Judiciary of Russia

Russia
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The Judiciary of Russia interprets and applies the law of Russia. It is defined under the Constitution and law with a hierarchical structure with the Constitutional Court, Supreme Court, and Supreme Court of Arbitration at the apex. The district courts are the primary criminal trial courts, and the regional courts are the primary appellate courts. The judiciary is governed by the All-Russian Congress of Judges and its Council of Judges, and its management is aided by the Judicial Department of the Supreme Court, the Judicial Qualification Collegia, the Ministry of Justice, and the various courts' chairpersons. And although there are many officers of the court, including jurors, the Prosecutor General remains the most powerful component of the Russian judicial system.

The judiciary faces many problems and a widespread lack of confidence but has also made much progress in recent times. There have been serious violations of the accepted separation of powers doctrine, systematic attempts to undermine jury trials, problems with access to justice, problems with court infrastructure and financial support, and corruption. But the judiciary has also seen a fairer and more efficient administration, a strengthening of the rule of law, moves towards a more adversarial system, and increased utilization of the justice system under Putin.

Courts

Russia has a trifurcated court system, with constitutional, ordinary, and commercial courts. The Constitutional Court of Russia is considered a separate, independent court. The district courts are the primary criminal trial courts, and the regional courts are the primary appellate courts.

The ordinary courts have a four-tiered hierarchy and are responsible for civil and criminal cases:

In 1995, the courts sentenced about 1 million people for criminal offenses, and considered 3 million administrative offenses and 2.5 million civil cases.[1]

Constitutional Court

The Constitutional Court of Russia

The Constitutional Court of Russia (Конституционный суд Российской Федерации) is responsible for cases concerning conformity with the Constitution, judicial disputes between 2 or more federal bodies, between a federal body and a member of the Federation, and between members of the Federation.[2] As such, it practices "constitutional review" (as differentiated from judicial review) and decides whether federal laws, presidential decrees and directives, and local constitutions, charters, and laws comply with the federal constitution, as well as treaties between the national government and a regional governments and between regional governments.

It is composed of 19 judges, and may sit in plenary sessions but is otherwise divided into 2 chambers.[2] The Constitutional Court consists of two chambers with 10 and 9 judges respectively. The Chairman presides over one of the chambers, the Deputy Chairman presides over the other chamber.

Constitutionality of laws, disputes concerning competence of governmental agencies, impeachment of the President of Russia, and Constitutional Court's proposals of legislation must be dealt with by the plenary session. The Constitutional Court may also submit to the plenary session any other issue at its discretion.

In general, the court hears cases referred by the President, the Federation Council, the State Duma, one-fifth of the members of either chamber of the Federal Assembly, the Government, the Supreme Court, or other bodies of legislative or executive authority.[2] It also hears complains by citizens of allegations of constitutional rights violations.[2]

Supreme Court

The building of the Supreme Court of the Russian Federation on Povarskaya Street

The Supreme Court of Russia (Верховный суд Российской Федерации) is the highest court, and supervises inferior courts of general jurisdiction.[3] It occasionally sits as a court of first instance in cases where important interests of state are at issue; in this case it normally consists of a judge and a jury, but occasionally consists of three judges.[3]

There are 115 members of the Supreme Court.[4][5] At plenary sessions the Supreme Court studies the judicial decisions of lower courts on various topics and adopts resolutions, which establish recommendations on the interpretation of particular provisions of law for lower courts for uniform application.

The Presidium of the Russian Supreme Court (Президиум Верховного Суда Российской Федерации) represents Russia's final court of appeal.[6] The Presidium consists of thirteen judges: the Chairman of the Supreme Court, its first deputy chairman, its six deputy chairmen and five other Supreme Court judges.[4] Only the Prosecutor General has the right to appeal to the Presidium, and as a result, very few criminal cases reviewed by the three-judge panels of the Supreme Court make it to the Presidium.[6][4] Only 0.4% of criminal cases in 1998 ended with an acquittal in the Presidium.[6][4]

The court is divided into several chambers or collegia (коллегия), and each chamber normally sits with three judges:[3]

There are several entities attached to the Supreme Court. The Academic Consultative Council (Научно-консультативный совет при Верховном Суде Российской Федерации) assists the court in various legal and academic matters and comprises members of the Supreme Court itself, academics, practicing lawyers, and law enforcement officers. The members of the Academic Consultative Council are elected at plenary sessions of the Supreme Court. The Judicial Department is responsible for administration of the courts.[3]

Regional courts

Supreme Court of the Republic of Karelia in Petrozavodsk

Regional courts (also called kray courts and city courts) are the courts at the regional level, though are not all named as such.[3] This includes the supreme courts of the Republics of Russia, courts of the krais (territories; краевой суд or kray courts), courts of the oblasts (regions; областной суд), city courts of the federal cities of Russia (Moscow and Saint Petersburg), courts of the autonomous oblasts, and courts of the autonomous okrugs.

The courts sit as both courts of first instance and appellate courts.[7] As courts of first instance, they hear more complex civil cases and serious criminal cases.[7] A judge and a jury, or alternatively 3 judges, hear these cases.[7] As appellate courts, they hear decisions of district courts that have not yet entered into force, and consist of 3 judges.[7]

District courts

See also: Raion
Kanashsky District Court in Chuvashia

District courts (районный суд or городской суд; also called rayon or raion courts), which were called People's Courts until 1996, are primarily courts of first instance but sometimes hear appeals from magistrate courts.[7] They are formed in areas (районах or rayons), urban areas (районах в городах), and cities (городах). Decisions of the court are appealed to the regional court.

As courts of first instance, they handle criminal cases where imprisonment is for more than 3 years, and consist of 1 judge and a jury where required.[7][8] As courts of appeal from decisions of the magistrate courts consisting of 1 justice of the peace, they consist of 1 judge and retry the case.[7]

Arbitration courts

An arbitration court of appeals in Vologda

Arbitration courts (арбитражный суд; also called arbitrazh or commercial courts) hear cases dealing with a wide matter of contractual issues, such as rights of ownership, contract changes, performance of obligations, loans, bank accounts, and bankruptcy.[9] They operate independently of the other courts.[9] The system of arbitration courts is supervised 30-Judge Economic Collegium that is part of an expanded Russian Supreme Court effective from August 8, 2014.

Magistrate courts

Magistrate courts (мировой суд; also called Justices of the Peace Courts) handle criminal cases where imprisonment is for less than three years such as petty hooliganism, public drunkenness, and serious traffic violations of a non-criminal nature, minor civil cases such as simple divorces, some property cases, disputes over land, and some labor cases, as well as some federal administrative law cases.[7] The magistrate courts were expected to hear two-thirds of all civil cases and close to 100,000 criminal cases.[1] It consists of one magistrate or justice of the peace.[7]

Administration

The VIII All-Russian Congress of Judges in December 2012

Pursuant to the 2002 Federal Law on Organs of the Judicial Community, which is the legal basis for the judicial organs of self-government, the All-Russian Congress of Judges is the supreme body of the judiciary.[10] The Congress elects the members of the Council of Judges, the self-government body of the judiciary.[10]

The Judicial Department of the Supreme Court of Russia is responsible for administration of the courts, such as selection and training of judicial candidates, working with law institutes, and qualifications of judges and other court officers.[3] It is expected to enhance the independence of the judicial branch.[11] It also supports the Council of Judges and the Supreme Qualifying Collegium.[11][12]

Judicial Qualification Collegia are bodies of judicial self-regulation that were established at the regional (Judicial Qualification Collegia) and national (Supreme Qualification Collegium) levels.[13] They play a key role in the appointment, promotion and dismissal of judges.[13]

Some judges serve as a court chairperson. The court chairperson is solely responsible for the allocation of cases to judges, has considerable powers in the matters of appointment, and makes the initial recommendation for disciplinary measures, in particular dismissal.[14]

Officers

Judges

Vyacheslav Lebedev, Chairman of the Supreme Court of Russia

Judges are appointed by the Federation Council,[9] and serve for life. Candidates are recommended by the Qualification Collegia / Supreme Qualification Collegium to the President, who in turn recommends candidates to the Federation Council.[9]

The judges of the Constitutional Court are nominated by the President and appointed by the Federation Council for 12 years,[2] and the judges must be at least 40 years old and must retire at 70 years old.[2] The also must have served as a lawyer for at least 15 years and have a "recognized high qualification" (quotation from Constitutional Court Act) in law.

The Russian Minister of Justice is responsible for appointing judges to regional and city courts; however, in practice, many appointments below the national level still are made by the chief executives of subnational jurisdictions.

Judges of the district courts are appointed by the President. A candidate must be at least 25 years old, is expected to have received a higher legal education (commonly a specialist degree), have at least 5 years of experience in the legal profession, and pass an examination from the Ministry of Justice.[9][15]

Justices of the peace are usually appointed by the regional legislature, but may also be elected.[9] Justices of the peace require most of the same qualifications.[9]

Prosecutors

Yury Chaika, the Prosecutor General of Russia

The Prosecutor General of Russia is the highest prosecutor in Russia, and both he and his office are independent from the executive, legislative and judicial branches of power. The Prosecutor General remains the most powerful component of the Russian judicial system.[16]

The Prosecutor General is entrusted with:

  1. prosecution in court on behalf of the State;
  2. representation of the interests of a citizen or of the State in court in cases determined by law;
  3. supervision of the observance of laws by bodies that conduct detective and search activity, inquiry and pre-trial investigation;
  4. supervision of the observance of laws in the execution of judicial decisions in criminal cases, and also in the application of other measures of coercion related to the restraint of personal liberty of citizens.

The Investigative Committee of Russia, sometimes described as the "Russian FBI", is the main federal investigating authority in Russia, formed in place of the Investigative Committee of the Prosecutor General in 2011.

The Prosecutor General is nominated by the President of Russia and appointed by the majority of Federation Council for a term of five years. If the nomination fails, the President must nominate another candidate within 30 days.[17] The resignation of the Prosecutor General before the end of his term should be approved by both a majority of Federation Council and the President.

Advocates

Sergei Magnitsky, a Russian advokat, or attorney, and an international cause célèbre

The Russian legal profession is unregulated, but there have been moves towards unification and regulation recently.[15] Anyone with a legal education can practice law, but only a member of the Advokatura (Адвокатура) may practice before a criminal court.[15] Legal education has traditionally begun with the specialist degree in law (специалист по правоведению).[18] An "advocate" is an attorney who has demonstrated qualification and belongs to an organizational structure of advocates specified by law,[15] known as being "called to the bar" in commonwealth countries.

An examination is administered by the qualifications commission of a court for admission to its Advokatura.[15] To sit for the exam, one must have a higher legal education (commonly a specialist degree) and either two years of experience in legal work or a training program in a law firm.[18][15] The exam is both written and oral, but the main test is oral.[15] The qualifications commission is composed of seven advocates, two judges, two representatives of the regional legislature, and two representatives of the Ministry of Justice.[15]

In 1988 there were 25,000 lawyers,[19] and in 2002 there were 47,000 defense lawyers in all of Russia.[20]

Jurors

A juror must be 25 years old, legally competent, and without a criminal record.[8]

Law

Main article: Law of Russia
The Faculty of Law building at Saint Petersburg State University

The judiciary is primarily regulated by the Constitution of Russia, the Code of Criminal Procedure, and the 1996 Federal Constitutional Law on the Judicial System of the Russian Federation.[21] The Constitution states that the judicial branch is independent of the legislative and executive branches.[22]

There is no usage of precedent, as used in common law legal systems. As such, the law on appeal may depend on the composition of the chamber deciding the appeal. A chamber normally consists of 3 judges, out of the dozens of judges within the court (19 in the Constitutional Court, 115 in the Supreme Court). Without the legal principle of stare decisis, for each case a chamber may come to a different, even contradictory, conclusion, even compared to chambers within the same session. If they come to relatively consistent decisions, those in civil law legal systems call this jurisprudence constante.

Criminal procedure

Everyone has the right of legal assistance.[23] The accused have the right to a defense lawyer from the time they are detained, put in custody, charged, or declared a suspect.[23][24] According to the 2001 Code of Criminal Procedure, defense lawyers can participate in investigations with the consent of the prosecutor, meet privately with a client, collect evidence independently of the prosecutor, identify defense witnesses, present expert witnesses, be present for all court procedures, access to the prosecutions evidence after the investigation, and to file appeals regarding court procedures.[25]

For serious and specific crimes, the accused have the option of a jury trial consisting of 12 jurors.[8] The crimes that may be tried by a jury are murder, kidnapping, rape with aggravating circumstances, child trafficking, gangsterism, large-scale bribery, treason, terrorism, public calls for violent change in the constitutional system or for the seizure of power, and select other crimes against the state.[8] The Constitution of Russia stipulates that, until the abolition of the death penalty, all defendants in a case that may result in a death sentence are entitled to a jury trial.

Jurors are selected by the prosecution and defense from a list of 30-40 eligible candidates.[8] They are similar to common law juries, and unlike lay judges, in that they sit separately from the judges and decide questions of fact alone while the judge determines questions of law.[8] They must return unanimous verdicts during the first 3 hours of deliberation, but may return majority verdicts after that, with 6 jurors being enough to acquit.[8] They may also request that the judge show leniency in sentencing.[8]

Analysis and criticism

The arbitrazh courts have been singled out as particularly effective in dealing with business issues.[9] Also, the number of people seeking assistance of the judicial system has increased from 1 million under Yeltsin to 6 million under Putin.[9]

However, Transparency International found that 78% of respondents reported they did not expect to find justice in the courts.[26] Both public perception and comments from senior judges point to bribery as prevalent at the trial court level.[27]

There have been serious violations of the accepted separation of powers doctrine.[22] Constitutional Court Judge and Council of Judges member Vladimir Yaroslavtsev, in a 2009 interview with the Spanish newspaper El País, claimed that the presidential executive office and security services had undermined judicial independence in Russia.[28] Constitutional Court Judge Anatoly Kononov, who had frequently dissented from decisions taken by the majority of the court, in his interview to Sobesednik supported Yaroslavtsev, claiming that there was no independent judiciary in Russia.[29]

There have been accusations of systematic attempts to undermine jury trials, including juror intimidation and bribery, and systematic trial delays.[30] The number of jury trials remains small, at about 600 per year, out of about 1 million trials.[30] Lawmakers are continuously chipping away at what types of criminal offenses merit a jury trial.[30] Juries have granted acquittals in 15-20% of cases, compared with less than 1% in cases decided by judges.[30] Juries may be dismissed and skeptical juries have been dismissed on the verge of verdicts, and acquittals are frequently overturned by higher courts.[30]

Compared to other industrialized nations, Russia has historically had a small number of lawyers in relation to its population.[19] In 2002 there were 47,000 defense lawyers in all of Russia,[20] while the courts sentenced about 1 million people for criminal offenses and considered 3 million administrative offenses and 2.5 million civil cases,[1] and the Russian Census of 2002 put the resident population at more than 145 million people. For a comparison to the United States, the number of active lawyers practicing before the judiciary of California as of December 2012 was more than 179,000,[31] while the 2010 United States Census put the California population at more than 37 million people.

The court chairperson has sole discretion for allocation of court cases, and there is no systematic procedure for allocation based on objective criteria.[14] There have been reports where the chairperson always assigns sensitive cases to particular judges or transfers cases to another judge during an ongoing trial.[14]

There have been allegations of corruption concerning the oral exam required for admission to the Advokatura,[15] known as being "called to the bar" in commonwealth countries.

The crucial question of contemporary Russian judiciary is the specialisation of judges and courts. One of the significant event on this topic was the International conference - First Siberian Legal Forum "Specialisation of judges and courts: International experience and Russian perspective", held in Tyumen city (October 17–18, 2014) and organised by Tyumen State University and Dmitry Maleshin[32]

History

Vera Zasulich, acquitted by jury trial in a well publicized case in 1878

Trial by jury was first introduced in the Russian Empire as a result of the Judicial reform of Alexander II in 1864, and abolished after the October Revolution in 1917.[33] They were reintroduced in the Russian Federation in 1993, and extended to another 69 regions in 2003.[33] Its reintroduction was opposed by the Prosecutor General.[8] Magistrate courts were first created in 1864, abolished in 1917, and gradually reintroduced from 2001 to 2003.[7]

Lay judges were in use in the Soviet Union.[34] After a 1958 reform they were elected for 2 years at general meetings of colleagues at their place of work or residence, or at higher levels appointed by the soviet.[34] The incidents of lay judges overruling professional judges was rare, and was officially reported in only 1 case by the late 1960s.[35] Unlike the juries of the United States, lay judges were not selected from panels that are cross-sections of the entire population, but selected by institutions in each district.[36]

On 25 May 2001, President Putin proposed the Federal Law "On Amending the Federal Law On the Status of Judges In the Russian Federation",[37] which was passed by the Duma, and signed by President Putin on 15 December 2001. The law introduced disciplinary and administrative responsibility for judges. The Federal Law on Organs of the Judicial Community, which is the legal basis for the judicial organs of self-government, was passed in 2002.[10]

Constitutional Court Judge and Council of Judges member Vladimir Yaroslavtsev, in a 2009 interview with the Spanish newspaper El País, claimed that the presidential executive office and security services had undermined judicial independence in Russia.[28] Constitutional Court Judge Anatoly Kononov, who had frequently dissented from decisions taken by the majority of the court, in his interview to Sobesednik supported Yaroslavtsev, claiming that there was no independent judiciary in Russia.[29] In October the Constitutional Court in an unprecedented motion accused Yaroslavtsev of "undermining the authority of the judiciary" in violation of the judicial code, and Yaroslavtsev eventually resigned from the Council of Judges but remained a judge; Kononov resigned from the Constitutional Court on 1 January 2010, seven years ahead of schedule.[38][39][40]

The VIII All-Russian Congress of Judges met from 17–19 December 2012.[41]

See also

Notes

  1. 1 2 3 Council of Europe 1998, p. 26.
  2. 1 2 3 4 5 6 Terrill 2009, p. 423.
  3. 1 2 3 4 5 6 Terrill 2009, p. 424.
  4. 1 2 3 4 Gauslaa 2002.
  5. ↑ Foglesong 2001, p. 65.
  6. 1 2 3 Severance 2002, p. 189.
  7. 1 2 3 4 5 6 7 8 9 10 Terrill 2009, p. 425.
  8. 1 2 3 4 5 6 7 8 9 Terrill 2009, p. 439.
  9. 1 2 3 4 5 6 7 8 9 Terrill 2009, p. 431.
  10. 1 2 3 Despouy 2009, p. 7.
  11. 1 2 Council of Europe 1998, p. 27.
  12. ↑ Chemonics et al. 2001, p. 4.
  13. 1 2 Despouy 2009, p. 8.
  14. 1 2 3 Despouy 2009, p. 17.
  15. 1 2 3 4 5 6 7 8 9 Harvard 2011, p. 3.
  16. ↑ Terrill 2009, p. 433.
  17. ↑ Article 12 of the Federal Law about the Office of the Prosecutor General of Russian Federation
  18. 1 2 Harvard 2011, p. 1.
  19. 1 2 Terrill 2009, p. 426.
  20. 1 2 Terrill 2009, p. 438.
  21. ↑ Terrill 2009, p. 422.
  22. 1 2 Weisman 1995, p. 1365.
  23. 1 2 Terrill 2009, p. 437.
  24. ↑ Terrill 2009, pp. 456-458.
  25. ↑ Terrill 2009, pp. 436-437.
  26. ↑ Terrill 2009, pp. 431-432.
  27. ↑ Terrill 2009, p. 432.
  28. 1 2 Bonet, Pilar (31 August 2009). "'En Rusia mandan los órganos de seguridad, como en la época soviética'". El País (in Spanish).
  29. 1 2 Аралтан (27 October 2009). Судья Кононов: Независимых судей в России нет. Собеседник.ru (in Russian).
  30. 1 2 3 4 5 Barry, Ellen (15 November 2010). "In Russia, Jury Is Something to Work Around". The New York Times.
  31. ↑ "Member Demographics". State Bar of California. 20 December 2012. Retrieved 21 December 2012.
  32. ↑ http://www.siberiaforum.ru/en
  33. 1 2 Terrill 2009, pp. 438-439.
  34. 1 2 Riha 1969, p. 641.
  35. ↑ Riha 1969, pp. 641-642.
  36. ↑ Riha 1969, p. 642.
  37. ↑ О внесении изменений и дополнений в Закон Российской Федерации "О статусе судей в Российской Федерации"
  38. ↑ Пушкарская, Анна. Конституционный суд теряет особые мнения. Kommersant (in Russian).
  39. ↑ von Twickel, Nikolaus (3 December 2009). "2 Senior Judges Quit After Criticism". The Moscow Times.
  40. ↑ White, Gregory L. (3 December 2009). "Judge Set to Retire Amid Kremlin Row". The Wall Street Journal.
  41. ↑ "All-Russian Congress of Judges: Vladimir Putin took part in the VIII All-Russian Congress of Judges". President of Russia. 18 December 2012. Retrieved 27 January 2013.

Further reading

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