COURT SYSTEM

Based on Nystén-Haarala, Soili: Russian Law in Transition: Law and Institutional Change. Helsinki: Aleksanteri Institute (Kikimora Publications), 2001.

Judicial control over the legislature was introduced in the Soviet Union in 1989, during Gorbachev's era in the form of the Committee for Constitutional Supervision. It was not a real court and its findings only had limited weight, but it proved eager to emphasise the human rights norms of the Constitution.

The first Russian constitutional court started on 6 May 1991. The Supreme Soviet decided to establish a genuine court that was separated from the regular court system. The court could also take complaints from individuals. However, it had wide discretion in deciding whether it wished to review human rights complaints. The court concentrated on cases involving the separation of powers and giving the flood of appeals by individuals less attention.

The task of the first Constitutional Court was not easy. The court was often criticised in the press and by legal specialists and was later condemned in legal textbooks for politicising cases. The involvement of the court in the power struggle between the legislature and the President was inevitable but proved to be destructive to the court itself.

President Yeltsin solved his disputes with the Constitutional Court with the same kinds of methods as with the Parliament. He did not dissolve the court, as he did the Parliament, but he suspended the court. After eliminating both the Parliament and the Constitutional Court, Yeltsin had free hands to adopt the new Constitution, which was also clearly needed to legitimise new power and to end the power struggle.

According to the Constitution of 1993, the Constitutional Court can rule on the constitutionality of federal laws, presidential decrees, constitutions of the republics and international treaties that are not yet in force. The court can examine cases on request. The President, the Council of the Federation, the State Duma, one fifth of the deputies of the Duma or of the members of the Council of the Federation, the Government, both Supreme Courts or the executive or legislative organs of the subjects of the Federation have the right to make a request.

The court can no longer start a case on its own initiative, as it did when banning Yeltsin's decree on establishing an extraordinary situation. Regular courts can also request it to examine the constitutionality of applying a law in concrete cases.

According to the previous law on the Constitutional Court, an individual was allowed to petition the court on the basis of a violation of his or her human rights. The right of an individual to petition the Constitutional Court is unclear in the present Constitution but, according to the present Law on the Constitutional Court of 1994, the Court only examines such cases brought to the court by individuals concerning the constitutionality of laws.

It cannot examine the constitutionality of individual decisions of the authorities, for example, of the President, based on these legal norms. Furthermore, citizens cannot challenge the constitutionality of presidential decrees and governmental decrees or lower legal norms. Often, cases brought to the court by individuals have concerned tax law or criminal law regulations. The new limitation was based on the fear of the Court collapsing under the weight of the number of cases to review law application practices. In cases involving human rights violations, a citizen can turn to the ordinary courts, based on the law of the court system of 27 April 1993. The possibility of turning to the procuracy also exists.

The Constitutional Court has an important role in clarifying obscure rules of the Constitution. It is a difficult task since many provisions were left unclear since no political compromise was reached. The Court must find a legal solution to continue the work of the drafters of the Constitution. Since the clash with the President, the Court seems to have returned to a cautious and narrow legal positivist interpretation. In numerous decisions, the Court has clarified badly drafted technical rules.

The result has been that the cases have been decided mostly in favour of the President. The most extreme case was the one declaring the secret presidential decrees starting the Chechen war constitutional. The Court has realised its role as the legitimiser of Federal executive power. The court has had the same problem, which its predecessor already faced.

Neither federal nor regional authorities obey the decisions. Ignoring the decisions of the constitutional court is based on tradition, which knows only insider control and knows no actual limits on the power of the State organs. The reluctance in implementing the decisions of the Constitutional Court challenges the legitimacy of the Court. It also reflects the peculiar asymmetrical federalism in Russia.

According to the Constitution, the court system is Federal in Russia. Thus, the courts, from the first to the third or fourth instance, are all Federal. The Federal Law of 31 December 1996 regulating the court system, however, also recognises regional courts. They can be courts of the first instance (mirovye sudi) and are also regulated by regional legislation.

Appeals from a regional court to the federal courts is available, but how this can take place and to which level is not yet certain. The subjects of the federation, however, have not started to establish their own competing regional court systems except in Chechnya. Making mirovye sudi regional, however, is one of the compromises giving the regions more weight, but making them partly responsible for the costs.

The federal courts are divided into two different systems - ordinary courts and courts for commercial disputes. The latter are for disputes between commercial enterprises, individuals and enterprises, and between enterprises and the State. In 1931, economic courts were established to settle the disputes between State enterprises. These courts were called arbitration courts; they were permanent courts, administrative in nature.

The arbitration court system was preserved after the collapse of the planned economy, since the judges of arbitration courts were regarded as the only judges with at least some kind of experience in business transaction disputes. Most of the cases in arbitration courts deal with taxation, as well as many cases dealing with breaches of contracts, company law disputes and bankruptcies are taken before arbitration courts. Other civil law (mostly family law), criminal, and administrative cases go to ordinary courts.

Ordinary courts function in three instances. The first instance is the rayon-level court. The appeal level is a city court in big cities or oblast courts in oblasts. The highest instance is the Supreme Court of the Russian Federation, in Moscow.

Both Russian civil and criminal procedure is oral. The decisions, however, are often based on written documents and it is therefore important not to rely on the oral procedure. The principle of lis pendens is not quite established in Russia. There can be several competing decisions from different courts on the same case. This problem, however, is diminishing.

The Constitution emphasises the independence of judges and the judicial system from the executive and legislative power. According to the Constitution, it is the President of the Federation who appoints judges. He is considered to be above the political parties. A panel of judges accepts the candidates prior to the appointment in order to ensure of the independence of the courts and the quality of the judges.

Earlier, judges' posts were not permanent and they were elected. Independence has also been guaranteed by regulating that a judge cannot be accused, other than on criminal basis. Charges can only be raised after a panel of judges has approved them.

Judges belonged to the nomenklatura and had great privileges during the Soviet era. Many economic privileges, such as free apartments, have been preserved in many places. Immunity is still guaranteed by the Constitution and in the federal law on the court system. In practice, however, the working conditions, especially in the countryside, are often poor. Telephones or other equipment is lacking and official residences are not available.

Legislation regulating the court system emphasises the right to a salary and that it can not be diminished. The State has paid a much attention to the salaries of judges compared to others. It is understandable in the present situation, since temptations for accepting bribes increase when a salary is low or not paid on time.

Despite all the difficulties in developing the rule of law in a corrupted and economically-weak society, the courts have been able to develop the rule of law considerably. The role of the courts is important in the Russian transition. Independence has given them both prestige and confidence. The development of a commercial law has given new tasks and more power to the legal system.

The rule of law is emphasised in legal education, and the courts have been able to apply formal legal rules emphasising their importance instead of informal rules. Court cases were previously not an official source of law. The text of the law was emphasised as the starting point of judgements. Nowadays, court cases are increasingly commented upon and criticised in textbooks. In this way, the importance of case law has grown and has also increased the importance of courts and judges.

The procuracy is a very old and very Russian institution, stemming from the times of Peter the Great. In the Russian Federation, the decision to create a unified Russian procuracy was taken on 15 November 1991. The Procurator General of the RSFSR accepted jurisdiction over all procuracy agencies on Russian territory. In January 1992, the RSFSR Supreme Soviet adopted the Law on Procuracy, which was amended on October 1995 to incorporate the provisions of the Constitution of 1993.

According to the Constitution and the Federal law, the procuracy is a unified and centralised system of procuracy agencies and institutions of the General Procuracy, under which the procuracies of the subjects of the Federation function. In practice, though, procuracy is not completely centralised. In some republics, such as Tatarstan, Bashkortostan and Tuva, the procurator works under the supervision of the legislative organ of the Republic. Some subjects of the Federation also have republican procurators, as well as the federal procurator, who are responsible for the Republic.

Besides the general procuracy, there are also a number of specialised procuracies, for instance the military and transport procuracy. Apart from being the prosecuting authority, the procuracy is also a supervising institution. It has general supervision over the execution of laws by federal ministries and departments and the respective bodies of the subjects of the federation, agencies of local self-government, military administration agencies and officials and over the conformity to the laws of legal acts issued by them.

A procurator may react on a violation of law by submitting a recommendation to eliminate the violation, bring a protest against a legal act that is contrary to a law, or apply to a court to demand that a legal act be deemed invalid. The procurator may also initiate civil proceedings for recovery.

Protest does not mean that the agency, which issued the act, must necessarily accept the protest - it can also be rejected. The procuracy cannot protest decrees of the Government or laws of the Federal Assembly being inconsistent with the Constitution, but the Procurator General has the right to bring inconsistencies to the attention of the President of the Federation. The Procurator does not have the power to take a case before the Constitutional Court. Supervision over human rights is new to the procuracy. The procuracy also supervises the execution of the laws by agencies effectuating operational search activities, inquiry, or preliminary investigation.