Russian Law & Government
Government & Politics
The politics of Russia (or the Russian Federation) take place in a framework of a federal presidential republic. According to the Constitution of Russia, the President of Russia is head of state, and of a pluriform multi-party system with executive power exercised by the government, headed by the Prime Minister, who is appointed by the President by the parliament's approbation. Legislative power is vested in the two chambers of the Federal Assembly of the Russian Federation, while the President and the government issue numerous legally binding by-laws. Although Russia has traditionally been ruled by absolute monarchs and dictators, it currently has a democratic system of government.
Since gaining its independence with the collapse of the Soviet Union at the end of 1991, Russia has faced serious challenges in its efforts to forge a political system to follow nearly seventy-five years of Soviet rule. For instance, leading figures in the legislative and executive branches have put forth opposing views of Russia's political direction and the governmental instruments that should be used to follow it. That conflict reached a climax in September and October 1993, when President Boris Yeltsin used military force to dissolve the parliament and called for new legislative elections (see Russian constitutional crisis of 1993). This event marked the end of Russia's first constitutional period, which was defined by the much-amended constitution adopted by the Russian Republic in 1978. A new constitution, creating a strong presidency, was approved by referendum in December 1993.
With a new constitution and a new parliament representing diverse parties and factions, Russia's political structure subsequently showed signs of stabilization. As the transition period extended into the mid-1990s, the power of the national government continued to wane as Russia's regions gained political and economic concessions from Moscow. Although the struggle between executive and legislative branches was partially resolved by the new constitution, the two branches continued to represent fundamentally opposing visions of Russia's future. Most of the time, the executive was the center of reform, and the lower house of the parliament, the State Duma, was a bastion of antireform communists and nationalists.
Foreign Relations
The Russian Federation (Russia) is recognised in international law as continuing the legal personality of the former Soviet Union. Russia continues to implement the international commitments of the USSR, and has assumed the USSR's permanent seat on the UN Security Council, membership in other international organisations, the rights and obligations under international treaties and property and debts. Russia has a multifaceted foreign policy. It maintains diplomatic relations with 178 countries and has 140 embassies. Russia's foreign policy is determined by the President and implemented by the Ministry of Foreign Affairs.
Russia is one of the key players in international relations. As one of five permanent members of the UN Security Council, Russia has a special responsibility for maintaining international peace and security. Russia plays an important role in helping mediate international conflicts through the Quartet on the Middle East and the Six-party talks, and is actively engaged in promoting a peace following the Kosovo conflict. As holder of the largest stockpile of weapons of mass destruction in the world, Russia plays an important role in resolving issues of nuclear proliferation. Russia is a member of the Group of Eight (G8) industrialised nations and is a member of a large number of other international organisations, including the Council of Europe, OSCE and APEC. Russia usually takes the leading role in the organisations created on the territory of the former USSR; the CIS, EurAsEC, CSTO, and the SCO.
While the possibility of Russia joining the European Union in the future has been advocated and discussed, Russia aspires to be an equal partner with the EU rather than a member. Russian President Vladimir Putin has said that Russia has neither the intention of joining the EU nor of establishing any common institutions in the foreseeable future for "obvious reasons", although he advocated a strategic partnership with close integration in various dimensions including establishment of four common spaces between Russia and the EU.
The collapse of the Soviet Union resulted in Russia changing from being an enemy of NATO to a much closer relationship, one that has however varied between being very warm (eg immediately after the September 11, 2001 attacks) to very chilly (objections to NATO actions during the 1999 Kosovo War). The NATO-Russia Council was established in 2002 to allow the 26 Allies and the Russian Federation work together as equal partners to identify and pursue opportunities for joint action; while the possibility of Russia joining NATO in the future has been discussed, Russia has not formally joined NATO as an ally, nor has Russia expressed any desire to join NATO.
Law
Since its adoption in a 1993 referendum the Russian Constitution is considered to be the supreme law of the land. Article 15 of the Constitution reads that it “shall have supreme legal force and have direct effect, and shall be applicable throughout the entire territory of the Russian federation.” Courts are guided by the Constitution and it trumps federal and local laws.
Constitutional laws cannot become part of the constitution or amend parts of it absent a special legal act on constitutional amendment. They are typically enacted in important areas of constitutional law, such as Article 56 which allows for the passage of constitutional laws necessitated by a state of emergency. However the Constitutional Court was able to foreclose the possibility that constitutional laws could be used to circumvent the legislative process in the Case Concerning Interpretation of Art. 136 of the Constitution, VKS, 1995, No. 6, p. 10. Nevertheless, constitutional laws enjoy special status within hierarchy of laws, since federal constitutional laws will displace federal laws.
Statutes are the predominant legal source of Russian law, and may only be enacted through the legislative process. Codes are the basis for law on a matter, and they are usually supplemented with legislation to develop certain provisions. There are gaps in some of the codes, but even still the judges will find a basis for deciding the case in a given code. Codes are interpreted flexibly, and interpretation may be based on enumeration of “general principles” of the codes. General principles are usually articulated at the beginning of the codes in the first chapter to outline the reason for the legislation. Reasoning by analogy is also allowed.
The Russian Civil Code is the “constitution” of the market economy, and is special in the hierarchy of codes, since it will supplant contradictory text in other codes. New codes and laws will displace old ones, unless a statue expressly preserves the old law.
The President has power to issue normative and non-normative decrees, provided they do not contravene the constitution and federal laws. "On the basis and for the sake of implementation of the Constitution of the Russian Federation, federal laws, normative decrees of the President of the Russian Federation" Government may also issue directives having “normative” character.
Agencies may enact regulations through their general competency, but these are limited to the extent of the constitution and relevant codes. If these limits are not strictly defined, then the president may use agencies to get around the legislative process. Consequently, agencies may have their powers limited by statutes. The Civil Code purposely authorizes supplementary rules by “statute” rather than the broader term “legislation” which would encompass other secondary law.
Traditionally, there was no judge-made common law, and decisions only cited to the constitution, written laws in codes, statutes, or regulations. There was no stare decisis, and cases had arguable value as precedent. Past cases are not referred to in opinions, but attorneys may introduce them in their arguments. However, court judgments were not future precedent.
More recently, the courts of the Russian Federation have allowed more reliance on precedent for efficiency and consistency, referring to precedent as “settled judicial practice.” The trend will probably be for more opinions to use settled judicial practice due to all the gaps in the Russian legal system compounded with greater accessibility of judicial opinions via commercial online and printed sources. While not totally considered outside sources of law, judges increasingly rely on published judicial opinions to supplement their decisions. Nevertheless, these judgments are not binding to lower courts, but are persuasive.
The Russian Supreme Court and Supreme Arbitration Court have authority to issue general “explanations” of the substantive law and procedural issues, absent a relevant “case or controversy” in front of them. Legal scholars also take part in these discussions, and the opinions of the judges and commentators are published and used as persuasive authority. This process is somewhat analogous to the discussion that scholars take in American Law Reports or in law reviews. The judges and scholars may codify what is practice, or more importantly address new issues of law to the lower courts and instruct them how to interpret these issues. The texts of the explanations of the law are published, and cited by many courts. In contrast, only selected judicial opinions are published. It is not clear which explanations are binding to lower courts, as there is a tension between the Constitution and federal law versus guiding explanatory principles. Still, lower courts that ignore relevant explanations will probably get reversed.
Judicial Review allows courts to declare unconstitutional laws void. Constitutional Courts are therefore negative legislators. The interpretations of the constitution in the decisions of the Constitutional Court are also authoritative and binding on the political branches. The ordinary or lower courts may also apply judicial review. Courts of general jurisdiction may decline to apply (1) any law that violates the Constitution and (2) any normative regulations, in particular subordinate regulations that contravene statutes. The Supreme Court of the Russian Federation has jurisdiction to determine the constitutionality of regulations issued by government agencies. The Supreme Court has held that lower courts must evaluate the contents of applicable laws or other normative acts for their conformity to the constitution, and to apply the constitution where they conflict.
USSR legislation fills gaps as the new system is being placed, and is purely transitional until Russian Parliament can add new laws. They cannot contradict legislative acts of RF.
Judges often reason by analogy, using the general principles of the law the codes to interpret provisions broadly. This is especially true in the case of Hogsteen v. Bruschveka
Judges don’t rely on natural law, but rather legal positivism combined with general principles of law. They may rely on “the requirements of good faith, reasonableness, and justice since Civil Code and other codes tell specific principles within the code. Other principles are equity and fairness, general principle of law, etc.
Civil Code explicitly mentions custom as a separate source of law. Traditions may establish legislative rules.
Individual scholars may be influential by drafting legislation or debating proposed legislation. Their academic commentary is not considered a separate source of law or cited by judges, but judges and attorney rely on it for their arguments.
All international law and the international treaties of the Russian Federation are part of Russian domestic legal system. Domestic law gives way to international law according to Article 15 of the Constitution. The Constitutional Court has the greatest expertise in applying international law.
