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In the context of primacy of the law one particularity of the hierarchy of norms should be emphasised: The Russian Constitutional Court stated the priority of the "Code of Criminal Procedure" even over later laws. It perceives a code as "an own, structured system" with the consequence that new norms have to comply with that code (decision from 29-06/29/-2004, N 3-P). Though, modifying the "lex posterior"-principle, the Court recognised a priority of "codified" normative acts over "simple" norms in other federal laws. Interestingly, that decision was based inter alia on the principle of the rule of law. But in later decisions, the Constitutional Court modified its ruling and made clear, that this priority principle does not apply in cases where (later) federal laws establish additional guarantees of rights and interests of citizens (e.g. decision from 15-05/15/-2007).
The idea of "dictatorship of law" proclaimed as a reaction to the widespread legal nihilism in Russia is even contradictory with regard to its description of the liberal foundation of the concept of the rule of law. The implicated "blind" application of laws and the oppressive sound do not correspond with the (material) concept of pravovoe gosudarstvo.
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In its decisions Nr. 11-P from 30 April the 30th 1996 and Nr. 7-P from 30 April the 30th 2007 the Constitutional Court decided that the president can even issue ukas to fill a regulatory gap on the area where the parliament is obliged to act, provided the ukas is temporarily limited and does not contradict the Constitution or federal laws. The president derives this power from his position as the guardian of the Constitution and his competence to "ensure coordinated functioning and interaction of all the bodies with state power" (Art. 80, para. 2).
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Recently, the concept of precedents became the main topic in legal debate. The bone of contention was the position of the Higher Arbitrazh Court, that its interpretation of laws and "legal positions" given not only in "explanations" but also in concrete cases is binding on lower courts. That position was approved by the Constitutional Court (decision from 21-01/21/-2010, N 1-P). That is seen as the establishment of case law as a source of law.
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The pravovoe gosudarstvo is based also on general principles and rules of international law and international treaties (Article 15, para. 4). They are an integral part of the Russian legal system. If any international treaty contains a rule which is against Russian law, the international law prevails. That is a remarkable openness towards the international community. In November 2009 the Constitutional Court based the prolongation of the moratorium on death penalty on Article 18 of the Vienna Convention on the Law of Treaties (decision Nr. 1344-O-R from 19-11/19/-2009). It also based its decision from 26 January the 26th 2010 on Article 15, para. 4 and stated that judgements of the ECHR could be a ground for retrial in civil procedure (in criminal and administrative procedures explicit norm for that exist already).
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The independence of the judiciary is crucial for a law-based state and is embodied in Art. 120 et seq. of the Russian Constitution. But in reality the independence of judges remains one of the main problems in Russia. This is even recognised by president Medvedev too, who considers the achievement of a real independence of the judicial power as a "main objective" and a "fundamental task" (speech from 20 May the 20th 2008). In that respect, Medvedev himself speaks of "pressure of various kinds, such as surreptitious phone calls and money" that undermines the independence of judges.
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Emblematic for the pressures on the judges is the case of Kudeshkina v. Russia, decided by the ECHR on 26 February the 26th 2009 (Application no. 29492/05). In that case, the judge Kudeshkina was put under pressure by the president of the court who was not "satisfied" with her dealing with the case. As a consequence of the conflict, judge Kudeshkina was relieved of her duties.
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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 Court gives 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.
The decision of 11 November the 11th 2008 (N 556 O-R) illustrates this issue: in an earlier ruling the Constitutional Court had given in the light of the Constitution the only possible interpretation to a provision of a law. But in the following retrial in that case the Supreme Court stated, that the interpretation of the Constitutional Court does address only the Legislator and refused to review the case in the light of the decision of the Constitutional Court. In the new decision the Constitutional Court reiterates the binding nature of its decisions.
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