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Pravovoe gosudarstvo: the Rule of Law in Russia

Original Contribution by Ilja Skrylnikow, Berlin

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I. Pravovoe gosudarstvo: the Russian understanding of the "law-based state"

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In the contemporary legal doctrine scholars extract the main elements of pravovoe gosudarstvo from the provisions of the Constitution, whereas the protection of human rights, the limitation of the state power by law, the primacy of the Constitution and the primacy of the law ("verhovenstvo sakona") are seen as considered to be its central aspects.

The Russian language distinguishes between pravo (Recht, jus) and sakon (Gesetz, lex). The pravovoe gosudarstvo means primarily the primacy of sakon (lex). The sakon is adopted by the legislator and is therefore the highest form of expression of the people's will as a sovereign. All other norms have to comply with the lex to guarantee that they comply with the will of the people. On the other hand, Art. 55, para. 2 provides that no "laws shall be adopted cancelling or derogating human rights and freedoms". In that respect, the primacy of law means here the primacy of jus.

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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.-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.-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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Article 2 states that "the human being, his rights and freedoms are the supreme value". The state has the obligation to protect the rights and freedoms "of men and citizens". These rights are not granted but exist ipso jure, they are natural rights. The placement of that provision at the very beginning shows the importance that the Constitution attaches to the protection of human rights (part 2 of the Constitution is devoted to the "rights and freedoms"). In that respect, the Russian concept of pravovoe gosudarstvo embodies the substantive concept of Rechtsstaatlichkeit.

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In its decisions Nr. 11-P from 30 .4.April 1996 and Nr. 7-P from 30 .4.April 2007 the Constitutional Court decided that the president can even issue an 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 the 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.-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.-2009). It also based its decision from 26 January 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 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 .02.February 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.

The courts presidents are appointed by the Federation Council on proposal of the President or by the President on proposition proposal of the President of the Supreme Court. They are appointed for a period of 6 years, whereas the prolongation of the mandate for the next possible period is a source of pressure on "compliance". The court presidents are seen as "translators" of different administrative interests.

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Uncommon is the general competence of the public prosecution (so called "general supervision power", prokurorskii nadsor, a heritage form from soviet system) to prove the compliance e.g. of state executive organs or commercial or non-commercial organisations with human rights and freedoms "in order to assure the rule of law". Furthermore a prosecutor may institute or enter in civil proceedings on behalf of another. Having instituted or entered a proceeding, the prosecutor is not bound by the interests of the person whose rights or freedoms have been violated. That provision is seen as a constraint upon the liberal state.

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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 .11.November 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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