Conference matters : the Legals : 18/09/06

I haven't referred at all to the legal aspects of our conference, partly because I wanted to ruminate about what had been said and what I had come away with, and partly because some of it was not clear in my head. So here is a kind of summary of my impressions, rather than a 'binding' document.

The over-arching legislation is a Constitution, adopted in 1993, which does what all Constitutions do, that is it establishes the form and structure of government, the judicial system, and the powers of the different levels of state. The separation of powers principle was adopted in 1992.

State power in the Russian Federation is exercised by the President of the Russian Federation, the Federal Assembly (the Federation Council and the State Duma), the Government of the Russian Federation and Courts of the Russian Federation.

The Federation Council is formed by two representatives of each sub unit of the federation - one from the legislative and one from the executive branch and it consists of 178 members from 89 regions. It has very wide powers. There was some oblique discussion about the way these representatives are now being appointed because of changes brought about by Presidential decree. Having the ability to create a pliable upper house gives the President a level of autocracy cloaked as democracy. But these are my thoughts, not anything directly quoted from the Conference.

There are also issues of concern amongst legal thinkers where certain powers fall outside these principles, for example the role of the President which is expressed in the Constitution, rather elasticly, as determining "the guidelines of the internal and foreign policies of the State".

One peculiarity of the Russian system is the role of administrative rule-making. A bureaucratic ruling, made outside the Duma, can over-ride an existing law. All those Russian novels I read long ago suddenly sprang into focus at this point. Judicial law-making is a new phenomenon for Russia, common law precedent not occuping the central role it has in the Anglo-American system. Of what importance are decisions of the Constitutional Court? This is not settled.

The Government

The Constitution sets up a government based upon a Federation of States. The basic subdivision of the Russian Federation is that of the federal subject. There are 88 federal subjects which fall into different types: these are 21 republics which enjoy a high degree of autonomy on most issues and generally correspond to some of Russia's numerous ethnic minorities. The other subjects consist of 48 oblasts (provinces) and 7 krais (territories), as well as 9 autonomous okrugs (autonomous districts), and 1 autonomous oblast. Beyond these there are two federal cities (Moscow and St Petersburg). Each federal subject is a constituent part of the federation. (This information is from the Wikipedia : http://en.wikipedia.org/wiki/Russia)

The republics include many autonomous regions some of which seem like separate countries to us. North Ossetia was the one that sprang to mind for me, largely because it often seems to be mentioned in relation to its new pro-western leadership. Chechnya is also one although the breakaway movement there has altered its legal status within the Federation in some ways. (http://en.wikipedia.org/wiki/Republics_of_Russia)

There are also seven large federal districts (four in Europe, three in Asia). These have been added as a new layer between the above subdivisions and the national level. Unlike the federal subjects, the federal districts are not a subnational level of government, but are a level of administration of the national governmen

There was some rather interesting discussion by Professor Sergey Knyazev, Vice Dean of the Law institute of the Far-East State University (i.e. a man clearly not beholden to Moscow) about the contradictory nature of Federal laws when testing the limits of appointment of governors and other figures of regional authority. The President has in recent times taken to making these appointments personally, rather than allowing the regions themselves to hold elections as the Constitution requires. From memory this may have come about after Beslan, but I could be wrong. Professor Knyazev expressed some disquiet about the centralisation of electoral powers in particular to the Federal Government, which he felt was not the intention of the framers.

The Court system

The Constitutional Court, the Supreme Court and the High Arbitration Court are the upper levels of the Russian court system.

There appears to be some cross-fertilisation of the Courts of Arbitration, and the Supreme Court of General Jurisdiction as there are some matters of a commercial nature which might be heard in either. These courts have their own hierarchy of appeals as we would expect. The High Arbitration Court is the supreme judicial authority in settling economic disputes, and I think gives clarity to the courts below it although the Russian system, like the European system, does not rely on precedent.

The emphasis for us was kept firmly upon commercial laws, and the commercial courts. There the law has been drawn from the sources most useful to Russia as a global trading entity. Thus they've adopted a system close to the European Civil law. Although they're not members of the EU they are a member of the European Council, a body whose exact purpose I haven't been able to establish. As a member Russia is signatory to the Convention on Protection of Human Rights and Fundamental Freedoms, and this can provide recourse to the European Court of Human Rights for the citizens of Russia.

Try as I might I could not get any answers when questioning the processes of the criminal justice system although I know there is a death penalty. There has been no execution since 1996 as the Constitution decrees the death penalty can be awarded only when the trial is by jury (Chechnya is the exception); for some reason I couldn't grasp jury trials are not easily come by. Perhaps there is some loop-hole in the way the judicial system has been constructed. Nor could I find out just what powers the Constitutional Court has. For example the Constitutional Court appeared unable to countermand the presidential decree which centralised the appointment of regional governors into Putin's hands, although this decree was specifically outside the language of the Constitution. Is it a Constitution which can be altered in the same way as a mere Act of the Duma, i.e. no manner and form provision? I didn't even attempt to ask that question, given my inability to get answers for much less touchy subjects. The apparent obfuscation may have been a result of the translation process, or just a fudge. Some things were clearly not going to be spelt out, although the candour of some of our speakers was surprising.

Below the superior courts is an array of appellate courts which are drawn from courts of first instance, magistracies and other initiating bodies, pretty much like ours I think.

The end of the Soviet era : old laws for new

There was a lot of fascinating discussion about the emergence of the new legal system, and the injustices relating to some of the changes away from the old Soviet style of government where property was state owned, and health and education were state provided. Rights of residence issues resulted in people being turfed out of their apartments by clever crooks, and these laws have been considerably tightened, but not without a lot of suffering. These days 'insurance' systems and fee based education, closely based on Western models, are the way forward. I heard on the news that the Russian government within 10 years has emerged from its status as a bankrupted country and now is cleared of its debts. Clearly this has been done at some cost to the old and the undereducated. I was told by one of my colleagues that a hospital doctor approached her while she was sight-seeing in St Petersburg, and asked to publicise the dire state of the Hospital system within the Federation. Of course in Australia, our health situation is not always world's best practice either. There has been much tightening of the laws of inheritance and private property, in a series of change to the Civil Codes, and there are new Intellectual Property laws coming into being within weeks (the Bill Gates Act?)

Russia is starting to tighten up its technical safety regulations, now adopting the International Standards system relating to building, food etc which we all know and love. The State is disengaging itself more and more from participating in the market place (Telstra shares anyone?)

I think I probably ended up with more questions than answers, but hey, that's the life of a Reference Librarian anyway. It was all incredibly interesting in spite of the impenetrability of some of the simultaneous translation. And my fascination with Constitutional law remains undiminished.