Friday, January 22, 2010

Window on Eurasia: Some Russian Courts Told to Use Precedents to Decide Cases

Paul Goble

Vienna, January 22 – The Russian Constitutional Court this week declared that the country’s Higher Arbitrage Court has the right to set precedents that subordinate arbitrage courts must follow in reaching decisions, thereby setting a precedent that might eventually be extended to the entire Russian legal system which up to now has not been based on “precedent law.”
As one legal commentator put it today, the Constitutional Court has now recognized that the Higher Arbitrage Court has “the privilege of establishing legal norms and not simply interpreting the law,” something the latter court has been seeking over the last five years (
Beginning in 2005, the Arbitrage Court has been “actively involved in the formation of precedents” for its subordinate courts, but until now, its claims in that regard have not been recognized by the Constitutional Court. Now that has changed, and the consequences of this decision could eventually be enormous.
In the near term, however, the impact of this decision will be relatively limited. The Constitutional Court has agreed with the Arbitrage Court that it has the right to give “abstract interpretation of the norms of law applied by the arbitrage courts and to form corresponding legal positions.”
“But,” as points out, there are going to be problems. On the basis of such decisions, the Constitutional Court held, “decisions taken earlier [by the Arbitrage courts] can be reviewed,” but “only in exceptional circumstances and only when the Higher Arbitrage Court indicates that the precedent applies.”
Those represent “severe” limits on the use of precedents, but it does open the door to an idea that Russian legislators and judges have generally resisted up to now. And that is all the more so since in announcing its decision, the Constitutional Court called for the amendment of the legal code within 18 months to regularize this arrangement.
The adoption of a precedent-based legal system would have enormous consequences for Russia. Among the most obvious would be a more level legal field for the courts, prosecutors, and defendants across the entire country and a requirement for better trained and informed lawyers and judges to handle individual cases.
Meanwhile, another development in the justice system announced this week as being under consideration for introduction as early as 2012 could have even greater consequences for the courts there: the introduction of courts of appeals that would rehear cases tried in the lower courts (
Such courts existed in Russia from 1864 to 1917, Irkutsk lawyer Vyacheslav Plakhotnyuk says, and calls for their introduction now reflects “a recognition of the low quality of work in the most visible link of the judicial system – the district courts of general jurisdiction and dissatisfaction with this quality on the part of the population.”
President Dmitry Medvedev came out in support of this measure during the court of his November 2009 message to the Federal Assembly, but now, Plakhotnyuk says, a draft law has been prepared and is being discussed. Even with support from above, he suggests, it may be some time before the measure is formally introduced, let alone adopted.
As currently drafted, the new system would allow that all decisions of a court of the first instance before entering into force could be appealed. And the Irkutsk legal specialist thus notes that such appeals courts are very different from the more familiar “cassation” courts that have long existed in Russia.
That is because, in the proposed appeals courts, cases “will be considered for a second time” reexamining the evidence considered the first time around before rendering a final decision. After such courts rendered their verdicts, the parties could then turn to the corresponding “cassation” courts to argue on points of law.
Introducing this system, Plakhotnyuk indicates would not be easy or inexpensive: Nearly a thousand new judges would have to be hired and nearly 1300 new court employees, for an annual cost of more than two billion rubles (60 million US dollars). And the system would need to find a new source of cadres.
Today, he points out, most judges come out of the siloviki structures, and the courts of appeal will be successful in “improving the quality of jurisprudence” only if the source of their judges come from elsewhere. Otherwise, he concludes, “nothing will be achieved” -- except an expenditure of a great deal of public and perhaps some favorable PR for some leaders.

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