This is the third chapter from the ‘Awara Russian Tax Guide’ book written by Jon Hellevig, Anton Kabakov and Artem Usov and updated in 2015.
The Russian judicial system is currently undergoing serious reform. The main reform is that the previously acting specialized court for commercial disputes (the Supreme Commercial Court of Russia) has ceased to exist since August 5, 2014), and its powers were transferred to a fully revamped Supreme Court of Russia, which from that moment became the highest judicial body for civil, economic, criminal and administrative cases.
Currently, the Russian judicial system consists of two higher courts: the Constitutional Court and the Supreme Court. Earlier, the number of higher courts also included the Supreme Commercial Court. At lower levels, the Supreme Court continues to head the system of courts of general jurisdiction. The system of commercial courts, previously headed by the Supreme Commercial Court, was not disbanded but transferred unchanged to be headed by the Supreme Court. Thus, now the Supreme Court oversees two systems of courts, as well as a specialized court for intellectual property rights.
The Russian judiciary is regulated on the level of the Constitution by Chapter 7, Articles 118 to 129. Based on the constitutional norms there are three laws on the judiciary that have been adapted in the form of constitutional laws (that is, which have been adopted in conformity to the qualified procedures and votes required for passing constitutional amendments. The most important constitutional laws in this connection are: Law on the Judicial System, Law on Constitutional Court; Law on Courts of General Jurisdiction; Law on Commercial Courts.
More detailed provision for the organization of the courts, the limits of their competence and how they should function are given in a number of laws, the most important of which are: Law on the Status of Judges; Law on Access to Information of Court Activities; Law on the Self-Regulatory Organs of the Judiciary; Law on Assessors in Commercial Courts.
In addition to these laws, of special importance are the laws which lay down court procedures (process law). In Russia these laws are codified in form of: the Civil Procedure Code; the Criminal Procedure Code; the Code of Commercial Court Procedure (the Code of Arbitration Procedure); Code of Administrative Infractions, and very recently, on February 25, 2015, the Federation Council approved a new Code of Administrative Procedure of the Russian Federation, which was signed by the President on March 8.
In order to properly understand how the Russian judiciary works, we need to briefly overview the basics of the system of appeals. In the Russian judicial system appeals are divided into four categories: (i) appeal (“apellyatsionnaya zhaloba”); (ii) cassation (“kassatzionnaya zhaloba”); (iii) supervisory appeal; and (iv) an appeal founded on new or newly discovered facts.
The first type of appeal can be characterized as a de novo appeal where the higher court re-hears the case with full authority to review all the circumstances in the case. The second (cassation) is an appeal on the record where the court of appeals does not review the circumstances of the case and (usually) does not admit new evidence, rather the court will only consider the correct application of material and procedural law and the legal reasoning behind the application. The cassation court is however required to base the factual deliberations on the facts as established by the lower court. When deemed necessary, the cassation court may remit a case to the lower court for retrial. A supervisory appeal may also result in remitting a case for retrial.
Courts of General Jurisdiction
The Supreme Court (“Verkhovny Sud”) is the highest court in the branch of courts of general jurisdiction. The courts of general jurisdiction handle cases of civil, labor, property (etc.) and criminal law as well as administrative matters and administrative offences. Broadly speaking, it would be true to say that all cases not referred to the commercial courts (in Russian referred to as “arbitration courts”) are handled by the courts of general jurisdiction, whereas the commercial courts handle cases between corporations and entrepreneurs and their claims against the state in relation to commercial activities.
Courts of general jurisdiction include magistrate courts, district courts and regional courts. At the first level of the system of courts of general jurisdiction there are the magistrates’ courts (“mirovoi sud”, terminologically comparable with Justices of Peace Courts). These courts handle in the first instance criminal cases in which the maximum penalty is imprisonment for no more than three years (except for a certain list of cases ), civil cases such as most family law matters and divorces, most property disputes where the underlying value at stake does not exceed 50 thousand rubles (except inheritance cases and cases concerning intellectual property rights), disputes concerning use of jointly owned property and property with third party interests, court order on certain documented facts, and some of the administrative offences, and other cases.
On the second level there are the district courts. District courts can be formed on the level of an administrative area of a federal region referred to as a rayon or on the level of a borough of a city. When covering under its jurisdiction a whole town the relevant court may be called a city court. (In Russian “rayonny sud” or “gorodskoi sud”; these used to be called, until 1996, “narodny sud” or people’s court). In Moscow and St. Petersburg the district courts are on the level of the boroughs and the regional courts are referred to as city courts (such as Moscow City Court). The former serve as courts of first instance in cases of general jurisdiction in civil and criminal law, except for those cases which in the first instance are heard in a magistrates’ court. In the latter case the district court functions as a court of appeal. However, some matters are heard in first instance in a regional court and some even in the Supreme Court.
Regional courts operate at the level of Russian regions (now, after entry into the Russian Federation in 2014 of two new regions: Republic of Crimea and federal city of Sevastopol, there are 85), federal subjects of Russia which may have different constitutional statuses and denominations, namely one of the following: republic, kray, oblast, federal city (Moscow and St. Petersburg), autonomous okrug, autonomous oblast. We refer to the all these federal subjects as regions.
A regional court functions depending on the case as either an appellate court or a cassation court in cases previously handled by a district court. In some cases it may serve as the court of first instance. Cases are referred to regional courts at first instance when they qualify as more complex civil cases or if they are criminal cases in which there is the possibility of imprisonment for more than three years. Other cases in which a regional court can act at first instance are those concerning state secrets, and criminal cases in which the accused has some special status, such as being a member of the State Duma or the Federation Council, or is a judges (when requested by the judge).
The work of a regional court is organized in four sections: the collegium (chamber) on civil law matters; the collegium (chamber) on administrative law matters; the collegium (chamber) on criminal law matters; and the presidium. The presidium hears cassation cases but it has also an important function in the review, compilation and analysis of court practice.
The Supreme Court
The status and powers of the Supreme Court have been substantially modified during the reform of the judicial system in 2014. New powers were established by a special law, which went into force on 6 February 2014. Currently, this body exercises judicial control over the system of courts of general jurisdiction, including military courts, as well as over the system of commercial courts, including the specialized court for intellectual property rights. The Supreme Court gives courts clarifications on issues of judicial practice on the basis of its study and generalization. The full scope of the powers of the Supreme Court is defined in Article 2 of the above law. The work of the Supreme Court is organized into nine components: plenum, presidium, appeals chamber, judicial chambers on administrative cases, on civil cases, on criminal cases, on economic disputes, on military personnel, and the disciplinary board.
Depending on the case, the Supreme Court may handle both appeal, cassation и supervisory cases, as well as review matters based on new or newly discovered facts. The Supreme Court can act as a court of first instance in administrative cases, economic disputes between subjects of Russia and the Russian Federation in the form of their agencies. A detailed list of cases is specified in Article 2 of the above law. Among administrative cases one can highlight disputes about regulations (“normativny akt”, also referred to as “abstract review of regulations”) and decisions concerning particular persons in specific cases (“nenormativny akt”) taken by the President, the Government (Cabinet of Ministers), the State Duma, the Federation Council or other government agencies. Other cases which can be heard at first instance are disputes concerning the suspension or termination of the office of a judge, disputes on electoral rights, and the activity of political parties and non-governmental organizations. Issues concerning Russia’s international treaties are can also be reviewed by the Supreme Court acting as a court of first instance.
The effect of all this is that the Supreme Court performs judicial review of laws and regulations issued by the legislative and executive branches of government. But in this connection we need to note that judicial review at the highest level, or constitutional review, is performed by the Constitutional Court (see below).
The Supreme Court may turn to the Constitutional Court requesting its resolution on the conformity with the Constitution of federal and regional laws and regulations (including regional constitutions); treaties between the federal powers and regional powers and those between two or more regional powers; as well as Russia’s international treaties (before they have entered into force).
In addition to the effect on harmonization of court practice which occurs by supervising the decisions and activities of the courts in particular cases, the Supreme Court, in its plenary session, is explicitly de jure tasked with the function of ensuring harmonization of court practice in Russia by issuing clarifications as to the proper interpretation and application of provisions of law. This is done by compiling, reviewing and analyzing court practice and issuing clarification about what is considered due practice. The Scientific Council of the Supreme Court (“Nauchno-konsultativny sovet”) prepares scientific advice on key issues of judicial practice of the Supreme Court.
The Scientific Council of the Supreme Court considers whether to clarify application of legislation, generalizations of judicial practice and judicial statistics, drafts laws which the Supreme Court develops as the holder of the right of legislative initiative, drafts instructions, methodological letters and other documents developed by the Supreme Court and others. The recommendations and drafts are reviewed by the court’s plenary sessions which have the authority to adapt them and then issue them in the name of the court.
In Russia disputes in commercial matters are assigned to a special branch of the judiciary, the so-called arbitration courts. Due to the risk of confusion with what are internationally known as arbitral tribunals and to emphasize the actual nature of these courts, we follow international practice and refer to them as commercial courts. Thus we write about the Supreme Commercial Court not the Supreme Court of Arbitration.
Commercial courts deal with disputes concerning business activities between legal entities and individual entrepreneurs, and their disputes with the state, for example in matters of taxation.
The commercial courts are organized in a four-tier hierarchy, with the Supreme Court at the top since August 6, 2014.
On the first level there are the regional commercial courts which function as trial courts (“arbitrazhniye sudy subyektov federatsii”). There is one such court in each of Russia’s 85 regions. These are followed on the second level by 21 appellate commercial courts (“arbitrazhniye appellyazionniye sudy”) (the latter 21 appellate commercial court was established in 2014 and checks the judicial decisions of commercial courts of the Republic of Crimea and the city of Sevastopol). On the third level there are 10 territorial commercial courts (“arbitrazhniye sudy okrugov”) which serve as courts of cassation for a number of appellate courts.
Supplementing this system, in 2011 a law was passed on a specialized court for intellectual property rights, which began operating on July 3, 2013. This court acts as a court of first instance and cassation in cases of protection of intellectual property rights, considered by it in the first instance, and cases heard in first instance by regional commercial courts and appellate commercial courts.
The process in commercial courts is governed by the Commercial Procedure Code. Appeals may be filed within one month after the commercial court of the first instance renders its decision. The rulings of an appellate court may be appealed in a cassation court within 2 months of becoming effective, with possible extensions of up to 6 months. The judgments of a trial court that were not subject to appeal proceedings may be appealed in a cassation court only when the appeal was left unheard for failure to comply with the submission deadline and the deadline was not restored.
The Constitutional Court
The Constitutional Court of the Russian Federation is the first judicial body of constitutional review in the history of Russia. The Court was created on 30 October 1991 and specializes mainly in judicial review and adjudication on the constitutionality of laws. This is also referred to as constitutional control or constitutional supervision.
The objects of constitutional control are parliamentary laws, presidential and governmental decrees and regulations as well as laws and regulations of the Russian regions (federal subjects). The court also rules on disputes concerning the competence of various state authorities and certain relations between the federal state and the regions as well as those between regions. It also rules on the constitutionality of Russia’s international treaties before they take effect. The court also reviews other types of case, among which are issues connected with impeachment of the federal president. Other courts may ask the Constitutional Court to pronounce on the constitutionality of a law that is applicable to a particular case.
It is the first and only instance in its judicial branch. Each of the 85 Russian Regions has the right to establish regional constitutional courts or chartered courts (“ustavnoi sud”). These regional constitutional courts are called constitutional courts in the regions that have the status of republic, while they are called chartered courts in the other regions. At the moment, there are 17 such courts (previously there were 18, but in 2014 the Charter Court of Chelyabinsk Region was liquidated). But these courts are not in a hierarchical dependence to the federal Constitutional Court.
The functioning and competence of the Constitutional Court are regulated by the Law on the Constitutional Court of the Russian Federation, which provides for a court with 19 judges appointed by the Federation Council (upper chamber of the Russian parliament). A plenary session rules on constitutional control, disputes concerning competence of governmental agencies, impeachment of the president of Russia and legislative initiatives, and any other issues competently referred to it.
The Constitutional Court is not entitled to pick on its own initiative cases for review rather an application (request) is required by any one of the following authorities: the Russian president, the federal government, the State Duma (or one fifth of the deputies), the Federation Council (or one fifth of the deputies), the Supreme Court, the Federal Government, or a regional legislative or executive body.
In its constitutional control the Constitutional Court reviews laws or regulations in respect to both formal requirements and material norms. The court strives to uphold the principles of the separation of powers between the legislative, executive and judicial branches of government, and adherence to the constitutional principles of distribution of competence between state organs. The scope of the Constitutional Court is limited to consideration of matters of law and it refrains from an examination of the actual facts and circumstances of a case whenever such activity falls within the competence of another court or another authority.
Any federal court (without regard to level of court or position in the court hierarchy) may request the Constitutional Court to rule on the constitutionality of a law when the law is relevant to a case in front of that court and the court has reached the conclusion that it might not be in conformity with the Constitution. An interruption in the case, or a stay of execution of the judgment, happens when a reference is made to the Constitutional Court.
An individual may also file with the Constitutional Court a complaint about violation of one’s constitutional rights and freedoms by way of a court which has applied an allegedly unconstitutional law in a particular case concerning that individual. Class actions by groups of citizen is also permissible. In such cases the Court rules on the constitutionality of a particular law or regulation which is identified in the complaint. Legal persons are not considered to be entitled to file suits with the Constitutional Court but individuals (natural persons) whose interests are represented by a legal entity may do so in matters concerning that legal entity.
Laws and regulations, or their separately identified provisions, deemed unconstitutional by the Court become null and void. Decisions take immediate effect and do not require confirmation by any executive or legislative body. Laws or regulations struck down by the Court cannot be revived by reissuing them. The relevant legislative or executive body is obliged to adapt the laws or regulations (decisions) to confirm with the ruling of the Constitutional Court as well as any other laws and regulations which are based on the unconstitutional law or regulation.
If, in its decision in respect of an individual, another court was guided by law recognized by the Constitutional Court as unconstitutional, this decision may be reviewed.
In addition to adjudicating on disputes, the Constitutional Court may also issue authoritative and binding interpretations of the Constitution. Such constitutional interpretations may only be undertaken in response to a petition by the President of the Russian Federation, the State Duma, the Federation Council, the Federal Government or a regional legislative body.
In normal cases the Court makes decisions by a simple majority vote, but statements of interpretation of the law require a two-thirds majority to take effect.
The law on the Constitutional Court acknowledges that the literal meaning of a provision of law may differ from the interpretation it has been given in an official or legal context. The Constitutional Court must consider these interpretations and legal practice in its resolutions.
European Court of Human Rights
Through its adherence to international treaties, Russia is subject to the jurisdiction of international courts or tribunals. Russia has signed the Vienna Convention on the Law of Treaties according to which the interpretations of a treaty by a relevant international court is binding on its signatories.
In taxation matters there are three international courts of relevance. These are the European Court of Human Rights (ECHR); the Economic Court of CIS; and the newly formed Court of the Eurasian Economic Community, which started operating on 1 January, 2012. The Economic Court of CIS has jurisdiction only in disputes between countries. The European Court of Human Rights (ECHR) is an international court established by the European Convention on Human Rights which Russia signed on 30 March 1998, and ratified in May 1998.
The ECHR is not to be considered as a supreme court over the national judicial system of a signatory country. It can thus not overrule decisions of national courts or state organs. It merely hears cases alleging that an applicant’s human rights under the Convention or its protocols have been violated by a contracting state. A case is admissible to the Court only after exhaustion of all domestic remedies and so long as six months has not elapsed since the last domestic decision. In the event that the Court finds a contracting state has violated a human right under the Convention it may order that state to pay damages and to recompense the applicant for the legal expenses incurred in both the domestic courts and the ECHR.
The Court has no jurisdiction to annul domestic laws or administrative practices which violate the Convention. But the Committee of Ministers of the Council of Europe is charged with supervising the execution of the Court’s judgments and ensuring that contracting states make the required amendments to national law.
The Constitutional Court has consequently in its practice shown that it acknowledges the effect of ECHR decisions over Russian law, as has similar positions can be identified in judgments of the Supreme Commercial Court. Vlasenko reports that by the time of publishing her dissertation in year 2011, the Constitutional Court had referred in more than 90 decisions to the Convention and decisions of ECHR.
The chairman of the Constitutional Court Valery Zorkin has publicly acknowledged the mandatory role of ECHR precedents for the Russian judiciary. However, the chairman has later modified that position by pointing out that there is a limit to the acceptance of the decisions of the ECHR. This is when the decisions would seem to go against the provisions of the very Convention and when they directly affect the national sovereignty of Russia and its fundamental constitutional principles. According to him, Russia has the right to develop protective measures against such decisions.
The Supreme Commercial Court of Russia has also in its information letter of December 1999, stressed to all its subordinate courts that they must consider the precedents of ECHR in their practice. A similar position has been taken by the Supreme Court. Chekmishev in his dissertation confirms that these are not mere declarations of intent and that the Russian courts, especially commercial courts, in practice actively refer to provisions of international treaties, principles of international law and precedents of international courts.
Justice in Russia – A Work in Progress
After this description of the Russian judicial system, it is perhaps appropriate to mention some of the structural problems inherent in it. The present author believes the main problems are: (i) the excessively formal approach of judges with respect to evidence and motivation of the claims; (ii) an inadequate knowledge of market economy mechanisms, which hamper judges’ ability to apply the laws; and (iii) corruption. With regard to the second point, it should be remembered that Russia started, at the beginning of the 1990s, to make the transition to a democratic market economy by dismantling the Soviet system with its communist-inspired laws and practices. This has meant a need to undertake an almost total revamp of the laws and naturally judges and all other participants of the legal system have been subjected to a steep learning curve. Corruption, though not universal in the Russian courts, remains a major barrier to the impartial administration of justice.
These problems are partially off-set by the speed with which the Russian court system works compared with what is customary in Europe. A commercial trial court must normally hear cases within three months of an application (claim) being filed, while the judge may request an extension for up to six months. In practice a case may last longer, but regularly cases are concluded within these time-limits. The deadline for filing an appeal is one month from the date of the judgment, and the appeal must be heard within two months of being filed.
The decision of the court of appeals comes into force immediately after it has been proclaimed. Even when the decision thus becomes enforceable it does not mean that it cannot be further appealed in the system of commercial courts. A cassation appeal can be filed within two months from the decision. The cassation court must hear a case within two months of the filing of the claim.
After the cassation process, a supervisory appeal to the Supreme Commercial Court may potentially be filed within three months. The supervisory appeal process consists of two stages. In the first stage the judge of the Supreme Court decides whether the supervisory appeal can be transferred for review to the court session of the presidium. The judge may also ask for the case file from the court of first instance. The judge examines the supervisory appeal without summoning the parties and their representatives. The period of this review, as a general rule, is two months from the filing of the appeal.
In the second stage the case is considered by the presidium of the Supreme Court with the participation of the parties and their representatives. Judicial decisions appealed in the supervisory procedure may be reversed or amended, if the Supreme Court finds that they violate: a) the rights and freedoms of man and citizen guaranteed by the Constitution of Russia, the generally recognized principles and norms of international law, international treaties of Russia, b) the rights and legitimate interests of an undefined circle of persons or other public interests c) consistency in the application and interpretation of law by the courts. The decision is taken by the presidium within two months. The decision is taken by a simple majority vote and is called a Resolution. By its decision, the Supreme Court may, in particular, take a new decision, uphold one of the decisions of the lower courts, or to refer the case for a new trial in the appellate or cassation court. In general, one must keep in mind that in Russian commercial courts each instance, in addition to appeal, may refer the case back for new consideration in the lower court.
Practice has shown that in Russia it is common for a case to progress from first filing to a hearing in the Supreme Court within eighteen months.
Another positive aspect of the Russian judicial system is that it does not confer a monopoly of representation on lawyers, or lawyers with a special status such as barristers in the English system or advocates in many Continental European jurisdictions. In civil and administrative cases there are no legal rules that would restrict representation to a privileged category of lawyers. A legal entity may be represented by its general manager (CEO) or a person duly authorized by the general manager; neither of whom need be a lawyer. In criminal cases the rule is that the accused is defended by an advocate. The court may also allow a relative or another person to carry the defense alongside an advocate. In a magistrate’s court it is permissible for a laymen to act instead of an advocate.
By Jon Hellevig