Behind the Breaking News
Judicial precedent to strengthen Russias top courts
THE ISCIP ANALYST
An Analytical Review
Volume XVI, Number 12, 22 April 2010
Legal Issues by Sergei Tokmakov
Judicial precedent to strengthen Russia’s top courts
The Supreme Arbitration (Commercial) Court has introduced two bills in the Duma to implement the principle of binding precedent within the Russian commercial litigation system. (1) This means that in certain cases judges effectively would have the power to create law and make their interpretations binding. Earlier this year, the Constitutional Court basically authorized this process by approving the Supreme Arbitration Court’s practice of making its prior rulings binding on lower courts. (2) The Constitutional Court has instructed the legislature to adopt relevant amendments to procedural law, but strictly limited the scope of such amendments. (3) Nevertheless, the Constitutional Court Chairman Valeri Zorkin raised concerns that the newly-emerging Russian precedent could break the foundations of the judicial system and violate the “separation of powers” doctrine. (4)
Formally, Russia is a “civil law” jurisdiction, which means that laws are not as open to modification by judges as in “common law” systems, such as that of the United States. Despite the fact that precedent is currently not an officially recognized source of law, lower courts tend to follow the principles established by the supreme courts. This practice existed even under Soviet jurisprudence, when only a limited number of the supreme courts’ decisions were published, but many judges still followed their natural instincts to comply with them. (5) Now, practicing litigators frequently cite cases “for informational purposes only” and, while the judges are not required to do so, they tend to follow the patterns established by the higher courts. (6) Precedent has some limited official recognition in Article 304 of The Code of Arbitration Procedure which gives the Supreme Arbitration Court the right to overturn a lower court decision if it contradicts other established decisions on similar matters. (7)
Ever since his appointment in 2005, Supreme Arbitration Court Chairman Anton Ivanov has been actively implementing the principle of binding precedent to strengthen the judicial branch, in order to compensate for “the existing imbalance favoring the executive branch.” (8) However, this imbalance can just as likely be exacerbated, since top judges are nominated by the Russian President, and Ivanov is a close friend of Dmitri Medvedev. (9) The two were classmates, both taught Roman Law at Saint Petersburg State University, then co-authored a textbook on civil law and founded a business together. (10) With Medvedev’s help, Ivanov secured Putin’s nomination to serve as the Chairman of the highest commercial court in Russia, despite having never served as a judge before. (11) President Medvedev has been campaigning for judicial reforms ever since his election. Last month, for example, he proposed “simplifying” criminal procedure, in light of the recent terrorist acts. (12)
Law professor Yuri Tolstoy, who taught both Ivanov and Medvedev, thinks that Ivanov’s activism needs to be closely examined. “Precedent system inevitably involves the judiciary infringement into the law-making field, and this destabilizes the principle of separation of powers. Considering the current state of our judiciary, these are very well-founded concerns.” Former Deputy Chairwoman of the Constitutional Court Tamara Morshakova criticized the implementation of binding precedent on the grounds that strengthening the supreme courts will undercut the constitutional principle of judicial independence in the lower courts. (13) Ivanov maintains that uniformity of judicial interpretation must supersede judicial independence.
Currently, only the top Russian courts can overturn their own decisions. Implementing a precedent system will concentrate more power in the hands of those courts, which will make it practically impossible to overcome their legal positions. It is also unclear what will happen if the top courts hand down contradicting decisions in areas of overlapping jurisdictions. This happened in 2008, when the Constitutional Court and the Supreme Arbitration Court handed down opposite decisions on the same tax law matter. Fortunately, the Constitutional Court backed down and its chairman urged the top courts to exercise judicial restraint, especially in the areas of overlapping jurisdiction. Ivanov proposes to resolve such problems by implementing joint jurisdictional resolutions (agreements) between the top courts and amending the Constitution to provide a mechanism for overturning the high court’s decisions in the event of an impasse. (14)
Proponents of the precedent system argue that when judges hand down different decisions on similar matters, it violates the constitutional principle of equality before the law. Also, the existing statutes cannot possibly take into account all of the possible twists and ambiguities that real cases present. (15) Proponents of the new system also point out that precedents will help protect citizens’ rights because irregular decisions, especially politically charged ones, will stand out from an established line of similar cases. Thus, it will be easier to overturn such irregular cases. These are valid assertions, even though they may significantly increase the cost to the defendants in such cases, because precedent adds an incredibly dense layer of case law to an already complex body of statutes and regulations. Presently, legally savvy citizens are able to ascertain their rights by looking up relevant laws and Supreme Court decisions. Navigating through case law, however, will require special legal education. Many citizens will not be able to represent themselves in court effectively without professional assistance. (16)
Instituting a precedent system will further complicate Russian law, which is perhaps an inevitable consequence of the country’s struggle for the rule of law. The proposed changes will concentrate power in the hands of the top courts and perhaps those of the executive branch, at the expense of the elected legislature. This power could be used to reduce corruption in lower courts and improve transparency in judicial practice, but the immediate effect would be the increased alienation of lay citizens from the legal field. In the absence of effective procedures to overturn the top courts’ legal positions, granting them more unchecked power could be dangerous.
(1) Anna Pushkarskaya, “How the Supreme Arbitration Court intends to strengthen judicial precedent,” Kommersant, 22 Mar 10 via http://www.kommersant.ru/doc.aspx?DocsID=1341235.
(2) Resolution of the Constitutional Court of Russian Federation as of 21 January, 2010, official text, Rossiyskaya gazeta, 10 Feb 10 via http://www.rg.ru/2010/02/10/postanovlenie-sud-dok.html.
(3) Olga Pleshanova, Anna Pushkarskaya, “Judicial precedent became constitutional,” Kommersant, 22 Jan 10 via http://www.kommersant.ru/doc.aspx?DocsID=1307870.
(4) Anna Pushkarskaya, Olga Pleshanova, “Campaign to advance precedent,” Kommersant, 22 Mar 10 via http://www.kommersant.ru/doc.aspx?DocsID=1341089.
(5) Aleksandr Vereshagin, “Judicial precedent: now in Russia,” ForbesRussia.Ru, 05 Apr 10 via http://www.forbesrussia.ru/column/47477-pretsedentnoe-pravo-teper-i-v-rossii.
(6) Evgeny Timofeev, “Russia to Apply Precedent-Based Law System,” The Moscow Times, 08 Dec 09 via http://www.themoscowtimes.com/business/business_for_business/article/russia-to-apply-precedent-based-law-system/391053.html.
(7) The Code of Arbitration Procedure, official text, Rossiyskaya Gazeta, 24 Jul 02 via http://www.rg.ru/2002/07/24/arbitrazhnyj_kodeks.html.
(8) “Judicial precedent became constitutional,” Ibid.
(9) See Art. 128 of the Constitution of Russian Federation, official text, Rossiyskaya Gazeta, 21 Jan 09 via http://www.rg.ru/2009/01/21/konstitucia-dok.html.
(10) “Medvedev Dmitry Anatolyevich,” Vesti, 09 Jun 09 via http://www.vesti.ru/doc.html?id=291708.
(11) Vladislav Kulikov, Igor Veletminsky, “Goes to court,” Rossiyskaya gazeta, 27 Jan 05 via http://www.rg.ru/2005/01/27/arbitrazh.html.
(12) Sergei Belov, “Judgement day,” Rossiyskaya Gazeta 31 Mar 10 via http://www.rg.ru/2010/03/31/prezident.html.
(13) “Campaign to advance precedent,” Ibid.
(15) Mikhail Moshkin, “Convenient precedent,” Vremya Novostey, 22 Mar 10 via http://www.vremya.ru/2010/46/51/249993.html.
(16) Vladimir Novikov, “Pitfalls of judicial precedent,” RAPSI, 30 Mar 10 via http://www.infosud.ru/judicial_analyst/20100330/217225932.html.
By Sergei Tokmakov (email@example.com)