in management of industries, and raising the nutritional standards of the populace, among many others. The “directive principles” are not enforceable in court, but are enumerated as the stated aspiration of state policy. Despite the progressive, democratic principles enshrined in the constitution and pursued by India’s early modernist leaders, such as Jawaharlal Nehru, the commitment to achieving these goals has waned in successive decades. The Indian National Congress party dominated the political landscape from 1952, when the first parliamentary elections were held, until 1989 despite a split in 1969. Indira Gandhi, Nehru’s daughter, realigned the party with several leftist parties and sought to generate populist support

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by nationalizing banks and undertaking programs to eliminate poverty. However, India experienced severe drought in 1971 and 1972 leading to inflation in food prices, followed the next year by rapidly rising fuel prices due to OPEC’s decision to quadruple oil prices. Meanwhile, the High Court ruled that Mrs. Gandhi had committed electoral law violations in the 1971 elections and ordered her to be removed from her seat in Parliament and banned from running for an additional six years. Invoking Article 352 of the Indian Constitution, the Prime Minister declared a state of emergency on 25 June 1975, most opposition leaders were arrested, and she chose to bypass the parliament and rule by decree. In all, more than 110,000 people were detained without trial during the emergency, which finally ended in March 1977.16 Rampant corruption within the ranks of the Congress Party and the government’s growing inability to quell communal disturbances and deliver on the high-minded promises of the Constitution resulted in defeat in the 1989 parliamentary elections, ending thirty-seven years of one-party rule and ushering in a period of genuine multiparty political competition. Despite increased political competition, however, corruption had become widespread and rooted in the culture. In 1997, then Prime Minister Gujral declared that corruption permeated every aspect of Indian life. The Indian media have exposed cases of politicians hiring thugs to intimidate potential voters and on several occasions persons with criminal records have successfully run for public office. A Home Ministry report declared that corruption was “endemic” and violence and organized crime had reached “chaotic proportions”, threatening the criminal justice system and local governments.17 The report was so controversial that it was tabled in parliament. The popular weekly magazine Outlook created a “national bribe index” to draw attention to the epidemic of bribes which had to be paid for birth certificates, admissions to schools and universities, bank loans, passports, drivers’ licenses and to receive electricity, water and telephone service.18 In 2001, India ranked seventy-second out of ninety-one countries on the Corruption Perception Index compiled by Transparency International19 Law enforcement agencies and the courts are overwhelmed in dealing with corruption and crime. The courts have massive backlogs 16

Cited in “Congress Party India”, available at .

17

Reported in Rahul Bedi, “Rampant Corruption Threatened by Corruption”, Asian Times, 4 April 2002.

18

Ibid.

19

Cited in C. Raj Kumar, “Corruption and Human Rights”, 19(9) Frontline (14-27 September 2002).

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of cases, resulting in serious delays in criminal defendants receiving a trial. Cases are routinely dismissed for failure to grant a speedy trial. The backlog of civil and commercial cases is even worse—an estimated twenty-four million cases with delays averaging twenty years.20 Stabilization of India’s constitutional democratic system has been hampered by frequent constitutional amendments, politically-motivated violence, and periodic incursions by neighboring powers. From 1950 to 1995, the constitution was amended seventy-five times, for an average of two amendments per year.21 Mahatma Gandhi, the father of Indian democracy, and Indira Gandhi were both assassinated by terrorists opposed to their policies. Politically-motivated violence is even more common at the local level. Domestic crime and terrorism are compounded by external tensions with Pakistan and China and have created a climate in which the government has at times imposed restrictions on constitutional and civil rights in the name of promoting national security. Each of the above cases offers a unique set of facts, history, cultural values and a constellation of political forces and personalities that shaped each country’s path toward constitutional democracy and implementation of rule of law. Other cases could be added—perhaps Spain, Brazil or Indonesia— where authoritarian or military dictatorships have given way to democratization. Taken as a whole, Russia’s experience over the relatively short period of fourteen years under the Constitution is not bad, and in some respects impressive, when measured against the experience of other democratizing nations. But, as we stated at the outset, Russia’s development of constitutional democracy and rule of law is “a work in progress”. We now turn to the task of assessing Russia’s prospects for future development along this path; the question that Gogol’ asks in his classic, Dead Souls: “Russia, whither flyest thou?”

Assessing Russia’s Progress and the Road Ahead Many of the authors of the preceding chapters found Russia’s progress toward fulfilling the promises contained (or implied) in the 1993 Constitution to be disappointing. Richard Sakwa finds that Putin’s emphasis on stability over democratic accountability and transparency erodes both the legitimacy and efficacy of the Constitution. Robert Sharlet’s analysis of federalism documents Putin’s campaign to bring Russia’s eighty-five regions into greater compliance with federal norms. The President’s strategy of appointing governors represents a significant reduction of 20

Hiram E. Chodosh, Global Justice Reform (New York University Press, New York, 2005), 74.

21

Available at .

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regional autonomy and erodes the constitutional conception of symmetrical federalism. Peter Krug’s analysis of press freedom concludes that the judiciary has been timid in protecting against encroachments on media rights, while the Executive branch has undertaken a systematic campaign to intimidate or silence criticism, especially in the broadcast media. Among the most progressive legal reforms deriving from the new Constitution was the resumption of jury trials in serious criminal cases. However, Stephen Thaman finds that acquittals by juries are frequently overturned by the Russian Supreme Court, in effect undermining the constitutional right to a trial by jury. The challenge in assessing these findings is to differentiate temporal phenomena—that is, characteristics and patterns of behavior deriving from the unusual popularity of President Putin and the dominance of the pro-Putin United Russia party in Parliament—from more permanent features deriving from the very design of the Constitution itself. Some of the concerns addressed in the foregoing chapters appear to derive from Putin’s popularity and could well be altered by the fragmentation of United Russia in the 2007 parliamentary elections or the 2008 presidential election that will determine Putin’s successor. Assuming Russia’s next president will lack Putin’s overwhelmingly popular support, we could expect diminished influence of the Executive branch, which in turn, would likely encourage a more assertive Parliament and provincial governors, a more critical mass media, and a more independent judiciary. On the other hand, some of the areas of concern noted by the contributors to this volume appear to be more fundamental and reflect deeply ingrained legal and cultural norms that will not change with the passing of the Putin Administration in 2008. Alexei Trochev observes that, in the long run, the judiciary must persuade government officials that norms of individual rights stated in the Constitution and congruent with international legal norms must prevail over traditional Russian habits of governance. Similarly, Stephen Thaman and Stanislaw Pomorski note that professional and popular resistance to jury trials and adversarial court proceedings and a reluctance to embrace consensual guilty pleas have undermined the Constitution’s standards of due process. Meanwhile, Gordon Smith finds that traditional norms and political turf battles have resulted in preservation of a dominant role for the Russian Procuracy in the Russian legal system. These challenges are the most daunting for the Russian legal system, because they entail transforming Russia’s legalconstitutional culture. Whereas, the focus of world attention is currently on the accumulation of power by President Putin, a greater threat to constitutionalism

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in Russia lies in the specter of the Constitution being marginalized by lack of implementation or enforcement of its provisions due to the reluctance of officials and the public to accept new legal norms and patterns of governance dictated by the Constitution. Here again, a comparative and developmental approach offers some comfort. Russia is not alone in experiencing resistance to concepts of freedom of expression, powersharing among various branches or levels of government, equality before the law, fair trials, and independence of the judiciary. The experience of other nations, especially early in their democratization process, confirms that changing legal-constitutional cultures is measured in decades, not months or years. One encouraging sign to emerge in Russia is a growing “demand for law” throughout society. The case loads of the commercial courts and courts of general jurisdiction are large and expanding rapidly, indicating the increasing willingness of citizens to seek judicial remedies over other methods of dispute resolution.22 Another hopeful sign, identified in the contributions of Peter Krug, Alexei Trochev, and Stephen Thaman, is the apparent receptivity of Russian judges to international legal norms established by the United Nations and the European Court of Human Rights. Robert Sharlet’s chapter documents the Putin administration’s campaign to bring regional and local legislation into conformity with federal laws and the Constitution. In many cases, local and regional authorities have challenged these actions in court. In most cases, the courts have found in favor of the Federation. But more important perhaps than the outcome is that the courts have gained in stature and legitimacy in the process of handling these cases.23 Reflecting the growing demand for law, the legal profession is enjoying new-found popularity and prestige. Professional standards are rapidly rising in virtually all areas of legal practice—on the bench, prosecution, criminal defense, criminal investigations, private or corporate counsel, and staff attorneys drafting legislation. Since the collapse of the USSR, a decade and a half ago, Russia has traversed a difficult terrain of chaos, terrorist attacks, instability, lawlessness, corruption, and erosion of the powers of the state. The Constitution itself was the product of a violent confrontation between President El’tsin and remnants of resistance in the Russian parliament in 1993. From this 22

See, for example, Kathryn Hendley, “The Use of Courts by Russian Creditors”, Problems of Post-Communism (July-August 2003), 34-42; and Kathryn Hendley, “Enforcing Judgments in Russian Economic Courts”, 20(1) Post-Soviet Affairs (2004), 46-82.

23

See, also, Gordon M. Hahn, “The Impact of Putin’s Federative Reforms on Democratization in Russia”, 19(2) Post-Soviet Affairs (2003), 114-153.

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perspective and in light of the track records of other democratizing states, the development of constitutionalism and rule of law in Russia has been remarkable. Yet, not surprisingly, it also remains a work in progress.

About the Authors Peter Krug (Chapter 4) is Professor of Law and holder of the Herman G. Kaiser Foundation Chair of International Law, The University of Oklahoma College of Law. In addition to a law degree, he holds a PhD in Russian History. A specialist in Russian and comparative judicial and media law, his articles have appeared in American Journal of Comparative Law, American Journal of International Law, Review of Central and East European Law, Virginia Journal of International Law, Oklahoma Law Review, Wisconsin Law Review, and elsewhere. Several of his works have been translated and published in Russia. Professor Krug teaches courses on comparative law, international business transactions, and public international law. He is currently working on domestic court treatment of international court treaty interpretations, including courts in Russia, Germany, the UK and the US. He recently published “Internalizing European Court of Human Rights Interpretations: Russia’s Courts of General Jurisdiction and New Directions in Civil Defamation Law”, 32(1) Brooklyn Journal of International Law (2006), 1-65. Stanislaw Pomorski (Chapter 6) is Distinguished Professor of Law Emeritus at Rutgers University School of Law, Camden, New Jersey. He studied law at Warsaw and Harvard Universities, and was a member of the criminal defense bar in Poland before commencing his academic work. Dr. Pomorski’s numerous studies, mostly in the areas of criminal law and criminal procedure as well as comparative law, have been published in several countries including the United States, Germany, France, Poland, and Russia. Richard Sakwa (Chapter 1) is Professor of Russian and European Politics at the University of Kent, UK. He has published widely on Soviet, Russian and post-communist affairs. Recent books include: Contextualising Secession: Normative Aspects of Secession Struggles (Oxford University Press, Oxford, 2003), co-edited with Bruno Coppieters; Putin: Russia’s Choice (Routledge, London, New York, 2007); and he edited and contributed to, Chechnya: From Past to Future (Anthem Press, London, New York, Delhi, 2005). Professor Sakwa teaches courses on post-Communist Russia and comparative democratization. His current research interests focus on Putin’s leadership, Russian government and politics, and problems of democratic development in Russia and other post-Soviet states. Robert Sharlet (Co-editor; Chapter 2) is Chauncey Winters Research Professor of Political Science, Union College, Schenectady, NY. A specialist Gordon B. Smith and Robert Sharlet, eds. Russia and its Constitution: Promise and Political Reality 195-197 Copyright Koninklijke Brill NV, Leiden, 2008

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on Russian politics and law, he has published seven books, the latest of which is: Robert Sharlet and Ferdinand J.M. Feldbrugge (eds.), Public Policy and Law in Russia: In Search of a Unified Legal and Political Space, in William B. Simons (ed.), Law in Eastern Europe, No.55 (Martinus Nijhoff Publishers, Leiden, Boston, 2005). A noted expert on the Russian and Soviet constitutions and constitutional law, during the early 1990s he served as Senior Coordinator of the Rule of Law Consortium in Washington, DC and abroad, the mission of which was to provide legal reform assistance to Russia and the former Soviet republics under auspices of the US Government. Professor Sharlet taught courses on Russian law and politics, the impact of the Cold War on American society, and the US involvement in Vietnam. He is currently researching a memoir on his brother Jeffrey James Sharlet (1942-1969) in his role as a Vietnam GI, and subsequently a founding leader of the GI protest movement against the Vietnam War. Gordon B. Smith (Co-editor; Introduction, Chapters 5 and 8) is Professor of Political Science, and Director of the Walker Institute of International and Area Studies at the University of South Carolina where he regularly teaches graduate and undergraduate courses on Russian politics and Russian foreign policy. A specialist on the Procuracy, the administration of justice, and law reform in Russia, he has published nine books, including State-Building in Russia (M.E. Sharpe, Armonk, NY, 1999), and Reforming the Russian Legal System (Cambridge University Press, Cambridge, 1996). He served as Associate Provost and Dean of the Graduate School at the University of South Carolina from 2001-2004. He frequently lectures on Russian politics and law to US government officials at the Federal Executive Institute and to Smithsonian groups traveling in the former USSR. He is currently working on a book evaluating the legacy of President Putin with particular emphasis on changes in the Russian legal system during his two terms. Stephen C. Thaman (Chapter 7) is Professor of Law, Saint Louis University School of Law. A specialist on comparative criminal law and procedure, and an international expert on jury trial procedure, his two books are a casebook, Comparative Criminal Procedure (Carolina Academic Press, Durham, NC, 2002), and a translation from German, The German Penal Code (William S. Hein & Co., Inc., Buffalo, NY, 2002). He has also published numerous law articles written in several languages in such journals as Stanford Journal of International Law, Parker School of East European Law, Law & Contemporary Problems, East European Constitutional Review, Rossiiskaia iustitsiia, Gosudarstvo i pravo, Vestnik Moskovskogo Universiteta: Pravo,

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Recht in Ost und West, Capitulo Criminologico, and Justicia. In addition, he assisted in drafting the 2001 Russian Code of Criminal Procedure. He regularly teaches criminal law and procedure, comparative law, and comparative criminal procedure. He is working on a book—The Future of the European Jury—and consulting with Indonesian colleagues on a new code of criminal procedure. Alexei Trochev (Chapter 3) is a Research Associate at the Institute of Intergovernmental Relations, Queens’ University in Kingston, Canada. He completed his doctorate in political science at the University of Toronto with a dissertation on the origins and impact of the Russian Constitutional Court. His new research project explores the different roles of high courts in election disputes and “colored” revolutions in Georgia, Ukraine, and Kyrgyzstan. He has taught federalism at Queen’s University and Russian and comparative constitutional law at the M.V. Lomonosov Pomor State University Faculty of Law in Arkhangelsk, Russia. In addition to several chapters on the informal dimensions of Russian judicial politics, his articles on post-Soviet constitutional courts have appeared in Law & Society Review, Journal of International Constitutional Law, and East European Constitutional Review.

List of Russian-Language Abbreviations

VSND i VS RSFSR (Vedomosti S”ezda Narodnykh Deputatov Rossiiskoi Federatsii i Verkhovnogo Soveta Rossiiskoi Federatsii) VVS RSFSR (Vedomosti Verkhovnogo Soveta RSFSR) VKS RF (Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii) SZ RF (Sobranie Zakonodatel’stva Rossiiskoi Federatsii) BVS RF (Biulleten’ Verkhovnogo Suda Rossiiskoi Federatsii)

Index A Abdullov et al. case ..................................... 171 access to judicial proceedings and records............................................. 103 acquittal rate ............................ 155, 167-170 administrative law ................................... 81 administrative sanctions .......................108 adversarial procedure ............................ xii, ............................................123-140, 141-180 Agafonov et al. case....................................173 Al’fa Bank v. Kommersant case ...............................................89-90, 96, 102 Aleman v. Honorable Judges of Cook County Circuit Court case ............... 163 Aleshin et al. case .......................................173 Aliev case .............................................169, 172 Altai Republic case .....................................42 Antipov case ..............................................173 appellate procedure .................. 127, 163-177 Arbitrazh courts ..................... 89-90, 95-97, ............................................102, 107, 116-118 Aristotle .................................................... 1 Article 29 (freedom of press) ............................79-103 Arustamov case .........................................173 B Baglai, M. ............................... 24, 29, 31, 32, ................................................ 40, 49-50, 66 Baikov case ..............................................169 Balzer, H...................................................82 Bank Accounts case ..............................62, 65 Bankruptcy Protection case ........................ 57, ............................................................. 58, 62 Bashkir Language case ................................47 Baykov case ...............................................171 Belichenko et al. case ......................... 169, 176 Berezovskii, B. .........................................89 Blankenburg, E. ..............................183-184 Bobrischev-Pushkin ............................. 158 Boitsov et al. case ...................................... 172 Bolshevism ............................................2, 13 Bondar, N. ............................................. 103 Bowman v. UK case ..............................58-59 Breslauer, G. .............................................. 4 Brezhnev, L. ...................................... 10, 17

Bulochnikov case ..............................169, 172 Bulychev case............................................169 Burdov v. Russia ........................................ 72 Bush, G. W. ............................................183 C cassation ..................................158, 167-170 center-periphery conflicts ..................23-51 Chaika, I. ................................................118 Chechen case .................................... 31, 47, 85 Chechnia .................................35-36, 46, 48, ....................................................85, 142, 180 Chernobyl disaster ....................... 64, 71-72 Chief Justices of the Constitutional Court ........................xv-xvi Chuglazov, G. .........................................121 civil and commercial cases (Arbitrazh court) ...................... 116-118, 190 Civil Code of the Russian Federation (Civil Code) ................................. 67, 86-90 Code of Civil Procedure .................112, 116 Code of Criminal Procedure ........................... 123-140, 142, 144, 147-149, ....................... 155-156, 164-165, 177-180, 197 Code on Administrative Violations ...............................................108 common legal space ......................118, 120 commune democracy ............................3, 4 Communist Party case .......................... 27, 29 Concept (Conception) of Judicial Reform ............................123, 125, 147, 149, ..................................................154, 176, 180 confessions ......................xiii, 129, 131, 141, .................................................. 163, 167, 173, ................................................... 182, 186-187 Congress of People’s Deputies (CPD) .............................................. xi, 4, 6 Constitution of the Russian Federation .................xi-xii, xiii, 6, .............................. 10, 23, 53, 58, 62, 64, 65, .......................... 69-70, 75, 79, 80-81, 83-84, ........................85, 90, 98, 103, 105, 109-110, .....................................111, 112, 114, 118-120, ...........................................142, 149, 153, 180

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Constitution, enforcement of .................. 111, 113-116, 192 Constitution, German .................................26-27, 184-185 Constitution, India ........................187-190 Constitution, Japan .........................185-187 Constitution, United States ......................33, 181-183, 187 Constitution, USSR ................................10 Constitutional Court ..................... xiii, 10, ............................. 23-51, 53-77, 85-86, 88-90, ...........................91-92, 95-96, 102-103, 109, ............................. 112, 113-116, 120, 124-125, ............................. 127, 136, 148, 176-177, 180 Constitutional Court, History ................................................28-29 Constitutional Court, Leadership...........................................29-32 constitutional equality ..................... 60-64 constitutional principles .................... 55-77 Criminal Code of the Russian Federation .......................... 66, 114 D Dahl, R. .....................................................8 Danilov, V. ............................................. 178 Darchuk case ............................................ 172 De Gaulle, C. ........................................... 9 defamation law ..................... 79, 83, 86-103 defense counsel .......................127, 129, 134 delegative democracy .............................. 6 deliberative despotism ....................... 5, 14 Denisov case ............................................170 Dismissal Law case.................................... 44 domestic violence ........................... 160-161 double jeopardy .........................xii, 175-177 Dred Scott case ......................................... 182 drunkenness .............................159-160, 161 Drygin case ...............................................171 E Ebzeev, B. ................................................59 economic legal principles .......................56 Egorova, E. .............................................152 El’tsin, B. .......................... xi, 5-8, 15, 18, 19,

.......................................... 24, 26, 32, 35-40, ..................................... 45-47, 73, 76, 84, 99, .................................. 106, 109, 114, 192-193 Electioneering ‘Against All’ case .................. 60 Elgie, R. ....................................................11 Epp, C. ....................................................76 Ermolaev/Drachenko case..........................173 European Convention of Human Rights (ECHR) ...................57, 58, .......................................... 92-94, 97-98, 102 European Court of Human Rights (ECtHR) .................... xiii, ..................................... 54, 58-59, 70, 72, 76, ................................... 92-95, 97-98, 102, 192 exclusionary rule ............................ 127, 135, ................................................... 146, 172-173 F fairness ...............................................64-69 federal districts .........................115, 118-120 Federal Security Service (FSB) ..................................117, 121, 122, 178 Federal Tax Police Service ...................................... 118-119, 121 federalism ...............................xii, 23-51, 54, .............................................56, 118-120, 190 Federation Treaty ...................35-38, 43, 47 Foglesong, T. .........................................164 Foinitskii, I. ...........................................157 Foster, F. ..........................................99-100 French Jacobin tradition ........................ 20 Friedrich, C. ........................................ 9-10 G G. case ...................................................... 167 Gadzhiev, G. ................. 56, 60, 68, 96, 103 Gaidar, E. .................................................87 Gandhi, I. ............................... 188-189, 190 Gandhi, M. ............................................190 Garkusha/Logachev case....................170, 172 general supervision ........................ 106-109 German Basic Law ..........................184-185 German Constitutional Court ..............45 Germany..................................... 45, 183-185 glasnost’ ........................................ 83-84, 141

Index Glinski, D. ............................................... 16 Gogol, N. ..............................................190 Goodman, C. ..................................185-187 Gorbachev, M. ............................... 4, 7, 29, .....................................................37, 141, 147 Gorokhov and Rusiaev v. Russia case.......... 72 Governors Term Limit case .........................45 Grafov case ...............................................173 Gramsci, A. ............................................... 3 Grigor’ev case ............................................173 guilty plea ........................................ 123-140 Gushchin/Zhirnov case..............................175 Gusinskii, V. .............................................89 Gusinskiy v. Russia case ............................. 80 H habeas corpus..........................................183 Hahn, G. .................................................. 18 Holmes, S. ......................................... 9, 154 Huskey, E. ................................................ 12 I Iakovlev, V. ......................................... 29-30 Iaponchik case .........................................166 Illegal Dismissals case ........................... 55, 70 imperial presidency ................................183 Indian Constitution .......................187-190 (see Constitution, India) Indian legal system .........................187-190 inquisitorial proceedings .......................123 international legal norms .................. 53, 57, ................................ 58-59, 70, 72, 76, 92-95, .......................................97-98, 102, 191, 192 Isakov case ................................................173 Italian Constitutional Court .................................................60, 75 Ivanovo Civil Service case .........................47 J James and Others v. United Kingdom case .................................. 58 Japan .................................................185-187 Japan, Meiji Constitution ..................... 185 Japanese Constitution .....................185-187 (see Constitution, Japan) Japanese Supreme Court ..................... 186

203 Jordan, P. ............................................... 139 judges, appointment of ...................149-151 judicial impartiality ....................... 126, 137, .......................................................... 174, 175 judicial independence ...................... 32, 56, .............................. 105, 125, 137-138, 149-156 judiciary .....................................137-138, 178 jury errors ........................................170-180 jury nullification .............................157-170 jury system in Tsarist Russia ....................142-144, 161-162 jury trial ............................. xiii-xiv, 141-180 jury trial, avoidance of .................................... 156-157 jury trial, other countries ...............................142-144 K K. case ................................................... 173, 174 Kahn, J. ....................................................36 Karakaev case ...........................................171 Karzhemanov et al. case............................169 Kasianov, M. ........................................... 12 Kazannik, A. .........................................106 Kazantsev, S. ........................................... 69 Kazarina, A. ..........................................108 Kekhlerov, S. ..........................................117 Kh. case ....................................................169 Kharchevnikov case ...................................171 Khasbulatov, R. ............................... 5, 6, 14 Khodorkovskii, M. ................................. 12 Khokhriakova, O. .................................. 66 Kolakowski, L. .......................................... 3 Komi Local Government case .....................47 Kondrashin case .........................................171 Koni, A. ................................................. 158 Kononov, A. ......................................60, 66 Kornilov et al. case ............................ 170, 173 Kovalev case .............................................171 Kozak, D. ..........................................24, 45 Kozyrev, A. ........................................ 87, 88 Kozyrialin case ......................................... 172 Kras’kina case ...........................................160 Krasnov, M. .............................................24 Krug, P. ...........................................xiii, 192 Kruglov case .............................................169

204

Russia and its Constitution: Promise and Political Reality

Kudeshkina, O. ......................................152 Kulakov case ............................................ 161 Kurnosikov case ................................169, 172 Kurochkin et al. case ................................. 172 Kushchenko/Kushchenko case .....................171 Kustov/Sobolevskii case ............................ 174 Kuz’kin case........................................171, 175 Kuznetsov case..........................................169 L Law on the Procuracy .......................... 105, ......................................... 106, 107, 108, 112, ...................................... 114-115, 116, 118, 121 Lebedev, V. ..............................................29 legal counsel ..................... 127, 129, 134, 180 legal culture ........................25, 45, 134, 141, ............................................ 181, 184, 191-193 legal profession ...................................... 192 Lenin, V. .................................................... 3 Likhonin et al. case ...................................169 Lipkin et al. case ........................................173 Lithgow and Others v. United Kingdom case .................................. 58 Litvinenko/Gusak case ............................. 156 local and regional bodies................. 112, 113 Luchin, V. ................................................43 M Machiavelli, N. ..................................15, 19 Majors v. Abell.......................................... 60 Makarov et al. case ...................................170 Markelov case .......................................... 172 managed democracy ......................... 19-20 managed pluralism ..................................82 mandamus ...............................................135 Manukian case ..........................................171 Marchenko et al. case ................................169 Markarov, N. .........................................120 market bolshevism ................................. 16 market economy .....................................56 Marshall, J. .............................................. 23 Marx, K. .................................................... 3 Mazanov, S. ........................................ 55, 70 McConnell v. Federal Election Commission case ........................................ 60 Media Subsidies case ...................................86 Media-Most and ORT cases ............... 116-118 Mediantsev case ....................................... 172

Medvedev, D. ........................................... 12 Minakhmedov case ........................... 169, 174 Ministry for Emergency Situations ................................................117 Ministry of Internal Affairs ............117, 119 Ministry of Labor ...................................117 Miranda rights .........................173, 182-183 Miranda v. Arizona case .......................... 182 Mizulina, E. ........................................... 177 Monetization of social benefits .............74 Mordovian Presidency case ....................... 46 Morozov case.............................................173 Murmansk Land Code case ....................... 49 N Nazarov et al. case .................................... 172 Nehru, J. ................................................. 188 Nemchikov case ........................................ 174 Neo-patrimonialism ........................... 14-15 Nikitin et al. case ...................................... 172 Nikitin, A. ............................................... 85 Nikolaev/Buntov case............................... 174 Nineteenth Party Conference ................ 4 Nixon, R. ................................................183 nomenklatura ........................................... 177 Novikov case ............................................ 172 NTV/TV-6 cases ...................89-90, 97, 100 nullification ........................ 110-111, 163-177 O O’Donnell, G. ........................................... 6 Obusov case ...............................................175 order ......................................................... 17 Orwell, G. ................................................. 9 Otegi case ..................................................175 P P. et al. case ............................................... 174 para-constitutionalism .................14, 19-21 parade of sovereignties ...........................26 Pavlov case ................................................171 Pavlovskii, G. .......................................... 18 Paziev et al. case ................................165, 167 People v. Aleman case ................................ 163 people’s assessors .................................. 141, ...................................................143-144, 154 perestroika................................. 141, 147, 149

Index Perfil’ev case ............................................. 172 Petrukhin, I. .......................................... 128 P’ianzin case ......................................167, 169 Politburo ................................................... 4 Pomazan case.............................................173 Pomorski, S. ......................xiii, 60, 155, 191 Popov case .................................................173 pravovoe gosudarstvo (rule of law) ............................... xi, xii, xvi, ........................................... 5-6, 15, 25, 51, 65, ............................................. 74, 76, 154, 181 preliminary investigation ......................127, ............................141, 144, 155, 162, 164, 167 presidency, constitutional powers of ...................... 9-13 press freedom ........................... xiii, 79-103 presumption of innocence .................... xii, ........................................... 141-142, 143, 144 principal-agent model .................2, 3, 8, 21 procuartorial protests .....................114-116 Procuracy .........................................xiii, 41, ........................................... 44-45, 49, 73-74, .................................... 105-122, 164, 178, 191 Procuracy, powers of ..................... 120-122 procuratorial enforcement .................................... 113-116 procuratorial representations ................................ 114-115 procuratorial supervision ...............109-113 Propiska cases .............................................47 prosecutor ........................................138-139 provincial governor ........................xii, 120, .......................................................... 143, 191 pseudo-constitutionalism .................... 2-9 Pskov Civil Defense case ............................48 public interests ..................................... 100 public plaintiff ........................................118 Putin, V. ........................ xii, 2, 19-21, 23-24, .......................... 25, 27-28, 32, 39, 40, 43-44, .................... 49-50, 54, 69, 73, 74, 76, 81-82, .......................84, 99, 101, 107-108, 109-111, .......................116-122, 150-151, 180, 191, 192 Q question list......................................170-171

205 R Raikin et al. case ...................................... 167 Rawls, J. ................................................... 15 Recidivism case ..........................................65 Reddaway, P. ............................................ 16 Remington, T. ......................................... 13 Residency Permit case............................... 100 Reznik/Borozdin case................................169 Riazanov case........................................... 172 rule of law see pravovoe gosudarstvo Rural Teachers’ Dwellings case ................... 60 Russian Orthodox Church .................... 61 S Sakwa, R. ................................. xiii, 41, 190 Samoilov case ........................................... 172 Schmitt, C. .............................................. 15 searches and seizures....................... xii, 187 separation of power........................ 149-156 Shaiko case ............................................... 161 Shaimiev, M. ............................... 30, 42, 46 sham constitutionalism ...................... 2, 21 Sharlet, R. .........................xiii, 10, 190, 192 Shchepakin case ........................................ 172 Shevchenko/Shevchenko case .................... 174 Shevtsova, L. ....................................... 9, 17 Shpeko et al. case .......................................170 Shveydel’ case ............................................171 siloviki ....................................................... 12 Six Constitutions case ...........................42, 43 Skripnikov case ........................................170 Slabochkov case ........................................ 167 Slaughter, A. ........................................... 60 Slobodchikov case ..............................167, 170 Smith, G. ........................................ xiii, 191 Sokolov/Gladkikh case ............................. 174 Solomatov/Kharitonov case .......................171 Solomon, P. ...................................... 81, 164 Soltaganov, V. .........................................118 sources of law ......................................79-82 Spain ..........................................157, 175, 178 Spanish Constitutional Court .......................60, 75 Spanish Supreme Court ........................175 Sporrong and Lonnroth

206

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v. Sweden case ............................................ 58 stability and order ....................... 17, 23, 185 Stalin, J. ......................................3, 36, 71-74 State Construction Committee ............117 Strogovich, M. ...................................... 148 Supreme Court of the Russian Federation ...............................xi, 27, 29, 38, .................................48, 55, 70-72, 85, 87-88, ................................ 91, 93, 95, 109, 130, 135, ...................................140, 146, 151, 163-166, ...............................167-171, 173, 175-180, 191 Sushko case ...............................................169 Sutiagin, I. ........................................178-179 Syropiatov/Eterle case .............................. 174 Szacki, J. .................................................. 16 T Tatarstan ..................................... 26, 36-38, .......................................... 41-44, 49, 50, 112 Tatarstan Alphabet case ............................. 49 Tatarstan Election Law case ......................48 Tatarstan Referendum case .......................29, .............................................................43, 46 Tax Police case .......................................... 44 telephone justice.............................141, 151, .................................................... 153, 155-156 Thaman, S. ...............................xiv, 191, 192 Third Term case ......................................... 32 Timofeev, N. ......................................... 161 Topchii case .......................................169, 173 Topornin, B. ............................................28 Trochev, A. ........................ xiii, 44, 191, 192 Trofimov et al. case ....................................171 Troitskii case..............................................171 Tsereev case .............................................. 167 Tuck, R. ................................................... 16 Tumanov, V. ............................ 28-29, 30-31, .......................................................46, 50, 73 Turischev et al. case....................................173 U Udmurt Local Government case ..................47

ukazy (decrees) .................................... 11, 12 Ulman case ...............................................170 United States Constitution ................... 33, ....................................................181-183, 187 (see Constitution, United States) United States Supreme Court ....................25, 47, 60, 182 Universal Declaration of Human Rights ........................................ 57 Ustinov, V.................... 110, 117, 119, 121, 122 Uvrov/Sosiurko case ................................. 172 V Viazovets case....................................169, 172 victims’ compensation ....................... 71-74 Vile, M. ...........................................1, 13, 20 Vitruk, N. .....................................46, 66, 71 Vlasov et al. case ......................................170 Volkov case .......................................167, 169 Volodin/Kotenko case .................................171 Voloshin, A. ............................................. 12 Voting Rights Law case .............................. 91 Vyshinskii, A. ........................................ 147 W Washington, G. ..................................... 182 "Wars of the Laws” ....................................7 Weber, M. .................................2, 14, 15, 21 Widner, J. ................................................76 willful disregard ...............................114, 115 Y Yakovlev v. Russia case............................... 72 Yukos Oil Company case ...................... 12, 116 Z Zasulich, V. case ........................................ 156 Zhevak case ...............................................173 Zhila case ................................................. 172 Zhirinovskii v. Gaidar case .......................88 Zhirinovskii, V. ..................................87-88 Zor’kin, V. 23, 24, 28, 29, 30, 32, 40, 45-46,

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No.1, Z. Szirmai, ed., 1958. No.2, Z. Szirmai, ed., 1958. The Federal Criminal Law of the Soviet Union, F.J. Feldbrugge, 1959. The Merchant Shipping Code of the Soviet Union, Z. Szirmai and J.D. Korevaar, 1960. The Law of Inheritance in Eastern Europe and in the People’s Republic of China, 1961 Studies in Polish Law, K. Grzybowski et al., 1962. Miscellanea: Articles and Texts, G. Ginsburgs et al., 1963. Introduction to Soviet Copyright Law, Serge L. Levitsky,1964. Soviet Criminal Law: General Part, F.J. Feldbrugge,1964. Soviet Private International Law, Kazimierz Grzybowski, 1965. The Civil Code and the Code of Civil Procedure of the RSFSR, 1964, A.K.R. Kiralfy, 1966. Soviet Insurance Law, Bernard Rudden, 1966. Legal Controls in the Soviet Union, Leon Boim, Glenn G. Morgan, Aleksander W. Rudzinski, 1966. Miscellanea II: Articles and Texts, Serge L. Levitsky et al., 1967. Soviet Citizenship Law, George Ginsburgs, 1968. Polish Family Law, Dominik Lasok, 1968. Governmental Tort Liability in the Soviet Union, Bulgaria, Czechoslovakia, Hungary, Poland, Roumania and Yugoslavia, Donald D. Barry et al., 1970. Polish Civil Law, D. Lasok, ed., 1973-1975. Codification in the Communist World: Symposium in Memory of Zsolt Szirmai (19031973), Donald D. Barry, F.J.M. Feldbrugge and Dominik Lasok, 1975. Soviet Law after Stalin, Donald D. Barry, George Ginsburgs and Peter B. Maggs, eds., 1977-1979. The Soviet Procuracy Protests, 1937-1973. A Collection of Translations, Leon Boim and Glenn G. Morgan,1978. Copyright, Defamation, and Privacy in Soviet Civil Law, Serge L. Levitsky,1979. The Soviet Codes of Law, William B. Simons, ed., 1980. Perspectives on Soviet Law for the 1980s, F.J.M. Feldbrugge and William B. Simons, eds., 1982. The Citizenship Law of the USSR, George Ginsburgs, 1983. The Soviet Law of Property, George M. Armstrong, Jr., 1983. The Party Statutes of the Communist World, William B. Simons and Stephen White, eds., 1984. Encyclopedia of Soviet Law, F.J.M. Feldbrugge, G.P. van den Berg, William B. Simons, eds., 1985. The Soviet System of Justice: Figures and Policy, Ger P. van den Berg, 1985. Soviet Law and Soviet Reality, Olimpiad S. Ioffe, 1985. Ruling Communist Parties and Their Status under Law, Dietrich André Loeber, ed., 1986. Soviet Law and Economy, Olimpiad S. Ioffe and Mark W. Janis, ed., 1986. A Calendar of Soviet Treaties, 1974-1980, George Ginsburgs, 1987. The Distinctiveness of Soviet Law, F.J.M. Feldbrugge, ed., 1987. Private International Law: The Soviet Approach, M.M. Boguslavskii, 1988. Soviet Civil Law, Olimpiad S. Ioffe, ed., 1988. Commentary on the Czechoslovak Civil Code, Th.J. Vondracek, 1988.

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The Soviet Union and International Cooperation in Legal Matters, George Ginsburgs, 19881994. Law and the Gorbachev Era: Essays in Honor of Dietrich André Loeber, Donald D. Barry, ed., 1988. Soviet Administrative Law: Theory and Policy, George Ginsburgs, Gianmaria Ajani, Ger P. van den Berg, William B. Simons, eds., 1989. The Impact of Perestroika on Soviet Law, Albert J. Schmidt, ed., 1990. The Nuremberg Trial and International Law, George Ginsburgs and V.N. Kudriavtsev, eds., 1990. Carriage of Goods by Sea in the Practice of the USSR Maritime Arbitration Commission, Wim Albert Timmermans, 1990. The Emancipation of Soviet Law, F.J.M. Feldbrugge, ed., 1992. Russian Law: The End of the Soviet System and the Role of Law, F.J.M. Feldbrugge, 1993. The Revival of Private Law in Central and Eastern Europe: Essays in Honor of F.J.M. Feldbrugge, George Ginsburgs, Donald D. Barry, William B. Simons, eds., 1996. Moscow’s Road to Nuremberg: The Soviet Background to the Trial, George Ginsburgs, 1996. From Soviet to Russian International Law: Studies in Continuity and Change, George Ginsburgs, 1998. International and National Law in Russia and Eastern Europe: Essays in Honor of George Ginsburgs, Roger Clark, Ferdinand Feldbrugge, Stanislaw Pomorski, eds., 2001. Prospects for Constitutionalism in Post-Communist Countries, Levent Gönenc, 2002. Human Rights in Russia and Eastern Europe: Essays in Honor of Ger P. van den Berg, Ferdinand Feldbrugge & William B. Simons, eds., 2002. Law in Transition, Ferdinand Feldbrugge, ed., 2002. Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation, Michiel Elst, 2004. Counsel in the Caucasus: Professionalization and Law in Georgia, Christopher P.M. Waters, 2004. Public Policy and Law in Russia: In Search of a Unified Legal and Political Space: Essays in Honor of Donald D. Barry, Ferdinand Feldbrugge and Robert Sharlet (Eds.), 2005. Russia, Europe, and the Rule of Law, Ferdinand J.M. Feldbrugge, ed., 2007. Investor Protection in the CIS: Legal Reform and Voluntary Harmonization, Rilka Dragneva, 2007. Russia and its Constitution: Promise and Political Reality, Gordon Smith and Robert Sharlet, eds., 2008. Leiden Conferences 1998-2003, William Simons, ed., 2008. Judiciary in Central Europe, Zdenek Kühn, 2008.

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