Tsukkerman Timofej
Problems in Russian legislation & procedures in the context of verdicts of
European Court of Human Rights
Regulatory right act of the highest legal force, the supreme law of the state –
the Constitution of the Russian Federation among other characteristics declares Russia as
a state of law.
The essence of this sign is that the State proclaims the rule of law, the legal
acts are codified, systematized, and built in legislation, in addition, in Russian Federation
judicial protection of the disturbed or disputed rights of citizens is guaranteed.
The legal system of the Russian Federation on all grounds belong to the
mainland system (with the rule of codified law), but judicial practice – definitions and
explanations of the highest courts and direct legal precedent – are recognized as
"secondary" source of law in Russia.
The essence of "secondary" source lies in the fact that in legal terms (in the
texts of normative legal acts) these sources are not recognized, they can not be quoted in
the requirements of persons, involved in the case and in the final judicial decision. The
science does not consider these "sources", persistently referring the legal system of
Russia the Roman-Germanic sort, proclaiming codified law. Yet in practice, law
enforcers actively use acts of the judiciary and even allow benefit conflicts with laws and
regulations to their favor. Therefore, as a rule, knowing the interpretations and
recommendations of "secondary sources" could be more benefit, rather than a long way
of studying correlations of codified rules.
Therefore the paradigm of legal understanding is emerging on the basis of
judicial precedents.
Nowadays the judicial system of Russia can be regarded as sufficiently
developed – the state formed an extensive network of courts, as far as possible, based on
the principle of separated case-consideration of constitutional, civil, criminal,
administrative law, distinguished the system of the arbitration tribunals. In addition, the
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court system was formed hierarchically, the procedural regulations stipulated the
jurisdiction, the order of the case motion and appeal-procedures in the courts.
However, all of the above does not sign, that in our country the protection of
human rights, and more specifically – its judicial form – was developed into the european
level. The idea of reforming the courts came in the second half of the 80's (in the years of
“perestroika”). Originally it purposed the modernizing of the Soviet system of justice in
accordance with the concept of democratic socialism in the USSR. However, the new
impetus to judicial reform was received in relation to indigenous socio-political changes
in the country in the early 90's. Since early 1992 under a special decree of the president
of the newly formed state Russia had being implemented "Judicial Reform", the final
phase of which was appointed in 2011. In summary, the Supreme Soviet passed the
document, contained the ideology of judicial reform 24.10.1991, named "Concept of
Judicial Reform in the Russian Soviet Federative Socialist Republic”1.
In addition to reforming the court, the concept included in-depth reform of the
prosecution, investigation and advocacy, the revision of criminal procedural and civil
procedural law, the democratization of justice by the introduction of
jurors. And
although many of provisions of the Concept does not withstood the test of life, the
importance of this document, suggested the ways of the independent judiciary, working
in the interests of society and citizens, is very high.
The implementation of judicial reform started with the adoption the federal law
in June 1992
"About the status of Judges in the Russian Federation". The court
proclaimed not only as the institute of justice, but also as the judiciary, based on the
principle of separation of powers. It was legally equated to legislative and executive
branches of the power, acting independently from them, and the judge became the legal
power carrier. The judges got organizational, material and social guarantees of their
independence, which was essential to the objective and impartial justice.
The fundamentals of Judicial Reform and the Law "About the status of judges
in the Russian Federation" were taken into account in the preparation and adoption of the
Constitution of Russia in 1993, contains a chapter "Judicial power". The author of this
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Радченко В.И. Судебная реформа. Современный этап // «Право и безопасность» №3, 2004.
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article was a direct participant in the working group, trains this bill. Since then have
come a long way, and now it has to be said, that many aims were achieved.
Later, at the initiative of the Supreme Court or with its direct participation the
few federal laws were adopted, such as: "About the additional guarantees of social
protection of judges and court staff of the Russian Federation","About the Judicial
Department under the Supreme Court of the Russian Federation","About the magistrates
in the Russian Federation", "About the financing of courts in the Russian Federation",
"About the Military Courts of the Russian Federation", "About the enforcement
proceedings", "About the advocacy and legal practice in the Russian Federation" and
several others, which became a necessary legal base for the subsequent development of
Russian justice.
However, all of the above failed for almost 20 years to modernize the judicial
system for achieving the main thing – to ensure sustainable, stable and independent
functioning of the judiciary to enable every citizen of Russia to realize its security and
confidence in the judicial protection of guaranteed rights. But on the other hand, it has to
be written about the positive developments in the understanding of the possibility of
appealing the court decisions in the first instance. At the present time, provides for the
possibility of appeal, cassation decision, supervising review and review of new and
newly discovered circumstances. These procedures although are limited to procedural
terms, however, they are in the real accessibility now.
In addition, appeal procedures in the European Court of Human Rights does
not look unreal for Russian citizens nowadays. Moreover, it have become the most
authoritative instance, divorced, in their opinion, from the principles of corporatism,
abstracted from corruption, biases and forcing a "machine state" in general. This stage is
unusual in the sense that this is where a citizen can invoke the responsibility of the
Russian Federation as a whole, this instance allows providing an opportunity for review
by outside experts of the domestic legal problems.
As is known, the ECHR works on the basis of a single instrument – the
Convention of the Protection of Human Rights and its protocols. Thus, the highest
judicial Instance of the European Union shows an example of justice, based on law, not
on law-acts. ECHR judges in three collegiality assess. It tracks the compliance on the
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norms of national legislation with the Convention, and the correct application of
domestic law consistent with this document, initiated by complaints of citizens and
organizations.
According to statistical indicators, the vast majority of cases, coming from
Russia in the ECHR, devoted to a violation of procedural deadlines, set by the procedural
legislation for consideration and resolution of cases. Second in popularity are the
complaints suspect, accused, convicted to imprisonment, as well as the representatives
concerning conditions of detention in temporary holding cells, detention centers and
correctional facilities directly to Russian Federation. Decisions of the European Court on
both issues are typical of (or in the terminology of the Court - "pilot") – are always
equally recognize the violation – impose a penalty on the state and require immediate
correction. That why the most interesting of the presented complaints about citizens are
the complaints, devoted to protection of the moral rights. This group of cases is not still
very much under active consideration in the courts of general jurisdiction of Russia, the
practice of such cases is small, and qualifications of judges at levels, below federal
entities, is low for correctly assess the complex legislation governing such relations. So,
the practice of considering this particular category of cases, the ECHR seems to be most
interesting for the study. In addition, it is rather interesting to trace a way of resolving
cases in the Court.
In conclusion, it has to be noticed, that using law in the broad opinion looks
like the supreme understanding of the essence of law theory of law. The European Court
of Human Rights considers cases against states, which are differed among themselves on
legal principles, types of sources, even, sometimes, law-families, because decisions,
taken by the highest court in Europe, are the result of the evaluation and comparison of
law. The only score of law in a global context can make the right decision. For an
objective assessment of the circumstances in terms of legal expediency and fairness the
domestic courts lack the assessment of law in general. Indeed, as we know, the rules of
the laws are unstable – prone to endless changes, the imposition or lifting. Law is
monumental – the years only change its nature, may offset values, but in general the only
understanding of "broad law" allows the court to make a fair decision objectively.
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