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The Constitution of the Russian Federation, which came into force in 1993, begins with the following Article 1, para.1:
"The Russian Federation – - Russia is a democratic federal law-based State with a republican form of government."
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In 2006, a debate on a "Russian" type of democracy was launched by the high representative of the Kremlin Administration Surkov – - the "sovereign democracy". An intensive debate took place also among the legal scholars (see Kutafin, 267-286). Its obscure definition is the following: "a society's political life where the political powers, their authorities and decisions are decided and controlled by a diverse Russian nation for the purpose of reaching material welfare, freedom and fairness by all citizens, social groups and nationalities, by the people that formed it". The idea of "sovereign democracy" can be seen as an attempt to put the interests of state above the interests of citizens and above the law and was rejected by Medvedev (being vice-president) – - "democracy without any adjectives".
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One further particularity are the "explanations" in form of judicial decrees issued by the Plenum of the Supreme Court or by the Higher Arbitrazh Court. They are binding for lower courts and have therefore "quasi"-normative effect. The "explanations" concretise the norms, explain the meaning of legal norms and determine how to resolve outlined cases. The basis for the "explanations" is the "generalisation of judicial practice". In that context it is problematic, firstly, that no legal action is provided against these "explanations". Secondly, the "explanations" constitute a constraint upon the independence of judges. Thirdly, they deny the possibility of change or improvement of judicial practice by lower courts. And lastly, the judges of lower courts – - anyway shaped by strong positivism – - as a consequence unlearn independent interpretation of laws.
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A judge can become "easily" subject to disciplinary measures or to relief of duties in a case of infringement of the "Codex of judicial ethics". Its rules are very general. In first instance a "qualification council" decides about the dismissal of judge upon the request of President of a court. The judges in that council are delivered to the same extend to the sword of Damocles of disciplinary measures as any judges – - so, they are not protected from pressure and can be even the judges at the same court and "under" the President of the court who initiated the dismissal procedure. Furthermore, the majority decides and there is no procedure guaranteeing secret voting.
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There is no separate administrative jurisdiction yet – - it is realised by civil or Arbitrazh courts. The protection of the citizens against administrative acts is limited. A crucial problem is the lack of any administrative procedural law. Consequently, each public authority has its own procedure. In the administrative procedure the principle of judicial investigation does not apply.
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There is a kind of controversy between the Constitutional Court on one side and the Supreme Court and the Higher Arbitrazh Court on the other: the Constitutional Courtgives an interpretation to a certain legal norm – - the other courts shall follow that interpretation. But they have an argument against that: the interpretation cannot be mandatory since it is not a law and the principle of supremacy of law does not apply.
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The Russian Constitution contains the basic principles of the Russian constitutional order and is due to its supreme legal force the centre and the heart of pravovoe gosudarstvo. The principle of pravovoe gosudarstvo is central to the Russian constitutionalism but it is a "weak" principle not a "hard" one since it describes not the current state which does not tolerate any derogations but an objective that has still to be achieved. In the current state there are inter alia considerable deficiencies in the application of the laws, contradictory norms and other normative acts, big discretionary power of the executive, misbalance between the powers, dangers to the independence of judges... The legal system is still in transition. Some Russian academics observe that Russian legal scholars tend to discuss the principle of pravovoe gosudarstvo theoretically but do not apply it in reality – - the current state building and legislation are not measured with pravovoe gosudarstvo. Furthermore, the Russian constitutionalism lacks wide social support by the population – - there is no identification yet with the Constitution and its values. This makes the very long way to go not easier.
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In Russian: Baglai, M.B. (2008): Konstituzionnoe pravo Rossiiskoi Federazii, 7th edition, 137-141. Koslova, E.I. / Kutafin O.E. (2009): Konstituzionnoe pravo Rossii, 4th ed., 122-129. Kudinov, O.A. (2002): Rasrabotka teorii pravovogo gosudarstva v rossiiskoi nauke natchala XX veka, in: obschestvennye nauki i sovremennost', 101-109. Kutafin, O.E. (2008): Rossiiskii konstituzionalism. Malfliet, K. (2008): Mozhno li schitat' sovremennuiu Rossiiu pravovym gosudarstvom. Neprikosvennyi Zapas, Debaty o Politike i Kulture, 61(5), 49-66. Sorkin, V.D. / Lasarev, L.V. (Ed.) (2009): Kommentarii k Konstituzii Rossiskoi Federazii.
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