This edition of Oz is devoted to the Russian judicial system. We believe
that without an effective and independent administration of justice
social and economic transformation cannot be successful. Judges, lawyers,
and other stakeholders in the matter have contributed articles on most
vital problems of judicial reform in the country. Of course, there is
a great diversity of opinions on both the theoretical foundations and
practical aspects of the system.
The administration of judicial authority has evolved a great deal in
post-Soviet Russia after the passage of the Constitution of 1993. Before
that, Soviet courts were regarded merely an instrument of executive
power. Since then, a number of steps have been taken to adjust the system
of judicial administration to the principles of the division of power
and to make it more effective in general. However, reforming an old
system run by old people is a tricky task. In her “On the Halfway to
Justice,” Counselor of the Constitutional Court Tamara Morshyakova contemplates
advantages and disadvantages of the judicial reform.
Contention between businesspeople is common in a normal economy, you
just have to settle arguments in a civilized way. Veniamin Yakovlev,
Chairman of the Superior Arbitration Court tells a story of Russia’s
unique experience of building an arbitration system capable of dealing
with new market realities.
The judicial system is a key element of market economy. Risk assessment
in investment policies, settling debts, dealing with bankruptcies and
other decisions in business depend heavily on the quality of the administration
of justice. Behind the scenes of a democratic legislative process, the
fight for redistribution of property continues to move on. Edward Rebgun,
who owns a legal advisory company, brings arguments and evidence on
how domestic courts and state bureaucracy involved in arbitration interact
with legal businesses. Rebgun also speculates about the impact of the
new law on bankruptcy on Russian enterprises.
Was jury trial in old Russia a tribunal of social conscience or the
case of adjudication by the mob? Political interference and a lack of
empirical sociological data obscured the view of the phenomenon. Alexander
Afanasyev in his historical account of the Russian jury trial examines
the misconceptions of old and modern research on the subject, while
looking at the reasons of its advent in 1860s, the peculiarities of
its organization, the jurors characteristics, and the attitude of government
and society to this form of trial.
The Office of Public Prosecutor has long been the pillar of the punitive
system in the Soviet Union. Now, it’s criticized for reluctance to give
up its huge powers and undergo transformation. Should the office of
public prosecutor duplicate overseeing authority of the judicial power?
Inahistorical account of prosecution in Russia, Igor Petrukhin argues
that such duplication makes the supervision ineffective; paradoxically,
the more controlling and supervising agencies there are in the country,
the less law and order we have.
Even in a democracy, under exceptional circumstances courts have to
act as a court-martial with no defense and the right to plea. Where
is the margin between an exceptional, but still legitimate right of
the state to defend itself and military dictatorship? What legislation
changes taken at wartime or at periods of domestic instability are efficient
and justified? Sergey Pchelintsev reviews Russian state-of-emergency
legislation from the international and historical perspective.
The sore point in judicial reform is, of course, lack of financial
resources. What are the criteria on which budget expenditures are allocated
to different areas of the country? How much does the existing system
cost? Based on analysis of federal budget expenditures for the judicial
institutions, Dmitry Fomin looks at the problems of effectiveness of
the Russian court system.
Russians are not accustomed to thinking about law and order in economic
terms. With this perspective absent in reformers’ minds, how can a reform
have sensible results? Yuri Kuznetsov explains that to analyze soundly
and realistically the effectiveness of maintaining the system, to plan
its future functioning, and to reform it, one has to mind the economic
aspects of the system.
If courts are expected to be independent, they certainly must not depend
financially on other institutions or individuals. Alexander Gusev, head
of a department in the Supreme Court responsible for finance and logistics,
gives an account of the crucial needs of the Russian courts. Investing
in courts means investing in the overall social well-being, the author
maintains.
In the Soviet economy, convicts’ labor played an important role and
produced a substantial portion of the revenue. Leonid Bogdanov’s article
is on finances of the criminal penitentiary system. He names institutional
changes that have to be undertaken to reform federal budget financing
of the national correctional institution.
If a state authority has to infringe upon personal rights and freedoms
in a democracy, then how should the rules be worked out? How do we determine
that state intervention is necessary? Analyzing the role of the writs
of the European Court of Human Rights and the Convention for the Protection
of Human Rights and Fundamental Freedoms in the evolution of Russian
national judicial system and promotion individual rights and freedoms,
Pavel Laptev describes how international jurisprudence transcends national
legislation.
The Civil Code, Arbitration Code and Criminal Code have been changed
significantly in the course of the judicial reform. Mikhail Mikhailovsky
gives a general overview of novelties.
Boris Gavrilov of the Interior Ministry analyzes aspects of the new
Code of Penal Procedures of the Russian Federation enacted on July1,2002.
Beside a number of encouraging amendments, the Code still contains some
statutes that make legal recourse overly complicated and an unnecessary
burden on the taxpayer, the author argues.
Another article by Gavrilov is on problems of creation the Federal
Service of Investigations of the Russian Federation, in which he presents
pros and cons of creating such an agency and considers its purposes
in the system of law and order.
It took about ten years for leading academics and practitioners to
develop a draft of the Russian new Civil Procedural Code — that would
be the most mature of the newly passed codes. Besides, unlike some other
statutes and codes, it was widely discussed by the expert community.
Alexander Voronov analyzes the results of the work, the code’s new provisions
and their practical application.
Igor Makarov, a lawyer with British Petroleum, comments on novelties
in the arbitration legal procedure. He concentrates on unresolved issues
which may backfire and complicate life for business in Russia.
Peter Solomon, Jr. of the University of Toronto gives an outlook of
the Russian judicial reform. He maintains that many obstacles to the
reform come from institutions and practices outside judiciary.
In the Russian context, reforming the society means reforming the state,
and reforming the state is not feasible without restructuring the system
of the administration of justice. It is the responsibility of the state
to perform the reform and ensure that it is irreversible. Vladimir Komarovsky
and Mikhail Mizulin look at the judicial reform as part of a broader
Russian political process. Depending on what poliТЫ line prevails, we
will have either a renewed totalitarianism or — finally — a democratic
state, the authors argue.
According to sociological data presented in Georgy Satarov’s article,
court corruption is one of the most potent Russian corruption markets,
and its level tends to increase. The court corruption is both the result
of general social corruption and the reason of promoting further corruption
in the society. It is the main cause of social distrust in the state
authority. The absence of private property protection and contract law
that judicial system is supposed to provide impedes normal market competition
and harms Russian economy.
Reforming the system of legal practice performed in the early 1990s
has attracted into business the hordes of paralegal brokers claiming
to be lawyers, Simon Aria and Valentin Sherker state, and although the
Law on the legal practices of May 31, 2002 in Russia did improve the
situation, it has not cured it completely. The authors argue that many
progressive reform measures are hindered by practitioners and bureaucrats
of justice administration.
A federal judge from one of the Russian provincial towns, Nikolai Ilyasov
is acutely critical about the ways of reforming Russian system of justice
administration. He says that measures taken to improve social and financial
status of judges are both ineffective and irrelevant to the improvement
of overall functioning of the system; they merely obscure legislators’
vision of real problems. Ilyasov names the criteria of judicial system
effectiveness and suggests ways of its substantial reforming.
To create a system of judicial administration fully meeting the needs
of the society, a lot of reform steps have been taken. Some are helpful,
and many have created even more problems. Viktor Zhuikov, deputy chairman
of the Supreme Court, gives an account of the reform achievements and
flaws.
Social revolutions have had a great impact on the Russian system of
justice administration. Sergei Pashin, one of the architects of the
ongoing court reform, tells a story of judicial reforms in Russia. Pashin
draws conclusions about the character and peculiarities of the current
judicial reform which can be understood as both a tool and a sort of
a side effect of the current bloodless social revolution.
First Vice-Chairman of the Supreme Court of the Russian Federation
Vladimir Radchenko shares his view of the reform. He finds that the
key element of the process is improving social and remuneration status
of the judges.
Vast international research data prove that incarcerating people accused
of misdemeanors is absolutely inefficient. Moreover, imprisonment not
just fails to improve one’s behavioral patterns but tends to warp individual
psychology toward making convicts professional criminals. Policies of
“harsh measures” or “intensifying the struggle” against all sorts of
offenders only produce results contrary to expected, Yakov Gilinsky
states. Are alternative policies possible in Russia today?
Why do people trust or distrust judicial authority? Mikhail Krasnov
argues that intellectual and moral capacities of judiciary, their sense
of justice are a crucial aspect of building the trust that in its turn
is crucial to building law and order in a society.
The project of the judicial reform that passed in the end of 1991 provided
for creation of justices of the peace in Russia. Vladimir Maximov reports
on the history and present state of this long forgotten practice that
is making legal help more accessible to people.
Alexey Muravyev gives an overview of ecclesiastical law that governs
internal discipline of the Church and its relations with the world,
and Leonid Siukiyainen tells about the law of Shariat.
Olga Edelman reviews traditional flaws of the Russian legal system.
Supposedly, it was based on a system of intrinsic rules that were not
identical to the official written law, Edelman believes.
In the Publication section, we publish excerpts from Renй David’s
Le Droit Comparй: Droit d’hier, Droit de demain
where he compares different law systems, Taking Rights Seriously
by Ronald Dworkin about the ethical mission of law, and Teodor
Shanin’s The Awkward Class: Political Sociology of Peasantry in a
Developing Society: Russia 1910–1925 about the Russian Peasant Law.
In this issue, we continue discussion of defense and military issues.
Today’s puzzles of the Russian defense industrial complex brings back
memories of the U.S. experience in dealing with the country’s defense
industry problems in 1970–1980s, according to Vitaly Shlykov. Shlykov
analyzes common problems of hi-tech industries and presents his view
of challenges that Russia is facing in this respect.
In our round table discussion we brought together several CEOs of Russian
defense industry companies to talk about the most pressing issues they
face.
While the problem of non-proliferation of nuclear weapons has been
given an adequate attention by the U.S. and Russia, another threat seems
to remain underestimated, Valeriy Yarynych notes. According to Yarynych,
lowering the level of alert of national strategic forces (de-alerting
in American parlance) is not adequate if we want to protect the world
from a nuclear weapon attack triggered by malicious terrorist interference
into strategic Command, Control and Communication (C3) networks. This
leaves the nuclear powers with the only alternative, which is building
a joint system of so-called negative control in the C3, i. e.
guaranteeing joint verification of generated commands and ability on
each side to efficiently bar an unauthorized launch of missiles or provoking
false attack alerts.
In the Language Reform section, we publish articles by linguists
Alexey Shmelev — about some legislators who think that they are
to decide, how exactly all the peoples of the nation should talk and
write, and Maxim Krongauz — about his inner refusal to comprehend how
the language could be regulated by legal means.
Drug dealers that have long been in the business wish they could start
their life and career over again, if they had a chance. In the Country
of OZ section, Sergey Kaluzhanov describes hard work of Russian
petty hemp dealers.
Bolsheviks were fond of altering the names of localities. These new
names were supposed to reflect new ideology and conform to a political
situation of the day. With times changing, the people’s attitudes to
these matters also transform. Sergey Nikitin tells a story of modern
Russian toponymy.
