The Constitution of the Russian Federation: A Contextual Analysis 9781509935574, 9781509935604, 9781509935598

As reviews of the first edition attest, this book gives a unique critical and contextual insight into the Constitution o

217 93 5MB

English Pages [285] Year 2022

Table of contents :
Preface
Acknowledgements
Contents
Table of Legislation
Table of Conventions, Treaties, etc
Documents from the Communist Party of the Soviet Union
1. Introduction
I. Whose Constitutionality?
II. Overview of Russia
III. The Cultural Approach to Law
IV. Conclusion
Further Reading
2. Historical Background to the 1993 Constitution
I. Introduction
II. Before the Empire
III. The Tsar as Emperor
IV. End of Empire and Establishing Soviet Power
V. Perestroika: A Time of Change
VI. The USSR Disintegrates
VII. Russian Developments
VIII. Conclusion
Further Reading
3. Genesis and Overview of the 1993 Constitution of the Russian Federation: The Constitution’s Creation and General Schema
I. Introduction
II. The Genesis of the 1993 Constitution
III. Overview of the Contents of the Constitution
IV. Conclusion
Further Reading
4. The President
I. Introduction
II. The First Russian Presidency
III. The Presidency Under The 1993 Constitution
IV. Presidential Powers
V. Accountability
VI. Conclusion
Further Reading
5. The Legislature Legislation But Ineffective Representation?
I. Introduction
II. Establishing A Multi-Party Legislature
III. Law-Making by the Federal Assembly
IV. The Federal Assembly's Other Powers
V. Reform Proposals
VI. Conclusion
Further Reading
6. The Government and Other Agencies
I. Introduction
II. Establishing the Government
III. Government Accountability
IV. Regional Government
V. Institutions Supporting Governance
VI. Conclusion
Further Reading
7. Courts and Judges
I. Introduction
II. Russia's Courts
III. Judicial Independence
IV. Conclusion
Further Reading
8. The Treatment of Rights
I. Introduction
II. Establishing Human Rights
III. Russians' Rights
IV. Rights Enforcement
V. Conclusion
Further Reading
9. Conclusion
Index

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THE CONSTITUTION OF THE RUSSIAN FEDERATION As reviews of the first edition attest, this book gives a unique critical and contextual insight into the Constitution of one of the world’s most significant countries. Its first edition was published in 2011, when Dmitrii Medvedev was Russia’s President. Since then there was a regime change in 2012 as Vladimir Putin returned to the presidency, and, significantly, dramatic shifts in constitutionality as Russia pursues a ‘return to traditional values’. The book explores the Constitution’s evolution over its nearly 30 years’ existence, including the significant amendments of 2020. This second edition situates these important changes in the context of Russia’s historical and legal development, as Putin continues to dominate the political scene. It also looks at broader constitutional questions on the interrelation between the main State agencies, the role of the courts, human rights and their enforcement.

A Celebration of Russia: Art, Cultural, and Literature Ivan Turgenev, Russia’s iconic novelist, poet, western orientated and the most liberal constitutionalist among authors, takes a symbolic stance on the central stage (1). His right hand points to the flag and the Double Headed Eagle representing the Russian Coat of Arms. Russia’s literature, art, music and dance are represented in animal form by top left a soaring Firebird (2) and a strolling Fox bottom right. A Russian bear standing for United Russia is climbing up the Kremlin wall. Beneath the prancing horse, the cross of the Russian Orthodox Church is depicted above the battlements of the Kremlin. White Cranes on the upper right and a solitary blackbird complete this set of mythical creatures inspired by Ivan Bilibin’s evocative illustrations of Russian fables. Putachad Artist (1) Turgenev is depicted in the guise of Marc Chagall’s figurative, the Promenade. This reference commemorates Chagall, one of Russia’s most distinguished modernist avant-garde artists. (2) The iconic and enduring theme, Firebird and the Fox, explored shared traditions using two emblematic characters: the Firebird, symbolising transcendent power of art in defiance of circumstance, while the Fox, usually female, represents wit, cleverness, and the artistic endeavours to triumph over adversity.

Constitutional Systems of the World General Editors: Benjamin L Berger, Rosalind Dixon, Andrew Harding, Heinz Klug, and Peter Leyland In the era of globalisation, issues of constitutional law and good governance are being seen increasingly as vital issues in all types of society. Since the end of the Cold War, there have been dramatic developments in democratic and legal reform, and post-conflict societies are also in the throes of reconstructing their governance systems. Even societies already firmly based on constitutional governance and the rule of law have undergone constitutional change and experimentation with new forms of governance; and their constitutional systems are increasingly subjected to comparative analysis and transplantation. Constitutional texts for practically every country in the world are now easily available on the internet. However, texts which enable one to understand the true context, purposes, interpretation and incidents of a constitutional system are much harder to locate, and are often extremely detailed and descriptive. This series seeks to provide scholars and students with accessible introductions to the constitutional systems of the world, supplying both a road map for the novice and, at the same time, a deeper understanding of the key historical, political and legal events which have shaped the constitutional landscape of each country. Each book in this series deals with a single country, or a group of countries with a common constitutional history, and each author is an expert in their field. Published volumes The Constitution of the United Kingdom; The Constitution of the United States; The Constitution of Vietnam; The Constitution of South Africa; The Constitution of Japan; The Constitution of Germany; The Constitution of Finland; The Constitution of Australia; The Constitution of the Republic of Austria; The Constitution of the Russian Federation; The Constitutional System of Thailand; The Constitution of Malaysia; The Constitution of China; The Constitution of Indonesia; The Constitution of France; The Constitution of Spain; The Constitution of Mexico; The Constitution of Israel; The Constitutional Systems of the Commonwealth Caribbean; The Constitution of Canada; The Constitution of Singapore; The Constitution of Belgium; The Constitution of Taiwan; The Constitution of Romania; The Constitutional Systems of the Independent Central Asian States; The Constitution of India; The Constitution of Pakistan; The Constitution of Ireland; The Constitution of Brazil; The Constitution of Myanmar; The Constitution of Czechia; The Constitution of New Zealand; The Constitution of Italy Link to series website www.bloomsbury.com/uk/series/ constitutional-systems-of-the-world/

iv

The Constitution of the Russian Federation A Contextual Analysis Second Edition

Jane Henderson

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Copyright © Jane Henderson, 2022 Jane Henderson has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/ version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Henderson, Jane E. (Jane Elisabeth), 1952- author. Title: The Constitution of the Russian Federation : a contextual analysis / Jane Henderson. Description: Second edition. | Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing, 2022. | Series: Constitutional systems of the world | Includes bibliographical references and index. Identifiers: LCCN 2022015216 (print) | LCCN 2022015217 (ebook) | ISBN 9781509935574 (hardback) | ISBN 9781509961917 (paperback) | ISBN 9781509935598 (pdf) | ISBN 9781509935581 (Epub) Subjects: LCSH: Constitutional law—Russia (Federation) | Constitutional history—Russia ︠ ︡ ︠ a︡ (1993) (Federation) | Russia (Federation). Konstitutsii Classification: LCC KLB2070 .H46 2022 (print) | LCC KLB2070 (ebook) | DDC 342.4702—dc23/eng/20220526 LC record available at https://lccn.loc.gov/2022015216 LC ebook record available at https://lccn.loc.gov/2022015217 ISBN: HB: 978-1-50993-557-4 ePDF: 978-1-50993-559-8 ePub: 978-1-50993-558-1 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Preface

A

t the beginning of March 2022, the text of this book was about to be sent to print when Russian President Vladimir Putin ordered the completely unjustified invasion of Ukraine. The series editors kindly offered me the opportunity to delay publication in order to incorporate any changes arising from that event. I declined, explaining that my analysis of Russia’s Constitution in context has not changed in the light of the invasion of Ukraine. If anything, in my view, the sooner the book was published the better, so that readers will have the opportunity to see the historic drivers behind Putin’s actions, appreciate what has influenced the content of Russia’s Constitution, how it is being used and, in particular, be aware of the reality for Russian citizens of recent changes in legislation which severely restrict their right to protest. The first edition of this book was published in 2011 when Dmitrii Medvedev was President. Before 2020, there were few important amendments, but significantly the social and cultural context within which the Constitution operated changed under Vladimir Putin’s presidency. It became clear that constitutionality in Russia was not necessarily following the initially assumed ‘liberal democratic’ path. This received further emphasis in 2020. Putin announced reform plans in January 2020 in his annual Presidential Address to the Russian Legislature.1 His stated aim was to support Russia’s sovereignty with ‘changes that will directly guarantee the priority of the Russian Constitution in our legal framework’. Amongst these are that State office holders cannot have foreign citizenship and that the Legislature should have more responsibility for forming the Government, although ‘Russia must remain a strong presidential republic’. The fact that Putin proposed reforms was not a complete shock. At a press conference in December 2019, he had floated consideration of changing Article 81 of the Constitution to forbid presidential candidates

1 ‘Presidential Address to the Federal Assembly’, available in English translation at en.kremlin.ru/events/president/news/62582. Quotes are taken from this. See also E Teague, ‘Russia’s Constitutional Reforms of 2020’ (2020) 5 Russian Politics 301.

viii Preface from serving more than two terms absolutely. However, the scale of reforms and speed of implementation are breathtaking. On 16 January 2020, a ‘working group’ of 75 ‘politicians, legislators, scholars and public figures’ was established to discuss proposals. Draft legislation was submitted on 20 January to the first legislative chamber, the State Duma. On 23 January, it was unanimously approved at first reading. The main surprise came at the second Duma reading in March. The 83-year-old former cosmonaut and Duma deputy Valentina Tereshkova put forward an apparently extemporaneous proposal to amend Article 81, discounting existing presidential terms served from the absolute limitation of two presidential terms. This was approved and allows Putin (or Medvedev, the only other living former Russian President) to run again for office for up to two more terms. The chapters in this volume discuss particular reforms in the appropriate sections. However, assessment of their overall significance may not be possible until President Putin nears the end of his current term of office in 2024. The 2020 reforms allow various options for him to retain control after that: re-election as President; becoming Prime Minister (again) but with broader powers; becoming a ‘Senator-for-life’; or chairing a strengthened State Council as some sort of ‘Father of the Nation’, as in Kazakhstan, where Nursultan Nazarbayev stepped down from the presidency in 2019 to become Chair of an enhanced Security Council.2 A note on terminology: one way or another, law centres around words. Understanding the legal meaning of words is an important part of any lawyer’s skill; when the relevant laws are written in another language, this clearly adds a layer of complexity.3 This book is written for the Englishlanguage reader and generally cites English-language texts. However, it must be borne in mind that translation – and particularly legal translation – is a craft and not a science. The use of familiar vocabulary may mislead the reader into believing the concept translated is the same. For example, ‘rule of law’ is used to translate the adjective pravovoe in the Russian phrase pravovoe gosudarstvo, ‘rule-of-law state’, as used in Article 1(1) of the 1993 Constitution. The usual translation into Russian for ‘rule of law’ is ‘verkhovenstvo prava’, ‘supremacy of law’, which is used, for example, in the Russian version of the European Convention on Human Rights (ECHR). This can be contrasted with ‘verkhovenstvo zakona’ 2 See M Snegovaya, ‘Brezhnev, a ne Elbasy [Brezhnev, not Elbasy]’ Novaya Gazeta, 17 January 2020. 3 See the hugely informative discussion in WE Butler, Russian Law and Legal Institutions, 3rd edn (Clark, NJ, Talbot Publishing, 2021) ch 2, ‘Russian Law and Legal Translation’.

Preface ix or ‘gospodstvo zakona’, both of which might more literally be put into English as ‘supremacy of legislation’, which has quite a different connotation. In her helpful discussion of the Russian approach to ‘rule of law’ – and consideration of whether for Russia, ‘rule by law’ would be a more appropriate phrase – Kathryn Hendley notes that in contrast to the perestroika ideal of pravovoe gosudarstvo: ‘For Putin, however, the goal is gospodstvo zakona.’4 The root of the dichotomy is the fact that Russian, like many Continental European languages, has two words for ‘law’: pravo and zakon.5 English does not have this duality, although we speak of both ‘jurists’ and ‘lawyers’. The word pravo is cognate to the Russian word pravda, meaning truth. Pravda may be familiar as the (somewhat ironic) name of the Soviet Communist Party newspaper. Pravo means law in the general sense, associated with rights, like the Latin ius. The alternative Russian word for law is zakon. As with the Latin lex, this signifies enacted legislation. The Soviet system favoured legality (zakonnost’) – having written rules, but that was a long way from ‘rule of law’.6 Gorbachev’s perestroika aspiration of a State based on pravo rather than zakon was transformational (see Chapter 2, section V.A), but did not necessarily embed an English-language concept of ‘rule of law’ into Russian, even if it were sufficiently clear what that concept signifies.7 Zakon is the name given to legislation adopted by the legislative (representative) body, either at federal level or in a federal subject. However, zakon is not the only Russian word for types of legislation (normative legal acts – normativnye pravovye akty in Russian). There are many others, the most common being ukaz, postanovlenie and rasporazhenie, which are usually translated as edict, decree and regulation, respectively. In his aspiration to translate consistently on a one-for-one basis, William E Butler identified more than 40 different Russian types of legislation and ‘long since exhausted the repertoire of English-language equivalents’.8 The difference between zakon in its specific sense of highest-level legislation and the more general ‘normative legal acts’ impacts rules on their publication (see Chapter 5, section III.C.iv).

4 K Hendley, Everyday Law in Russia (Ithaca, Cornell University Press, 2017) 229. 5 See the explanations in ibid 20 and 50. 6 See the discussion in T Borisova, ‘The Institutional Resilience of Russian Law through 1905–1917 Revolutions’ (2017) 5(4) Russian Law Journal 108. 7 Hendley, above n 4, at 225ff. 8 WE Butler, ‘Techniques of Law Reform in the Soviet Union’ (1978) 31 Current Legal Problems 209.

x Preface There are even two words in Russian for ‘Russian’. The adjective russkii/russkaia means Russian (in the masculine and feminine forms) in an ethnic sense – so, for example, Russian language is russkii iazyk – whereas rossiskii/rossiskaia means pertaining to the Russian State. Thus, an ethnically Tatar woman can be a Russian citizen, rossiskaia grazhdanka, but is not russkaia Russian. Even with apparently straightforward translation, readers should not assume that the term in English carries the same connotation as the original Russian. Phrases like ‘democratically elected’ or ‘political party’ may signify something rather different in Russia, with their meanings conditional on the historical context of their use. The current Russian Constitution came into force on 25 December 1993, the day on which the official results were published of the 12 December national plebiscite to adopt it. It replaced the 1978 Russian Soviet Federated Socialist Republic (RSFSR) Constitution, which had been adopted when Russia one of the 15 constituent members of the Union of Soviet Socialist Republics (USSR). All versions of the 1993 Constitution are available in Russian online.9 English translations of the current version are available in Law and Legal System in the Russian Federation10 and Russian Law and Legal Institutions.11 Here the author’s translations are used, unless otherwise indicated. Cyrillic has been transliterated according to the American Library Association Library of Congress convention, including soft sign and hard sign. Following Russia’s unjustified and illegal invasion of Ukraine, on 15 March 2022 Russia began the procedure to withdraw from the Council of Europe. The process is protracted. The European Convention on Human Rights will remain in force in Russia for six months after such withdrawal. On 22 March, the European Court of Human Rights ruled that it would accept applications against Russia for rights violations occurring before 16 September 2022.12 Please bear these changes in mind when reading Chapter 8. Otherwise, the law is stated as at September 2021. 9 See constitution.garant.ru. 10 PB Maggs, O Schwartz and W Burnham, Law and Legal System in the Russian Federation, 7th edn (Huntington, NY, Juris Publishing, 2020). 11 Butler, above n 3. 12 ‘Russians will soon lose access to the European Court of Human Rights. Here’s what you need to know.’ Meduza 29 March 2022 available at meduza.io/en/cards/russians-willsoon-lose-access-to-the-european-court-of-human-rights-here-s-what-you-need-to-know.

Acknowledgements

I

am very grateful for the support I received while writing this second edition. Helpful colleagues at King’s College London included Tanya Aplin, Lana Howarth, Catharine MacMillan and Colm McGrath; in my wider circle of academic contacts, I particularly highlight Tatiana Borisova, Bill Bowring, Bill Butler, Kathryn Hendley, Marina Belykh (Lomovtseva), Ben Noble, and Elizabeth Teague*. It is pleasing that the series editors, Professors Andrew Harding and Peter Leyland, recognised that the time was right to put Russian constitutionalism back in the spotlight. Their comments on a first draft were very helpful. I remain responsible for errors. The staff at Hart Publishing/Bloomsbury have been immensely supportive, particularly Sasha Jawed and Sinead Moloney. My family as ever sustain me and give me hope for the future, particularly in the shape of my much-loved grandchildren, Elena and Kell.

* Sadly Elizabeth died before this book’s publication. She is greatly missed.

xii

Contents Preface��vii Acknowledgements�� xi Table of Legislation��xvii Table of Conventions, Treaties etc �� xxxi Documents from the Communist Party of the Soviet Union�� xxxi 1. Introduction��1 I. Whose Constitutionality?��1 II. Overview of Russia��3 III. The Cultural Approach to Law��5 IV. Conclusion��9 2. Historical Background to the 1993 Constitution��11 I. Introduction��11 II. Before the Empire��11 A. The ‘Period of the Independent Principalities’��11 B. The Mongol Invasion: Autocracy Takes Root��13 C. Centralisation��14 III. The Tsar as Emperor��16 A. The Romanovs and the Growth of Absolutism��16 B. Failed Reform under Anna��19 C. Enlightenment Ideas But Not Reality?: Catherine II��19 D. Reaction and Reform Proposals��21 E. Bureaucracy and Private Law Reform��22 F. Serf Emancipation and Legal System Reform��23 G. Reaction and Repression��24 H. Reluctant Reform: 1905–06��25 I. The Imperial Legacy��27 IV. End of Empire and Establishing Soviet Power��29 A. Creating the Soviet State��29 B. Marxist Theory on State and Law��31 C. The Function of a Soviet Constitution��33 D. The Soviet Law on Individual Rights��35 V. Perestroika: A Time of Change��38 VI. The USSR Disintegrates��43 A. The End of the Soviet Experiment��43

xiv Contents VII. Russian Developments��45 A. Yel’tsin Comes to the Fore��45 B. Russia’s Declaration of State Sovereignty, 12 June 1990��45 C. Independent Russia��48 VIII. Conclusion��49 3. Genesis and Overview of the 1993 Constitution of the Russian Federation: The Constitution’s Creation and General Schema��51 I. Introduction��51 II. The Genesis of the 1993 Constitution��52 A. Draftsmen Get to Work��52 B. Dénouement��58 III. Overview of the Contents of the Constitution��61 A. Introduction��61 B. Structure��62 i. Preamble��62 ii. Section I: Chapters 1 to 9 – Order of Exposition��62 iii. Section II: Concluding and Transitional Provisions��63 C. Constitutional Amendment��64 D. Chapter 1: Foundations of the Constitutional System��70 E. Chapter 2: Individual Rights in the Constitution��75 F. Chapters 3 and 8: Federal Russia��75 i. Russia’s Federal Heritage��75 ii. Federative Relations in Independent Russia��77 G. Chapters 4–7: The Federal Agencies of State Power��80 IV. Conclusion��80 4. The President��82 I. Introduction��82 II. The First Russian Presidency��82 III. The Presidency under the 1993 Constitution��86 A. Legislative Provisions��86 B. Requirements for Office��89 C. Term of Office��91 IV. Presidential Powers��95 A. Introduction��95

Contents xv B. Defining Fundamental Directions of Activity��95 C. Formation of the Executive��99 D. Supervision and Oversight�� 107 E. Implied and Additional Powers�� 109 V. Accountability�� 110 A. Election�� 110 B. Immunity�� 112 C. Impeachment�� 113 VI. Conclusion�� 114 5. The Legislature: Legislation But Ineffective Representation?�� 117 I. Introduction�� 117 II. Establishing a Multi-party Legislature�� 117 A. Perestroika Reforms�� 117 B. Current Representation�� 118 i. Formation of the Duma�� 120 ii. Formation of the Federation Council�� 123 C. Political Parties in Russia�� 126 D. Regional Legislatures�� 129 III. Law-Making by the Federal Assembly�� 130 IV. The Federal Assembly’s Other Powers�� 135 V. Reform Proposals�� 142 VI. Conclusion�� 144 6. The Government and Other Agencies�� 145 I. Introduction�� 145 II. Establishing the Government�� 145 III. Government Accountability�� 151 IV. Regional Government�� 153 V. Institutions Supporting Governance�� 160 A. The State Council�� 160 B. The Public Chamber and Other Social Oversight Agencies�� 164 VI. Conclusion�� 170 7. Courts and Judges�� 172 I. Introduction�� 172 II. Russia’s Courts�� 172 A. Constitutional Provisions on Courts�� 172

xvi Contents B. Constitutional Court Control�� 178 i. Abstract Review (Article 125(2))�� 183 ii. Resolution of Separation of Power Issues (Article 125(3))�� 184 iii. Reference from a Specific Case (Article 125(4))�� 184 iv. Authoritative Interpretation of the Constitution (Article 125(5))�� 185 v. Presidential Impeachment Proceedings (Article 125(7))�� 187 vi. ‘Other Powers’�� 188 C. Non-federal Courts�� 190 III. Judicial Independence�� 192 IV. Conclusion�� 204 8. The Treatment of Rights�� 206 I. Introduction�� 206 II. Establishing Human Rights�� 206 III. Russians’ Rights�� 209 A. The Individual versus Society�� 211 B. The Politicisation of Rights�� 213 i. The Right to Protest�� 213 ii. Extremist Activity�� 217 iii. Propagandising ‘Non-traditional Sexual Relations’�� 217 iv. Foreign Agents�� 218 v. Insulting Religious Feelings�� 219 vi. Preserving Memory�� 220 vii. Undesirable Organisations�� 221 C. The 2020 Constitutional Amendments�� 221 IV. Rights Enforcement�� 223 A. The Procuracy�� 224 B. The High Commissioner for Human Rights (Ombudsman)�� 227 C. Citizens’ Appeals (Administrative Appeal)�� 228 D. The European Court of Human Rights (ECtHR)�� 229 V. Conclusion�� 238 9. Conclusion�� 240 Index�� 243

Table of Legislation Russia Pre-Revolutionary 11th century Russkaia Pravda��12 Early 13th century Code of Genghis Khan (the Yasa)��13 1497 Sudebnik��15 1550 Sudebnik��15 1649 Sobornoe Ulozhenie �� 16, 23 1785 Charter of the Nobility��21 1818 Constitution for the Kingdom of Poland ��28 1832 Fundamental Laws��26 Art 4��26 1861 Tsar’s Manifesto on The Abolition of Serfdom��23 1905 Manifesto, 6 August��25 1905 Manifesto, 17 October��25 Art 1��25 Arts 2, 3��26 1906 Fundamental Law of the Russian Empire, 23 April�� 26, 49 Art 7��26 Soviet Russia (1917–1991) 1918 RSFSR Constitution, 10 July�� 27, 29, 30, 34, 35, 58 Part One – Declaration of the Rights of the Working and Exploited People Art 9��35 Art 18��32 Art 23��35 Art 49��34 Art 50��35 1925 RSFSR Constitution, 11 May��29 1937 RSFSR Constitution, 21 January ��29 1960 RSFSR Criminal Code, 27 October��97

xviii Table of Legislation 1978 RSFSR Constitution, 12 April��29, 48, 51, 60, 63, 77, 82, 117, 118, 180, 182, 193, 207, 241 Ch 5�� 207 Art 6�� 118 Art 121(6) ��58 Arts 121–10�� 113 Art 165–1�� 182 1990 RSFSR Declaration of State Sovereignty, 12 June��45, 46, 55, 72 Art 1��46 Art 5��46 Art 10��46 Art 11��47 Art 13��46 Art 15��46 1990 RSFSR Law on the Referendum, 16 October�� 53, 59 1991 Conception of Judicial Reform��172, 224 1991 RSFSR Law on the Constitutional Court of the RSFSR, 12 July�� 182 Art 1(3) �� 182 Art 69(14) �� 181 1991 RSFSR Law on the President of the RSFSR, 24 April��90 Art 1��90 1991 RSFSR Russian Declaration of the Rights of Man and Citizen, 22 November��48, 56, 75, 207, 209 Preamble�� 207 Art 1�� 207 Art 40�� 227 Arts 49–51�� 175 Art 54�� 175 1991 RSFSR Supreme Soviet Decree on the Denunciation of the Treaty of the Formation of the USSR, 12 December��47 Russian Federation (1992–present) 1992 Law on the Status of Judges, 26 June��191, 193 1992 Russian Treaty of the Federation, 31 March �� 48, 52, 55, 63, 64 Preamble��78 Art III(1) ��78 1992 Treaty with the autonomous region and the autonomous national areas, 31 March ��78

Table of Legislation xix 1992 Treaty with the sovereign republics within the Russian Federation, 31 March��78 Preamble��78 Art III(1) ��78 1992 Treaty with the territories, regions, and cities of Moscow and St Petersburg, 31 March��78 1993 Constitution, 12 December�� 1, 2, 3, 9, 11, 27, 46, 48, 49, 51, 52, 54, 55, 61, 77, 78, 118, 207, 227, 238 Preamble�� 62, 67 Section I��62 Ch 1 Foundations of the Constitutional System�� 61, 62, 65, 67, 70 Art 1�� 48, 71 Art 2��71, 208 Art 3��71 Art 3(2) �� 113 Art 3(3) �� 238 Art 4��71 Art 5��71 Art 5(1) ��4 Art 5(4) ��71 Art 6��71, 104 Art 7��71, 208 Arts 8, 9��71 Art 10�� 72, 88 Art 10(4) ��90 Art 11��72, 104 Art 12��72 Art 13�� 73, 74 Art 13(2) ��73 Art 14��73 Art 15��75, 237 Art 15(1) ��74, 130 Art 15(3) ��74, 133 Art 15(4) ��74, 186, 230, 234 Art 16��75 Ch 2 Rights and Freedoms of Man and Citizen�� 61, 62, 63, 65, 67, 75

xx Table of Legislation Art 17(2) �� 208 Art 20�� 231 Art 22�� 112 Art 23�� 112 Art 28�� 213 Art 29�� 213 Art 30�� 213 Art 31��209, 213, 216 Art 32��99 Art 32(1) �� 209 Art 32(3) �� 234 Art 39��71 Art 40(3)�� 120 Art 40(3) �� 120 Art 41(1)�� 119 Art 46(3)�� 230 Arts 49–51�� 175 Art 54�� 4, 175, 217 Art 55(3)�� 208 Art 56�� 134 Art 61�� 209 Art 62(3)�� 209 Ch 3 The Federated Structure��62, 63, 67, 75 Art 65�� 65, 109, 133 Art 65(2) �� 134 Art 66�� 129 Art 66(5) �� 134 Art 67��80, 105, 221, 222 Art 67(1) �� 73, 79, 80 Art 67(2)�� 222 Art 67(2.1)��79 Art 67(3) �� 222 Art 67(4) ��208, 222 Art 68(1)�� 222 Art 69(1), (2) �� 210 Art 69(3) �� 80, 210, 211 Art 70�� 134 Art 71��79, 130 Art 71(d) ��80 Art 71(r) �� 210

Table of Legislation xxi Art 72�� 79, 80, 130, 208 Art 72(g) �� 223 Art 73��79 Art 74(2) ��62, 188 Art 75��71, 208 Art 76�� 130 Art 76(1)�� 130 Art 77�� 154 Art 77(2)�� 154 Art 77(3)��209, 210 Art 78(2)�� 154 Art 78(2)��154, 210 Art 79�� 74, 80, 237 Ch 4 The President of the RF��62, 63, 67, 80 Art 80�� 88, 98, 104 Art 80(2) �� 80, 88, 109, 110 Art 80(3) ��95 Art 81�� 68, 93 Art 81(2) ��89, 210 Art 81(3) �� 66, 91, 93 Art 82��88 Art 83��95, 106 Art 83(a) ��149, 150 Art 83(b) �� 147 Art 83(c) �� 148 Art 83(e) �� 98, 99, 147 Art 83(f) �� 162, 195, 196, 203 Art 83(g) ��98 Art 83(h) ��98 Art 83(i) �� 100 Art 83(i) �� 100 Art 83(j) �� 102 Art 83(l) ��98 Art 84��95, 134 Art 85��95, 109 Art 85(2) �� 107 Art 86�� 95, 98 Art 87�� 95, 98, 142 Art 87(3) �� 134 Art 88�� 95, 98, 134, 142

xxii Table of Legislation Art 89��95 Art 89(c) �� 110 Art 90�� 95, 97 Art 91�� 112 Art 92��91 Art 92(2) �� 151 Art 92(3) ��89 Art 93��113, 113 Ch 5 The Federal Assembly�� 61, 62, 63, 67, 80 Art 94��135, 144 Art 95(2)�� 123 Art 95(2)(b), (c) �� 106 Art 95(4) ��119, 210 Art 96�� 119 Art 97�� 119 Art 97(1) �� 210 Art 97(3) �� 146 Art 102�� 142 Art 103�� 139 Art 103(e) ��134, 227 Art 103(f)�� 210 Art 104��83 Art 104(1)�� 96, 130, 188 Art 104(3)�� 130 Art 104(4) �� 210 Art 105(4)�� 132 Art 106��132, 135 Art 107��118, 187 Art 107(1)�� 132 Art 108�� 187 Art 108(2). �� 134 Art 109��114, 149 Art 109(3)–(5) �� 152 Ch 6 The Government of the RF�� 62, 63, 67, 80, 145 Art 110��82, 145 Art 111�� 149 Art 111(2)�� 150 Art 111(4)�� 150

Table of Legislation xxiii Art 112�� 147 Art 112(1) �� 147 Art 112(3) �� 147 Art 112(4) �� 147 Art 113�� 151 Art 114��139, 148 Art 114(2) �� 86, 134, 145 Art 115(1) �� 148 Art 115(3) �� 107 Art 117��149, 151 Art 117(4)�� 152 Art 117(6)�� 152 Ch 7 Judicial Power and the Procuracy�� 62, 63, 66, 67, 80, 173, 178 Art 118(1)�� 173 Art 118(2)�� 173 Art 118(3) ��134, 173, 174 Art 119��193, 210 Art 120�� 193 Art 120(1) �� 193 Art 121��193, 196 Art 121(5) ��83 Art 121(12)��83 Art 122�� 193 Art 123�� 174 Art 124�� 175 Art 125��175, 183 Art 125(1) �� 190 Art 125(2) �� 183 Art 125 (2)(a), (b)�� 184 Art 125(3)�� 184 Art 125(4) �� 184 Art 125(5) �� 185, 186, 187, 237 Art 125(5)(b)�� 186 Art 125(5)(c)�� 187 Art 125(6) �� 187 Art 125(7)�� 187 Art 125(8)�� 188 Art 126��134, 175 Art 127�� 175

xxiv Table of Legislation Art 128��134, 194 Art 129��107, 178, 225 Art 129(2)�� 210 Ch 8 Local Self-Government�� 62, 63, 67, 73, 75 Art 131��80 Art 132�� 73, 80, 108 Art 132(2)��73 Art 133�� 163 Ch 9 Constitutional Amendments and Revision�� 61, 62, 63, 65, 67 Art 135�� 134 Art 135(1)��65 Art 135(3)��65 Art 137�� 134 Section II��63 Concluding and Transitional Provisions Provision 7�� 120 Provision 9��64 1993 Law of the Russian Federation on Appealing to a Court Actions and Decisions Violating the Rights and Freedoms of Citizens, 27 April ��228, 229 1993 Presidential Decree on special procedure for governing the country, 20 March��86 1993 Presidential Edict on elections to the Federation Council, 11 October��59 1993 Presidential Edict on campaigning for the election, 29 October��59 1993 Presidential Edict 1400 on the Step–by–step Constitutional Reform in the Russian Federation, 21 September��58 Preamble��58 1994 Civil Code, 30 November �� 130 1994 Federal Constitutional Law on the Constitutional Court of the Russian Federation, 21 July�� 9, 173, 189, 190, 203 Art 3��75 Art 18�� 203 1995 Federal Constitutional Law on the Highest Arbitrazh Court, 28 April�� 173 1995 Federal Law on Presidential Elections, 17 May��89, 133

Table of Legislation xxv 1994 Federal Law on Procedure for Publication and Entry into Force of Legislation of the Federal Assembly, 14 June�� 133 1994 Federal Law on the Status of a Member of the Federation Council and Deputy of the Duma, 8 May Art 7(1).�� 136 Art 7(1)(b) �� 136 Art 7(1)(f)–(h) �� 137 Art 14�� 137 1995 Federal Law on Procedure for Formation of the Federation Council (requiring election of governors by local suffrage), 5 December��123, 154 1995 Federal Law on the Procuracy, 17 November Art 35(6)�� 188 Art 129�� 225 Art 129(1)–(3), (6) �� 225 1996 Criminal Code, 13 June �� 97, 220, 231 Art 14 �� 214 Art 148 �� 219 Arts 131–133 �� 217 Art 213 �� 219 Art 212.1 �� 214 Art 351.1(3) �� 221 1996 Federal Constitutional Law on the Judicial System, 31 December��190, 124, 173, 174, 190, 194 1997 Federal Constitutional Law on the Plenipotentiary for Human Rights, 26 February��175, 209, 223 Art 32(2) �� 138 1997 Federal Law on Freedom of Conscience and Religious Associations, 26 September��73 Art 114(2)�� 145 1998 Duma Reglament, 22 January Art 40(3) �� 119 Art 41(3) �� 119 1998 Federal Law Ratifying the European Convention on Human Rights, 30 March�� 186, 234, 235, 236 Art 1�� 235 1998 On Justice of the Peace Courts, 21 December �� 173 1999 Edict on the Guarantees for a Former Russian President, and Members of his Family, 31 December�� 136

xxvi Table of Legislation 1999 Federal Law on Court Financing, 10 February�� 197 1999 Federal Law on the Basis of the Organisation of Power in Subjects of the Federation, 6 October�� 129 1999 Federal Law on Presidential Elections, 31 December��87, 154 1999 Federal law on the State Policy of the Russian Federation in Relation to Compatriots Abroad, 24 May 1999 No 99-FZ, as amended on 23 July 2010�� 211 1999 Federal Law ‘On General Principles of Organisation of Legislative (Representative) and Executive Agencies of State Power of Subjects of the Russian Federation’, October��154, 155, 156 Art 18�� 154 Art 19(1)(b), (d)�� 159 Art 29�� 159 Art 29(4)�� 158 2000 Federal Law on Formation of the Federation Council of the Federal Assembly of the Russian Federation, 5 August�� 160 2000 Federal Law on Procedures for the Dismissal of Regional Executives and Legislatures, 29 July�� 159 2000 Presidential Edict on the State Council, 1 September�� 160 2001 Code of Administrative Violations, 30 December��214, 220 Art 6.21�� 218 2001 Code of Criminal Procedure, 18 December ��64, 714 2001 Federal Constitutional Law on Declaration of an Extraordinary Situation, 30 May��98 2001 Federal Constitutional Law on Procedure for Admission to the Russian Federation and Formation within it of a New Federation Subject, 17 December�� 191 2001 Federal Law on Guarantees for a President of the Russian Federation, who has Ceased his Powers, and for the Members of his Family, 12 February�� 87, 88, 112, 113 2001 Federal Law on Political Parties, 11 July ��90, 113 Art 9�� 127 Art 10(4)�� 127 2001 Land Code, 25 October 722002 Federal Constitutional Law on Establishing a Military Situation, 30 January��98 2002 Federal Law on Judges’ Community Agencies, 14 March�� 194 2002 Federation Council Reglament, 30 January�� 130 Art 40(3) �� 119 Art 41(3) �� 119

Table of Legislation xxvii 2002 Federal Law on Extremist Activity�� 217 2003 Federal Law on Agricultural Land Transactions, January ��72 2003 Federal law ‘On the System of State Service�� 146 2004 Judicial Ethics Code, 2 December�� 202 2004 Federal Law on Rallies, Meetings, Demonstrations, Marches and Picketing, 19 June�� 213 2004 Presidential Edict on the appointment procedure for governors, 27 December�� 138 2005 Federal Law On Parliamentary Investigation by the Federal Assembly of the Russian Federation, 27 December�� 140 Art 4(1)�� 138 Art 4(2) �� 139 2005 Federal Law on the Public Chamber of the Russian Federation, 4 April�� 165 2007 Presidential Edict on amendments to the Regulations on the State Council, 23 February Art 1(c)�� 160 2011 Federal Constitutional Law on Courts of General Jurisdiction��173, 174 2012 Amendments to Law on Rallies, 8 June�� 213 2012 Federal Law on Amendments Concerning the Activities of a Foreign Agent, 20 July�� 218 2013 Amendment to the Code on Administrative Violations Art 5.26�� 220 2013 Federal Law on the Accounting Chamber, 5 April�� Arts 7, 8�� 135 2013 Federal Law on Parliamentary Oversight, 7 May��138, 139 Art 5�� 139 2013 Amendment to the Federal Law on the Public Chamber (changing formation procedure), 23 July�� 166 2014 Federal Constitutional Law on the Supreme Court of the Russian Federation, 5 February�� 173 Art 3�� 176 Art 6(3)�� 176 Art 7�� 176 2014 Federal Law on the Fundamentals of Social Oversight in the RF, 21 July�� 167 Art 3(1)�� 167 Art 5(1)(1)�� 168 Art 13�� 168

xxviii Table of Legislation 2014 Amendment to the Criminal Code (penalising repeated unsanctioned meetings), 21 July Art 212.1�� 214 2014 Amendment to the Code of Administrative Violations (increasing penalties for unsanctioned meetings), 21 July �� 214 2015 Code of Administrative Procedure, 8 March�� 229 2017 Amendment to Foreign Agent Law, 25 November�� 219 2018 Amendment to Law on Rallies, 27 December�� 216 2019 Amendment to Foreign Agent Law, 2 December�� 219 2020 Amendments to the Constitution RF�� 3, 51, 62, 73, 75, 81, 82, 94, 95, 96, 97, 99, 100, 106, 108, 110, 113, 115, 117, 118, 119, 123, 132, 144, 146, 147, 148, 150, 151, 152, 195, 203, 206, 208, 209, 240 Art 125(5-1)(a)��97 2020 Federal Constitutional Law on the Government, 6 November�� 146 Art 4(2)�� 146 Art 5(8)�� 148 Art 6�� 147 Art 11(1)�� 148 Art 27�� 151 2020 Law on the State Council�� 80, 162, 164 Art 1�� 163 Art 2�� 163 Art 2(1) �� 163 Art 3�� 163 Art 11�� 163 Art 12�� 163 2020 Amendment to Foreign Agent Law, 30 December�� 219 USSR and Union Republics other than Russia 1919 Belorussian Soviet Socialist Republic Constitution��29 1919 Ukraine Soviet Socialist Republic Constitution��29 1921 Azerbaidzhan Soviet Socialist Republic Constitution��29 1922 Georgian Soviet Socialist Republic Constitution��29 1922 Khorezm Soviet People’s Republic Constitution��29 1922 Armenian Soviet Socialist Republic Constitution��29 1922 Bukhara Soviet People’s Republic Constitution��29

Table of Legislation xxix 1922 Union Treaty of the USSR, 30 December�� 44, 47 1924 USSR Constitution, 31 January�� 29, 35 Art 43�� 179 1936 USSR Constitution (Stalin Constitution), 5 December�� 29, 30, 33, 37, 35, 192 Ch X��35 Art 126��36 Ch XI Art 135��36 1977 USSR Constitution (Brezhnev Constitution), 7 October �� 4, 29, 33, 36, 37, 39, 42, 63, 100, 126, 173, 179, 192 Art 6�� 40, 43 Art 7�� 43, 55 Art 10��46 Art 29��37 Art 34��37 Art 40��36 Art 47��37 Art 50��37 Art 51�� 37, 43 Art 52��37 Art 58(2)��37, 228 Art 59��37 Art 60��36 Art 66��36 Art 111�� 40, 41 Art 112��41 Art 113�� 130 Art 120��41 Art 121(4)��41 Art 127(7) ��42 Arts 133, 140��30 Art 155�� 192 Art 160�� 174 1987 USSR Law on the Procedure for Appealing to a Court Unlawful Actions of Officials Which Impinge upon the Rights of Citizens, 30 June�� 130 1988 USSR Law on Elections of People’s Deputies of the USSR, 1 December��39

xxx Table of Legislation 1989 USSR Law on Constitutional Supervision in the USSR, 23 December�� 179 Art 4(2)�� 129 Art 5�� 179 Art 21�� 180 1989 USSR Law on the Procedure for Settlement of Collective Labour Disputes�� 133 1990 Lithuanian Soviet Socialist Republic Declaration of Independence, 11 March��45 1990 USSR Law on Secession, 3 April��76 1991 USSR Declaration of the Rights and Freedoms of Man, 5 September�� 56, 75, 174

Table of Conventions, Treaties, etc 1950 European Convention on Human Rights and Fundamental Freedoms, 4 November�� 2, 221 Protocol 6�� 231 1966 UN Covenant on Civil and Political Rights, 16 December�� 206 Optional Protocol�� 207 1966 UN Covenant on Economic, Social and Cultural Rights, 16 December��36, 206 1975 Helsinki Final Act, 1 August��36, 206 1987 Convention for the Prevention of Torture, 26 November�� 230 1991 Minsk Agreement on the Creation of the Commonwealth of Independent States (CIS), 8 December��47 Art 11��47 1991 Alma Ata Declaration, 21 December��47 1994 Council of Europe Framework Convention for the Protection of National Minorities, 10 November�� 210

Documents from the Communist Party of the Soviet Union 1988 CPSU Resolution on Democratisation, 28 June ��39 1988 CPSU Resolution on Legal Reform, 1 July��39

xxxii

1 Introduction Russian Constitutionality? – Overview of Russia and Some Relevant Cultural Aspects

I. WHOSE CONSTITUTIONALITY?

T

he period leading up to the adoption of the 1993 Constitution was a time of turmoil. Before its dissolution at the end of 1991, the Union of Soviet Socialist Republics (USSR) had undergone a period of rapid transformation – perestroika (restructuring) – under the leadership of Mikhail Gorbachev (see Chapter 2, section V). One of Gorbachev’s themes was that the USSR was a member of ‘a common European home’1 and perestroika legal reformers attempted to bring to the USSR a ‘Western’ approach to law and rights.2 The Constitution’s wording suggests a European approach to constitutionality: Article 1 claims that Russia is a democratic federated rule-of-law State with a republican form of government, while Chapter 2 on human rights compares favourably with international human rights law. Those of us initially commenting on the Constitution saw much that was familiar.3 We particularly noticed significant contrasts to previous Soviet Constitutions. These factors misled us into projecting a simplistic view of Russia’s constitutionalism: that at last Russia had ‘seen the light’ and turned away from Marxist ideology, so therefore it must have turned

1 M Gorbachev, ‘Address Given to the Council of Europe’ 6 July 1989. See also T Casier, ‘Gorbachev’s “Common European Home” and its Relevance for Russian Foreign Policy Today’ (2018) 18 Debater a Europa 17. 2 O Rumantsyev, ‘Russia’s New Constitution’ (1991) 2(2) Journal of Democracy 35; A Yakovlev, Striving for Law in a Lawless Land: Memoirs of a Russian Reformer (Armonk, NY, ME Sharpe, 1996). 3 See, eg, A Korkeakivi, ‘Russia on the Rights Track’ (1994) 1 Parker School Journal of East European Law 233; A Korkeakivi, ‘The Reach of Rights in the New Russian Constitution’ (1995) 3 Cardozo Journal of International and Comparative Law 229.

2 Introduction towards Western liberal constitutionalism.4 The fact that Russia joined the Council of Europe and ratified the European Convention on Human Rights and Fundamental Freedoms (ECHR) enhanced the impression that now Russia was ‘just like us’. However, a more nuanced consideration is appropriate. Scholarship on comparative constitutionalism has developed over the past decade and, as a result, we are more prepared to acknowledge different approaches, which are much more context-dependent.5 Examples are in Michael Dowdle and Michael Wilkinson’s 2017 collective work.6 Günter Frankenberg’s 2020 Authoritarianism: Constitutional Perspectives7 and Rosalind Dixon and Rosalind Landau’s Abusive Constitutional Borrowing further the debate.8 Still an under-researched field, this book adds considerations on the Russian perspective.9 Discussions about the extent to which Russia’s 1993 Constitution was consistent with Western liberal constitutionalism and a Continental European heritage, or is instead part of the development of Russia’s own constitutionalism, resonate with earlier academic debates.10 In nineteenth-century Imperial Russia, ‘Westernisers’ and ‘Slavophiles’ contested appropriate approaches to legal reform.11 In the mid-twentieth century, controversy persisted about where the Soviet system fitted within a taxonomy of ‘families of legal systems’.12 These debates 4 See P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (Oxford, Oxford University Press, 2010); D Grimm, Constitutionalism: Past, Present, and Future (Oxford, Oxford University Press, 2016). 5 See P Stykow, ‘The Devil in the Details: Constitutional Regime Types in Post-Soviet Eurasia’ (2019) 35(2) Post-Soviet Affairs 122. 6 M Dowdle and M Wilkinson (eds), Constitutionalism beyond Liberalism (Cambridge, Cambridge University Press, 2017). 7 G Frankenberg, Authoritarianism: Constitutional Perspectives (Cheltenham, Edward Elgar, 2020), translated from Autoritarismus: Verfassungstheoretische Perspektiven (Berlin, Suhrkamp Verlag, 2020). 8 R Dixon and D Landau, Abusive Constitutional Borrowing (Oxford, Oxford University Press, 2021). 9 See also W Partlett, ‘Separation of Powers without Checks and Balances: The Failure of Semi-presidentialism and the Making of the Russian Constitutional System, 1991–1993’ in T Borisova and WB Simons (eds), The Legal Dimension in Cold War Interactions: Some Notes from the Field (The Hague, Nijhoff, 2012) 105. 10 See, eg, the discussion in V Przhilenskiy and M Zakharova, ‘Which Way is the Russian Double-Headed Eagle Looking?’ (2016) 4(2) Russian Law Journal 6. 11 See T Borisova, ‘Russian National Legal Tradition: Svod versus Ulozhenie in Nineteenth-Century Russia’ (2008) 33 Review of Central and East European Law 395. 12 R David and JC Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law 3rd edn (London, Stevens, 1985); J Quigley, ‘Socialist Law and the Civil Law Tradition’ (1989) 37 American Journal of Comparative Law 781; W Partlett, ‘Re-classifying Russian Law: Mechanisms, Outcomes, and Solutions for an Overly Politicized Field’ (2008) 2 Columbia Journal of East European Law 1.

Overview of Russia 3 remain important. In 2015 the Russian Constitutional Court contrasted ‘Western’ and Russian versions of ‘constitutional identity’ when allowing the possibility of refusing to apply the European Court of Human Rights’ interpretations of the ECHR that were inconsistent with Russia’s Constitution. This ability to disavow international law is now enshrined in the Constitution by the 2020 amendments (see Chapter 8, section IV.D). We bear these issues in mind as we explore the Russian Constitution. We consider the historical background in Chapters 2 and 3. In Chapters 4–7, we examine the Constitution’s provisions on the President and the three branches of State power – executive, legislative and judicial – before Chapter 8 considers rights, while Chapter 9 concludes. The remainder of this chapter gives a brief overview of Russia and the place of law in its culture. II. OVERVIEW OF RUSSIA

If you are reading this book, then it is likely you know something about Russia. However, a brief reminder – or introduction – may be helpful. Russia, also known as the Russian Federation (RF), is the largest country in the world. It spans 11 time zones. Russia also spans two continents – Europe and Asia – and is home to a range of different ethnicities. More than 190 ethnic groups were listed in Russia’s 2010 census and there are over 100 minority languages. Russia’s size and diversity are a result of centuries of expansion, forming an empire, but one where the annexed territories are not ‘abroad’, as was the case with major European empires, but contiguous. The Russian Empire before 1917 allowed for some variation – for example, Finland was an autonomous Grand Duchy. Both Soviet Russia and the USSR claimed to be federal, although Soviet federalism was somewhat idiosyncratic.13 Post-Soviet Russia inherited a complex ethnographic situation, and a detailed examination of this is beyond the scope of this book. However, Russia’s solution in general follows that of Soviet times, of a federated structure attempting to establish order for its various peoples. The Russian Federation currently regards itself as being composed of 85 federal subjects (sub”ekty Rossiiskoi Federatsii). There are 22 republics

13 H-J Uibopuu, ‘Soviet Federalism under the New Soviet Constitution’ (1979) 5 Review of Soviet Law 171.

4 Introduction (respubliki – singular respublika), nine territories (kraia – singular krai), 46 regions (oblasti – singular oblast’, sometimes translated as ‘province’), three cities of federal importance (goroda federal’nogo znacheniia), one autonomous region (avtonomnaia oblast’) and four autonomous areas (avtonomnye okruga (AO) – singular avtonomnyi okrug, sometimes translated as ‘district’).14 One region, Kaliningrad, is detached from the rest of Russia. It was the German city of Königsberg before its 1945 entry into the USSR. Article 5(1) of the Constitution states that the different types of federal subjects ‘shall be equal subjects of the RF’, but there are differences. A republic has its own constitution, adopted by whatever means it likes. Each of the other federal subjects has a charter, adopted by its legislature. The RF’s official language is Russian, but the republics may also – and with only one exception, Karelia, do – specify other state language(s).15 Voluntary amalgamations reduced the number of federal subjects listed in Article 54 of the Constitution in 1993 from 89 to 83, before the March 2014 addition of Crimea and Sevastopol. Despite Russia’s claims to have correctly followed its procedure for ‘Admission to the RF and Creation of a New Subject within the RF’, according to a 2001 Federal Constitutional Law (a process analysed by Butler),16 there are serious doubts about the legality of Crimea’s accession.17 This book does not discuss this further, presenting the Russian view. 14 In Cyrillic alphabetical order, republics: Adygeia, Altai, Bashkortostan, Buriatiia, Dagestan, Ingushetiia, Kabardino-Balkariia, Kalmykiia, Karachaevo-Cherkesskaia, Karelia, Komi, Crimea, Marii El, Mordoviia, Sakha (Iakutiia), North Osetia, Tatarstan, Tyva, Udmurt, Khakasiia, Chechnia and Chuvashia; territories: Altai, Zabaikal, Kamchat, Krasnodar, Krasnoiar, Perm, Maritime (Primorskii), Stavropol and Khabarov; regions: Amur, Arkhangel, Astrakhan, Belgorod, Briansk, Vladimir, Volgograd, Vologda, Voronezh, Ivanovo, Irkutsk, Kaliningrad, Kaluga, Kemerovo, Kirov, Kostroma, Kurgan, Kursk, Leningrad, Lipetsk, Magadan, Moscow, Murmansk, Nizhegorod, Novgorod, Novosibirsk, Omsk, Orenburg, Orlovsk, Penza, Pskov, Rostov, Riazan, Samara, Saratov, Sakhalin, Sverdlovsk, Smolensk Region, Tambov, Tver, Tomsk, Tula, Tiumen, Ul’ianovsk, Cheliabinsk and Iaroslavl; cities of federal significance: Moscow, St Petersburg and Sevastopol; autonomous region: the Jewish Autonomous Region; autonomous areas: Nenetskii, Khanty-Mansiiskii–Iurga, Chukotskii and Iamalo-Nenetskii. Nenetskii AO is in Arkhangelsk Oblast, and Khanty-Mansiiskii-Iurga and Iamalo-Nenetskii AOs are in Tiumen region. The Chukotskii AO is not within another federal subject. 15 B Bowring and T Borgoyakova, ‘Language Policy and Education in Russia’ in TL McCarty and S May (eds), Language Policy and Political Issues in Education, 3rd edn (Cham, Springer, 2016) 1, 7. 16 WE Butler, Russian Law and Legal Institutions, 3rd edn (Clark, NJ, Talbot Publishing, 2021) 352ff. 17 See, eg, A Jonsson Cornell, ‘Russia’s Annexation of Crimea: A Violation of Russian Constitutional Law?’ (2016) Uppsala Yearbook of Eurasian Studies 263. For a Russian

The Cultural Approach to Law 5 Eighty-five is still an unwieldy number, and there have been persistent calls for federal restructuring in order to create a smaller number of larger entities. To some extent, this has been achieved in practice through the division in 2000 of Russia into seven (eight since January 2010) ‘federal districts’, each overseen by a presidential federal representative (polpred) (see Chapter 4, section IV.C). III. THE CULTURAL APPROACH TO LAW

Russia has a diverse population, and it is foolish and patronising to dwell on stereotypes and caricatures. However, there are some general characteristics of Russian society which inform its legal culture. There is, in general, respect for the aged and a chivalrous (some might say chauvinistic) approach to women; for example, Hendley, quotes a court plaintiff opining that ‘many Russian men have a prejudice regarding female drivers’.18 Loyalty tends to be to friends, group or patron, rather than to the State as an amorphous entity. The dividing line between reciprocal assistance and corruption is difficult to draw, as the long-held tradition of mutual exchange of favours still holds sway, and personal trust and other informal relations are given higher priority than formal arrangements.19 In the previous edition of this book, the introductory chapter included a section on ‘Russian legal nihilism’. In it was included the famous quote from Alexander Herzen in the mid-1800s: ‘Whatever his station, the Russian evades or violates the law wherever he can do so with impunity; the government does exactly the same thing.’20 Also cited was Alena Ledeneva’s enlightening description of How Russia Really Works: The Informal Practices that Shaped Post-Soviet Politics and Business.21 ‘She [Ledeneva] shows how legal rules may be manipulated to subvert their original purpose, and selective enforcement, or non-enforcement, may

perspective, see A Pronin, ‘Republic of Crimea: A Two-Day State’ (2015) 3(1) Russian Law Journal 133. 18 K Hendley, Everyday Law in Russia (Ithaca, Cornell University Press, 2017) 106 fn 27. 19 See generally AV Ledeneva, Russia’s Economy of Favours: Blat, Networking and Informal Exchange (Cambridge, Cambridge University Press, 1998). 20 A Herzen, ‘Du développement des idées révolutionnaires en Russie’ in Collected Works in Thirty Volumes (Moscow, 1954–61) vol 7, 121, as cited in A Yakovlev, Striving for Law in a Lawless Land: Memoirs of a Russian Reformer (Armonk, NY, ME Sharpe, 1996) 10. 21 A Ledeneva, How Russia Really Works: The Informal Practices that Shaped PostSoviet Politics and Business (Ithaca, Cornell University Press, 2006).

6 Introduction be used strategically. One example described how electoral campaigns can be affected.’22 Despite the apparent appropriateness of these comments, I now believe I was wrong to characterise Russia’s cultural legal identity as nihilistic. Russians may speak disparagingly of law, just as Americans may make disparaging jokes about lawyers, but when their behaviour is examined more closely, the story is much more nuanced. Resort to court – using law and legal process – has a very long history in Russia, as cogently argued by Tatiana Borisova and Jane Burbank.23 Kathryn Hendley’s careful conclusions based on in-depth investigations of Russians’ attitudes to law and use of courts demonstrate that ‘a growing majority of Russians reject legal nihilism’24 and that despite the stereotypical negative view of legal process, both citizens and firms strategise recourse to law and, importantly, many who have litigated are willing to do so again.25 Even the numerous Russian proverbs which appear to show a dismissive attitude to law could in fact be taken as evidence of how deeply embedded law is in Russian culture, even if with a sardonic twist.26 Not only has recourse to law been a recurrent practical strategy, but also at different periods in Russia there have been serious theoretical considerations about the basis of law, both pravo and zakon, even whilst absolute autocracy was developing.27 Bill Bowring forcefully reminds us in his Law, Rights and Ideology in Russia that ‘the beginning of law as an academic discipline in Russia’,28 under the first Russian professor of law,

22 J Henderson, The Constitution of the Russian Federation: A Contextual Analysis (Oxford, Hart Publishing, 2011) 9, citing Ledeneva, ibid 48, 51. 23 For example, in T Borisova and J Burbank, ‘Russia’s Legal Trajectories’ (2018) 19(3) Kritika: Explorations in Russian and Eurasian History 469. 24 K Hendley, ‘Who are the Legal Nihilists in Russia?’ (2012) 28(2) Post-Soviet Affairs 149 at 150–51. 25 Hendley, above n 18. See also K Hendley, ‘The Puzzling Non-consequences of Societal Distrust of Courts: Explaining the Use of Russian Courts’ (2012) 45(3) Cornell International Law Journal 517; K Hendley, ‘Resolving Problems among Neighbors in PostSoviet Russia: Uncovering the Law of the Pod”ezd’ (2011) 36 Law & Social Inquiry 388; K Hendley, ‘Contempt for Court in Russia: The Impact of Litigation Experience’ (2017) 42 Review of Central and East European Law 134. 26 See RC Blitt, ‘“Babushka Said Two Things – It Will Either Rain or Snow; It Either Will or Will Not”: An Analysis of the Provisions and Human Rights Implications of Russia’s New Law on Nongovernmental Organizations as Told through Eleven Russian Proverbs’ (2008–09) 40(1) George Washington International Law Review 1 at 34; M Suhara, ‘Corruption in Russia: A Historical Perspective’ in T Hayashi (ed), Democracy and Market Economics in Central and Eastern Europe: Are New Institutions Being Consolidated? (Hokkaido, Slavic Research Centre, 2004) 383 at 388. 27 See Butler, above n 16 at 72ff. 28 B Bowring, Law, Rights and Ideology in Russia (Abingdon, Routledge, 2013) 21.

The Cultural Approach to Law 7 Semyon Desnitsky (1740–89), brought to Russia the fruits of the Scottish Enlightenment.29 Even in Soviet times, university law syllabuses included study of the ‘history of political doctrines’30 (including bourgeois ones) and the ‘state law of bourgeois countries’ so that Kant and others were not forgotten. However, we should also note possible impacts of differences in Russia’s historical development compared with its Western European neighbours. As William Pomeranz observes, ‘tsarist law remained pluralistic, dualistic, and autocratic at the same time’.31 Stephen White summarises: There had been no feudalism, at least in the form of a balance of interests regulated by law; social classes were defined by service to the state; the Orthodox Church was an extension of government rather than a rival source of authority; and government itself accepted no legitimate limit to the scope of its decisions.32

Nevertheless, even autocratic power had a form of obligation. As Borisova and Burbank convincingly argue, the role of the Russian ruler as sovereign legislator gave rise to an expectation by those who were ruled over that their sovereign would create a workable system with sufficient flexibility to meet the needs of the very varied social groups in the multi-ethnic and multi-confessional population, even if with ‘different laws and different legal instances for different groups’.33 This focus on the workable application of law gave importance to the various legal intermediaries through whose hands the practical applications took place. To that extent, there is an interesting parallel with the situation in England of a common law which grew out of practice, rather than, for example, scholastic argument over foundational texts, as in Europe during the early phase of the reception of Roman law. However, there is one very striking difference between Russian legal tradition and that of both the common law and the legal systems of Russia’s European neighbours: the very different trajectory of the development of lawyers and judges. A professional Bar was first established

29 See his review of the first edition of this book in (2013) 19(3) European Public Law 607 at 608, also citing A Walicki A History of Russian Thought: From the Enlightenment to Marxism (Stanford, Stanford University Press, 1979) 12. 30 WE Butler, Soviet Law, 2nd edn (London, Butterworths, 1988) 70. 31 W Pomeranz, Law and the Russian State: Russia’s Legal Evolution from Peter the Great to Vladimir Putin (London, Bloomsbury Academic, 2019) 55. 32 S White, Russia’s New Politics: The Management of a Postcommunist Society (Cambridge, Cambridge University Press, 2000) 291. 33 Borisova and Burbank, above n 23 at 503. See also Pomeranz, above n 31 at 11.

8 Introduction in Russia in 1864. This can be contrasted with the English common law courts, which were served by a legal profession so entrenched that by the end of the thirteenth century it was the general rule that the judges of the central courts were appointed from their members.34 Likewise, in Continental Europe after the twelfth century revival of learning, law graduates of the great medieval universities such as Bologna played important roles as lawyers and administrators. In Russia, the professionalisation of law came much later and is arguably not yet complete. Marina Kurkchiyan and Agnieszka Kubal persuasively argue that: [I]n the Russian legal tradition, there is no accumulated experience of a full-hearted professionalisation of law and no formation of a sufficiently autonomous legal institution that could claim ‘ownership’ over law … Today, law in Russia is still midway between a ‘lay’ conception and a professionalised form.35

This affects perceptions and expectations of the role of law, lawyers and judges, to the extent that Kurkchiyan and Kubal suggest that, with the notable exception of the commercial (arbitrazh) courts, which clearly have an adversarial format,36 in practice Russian courts are neither adversarial nor inquisitorial. Rather, Russian domestic court routine could be better described as ‘administerial’, with an emphasis on bureaucratic processes and documentary evidence gathered during pre-trial process, and minimal legal argumentation expressed in first instance judicial decisions. Another cultural difference we might note, particularly between the Russian legal system and legal systems with a common law heritage, is that the common law approach does not expect legislation to be comprehensive. There will always be scope for judicial interpretation and, if need be, judicially determined common law makes up for legislative gaps. By contrast, sociological studies by Kurkchiyan suggest not only that the Russian interpretation of law tends to be rigidly formalistic and instrumental,37 but also that this leads to ‘the unrealistic demand for “good

34 JH Baker, An Introduction to English Legal History (Oxford, Oxford University Press, 2019) 165. 35 M Kurkchiyan and A Kubal, ‘Administerial Justice: Concluding Remarks on the Russian Legal Tradition’ in M Kurkchiyan and A Kubal (eds), A Sociology of Justice in Russia (Cambridge, Cambridge University Press, 2018) 259, 260. 36 See T Bocharov and K Titeav, ‘When Business Goes to Court’, ch 6 in Kurkchiyan and Kubal (eds), above n 35 at 118. 37 M Kurkchiyan, Experiences of Law in Contemporary Russia (Oxford, Foundation for Law, Justice and Society, 2013); Kurkchiyan and Kubal, above n 35 particularly 265–69.

Conclusion 9 law”’,38 that is, the perfect legal text which covers all eventualities and does not rely on any judicial discretion.39 Hendley also sees a tendency by the judges in her study to take a formalistic and instrumental approach characterised as ‘relentless positivism’.40 The Russian judges in Hendley’s study ‘are not concerned with how the decisions might affect future cases or society at large’.41 The situation is very different for judges in the Russian Constitutional Court (CCRF). There is an important role for CCRF precedents, and the small group of justices in that Court are strongly aware of the broader context within which they work. Nor does the Constitution fit Kurkchiyan’s stereotype of the perfect law. The context and the process under which it was drafted did not lend itself to an attempt to be definitive. Indeed, the fact that the 1994 Federal Constitutional Law on the Constitutional Court gives the CCRF the power of binding interpretation of the Constitution’s text acknowledges that that text itself would inevitably need such ‘mediation’ in its practical application. This puts both the CCRF and the Constitution itself in privileged positions compared to other Russian courts and laws, and emphasises their importance. IV. CONCLUSION

This brief introduction has touched on a number of issues that will be relevant to later chapters. Its main aim has been to open the reader’s eyes to the possibility that the Russian approach to its Constitution may be more consistent with Russia’s own legal traditions than with an interpretation based on ‘Western’ constitutionality. This does not excuse any abuses of rights and neither should it absolve Russia of its responsibility to keep international commitments voluntarily undertaken. But it may explain some instances where Russia’s approach to those commitments differs from those of external observers.

38 M Kurkchiyan, ‘Russian Legal Culture: An Analysis of Adaptive Response to an Institutional Transplant’ (2009) 34(2) Law & Social Inquiry 337, 360. 39 Establishment of a ‘state language’ for legislation advocated by SA Belov and NM Kropachev in ‘Chto nuzhno, choby russkii iazyk stal gosudarstvennym? [What is Needed for Russian to Become the State Language?]’ (2016) 10 Zakon 100. 40 Hendley, above n 18 at 131. 41 ibid 132.

10 Introduction FURTHER READING L Gönenç, Prospects for Constitutionalism in Post-Communist Countries (The Hague, Nijhoff, 2002). K Hendley, Everyday Law in Russia (Ithaca, Cornell University Press, 2017). AV Ledeneva, How Russia Really Works: The Informal Practices that Shaped Post-Soviet Politics and Business (Ithaca, Cornell University Press, 2006). A Yakovlev, Striving for Law in a Lawless Land: Memoirs of a Russian Reformer (Armonk, NY, ME Sharpe, 1996).

2 Historical Background to the 1993 Constitution Independent States Centralise – The Russian Empire – Soviet Power in the USSR – Perestroika – The USSR Disintergrates – Independent Russia

I. INTRODUCTION

T

his chapter considers aspects of Russia’s past. The relationship between ruler and ruled and the concept of statehood were very different in previous eras. Nevertheless, as we explore Russia’s current constitutional settlement, it is helpful to know these past narratives. We avoid discussion of exactly where Russia was situated geographically and, indeed, what constituted ‘Russia’ during the earliest period for which written records exist. It is even anachronistic to consider Russia to be a state during that phase.1 We also avoid methodological discussions over different possible periodisations of Russian history.2 For convenience, we divide the chapter into different sections, whilst being aware that inevitably we simplify. However, past events – whether real or mythic – impact the present and it is worthwhile being aware of them. II. BEFORE THE EMPIRE

A. The ‘Period of the Independent Principalities’ We begin with the conversion to Christianity of the Russian population under Kievan grand prince Vladimir Sviatoslavich (‘Saint Vladimir’)

1 FJM 2 ibid

Feldbrugge, A History of Russian Law (Leiden, Brill, 2017) 23ff and 38–39. 6ff.

12 Historical Background to the 1993 Constitution in 988. In 1988, Russia celebrated 1,000 years since that landmark date marking Russia’s beginning. This links the mythos of existence to the acquisition of an official ideology, Orthodox Christianity. It has been a persistent theme in Russia to have an explicit ideology, although the ideology changed dramatically in 1917 and less dramatically in the early 1990s. The current Constitution forbids an official State ideology, but there is a recurrent quest to conceptualise a unifying philosophy, the most recent – from around 2012 – being ‘traditional values’ (see Chapter 8, section III.A). The earliest written Russian law is the Russkaia Pravda associated with Vladimir’s son, Iaroslavl (ruled 1015–54). There are different versions: Short and Expanded.3 The first half of the Short Pravda appears to be the collection, or possibly the codification, of customary law,4 perhaps ‘a kind of peace treaty’5 following a fratricidal war over Novgorod. The second half, the Pravda of Iaroslavl’s Sons, looks more like legislation, although, as Feldbrugge convincingly argues,6 it was likely to have been ‘new customary law’ in response to the particular challenges of the time, but presents itself as legislation based on the Prince’s power. The existence of numerous editions of the Expanded Russkaia Pravda testifies to its widespread use. Despite many unanswered, and unanswerable, questions about the composition and origin of the early legal texts, we can deduce that: ‘The prince himself and his closest advisers would certainly have taken all important decisions on substance.’7 This is a period of princely rule. However: ‘The organisation and the running of the State in Kiev in Russia was not a matter of despotic whim; much of it was embedded in traditions, custom and customary law.’8 Although custom dictated that a prince ruling a Russian principality should be a member of the Rurikid dynasty, before the changes following the Mongol invasion, the particular prince might be replaced by one of his many kin. Thus, Russia at this time had a ‘peculiar political structure … was it a unitary state, a conglomerate of semi-states, or something else again?’9

3 Feldbrugge, above n 1 ch 4, 101ff and ch 5, 124ff. 4 See FJM Feldbrugge, ‘The Russkaia Pravda’ in Law in Medieval Russia (Leiden, Brill, 2009) 32 at 38. 5 Feldbrugge, above n 1 at 111. 6 ibid 114ff. 7 ibid 138. 8 ibid 778. 9 ibid 363.

Before the Empire 13 At a local level, the popular assembly of each city, its veche, played an important role in political decision-making and it was not unknown for a city to expel its prince.10 Veche procedure was chaotic and the requirement of unanimity sometimes led to violence, the stronger side, literally, winning the day.11 These local assemblies disappeared as the developing Russian State became more centralised as a result of, and in reaction to, the Mongol invasion. However, they show that Russia had a form of local consensual decision-making in those early days. B. The Mongol Invasion: Autocracy Takes Root Public law in medieval Russia was transformed by the conquest by the Mongol-Tatar Horde. This was the nomadic army controlled by the successors of Genghis (Chingis) Khan (died 1227), the so-called Golden Family. Inhabitants of the Russian steppes had frequently suffered depredations from nomadic raiders. However, from around 1236, for two and a half centuries, Russia joined much of Asia and (for a shorter time) parts of Eastern Europe under more continual subjugation to what was later pejoratively termed ‘the Tartar Yoke’. The chroniclers recording this incursion were Orthodox Christian monks, at the interface of a clash of religions, and presented it as wholly negative. In fact, Russia, although cut off from Europe, was put in touch with the wealth of learning in the Muslim east.12 The Mongol overlords had little interest in interfering with local civil legal relations. What they wanted was effective payment of tribute, and they organised an efficient administrative system to ensure this, including an impressive empire-wide postal service, the iam, the name of which entered the Russian language. The Russian words for ‘money’ (den’gi) and ‘customs tariff’ (tamozhnia) also have Mongol roots. The Mongols are blamed for the introduction to Russia of absolute autocracy and a system of universal public service. The Code of Genghis Khan, the Iasa, allocated to every subject ‘a specific position in the service to the State, from which he could not depart without penalty of death’.13 Later Russian rulers enthusiastically adopted this principle. 10 FJM Feldbrugge, ‘Popular Assemblies in Early Medieval Russia: The Veche in Legal History’ in Feldbrugge, above n 4, 147 at 152. See also Feldbrugge, above n 1 at 364, 415ff. 11 Feldbrugge, above n 10 at 157. See also Feldbrugge, above n 1 at 429–30. 12 See CJ Halperin, Russia and the Golden Horde (London, Tauris & Co, 1987). 13 HJ Berman, Justice in the USSR (Cambridge, MA, Harvard University Press, 1963) 195.

14 Historical Background to the 1993 Constitution Arguably Russia never developed a feudal system equivalent to that of Western Europe, with reciprocal obligations between lord and tenants. Under the Russian system descended from the Mongol approach, obligations were all one-way, of compulsory service owed to the State. The ruler credited with throwing off the ‘Yoke’ was Grand Duke of Muscovy, Ivan III (Ivan Vasil’evich, known as Ivan the Great, 1440–1505, reigning alone from 1452). As a result of his success, he called himself ‘Tsar-Autocrat, chosen by God’. The word ‘Tsar’, cognate with Caesar, means ‘emperor’, and this remained the main title of Russia’s ruler until 1721, when Peter the Great claimed to be Emperor of All the Russias (Imperator Vserossiiskii), although he also retained the title of Tsar. Just as significant was the other title claimed by Russia rulers, from Mikhail Romanov onwards,14 of ‘Autocrat’ (Samoderzhets). The Russian word is a compound from sam (self) and derzhat’ (to keep, hold or possess). Legal scholar Alexander Yakovlev explained: The word suggests not only that ‘l’État c’est moi’,15 but ‘I hold a state in my own hands, all state power is entirely at my disposal, and my power, by definition, cannot be restricted and need not be justified.’16

Nothing before the revolutions of 1917 seriously restricted that imperial autocracy founded on the principle of divine right, and little in the Soviet approach before the mid-1980s changed the culture of unaccountable rulership. C. Centralisation In 1453 Constantinople fell to the Ottoman Turks. It had been the centre of the Roman Empire in the East. Ivan III’s wife, Sophia Palaiologina, was a descendent of the Emperor of the Eastern Roman Empire and brought the Byzantine symbol of the double-headed eagle to Russia. In 1510 the monk Filofei wrote to Ivan and Sophia’s son, Grand Duke Vasili III: ‘Two Romes have fallen. The third stands. And there will be no fourth.’ The position of Russia as a ‘missionary state’17 emphasised

14 Feldbrugge, above n 1 at 776. 15 ‘I am the State’. 16 AM Yakovlev, Striving for Law in a Lawless Land: Memoirs of a Russian Reformer (Armonk, NY, ME Sharpe, 1996) 20. 17 ibid 199.

Before the Empire 15 the unity of Church and State. This idea of the State as repository of the truth and custodian of world destiny was paralleled by the USSR’s self-declared position of ideological supremacy. During Ivan III’s long reign, the first national Russian law code, the Sudebnik, was adopted in 1497. Feldbrugge characterises it as ‘the legislative foundation stone of the Moscow principality’.18 It ‘put an end to the legal fragmentation of Russia’.19 Both the 1497 Sudebnik and its 1550 replacement were mainly concerned with detailed judicial procedure, for example, setting appropriate fees. This fiscal aspect may indeed have been a primary motivation for issuance: ‘the income derived from trials and its distribution were dominant factors in designing the court system’.20 The Sudebnik prohibited bribing judges. It also restricted peasants’ freedom of movement from one estate to another. The period during which a peasant could relocate was reduced to a mere two weeks after harvest. The route to serfdom had begun. Ivan III’s successor, Ivan IV, became Grand Prince of Muscovy in 1533, aged three. Crowned Tsar of All the Russias in 1547, he continued to rule until 1584. He was known asIvan Groznii, ‘Ivan the Awesome’, usually put into English as ‘Ivan the Terrible’. Ivan IV undermined the power of the nobility (the boyars) by removing their hereditary security of tenure. Wreaking revenge for their disloyalty, whether perceived or actual, Ivan bound the nobility individually to him by service which they could not exchange with another lord without losing their existing traditional inheritable patrimonial estate (votchina). Instead, in return for State service, each noble was granted a non-inheritable estate (pomestie) which was completely conditional on the will of the Tsar.21 Ivan established the infamous Oprichniki, who enforced his command with unrestrained violence. They wore black gowns and rode black horses, the better to intimidate, and had the power to execute anyone they regarded as an enemy of the Tsar. This unaccountable security organisation waging war on the domestic population resonates with repressions during the Soviet era.

18 Feldbrugge,

above n 1 at 205. 206. 20 ibid 194. 21 On landholding, see ibid 383, 902ff. 19 ibid

16 Historical Background to the 1993 Constitution III. THE TSAR AS EMPEROR

A. The Romanovs and the Growth of Absolutism Ivan IV killed his heir Ivan in a fit of rage, so was succeeded by his ineffectual son Feodor, who ruled (with the help of others) from 1584 to 1598. Feodor died childless and a Land Assembly (Zemskii sobor) met to elect a successor. These assemblies originated during the time of Ivan IV as a mechanism for consultation and legislation, and were generally composed of representatives of the nobility, the Church and the mercantile class.22 The 1598 Land Assembly elected the man who had been advising Feodor, his sister’s husband, Boris Gudunov. His short reign (1598–1605) was the beginning of a 15-year period known as the ‘Time of Troubles’ (Smutnoe vremia) with weak government, pretenders to the throne (two claimants, ‘False Dmitrii’ I and II),23 famine, plague and invasion by Polish and Lithuanian forces. A volunteer army led by a nobleman and a merchant successfully repulsed the latter, and a Land Assembly was convened in 1613 to choose a new Tsar. The eventual reluctant electee was the 16-year-old Mikhail Romanov, who established the last Russian tsarist dynasty. Mikhail reigned until 1645. His son, Alexei Mikhailovich (ruled 1645–76) presided over further growth of absolutism. Alexei Mikhailovich gathered another Land Assembly in 1649 to pass a new law code, the Sobornoe Ulozhenie. The draft enactment was discussed for four months at the Assembly, which had two chambers with delegates from over 120 towns in the lower chamber. ‘Evidence survives about contested elections in several places.’24 Feldbrugge characterises the Sobornoe Ulozhenie as ‘one of the most pivotal texts’.25 Similarly, Butler calls it ‘the most substantial and important achievement of mediaeval Russian Law’.26 Amongst other things, the new code consolidated serfdom, forbidding peasants from leaving their lord’s estate for any reason, and 22 On boyar dumas, see ibid 388ff and ch 31. On land assembly decisions, see Feldbrugge, ibid, ch 28, fn 784 that ‘the precedent set by Gudunov’s election confirmed the de facto status of the Zemskii Sobor as a kind of default ruler of Russia in the absence of a tsar’. 23 Each claiming to be Dmitrii, youngest son of Ivan IV; the real Dmitrii died aged eight in 1591. There was another false Dmitri III in 1611–12. 24 R Hellie, ‘Assembly of the Land’ in J Millar (ed), Encyclopedia of Russian History (New York, Macmillan Reference, 2004) 89. 25 Feldbrugge, above n 1 at 760. 26 WE Butler, Russian Law and Legal Institutions, 3rd edn (Clark, NJ, Talbot Publishing, 2021) 58.

The Tsar as Emperor 17 indefinitely extending the time during which runaways and their descendants could be tracked down and returned to subjugation. Nor was it only serfs who were bound; townsmen were restricted to the town in which they resided.27 Absolutism was consolidated as subjects were placed in a hierarchy determining their duties to the State. However, William Pomeranz notes that ‘the new legislation … provided all subjects – no matter what their nationality, religion, or social standing – access to the legal system’.28 Alexei Mikhailovich was succeeded in 1676 by Feodor, the eldest surviving son by his first wife. Feodor died in 1682 with no obvious heir. A Boyar Duma (council of noblemen) proposed Alexei Mikhailovich’s son by his second wife, Peter (Potr), born in 1672, to be Tsar, despite his young age. This was confirmed by the Moscow population, but was resisted by Feodor’s siblings, in particular Sofia, who thought Feodor’s infirm younger brother Ivan should rule under her regency. The resulting unrest was settled by having Peter (I) ruling jointly until 1696 with Ivan (V) under the regency of Sofia until she was forced into a convent by Peter in 1689. Peter I became known as Peter the Great (Velikii) in 1721 when he assumed the title of Emperor. He gained a reputation as a great reformer, although he was not universally revered. He set out in March 1697 on his ‘Great Embassy’, touring Europe for 18 months to gather information. On his return, he enforced on both officials and the military a Western European dress code of trousers rather than robes, and required them to be clean-shaven. In 1712 he had a new capital, St Petersburg, constructed at great cost in terms of both money and lives. Reforms ‘from above’ were the only method: Society on its own lacked any effective levers by which to bring about change. For these reasons, any major reform project could only be implemented by means of administrative intervention of the State.29

Peter intensified State control, imposing an individual poll tax on all male non-nobles and compulsory military service for most men. He reformed central, provincial and local government. He divided Russia into Gubernii, eight of which were established in 1707, increasing to

27 W Pomeranz, Law and the Russian State: Russia’s Legal Evolution from Peter the Great to Vladimir Putin (London, Bloomsbury Academic, 2019) 11. 28 ibid. 29 A Chubarov, The Fragile Empire: A History of Imperial Russia (New York, Continuum, 1999) 19.

18 Historical Background to the 1993 Constitution 12 by 1718. Each Guberniia was presided over by a Governor who was directly answerable to him. There was some devolution for local government. Towns were given increased powers to elect local officials, in the hope that this would stimulate trade and reduce provincial bureaucracy. In 1711 Peter established the Senate, a nine-man committee which evolved to become both an executive agency and the Supreme Court. It replaced the traditional Boyar Duma (the advisory council of the hereditary nobility). In 2008 Peter’s Senate and Synod Building became the seat of the Russian Constitutional Court. Peter’s central government reforms began in 1717 by abolishing the existing chaotic system of governmental departments (Prikazi),30 replacing them with a smaller number of better-organised Collegia. Nevertheless, Peter remained in sole overall charge, so the net effect was more efficient absolutism. One of Peter’s most lasting reforms, initiated in 1711, was the establishment of an organisation to oversee the civil service. In 1722 this transformed into the Procuracy, the powerful ‘eye of the Tsar’.31 The modern Russian Procuracy claims direct descent from it. Peter also completely reformed the Orthodox Church’s structure, effectively incapacitating the Church as a separate power base. This contrasts with the situation in Western Europe, where, in both Catholic and Protestant States, the Church could counterbalance the Head of State’s temporal power. In 1714 Peter acceded to the landlords’ requests to make their landholdings hereditary, requiring obligatory State service in return. The 1722 ‘Table of Ranks’ consolidated this system and listed positions in military and civil service.32 Those entering State service would begin at the bottom and hope to advance. In theory, this rewarded talent and merit, eliminating the old landowning nobility’s monopoly; in practice, congestion in the higher ranks preserved the old order’s control. Nevertheless, the system allowed anyone, even a commoner (although not a serf), to be ennobled, provided that they attained sufficiently high rank. The Table of Ranks survived until the Russian Revolution. Famously, Vladimir Lenin’s father achieved noble status.

30 See Feldbrugge, above n 1 at 807ff. 31 See Pomeranz, above n 27 at 17–18. 32 A different precedence system for princely ranking, the mestnichestvo system, was abolished in 1682 by Feodor, and ‘the registers were burned “to the joy of contemporaries and the sorrow of future historians”, in the words of SG Pushkarev’. Feldbrugge, above n 1 at 386, reference omitted.

The Tsar as Emperor 19 Peter’s reforms, imposed from above by coercion, aimed at modernisation and Westernisation, and those goals were largely achieved. However, their positive impact was on the educated elite, not the mass of the population who remained serfs. This exacerbated the already-existing divide in society. The upper classes were increasingly Europeanised. They would speak French or German rather than the vernacular Russian; social stratification and schism were thus further embedded. B. Failed Reform under Anna Peter was succeeded by his wife (as Catherine I, ruled 1725–27) and his young grandson, Peter II (born 1715, ruled 1727–30), who died of smallpox on the eve of his wedding. The Supreme Privy Council, a handful of aristocratic advisers to Catherine I, took charge and offered the throne to Anna Ivanovna, the daughter of Peter’s half-brother and co-ruler Ivan V. Anna ruled from 1730 to 1740. Before her coronation, Anna signed a set of ‘Conditions’ restricting the exercise of imperial power. These were not the only proposals under discussion. For a brief period in Moscow, there was widespread debate about different forms of government and limitation of autocracy, and ‘more than a score of draft reform projects … thought over in advance’.33 Constitutional historian, political scientist and lawyer Andrei Medushevski points out that ‘a great many of provincial gentry were in Moscow’34 for Peter II’s wedding and they joined in the discussions – for perhaps the first time, ‘evidence of bottom-up initiative’.35 When Anna arrived at the Kremlin Palace, she was presented with a petition for a representative assembly. She apparently acceded, but within hours tore up both it and the Conditions, secure in the knowledge that her palace guard supported autocracy. Absolute rule was reasserted, although not before the aristocrats at least had had a taste of presenting class demands. C. Enlightenment Ideas But Not Reality?: Catherine II Thirty years later, inspiration from Western Europe returned via Empress Catherine II, the Great (ruled 1762–96). The daughter of a 33 A Medushevsky, Russian Constitutionalism: Development (Abingdon, Routledge, 2006) 71. 34 ibid 70. 35 ibid 73.

Historical

and

Contemporary

20 Historical Background to the 1993 Constitution minor Prussian prince, in 1745 aged 15, she married Peter the Great’s grandson Peter by his daughter Anna (married to the Duke of HolsteinGottorp). Originally Sophie of Anhalt-Zerbst, she took the name Ekaterina (Catherine) on her conversion to orthodoxy for her betrothal to her detested second cousin Peter. He became Tsar Peter III in 1762, but shortly afterwards was assassinated and Catherine was declared Empress. She brought European Enlightenment ideals to Russia, although not their practical implementation. She sent bright young scholars abroad to learn law; Semen E Desnitskii and Ivan A Tretiakov both attended Glasgow University, where they came under the influence of Adam Smith and others from the Scottish Enlightenment, before returning to teach at Moscow University.36 Catherine herself corresponded with Voltaire, and sent him and Frederick II of Prussia (Frederick the Great) copies of a lengthy draft Instruction (Nakaz) for her newly created Codification Commission. She had taken two years to compose the draft, in which she incorporated the theories (and indeed some verbatim text) of Montesquieu, Beccaria, Voltaire and others. Her draft was in French, which she translated into Russian. The Nakaz was subsequently printed in Russian, German, French and Latin, and it gave Catherine a reputation as an enlightened autocrat, by including Enlightenment theory, whilst also unambiguously stating: ‘The Sovereign is absolute’ (Article 9).37 However, beyond improving Russia’s image abroad and generating discussion in high circles in Russia, Catherine’s Nakaz had little practical impact. The Nakaz was sent in 1767 to the All-Russian Legislative Commission which Catherine had established to codify Russia’s laws. The Legislative Commission was an innovation, as deputies included elected representatives of all classes except serfs and clergy. However, after a year of almost 200 sessions, the Commission had not achieved any practical results. The delegates’ aims differed too greatly. Faced with a task completely beyond their experience, they descended into sectarian squabbles. The outbreak of war against the Ottoman Empire in 1768 gave Catherine the excuse to dissolve the Commission, and its failure dissuaded her from future experiments with democratic representation. However, it did expose the different classes’ opposed aspirations. The peasantry wanted relief from

36 See AH Brown, ‘The Father of Russian Jurisprudence: The Legal Thought of SE Desnitskii’ in WE Butler (ed), Russian Law: Historical and Political Perspectives (Leiden, Sijthoff, 1977) 117; B Bowring, Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power (Abingdon, Routledge, 2013). 37 Pomeranz, above n 27 at 22.

The Tsar as Emperor 21 taxation. Merchants wanted trade monopolies and the right to own serfs. The nobility’s demands were equally self-serving: the end of compulsory State service, full ownership of hereditary estates and complete peasant enserfment. In time they achieved these. In 1731 landlords holding estates in return for State service gained full proprietary rights. By 1762, already reduced from a lifetime to 25 years, the nobility’s compulsory service was completely abolished. These privileges were enshrined in Catherine’s 1785 Charter of the Nobility. Unfortunately, the nobility’s achievements did not translate into good governance of the peasant majority. There was increased despotism. The Pugachev rebellion’s failed attempt during 1773–75 to overthrow landlords and divide their estates amongst the peasants undermined any sympathy for serf aspirations towards emancipation. Pomeranz convincingly argues that Catherine’s various reforms, including the 1775 Administrative Reforms, created ‘the first truly viable “power vertical” in Russian history’.38 D. Reaction and Reform Proposals After Catherine II’s death in 1796, her successor Paul I (born 1754) reasserted imperial control over the nobility, restricting exemptions from compulsory service and corporal punishment. He induced such antagonism that he was assassinated in 1801. His son, Alexander I, then aged 23, ruled until 1825. His education had been controlled by his grandmother Catherine; he was tutored by a Swiss, de la Harpe, who nurtured in Alexander her Enlightenment ideals. During the early years of his reign, he surrounded himself with aristocratic reformers. Jeremy Bentham’s works were translated into Russian,39 and advice was sought from both Bentham and Thomas Jefferson.40 Shortly after his accession, Alexander I initiated work on a new codification of the law, although it was not published during his lifetime. Unfortunately, proposals to create a constitutional monarchy drafted for him in 1809 by the extraordinarily able Mikhail Speransky also failed. Stillborn as a result of the war with Napoleon and aristocratic opposition, they laid a foundation for developments in the early twentieth century. Speransky envisaged a separation of powers, with a court hierarchy, elected legislatures (Dumas)

38 ibid

23. above n 26 at 65. 40 Pomeranz, above n 27 at 28. 39 Butler,

22 Historical Background to the 1993 Constitution and a separate executive with different levels. A State Council would act as an upper legislative chamber. The Tsar would be a constitutional monarch. None of this transpired during Speransky’s lifetime. In 1810 the State Council was established, but as a legislative consultative body composed of Tsar-appointed officials (Government ministers joined ex officio), although the existing Senate (established by Peter the Great) was not abolished. However, reform of the administration was fiercely opposed by those holding rank in the existing system. They persuaded Tsar Alexander to dismiss Speransky in March 1812. He was reinstated and appointed Siberia’s Governor-General in 1816. As Alexander’s reign progressed, he became more involved with the war against Napoleon and its aftermath, and less interested in domestic liberal reform. He ultimately did grant constitutions, but to the Poles and Finns, not the Russians. Alexander left no surviving legitimate children; on his death in 1825, his younger brother (born in 1796) became Tsar Nicholas I. E. Bureaucracy and Private Law Reform In contrast to Alexander I’s early liberal education, Nicholas I’s formative influence was his military service during the Napoleonic Wars. He endeavoured to transfer the principles of military discipline to ruling his Empire. He became Emperor after the suppression of the unsuccessful Decembrist uprising in December 1825. Its leaders were aristocratic reformers hoping for a constitutional monarchy (or, for the more extreme, a democratic republic); their arrest and punishment inhibited open discussion about constitutional reform and drove some into more revolutionary secret societies, as gradual reform seemed increasingly unfeasible. The year after his accession, Nicholas I established totalitarian control. His Chancellery’s ‘Third Section’ implemented police surveillance and censorship. Government bureaucracy increased, as did the growth of an administrative class dependent on government employment. One positive side-effect was increased appropriate higher education to prepare efficient civil servants. This produced suitable candidates for the newly established advocates’ profession a generation later.41 Work

41 See R Wortman, The Development of a Russian Legal Consciousness (Chicago, University of Chicago Press, 1976).

The Tsar as Emperor 23 also resumed on a new law code.42 A select group of lawyers, including Mikhail Speransky, produced: [T]he greatest systematization … of legislation, in its day, on this planet and far ahead of anything commensurate in continental Europe, England, or the United States.43

The work was immense. Published in 1830, the Complete Collected Laws of the Russian Empire (Polnoe sobranie zakonov Rossiiskoi imperii) comprised 48 huge volumes containing a chronological collection of the more than 30,000 legislative enactments passed since the 1649 Sobornoe Ulozhenie. Merely tracking down enactments was a daunting task; few had been printed and there was no central repository or systematic record-keeping. From the Complete Collection, the compilers distilled the Digest, Code of Laws (Svod zakonov), published in 1832.44 This was a mere 15 volumes, but was nevertheless impressive. However, it was not until the reign of Nicholas I’s son, Alexander II, that the most long-awaited reform, serf emancipation, took place in 1861. F. Serf Emancipation and Legal System Reform Alexander II (born 1818) came to the throne in 1855, aged 36, at a time when Russia had been waging war for two years against Britain, France, Turkey and Sardinia in what is known in England as the Crimean War. The campaign revealed inadequacies on both sides, but for Alexander in particular, it was clear that his army, mainly composed of conscript serfs, was no match for his more professional adversaries. After a peace settlement in 1856, he set about reforms, triggering consideration of serf emancipation in an address to the nobility. In February 1861 he issued the Tsar’s Manifesto on ‘The Abolition of Serfdom in Russia’: This tremendous work could be only compared with the abolition of slavery in the United States which followed four years later. In the Russian case, however, the emancipation was carried out on an infinitely larger scale, and was achieved without civil war and without devastation or armed coercion. It revealed a great paradox: only an autocrat could achieve a ‘peaceful’ 42 See summaries of the process in Pomeranz, above n 27 at 31–33; Butler, above n 26 at 66. 43 WE Butler, ‘Review of Whisenhunt, In Search of Legality: Mikhail M Speranskii and the Codification of Russian Law’ (2006) 7 Kritika 658. 44 See T Borisova, ‘Russian National Legal Tradition: Svod versus Ulozhenie in Nineteenth-Century Russia’ (2008) 33 Review of Central and East European Law 295.

24 Historical Background to the 1993 Constitution transformation like this; in a democracy, which must compromise on such issues to satisfy pressure groups, such bold actions are much more difficult!45

Debate about the success or otherwise of the emancipation scheme is beyond the scope of this book; certainly, it did not give serfs their desired economic freedom, even less their political freedom. It did necessitate the reorganisation of local and provincial government. In 1864, an elected assembly (zemstvo) was set up in each district and province. Each zemstvo nominated an executive board, with representation of five social groups, including peasants, although the board’s system of decisionmaking was by voting weighted to favour the nobility. Zemstvo decisions were also completely subordinate to the will of the Guberniia Governor. Analogous reforms in 1870 gave each town and city an elected council (duma). After emancipation, peasants had their own local government system. Each peasant was a member of a community known as a mir.46 A number of miry would compose a volost’. The volost’ had an elected assembly and also, importantly, as part of the emancipation scheme, its own court. Thus, peasants had access to courts established specifically for them, although in reality peasant justice might be effectuated outside the official system and become apparent only when the imposition of a customary penalty was bungled.47 The year 1864 also saw far-reaching legal reforms which brought to Russia for the first time a professional Bar and a court hierarchy, completely separated from the other State branches, with judicial appeals.48 Jury trials were introduced for serious crimes. In aspiration at least, judges were independent and parties were equal, although this equality excluded the peasants with their own courts. G. Reaction and Repression Alexander II had introduced some representative democracy into local government. He had been considering more general reforms, including advisory representation in the State Council, when he was assassinated 45 Chubarov, above n 29 at 75. 46 The Russian word mir also means world and peace. The title in Russian of Tolstoy’s famous book War and Peace is Voina i Mir. 47 See S Frank, ‘Popular Justice, Community, and Culture among the Russian Peasantry 1870–1900’ in B Eklof and S Frank (eds), The World of the Russian Peasant: Postemancipation Culture and Society (Boston, MA, Unwin Hyman, 1990); R Beerman, ‘Pre-revolutionary Russian Peasant Laws’ in Butler, above n 36 at 172. 48 For a perceptive analysis of the reforms, see Pomeranz, above n 27 at 37ff.

The Tsar as Emperor 25 in 1881 by the nihilist group People’s Will. His son Alexander III (born 1845) did not share his father’s progressive aims. He believed in divine right, and his priorities of nationality, orthodoxy and autocracy49 left no room for experiments with democratic consultation. He was more interested in centralisation. He reduced the powers of the zemstvo, placing them under the control of government-appointed land captains. Censorship was strengthened and the secret police system, the Okhrana, which had been abolished in the final year of Alexander II’s reign, was resurrected. A Russification campaign brought discriminatory legislation against the non-Orthodox and those not ethnically Russian. Any reform to reduce the Tsar’s autocracy – propagated under the slogan of the ‘people’s autocracy’50 – became anathema. But the legal profession developed and ‘lawyers used the law to press for political change’.51 H. Reluctant Reform: 1905–06 Alexander III’s sudden death from natural causes in 1894 brought his eldest son Nicholas (born 1868) to the throne. Also conservative and antiSemitic, Nicholas II lacked Alexander’s strength of character. A series of unfortunate events – famine during 1891–92, repercussions following the innocent petitioners’ slaughter on ‘Bloody Sunday’ in January 1905, failure in war against Japan – compelled Nicholas to concede to constitutional reforms. These came in stages, which unfortunately lagged behind the aspirations of the many different voices exhorting their necessity, and were not consistently implemented. Nevertheless, they were groundbreaking. The first tentative step was the Manifesto of 6 August 1905, which undertook to establish a consultative State Duma, indirectly elected by a restricted franchise. But this Duma was never convoked, and further civil unrest over the summer of 1905 impelled Nicholas to issue his comparatively brief but significant October Manifesto. This obliged the Government to establish for the very first time in the Russian Empire: [T]he essential foundations of civil freedom, based on the principles of genuine inviolability of the person, freedom of conscience, speech, assembly and association.52 49 A trilogy coined in 1833 by Minister of Education Count Sergei Uvarov, and accepted by Nicholas I and his successors. 50 Chubarov, above n 29 at 110. 51 Pomeranz, above n 27 at 60; see 58–63 for examples. 52 D Field (trans), Nicholas II, ‘Manifesto of October 17, 1905’ (art 1).

26 Historical Background to the 1993 Constitution However, when incorporated into the second chapter of the 1906 Fundamental Law, these rights were not absolute; they were exercised ‘as determined by law’. In the October Manifesto, Nicholas also promised that voting rights would be extended to those classes excluded from representation in the previous Duma and that future electoral laws would be decided by the Legislature, not the Executive (Article 2). He lied. In Article 3 he undertook: [T]o establish as an unbreakable rule that no law shall take effect without confirmation by the State Duma and that the elected representatives of the people shall be guaranteed the opportunity to participate in the supervision of the legality of the actions of Our appointed officials.53

The promised law extending the franchise was passed in December 1905 and, after much committee discussion, the appropriately amended Fundamental Law of the Russian Empire was adopted on 20 February 1906. However, it was decided that it would be dangerous to publish it before the elections for the Legislature, so it appeared on the day that the Duma opened: 10 May 1906. Nicholas had chaired some preparatory discussions and he reluctantly conceded a small but symbolic alteration in the description of his position. The previous version of the Fundamental Law (Article 4) described the Tsar (Emperor) as ‘autocratic monarch with unlimited power’. The word ‘unlimited’ was deleted in the new version: The All-Russian Emperor possesses the supreme autocratic power. Not only fear and conscience, but God himself, commands obedience to his authority.

Thus, autocracy was preserved, but the autocrat could agree to share power, and Article 7 acknowledged that ‘the sovereign emperor exercises power in conjunction with the State Council and the State Duma’. The Emperor had legislative initiative, which was exclusive in the case of changes to the Fundamental Law, and a right of veto. He retained full executive power. He had the right to appoint and dismiss Government ministers, and members and the Chair of the Council of Ministers, and controlled foreign policy and the armed forces as Commander-in-Chief. Importantly, the Council of Ministers could submit edicts directly to the Tsar for approval and promulgation between Duma sessions. On 25 February 1917 the experiment to limit imperial autocracy was violently brought to an end by revolution. Nicholas abdicated. His

53 ibid.

The Tsar as Emperor 27 brother Grand Duke Michael was unwilling to assume the throne, and the administration passed to an ineffective Provisional Government. This had aimed to oversee the transition from autocracy to democracy through an elected Constituent Assembly.54 However, before the ballot, the Provisional Government lost power in the 1917 Great October Socialist Revolution to the arguably more representative Petrograd Soviet of Workers’ and Soldiers’ Deputies. Nevertheless, in November 1917 widespread elections were held for the Constituent Assembly, which convened in January 1918. Lenin’s draft Declaration of the Rights of the Working and Exploited People was presented to it, but was rejected. Three days later, while its members were at lunch, its door was barred by sailors loyal to Lenin. ‘Thus ended the only genuinely elected legislative body during the whole period of Soviet rule.’55 I. The Imperial Legacy Historian Chubarov concludes that despite reforms by Peter and Catherine the Great, and Alexander I and Alexander II: [T]he basic, essential features of Russia’s political system were still practically unchanged in the early twentieth century from what they had been in the seventeenth century.56

There was mutual mistrust between the population and the Government. There was censorship, restrictive laws against association and the exercise of religious belief (other than Orthodox Christianity), restriction of movement both within and out of Russia, and lack of effective means to express political aspirations. Russia’s particular history, with a combination of the Autocrat’s sense of divine office and little opportunity for civic society as understood by Russia’s western neighbours, meant that the revolutionaries, and in particular the founders of Soviet Russia, had limited experience of an effective written Constitution, or indeed any sense of constitutionality.

54 On some of the Provisional Government’s ‘failed’ institutions, see D Orlovsky, ‘The Provisional Government: A Centennial View’ (2018) 45 Russian History 178. 55 D Barry and C Barner-Barry, Contemporary Soviet Politics: An Introduction (Englewood Cliffs, NJ, Prentice Hall, 1977) at 21, cited in RR Ludwikowski, ConstitutionMaking in the Region of Former Soviet Dominance (Durham, NC, Duke University Press, 1996) 17. 56 Chubarov, above n 29 at 210.

28 Historical Background to the 1993 Constitution As Pomeranz succinctly concludes: ‘Prerevolutionary Russia’s truncated constitutional experience never overcame the basic autocratic foundations of Russian law.’57 That is not to say that there was no notion of rights in the Russian Empire, but they attached to social groups – ranks defined by the State – rather than individuals.58 The idea of natural personal rights was regarded by Russian conservatives as ‘harmful to youth’.59 There was also the preference for gradual ‘change from above’: [B]y means of refining existing institutions. The establishment of complete ‘legality’, as the authorities saw it, replaced the need for a constitution – something that was alien to domestic traditions.60

The unusual nature of the Russian Empire, with contiguous subjugated territories, impacted concepts of citizenship and Statehood. Issues of diversity were close to home. Some differences were tolerated – for example, Alexander I allowed Poland a written Constitution in 1818, but felt his Russian subjects not yet sufficiently developed for one.61 In Imperial Russia, approaches to reform tended to divide into two antagonistic views. The Westernisers advocated copying external models, whilst the Slavophiles sought inspiration from existing social traditions. Borisova persuasively shows that in the codification debate in early nineteenth-century Russia, the Russian word Ulozhenie (compilation) became associated with theorists sympathetic to the former approach, and Svod (Digest) with the latter.62 Medushevsky sees a similar polarisation in the approach to constitutionalism.63 On the one hand, liberal aristocrats sought a Constitution imposed from above; on the other hand, revolutionary movements tried to smash the existing system from below. The Decembrists epitomised this division. They were in two groups, North and South Decembrists, with opposed views: the former wanting constitutional monarchy and the latter a republic. Neither succeeded.

57 Pomeranz, above n 27 at 67. 58 J Burbank, ‘An Imperial Rights Regime: Law and Citizenship in the Russian Empire’ (2006) 7(3) Kritika 397; and Borisova, above n 44 at 305. 59 Borisova, above n 44 at 318. 60 ibid 321. 61 ibid 330. 62 See Borisova, above n 44; T Borisova, ‘The Institutional Resilience of Russian Law through 1905–1917 Revolutions’ (2017) 5(4) Russian Law Journal 108. 63 Medushevsky, above n 33 at 81 and 87.

End of Empire and Establishing Soviet Power 29 IV. END OF EMPIRE AND ESTABLISHING SOVIET POWER

A. Creating the Soviet State During the 1905 turmoil, St Petersburg workers established a group to coordinate strike action: the Soviet of Workers’ Deputies (soviet means council). This became the model for revolutionaries opposing the Provisional Government after the Tsar’s abdication in March 1917. When Lenin returned to Russia in April 1917, he published his ‘April Theses’ calling for ‘All power to the soviets’. His Bolsheviks took charge after the October 1917 Revolution,64 forming the Russian Socialist Federated Soviet Republic (RSFSR)65 and issuing the 1918 RSFSR Constitution. Civil war in the former Russian Empire eventually ended with the formation of other revolutionary states: the Ukraine, Belorussian, Azerbaijan, Armenian and Georgian Soviet Socialist Republics, and the Bukhara and Khorezm Soviet People’s Republics. In December 1922 the ‘voluntary’ amalgamation of these by treaty with the RSFSR formed the Union of Soviet Socialist Republics (USSR; Soviet Union).66 The first USSR Constitution was in January 1924. The RSFSR consequentially issued its second Constitution in May 1925. Further constitutions followed: for the USSR in 1936 and 1977; and for the RSFSR in 1937 and 1978. The roles of Soviet Constitutions are summarised below. Lenin instituted a system of soviets as representative agencies to harness the masses’ revolutionary zeal, forming in theory a ‘bottom-up’ State structure, although always under the watchful eye of the Communist Party of the Soviet Union (or ‘the Party’, as it was later known) which had a monopoly on political activity. Over time, soviets’ name changed: from 1918 (soviets of ‘workers’, soldiers’ and peasants’ deputies’) through 1936 (‘working people’s deputies’) to 1977 (‘people’s deputies’) as the ‘State of the whole people’ was declared to have been achieved.

64 Russia used the Julian Calendar lagging 13 days behind the Gregorian Calendar, until 1 February 1918, which became 14 February. Revolution Day, celebrating the Great October Socialist Revolution, was 11 November. 65 The name was changed in 1936 to the Russian Soviet Federated Socialist Republic to indicate the victory of socialism; see GP van den Berg, ‘Power-Sharing Compacts under Russian Constitutional Law’ in R Sharlet and FJM Feldbrugge (eds), Public Policy and Law in Russia: In Search of a Unified Legal and Political Space (Leiden, Nijhoff, 2005) 43, fn 5. 66 On the USSR’s formation, see J Hazard, ‘The Soviet Constitution: An Introduction’ (1943) 3 Lawyers Guild Review 27.

30 Historical Background to the 1993 Constitution The 1918 RSFSR Constitution had a class-based voting system, but the 1936 USSR Constitution introduced universal suffrage, with direct election to all soviets. In its developed form, this was a hierarchy headed by the USSR Supreme Soviet, with local soviets at the bottom, and federal regional soviets and Union Republic (UR) Supreme Soviets in between. The USSR Supreme Soviet was bicameral, having the Soviet of the Union and the Soviet of Nationalities. From 1936, Soviet terminology distinguished between agencies of State power and agencies of State administration. Soviets were the agencies of State power and were both representative and legislative bodies. There was a separate governmental agency, the Council of Ministers (earlier known as the Council of People’s Commissars). Assisting the Supreme Soviet and exercising its powers when it was in recess was its Presidium, elected from its deputies. The formal Head of State was the Chairman of the USSR Presidium. Each soviet elected members to form its permanently functioning executive committee (ispolkom) as its agency of State administration. Every ispolkom was answerable both to its soviet and to the next higher-level soviet’s ispolkom, up to the USSR Presidium. This double tie-in (‘dual subordination’) worked well to ensure cohesion across the huge Soviet State, particularly as all the leading members would be Communist Party members working under Party discipline.67 The USSR Supreme Soviet was the main legislative agency. Its laws were known as zakony. However, its Presidium could amend laws, issue edicts and adopt decrees, and also annul decrees and regulations of the USSR or UR Councils of Ministers (Governments) if they did not conform to law. UR Supreme Soviets and Presidia could legislate within their jurisdiction, as could autonomous republic Soviets and Presidia, and local soviets and their executive committees. USSR and UR Councils of Ministers had legislative powers, but only ‘on the basis and in execution’ of higher legislative acts.68 Many other agencies (including social organisations such as the Party) and even individual officials could also legislate.69 Soviet Constitutions failed to mention that elections would have only one candidate per post. Stalin ‘apparently envisaged several candidates 67 S Dobrin, ‘Soviet Federalism and the Principle of Double Subordination’ (1944) 30 Transactions of the Grotius Society 260. 68 1977 Constitution, arts 133 and 140. 69 On types of Soviet legislation, see WE Butler, ‘Techniques of Law Reform in the Soviet Union’ (1978) 31 Current Legal Problems 209; WE Butler, Soviet Law, 2nd edn (London, Butterworths, 1988) 41–50.

End of Empire and Establishing Soviet Power 31 for a position, even though there would be only one political party’,70 but decided against this, supposedly out of a ‘developing fear of European war’.71 From then until the perestroika reforms discussed below, Soviet elections were characterised by pre-election selection. The Party vetted the single candidate to ensure ‘suitable people’ in all State agencies. One ironic side-effect was that the USSR Supreme Soviet (at least during the Brezhnev era) was more representative of the population by gender, age and ethnicity than legislatures in Western democracies. It also existed mainly for show, meeting twice a year for two to three days, with deputies attending in national costume, if they had one, and keeping their prior jobs as their representative duties were minimal. The more serious legislative work was done by the Presidium, whose members’ ‘day jobs’ were generally as Party bureaucrats. However, even with single-candidate elections, occasionally someone failed to be elected. If enough brave people entered the polling booth and crossed the name off the ballot, the candidate would not gain the required majority. Van den Berg, writing in 1978, found only one instance when a candidate for a USSR or UR Supreme Soviet was rejected.72 Unger noted that, although rare, it was not unknown in local elections; in 1939, ‘125 out of a total of 1.3 million failed to get elected; in 1977 the equivalent figures were 61 out of 2.2 million’.73 B. Marxist Theory on State and Law The revolutionaries’ belief in Marxist theory gave them a distinctive perspective on law’s role in society, and consequently a novel view of the function of a written constitution. Marxist theory asserts that society develops in set stages: tribal/communal; slave-owning; feudal; capitalist; and finally socialist/communist, when workers own the means of production, so class antagonism no longer exists to drive societal evolution. At each societal stage, the means of production form the

70 Hazard, above n 66 at 40. 71 ibid. See also GP van den Berg, ‘A New Electoral Law in the Soviet Union’ (1978) 4 Review of Socialist Law 353, 354. 72 In the October 1939 elections for the National Assembly of Western Belorussia: ibid 356. 73 AL Unger, Constitutional Development in the USSR: A Guide to the Soviet Constitutions (London, Methuen, 1981) 113.

32 Historical Background to the 1993 Constitution all-important economic substructure. Law, religion and morals are mere superstructure. Law thus does not have any intrinsic enduring quality, but is contingent on society’s particular evolutionary stage. In all but communism, the ruling class uses law as a tool to subjugate others. The final stage of communism has no ruling class; workers own the fruits of their own labour. Elimination of parasitic groups (eg, capitalists and religious organisations) would allow the communist principle ‘from each according to his ability, unto each according to his needs’. Friedrich Engels financially supported Karl Marx and popularised Marx’s theory. Engels’ 1884 book The Origin of the Family, Private Property and the State highlighted the ‘withering away of the state’ as communism is achieved: Society, which will reorganise production on the basis of a free and equal society of producers, will put the whole machinery of state where it will then belong: into the museum of antiquities, by the side of the spinning-wheel and the bronze axe.74

Marx claimed his theory was scientifically proven, so progress to communism was inevitable. This has two important repercussions. First, the end justifies the means if one were attempting, like Lenin, to accelerate progress. Second, as society develops in stages, any written constitution need only be appropriate for that stage rather than an immutable expression of some founding fathers’ will. Soviet theoreticians extended Marx and Engels’ simple five stages of societal evolution, particularly as the Soviet State endured in a mainly hostile world without yet achieving communism. It became a tradition for the Party leader to enhance ideology with a new stage, often marked by a new constitution.75 Lenin introduced the ‘dictatorship of the proletariat’, where the proletariat, led by the Party vanguard, commandeered the existing State structure to accelerate progress towards socialism. Under the dictatorship of the proletariat, the maxim was ‘he who does not work, neither shall he eat’ (Article 18 of the RSFSR Constitution of 1918). Unlike Marx, Soviet theory treated socialism as a separate stage to be traversed before communism. Stalin, Party General Secretary from 74 F Engels, The Origin of the Family, Private Property and the State (Moscow, Progress Publishers, 1968) 170. 75 A Evans, ‘Developed Socialism in Soviet Ideology’ (1977) 38 Soviet Studies 409; K Ruutu, ‘Past, Present and Future in Russian Constitutional Politics: Russian Constitutions in Conceptual Historical Perspective’ (2010) 35 Review of Central and East European Law 77.

End of Empire and Establishing Soviet Power 33 March 1922 to March 1953, declared when introducing the draft 1936 USSR Constitution that ‘the complete victory of the socialist system in all spheres of the national economy is now a fact’.76 Antagonistic classes had been eliminated, leaving the two fraternal classes, workers and peasants, symbolised by the hammer and sickle of Soviet iconography. In 1961 the Party, now led by Nikita Khrushchev, adopted a new Party Programme, asserting that the USSR had reached the stage of ‘fullscale construction of communism’ with the unification of workers and peasants into a ‘State of the whole people’, and a reduced role for the State in the expectation of a rapid progression to communism. Opposed and ousted by Party colleagues in October 1964, Khrushchev’s utopian predictions were quietly ignored. In the 1970s, Khrushchev’s successor, Leonid Brezhnev, moved the utopian goal even further away through the further refinement of ‘developed socialism’, marked by the adoption of the 1977 USSR Constitution. Neither of the next two Party leaders, Yuri Andropov (November 1982 to February 1984) and Konstantin Chernenko (February 1984 to March 1985), held office long enough to have an impact on theory, but the next and last Party General Secretary, Mikhail Gorbachev, until he resigned that post in August 1991, instigated a new Party Programme and reassessment of the application of Leninist principles in his perestroika movement, which is discussed below. C. The Function of a Soviet Constitution It is difficult to reconcile a notion of constitutionalism with Marxist theory. Both Marx and Lenin, particularly in the latter’s pre-revolutionary writings, described the State as a tool of oppression by the ruling class. In 1917 Lenin wrote in The State and Revolution that the bourgeois State should be forcibly smashed, to be replaced by a proletarian State which will wither away as depicted by Engels. Faced with having a State to run, Lenin modified his view to allow the possibility of the proletariat taking over the existing structure to create a workers’ State. Embodying the will of the working people, this could never be in conflict with the people, so there would be no need for any mechanisms to protect people from State actions. The same reasoning undermines any requirement for

76 JV Stalin, ‘On the Draft Constitution of the USSR’ in Collected Works, vol 14 (London, Red Star Press, 1964).

34 Historical Background to the 1993 Constitution separation of powers. There is but one power – the people’s – administered on their behalf by appropriate State agencies. Separation of powers was thus decried as a ‘bourgeois fiction’. Prior to 1990, the USSR was a single-party State. The Communist Party ruled and it did so through total control – of personnel in key positions and of citizens’ economic life, as well as their social and political activities. Nevertheless, the Party had decided that constitutions were important symbols, so the Soviet State had not one but many. In 1988 Butler could write: ‘At the moment, 36 constitutions are in force on Soviet territory.’77 Not only the USSR but each of its (then) 15 Union Republics, and the autonomous republics within some of those, had a Constitution. Unsurprisingly, their substantive wording was remarkably similar.78 Why have a Soviet Constitution? It did not work well as a legal document. It was not directly applicable. It could not be pleaded in court and, although described as ‘Basic Law’, subordinate legislation was occasionally inconsistent with it. However, any constitution is a political as well as a legal document, and this aspect was particularly strong for Lenin, who famously asserted: ‘Law is a political measure, is politics.’79 A Soviet Constitution acted as an educative ‘propaganda’ document for both internal and external audiences. It depicted a functioning workers’ State, enhancing its legitimacy. A new constitution would mark achievement of a new stage, but paradoxically at the same time it would be aspirational, a blueprint for the future.80 One clear function of a Soviet Constitution was to describe State agencies, although not always with complete candour. With no separation of powers, State agencies did not neatly divide between the standard trilogy of legislative, executive and judicial. Particularly in the idealistic 1918 RSFSR Constitution, there was no attempt to delineate between the two central agencies, the All-Russian Congress of Soviets and its Central Executive Committee (CEC). They were jointly specified to have ‘jurisdiction over all matters of general State importance’ listed in Article 49, as well as ‘any other matter which they deem within their jurisdiction’

77 Butler, Soviet Law above n 69 at 143. 78 See WB Simons, ‘Introduction’ in WB Simons (ed), Constitutions of the Communist World (Leiden, Brill, 1980). 79 ‘Zakon est’ mera politicheskaia, est’ politika.’ V Lenin, ‘O Karikature na Marxism i ob “imperialisticheskom kapitalisme”’ in Polnoe Sobranie Sochinenii, 5th edn (Moscow, Politicheskaia Literatura, 1973) vol 30, at 99. English translation: V Lenin, ‘A Caricature of Marxism and Imperialist Economism’ in Collected Works, vol 23 (Moscow, Progress Publishers, 1964). 80 Simons, above n 78 at xi–xvi.

End of Empire and Establishing Soviet Power 35 (Article 50). There were also gaps: no mention of the CEC’s Presidium, or of the Bolshevik Party (as it was then known) or the Cheka, the Extraordinary Commission for Combating Counter-Revolution, the first in a long line of Soviet State security organisations. D. The Soviet Law on Individual Rights Soviet Marxist theory also affected the approach to individual rights. Rights in the 1918 RSFSR Constitution combined a reaction against prerevolutionary religious discrimination with overt political discrimination. Part One of the Constitution was Lenin’s Declaration of the Rights of the Working and Exploited People. Despite its name, the Declaration did not itemise rights, but flagged up political objectives: nationalisation of land and natural resources, moving towards State ownership of enterprises, railways and banks; repudiation of debts ‘contracted by the governments of the Tsar, the landlords and the bourgeoisie’; bringing about peace, granting independence to Finland and proclaiming Armenia’s right of self-determination. By the early 1920s the Declaration was outdated: ‘Indeed Lenin himself, shortly after its publication, had baptised it “a child of the revolution in a very bad hat.”.’81 The Constitution’s General Provisions included some rights. The freedom of conscience article allowed both religious and anti-religious propaganda. However, as the Constitution was geared to ‘establish[ing] a dictatorship of the urban and rural proletariat and the poorest peasantry … with a view to crushing completely the bourgeoisie’ (Article 9), there could be no equality. Discrimination was evident; at all levels, representation was heavily weighted against rural inhabitants, with both active and passive franchise severely restricted on class grounds. Any individual or group could be deprived of their rights if ‘used to the detriment of the interest of the socialist revolution’ (Article 23). The 1924 USSR Constitution dealing exclusively with State structure had no section on individual rights. Chapter X of the 1936 ‘Stalin’ USSR Constitution specified Fundamental Rights and Duties of Citizens; for the first time, rights were awarded on the basis of citizenship, not class. Since Stalin’s declaration of the victory of socialism, there was no need to discriminate according

81 B Mirkine-Guetzévitch, ‘The Public Law System of the Sovietic Dictatorship’ (1930) 12 Journal of Comparative Legislation and International Law 248 at 256.

36 Historical Background to the 1993 Constitution to ‘race or nationality, religious persuasion, educational qualification, domicile, social origin, property status and past activities’ (Article 135). All citizens aged 18 or over could now vote, ‘with the exception of the insane and persons convicted by a court of law to deprivation of electoral rights’. Article 126 contained the one mention of the Communist Party as the ‘vanguard of the workers … and the leading core of all organisations’. The approach to rights was similar to that of the 1977 Constitution, which is discussed below.82 The developed USSR was proud of its law on individual rights. Rights in the 1977 USSR ‘Brezhnev’ Constitution had advanced in priority compared to the 1936 Constitution. ‘The State and the Individual’ was the second of nine chapters, preceded only by the ‘Fundamentals of the Social Order and Policy of the USSR’. By 1977: [P]reoccupation with human rights had become a major international concern – not least owing to the activities of the dissident movement in the USSR itself … [T]he Soviet Union had become a party to formal international commitments, most notably the two 1966 UN Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights (ratified by the USSR in 1973) and the 1975 Helsinki Final Act. More important, the postStalin leadership of the USSR greatly expanded both the material welfare and the legal security of Soviet citizens. In regard to both socio-economic rights and civil liberties, therefore, the new constitution was able to incorporate changes already accomplished and in large part embodied in ordinary legislation.83

Following Marxist priorities, economic rights were listed before social and political rights, with the focus on practical implementation. Particularly for economic rights, each substantive article had a paragraph detailing measures to guarantee its implementation. Supporters of the Soviet concrete approach to rights regarded it as superior. They criticised bourgeois States’ theoretical rights: what good is a right to work when the capitalist economic system assumes inevitable unemployment? By contrast, the Soviet centrally planned economy was designed to ensure that everyone capable of working exercised that right (Article 40 of the 1977 Constitution). Work was simultaneously a duty under Article 60. There were also other duties. Article 66 exhorted parents to ‘be obliged to be concerned about the upbringing of children, to prepare them for socially useful labour, and to raise worthy members of socialist society’.

82 The

RSFSR Constitutions had equivalent provisions. above n 73 at 194.

83 Unger,

End of Empire and Establishing Soviet Power 37 In return: ‘Children shall be obliged to be concerned about parents and to assist them.’ Equality was a much-vaunted principle. Article 34 called for equality of citizens, irrespective of: [O]rigin, social and property position, racial and national affiliation, sex, education, language, attitude to religion, type and nature of occupation, place of residence, and other circumstances.

Equality of nationality was important within the federal multi-ethnic Soviet State, and sex equality meant women could take their place in the national workforce. In fact, ‘Equality of Citizens’ was so important it had a separate short chapter. But the 1977 Constitution did not have ‘human rights’. They were neither inherent nor inalienable, but were based on the theory of ‘dependent rights’. The chapter title referred to ‘Rights, Freedoms and Duties’, and Article 59 made it absolutely explicit that: ‘The exercise of rights and freedoms shall be inseparable from the performance by a citizen of his duties.’ The phrase ‘human rights’ only appeared in the 1977 Constitution’s chapter on Foreign Policy, where ‘respect for human rights and freedoms’ was embedded in Article 29 as a principle guiding relations between the USSR and other States, particularly those not following the socialist path. It followed the principle of ‘non-interference in internal affairs’. The rights articles in the 1977 Constitution did not have direct application in court. Additional legislation was needed. Thus, the Article 58(2) right to appeal to a court actions of officials was only brought into operation 10 years later (see Chapter 8, section IV.C). Another important feature of the 1936 and 1977 Constitutions was that socio-political rights contained very clear words of limitation. For example, Article 47 of the 1977 Constitution ‘guaranteed freedom of scientific, technical and artistic creativity’ only ‘in conformity with the aims of communist construction’. Article 51 on the right to unite in social organisations had a similar restriction. Freedoms of speech, press, assembly and meetings, street processions and demonstrations (Article 50) were guaranteed only if exercised ‘in conformity with the interests of the people and in order to strengthen and develop the socialist system’. Activities which the State deemed contrary to these lofty purposes were criminalised. Also, Article 52 on freedom of conscience was asymmetrical, giving freedom to ‘profess any religion or none, to perform religious worship, or to conduct atheist propaganda’ with no freedom to conduct religious propaganda. Those whose belief systems

38 Historical Background to the 1993 Constitution encouraged active proselytising, such as Jehovah’s Witnesses, could be, and were, prosecuted. Thus, there were individual rights during the Soviet period, but their focus and practical application was intimately tied to the prevailing State ideology. V. PERESTROIKA: A TIME OF CHANGE

In March 1985 Gorbachev became Communist Party General Secretary, elected by the Party because he was a reformer. He was the first lawyer in the Party Politburo since Lenin, bringing knowledge of, and respect for, law. Significantly, he encouraged aspirations towards rule of law, based on ‘pravo’ (see Preface). Already a rising star when Brezhnev’s successor Andropov died – Gorbachev organised Andropov’s funeral, indicating that he was the heir apparent – he waited, strategically placing supporters in the Party during the brief Party leader tenure of Brezhnev’s old friend Chernenko. There was a 20-year generation gap between the previous three Party General Secretaries and Gorbachev. The missing generation had been decimated during the Great Patriotic War: ‘of the male babies born from 1920 to 1925, the peak fighting generation, only 3 per cent survived’.84 A mere 54 years old when he became Party leader, Gorbachev had the youth and energy to push through dramatic changes in USSR governance. Although the Party’s primary motivation in electing Gorbachev was economic reform, his vision also included social and political reform. He advocated ‘perestroika’, that is, restructuring or reconstruction, in all areas of Soviet life, whilst attempting to remain true to the Leninist vision of progress. Perestroika watchwords included glasnost’ (openness to speak out), demokratizatsiia (democratisation) and gumanism (humanism). In 1986 the Communist Party held its 27th Party Congress, where it agreed a new Party Programme and framework for economic reforms. Plans to implement significant economic reforms quickly followed. These aimed to encourage ‘socialist competition’, initiative and democracy in the workplace, although still within a centrally planned economy. In June 1988 the Party convened the 19th Party Conference to discuss requirements for the next stage of perestroika. The Conference was 84 M Walker, The Waking Giant: The Soviet Union under Gorbachev (London, Penguin, 1987) xix.

Perestroika: A Time of Change 39 the first for 47 years (in contrast to the five-yearly Party Congresses). Six ‘Theses’ proposed by the Party Central Committee were discussed by Party members elected to attend by Party members, resulting in Resolutions highlighting the requirements to advance perestroika in each sector: On Progress in the Implementation of the Decisions of the Party Congress; Democratisation of Soviet Society and the Reform of the Political System; the Struggle against Bureaucratism; Relations between Nationalities; Glasnost’; and, lastly, Legal Reform. This last Resolution was groundbreaking. It opened with an acknowledgement that there should be a socialist rule-of-law State (sotsialisticheskoe pravovoe gosudarstvo), with reforms ‘to ensure the supremacy of the law in all spheres of the life of society’.85 Linking ‘pravo’ to the concept of a socialist State was radical. Amongst other things, the Resolution called for strengthening judicial independence and that ‘it would be useful to institute a constitutional supervision committee’. Although having no legislative authority, as a policy document from the ruling Party, it was taken seriously, and over the following years, all its recommendations were implemented with only minor digressions. The tradition of reform from above held strong. The Resolution on Democratisation also led to far-reaching reforms. A new form of democracy was advocated, with multi-candidate elections of representatives86 to a completely revised Legislature. Consequently, on 1 December 1988, Chapter 12 onwards of the 1977 USSR Constitution was transformed, setting in train creation of the USSR Congress of People’s Deputies (CPD) as a completely new ‘highest agency of State power’, replacing the USSR Supreme Soviet. The much smaller, indirectly elected USSR Presidium was also superseded. The new CPD was large, with 2,250 delegates (the old Supreme Soviet had 1,500). It had five-year terms, meeting at least once annually. Although unicameral, delegates gained seats in one of three ways. One-third were elected from electoral districts based on population, one-third from the USSR’s different federal entities87 and, as a complete innovation, onethird were put in post by ‘social organisations’ listed in the new USSR Law on Elections of People’s Deputies. These comprised the Party, trade unions, the Young Communists’ League, veterans and women’s groups,

85 Resolution 1 passed on 1 July 1988, reported in Pravda and Izvestiia, 5 July 1988. 86 Butler recalls that ‘[i]n the 1987 elections, as an experiment, multiple candidates were nominated in selected districts’: Butler, Soviet Law above n 69 at 154 87 32 deputies from each UR, 11 from each autonomous republic, five from each autonomous region and one from each autonomous national area.

40 Historical Background to the 1993 Constitution and others such as stamp collectors, cinema fans, book lovers and musicians (previously, social organisations could propose candidates). For the first two types of constituencies, elections were multi-candidate, with candidates aged at least 21.88 Social organisations could each decide how to fill their allotted seats. The Party was given 100 seats. For the first time, it had a formal role in the State structure, which was ironic since one of Gorbachev’s perestroika goals was to reduce hands-on day-today Party governance, returning it to being the ‘guiding and directing force’ (Article 6 of the 1977 Constitution). The Party put up 100 candidates; Gorbachev headed the list. This champion of democratisation was thus never subject to popular election, gaining his CPD seat through Party selection, and then appointed by the CPD in March 1990 as USSR President (see below). The CPD’s novel tripartite method of formation undermined any principle of equality. All adult citizens could vote for a constituency deputy and a representative from the different federal entities within which they lived (UR, territory, region, etc). However, serious inequality arose from ‘social organisation’ representation. Depending on which, if any, of these a citizen belonged to, they might select some deputies – or none at all – for that third of the CPD. The Soviet response to criticism of this uneven input was dismissive; they saw no problem with their innovative method of increased representation of the most socially active citizens. There were two other important characteristics of the CPD’s new deputies. First, although elections were multi-candidate, they were not yet multi-party. The Party still had the monopoly of political power, although new ‘informal organisations’ which perestroika encouraged could nominate candidates. Second, deputies were paid. There was initial controversy as to whether pay should be uniform or should be linked to each deputy’s loss of earnings. Uniformity won. For the first time in the USSR, there were professional democratic representatives – the start of a political elite. The 1988 constitutional amendments had a reformed Supreme Soviet as ‘the permanently functioning legislative, administrative, and control agency of State power of the USSR’ (Article 111). Despite its old name, this was a new body. Its 542 members were CPD deputies elected amongst themselves by secret ballot. Bicameral like its previous namesake, the new

88 The 1988 USSR constitutional amendment said that deputies to a UR CPD need only be 18 years old. In 1989 this was deleted, and URs set their own age restrictions.

Perestroika: A Time of Change 41 Soviet of the Union had deputies from social organisations and electoral districts based on population; the Soviet of Nationalities’ deputies were from social organisations and federal subjects.89 The two chambers, of equal size, had equal rights. At a joint session they appointed the Council of Ministers (Government), which was accountable to both the CPD and the Supreme Soviet. The Supreme Soviet sat twice a year for ‘as a rule, three to four months’ duration’ (Article 112). In theory, one-fifth of its membership was replaced annually (Article 111), but during its two-year existence, this never happened. The Supreme Soviet Presidium was also revamped, with a muchreduced role. Its composition was mainly ex officio and duties were mainly honorific, but it could issue edicts, adopt decrees and declare war. Importantly, it retained power to ‘exercise control over observance of the USSR Constitution and ensure the conformity of UR constitutions and laws to the USSR Constitution and laws’ (Article 121(4)). The draft constitutional amendments had eliminated this, because the Constitutional Supervision Committee (CSC) was being created (see Chapter 7, section II.B). However, a dispute in the autumn of 1988 with the Estonian UR over whose legislation had supremacy showed the utility of the Presidium’s powerful sanction, so it was reinstated.90 Only the CPD could amend the Constitution. Otherwise the Supreme Soviet had a very broad legislative remit – effectively, anything else. It could adopt laws and decrees, provided they did not contradict the Constitution or CPD legislation. The USSR Supreme Soviet Chairman was the ‘highest official’ (Article 120) and had some specific powers, including issuing regulations. Elections to form the first USSR CPD were in March 1989. Results were dramatic. With a nearly 90 per cent turnout, a politicised public took the opportunity to reject some high-profile Party members. Boris Yel’tsin gained over 89 per cent of the vote in Moscow Number One constituency, in spite of, or possibly because of, a Party campaign to discredit him91 (although he did not relinquish Party membership for another year).

89 11 from each UR, four from each autonomous republic, two from each autonomous region and one from each autonomous national area. 90 See J Henderson, ‘The Soviet Constitutional Reforms of December 1 1988: An Analysis of the Changes from Draft to Law’ in R Plender (ed), Legal History and Comparative Law: Essays in Honour of Albert Kiralfy (London, Frank Cass, 1990) 73, 90. 91 See B Yeltsin (trans M Glenny), Against the Grain (New York, Simon & Schuster, 1990).

42 Historical Background to the 1993 Constitution He managed to secure a seat in the Supreme Soviet because a supportive deputy from Siberia ceded his seat.92 Some run-off elections were required, as the existing rule that the winner needed at least 50 per cent of the votes, devised for single-candidate Soviet elections, was still in place. Sessions of the CPD’s first convocation in May 1989 were televised, but this exercise in glasnost’ (openness) was curtailed as people shirked work to watch the novel spectacle of public political debate; a 20 per cent fall in industrial production was recorded during its first few days.93 These amendments were the nearest there was to a perestroika Constitution. Apart from a change in the Party’s constitutional position, discussed below, the first 11 chapters, including the chapters on rights, remained untouched. However, despite this, perestroika brought a complete change in the approach to rights; no longer dependent, they transformed into human rights (see Chapter 8, section II). In March 1990 the USSR presidency was created to give one individual power to execute perestroika’s dramatic legal, economic and social reforms. The momentous undertakings of relinquishing central state economic planning for a market economy impelled the Communist Party in December 1989 to decide to introduce an executive President to oversee the necessary steps. The 1977 USSR Constitution was accordingly amended in March 1990, establishing the USSR President, to be elected by universal, equal and direct suffrage by secret ballot for a term of five years. No one could be President for more than two terms (absolutely). There were appropriate presidential powers. The President could issue edicts, but only ‘on the basis of and in execution of the USSR Constitution and laws’ (Article 127-7). He had inviolability, but if he breached the USSR Constitution or law, it could be withdrawn by a two-thirds vote in the CPD, at the initiative of the CPD or Supreme Soviet, taking into account an opinion of the Constitutional Supervision Committee. At this stage there was no Vice-President. Despite the Constitution’s words, there was no popular election. Stating concern that a contest might foment civil war, the CPD instead appointed the President. Initially there was more than one candidate, but by the time of the vote on 15 March 1990, Gorbachev, Communist Party General Secretary and Supreme Soviet Chair, was the sole candidate. Once President, Gorbachev stood down as Supreme Soviet Chair, but

92 DD

Barry, Russian Politics: The Post-Soviet Phase (New York, Peter Lang, 2002) 29.

93 ibid.

The USSR Disintegrates 43 retained his Party position, although he increasingly used presidential power, downplaying his Party role. In December 1990 further reforms refined the new arrangements. The post of Vice-President was added; the candidate was to be proposed by the President and elected at presidential elections. Absent such elections, the CPD appointed the chosen candidate, Gennadii Ianaev (Yanaev). The March 1990 amendments also changed the constitutional position of the Party. Under Article 6 of the 1977 USSR Constitution, the Party had an unrivalled position as the ‘guiding and directing force of Soviet society and the core of its political system and State and of [all] state and social organisations’. Article 7 also allowed ‘social organisations’ – the Party and its surrogates such as trades unions – to ‘take part in the administration of State and social affairs and in deciding political, economic and socio-cultural questions’. Despite some bitter opposition, in February 1990 the Party Central Committee approved the elimination of this monopoly.94 On 14 March, Articles 6, 7 and 51 (on the right to associate) were amended to allow citizens to unite in political parties, although the Party retained mention in the new Article 6 in a face-saving compromise. VI. THE USSR DISINTEGRATES

A. The End of the Soviet Experiment President Gorbachev presided over perestroika USSR’s unprecedented reforms. His Achilles’ heel was federal relations: he could not understand why any part of the USSR would want independence from the world’s biggest superpower, and he underestimated the strength of individual national aspirations. In ‘an attempt to relegitimise the authority’95 of the USSR, he initiated a referendum in March 1991 on whether it was ‘necessary to preserve the USSR as a renewed federation of sovereign republics’. Six Union Republics (URs) boycotted it: the three Baltic republics (Estonia, Latvia and Lithuania), plus Armenia, Georgia and Moldova. Russia took the opportunity to ask its population whether they wanted a President (see Chapter 4, section II). Voter support for a renewed USSR was high, at 76.2 per cent of the 75.4 per cent turnout.96

94 ibid

at 41. Sakwa, Russian Politics and Society, 4th edn (Abingdon, Routledge, 2008) 22. 96 ibid. 95 R

44 Historical Background to the 1993 Constitution The nine URs which held the referendum, plus the USSR, worked towards a new USSR Union Treaty, to be signed by Gorbachev on 20 August 1991. It acknowledged greater powers for the URs. Concern about this led a group of leading Party and government members to resist by forming a Committee on the State of Emergency (CSE), composed of Vice-President Gennadii Ianayev, KGB head Vladimir Kriuchkov, Minister of Internal Affairs Boris Pugo, Defence Minister Dmitrii Iazov, Government Chairman Valentin Pavlov, Deputy Head of the Security Council Oleg Baklanov, Head of the Peasants’ Union Vasilii Starodubtsev and Aleksandr Tiziakov, a leading representative of State industry. The CSE attempted to seize control on 19 August while Gorbachev was at his summer retreat at Foros. Rather than returning to Moscow as planned, Gorbachev found himself under house arrest with all phone lines cut. The CSE declared Gorbachev indisposed and tried to transfer power to Ianaev. However, their strategy was not well planned. They did not have wholehearted military support and failed to appreciate the importance of blocking all radio transmissions. Ianaev appeared on television visibly drunk. Russian President Yel’tsin rallied opposition and within a few days the abortive putsch had failed. However, it proved to be a turning point for the USSR. Gorbachev returned to a changed political landscape. The Party had been heavily involved in the putsch, and a betrayed Gorbachev resigned as Party General Secretary on 24 August. The agencies of State power also changed. The USSR Congress of People’s Deputies disbanded itself (on full pay until 1994), as did the Supreme Soviet Presidium. The Supreme Soviet was replaced by a State Council consisting of a Council of Republics and Council of the Union. One of the State Council’s first actions was to declare independence for the three Baltic republics. The Cabinet of Ministers was replaced by Inter-Republican Economic Committee. The Presidency was retained, but the Vice-Presidency was abolished. Yet these changes at the centre were beginning to be irrelevant. The URs, and particularly Russia, had lost faith in the USSR and began to reorganise themselves without it, triggering its dissolution by the end of December 1991.97

97 See DD Barry, ‘The USSR: A Legitimate Dissolution?’ (1992) 18 Review of Central and East European Law 527.

Russian Developments 45 VII. RUSSIAN DEVELOPMENTS

A. Yel’tsin Comes to the Fore In March 1989, Yel’tsin was elected to the USSR CPD, and by 1990 he was also a member of the USSR Supreme Soviet. However, he decided his future lay in Russian not Soviet politics, and was successfully elected to the new Russian CPD. He planned to use that platform to strengthen Russia’s position within the USSR. His first move was to become CPD Chairman. Although the position had little formal executive power, it gave scope for political leverage, an art in which Yel’tsin excelled. The Chairman would be elected by secret ballot of the 1,060 deputies, the winner needing over half their votes. After two inconclusive ballots, Yel’tsin gained 535 votes and was formally instated as the Russian CPD Chairman on 5 June 1990. On 8 June 1990, the CPD voted overwhelmingly to appeal to the legislatures of the other 14 URs, proposing they all begin work on a new Union Treaty. This effort to build a new Treaty ‘from the bottom up’ was as fruitless as Gorbachev’s 1991 efforts to gain approval of a centrally drafted Treaty. B. Russia’s Declaration of State Sovereignty, 12 June 1990 On 12 June 1990, the CPD adopted (by 907 votes to 13) the ‘Declaration on the State Sovereignty of the RSFSR’.98 Three months earlier, the Lithuanian Socialist Republic had approved a ‘Declaration of Independence’; however, the Russian deputies stressed that, in contrast, their Declaration of Sovereignty did not claim independence from the USSR, but merely asserted Russia’s supremacy in case of conflict, including primacy of Russian over Soviet law. Ironically, on the same day, the Russian CPD voted by 704 to 206 to keep the words ‘Soviet’ and ‘Socialist’ in Russia’s formal name (RSFSR). Conservative forces were also at work when the CPD elected the 252 deputies to make up the RSFSR Supreme Soviet. Yel’tsin’s closest allies

98 Translation in WE Butler, Russian Public Law, 3rd edn (London, Wildy, Simmonds & Hill, 2013) 1.

46 Historical Background to the 1993 Constitution failed to get seats, a situation which may have sown the seeds of its future conflict with Yel’tsin after he became Russian President in June 1991. Russia’s Declaration of Sovereignty stopped short of proclaiming immediate total control of laws on its territory. However, it said that Russia was a ‘sovereign State’ (Article 1) having ‘full power … except for those [matters] which it voluntarily transfers to the jurisdiction of the USSR’.99 It claimed ‘the supremacy of the RSFSR Constitution and laws of the RSFSR throughout the territory of the RSFSR’, with the suspension of contrary USSR legislation (Article 5). With these assertions, Russia was stoking up the dispute as to where residual power lay within the USSR, and was inflaming the so-called ‘war of laws’ between increasingly rebellious URs and the USSR, where laws would be inconsistently applied in both, for example, tax legislation in early 1991.100 Russia’s Declaration was to be the basis of a new Russian Constitution and Union Treaty (Article 15), with Article 13 articulating that ‘the separation of legislative, executive, and judicial power shall be a major principle of the functioning of the RSFSR as a rule-of-law State’ and: [R]ights and freedoms provided for by the RSFSR Constitution, USSR Constitution, and generally-recognised norms of international law shall be guaranteed to citizens and stateless persons residing on the territory of the RSFSR. (Article 10)101

These principles are included in the 1993 Russian Constitution. On 15 December 1990 the RSFSR Constitution was amended to incorporate changes consistent with the Declaration of Sovereignty, including in the Preamble Russia’s claim to sovereignty and that it was a ‘democratic rule-of-law State within the renewed USSR’. Yel’tsin was elected as the first Russian President on 12 June 1991 (see Chapter 4, section II). On 6 November, he completely banned in Russia both the Soviet and Russian Communist Parties. The latter had already been suspended and the property of both seized. In 1992 a challenge to the legality of Yel’tsin’s edicts led to a seven-month-long hearing at the RSFSR Constitutional Court – the only formal airing of some of the dark history of Party control (unlike many central European countries, Russia has had no lustration process to remove former Soviet officials). The Court’s careful judgment was a partial win for each side.102 99 ibid. 100 WE Butler, Russian Law, 3rd edn (Oxford, Oxford University Press, 2009) 571. 101 Butler, above n 98 at 2. 102 See I Feofanov, ‘The Establishment of the Constitutional Court in Russia and the Communist Party Case’ (1993) 19 Review of Central and East European Law 623; J Henderson, ‘The Russian Constitutional Court and the Communist Party Case: Watershed or Whitewash?’ (2007) 40 Communist and Post-Communist Studies 1.

Russian Developments 47 Further constitutional amendments in November 1991 replaced the State flag with the historic Russian white, blue and red tricolour. Meanwhile, Yel’tsin continued to undermine the USSR. On 8 December 1991 he met with his counterparts from Belarus and Ukraine in Belovezhskaia Pushcha in Belarus, where they jointly signed the ‘Minsk Agreement’. This established the Commonwealth of Independent States (CIS), composed of their three republics, and also declared that ‘the USSR as a subject of international law and geopolitical reality terminates its existence’.103 It also stated that the signatories are ‘endeavouring to build democratic rule-of-law States’104 and that: [F]rom the moment of signature of the present Agreement, the application of the norms of third states … including the former USSR, shall not be permitted. (Article 11)105

The Russian Supreme Soviet ratified the Agreement on 12 December 1991, although it allowed that ‘norms of the former USSR shall apply on the territory of the RSFSR until the adoption of respective legislative acts of the RSFSR’, except where contrary to existing Russian laws and the Agreement itself. On the same day, the Supreme Soviet adopted a decree, ‘On the Denunciation of the Treaty of the Formation of the USSR of 30 December 1922’.106 On 21 December 1991 all the USSR’s other URs except Georgia and the three Baltic Republics signed the Alma Ata Declaration, bringing them into the CIS.107 (Georgia was on the brink of civil war and the Baltic Republics were not interested.) The signatories were Azerbaidzhan, Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, the Russian Federation, Tadzhikistan, Ukraine and Uzbekistan. Seeing the reality of the situation, Gorbachev resigned the USSR Presidency on 25 December 1991, acknowledging that the country of which he was Head of State was ceasing to exist. By the end of 1991, the USSR had dissolved. The URs became independent States, even if they did not yet have their own currency. After 74 years, the Soviet experiment fizzled out. Also on 25 December 1991 the Russian Legislature gave Russia new names: the Russian Federation, alternatively Russia, although the 103 Preamble to the Agreement on the Creation of the Commonwealth of Independent States, in WE Butler (ed and trans), Basic Legal Documents of the Russian Federation (New York, Oceana, 1992) 3. 104 ibid. 105 ibid 2. 106 Butler, above n 98 at 3. 107 Butler, above n 103 at 7.

48 Historical Background to the 1993 Constitution Constitution was not appropriately amended until April 1992. Reference to compliance with the USSR Constitution, and the State arms with the motto ‘proletariat of the world, unite’, remained until the 1993 Constitution. C. Independent Russia Moving into 1992, the pace of change did not diminish in newly independent Russia. Two significant events that spring affected the existing 1978 RSFSR Constitution. First, on 31 March 1992 three treaties were agreed between Russia and almost all of its federal subjects (see further Chapter 3, section III.F.ii).108 Collectively these treaties became Russia’s new Treaty of the Federation, and as such were approved by the Russian Congress of People’s Deputies (CPD) on 10 April. Under the CPD decree, the Treaty’s content was incorporated as an integral part of the then Constitution. Article 1 of the 1993 Constitution’s Concluding and Transitional Provisions preserves the Treaty to the extent that it does not contradict the Constitution. Second, on 21 April 1992 the chapter on individual rights was completely replaced. Almost in its entirety, the Russian Declaration of the Rights of Man and Citizen of November 1991 was incorporated as a revised Chapter 5. This brought into that Constitution contemporary human rights law, consistent with international legal provisions and explicitly based on the principle of inalienable, inherent rights. The CPD’s meeting in December 1992 was dramatic, both politically and legally. On the positive side, on 9 December 1992 it adopted significant constitutional amendments regarding the legal system: unlimited terms of office for federal judges, new local Justices of the Peace courts, and the possibility of jury trial once enabling legislation was passed. The principle of separation of powers was made explicit. For the first time, private ownership gained constitutional approval. Moscow and St Petersburg were made ‘cities of federal significance’. Unfortunately, these important steps on the way to a reformed legal, economic and social structure were almost overshadowed by Russia’s ‘first constitutional crisis of the post-Soviet era’:109 a power struggle between Yel’tsin and the Legislature. That conflict precipitated the promulgation of the 1993 Constitution (see Chapter 3, section II).

108 Butler, 109 E

above n 98 at 686. Huskey, Presidential Power in Russia (Armonk, NY, ME Sharpe, 1999), 30.

Conclusion 49 VIII. CONCLUSION

Those preparing the 1993 Constitution ‘drew expressly’ on the Basic Law of 1906.110 However, using Russia’s past as a guide to Russia’s present or future involves appropriate selectivity. In many instances Russia’s earlier rulers were reacting to situations beyond their control. Considering preImperial Russia, Feldbrugge notes that ‘if Muscovy could with some exaggeration be described as a war machine under the guise of a state, then this was not the result of an entirely free decision of its rulers’.111 Russia has a vast landmass and few natural protective boundaries. The perceived need to maintain a large conscript army was, at least according to Feldbrugge, the driving force behind the policy of tying the serf to the land, so that the landlord would be able to fulfil his service requirement of providing troops.112 For most of its history, Russia was somewhat isolated from Western Europe, but was not ignorant of developments there. During the Empire, Peter and Catherine II looked west for inspiration, although the application of their discoveries did little to diminish absolutism. In the Soviet era, legal education included history of political doctrines which encompassed Western enlightenment philosophy and ‘State law of bourgeois countries’. Students were taught about these to criticise them, but it also gave them a grounding in alternatives to their own regime’s approach to State and law. Reform from above was a recurrent theme, but during earlier centuries in Russia, the gulf between rulers and ruled was almost unbridgeable. Citizens had little scope to influence governance positively and learned to ignore, or subvert, the official system. That practice of working around rather than with established rules still casts a long shadow over the current Russian legal system, as does mutual mistrust between rulers and ruled, and the concern of the latter that enemies, within or without, undermine all-important State cohesion. Overall, we can see that Russia has had different constitutional settlements. It may be anachronistic to label these alternative constitutionalisms, but clearly attitudes about the role of law in Russian society have varied during its different epochs.

110 WE Butler, Constitutional Foundations of the CIS Countries (London, Simmonds & Hill, 1999) xxiii. 111 Feldbrugge, above n 1 at 24. 112 ibid.

50 Historical Background to the 1993 Constitution FURTHER READING HJ Berman, Justice in the USSR (Cambridge, MA, Harvard University Press, 1963). B Bowring, Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power (Abingdon, Routledge, 2013). T Borisova and J Burbank, ‘Russia’s Legal Trajectories’ Kritika: Explorations in Russian and Eurasian History (2018) 19(3) 469. J Burbank, ‘An Imperial Rights Regime: Law and Citizenship in the Russian Empire’ (2006) 7(3) Kritika 397. FJM Feldbrugge, Russian Law: The End of the Soviet System (Dordrecht, Nijhoff, 1993). M Galeotti, A Short History of Russia: From the Pagans to Putin (London, Ebury Press, 2021). A Medushevsky, Russian Constitutionalism: Historical and Contemporary Development (Abingdon, Routledge, 2006). A Nove, ‘Some Aspects of Soviet Constitutional Theory’ (1949) 12 MLR 12. WE Pomeranz, Law and the Russian State: Russia’s Legal Evolution from Peter the Great to Vladimir Putin (London, Bloomsbury Academic, 2019). AL Unger, Constitutional Development in the USSR: A Guide to the Soviet Constitutions (London, Methuen, 1981). AM Yakovlev with D Gibson, The Bear That Wouldn’t Dance: Failed Attempts to Reform the Constitution of the Former Soviet Union (Manitoba, Legal Research Institute, 1992).

3 Genesis and Overview of the 1993 Constitution of the Russian Federation The Constitution’s Creation and General Schema The Constitution’s Creation – Its Structure – Summary of its Contents

I. INTRODUCTION

T

his chapter explains the political context of the adoption of the 1993 Constitution and gives an overview of its contents. By the end of 1992, the 1978 Russian Soviet Federated Socialist Republic (RSFSR) Constitution had been amended over 400 times and accurate editions were non-existent. It had internal inconsistencies and was not appropriate for post-Soviet Russia. A new constitution was required; the problem was how best to produce one. By the autumn of 1993, political stalemate in Russia induced President Yel’tsin to take drastic steps which resulted in the present Constitution, a new Legislature and a revised Constitutional Court. Despite his actions raising doubts about the legitimacy of the new Constitution, the adopted text was sufficiently close to rival drafts to be accepted by the warring political factions, or at least was preferable to the alternatives of either the extensively hacked Soviet Constitution or no constitution at all. There have been three main sets of amendments since the adoption of the Constitution (see section III.C below). All have strengthened the centralising tendency observed in Russia since 2000. The most significant of these was in 2020. We will discuss the detailed amendments as appropriate in the following chapters.

52 Genesis and Overview of the 1993 Constitution II. THE GENESIS OF THE 1993 CONSTITUTION

A. Draftsmen Get to Work In June 1990, the Russian Congress of People’s Deputies (RSFSR CPD) initiated steps towards a new constitution by establishing a Constitutional Commission of 102 deputies. Nominally chaired by Yel’tsin, its Executive Secretary was Oleg Rumiantsev, a well-known constitutional lawyer, who chaired the smaller, more active working group of around 15 deputies. As a result, the Commission became informally known as the Rumiantsev Commission. It agreed a draft outline by August 1990, which was published that November (the first ‘Rumiantsev draft’). Alternative drafts were also being written.1 The Rumiantsev Commission prepared a compromise draft for the CPD (sitting 28 March–3 April 1991), but by then a Russian Presidency had been agreed in principle, necessitating revision. There were further attempts to get an agreed draft in the changed context following the failed August 1991 putsch (see Chapter 2, section VI.A). In the autumn of 1991, the Rumiantsev Commission unsuccessfully presented two drafts, followed by a third in March 1992, which the CPD approved in April. By this time, Russia’s new Treaty of the Federation of 31 March 1992 had been agreed by almost all Russia’s federal subjects, reducing some of the drafts’ conflicting tensions over federal formulation. Ten days before the CPD’s April meeting, an alternative was published by Anatolii Sobchak, then Mayor of St Petersburg, and fellow leading jurist Sergei Alekseev. They severely criticised Rumiantsev’s draft, feeling that it: [I]nsufficiently protected the civil rights and liberties of Russian citizens, inadequately provided for separation of powers … and was unclear on a ‘national state structure’.2

1 See O Rumyantsev, ‘Russia’s New Constitution’ (1991) 2(2) Journal of Democracy 35; S Believ, ‘The Evolution in Constitutional Debates in Russia in 1992–1993: A Comparative Review’ (1994) 20 Review of Central and East European Law 305; R Moore, ‘The Path to the New Russian Constitution: A Comparison of Executive–Legislative Relations in the Major Drafts’ (1995) 3(1) Demokratizatsiya 44; GP Smith, Reforming the Russian Legal System (Cambridge, Cambridge University Press, 1996) 86. A convenient table of official drafts can be found in J Kahn, Federalism, Democratization, and the Rule of Law in Russia (Oxford, Oxford University Press, 2002) 133. See also R Sakwa, Russian Politics and Society, 5th edn (Abingdon, Routledge, 2021) 91ff. 2 Smith, above n 1 at 88, citing A Kostyukov, Megapolis-Express, 22 April 1992.

The Genesis of the 1993 Constitution 53 Both Sobchak and Alekseev had worked from 1989 on a proposed new USSR Constitution, and their draft Russian Constitution ‘relied heavily on the model Constitution developed by Andrei Sakharov prior to his death in early 1990’.3 Sobchak and Alekseev advocated that the Constitution should be ratified by a Constitutional Assembly, claiming that the CPD had no legitimacy, having been elected in 1990 when the Communist Party was the only legal political party. A rival draft was published in April 1992 by the Presidential Administration, under the guidance of Yel’tsin’s legal adviser Sergei Shakhrai. In it, the President, elected for a six-year term, would head a strong Executive.4 Unsurprisingly, Yel’tsin supported this ‘Presidential draft’, to the annoyance of the Rumiantsev Commission and the CPD, which refused to debate it, despite approving its ‘general outline’ and rejecting other drafts.5 The Rumiantsev Commission produced a further draft in November 1992, but it was not adopted. Skirmishing between President Yel’tsin and the Russian Legislature through 1992 included a failed attempt to impeach him in early December, followed by another in March 1993. A special CPD session opened on 26 March to consider action against Yel’tsin, but on 28 March, an impeachment vote, for exceeding presidential power in initiating a referendum, failed; the 617 ‘for’ votes were 72 short of the required two-thirds majority. The impending stalemate was resolved by joint agreement that a referendum be held on 25 April 1993, with four questions: 1 2 3 4

Do you have confidence in the President of Russia, BN Yel’tsin? Do you approve of the socioeconomic policy being carried out by the President and the Government since 1992? Do you consider it necessary to hold early elections for the President? Do you consider it necessary to hold early elections for the people’s deputies of the Russian Federation (RF)?

The CPD asserted that all four questions raised constitutional issues, and under the 1990 Law ‘On the Referendum of the RSFSR’ therefore required approval of more than half of the total electorate, not merely the majority of votes. Yel’tsin disagreed. On 8 April 1993, a group of Yel’tsin-supporting people’s deputies asked the Constitutional Court to adjudicate. On 21 April, the Court 3 ibid 89. 4 ibid. 5 L Gönenç, Prospects for Constitutionalism in Post-communist Countries (The Hague, Nijhoff, 2002) 160.

54 Genesis and Overview of the 1993 Constitution ruled that questions 1 and 2 primarily concerned a moral and political assessment, were not clearly associated with constitutional amendment and therefore only needed a majority of votes, not a majority of the registered electorate. In contrast, questions 3 and 4 involved the early termination of power of the President and deputies, the terms of which were set in the Constitution. A positive response therefore required the agreement of the majority of eligible voters. The decision was not unanimous. Judge Morshchakova thought that none of the questions raised constitutional issues. Judge Ametistov agreed with the Court’s majority decision in relation to the first two questions, but nevertheless entered a special opinion on the legal force of any referendum outcome. He pointed out that the CPD itself had not passed the decree establishing the referendum by a qualified majority, and therefore it would be unconstitutional for any outcome to affect the Constitution. Yel’tsin and the Russia’s Choice faction supporting him organised a campaign using the slogan ‘Da. Da. Net. Da!’ (Yes. Yes. No. Yes!) to remind his supporters how to vote. Overall Yel’tsin succeeded. He gained 58.67 per cent of the votes on confidence in the President and 53.0 per cent approving his policies. He did less well on the ‘constitutional’ issues: 49.5 per cent of voters did not want early presidential elections, although 67.2 per cent of those who voted (about 43 per cent of the total electorate) agreed that there should be early deputy elections.6 The official results declared that 64.5 per cent of those eligible had voted. These events in the spring of 1993 evidenced the sharpened conflict between the President and the Legislature. A further ‘presidential draft’ was released by Alekseev, Shakhrai and Sobchek on the eve of the 25 April referendum. This was presented to the Rumiantsev Commission on 6 May 1993, which promptly rejected it, publishing its own revised draft the next day. This downgraded the President to being merely a ceremonial Head of State. This draft was to be finalised by 15 October and discussed in a special CPD convocation on 17 November 1993. But warring over the increasingly personalised rival drafts was transforming into direct confrontation, and ‘the constitution, no longer above the political conflict, became simply another instrument in it’.7 Initially, the April referendum results had little practical impact. No new deputy elections were called, which Yel’tsin later said was his 6 Izvestiia, 25 May 1993. 7 RB Ahdieh, Russia’s Constitutional Revolution: Legal Consciousness and the Transition to Democracy 1985–1966 (University Park, PA, Pennsylvania State University Press, 1997) 53.

The Genesis of the 1993 Constitution 55 biggest mistake. But his popular vote of support had profound political importance, giving him confidence to push ahead for a draft new Constitution. In May, he decreed that there would be a Constitutional Assembly convening on 5 June 1993 to formulate a new Constitution based on the 1990 RSFSR Declaration of State Sovereignty and the 1992 Federal Treaty, starting with discussion around the presidential draft Constitution. Before the Constitutional Assembly met, suggestions for additions or amendments were solicited from the federal subjects. Membership was by invitation. It was composed of: 700 regional and republican officials, top political party figures and interest group leaders … Twenty-one of Russia’s 22 republics and all 67 regions (krais and oblasts) were represented.8

The Constitutional Assembly was ‘a veritable “who’s who” of Russia’.9 Representatives were selected by regional administrators, ‘most of whom were loyal to the president’.10 Several Constitutional Court judges were also members, and they were instrumental in making sure that the approved draft included a relatively strong federal Constitutional Court, despite some reduction in its proposed powers.11 The Constitutional Assembly was not unanimously welcomed. Opponents said it was merely a rubber stamp, and the 10 days allotted were insufficient to revise the draft Yel’tsin put forward. Also, Yel’tsin had no specific power to create such a body. The Supreme Soviet Chairman, Ruslan Khasbulatov, ‘remained adamantly opposed to the conference, characterising it as “one way of unconstitutionally adopting a Constitution”’.12 His then Deputy Chairman, Nikolai Riabov, and the Chairman of the Council of Nationalities, Ramazan Abdulatipov, were more conciliatory. They acknowledged that Yel’tsin had acted unconstitutionally in taking the authority to summon a Constitutional Assembly, but nevertheless urged the Legislature’s members to participate. The Supreme Soviet compromised by agreeing to the Assembly, but maintaining that it should consider the parliamentary draft. 8 D Semler, ‘Special Report: Summer in Russia Brings No Real Political Progress’ (1993) 2(3) East European Constitutional Review 20. Chechnia was the one abstaining republic. 9 Ahdieh, above n 7, at 57 fn 42, quoting an interview on 21 July 1993 with E Kovaldin, adviser to the President, Gorbachev Foundation and expert witness to the 1993 Constitutional Conference. 10 Smith, above n 1 at 94. 11 A Trochev, Judging Russia: Constitutional Court in Russian Politics, 1990–2006 (Cambridge, Cambridge University Press, 2008) 73–74. 12 Moore, above n 1 at 50.

56 Genesis and Overview of the 1993 Constitution Yel’tsin’s Chief of Staff, Sergei Filatov, said the Constitutional Assembly had three goals: to produce a single draft constitution; to establish the method for its adoption; and to take a preliminary decision on how the new Legislature should be elected. The 762 diverse representatives were subdivided into five working groups (on Federal Agencies of Power; Federal Subjects; Political Parties; Entrepreneurs and State Enterprises; and Municipalities). Legal Academic Vladimir Kudriavtsev, described by WE Butler as ‘the most senior Russian jurist during his lifetime’,13 led a 60-member ‘Constitutional Arbitration Commission’ which analysed each group’s reports to produce the final revised draft.14 Assembly meetings were: [O]ften contentious. Delegates proposed more than 5,000 amendments … Communist MP Yuri Slobodkin attempted to offer a draft but was removed from the assembly for disorderly conduct. The Supreme Soviet’s official draft was given a late and limited hearing. The Speaker of the parliament, Ruslan Khasbulatov, attended the convention, but after being booed during his opening speech he declared the assembly a sham and stormed out of the meeting, taking with him about 70 participants from local parliaments.15

By Yel’tsin’s 16 June deadline there was no agreed draft, so the main Assembly took a 10-day break while Kudriavtsev’s group continued work. Their reconciled draft was approved by the reconvened Assembly on 26 June. Although based originally on the presidential draft, it incorporated elements from the parliamentary draft – for example, a chapter on the ‘Foundations of the Constitutional System’. The term of presidential office was four years (matching that of the Legislature), not five as in both presidential and parliamentary drafts. The Duma’s role as primary legislator was also spelled out more clearly. The approved Constitutional Assembly draft was issued on 14 July. It was then sent to each federal subject’s legislature for comment. On 16 July, the Supreme Soviet received a report on the Constitutional Assembly’s draft from Constitutional Commission Chair Rumiantsev. Despite the Assembly’s draft incorporating many elements of the earlier 13 J Henderson, ‘Talking across the Fence: Cold War Academic Cooperation in the Legal Sphere’ in T Borisova and W Simons (eds), The Legal Dimension in Cold War Interactions: Some Notes from the Field (Leiden, Brill, 2012) 1 at 7, citing personal information from WE Butler (2 February 2009). Kudriavtsev became Director of the Institute of State and Law of the USSR Academy of Sciences in 1973; he was also a member of the Party Central Committee. 14 ibid. Kudriavtsev had successfully urged the USSR CPD to adopt the USSR Declaration of the Rights of Man on 5 September 1991. 15 Semler, above n 8 at 20.

The Genesis of the 1993 Constitution 57 parliamentary draft, the Supreme Soviet refused ratification, instead issuing its own amended version. In an attempt to forestall Yel’tsin bypassing the legislature with a new Constitution, the Supreme Soviet resolved that a Constitution could only be adopted by a two-thirds majority in the CPD or a referendum. As seen in relation to the April 1993 Referendum, the rules for constitutional amendment via referendum are strict. They require ratification by a majority of the registered electorate with at least 50 per cent participation; a near-impossibility in practice, leaving CPD approval as the only legal option. Proposals that a new Legislature should have an upper chamber, a Federation Council, constituted ex officio by regional leaders, were being discussed in late August, and Yel’tsin’s Government announced that it would be established in September, with or without CPD approval.16 By September, it became clear that any amicable resolution of the political and legal impasses between the President and the Legislature was extremely unlikely. There was also dissent within the Presidential Administration; on 1 September, Yel’tsin peremptorily (and unconstitutionally) dismissed Vice-President Aleksandr Rutskoi with whom he had feuded for some months.17 The desire to achieve an agreed draft constitution had not completely gone. On 8 September, a new Constitutional Working Group was formed, headed by Nikolai Riabov. Its 16 deputies, including Rumiantsev and six other experts, attempted to reconcile the Conference draft with the new Parliamentary draft. Riabov reported on 16 September. However, it was clear to Yel’tsin that under the existing constitutional and legal arrangements, the chances of getting any draft either past a hostile Legislature or through the strict referendum procedure were vanishingly small. As opposition to him in the Legislature grew, so did the likelihood of impeachment. He decided it was time for political resolution of the stalemate. He took bold and controversial action which he claimed was legitimate based on the April referendum endorsement of

16 ibid 23; Kahn, above n 1 at 135. 17 E Huskey, Presidential Power in Russia (Armonk, NY, ME Sharpe, 1999) 31 describes the aftermath of Rutskoi refusing to agree to Yel’tsin’s decree of 20 March: ‘When Sergei Filatov, the head of the Executive Office of the President, greeted Rutskoi, the VicePresident responded: “I won’t shake your hand, you scum”. According to Rutskoi, the following day Filatov reduced the Vice-Presidential staff to six persons’ (N Mishin and AV Rutskoi, Aleksandr Rutskoi: Lefortovskie protokoly [Aleksandr Rutskoi: Lefortovo Protocols] (Moscow, Paleia, 1994) at 33).

58 Genesis and Overview of the 1993 Constitution him and his policies. In his view, that popular support was more significant than the fact that the moves he was about to make were outside his presidential powers. B. Dénouement On 21 September 1993, Yel’tsin issued presidential edict number 1400, ‘On step-by-step [or stage-by-stage – poetapnoi] constitutional reform in the Russian Federation’.18 This mildly titled provision suspended both the existing RSFSR Constitution and the Legislature, specifying that there would be elections on 12 December for a new federal Parliament and a simultaneous national plebiscite to approve the new Constitution. The Edict’s Preamble cited the April referendum results as justification, contrasting the CPD and Supreme Soviet activities which: [A]re destroying the very foundations of the constitutional system of the RF: democracy, the separation of powers, and federalism … The security of Russia – and its people – is more precious than formal compliance with contradictory regulations created by the legislative branch of power.

Neither the Legislature nor the Constitutional Court accepted Yel’tsin’s edict. On 21 September, the Supreme Soviet Presidium declared that Yel’tsin had acted in breach of Article 121(6) of the Constitution and therefore forfeited power to Vice-President Rutskoi. The following day, the Supreme Soviet held an emergency session in the Russian parliamentary building, the White House, and confirmed Yel’tsin’s loss of presidential authority from 8 pm the previous day. The Constitutional Court also held an emergency session at which a majority declared Yel’tsin’s edict to be ultra vires. An inquorate CPD was hastily assembled and designated Yel’tsin’s action a coup d’etat. But practicalities were on Yel’tsin’s side. He controlled the main media, the armed forces and security services, and had informal assurances that Western powers were sympathetic. The deputies were urged to leave the White House and, when they refused, they were blockaded in. Power and water were cut off. Attempts at mediation failed, and by 4 October, the siege was brought to a dramatic and

18 The text and other edicts leading up to the adoption of the Constitution are available in Russian at constitution.garant.ru/history/active, along with a number of significant rival Constitution drafts.

The Genesis of the 1993 Constitution 59 bloody end by Special Force units storming the White House. Rutskoi, Khasbulatov and others were arrested.19 Yel’tsin issued a flurry of edicts giving more details of the new arrangements. On 1 October, elections were set for 12 December to the 450 seats of a new State Duma. On 7 October, ‘pending the adoption of a new Constitution’, the Constitutional Court was suspended by an edict prepared after consultation with Deputy Court Chair Nikolai Vitruk (who had not always seen eye to eye with Court Chair Valerii Zor’kin).20 An edict of 11 October set elections to the second chamber of the new Legislature, the Federation Council, to be held at the same time as the Duma elections. On 15 October, Yel’tsin decreed that a national plebiscite to adopt the new Constitution would be held on 12 December. This was a shrewd political move: if successful, it provided the incoming Constitution with popular legitimacy, and would give Yel’tsin a demonstration of support for his policies and, by extension, himself.21 Furthermore, by specifying in the edict the plebiscite’s terms of a plurality of votes from a turnout of at least 50 per cent of registered voters, Yel’tsin avoided the 1990 Referendum Law, which in any event did not give the President power to initiate a referendum and for constitutional issues demanded approval by 50 per cent of voters, not turnout. A ‘State Chamber’ of the Constitutional Assembly was set up on 15 October to finalise the draft Constitution. This 250-strong body included representatives of the federal subjects, as well as legal and constitutional experts. A ‘Social Chamber’ was set up the same day to get views from various political and social organisations, although its input was: [N]ot evident. Actually modifying the draft Constitution was done by a small circle of people from the President’s associates and individual scholar-experts. On controversial issues a decision was taken by the President himself, some final provisions went into the text in his formulations.22

The draft Constitution was published on 10 November. The rules for electoral campaigning were issued in an edict on 29 October. All registered parties were given equal time on State-owned media, including one hour free on national television. However, discussion of the draft

19 Subsequently released before trial under a Duma amnesty in February 1994, along with those convicted for the August 1991 putsch attempt. 20 Trochev, above n 11 at 75. 21 S Avak’ian, Konstitutsiia Rossii (Moscow, RIuID, 2000) text near fn 220. 22 ibid, text between fns 223 and 224. See also Trochev, above n 11 at 75.

60 Genesis and Overview of the 1993 Constitution Constitution was strenuously discouraged by the President and his First Deputy Government Chairman and Press and Information Minister, Vladimir Shumeiko.23 Having elections on the same ballot as the plebiscite raised the conundrum of what would happen if the draft Constitution failed to achieve sufficient votes. Steps were apparently taken to ensure that this was extremely unlikely. There are substantial grounds to believe that ballot boxes were stuffed.24 These suspicions could not be substantiated as the Central Electoral Commission (CEC) had the ballot papers destroyed after an usually short period, but Nikolai Riabov, who was head of the CEC, was reported to have later admitted in a private conversation a turnout of only 46.7 per cent.25 The CEC’s official result issued on 20 December gave a 54.8 per cent turnout, of which 58.4 per cent approved the Constitution. The plebiscite thresholds were passed, therefore the Constitution entered into force on the date of its official publication: 25 December 1993. In the political circumstances of the time, few wished to query the legitimacy of the new Constitution. It was widely accepted that it was better to have a Constitution than not, and the draft presented was an improvement over the 1978 RSFSR Constitution. Also, as Moore has shown, the draft contained many elements on which there was general political consensus.26 In the event, either because of that consensus or through a conspiracy of silence from those elected to the new Legislature, there was no formal query over the published results. Aside from deliberate falsification, another factor may have favoured the Constitution’s adoption – voter error: The format of the ballot was negative rather than positive, meaning that one had to indicate approval by crossing out ‘no’, leaving ‘yes’ untouched. This was unlike the rest of the large ballot in which one indicated one’s choice of party or individual candidate by placing a cross in the box next to the name. It is possible that some of the voters failed to read the instructions carefully and unintentionally voted in favour of the draft. This is a classic electoral

23 W Slater, ‘Russia’s Plebiscite on a New Constitution’ (1994) 3(3) Radio Free Europe/ Radio Liberty Research Report, 21 January, 1 at 4. 24 See, eg, V Tolz and J Wishnevsky, ‘Election Queries Make Russians Doubt Democratic Process’ (1994) 3(13) Radio Free Europe/Radio Liberty Research Report, 1 April; T Barber, ‘Yeltsin Referendum “Rigged”’ The Independent, 9 April 1994. 25 R Sharlet, ‘Transitional Constitutionalism: Politics and Law in the Second Russian Republic’ (1996) 14 Wisconsin International Law Journal 495, fn 2. 26 Moore, above n 1.

Overview of the Contents of the Constitution 61 technique to inflate the support of an unpopular measure. In the absence of exit polls or other methods of determining the intentions of voters, however, we cannot draw any definitive conclusions beyond the numbers themselves.27

There is thus doubt about the legality of the adoption of the 1993 Constitution. However, it fits into a long Russian tradition of radical change imposed from above by a reforming figure with power. There was an intention to break with the past, and whether this was achieved legitimately or not matters less if there is political consensus for the outcome, as apparently was the case here. The population accepted a peaceful resolution of their ‘Time of Troubles’;28 practical politics, supported by a claim to legitimacy based on the April referendum results, trumped concerns about the precise process. The whole story has been told in some detail, not only for intrinsic interest, but also to show that later changes – for example, to terms of office – were not anomalous, but recalled suggestions in earlier drafts. III. OVERVIEW OF THE CONTENTS OF THE CONSTITUTION

A. Introduction Unsurprisingly, given the changed circumstances, the 1993 Constitution differs significantly from its predecessors. Its adoption by national plebiscite is unique in Russia. Earlier Constitutions were voted into force by the relevant Legislature. It is also unique in having entrenched chapters, that is, chapters which the Legislature cannot amend. These are: Chapter 1, Foundations of the Constitutional System; Chapter 2, Rights and Freedoms of Man and Citizen; and Chapter 9, Constitutional Amendments and Revision. The process for amending these is explained in section III.C below, along with that for the other six chapters. The Constitution also newly introduces ‘Federal Constitutional Laws’ (FCLs), which require enhanced majorities for adoption. Specific important topics are identified as requiring an FCL (see Chapter 5, section III). When the Constitution was adopted, there was already a functioning Constitutional Court. In 1994 its role and powers were revised in a new FCL based on the Constitution’s provisions. Significantly, the Court

27 ibid 57. 28 The Smutnoe vremia in Russia, a 15-year period of extreme social and political unrest at the beginning of the seventeenth century. See ch 2, s III.A.

62 Genesis and Overview of the 1993 Constitution gained power to issue binding interpretations of the Constitution’s text, in certain circumstances (see Chapter 7, section II.B). The Constitutional Court has used this interpretation power not only to clarify the Constitution, but also to fill gaps and occasionally extend the ambit beyond the express text. The Court’s interpretative power acknowledges that the Constitution is more than its words; its ‘spirit’ is also a factor. This can be developed to coordinate with contemporary social views. Interpretation – in which the Court has a free hand under Article 74(2) of the FCL29 – allows the Court to make appropriate political accommodations while exercising its judicial powers.30 We will discuss the Constitution’s specific contents in the following chapters. Here we conveniently highlight aspects not conveniently dealt with elsewhere, starting with its overall structure. B. Structure i. Preamble The Constitution follows tradition in having a Preamble. All previous USSR Constitutions except that of 1936 (and RSFSR Constitutions except 1937) had one, or an equivalent. The 1993 Preamble sets out, briefly but in very grand style, a view of the social and historical context for the Constitution’s adoption, emphasising rights and freedoms, State unity and sovereignty, and the democratic basis of Statehood. The Constitutional Court has cited the Preamble in a number of rulings, for example, in 1998 over the appointment of the Government Chair (see Chapter 6, section II). It is not clear if or how the Preamble might be amended. The 2020 constitutional amendments avoided that issue. ii. Section I: Chapters 1 to 9 – Order of Exposition Section I contains the main substance. Russia follows a tradition common in codified legal systems that the order of topics indicates their relative importance. The first chapter in Section I, ‘Foundations of the 29 See M Lomovtseva and J Henderson, ‘Constitutional Justice in Russia’ (2009) 34 Review of Central and East European Law 37, 63. 30 A Trochev and PH Solomon Jr, ‘Authoritarian Constitutionalism in Putin’s Russia: A Pragmatic Constitutional Court in a Dual State’ (2018) 51 Communist and PostCommunist Studies 201.

Overview of the Contents of the Constitution 63 Constitutional System’, sets out the principles regarded as so fundamental to an independent Russia that they should be almost impossible to amend; as noted, this is an entrenched chapter, like Chapter 2, ‘Rights and Freedoms of Man and Citizen’. The pattern of previous Constitutions is followed by dealing next with federation: Chapter 3, ‘The Federated Structure’. Then there is a change as compared to earlier Constitutions, which were adopted when there was no President. When the USSR and Russian presidencies were introduced, the 1977 USSR and 1978 RSFSR Constitutions were respectively amended by inserting a new chapter after the Legislature chapter. Instead, we now have President before Legislature and separate from the Government, reflecting the President’s distinctive position: thus, Chapter 4: ‘The President of the RF’; Chapter 5: ‘The Federal Assembly’; Chapter 6 ‘The Government of the RF’. The Judiciary follows in Chapter 7. When the Constitution was first adopted Chapter 7 was simply entitled ‘Judicial Power’, but this was amended in 2014 to ‘Judicial Power and the Procuracy’, acknowledging that the Procuracy, which has one article at the chapter’s end, is not part of the judiciary (see Chapter 8, section IV.A). Although the Judiciary is listed last of the three branches of State power, it is significant that, unlike previous Constitutions, its chapter title includes the emphatic word ‘Power’ (vlast’). This signals that the Judiciary is an autonomous branch of State power and its members not mere functionaries, as they were frequently regarded in pre-revolutionary and Soviet times. Chapter 8 covers ‘Local Self-Government’. Finally (entrenched) Chapter 9 comprises ‘Constitutional Amendments and Revision of the Constitution’. iii. Section II: Concluding and Transitional Provisions Section II has nine Concluding and Transitional Provisions. It specifies the Constitution enters into force on the date of official publication – 25 December 1993 – in the Government daily newspaper of record, Rossiiskaia Gazeta. Simultaneously, the previous Constitution lost force. The Federation Treaties of 1992, and other treaties between federal agencies of State power and federal subjects, and between federal subjects, are preserved, although if any provisions contravene the Constitution, the Constitution applies.31 This rather strange form of wording kept

31 Kahn, above n 1 at 139 has a table showing the ‘Major Contradictions between the Federal Treaty and the Constitution’.

64 Genesis and Overview of the 1993 Constitution the effects of some careful political bargaining in the early 1990s, while not compromising the Constitution’s supremacy. It means the phrase ‘Sovereign Republics’, which appears in the Federation Treaty, was preserved, despite the Constitution implicitly not assigning sovereignty to any federal subjects.32 Existing legislation that is not contrary to the Constitution is preserved, as was the existing President’s term of office. Courts’ powers are based on the new Constitution, but judges retained existing tenure. Existing procedure would apply to juries in criminal trials until the passage of a new federal law; the requirement of judicial oversight of pre-trial detention would not operate until there was new criminal procedure legislation. On the basis of this, following the adoption of the 2001 Code of Criminal Procedure (CCP), in March 2002 the Constitutional Court ruled that it was unconstitutional to delay the implementation of the transfer of pre-trial oversight from the Procuracy to the Judiciary. The CCP had originally set this to happen in January 2004 rather than July 2002, when the rest of the new CCP would come into force. The Transitional Provisions with the most immediate impact set the term for members elected to the Legislature in 1993 as only two years, and that exceptionally during that period, Duma deputies could simultaneously serve in the Government (provision 9), although they would then forfeit deputy immunity. Such ‘compatibility’ would not be allowed after the 1995 Duma elections. The temporary relaxation of separation of powers was justified by the ‘excruciatingly small’ pool of people with sufficient skills to fill both functions separately, and because compatibility was said to encourage the Executive to cooperate with the Legislature.33 Since then, for seats subject to proportional representation voting, it has become common practice for high-profile executive members (eg, Governors) to lead party election lists, even though they will not take up their seats. These then devolve to candidates lower down the list according to party (not voter) choice. C. Constitutional Amendment As noted above in section III.A, it was an innovation to entrench three of the Constitution’s chapters. Planning for a potentially more 32 ‘A Protracted Farewell to Sovereignty’ Nezavisimaya Gazeta, 29 June 2009, available in translation via Westlaw under title ‘Russia: Moscow Removing Last Vestiges of Sovereignty from Ethnic Republics’. 33 S Holmes and C Lucky, ‘Storm over Compatibility’ (1993/1994) 2(4)/3(1) East European Constitutional Review 120.

Overview of the Contents of the Constitution 65 argumentative multi-party era, it was clearly felt to be important that certain fundamentals, including individual rights, should be especially protected, and the ‘workaround’ of changing the amendment procedure precluded. Article 135(1) specifies that Chapters 1, 2 and 9 may not be revised by the Legislature, the Federal Assembly. Instead, amendment requires a three-fifths vote by the Legislature,34 ‘then in accordance with a Federal Constitutional Law [FCL] a Constitutional Assembly shall be convoked’ (Article 135(3)). This FCL has not yet been adopted – the only FCL still missing. The Constitutional Assembly would either confirm the status quo or prepare a new Constitution to ‘be adopted by the Constitutional Assembly by two-thirds of the votes of the total number of members or submitted to an all-people’s referendum’. A positive referendum result is defined as approval by more than half of those voting, with at least a 50 per cent turnout, the same requirements as secured the Constitution. The remaining six chapters can be amended by qualified majorities in the Federal Assembly (two-thirds in the Duma and three-quarters in the Federation Council), plus ratification by at least two-thirds of federal subjects’ legislatures. Commentators initially opined that the Constitution was virtually immutable. Indeed, for its first 15 years, there were no amendments, apart from changes allowed by a simpler procedure to Article 65’s list of federal subjects, resulting from voluntary merger or (in the case of Crimea and Sevastopol) accession (or annexation, depending on one’s viewpoint).35 However, since then, there have been three bouts of constitutional reform. The first of these was in December 2008. With impressive speed, national and regional legislatures gave their required approval to a bill initiated by President Medvedev36 increasing (from the following elections) the presidential term from four years to six, and the period between Duma elections from four years to five, and adding slightly to the Duma’s prerogatives. The reform could smoothly pass the hurdle of legislative approval because of overwhelming support from deputies in the United

34 A Constitutional Court decision of 12 April 1995 addressed the issue of how such votes should be counted. The majority decision was that each chamber votes separately and the qualified majority is of the number that the Constitution specifies for the chamber, not actual attendance. 35 For a detailed critique, see A Jonsson Cornell, ‘Russia’s Annexation of Crimea: A Violation of Russian Constitutional Law?’ (2016) 1 Uppsala Yearbook of Eurasian Studies 263. 36 Policy stated in Medvedev’s first annual address to the Federal Assembly, 5 November 2008.

66 Genesis and Overview of the 1993 Constitution Russia party, which had a more than two-thirds majority in the Duma and control of 79 of the then 83 regional legislatures. Similarly, in February 2014, amendments proposed by President Putin were readily adopted. These abolished the Highest Commercial Court and created a new Supreme Court (see Chapter 7, section II.A) as well as changing the name of Chapter 7 of the Constitution from ‘Judicial Power’ to ‘Judicial Power and the Procuracy’, and revising the system for appointing leading Procurators (below Procurator-General) (see Chapter 8, section IV.A). Both of these sets of reforms, though significant in their own fields, are dwarfed by the major 2020 reforms. Prior to these, there had been media attention on the so-called ‘2024 problem’, when Putin’s current second successive presidential term would finish. The original version of Article 81(3) of the Constitution disqualified him from seeking immediate re-election by forbidding someone from being President ‘for more than two terms in succession’. Putin faced this very restriction in 2008 when he had already served two four-year terms. Then the solution was for Dmitrii Medvedev to stand as his chosen successor, the so-called ‘castling move’ (this will be discussed in Chapter 4, section III.C). Unsurprisingly, Medvedev won the presidential ballot and fulfilled his election promise to install Putin as Prime Minister. Putin successfully stood again as President in 2012, under the new rules giving six-year terms, and was re-elected in March 2018. Since then, a number of high-profile figures, including Constitutional Court Chair Valerii Zor’kin and Duma Chair Viacheslav Volodin, have published their thoughts as to how the Constitution might be improved.37 One thread in these discussions was rebalancing power between the Legislature and the Executive by strengthening the role of the Duma.38 Behind all the discussions was the still-unresolved conundrum of who Putin might countenance succeeding him in 2024 and what role Putin himself would then take.

37 M Eckel, ‘Change the Russian Constitution? Might Be a Good Idea, Says Putin Confidant’ Radio Liberty/Radio Free Europe Report, 16 September 2019; V Zor’kin, ‘Bukva i dukh Konstitutsiia [The Letter and Spirit of the Constitution]’ Rossiiskaia Gazeta, 10 October 2018. 38 See, eg, V Volodin, ‘Predsedatel’ GD predlozhil likvidirovat’ disbalans vetvei vlasti v Konstitutsii RF [The Chairman of the State Duma Proposed to Eliminate the Imbalance of the Branches of Power in the Constitution of the Russian Federation]’ Parlamentskaia Gazeta, 17 July 2019.

Overview of the Contents of the Constitution 67 Media discussion continued through December 2019.39 Opinion polling that month indicated broad social agreement for appropriate constitutional amendment.40 Nevertheless, it was rather a surprise when President Putin in his Annual Address to the Legislature on 15 January 2020 announced not only his desire for constitutional amendment, but also a detailed list of seven amendment proposals.41 These were: (1) asserting the priority of the Russian Constitution over the decisions of international institutions; (2) controlling the bureaucracy; (3) local-self-government, ‘public power’ and ‘federal territories’; (4) institutionalising the State Council; (5) strengthening the role of the Legislature; (6) confirming presidential control over the ‘power ministries’42 and reducing regional power; and (7) amending the powers of the Federation Council and the Constitutional Court. Elizabeth Teague noted: ‘They were an odd mix, with some proposals slotted together that appeared to have little relevance to one another.’43 Unsurprisingly, there were no proposals to amend anything in entrenched Chapters 1, 2 or 9. Putin knew his proposed reforms would need to follow the Chapter 3–8 amendment procedure. However, in his draft bill he added two extra requirements in order for any changes to enter into force: first, that the Constitutional Court would certify the amendments as consistent with the Constitution (although it was not explicit, this meant consistent with the Preamble and entrenched Chapters 1 and 2); and, second, that the amendments should be put to a popular vote. A majority voting ‘yes’ would evidence public approval and, under the terms of Putin’s bill, would allow the adopted amending law to enter into force. Immediately following his speech, on 15 January, Putin established a Working Group, co-chaired by three legal experts: the academic Elena

39 See, eg, ‘Putin podderzhal ideiu Volodina porabotat’ nad izmeneniem Konstitutsii [Putin Supported the Idea of Volodin to Work on Changing the Constitution]’ Vedomosti, 24 December 2019. 40 See N Galimova, ‘Chislo zhelaiushchikh ismenit’ Kondtitutsiiu rossiian vyroslo vyroslo v poltora rasa [The Number of Russians Wishing to Change the Constitution Has Grown by One and a Half]’ RBK, 9 December 2019; I Rodin, ‘Vlast’ imeet kart-blansh na peresmotr Konstitutsii [Authorities Have Carte Blanche for Constitutional Review]’ Nezavisimaia Gazeta, 9 December 2019. 41 For an excellent analysis of the eventual amendments compared with these proposals, see E Teague, ‘Russia’s Constitutional Reforms of 2020’ (2020) 5 Russian Politics 301. The following account draws on Teague’s work. 42 See ch 4, s IV.C. 43 Teague, above n 41 at 304.

68 Genesis and Overview of the 1993 Constitution Khabrieva, and the heads of the relevant Duma and Federation Council Committees, Pavel Krasheninnikov and Andrei Klishas, to consider the proposals and suggest possible additions. The other 72 members included deputies, lawyers, doctors, public figures, famous musicians, artists and athletes. Most non-deputy members were members of the Public Chamber (see Chapter 6, section V.B) or other public or human rights organisations established by or loyal to the authorities.44 The Working Group was to establish its own procedure, with very brief time to formulate proposals. On 20 January, Putin presented a 21-page bill to the Duma entitled ‘On improving the regulation of various issues concerning the organization of public power’, supposedly prepared taking into account the Working Group’s proposals. It contained a number of important features: residence requirements for holders of public office; Russia’s legal preeminence over decisions of interstate international bodies; an upgraded State Council; some re-allocation of responsibilities for the President, the Government and the Legislature; and the inclusion of specific social guarantees for citizens.45 It passed its first reading on 23 January. The Working Group continued collecting proposals, and discussed progress with Putin on 13 and 26 February. The bill’s second reading was postponed several times until 2 March, when Putin submitted an amended 68-page bill. This included reference to ‘ancestors … belief in God’, a definition of marriage as a ‘union of a man and a woman’ and other ‘traditional value’ positions.46 There was an extremely significant development on 10 March, when the Duma met to discuss second reading amendments. As mentioned in the Preface, from the floor, Duma deputy 83 year-old former cosmonaut Valentina Tereshkova proposed amending Article 81 on presidential terms. It is doubtful she drafted this herself; she said it was presented to her that morning, but media reports do not reveal by whom. However, she was fully in agreement with its sentiment of allowing existing current and former Presidents to discount completely terms already served when applying the amended rule forbidding anyone from serving as President for more than two terms absolutely, instead of the original formulation of ‘two terms in succession’. 44 K Diuriagina, L Sergeeva and V Kheifets, ‘Ne kochegary i ne plotniki [Not Stokers and Carpenters]’ Kommersant’, 16 January 2020. 45 N Bashlykova, P Panov and L Lezhneva, ‘So skorost’iu Dymy: popravki v Konstitutsiiu mogut priniat’ k kontsu fevralia [At the Speed of the Duma: Amendments to the Constitution May Be Adopted by the End of February]’ Izvestiia online, 20 January 2020. 46 See Teague, above n 41 at 306.

Overview of the Contents of the Constitution 69 Unsurprisingly, this and the other proposed amendments were approved.47 The following day, 11 March, the Duma passed the bill in its third and final reading, and the Federation Council immediately gave its approval (160 votes for, one against and three abstentions). On 12 March, regional legislatures gave their consideration. Unanimous approval was reported on 13 March. The final step before presidential signature, which was not required by the Constitution’s amendment rules but was included in the amendment law, was approval by the Constitutional Court. The Court’s positive decision (although not its detailed text) was issued on 15 March. This was an extremely quick turnaround, only matched by the Court’s speedy approval in 2014 of the process for including Crimea into Russia. The ultimate stage of a national vote was set for 22 April, conveniently after Orthodox Easter but before Ramadan; also coincidentally the 150th anniversary of Lenin’s birth. However, on 26 March, Putin announced that the vote would be delayed because of the Coronavirus pandemic. On 1 June, Putin pronounced the new voting date. It would take place over the week ending 1 July, in three formats: traditional, digital and home-based. There was no turnout threshold (as in a formal referendum), there was no list of separate amendments, no campaigning rules and little electoral observation or voter identity scrutiny.48 As Vedomosti dryly noted: ‘It is suggested that people express their opinion about 46 amendments to the constitution with a laconic yes or no in one ballot paper.’49 The official campaign stressed the social benefits specified in the amendments and failed to mention the ‘reset’ of presidential terms for existing and former Presidents. These were not even originally included in the official electronic website’s summary of the amending law – one of a number of serious discrepancies which were later corrected.50

47 ‘Russian Lawmakers OK Constitutional Change That Would Allow Putin to Run in 2024’ Radio Free Europe/Radio Liberty Report, 10 March 2020. 48 A Kozkina, ‘Chto ne tak s golosovannem o popravkakh. Desiat’ otlichii ot vyborov i referenduma [What is Wrong with the Vote on Amendments: Ten Differences from Elections and Referendums]’ Mediazona, 23 June 2020. 49 ‘Constitution Vote’ BBC Monitoring Summary of Russian Press, 9 June 2020, citing Vedomosti D Kamyshev ‘Expression of will for future’. 50 D Dmitrev, ‘Na saite distantsuinnogo golosovaniia po Konstitutsii ne tolko zabyli ob obnulenii, no i opublikovali feikovye popravki [On the Remote Voting Site under the Constitution, They Not Only Forgot about Zeroing, But Also Published Fake Amendments]’ Meduza, 9 June 2020.

70 Genesis and Overview of the 1993 Constitution The unusual circumstances under which the vote was held led to wry comment and credible suspicion of ballot box stuffing.51 In one Moscow precinct, the results were rescinded because of this.52 Overall, however, and unsurprisingly, ‘the outcome of Russia’s constitutional referendum was exactly as predicted … The final result was not only higher [than the Kremlin’s target 60 per cent turnout], at 77.9 percent, but 68 percent of the electorate took part, meaning an absolute majority – 58 million of Russia’s 109 million voters – backed the constitutional changes’.53 Once the Constitution’s amendments had resultingly gone into force (on 4 July), the Working Group created earlier was tasked with drafting the necessary amendments to about 100 federal laws and federal constitutional laws (FCLs).54 In addition, at least 650 regional charters and laws and 150 government decrees needed amendment. In July, the first bill in this process introduced changes to extremism laws. However, the Duma began the main updating work after the summer break; Putin submitted a package of bills on 22 September 2020, including on the State Council, amendment to the FCL on the Constitutional Court, and updating the powers of the Duma and the Federation Council.55 These reforms will be considered in following chapters. D. Chapter 1: Foundations of the Constitutional System We now turn to a very brief overview of the Constitution’s contents, starting with Chapter 1. An English translation can be found online, 51 M Luxmoore, ‘Of Car Trunks and Tree Stumps: As Russians Vote on Putin’s Future, a Chaotic Rush to Boost Turnout’ RFE/RL Report, 26 June 2020; ‘Playgrounds, Airports, Automobiles: Russia’s Drive to Get out the Vote, Anywhere and Everywhere’ RFE/RL Report, 26 June 2020; M Scollon, ‘Apparent Ballot Stuffer is Caught Red-Handed (and Blue-Gloved) at Russian Polling Station’ RFE/RL Report, 1 July 2020; M Luxmoore, ‘Election Monitors Find “Unprecedented” Levels of Fraud in Russian Vote on Extending Putin’s Rule’ RFE/RL Report, 3 July 2020; S Teplyakov, ’22 milliona anomal’nykh golosov: matematiki govoriat o masshtabnykh fal’sifikatsiiakh na golosovanii po Konstitutsii [22 Million Anomalous Votes: Mathematicians Talk about Massive Fraud in the Constitution]’ MBX, 3 July 2020. 52 ‘V Moskve annulirovalo itogi golosovaniia na odnom is uchastkov iz-za vbrosa bylletenei [In Moscow, the Results of Voting in One of the Precincts Cancelled Because of Ballot Stuffing]’ Kommersant’, 2 July 2020. 53 ‘Constitutional Referendum Delivers Big Win for Putin’ The Bell, 3 July 2020. 54 S Bocharova and E Mukhametshina, ‘President nashel novuiu rabotu soavtoram obnovlennoi Konstitutsii [President Found a New Job for the Co-authors of the Updated Constitution]’ Vedomosti 5 July 2020. 55 See, eg, B Iamshanov, interview with P Krasheninnikov, ‘Nachnem s zakona o pravitel’stve [Let’s Start with Law on Government]’ Rossiiskaia Gazeta, 4 October 2020.

Overview of the Contents of the Constitution 71 supplied by Garant.56 Although not necessarily the best, it is readily available and the Chapter’s entrenchment means that the original version remains valid. Overall, the provisions evidence a strong desire to break with the past. Russia declares itself to be a ‘democratic federated rule-of-law State with a republican form of government’ (Article 1) and asserts that ‘man, his rights and freedoms have the highest value’ (Article 2). Democratic credentials are reinforced in Article 3, which places ‘its multinational people’ as the sole source of power. ‘The Constitution and federal laws shall have supremacy throughout the entire territory of the RF’ (Article 4). In the 1990s in practice, this was flouted (as was the rule about there being a single, uniform, federal citizenship in Article 6),57 but following Putin’s first election as President in the spring of 2000, a strong policy of regional conformity to federal law was imposed, strengthening the vertical chain of command, the so-called power vertikal’ (see Chapter 4, sections IV.C and IV.D). The types of federal subjects in Russia are listed in Article 5.58 Article 5(4) declares that ‘all subjects are equal between themselves in mutual relations with federal agencies of State power’. This became patently untrue during the Yel’tsin era, when many federal subjects made intergovernmental treaties with the federal authorities, exacerbating the already-existing asymmetric federalism. Article 7 commits the State to providing various types of social support. However, the mechanics are not specified, either here or in Article 39, which guarantees social security provisions. In 2004–05, there was unrest when the State transferred from benefits-in-kind to cash payments;59 interestingly, in-kind benefits were retained for State officials and judges. Both Articles 7 and 39 are in entrenched chapters, so the indexed social guarantees promised by the 2020 amendments are factored into the revised Article 75, which otherwise deals with federal control of money and finance. Articles 8 and 9 embed into his Constitution Yel’tsin’s transition to a market economy and expanded ownership rights, including that ‘land

56 ‘The Constitution of the Russian Federation’, www.constitution.ru/en/10003000-02. htm. 57 ‘Tuva Starts Poll to Bring its Constitution in Line with All-Russian’ Itar-Tass World Service, 11 April 2010. 58 See ch 1, s II. 59 M Rasell and S Wengle, ‘Reforming the L’goty System; The Future of In-Kind Benefits in Post-Soviet Russia’ (2008) 37 Russian Analytical Digest 6.

72 Genesis and Overview of the 1993 Constitution and other natural resources may be in private, State, municipal and other forms of ownership’. There was no historical Russian tradition of private land ownership, and it remained controversial, delaying the passage of a new Land Code until the autumn of 2001, and inspiring separate treatment of agricultural land – the Law on Agricultural Land Transactions came into force in January 2003.60 Article 10 declares: State power in the RF shall be effectuated on the basis of separation into legislative, executive, and judicial. Agencies of legislative, executive, and judicial power shall be autonomous [samostoiatel’nyi].

William Butler carefully translates samostoiatel’nyi as ‘autonomous’, as the usual Russian word for ‘independent’ is nezavisimyi.61 Most translations into English ignore the distinction.62 The three branches of State should exercise their powers autonomously from each other, but they are not independent. For example, appointment to high office is commonly through nomination by one entity (for example, the President) and confirmation by another (typically one of the chambers of the Legislature). This is the Russian version of ‘checks and balances’. Neither autocratic imperial Russia nor Soviet Russia aspired to any separation of powers. In imperial times, ‘the combination of powers was the main, essential feature of the state; the separation of powers was subordinate, less significant and decisive’.63 Under socialism, the guiding principle was the unity of State power, and there was no clear demarcation between the powers of central State agencies. However, Russia made explicit an aspiration to separation of powers in the 1990 RSFSR Declaration on State Sovereignty, and the prior Constitution was amended in December 1992 to incorporate this principle. Article 11 lists the federal agencies of State power, but leaves delineation of power between federal and subject agencies of State power

60 See J Henderson, ‘The Politics of the Emergence of Private Landholding in Russia’ (2012) 7(2) Journal of Comparative Law 157; SK Wegren, ‘Russia’s Incomplete Land Reform’ (2009) 64 Russian Analytical Digest 2. 61 See, eg, WE Butler, Russian Law and Legal Institutions, 3rd edn (Clark, NJ, Talbot Publishing, 2021) 451. 62 See, eg, PB Maggs, O Schwartz and W Burnham, Law and Legal System in the Russian Federation, 7th edn (Huntington, MY, Juris Publishing, 2020) 983; ‘The Constitution of the Russian Federation’, above n 56. 63 AM Yakovlev, Striving for Law in a Lawless Land: Memoirs of a Russian Reformer (Armonk, NY, ME Sharpe, 1996), citing pre-revolutionary author NM Korkunov, Russkoe Gosudarstvennoe Pravo [Russian State Law] (St Petersburg, MM Stasiulevich, 1914).

Overview of the Contents of the Constitution 73 to ‘the Constitution, the Federation Treaties and other treaties on the delineation of power’. Article 12 recognises local government as being autonomous, within the limits of its powers. It is also defined as not being within the system of agencies of State power. This contrasts with the Soviet system, where the ‘unity of State power’ extended down the hierarchy of soviets. Local selfgovernment has its own chapter: Chapter 8. However, within it, Article 132 was amended in 2020 to say (in paragraph 3) that ‘agencies of local self-government and agencies of state power are included in a unified system of public power in the RF’. This notion of a ‘unified system of public power’ was introduced by Putin in his January 2020 Annual Address, but remained undefined. Elizabeth Teague flags up the apparent contradiction between Articles 12 and 132, and cites prior discussion of the concept.64 It is not yet clear what the practical implications of the reforms are, but these are likely to involve increased restriction on local autonomy and are interestingly reminiscent of the Soviet state structure. Articles 13–14 champion ideological diversity and the secular State. This contrasts with both the pre-revolutionary and Soviet approaches. However, whilst there is formal separation of Church and State, Russia has a long tradition of privileging an official faith. The 1997 federal law on Freedom of Conscience and Religious Associations ‘acknowledging the special role of Orthodoxy’65 and ‘respecting Christianity, Islam, Judaism and Buddhism and other religions which comprise an integral part of the historical heritage of the peoples of Russia’ ensured those groups administrative advantages. In 2013, sanctions were introduced punishing ‘insult of the religious convictions or feelings of citizens’ (see Chapter 8, section III.B.v). The protected belief tends to be Orthodox Christianity. This fits with a championing of ‘traditional values’ since 2012 (see Chapter 8, section III.A). Further, despite the clear injunction in Article 13(2) that ‘No ideology shall be established as State or mandatory’, the 2020 amendments include in the chapter on the federal structure a new Article 67-1, which states: The RF, united by a thousand-year history, preserving the memory of ancestors and the ideals and belief in God transmitted to us, and also succession in the development of the Russian state, shall be deemed a historically formed state unity.

64 Teague,

above n 41 at 312–14

65 WE Butler, Russian Public Law, 3rd edn (London, Wildy, Simmonds & Hill, 2013) 113.

74 Genesis and Overview of the 1993 Constitution This careful wording avoids direct conflict with Article 13, but clearly suggests that belief in God is an important historical aspect of the Russian State. The amendment was ‘reportedly tabled at second reading by the presidential administration at the urging of the Russian Orthodox Church’.66 Article 15(1) significantly declares that the Constitution ‘shall have the highest legal force, direct effect, and be applied throughout the entire territory of the RF.’ Earlier Constitutions needed further legislation before constitutional principles could be relied on in court. Article 15(1) continues, ‘laws and other legislation applicable in the RF must not contravene the Constitution RF.’ Ensuring observation of this has been problematic, inducing in 2000 newly-elected President Putin’s goal to ensure a cohesive and coherent hierarchy of law – a ‘diktatura zakona’ (dictatorship of the law).67 Importantly, Article 15(3) requires laws to be published; see details in Chapter 5.III. Article 15(4) it is also noteworthy. It asserts: Generally-recognised principles and norms of international law and international treaties of the RF shall be an integral part of its legal system. If other rules have been established by international treaty of the RF than provided for by a law, the rules of the international treaty shall apply.

As Butler points out, after careful review of the legislative history of this article: There was general acceptance that, in the domain of human rights, international legal standards represented the minimum to which Russia was expected to conform. The constitutional drafting materials confirm a point widely made at the time: international standards were invoked to address the lamentable excesses of the Soviet era, and Russian courts were given space to draw upon these as necessary.68

This will be discussed further in Chapter 8, section IV.D, including the 2020 addition to Article 79: Decisions of international organisations adopted on the basis of provisions of international treaties of the RF in a construction which contradicts the Constitution of the RF shall not be subject to execution in the RF. 66 Teague, above n 41 at 306. 67 S Aleksashenko, Putin’s Counter Revolution (Washington DC, Brookings Institution Press, 2018) 77ff; WE Pomeranz, Law and the Russian State: Russia’s Legal Evolution from Peter the Great to Vladimir Putin (London, Bloomsbury, 2019) 145ff. 68 WE Butler, International Law in the Russian Legal System (Oxford, Oxford University Press, 2020) 169–70.

Overview of the Contents of the Constitution 75 A subsequent amendment to the FCL on the Constitutional Court gave the Court an additional ground for disapplying the decision of an international court or tribunal: if it ‘contradicts the foundations of public order of the RF’.69 This arguably derogates from Article 15. Article 16, the final article of Chapter 1, explains that its provisions ‘comprise the foundations of the constitutional system of the Russian Federation and may not be changed other than in the procedure established by the present Constitution’ and that ‘no other provisions of the present Constitution may be contrary to the foundations of the constitutional system of the RF’. As noted above, some of the 2020 amendments appear to undermine clear constitutional statements by its original drafters, evidencing Russia’s change in constitutional attitude in the second decade of the twenty-first century (see Chapter 8, section III.A). E. Chapter 2: Individual Rights in the Constitution Perestroika-era reforms transformed the approach to individual rights (see Chapter 8, section II). Before 1991, the Soviet model was the dependent rights approach, while that in the current Constitution is the inherent rights approach, which was first enshrined in the USSR in its Declaration of the Rights of Man of September 1991. The Russian Declaration of the Rights of Man and Citizen of November 1991 took the same approach and was incorporated into the RSFSR Constitution in April 1992. Thus, the rights revolution had already occurred before the adoption of the 1993 Constitution. Nevertheless, its significance cannot be overstated. However, in Chapter 8, we will note the current regime rolling back from a universal principle of liberal rights. F. Chapters 3 and 8: Federal Russia i. Russia’s Federal Heritage A thorough review of the developments of the Russian Federation is beyond the scope of this book.70 However, it is appropriate to highlight some main features. 69 FCL on the Constitutional Court, art 33. 70 See M Nicholson, Towards a Russia of the Regions (Oxford, Oxford University Press, 1999); Kahn, above n 1; A Di Gregorio, ‘The Origin and Development of Federalism in Russia’ (2017) 201 Russian Analytical Digest 7; N Korchenkova, M Malaev and

76 Genesis and Overview of the 1993 Constitution The USSR had the formal trappings of a treaty federation, including a declaration that it was a voluntary association of sovereign States and its constituent Union Republics (URs) had the right to secede.71 Political and practical reality was extremely different. The USSR functioned as a unitary State, with its monolithic Communist Party and centralised State-planned economy. The important characteristics of a sovereign State (defined territory, distinct population and independent government) applied only to the USSR and not to any UR.72 Even their theoretical right of secession was nullified by the fact that any change to the State boundary was exclusively under USSR jurisdiction. However, that theoretical right led logically to Stalin’s criteria that a UR must have an international border (and a sufficiently large and concentrated population). This excluded the Tatars and Bashkirs: [W]ho in terms of size and compactness of population deserved to become republics. This remains a source of bitterness for Tatarstan to this day.73

Stalin gained one advantage from the assertion of URs’ sovereign Statehood. When the United Nations (UN) was established in 1945, he claimed 17 seats: one for the USSR and one for each of the then 16 constituent URs.74 The story goes that the UK countered this with an assertion that it would establish diplomatic representation in a UR. This was not welcomed by Stalin. The compromise reached was that the USSR, Ukraine and Belorussia would have UN membership (including the USSR’s permanent Security Council seat), but other URs would not.75 During perestroika, URs attempted to put meaning into the USSR Constitution’s empty words awarding them sovereignty. Party GeneralSecretary (but not yet USSR President) Gorbachev even instigated passage of the USSR Law on Secession of April 1990, although its cumbersome procedure was never used. In September 1991, following

O Shkurenko, ‘Kak v Rossii menialis’ federatovnye otnosheniia – v spetsial’nom proekte [How Federal Relations Changed in Russia – in a Special Project]’ Kommersant’, 31 March 2018. 71 See H-J Uibopuu, ‘International Legal Personality of Union Republics of the USSR’ (1975) 24 International and Comparative Law Quarterly 811. 72 ibid 813; and H-J Uibopuu, ‘Soviet Federalism under the New Soviet Constitution’ (1979) 5 Review of Socialist Law 171 at 175. 73 Sakwa, above n 1 at 342. 74 The well-known 15, plus the Karelo-Finnish Union Republic which existed from 1940 to 1956. See AL Unger, Constitutional Development in the USSR: A Guide to the Soviet Constitutions (London, Methuen, 1981) 159. 75 Uibopuu, above n 71 at fn 165, confirms that in 1947 an approach was made to the Ukrainian SSR; ‘no reply was received’.

Overview of the Contents of the Constitution 77 the abortive August putsch, the three Baltic former URs, Estonia, Latvia and Lithuania, were acknowledged as independent by the USSR’s State Council, without further ado (see Chapter 2, section VI.A). The USSR bequeathed the RSFSR a complex federal structure, with some federal subjects (the republics, the autonomous region and the autonomous areas) supposedly based on ethnicity, and the others (the territories and regions) on territory. Some ethnic federal subjects were within territorial subjects – so-called matreshka federalism, named after the Russian nesting dolls. In May 1990, Soviet Russia had 88 federal subjects, of which 15 were within the other 73. The ‘parade of sovereignties’ of URs in the USSR from November 1988, when almost all issued Declarations of Sovereignty, encouraged the 16 autonomous republics then within federal Russia to strive for greater status. In 1990, 14 declared themselves sovereign.76 By 3 July 1991, the amended 1978 Constitution referred to them as republics (unlike the 24 May version). Also, four out of the five autonomous regions became republics, leaving only one: the already anomalous far-eastern Jewish autonomous region. ii. Federative Relations in Independent Russia In the lead-up to the 1993 Constitution, two tensions affected Russia’s federal relations: fear and greed. The USSR had recently disintegrated, and Russia feared a similar fate. The USSR’s break-up was triggered by a Communist old guard’s negative reaction to the more confederative USSR Federal Treaty Gorbachev was about to sign. Ironically, their actions impelled the very fate they sought to avoid (see Chapter 2, section VI.A). Nevertheless, Yel’tsin was happy to encourage regional autonomy to spite the USSR. In 1990 he told Russian federal subjects to ‘take as much autonomy as you can swallow’.77 The republics obliged and passed constitutions claiming greater powers than the then federal Constitution allowed, including claims to sovereignty (whatever that meant).78 Yel’tsin

76 Kahn, above n 1 at 103. There is a table of dates of the ‘parade of sovereignties’ (at 104). 77 Cited in Kahn, above n 1 at 148. Kahn quotes Yel’tsin re-asserting this on 30 May 1994 (at 142 and 157). 78 See discussion in the previous section on the ‘sovereignty’ of URs within the USSR. See also Kahn, above n 1 at 175, Table 6.5 ‘Supremacy Clauses in Selected Republican Constitutions’.

78 Genesis and Overview of the 1993 Constitution turned a blind eye in return for political support. Individual agreements (soglashenii) were made with governments of some federal subjects on specific areas; for example, during 1993, Tatarstan concluded agreements on oil and petrochemical transport, foreign economic relations and ownership.79 Despite this centrifugal tendency, in March 1992 Yel’tsin gained agreement from almost all federal subjects to three new treaties. The dissenters were the traditionally independent Tatarstan and the then Chechno-Ingushetiia; there were also specific reservations by the Kaluga and Leningrad regions. One treaty was with ‘the Sovereign Republics within the RF’,80 one with the territories, regions and cities of Moscow and St Petersburg,81 and the third with the one autonomous region and the autonomous national areas.82 Collectively, they comprised the new Russian Federation Treaty, which was incorporated into the then Constitution on 10 April 1992. The differences between the three treaties are subtle. The republics’ treaty mentioned ‘citizenship of the RF’ within federal jurisdiction, implying there could be republican citizenship, as indeed was asserted at the time by many of the republics’ constitutions. It also used the phrase ‘sovereign republics’ in its title and Preamble, with Article III(1) stating that the republics ‘shall possess the entirety of State power on their territories, except for those powers which have been transferred to the jurisdiction of federal agencies’, clearly suggesting a confederal arrangement. The same article declared that the republics are ‘autonomous participants of international and foreign economic relations’. The other treaties also had this, but with no equivalent claim to be the original source of State power. The 1993 Constitution maintains the same overall structure of federal subjects. Originally there were 89 subjects: 21 Republics, 6 Territories, 49 Regions, 2 Cities of Federal Significance, 1 Autonomous Region and 10 Autonomous National Areas. Between 2005 and 2014, voluntary mergers reduced this to 83: 21 Republics, 9 Territories, 46 Regions, 2 cities of federal status, 1 autonomous region, and 4 autonomous areas. Mergers are governed by the 2001 FCL, ‘On the procedure of acceptance into the

79 WE Butler and JE Henderson, Russian Legal Texts (London, Simmonds & Hill, 1992) 73. See also Kahn, above n 11 for background and issues. 80 English translation in Butler, above n 65 at 686. 81 ibid 691. 82 ibid 696.

Overview of the Contents of the Constitution 79 RF and formation within its composition of a new subject of the RF’.83 Merger can only be initiated by neighbouring subjects and requires agreement via referendum of the affected populations.84 Then on 18 March 2014, using the 2001 FCL mechanism, two more federal subjects were controversially added85 – the Republic of Crimea and the city of federal significance Sevastopol – so now, according to Russia, there are 85 federal subjects: 22 republics, 9 territories, 46 regions, 3 cities of federal status, 1 autonomous region and 4 autonomous areas (see Chapter 1, section II). The division of responsibilities between the centre and the federal subjects is defined in three articles. Article 71 lists issues exclusively in federal jurisdiction. It is fairly comprehensive. In particular, in order to establish the legal foundations of the single market, it includes all financial regulation (except tax, which is in joint jurisdiction). The rules on court organisation, the Procuracy, criminal law and procedure, civil law and procedure, and legal regulation of intellectual property are exclusively federal. Article 72 covers joint jurisdiction, including defence of the rights of freedoms of man and citizen (and of national minorities) and public security, as well as issues involving the possession, use and disposition of land and other natural resources, the environment, education and culture, public health and provision against natural catastrophes, as well as some branches of law – administrative law, labour, family, housing, land, water and forest legislation, and legislation on the subsoil and environmental protection – and the legal profession in the form of judicial and law enforcement agencies, the advokatura (qualified advocates) and the notariat. Article 73 gives federal subjects residual power over any unmentioned issues. This is a significant reversal from Soviet times, when central agencies held residual power. The 2020 constitutional amendments added detail to a number of articles in this chapter. Russia’s sovereignty is highlighted in Article 67(2.1). Article 67-1(1) states that Russia is the legal successor of the USSR, whilst subsequent paragraphs note the historic belief in God, historically formed State unity, the role of ‘defenders of the Fatherland’

83 ibid 700. 84 For a case study, see O Oracheva, ‘Unification as a Political Project’ in C Ross and A Campbell (eds), Federalism and Local Politics in Russia (London, BASEES/Routledge, 2009) 82. 85 For a detailed critique, see Jonsson Cornell, above n 35.

80 Genesis and Overview of the 1993 Constitution and the importance of the correct upbringing of children. This latter theme is re-appraised in beefed-up paragraphs in Article 72. Under Article 69(3): ‘The RF shall render support to compatriots [sootechestvenniki] living abroad in exercising their rights, ensuring defence of their interests, and preservation of all-Russian cultural identity.’ This is not new (see Chapter 8, section II.B), but its inclusion in the Constitution gives it added prominence. Two innovations require future elaboration. The concept of public power noted earlier86 is mentioned in a number of amended Articles (67(1), 71(d), 80(2), 131 and 132) without further definition; Article 131 promises a federal law to elaborate it.87 The possibility of a ‘federal territory’ is mentioned in Article 67. It seems likely that both innovations will increase centralisation. Teague even suggests that the creation of federal territories creates the potential for central control ‘over large swathes of the country and turn Russia from the federal into a unitary state run from the centre’.88 We noted above in section III.D developments in Russia’s relationship to international law. Revised Article 79 is one of the places where it is made explicit that Russia will not implement decisions of international organisations which contradict the Constitution, the other being in relation to the Constitutional Court’s powers. G. Chapters 4–7: The Federal Agencies of State Power The contents and effects of these are covered in the following four chapters on the President, the Government, the Legislature and the Judiciary. IV. CONCLUSION

Russia’s Constitution is nearly 30 years old. When it first appeared, despite some doubts about its balance and durability, it was welcomed by commentators, who hoped it was, as William Pomeranz succinctly puts it, ‘a framework for reform’.89 It was applauded as the first Russian

86 See

text accompanying n 64. also ch 6, s V.A; the 2020 Law on the State Council begins by citing public power. 88 Teague, above n 41 at 316. 89 Pomeranz, above n 67 at 123, ch 8, ‘The 1993 Constitution: A Framework for Reform’. 87 See

Further Reading 81 Constitution to take itself seriously as an applicable legal document, supported by an eminent Constitutional Court. The Constitution’s amendment provisions were deliberately designed to discourage amendment, with three chapters being completely entrenched. However, support for Putin in both the federal and regional legislatures allowed major amendments in 2020 which have added greatly to the Constitution’s length and have arguably undermined its coherence and logical structure. A number of amendments – for example, setting restrictive criteria for holders of public office – could be dealt with in subconstitutional law, but it was clearly felt important symbolically as well as practically to give this ‘Russia first’ approach constitutional endorsement. Similarly, the definition of marriage as between a man and a woman already exists in family law, but its constitutional validation makes it very difficult to legalise same-sex marriage. This turn towards ‘traditional values’ had already manifested itself in other areas of law, but now the Constitution has been accordingly amended, although the changes sit uncomfortably with the original, apparently liberal, European-style text. The entrenched chapters retain that approach, but the rest of the Constitution now embodies Russia’s particular constitutionalism. This is explored further in Chapter 8. FURTHER READING RB Ahdeih, Russia’s Constitutional Revolution: Legal Consciousness and the Transition to Democracy 1985–1996 (University Park, PA, University of Pennsylvania Press, 1997). B Bowring, ‘The Russian Constitutional System: Complexity and Asymmetry’ in M Weller and K Nobbs (eds), Asymmetric Autonomy and the Settlement of Ethnic Conflicts (Philadelphia, PA, University of Pennsylvania, 2010). WE Butler, International Law in the Russian Legal System (Oxford, Oxford University Press, 2020). J Kahn, Federalism, Democratization, and the Rule of Law in Russia (Oxford, Oxford University Press, 2002). W Pomeranz, Law and the Russian State: Russia’s Legal Evolution from Peter the Great to Vladimir Putin (London, Bloomsbury Academic, 2019). A Shashkova, M Verlaine and E Kudryashova, ‘On Modifications to the Constitution of the Russian Federation in 2020’ (2019) 8(1) Russian Law Journal 60. E Teague, ‘Russia’s Constitutional Reforms of 2020’ (2020) 5 Russian Politics 301.

4 The President Establishing a Presidency – The President’s Powers – Weak Accountability

I. INTRODUCTION

T

his chapter deals with the Russian Presidency. Russia is somewhat unusual in having a very powerful President separate from the Government (see Chapter 6), with the Government, not the President, defined as exercising executive power, albeit since 2020 explicitly ‘under the general leadership of the President’ (Article 110 of the Constitution). We examine the development of the Russian Presidency and appraise the breadth of presidential power – further enhanced by the 2020 constitutional reforms – and the paucity of accountability. Some aspects of presidential power, particularly relating to appointments in the Government and the Judiciary, are covered in Chapters 6 and 7, respectively. II. THE FIRST RUSSIAN PRESIDENCY

In Chapter 2 we saw that a USSR Presidency was established in 1990. This inspired Russia to do likewise. A question was opportunistically added to the March 1991 USSR referendum on support for a ‘renewed Union’, asking Russians whether they would like a Russian President. Over 70 per cent voted yes. Consequently, on 24 April 1991, the Russian Supreme Soviet adopted the law ‘On the President of the RSFSR’. This was followed in July 1991 by appropriate amendments to the 1978 RSFSR Constitution, inserting a completely new chapter (Chapter 13-1) on ‘The President’. The opening article defined the President as the ‘highest official … and head of executive power’. It also said that he could not simultaneously be a people’s

The First Russian Presidency 83 deputy, or hold posts in State, commercial or other bodies. Awkwardly the Constitution retained the Russian Congress of People’s Deputies (CPD) as ‘the highest agency of State power’ (Article 104), with no mechanism for resolving conflicts. This may have been the root of Russia’s 1993 clashes between President and Legislature. The President had to be a RSFSR citizen, aged between 35 and 65, with voting capacity. There would be a similarly qualified Vice-President (V-P). Election of the pair was by universal, equal and direct suffrage by secret ballot. The term was five years and was limited to no more than two consecutive terms. Article 121-5 listed the main presidential powers. He could initiate legislation. Adopted laws needed presidential signature and promulgation. He could return laws for reconsideration, but a simple majority in both Supreme Soviet chambers would oblige him to sign. He should report to the CPD annually, although he could also be obliged to give extraordinary reports. He appointed the Government head, the Chair of the Council of Ministers (CoM), with the consent of the Supreme Soviet. Government ministers would be appointed and dismissed from office by the President on the proposal of the CoM Chair. The President directed CoM activity. He could accept the Government’s resignation, but only with Supreme Soviet consent. He headed the Security Council. As Head of State, he would appoint and recall diplomats, and negotiate and sign international and inter-republican treaties, although these needed Supreme Soviet ratification to enter into force. He was under a duty to ‘take measures to ensure State and public security of the RSFSR’, and could demand extraordinary meetings of the CPD and the Supreme Soviet; however, he had no right to dissolve or suspend either body. He could ‘in accordance with law’ declare a state of emergency, but only ‘in consultation with the supreme bodies of State power’.1 He decided issues of citizenship, political asylum, pardons, and award of State honours. The President could issue edicts and regulations ‘with regard to questions relegated to his jurisdiction’, provided they conformed to the Russian Constitution and laws. However, the CPD had unqualified power to repeal presidential as well as Supreme Soviet legislation, and the Supreme Soviet could repeal any presidential edict that the Constitutional Court, newly established in 1991, ruled against. Both the President and the V-P had immunity, but the Constitution outlined the process for the President’s removal ‘in the case of violation of the RSFSR

1 Article

121-5(12).

84 The President Constitution, laws or his presidential oath’. Such impeachment could be triggered by the CPD, the Supreme Soviet, or one of its chambers. The decision would be made by a two-thirds majority of the CPD after ‘an opinion of the RSFSR Constitutional Court’. Following such dismissal, resignation, ‘the impossibility of further exercising his powers’ or death, the V-P would take over. Thus extensive powers were established, but so too were restrictions and oversight by the Legislature (CPD). The first presidential election was held on 12 June 1991 – arguably the last genuinely contested presidential election. Boris Yel’tsin won decisively with 57.30 per cent of the votes cast, beating five other candidates. His V-P candidate was a popular former USSR Air Force commander, Aleksandr Rutskoi. They were inaugurated on 10 July 1991. On 2 November 1991, after considerable debate, the CPD awarded Yel’tsin additional powers for one year to appoint ministers without legislative approval and to instigate urgent economic reforms with minimal legislative oversight. Local elections were also suspended until 1993, and the President was given the power to appoint regional Governors.2 Using his expanded powers, Yel’tsin appointed himself Government Chair on 6 November, for ‘shock tactic’ economic reforms. In the spring of 1992 Yel’tsin’s free market economic policies lost him support, so he no longer had majority backing in the CPD3 and, indeed, lost the confidence of V-P Rutskoi, who sided with the ‘industrial lobby’.4 Backtracking on reforms in the second half of 1992 did not win back popularity. By the end of 1992, a power struggle between Yel’tsin and the Legislature was only prevented from erupting through skilful mediation by Constitutional Court Chair Valerii Zor’kin. In December 1992 the CPD unsuccessfully tried twice to amend the Constitution to remove presidential power to appoint ministers. Although a majority supported each resolution, it was less than the twothirds required. The first stage of an impeachment attempt was similarly thwarted, but it convinced Yel’tsin he would have difficulty getting Egor Gaidar confirmed as Government Chair. Yel’tsin therefore proposed a deal. In return for the CPD confirming Gaidar, Yel’tsin would agree that four other key ministers – Foreign Affairs, Defence, Security and Internal Affairs – would be appointed by the Supreme Soviet, following 2 PJS Duncan, ‘The Democratic Transition in Russia: From Coup to Referendum’ (1993) 46 Parliamentary Affairs 491, 502. 3 E Huskey, Presidential Power in Russia (Armonk, NY, ME Sharpe, 1999) 29. 4 A Rahr, ‘The Roots of the Power Struggle’ (1993) 2 RFE/RL Research Report 9, 10.

The First Russian Presidency 85 nomination by the President. The Constitution was appropriately amended. There were other changes: the Government was made accountable to the CPD and the Supreme Soviet as well as the President. The Supreme Soviet could suspend a presidential edict pending a Constitution Court ruling. An article was inserted specifying that if the President used his powers to ‘change the national-State structure of the Russian Federation or to dissolve or suspend the activity of any legally elected agencies of State power’, his presidential authority would immediately cease. Having thus insured itself against intemperate presidential actions, the CPD promptly reneged on the prior tacit understanding and did not endorse Gaidar as Government Chair. Yel’tsin was understandably furious. On 10 December he warned of a ‘creeping coup’ by the reactionary Legislature (the Supreme Soviet) headed by ‘legislative dictator’ Ruslan Khasbulatov (its Chair), and said he would turn to the people with a referendum on 24 January, asking whether they trusted the current CPD or the President more. The loser would face new elections the following spring. To counter this, on 10 December the Legislature amended the referendum law to ban any referendum that would result in the dissolution of a high State body, including the CPD, the Constitutional Court or the Presidency. Constitutional Court Chair Zor’kin again intervened and, with difficulty, persuaded Yel’tsin and Khasbulatov to discuss a possible compromise.5 A commission chaired by Zor’kin produced an agreement accepted by the CPD. Under it, a referendum on a new Constitution would be held on 11 April. Yel’tsin agreed that his candidate for Government Chair would be one of three selected by the CPD from his shortlist of five; in return, his extra presidential powers would be extended for another three months. The constitutional amendments allowing immediate termination of presidential power if he tried to change the ‘nationalState structure’ or suspend the Legislature, and additional Supreme Soviet oversight of presidential legislation, were made conditional on the referendum on the basic provisions of a draft new Constitution and would not enter into force until then. In March 1993 Yel’tsin asked for the renewal of his extra powers. The CPD refused, instead adopting earlier proposals to reduce them. 5 See, eg, the account in F Kaplan, ‘Yeltsin, Congress Leaders Reach Compromise’ Boston Globe, 13 December 1992. See also T Bekbulatova’s detailed account in Russian, ‘Dva suda odnogo chelaveka [Two Courts in One Person]’ Meduza, 26 December 2018.

86 The President It also reneged on the agreement to hold the April referendum. A furious Yel’tsin stalked out of the Legislature and declared he would hold a referendum anyway on 25 April. He submitted two questions to the Central Elections Commission: whether Russia should be a presidential republic and whether citizens should have the right to own land. He also announced on television on 20 March that he had signed a decree ‘On special procedure for governing the country’ which threatened the Legislature’s dissolution. Unwisely, Constitutional Court Chair Zor’kin summoned the Court, and on 23 March, by a majority of nine judges to three, condemned Yel’tsin’s speech before seeing the transcript. When it appeared five days after the broadcast, it was much less threatening, and Zor’kin was criticised for failing to follow proper procedure. The conflict between Yel’tsin and the Legislature which led to the October 1993 presidential coup will not be examined further here.6 However, clearly Yel’tsin learned lessons from that struggle and ensured that the Constitution he ushered into place in December 1993 gave the President unquestionable advantages. III. THE PRESIDENCY UNDER THE 1993 CONSTITUTION

A. Legislative Provisions The Constitution itself sets provisions on the President. Unlike in 1991, there is no Law on the President. The Constitution does not require one, unlike the situation regarding the Government, where it specifically demands a Federal Constitutional Law (FCL) to determine the ‘procedure for [its] activity’ (Article 114(2)). The Constitution does require a federal law on presidential elections. Currently this dates from 10 January 2003, as successively amended. It defines in great detail the required processes: announcing the elections (by the Federation Council), preparing voter lists, polling stations and election commissions; the process for candidate nomination; campaigning rules; the direct, secret, equal and universal vote itself, by registered voters aged 18 or over, treating the entire country as a single constituency; vote counting to determine the winner (outright if over 50 per cent of valid votes); organising a second voting round if necessary – a run-off 6 See ch 3, s II.B; RB Ahdieh, Russia’s Constitutional Revolution: Legal Consciousness and the Transition to Democracy 1985–1996 (Pennsylvania, Pennsylvania State University Press, 1997).

The Presidency under the 1993 Constitution 87 vote, between the top two first round candidates, as in 1996; officially publishing the results; and organising the inauguration. In practice, the rules have not ensured fair elections. The International Election Observation Mission of the Organization for Security and Co-operation in Europe (OSCE)’s preliminary report on Vladimir Putin’s 2018 re-election stated: The 18 March presidential election took place in an overly controlled legal and political environment marked by continued pressure on critical voices, while the Central Election Commission (CEC) administered the election efficiently and openly. After intense efforts to promote turnout, citizens voted in significant numbers, yet restrictions on the fundamental freedoms of assembly, association and expression, as well as on candidate registration, have limited the space for political engagement and resulted in a lack of genuine competition.7

Even the CEC Chair, Ella Pamfilova, regretted ‘that not all potential candidates were able to run in Russia’s recent presidential election’,8 referring to ‘Opposition activist Alexei Navalny [who] was barred from running because of a conviction in a fraud case’.9 Pamfilova noted that this was consistent with federal law, which the CEC was duty-bound to follow, and the Constitutional Court had affirmed (in its 18 January 2018 ruling) the constitutionality of ‘limitations on eligibility to be elected for people who have committed grave and very grave crimes’.10 The only other law directly relating to the Presidency is the 12 February 2001 federal law (updated to December 2020), ‘On guarantees for a President RF, who has ceased his powers, and for members of his family’. It gives generous material support – for example, staff and a State dacha – to ex-Presidents and their family, who continue receiving support after the ex-President’s death. This law was preceded by Acting President Putin’s first edict, signed on 31 December 1999, giving ‘any former President’ – there had been only one – generous pension provisions for both him and his family. It also gave the former President unqualified immunity from ‘being brought to criminal or administrative responsibility, detained, arrested, subject to search, [or] subjected to personal inspection’ for activities whilst President. The 7 Available at www.osce.org/odihr/elections/russia/375670. See also the final report available at www.osce.org/odihr/elections/383577, particularly 5 and fn 10; the preliminary report statement cited is also repeated (at 1). 8 ‘Russia’s CEC Regrets Some Potential Candidates were Unable to Run in Presidential Election – Pamfilova (Part 2)’ Interfax Russia & CIS General Newswire, 23 March 2018. 9 ibid. 10 ibid.

88 The President 2001 law contains the equivalent immunity guarantee, tempered by the possibility of withdrawal. This, and subsequent d evelopments on immunity, are discussed in section V.B. below. Article 80 of the Constitution defines the President as Head of State. Thus personifying the Russian State, he ‘occupies an independent and dominant position in the system of agencies of State power’.11 This status justifies the impressive ‘super-presidential’ range of powers.12 He is: [G]uarantor of the Constitution RF and the rights and freedoms of man and citizen. In the procedure established by the Constitution RF, he takes measures to protect the sovereignty of the RF, its independence and State integrity, maintain civil peace and agreement in the country, and ensure the coordinated functioning and interaction of agencies of state power. (Article 80(2); highlighted section added in 2020)

The range of different functions has led Russian commentators to suggest that presidential office stands separate, above the classic triad of executive, legislative and judicial State powers.13 Also, because he coordinates the agencies of State power and conciliates between them, he must be separate from them. This neatly sidesteps the issue that the extent of presidential power might subvert the principle of autonomy of the three branches, as in Article 10 of the Constitution. Both Article 80 and the presidential oath in Article 82 refer to his role as the Constitution’s guarantor. The oath, taken at a ‘solemn ceremony’, has legal significance. The Constitutional Court based its judgment that Yel’tsin sending troops into breakaway Chechnia in 1994 was lawful on his sworn duty to preserve the State’s integrity.14 However, breach of the oath is no longer grounds for impeachment (see section V.C below). The fact that there is now no Russian V-P also places the President above the general fray; he is sole ‘sovereign’ with no obvious deputy. The V-Ps of both USSR President Gorbachev and Russia’s first President

11 Commentary on art 80 in LV Lazarev (ed), Kommentarii k Konstitutsii Rossiiskoi Federatsii [Commentary on the Constitution of the Russian Federation] (Moscow, Novaia Pravovaia Kultura, 2009). 12 See, eg, S Holmes, ‘Superpresidentialism and its Problems’ (1993–94) 2/3 East European Constitutional Review 123. 13 TIa Khabrieva, ‘Pravitel’stvo RF – vysshuu ispolnitel’nyi organ gosudarstvennoi vlasti Rossiiskoi Federatsii [The Government RF – Highest Executive Agency of State Power of the Russian Federation]’ in TIa Khabrieva (ed), Pravitel’stvo Rossiiskoi Federatsii (Moscow, Norma, 2005) 104. 14 WE Pomeranz, ‘Judicial Review and the Russian Constitutional Court: The Chechen Case’ (1997) 23 Review of Central and East European Law 9.

The Presidency under the 1993 Constitution 89 Yel’tsin ended up in pitched battle against his President: Ianaev in August 1991 and Rutskoi in October 1993. It was therefore unsurprising that there is now no V-P. Instead, if a President leaves office prematurely (voluntarily, or through incapacity or impeachment), the Government Chair becomes Acting President (Article 92(3)). New presidential elections follow within three months; meanwhile, the Acting President exercises presidential power, although he may not dissolve the Duma, call a referendum or propose constitutional amendment. This process was triggered on 31 December 1999, when Yel’tsin stood down and his then Government Chair, Vladimir Putin, became Acting President, in which role he successfully campaigned for election to full office in March 2000. B. Requirements for Office Article 81(2) of the Constitution originally stipulated that a presidential candidate must be a Russian citizen of at least 35 years old who has ‘permanently resided’ in Russia for at least 10 years. In a 2009 Commentary, Leonid Lazarev noted that the Election Law denied presidential candidacy to a citizen who simultaneously held Russian and foreign citizenship, or someone with the right of permanent residence abroad.15 In 2020 these restrictions were included in the Constitution and strengthened in two ways: first, the residency requirement is increased to 25 years (revised Article 81(2)); and, second, anyone who has ever held foreign citizenship or residency rights is disallowed. An exception is made for citizens of territories previously outside Russia which have since joined the RF. The President is now also forbidden to open a foreign bank account or hold assets abroad. Similar limitations apply to other State office holders, although for them, previous foreign citizenship or residency is allowed.16 The initial 1992 Presidency had no residency requirement, but did have an upper age limit of 65. Yel’tsin, born in 1931, would have been 65 at the latest possible re-election date under that law (July 1996). No surprise, then, that the 1993 Constitution set no upper age limit.

15 Lazarev,

above n 11, commentary to art 81(2). E Teague, ‘Russia’s Constitutional Reforms of 2020’ (2020) 5 Russian Politics 301, 310. 16 See

90 The President In keeping with the approach that the President stands above the other branches of State power, it has been consistent practice that he does not belong to a political party or faction while in office. Article 1 of the 1991 law on the RSFSR President specifically allowed any membership to be suspended. Yel’tsin took a deliberate stand of independence from political parties, saying he was President of all Russians, not just a particular grouping. In the early days of multi-party development in Russia, this also allowed him to manoeuvre different factions. The Constitution does not have an equivalent provision, but the 2001 federal law ‘On Political Parties’ does. Article 10(4) gives ‘the right to suspend his membership in a political party for the term of effectuation of his powers’.17 This is clearly permissive not mandatory. This apparent independence from party politics does not stop parties openly advocating a particular candidate. In 2004 Putin was supported by United Russia (UR: Edinaia Rossiia), which was created soon after he first took office. It campaigned during the 2003 Duma elections on the policy of unwavering support for him. His name and image were exploited in UR’s December 2007 Duma election campaign based on an unspecified ‘Putin’s Plan’.18 In the 2008 presidential election four political parties endorsed Dmitrii Medvedev without him joining any of them. When Putin left the Presidency in 2008, he became UR Party Chairman, while still not a member; UR rules were especially amended to allow this. Medvedev took over UR chairmanship from May 2012, also without joining. In 2011 Putin as Prime Minister established a ‘movement’, The All-Russia People’s Front (Obshcherossiiskii Narodnyi Front (ONF)) which: [U]nites active and engaged inhabitants of the country. The main tasks of the ONF are to monitor the execution of decrees and orders of the head of state, fight corruption and waste, inefficient spending of public funds, improve the quality of life and protect the rights of citizens.19

ONF is not a political party though is a political organisation, run top down, not bottom up.20 Its members can include, for example, UR

17 English translation as updated to 2013 in WE Butler, Russian Public Law, 3rd edn (London, Wildy, Simmonds & Hill, 2013) 63, 67. 18 DS Hutcheson, Parliamentary Elections in Russia (Oxford, British Academy, 2018) 128–29. 19 Translation of the mission statement in Russian on its website onf.ru. 20 I am grateful to Elizabeth Teague for her clarification about ONF.

The Presidency under the 1993 Constitution 91 supporters, and the converse: non-party candidates from ONF could become Duma deputies through the UR (or indeed other party) lists. Putin remains ONF leader. In 2018 he used self-nomination rather than nomination by any political party. C. Term of Office The first Russian Presidency had a five-year term. The 1993 Constitution reduced this to four years, although other periods were discussed during the drafting process. In December 2008 the first major constitutional amendment increased the term to six years from the next election in 2012.21 The need for the increase was not clearly articulated in the media, but academic constitutional commentaries explained the rationale as allowing the President to realise policy goals within one term.22 The term for the lower legislative chamber, the Duma, was simultaneously increased to five years. This decoupled Duma and presidential elections. Previously there was a four-yearly cycle of December Duma elections followed by March presidential elections, creating a very long campaigning period. Article 92 gives possible grounds for the early termination of a President’s powers: resignation, incapacity or impeachment (see section V.C below). In July 2000 the Constitutional Court confirmed that presidential immunity did not preclude early termination, although stressed the procedure should not be abused to remove a President inappropriately.23 The original version of Article 81(3), like the first Russian Presidency, prescribed that: ‘One and the same person may not occupy the office of President RF for more than two terms in succession.’ Having served two four-year terms from 2000, Putin declared he would respect the Constitution so would not contest the 2008 presidential election. Instead, he gave his blessing to fellow Petersburger (and fellow alumnus of St Petersburg State University Faculty of Law) Dmitrii Medvedev. Medvedev campaigned on the basis that he would appoint Putin as Government Chair. Medvedev was elected by a large majority (possibly

21 See

J Henderson, ‘Developments in Russia’ (2015) 21(2) European Public Law 229. above n 11. 23 Decrees 6 July 1999 N 10-P and 11 July 2000 N 12-P. See also Lazarev, above n 11. 22 Lazarev,

92 The President artificially enhanced – see section V.A below) and immediately nominated Putin as promised.24 The two claimed to work in tandem, as a so-called ‘tandemocracy’, although some pundits suspected that Putin remained in overall charge. As President, Medvedev was able to insert some of ‘his’ people into positions of power.25 ‘Whether by design or not, during his brief tenure Medvedev consistently advocated political liberalisation.’26 Very occasionally he publicly contradicted Putin, notably countering Putin’s declaration before the verdict in the second Khodorkovsky trial that ‘a thief must be in jail’ with the observation that no official had the right to comment before a trial verdict was reached.27 The Constitution allowed Medvedev to run for a second term, and ‘Both Putin and Medvedev continually avoided the succession question, thus leaving ample room for speculation.’28 However, at UR’s Congress in September 2011, Medvedev made the surprise announcement that Putin, not he, would be the forthcoming presidential candidate.29 Putin in return promised that if elected, he would have Medvedev as Government Chair. At least amongst the educated, urban intelligentsiia (‘creative classes’), the perceived cynicism of this so-called castling arrangement (named after the move under European chess rules, whereby the king and rook make a simultaneous strategic exchange) fuelled anger which manifested in street demonstrations following the December 2011 Duma elections, in which electoral fraud was manifestly rife.30 24 A 2008 cartoon by Dennis Lopatin playing on the fact that Soviet and Russian leaders alternated between being bald and hairy shows Medvedev and Putin repeatedly taking turns as President. 25 See, eg, H Blakkisrud, ‘Medvedev’s New Governors’ (2011) 63(3) Europe-Asia Studies 367. 26 A Baturo and S Mikhaylov, ‘Reading the Tea Leaves: Medvedev’s Presidency through Political Rhetoric of Federal and Sub-national Actors’ (2014) 66(6) Europe-Asia Studies 969, 972. 27 ‘Mikhail Khodorkovsky: Russia’s Political Prisoner’ The Guardian, 28 December 2010. 28 Baturo and Mikhaylov, above n 26 at 971. 29 ‘Election’s Funeral’ Russian Law Online, 25 September 2011, which pointed out a linguistic quirk in English not evident in Russian because the latter has neither definite nor indefinite articles: ‘The article in English is a treacherous thing. It can transform an innocent statement into a political proclamation. Let’s take, for example, the following sentence: “On the 4th of March 2012, Russia will be electing a president” and change it just a little, almost unnoticeably: “On the 4th of March 2012, Russia will be electing the president”. A whole new world of meanings has appeared in what had seemed a mere statement of fact.’ Henderson, above n 21 at 231. 30 In relation to the 2011 Duma elections, see T Wesolowsky, ‘Allegations of Electoral Violations Made across Russia – and Online’ RFE/RL Report, 5 December 2011; S Gutterman and T Grove, ‘Russian Mass Protests over Alleged Election Fraud’ The Independent, 10 December 2011.

The Presidency under the 1993 Constitution 93 Reading Article 81(3) literally, Putin appeared to be allowed to stand again. However, a strong argument was made by distinguished legal academic Vladimir Pastukhov that the wording is not so clear-cut; allowing a repeat candidate to run for a third term, even after a gap, would be against the spirit of the Constitution, allowing for a ‘president for life’.31 Pastukhov first raised this issue in September 2011 in Novaia Gazeta.32 He asserted that: [I]n a rule of law state the question of a third term for the president should not be a matter for a meeting or demonstration, but for the Supreme Court of the Russian Federation. He appended a draft application to the Court, which he submitted. But the Court did not take up the challenge, and Putin was re-elected.33

This fascinating exercise in constitutional parsing was brought to a clear end by a novel provision in the 2020 constitutional amendments. The working group (see Chapter 3, section III.C) proposed removing from Article 81(3) the words ‘in succession’, so that future Presidents would be unable to return after a break, as Putin did in 2012. Then on 10 March at the Duma’s plenary session for the amendments’ second reading, 83 year-old former cosmonaut and Duma deputy Valentina Tereshkova put forward an apparently extemporaneous proposition to amend Article 81 further. She proposed that the new limitation, to two terms absolutely, would apply to current or former Presidents ignoring terms already served when the amendment came into force. Putin graciously acquiesced to this, provided that the Constitutional Court confirmed in its review of the amendments that it ‘would not run counter to the principles of the constitution’.34 In contrast, after a detailed (and comparative) review, the Venice Commission concluded that ‘the ad hominem exclusion from the term limits of the current and previous President is regrettable’.35

31 The author is grateful to Professor Bill Bowring for bringing Dr Pastukhov’s arguments to her attention. 32 V Pastukhov, ‘Tretii srok Putina ne sovsem legitimen [Putin’s Third Term is Not Completely Legitimate]’ Novaia Gazeta, 30 September 2011. 33 B Bowring, ‘Book Review of J Henderson, The Constitution of the Russian Federation: A Contextual Analysis’ (2013) 19(2) European Public Law 607, 612. 34 ‘Putin Says Zeroing out Previous Office Terms Possible if Approved by Constitutional Court’ TASS Russian News Agency, 10 March 2020. 35 Venice Commission, ‘Interim Opinion on Constitutional Amendments and the Procedure for Their Adoption’, 19–20 March 2021, 14.

94 The President Unsurprisingly, the revised amendment was approved. It allows Putin (and the only other living former Russian President, Medvedev) to run again for up to two more terms. Was this ‘zeroing’ (as the media labelled it) of Putin’s terms the fundamental goal of the 2020 amendments from the outset?36 Alternatively, did the opportunity to insert this significant change dawn on the President and/or his advisers once the large reform package was under way? Certainly, it was not at the forefront of the campaign to encourage voter turnout to approve the amendments. Indeed, it was not initially mentioned on the official website.37 But the ‘2024 problem’, when Putin would again be at the end of a second presidential term, had already fuelled speculation.38 Previously he had forsworn constitutional amendment.39 Other possibilities initially suggested included a repeat of the 2008 ‘castling’ move (now no longer possible), installation as head of a union with Belorus40 or as Chair of an enhanced State Council.41 This latter may still be an option, especially as the amendments have raised the State Council’s profile (see Chapter 6, section V.A). Another option permitted to former Presidents by the amendments is to become a Senator for life (see Chapter 5, section II.B.ii). Irrespective of Putin’s eventual choice, one very significant outcome of the ‘Tereshkova amendment’ is that, merely by allowing the possibility of further terms, it has negated Putin’s status as a lame duck. In a well-publicised TV interview, Putin himself welcomed that effect.42 The Working Group co-chair, Andrei Klishas, put it succinctly: ‘Politicians must stop thinking about the [power] transfer.’43 Nevertheless, they still do. 36 See, eg, M Turchenko, ‘Putin’s Fundamental Amendment’ Riddle, 25 June 2020. 37 D Dmitrev, ‘Na saite distantsuinnogo golosovaniia po Konstitutsii ne tolko zabyli ob obnulenii, no i opublikovali feikovye popravki [On the Remote Voting Site for the Constitution, They Not Only forgot about Zeroing, But Also Published Fake Amendments]’ Meduza, 9 June 2020. 38 S Gutterman, ‘Putin’s 2024 Problem: Election Win Raises Curtain on Clouded Future’ RFE/RL Report, 18 March 2018. 39 ‘Putin Says No Plans to Change Constitution for Now, Suggests Will Not Run in 2030’ RFE/RL Report, 18 March 2018. 40 A Shraibman, ‘A Brotherly Takeover: Could Russia Annex Belarus?’ Carnegie Moscow Centre Report, 29 January 2019. 41 Eg, one of three options suggested in F Weir, ‘New Russian Order: After Presidency, Yet Another Role for Putin?’ Christian Science Monitor, 22 January 2019. 42 See, eg, A Arutunyan, ‘Putin Wants You to Think He’s Not Going Anywhere’ Moscow Times 24 June 2020. 43 E Kuznetsova, ‘Klishas ob”iasnil “popravku Tereshkovoi” neobkhodimost’iu otvlech’ chinovnikov [Klishas Explained the Tereshkova Amendment by the Need to Distract Officials]’ RosBiznesKonsalting, 22 June 2020.

Presidential Powers 95 IV. PRESIDENTIAL POWERS

A. Introduction Presidential powers, mainly in Articles 83–90, were already extensive. The 2020 amendments to Article 83 incorporated existing additional powers and added others.44 Below we group powers by topic. We begin with tools to define overall policy, both domestic and foreign. The President’s role relating to the Executive (Government) is mainly covered in Chapter 6, but below (in section IV.C) we highlight one significant ministerial grouping. We detail his role selecting key personnel (except the Judiciary; see Chapter 7) and in oversight and conciliation, before considering implied powers. B. Defining Fundamental Directions of Activity The President ‘determines the basic orientation of the State’s internal and foreign policy’ (Article 80(3)). He can specifically direct Government members and other key personnel. However, he also uses carefully monitored set-piece speeches to establish important policy developments.45 Under Article 84, he must give an annual Address to the full Legislature, the Federal Assembly (FA). Putin postponed his 2017 Address until 1 March 2018, less than a month before the presidential elections.46 Addresses are very high profile, with blanket media coverage, and are taken extremely seriously.47 Transcripts are subsequently posted on the presidential website. The content of FA Addresses alerts analysts (both within Russia and abroad) to important developments. Gordon Smith’s observation that ‘[e]mphasis on protecting Russian state sovereignty increased dramatically after the “coloured revolutions” of 2003 and 2004 in Georgia

44 For a succinct summary, see Teague, above n 16 at 325. 45 Eg, O Drozdova and P Robinson, ‘A Study of Vladimir Putin’s Rhetoric’ (2019) 71(5) Europe-Asia Studies 805. 46 ‘Russia: Russian President to Deliver State of the Nation Address in New Format’ TASS, 1 March 2018. The 2021 Address was also delayed. 47 See, eg, the discussion of federalism as treated in Medvedev’s 2008 Address in WE Pomeranz, ‘President Medvedev and the Contested Constitutional Underpinnings of Russia’s Power Vertical’ (2009) 17(2) Demokratizatsiya 179, 185.

96 The President and Ukraine’ was based in part on Putin’s 2005 Address.48 Marianna Muravyeva dated Putin’s use of conservative political ideologies to his 2013 Address.49 The role of FA Addresses has changed. Earlier ‘it was something between a report and a declaration of intentions’,50 but in the last couple of years it has transformed into a set of compulsory strategic guidelines, subsequently compiled into specific implementation instructions by the Presidential Administration. The Duma then elaborates a plan for their realisation.51 The 2020 constitutional amendments were triggered by Putin’s 15 January FA Address, replete with detailed proposals (see Chapter 3, section III.C). Since 2000. the President has also held a much-publicised annual televised ‘Question and Answer’ call-in session.52 This heavily stagemanaged event nevertheless includes some critical questions, even if they are not necessarily answered.53 The President also makes regular budget addresses and other ‘Statements on Major Issues’. All are well aired and carefully scrutinised. The President is amongst the privileged group with the right of legislative initiative (Article 104(1)). A review of the statistics since the spring of 2012 shows the President in fact introducing few bills, although with a very high success rate.54 However, his Administration, or other agencies

48 See GB Smith, ‘Russian Exceptionalism? Putin’s Assertion of Sovereignty at Home and Abroad’ (2015), www.law.upenn.edu/live/files/1882-gordon-smith-russianexceptionalismpdf. 49 M Muravyeva, ‘Conservative Jurisprudence and the Russian State’ (2017) 69(8) EuropeAsia Studies 1145. See also K Melin, ‘A New Russian Idea?: Neo-Eurasianist Ideas in the Russian Presidential Addresses to the Federal Assembly 2014–2016’ (2017), dissertation, available at urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-318650. 50 K Melnikov, ‘Putin’s Address to the Federal Assembly’, report to the School of Slavonic and East European Studies Press Group, 28 February 2019. 51 Eg, ‘Instructions on Implementation of Presidential Address to the Federal Assembly’ Russian Government News, 16 March 2018; ‘V GD obsudili khod realizatsii Poslaniia Presidenta Federal’nomu Sobraniiu [The State Duma Discussed the Implementation of the President’s Address to the Federal Assembly]’ 25 September 2018, duma.gov.ru/news/28236. 52 Eg, ‘Direct Line with Vladimir Putin’, transcript of broadcast live by Channel One, Rossiya 1, Rossiya 24, NTV, Public Television of Russia (OTR) and Mir TV channels, and Mayak, Vesti FM and Radio Rossii radio stations, 20 June 2019. See also T Stanovaya, ‘No Change Ahead, a Jaded Putin Signals at Annual Phone-in’ Carnegie Moscow Centre, 24 June 2019. 53 See, eg, S Gutterman, ‘The Week in Russia: Save the Whales, Slam the ’90s – Putin’s Not-So-Direct Line’ RFE/RL Steve Gutterman’s Week in Russia, 20 June 2019. 54 See B Noble and E Schulmann, ‘Not Just a Rubber Stamp: Parliament and Lawmaking’ in D Treisman (ed), The New Autocracy: Information, Politics, and Policy in Putin’s Russia (Washington DC, Brookings Institute, 2018) 49, 59, fig 3-1 and 60, fig 3-2.

Presidential Powers 97 under his aegis, such as the Security Council, can be the source of draft bills, even when apparently sponsored by Duma deputies.55 Thus, and especially this century with a cooperative Legislature, the President – or his Administration – has significant influence over the content of laws (zakony).56 The 2020 constitutional amendments came from a presidential bill. The President signs federal legislation for it to go into force. He can veto federal law, although this may be overridden (see Chapter 5, section III). The 2020 amendments provided him with an extra tool. Under Article 125(5-1)(a), he can request a Constitutional Court review of the constitutionality of draft constitutional amendments, FCLs or federal laws, including federal law he has tried to veto. Previously he was bound to sign any properly adopted FCL (and probably constitutional amendments, although this is not explicit in the Constitution). Now he can delay signature pending Constitutional Court confirmation of constitutionality. The President can issue edicts (ukazy) and regulations (rasporiazhenii) that are binding throughout Russia. The only limitation is that they ‘must not contravene the Constitution and federal laws’ (Article 90). During President Yel’tsin’s time, much of the legislation developing the economic sphere was by presidential edict, as the Legislature was reluctant to enact reforms. Richard Sakwa estimated that Yel’tsin issued ‘over 1,500 policy-relevant ukazy during his term in office’.57 Occasionally Yel’tsin did more than fill gaps. In 1993, in direct contradiction to the 1960 Criminal Code, he issued an edict decriminalising consensual male homosexual activity. This was applied until its provisions were effectively incorporated into the 1996 Criminal Code. Maxim Ananyev analysed presidential behaviour from 2000 to 2016.58 He calculated that during his first two terms, Putin averaged 82 decrees 55 ‘Zakondatel’naia Retseptura: Kak rozhdaiutsia na svet rossiiskie zakony [Legislative Recipe: How Russian Laws are Born]’ Kommersant’ Vlast’, 26 January 2015, 9; P Chaisty, ‘Majority Control and Executive Dominance: Parliament-President Relations in Putin’s Russia’ in A Pravda (ed), Leading Russia: Putin in Perspective: Essays in Honour of Archie Brown (Oxford, Oxford University Press, 2005) 119, 134. However, see also E Schulmann, ‘Duma-2014 Report: Outcomes and Tendencies’ (2015) 53(4) Russian Politics & Law 57; Noble and Schulmann, above n 54 at 65–66. 56 B Noble, ‘Presidential Proxies: Cloaked Law-Making in Contemporary Russia’ russianlawmaking, 8 May 2017; O Churakova and E Mukhametshina, ‘Federation Council Gets New Role’ Vedomosti, 2 May 2017 listed as ‘Presidential Administration Prefers to Draft Significant Bills via the Senate’ in BBC Summary of Russian Press, 2 May 2017. 57 R Sakwa, Russian Politics and Society, 4th edn (Abingdon, Routledge, 2008) 108. 58 M Ananyev, ‘Inside the Kremlin: the Presidency and Executive Branch’ in D Treisman (ed), The New Autocracy (Washington DC, Brookings Institute Press, 2018) 29.

98 The President per month.59 A graph of ‘presidential decrees by month’ from January 2000 to 2016 indicates that Medvedev’s rate was roughly similar.60 Since the start of Putin’s third term, there have only been around 37 decrees per month. Ananyev suggests the reduced rate may either be because Putin is focusing more on implementation or is using more informal means to effectuate his policies. The President protects Russia’s sovereignty, independence and State integrity (Article 80). Under Article 83(e1) introduced in 2020, he personally appoints (following Federation Council consultation) and can dismiss the heads of federal agencies responsible for defence, security, internal and foreign affairs and similar (see section IV.C below). He forms and heads the Security Council, confirms the Russian Military Doctrine, and appoints and dismisses the Armed Forces High Command, as well as (following consultation with the appropriate Legislature committees) appointing and recalling diplomatic representatives (Article 83(g), (h), (k) and (l)). He ‘effectuates guidance over foreign policy’ (Article 86), conducting negotiations – or sending appointed delegates – and signing international treaties. He confirms by edict the ‘Conception of Foreign Policy of the RF’. There has been a succession of these; the February 2013 Conception was superseded in December 2016. He is Supreme Commander-in-Chief of the Armed Forces, with the power to introduce a ‘military situation’ (martial law) in the whole or part of Russia in the event of aggression, or direct threat of aggression, against Russia (Article 87). The only limitation is that he must follow rules established in a FCL, including immediately informing the Legislature. The required FCL was signed on 30 January 2002. Under Article 88, he can declare an ‘extraordinary situation’ (state of emergency) following the procedure in a FCL. As this allows the temporary limitation of rights, he must notify the Legislature, giving reasons for the specified measures. The Federation Council must give approval within three days or the declaration loses effect.61 The current FCL dates from 30 May 2001, replacing a law of 17 May 1991, invoked in November 1991 to legitimise the first Chechen war.62

59 ibid 45. 60 ibid 45, fig 2-3. 61 See AN Domrin, The Limits of Russian Democratisation: Emergency Powers and States of Emergency (Abingdon, Routledge, 2006) 127. 62 ibid 101 and 124.

Presidential Powers 99 Although the powers in this section, with the one exception of Article 83(e1), existed in the original version of the Constitution, the emphasis in the 2020 amendments on Russia’s sovereignty and exceptionalism (see Chapter 8, section III.C) adds importance to the President’s leadership role in this sensitive field. C. Formation of the Executive The President is key to the appointment of important personnel, including the Government Chair, Deputy Chairs and federal ministers (see Chapter 6, section II). Here we highlight the special group of ministries over which the President has direct charge. This is explicit in the amended Article 83(e1). The President shall: [A]ppoint to office after consultation with the Federation Council and remove from office heads of federal agencies of executive power (including federal ministers) in charge of issues of defence, State security, internal affairs, justice, foreign affairs, prevention of extraordinary situations and overcoming the consequences of natural disasters, and public security.

(By contrast in 1992 President Yel’tsin was forced to agree that four key ministers – foreign affairs, defence, security and internal affairs – would not be appointed solely by him, as other ministers, but by the Legislature, after presidential nomination.) Presidential aegis over these agencies is not new. The FCL on the Government states that the President shall ‘direct the activity’ of this group.63 The Ministry of Justice was included after reforms in 2004, possibly because by then it had taken change of the whole penitentiary system, following an undertaking to the Council of Europe as a condition of joining in 1996. Transfer was from the Ministry of Internal Affairs. In 2016 the National Guard was added after its creation as an extra security service to maintain civic order and combat terrorism.64 Thus, as well as being Supreme Commander-in-Chief, the President appoints (albeit after consultation with the Federation Council) the heads of the crucial ‘power ministries’ (silovie ministerstva), which might maintain control by force if necessary. He has personal direction over 63 Article 32. Butler, above n 17 at 178, as amended to 2012. 64 See M Galeotti, ‘Is the Russian National Guard Suddenly Acquiring Sweeping New Powers? No, Not So Much’ In Moscow’s Shadows, 6 June 2017.

100 The President their activities. There is no stated requirement that he should consult before any dismissals. The Government is not completely excluded from dealings with these agencies. By law, it ‘coordinates’ their activity and they are answerable to the Government for fulfilling their assigned objectives, as well as to the President, a system reminiscent of Soviet ‘dual subordination’ (see Chapter 2, section IV.A). As well as establishing the Government, the President forms his own Presidential Administration (PA; Administratsiia Prezidenta Rossii) that is directly responsible to him (Article 83(i)). The 2020 amendment inserted the words ‘for the purpose of ensuring the effectuation of his powers’. The PA is a huge bureaucracy, with subdivisions which act almost as parallel government departments. Such duplication is very reminiscent of the Communist Party structure paralleling the Soviet Government,65 but the modern PA is already several times the size of the old Communist Party Central Committee apparatus. It carries out many of the same oversight, law-drafting and appointment functions as the Party Central Committee, and the constitutional language about the President’s functions is quite similar to that relating to the Party in the 1977 Constitution.66 The PA’s legal status is ‘a matter of some dispute’.67 Its 1996 Regulations defined it as a State body, but a 1997 Constitutional Court case to determine this, in response to a Duma challenge, was discontinued. Certainly, its website says it is a State body. The PA currently works under a presidential edict of 6 April 2004, as updated. There are also p residential edicts establishing separate specialist subdivisions within the PA – for example, for Foreign Policy, and the State-Legal Administration.68 In Eugene Huskey’s meticulous study of presidential power in Russia, he says that this ‘is an institution unique to Russia’.69 One ‘undisputed feature’ is its ‘mammoth size and complexity’. At the time he was writing in 1999, the PA (translated by Huskey as ‘Executive Office of the 65 E Huskey, ‘The State-Legal Administration and the Politics of Redundancy’ (1994) 11 Post-Soviet Affairs 115. 66 Thanks to Professor Huskey for pointing out these parallels (personal correspondence, 7 May 2009). 67 PB Maggs, O Schwartz and W Burnham, Law and Legal System of the Russian Federation, 7th edn (Huntington, NY, Juris Publishing, 2020) 298. 68 The three statutes are in Butler, above n 17 at 163, 172 and 175. 69 Huskey, above n 3 at 58.

Presidential Powers 101 President’) had ‘forty-three bureaux and two thousand professional staff members’. Huskey noted that: In a purely presidential system, such as that of the United States, a presidential apparatus of this size would appear large, though unremarkable. The current White House staff in Washington, for example, includes more than fifteen hundred officials. But in the United States, there is not a separate executive leader – the Chair of the Government – with his own extensive apparatus. The more fitting comparison, then, is France, where the Élysée Palace – home to the President – employs fewer than a hundred officials.70

In March 2004, shortly after resuming office for his second presidential term, Putin announced that he was streamlining his PA.71 Sakwa suggests that the reorganisation was to reduce competition between the PA and the Government, with the former focusing on political matters and the latter on economic matters.72 Nevertheless, the PA remains a large and extremely influential body. In late 2020, its website listed 23 departments. There is a separate institution, the Administration of Affairs of the President (Upravlenie delami Presidenta), previously known as the Chancellery. This is on the Government Website as one of the ‘Federal services and agencies’ and describes itself as a ‘federal organ of executive power’. Huskey says that it ‘has no parallel in Western public administration’.73 Amongst other things, the Administration of Affairs creates ‘appropriate living conditions for officials’, so that: ‘Just like the old nomenklatura class in the Soviet era, the Russian political elite lived off the state in a very immediate sense.’74 As it states on its website: [T]he Administration of Affairs of the President has developed and strengthened its professional and personnel potential. The multifaceted sphere of activity of the Administration of Affairs of the President has brought together specialists from all possible professions into one family, consisting of 50,000 people working in the central office and 110 subordinate organizations. Academics, doctors, builders, engineers, economists, teachers, lawyers, designers, cooks, agronomists, architects, pilots and drivers, teachers, educators, IT specialists, communications workers, ballet and dance artists, librarians and guides do their favourite work every day for the benefit of Russia.75 70 ibid 59. 71 JA Corwin, ‘Putin Reshuffles the Presidential Administration’ RFE/RL Newsline, 26 March. 72 R Sakwa, Russian Politics and Society, 5th edn (Abingdon, Routledge, 2021) 188. 73 Huskey, above n 3 at 51. 74 ibid. 75 In Russian at udprf.ru/obshchie-svedeniya.

102 The President Article 83(j) of the Constitution gives the President the right to appoint and dismiss presidential plenipotentiary representatives.76 He has complete freedom to choose where he assigns such personnel.77 There is a presidential representative in each of the two legislative chambers and at the Constitutional Court. The President can also appoint nonpermanent special representatives for specific issues in internal or foreign policy. Through these individuals, who are directly accountable to him, the President has channels of communication – both ways – which he can utilise in formulating and implementing his policies. One important set of representatives are the ‘federal presidential representatives’, known as polpredy, a contraction of their Russian name: Polnomochnye predstaviteli Presidenta. Federal presidential representatives existed earlier under Yel’tsin in federal subjects, although not in all.78 Their rights and duties were poorly defined; their main task was to report on the Governor’s loyalty.79 They were unpopular and in April 1992 the CPD recommended their abolition.80 However, in July 1992 a presidential edict approved a new set of regulations, establishing that federal representatives would be appointed by the President and would be personally responsible to him.81 The events in the autumn of 1993 ‘contributed to the further transformation of the institution’.82 In the late 1990s, Putin, then a member of Yel’tsin’s PA, investigated reorganising the presidential representatives.83 Within a week of his own 76 Plenipotentiary from the Latin for ‘having full power’; the word is equivalent to the Russian polnomochnye used for these presidential representatives. 77 VA Lebedev, ‘Stanovlenie i Razvitie Instituta Polnomochnogo Predstavitelia Presidenta Rossiiskoi Federatsii v Federal’nom Okruge [Formation and Development of the Institution of the Plenipotentiary Representative of the President RF in a Federal District]’ (2018) Vestnik Universiteta Imeni OE Kutafina (MPOA) 88, 91 text and fn 10e. 78 ibid 90 text and fn 5: ‘By the end of 1991 representatives of the President of the RSFSR were appointed in more than half of the subjects, with the exception of the republics. There, this process was somewhat delayed.’ ‘For example, in the Republics of Tatarstan and Bashkortostan, the President’s representatives were not appointed until 2000.’ 79 Early history ibid 89–90. See also GA Gogenko, ‘Institute Polnomochnogo Predstavitelia Presidenta Rossia v Sub”ekte Federatsii: Kontseptual’nye i Normativnye Osnovaniia Stanevleniia Osnovnye Etapy Razvitiia [Institution of the Plenipotentiary Representative of the President of Russia in a Subject of the Federation: Conceptual and Regulatory Foundations of Formuation, Main Stages of Development]’ (2017) Bulletin of the Ministry of Internal Affairs St Petersburg University. 80 Lebedev, above n 77 at 90. 81 ibid 91. 82 ibid. 83 E Huskey, ‘Political Leadership and the Centre-Periphery Struggle: Putin’s Administrative Reforms’ in A Brown and L Shevtsova (eds), Gorbachev, Yel’tsin, Putin: Political Leadership in Russia’s Transition (Washington DC, Carnegie Endowment for International Peace, 2001) 118.

Presidential Powers 103 presidential inauguration in May 2000, Putin issued an edict creating the current polpredy. His main innovation was to establish seven new ‘federal districts’, with federal subjects allocated to them, and a polpred for each. On 18 May Putin appointed his seven polpredy; all but two were generals, with quite fierce reputations, from either the military or the security services.84 The choice of mainly siloviki – former military or ‘power ministry’ personnel – added weight to Putin’s reform. Ross noted that the new federal districts also closely matched Russia’s military districts, ‘thus giving the envoys … direct access to the command and control networks of the military garrisons situated in their districts’.85 Polpredy were given deputies and a sizeable support team (around 100 staff), luxurious offices and impressive salaries.86 They are classed as civil servants, members of the PA, are appointed and dismissed by the President, being subordinated and directly accountable to him. Their term of office is therefore limited to the President’s term.87 Their support teams are appointed, dismissed and under the control of the head of the PA.88 Putin made it clear that the role of polpredy is not to supplant Governors, but to ‘coordinate’ with them, although this could include gathering information about behaviour and compliance.89 Polpredy can also attend the weekly meetings of the federal Government and are members of the Security Council.90 They are also in the State Council (see Chapter 6, section V.A). Russian legal scholar Valerian Lebedev directly links the creation of polpredy to the President’s fundamental protection role characterised

84 See J Henderson, ‘Redefining Russia’s Federal Structure?’ (2000) 6 European Public Law 496. 85 C Ross, ‘Putin’s Federal Reforms and the Consolidation of Federalism in Russia: One Step Forward, Two Steps Back!’ (2003) 36 Communist and Post-Communist Studies 29, 34; Huskey, above n 83 at 123. 86 On pay, see J Kahn, Federalism, Democratization, and the Rule of Law in Russia (Oxford, Oxford University Press, 2002) 244; Huskey, above n 83 at 131; V Shtepa, ‘Russian Federal Districts as Instrument of Moscow’s Internal Colonization Publication’ (2018) 15(105) Eurasia Daily Monitor: ‘All these officials receive the high salaries of Kremlin employees because they are officially classified as part of the presidential staff.’ 87 Lebedev, above n 77 at 93. 88 ibid. 89 On polpred–Governor interaction, see N Petrov, ‘Regional Governors under the Dual Power of Medvedev and Putin’ (2010) 26(2) Journal of Communist Studies and Transition Politics 276, 295–98. 90 Ross (above n 85 at 35) says that the edict to set up the federal districts was drafted by the Security Council.

104 The President in Article 80, with the timing of their introduction having been carefully calculated: ‘In 2000, within federal government in general and the Presidency in particular there was complete consensus that it was necessary to establish order in the country.’91 The polpredy were thus an important part of Putin’s strengthening the vertical chain of command – his ‘vertikal’ vlasti’. Writing in 2018, Lebedev explained the reform: Preventing the collapse of the state, preventing disintegration through the consolidation of the country’s sovereignty was the driving force behind the formation of federal districts, and another important tool in the hands of the President of Russia became the institution of plenipotentiaries in the federal districts.92

Six days after the first polpredy appointments in 2000, recently installed Procurator-General (P-G) Vladimir Ustinov announced that the Procuracy would also establish offices with a Deputy P-G in each federal district. Two days later, Minister of Justice Yurii Chaika said his ministry would follow suit. The Audit Chamber, the Federal Security Service (FSB), the Ministry of Internal Affairs, the Ministry of Defence, the Federal Tax Police and others were also quick to add the new federal district level to their hierarchies. Putin thus effectively amended Russia’s federal structure without discussion, primary legislation or constitutional reform.93 In January 2010, President Medvedev created an eighth federal district, the North Caucasian, taking federal subjects from the Southern Federal District. The new district includes the troubled Chechen Republic, and other potential conflict areas of Dagestan and Ingushetia. There was further reorganisation after Crimea joined Russia in March 2014; initially a separate Crimean federal district was created, but was amalgamated into the Southern Federal District in July 2016, resulting in the current eight federal districts. The institution of polpredy is not without controversy. Some believe it should be abolished, others that it should be further developed. One suggestion is to reassign polpredy to be under the Government Chair as governmental not presidential representatives. Amendments in January 2010 to Articles 6 and 11 of the FCL on the Government allowed the President to install deputy Government Chairs or federal ministers as

91 Lebedev,

above n 77 at 92. 92–93. 93 See Henderson, above n 84. 92 ibid

Presidential Powers 105 polpredy. This is the only other office a minister is allowed to hold simultaneously. According to Valentin Mazurov, this would easily allow the federal representatives to become representatives of both the President and Government ‘and consequently – representatives of the entire system of federal executive power’.94 Mazurov’s suggestion was rebutted by Lebedev, who asserted that the President is not included in the system of executive power, so it would be inappropriate to have such an overlap; rather, polpredy represent the President as Head of State, their work focusing on implementing his policy, as well as reporting and submitting proposals to him. Lebedev instead recommended that a polpred be given rights to submit draft legislation to the federal subjects’ legislatures within his federal district and to comment on proposed legislation.95 If the Russian federal subjects are ever reorganised into fewer larger units, then it could be appropriate to further rethink the role of polpredy. Despite support for them implementing federal anti-crisis measures ‘under the conditions of sanctions, [and] the global economic crisis’,96 federal subjects complain that polpredy are unaccountable, including avoiding penalties for serious crime:97 Nevertheless, regime loyalists continue to hope for reforms of the federal districts. Political scientist Maxim Fomin says Russia needs economic decentralization and has suggested transforming these districts into ‘project federal territories’ (Vedomosti, July 3 [2018]). This, however, would represent precisely the sort of political-economic restructuring that central authorities fear: If federal districts can launch their own development projects, it would violate the ‘vertical of power’ principle that is the main reason for the districts’ existence.98

It may be that the new possibility of ‘special territories’ allowed by the 2020 amendment to Article 67 of the Constitution will become the locus for some such political-economic restructuring, whilst maintaining central control.99 Further speculation is premature at this point; however,

94 V Iu Mazurov, Federal’nye okruga v territorial’noi sisteme organizatsii gosudarsvennoi vlasti v Rossiiskoi Federatsii [Federal Districts in the Territorial System of Organization of State Power in the Russian Federation] (Moscow, Darstva, 2015) 29 as cited in Lebedev, above n 77 at 95. 95 Lebedev, above n 77 at 95. 96 ibid. 97 Shtepa, above n 86. 98 ibid. 99 Teague, above n 16 at 315–16.

106 The President in July 2021, Government Chair Mikhail Mishustin assigned Deputy Chairs to supervise federal districts. Formation of the Federation Council (FC) is discussed in Chapter 5, section II.B.ii. Here we note that the constitutional amendments in 2014 gave the President power to appoint up to 17 FC members. Inexplicably, this power was not exercised. However, the 2020 amendment expanded it. Under Article 95(2)(c), the President can now appoint up to 30 Senators, of whom seven can be for life (the others for six-year terms). Separately, a former President – either following the end of his term or having resigned early – can, if he wishes, become a life senator. The new draft law on the FC’s formation initially required an ex-President to exercise this option within three months of leaving office or of the law coming into force. However, this limitation was removed, gifting Medvedev a comfortable sinecure should he so wish. Under Article 83 of the Constitution, the President has a role in the appointment and dismissal of candidates for important posts. Some are detailed below (see Chapter 6 regarding the Government Chair, Deputies and ministers, and Chapter 7 for the Judiciary). Generalising: in most cases presidential nomination requires confirmation by another agency, but dismissal is at will. During the 1990s, Yel’tsin did not always get his selections confirmed, but since then in reality the theoretical check of agreement by the specified legislative chamber is merely political theatre. The Duma has a confirmatory role in both the appointment and dismissal of the President’s candidate for Central Bank Chair. It also appoints the Deputy Chair and half the Audit Chamber’s members; the FC appoints the Chair and the other half, in both cases the President presenting candidates. (Before the 2020 reforms, the Duma appointed the Audit Chamber Chair, and the FC the Deputy. It is not clear why the switch was made.) The FC is consulted by the President over appointment of the heads of the special siloviki group discussed above. The original version of Article 83 specified that the P-G was appointed and dismissed by the FC, in both instances following a presidential proposal. This caused Yel’tsin a problem. In 1999–2000 he wanted P-G Iurii Skuratov out of office because Skuratov was investigating possible corruption by Yel’tsin’s close associates. In March 1999, extracts from a video of ‘a man resembling Skuratov’ in bed with two naked women were broadcast on State-owned television, immediately after the FC’s first refusal to dismiss. At the time, Vladimir Putin was

Presidential Powers 107 in charge of the FSB.100 He claimed that the FSB had proved the man in the video was Skuratov.101 This crude attempt to denigrate Skuratov did not work. Yel’tsin suspended Skuratov, but the FC twice more refused his dismissal. It was not until April 2000 that the FC eventually dismissed Skuratov; by then, Yel’tsin was out of office. Perhaps Putin remembered the affair and included presidential control over dismissal of the P-G in the 2020 amendments, building on the 5 February 2014 constitutional amendments to Article 129 which changed Procuracy appointment processes.102 The President thus now controls, either directly or (for the highest appointments) following consultation with the FC (whatever that means), all Procuracy personnel. So although the Procuracy is not a government agency, and not part of the ‘special group’ under direct presidential control discussed earlier, the President determines who composes this significant organisation (see Chapter 8). D. Supervision and Oversight The President may cancel any federal Government decrees and regulations which he regards as inconsistent with the Constitution, federal laws, his own edicts or (added in 2020) regulations (Article 115(3)). There is no requirement for any judicial consideration, although the Government could appeal to the Constitutional Court. The President may also suspend the operation of legislative acts issued by the governments of federal subjects if he judges them to be contrary to the Constitution or federal laws, or Russia’s international obligations, or if they violate the rights and freedoms of man and citizen (Article 85(2)). The impugned legislation is suspended, ‘pending resolution of the matter by the appropriate court’. Clearly, if no court hearing ensues, suspension is permanent, although may be challenged before the Constitutional Court. Putin pointedly exercised this power shortly after first becoming President, suspending eight regional laws. The Constitutional Court concurred. Along with changes to the FC (discussed in Chapter 5, 100 Thanks to Professor Bill Bowring for alerting the author to Putin’s role in procuring the video. 101 A Jack, Inside Putin’s Russia: Can There Be Reform without Democracy? (London, Granta Books, 2005) 83. 102 See J Henderson, ‘The 2014 Amendments to the 1993 Constitution of the Russian Federation’ (2016) 1 Uppsala Yearbook of Eurasian Studies 279.

108 The President section II.B.ii), polpredy (see above), and a revised relationship with regional Governors (see Chapter 6, section IV), this was part of Putin’s campaign to impose a ‘dictatorship of law’ strengthening central control over Russia’s wayward periphery in what he called a vertikal’ (vertical hierarchy) of power.103 The President effectively controls who becomes Governor, either through direct appointment or, for elected Governors, approving candidacies. Since 2000, the President can dismiss or suspend a Governor (provided that certain conditions are met) and can then appoint whomever he wishes as Acting Governor, pending elections. This gives the President a very privileged position in the centre–periphery balance of power. This 2000 legislation also set a strict timetable for regional legislation to be brought into conformity with federal law, on pain of that legislatures’ dissolution if a second warning is ignored. The process is long and complex; dissolution is via the Duma adopting a federal law.104 Unlike the process for the dismissal of a Governor, following the initial step of an ‘appropriate court’ confirming the violation’s existence, there is no further court appeal. The legislatures in Sakha and Adygeia appealed to the Constitutional Court, asserting that the process breached separation of powers.105 In 2002 a Court majority decision ‘upheld the Russian president’s right to dismiss regional executive and legislative bodies, but only with extensive judicial supervision of the process’.106 There were four strong dissents.107 We noted in Chapter 3 that the 2020 constitutional amendments introduced into Article 132 the principle of a ‘unified system of public power’ without explaining the concept.108 It seems likely to involve increased central control. Given the President’s duty to ‘maintain civil peace and agreement in the country, and ensure the coordinated functioning and

103 See Kahn, above n 86 at 245; R Sakwa, Putin: Russia’s Choice (New York, Routledge, 2004) 139. 104 See the details of procedure in Kahn, above n 86 at 262. 105 WE Pomeranz, Law and the Russian State: Russia’s Legal Evolution from Peter the Great to Vladimir Putin (London, Bloomsbury Academic, 2019) 181; Kahn, above n 86 at 260ff. 106 Pomeranz, above n 105 at 181. Extract of Constitutional Court decree in Maggs, Schwartz and Burnham, above n 67 at 360. 107 By Nikolai Vitruk, Gadis Gadzhiev, Tamara Morshchakova and Vladimir Yaroslavtsev; Extract of the latter in Maggs, Schwartz and Burnham, above n 67 at 363. 108 See Teague, above n 16 at 312–14.

Presidential Powers 109 interaction of agencies of state power’ (Article 80(2)), it seems likely that presidential control over regional executives and legislatures will be enhanced in the development of this new principle. This coordinating role leads the President to mediate between agencies of executive power at different levels – between centre and federal subjects, and between federal subjects.109 He can establish conciliation commissions to resolve disputes (Article 85). The emphasis is on reaching consensus and a mutually acceptable solution; however, failing that, there may be appeal to the Constitutional Court. E. Implied and Additional Powers As if the express powers described above were insufficient, the Constitutional Court (CCRF) has developed, or possibly imported, a doctrine of implied powers. Under this, the President may exercise authority not explicitly assigned to him, so long as it fits within the overall spirit of the constitutional provisions defining his role. The CCRF even affirmed implied power in a situation where the Constitution designated the Legislature to pass a specific federal law; absent such law, the President could adopt an edict.110 The only proviso is that this will lose force when the appropriate federal law is eventually passed. In 1995 the CCRF also held that by implication the President can amend by edict the list of federal subjects in Article 65 of the Constitution, incorporating a new one, provided it was voluntarily created through the proper procedure.111 In 2001 the CCRF allowed presidential legislation to resolve contradictions in State pension support law.112 Such tidying up and interim gap-filling is entirely understandable. Other legislation has increased presidential powers beyond those in the Constitution. Scrutinising the legal database ConsultantPlus, prestigious academic Mikhail Krasnov determined that, between 1994 and 109 Iu L Shul’zhenko, ‘Kompetentsiia Presidenta RF v otnoshenii ispolnitel’nykh organov gosudarstvennoi vlasti [Competence of the President RF in Relation to Performance by Agencies of State]’ in AA Bondarenko (ed), Ispolitel’naia vlast’ v Rossii. Istoriia i sovremennost’ problemy i perspektivy razvitiia [Executive Power in Russia. History and Current Problems and Prospects for Development] (Moscow, Novaia Pravovaia Kultura, 2004) 63. 110 See, eg, the Chechen War case, ruling of 31 July 1995, discussed in Pomeranz, above n 14. 111 M Lomovtseva and J Henderson, ‘Constitutional Justice in Russia’ (2009) 34 Review of Central and East European Law 37, 59. 112 See ‘Case on the President’s Decree on Pension Administration, Ruling No 9-P of 25 June 2001’ extracted in Maggs, Schwartz and Burnham, above n 67 at 306.

110 The President May 2011, 116 laws created 473 new presidential powers (excluding repeats and laws which lost force).113 Some were in areas generally understood as within presidential competence – protection of the constitutional order, sovereignty and State integrity, his role as Commander-in-Chief and director of foreign policy – but also ‘rather numerous powers … relate to areas beyond the scope of his constitutional tasks’ (emphasis in original).114 The impressive portfolio includes regulating activities of non-governmental organisations, the civil service, budget policy, financial control and other economic relations, culture, science and technology, and education. Thus, the President not only issues pardons (under Article 89(c) of the Constitution) but also determines the pardon procedure – for example, requiring admission of guilt. Amongst the President’s additional powers identified by Krasnov were expanded rights in relation to the CCRF (see Chapter 7): from 2009 to nominate to the FC the Chair and his two deputies, and from 2010 to submit a proposal for dismissing the Court Chair. As Krasnov notes: ‘The wording [of Article 80(2)] itself sounds as if all state life goes on “under the wise guidance of a leader [vozhd’]”, and not in accordance with the principles of a legal democratic state.’115 The 2020 constitutional reforms have now included some of these specific examples into the text of the Constitution. Nevertheless, Krasnov’s overall conclusion of unrestrained expansion of presidential power via federal law remains valid. V. ACCOUNTABILITY

A. Election Since 2012, the President is elected by a nationwide popular vote by secret ballot for a term of six years (previously four). He is therefore only directly accountable to his electorate once after six years, if he seeks possible re-election. Direct popular accountability through election works only if elections are free and fair. The presidential election for Yel’tsin’s second term in 1996 was not transparently even-handed. A group of oligarchs used 113 MA Krasnov, ‘Zakonodatel’no zakreplennye polnomochiia Prezidenta Rossii: neobkhodimost’ ili servilism? [Legally Enshrined Powers of the President of Russia: Necessity or Servility?]’ (2011) 4(83) Sravnitel’noe Konstitutsionnoe Obozrenie 1, 4. 114 ibid 5. 115 ibid.

Accountability 111 their media control to transform public opinion from a mere 2–3 per cent in Yel’tsin’s favour to over 35 per cent at the first ballot. Yel’tsin’s state of health was kept secret; a video of him voting was altered to eliminate signs of a recent massive heart attack, and it was only once he was safely elected after the run-off ballot that his health issues were made public as he underwent a quintuple heart bypass operation.116 More recent presidential elections have also raised doubts. We already noted above that the OSCE international observers concluded that there was ‘a lack of genuine competition’ in the 2018 election.117 Independent election monitoring had been severely restricted. Open Democracy could state on 16 March 2018 that: ‘For several years now, not a single civic organisation has had the right to send election observers to polling stations.’118 There have been sustained attacks on the independent election observers GOLOS over the years, including enforced registration in 2012 as a ‘foreign agent’ which necessitated the organisation’s restructuring to continue its work. Ten years earlier, the international observers from the OSCE’s Office of Democratic Institutions and Human Rights (ODIHR) decided not to proceed with their planned observation because of what they saw as unreasonable restrictions imposed at very short notice by the Russian Central Elections Commission (CEC), although a 22-member Parliamentary Assembly of the Council of Europe (PACE) delegation did observe and report, albeit somewhat negatively.119 The 2008 results themselves overwhelmingly supported Medvedev, with 70.2 per cent of the popular vote. However, they also showed some unlikely statistical characteristics. Statistician Sergei Shpilkin noticed that the official returns revealed a disproportionate number of polling stations reporting percentages ending in either a zero or five for both voter turnout and Medvedev’s tally. One would expect a normal distribution curve, but analysis showed normality only up to the 60 per cent level: After that, [the results] look like sharks’ teeth. The spikes on multiples of five indicate a much greater number of polling stations reporting a specific

116 See DE Hoffman, The Oligarchs: Wealth and Power in the New Russia (New York, PublicAffairs, 2003) ch 13, ‘Saving Boris Yel’tsin’. 117 See text to n 7. 118 A Yarovaya, ‘There May Be No One to Vote for in Russia’s Elections, But They Will Be Well Monitored!’ Open Democracy, 16 March 2018; G Melkonyants, ‘How to Monitor Russia’s Next Election’ Moscow Times, 7 February 2018. 119 ‘Observation of the Presidential Election in the Russian Federation (2 March 2008)’ PACE Report no 11536, 20 March 2008.

112 The President turnout than a normal distribution would predict. A suspicious voter might say polling officials stuffed ballot boxes to achieve nice, clean percentages like 65, 70, 75, 80 and so on.120

Explaining the anomalies, Shpilkin suggested that those exact spikes not only revealed manipulation, but also demonstrated ‘an administrative demand’ for a specific turnout to be reported to superiors. He also observed that the higher the turnout, the higher Medvedev’s percentage – a correlation not seen in the returns for any of the other three candidates. Shpilkin found similar statistical anomalies in the December 2007 and 2016 Duma elections,121 and in the 2018 presidential election.122 B. Immunity The President is inviolable while in office, except for possible impeachment (see below). Article 91 of the Constitution gives immunity, but without any detail. Russian commentary stresses that presidential immunity goes beyond the: [G]eneral principles of inviolability of the person established by the Constitution (Articles 22 and 23), has a public legal nature and is called upon to provide for enhanced protection of the President due to State functions performed by him.123

It was thus understood to cover residences and office spaces, transport, communications equipment and documents, so that while in office the President could not be detained, searched, arrested or brought to any kind of legal responsibility (civil, administrative, disciplinary, or for nonserious crime). The February 2001 federal law ‘On guarantees for a President RF, who has ceased his powers, and for members of his family’ gives an

120 N Abdullaev, ‘Medvedev Won by Curious Numbers’ Moscow Times, 14 April 2008. 121 See S Shpilkin, ‘Russian Elections under Statistical Scrutiny’, podcast to the Woodrow Wilson Center, 29 September 2016. 122 C Schreck, ‘Seeing “Churov’s Saw”: Russian Researcher Says Putin May Have Received 10 Million Fraudulent Votes’ RFE/RL Report, 20 March 2018 (graph effect named after the former CEC head Vladimir Churov, ‘who oversaw several elections rife with fraud allegations’). 123 Lazarev, above n 11.

Accountability 113 ex-President immunity against criminal or administrative responsibility, detention, arrest or search (of the person, living- and work-spaces, transport, communications, documents and luggage). Immunity could be withdrawn following a complex process, involving both the Duma and the Federation Council, if the P-G accused him of a grave crime while in office (Article 3(2)). A 2020 constitutional innovation, Article 921, changed the process for deprivation of ex-Presidential immunity. It now follows the revised Article 93 process for impeachment, following the commission of treason or a grave crime. The 2001 federal law was appropriately amended in December 2020. C. Impeachment The main accountability mechanism is expulsion by impeachment. When the RSFSR Presidency was introduced in 1991, impeachment was for ‘a violation of the RSFSR Constitution or RSFSR laws, and also of the oath sworn by him’.124 Procedure would be initiated by the CPD, the Supreme Soviet or one of its two chambers. The RSFSR Constitutional Court would give an opinion about the alleged breach. (The Court was not yet in operation, but legislation establishing it was already in process, so reference to it was included.) The same procedure would apply for impeachment of the V-P on the grounds of violation of the RSFSR Constitution or laws. The impeachment decision would be by a two-thirds majority vote in the CPD. Impeachment proceedings were commenced against Yel’tsin in March 1993 and May 1999, but neither succeeded. Requirements for impeachment under Article 93 of the 1993 Constitution are distinctly narrower. Violating the Constitution or presidential oath is insufficient. A President can be impeached, or, following the 2020 amendments, an ex-President deprived of immunity, only on the basis of an accusation of treason or another grave crime, defined in the Criminal Code as one for which the perpetrator might receive 10 years’ or more incarceration. The procedure is stringent. The Duma makes an initial accusation by a two-thirds vote of the total number of deputies, at the initiative of at least one-third of them, with the added requirement of an opinion from

124 1978

RSFSR Constitution, art 121-10, 1991 redaction.

114 The President a special Duma commission. The President cannot dissolve the Duma once an accusation has been made (Article 109). Following the Duma’s accusation, the Supreme Court must confirm in principle the existence of the necessary elements of the alleged crime(s), and the Constitutional Court must confirm that the requisite procedures have been followed. The impeachment decision is made by the Federation Council, within three months of the accusation, through a two-thirds vote. Impeachment immediately terminates a President’s powers and immunity. Elections for a new President should take place within three months; in the meantime, the Government Chair is Acting President. Clearly, it is theoretically possible for a President to be impeached or an ex-President to lose immunity. However, realistically, if more than a third of either the Duma or the Federation Council is unswervingly loyal to the President/ex-President, the procedure will never work. In the Duma elected in 2016, UR, created to support Putin, won over threequarters of the seats. Over two-thirds of current FC senators are also UR members. Impeachment of the current President therefore seems vanishingly unlikely. The impeachment procedure has yet to be tried. There might be serious practical difficulties completing it within three months of the accusation. It holds a President to account only in the most extreme (and unlikely) circumstances. Thus, under the current conditions, the Russian President is effectively unaccountable. VI. CONCLUSION

The presidential powers discussed here are impressive; we see more in following chapters with governmental and judicial appointments. When the 1993 Constitution was first assessed by Western scholars, there was serious disquiet that it could facilitate a presidential dictatorship.125 Whilst this remains true, reality can temper the effect. With a bureaucracy as large as that of Russia, there is inevitably institutional inertia. This is not a new issue, but definitely persists. For example, in May 2019 the Russian media publicised then Government Chair Medvedev

125 See, eg, Holmes, above n 12; A Korkeakivi, ‘A Modern Day Czar? Presidential Power and Human Rights in the Russian Federation’ (1995) 2 Journal of Constitutional Law in Eastern and Central Europe 76.

Further Reading 115 berating government officials for their ‘negligent attitude to presidential orders’.126 Also, whilst clearly relishing the trappings of his status, the current President appears to be taking a less active interest in publicly guiding the ship of State.127 Having been in power one way or another for over 20 years, Putin may be tiring of the responsibility. Since his re-election in 2012, he has been ‘surprisingly diffident’ and ‘refusing to take a strong position’ on policy issues, apparently preferring to let ‘other interested actors to fight out policy battles among themselves’.128 When he does choose to get involved, he uses informal mechanisms.129 In remarks made in December 2016 while visiting a Cheliabinsk heavy industry plant, he suggested he might like to have more time to pursue his personal interests.130 However, it is doubtful whether Putin would be content to become a normal citizen pensioner at the end of his current term in 2024.131 The 2020 constitutional reforms have added to his range of choices thereafter (see section III.C above), whilst limiting any successor to only two terms (barring further constitutional amendment). The imbalances initially built into the Constitution have not been remedied by the recent amendments; indeed, presidential powers appear strengthened. As before in Russia, so much depends on the personnel. Unfortunately the Constitution’s institutional framework does little to control a determinedly autocratic President. The fact that Russia is not alone in this characteristic gives little comfort. FURTHER READING M Galeotti, We Need to Talk about Putin: Why the West Gets Him Wrong, and How to Get Him Right (London, Ebury Press, 2019).

126 Eg, BBC International Reports Summary of Russian Press for Wednesday 15 May 2019 citing E Kryuchkova ‘Things do not always have to be difficult’ Kommersant 2; V Kuzmin, ‘They Will Make Conclusions’ Rossiiskaia Gazeta 3. 127 D Treisman, ‘Introduction: Rethinking Putin’s Political Order’ in The New Autocracy: Information, Politics and Policy in Putin’s Russia (Washington DC, Brookings Institute, 2018) 1, 19. 128 Ananyev, above n 58 at 43. 129 Treisman, above n 127 at 18. 130 See responses to M Mikhelson in ‘Vladimir Putin Made a Working Trip to Chelyabinsk Region’ 5 December 2016 available at en.kremlin.ru/events/president/news/53410. 131 B Vishnevsky, ‘To Go out of Circle’ Novaia Gazeta 11, cited in BBC Monitoring Summary of Russian Press, 10 July 2017.

116 The President S Greene and G Robertson, Putin v The People (New Haven, Yale University Press, 2019). H Oversloot, ‘Reordering the State (without Changing the Constitution): Russia under Putin’s Rule, 2000–2008’ (2007) 32 Review of Central and East European Law 41. ‘Putin’, Russian Analytical Digest No 250, 9 April 2020. ‘Putin’s Power Games’, Russian Analytical Digest No 246, 7 February 2020. E Teague, ‘Russia’s Constitutional Reforms of 2020’ (2020) 5 Russian Politics 301.

5 The Legislature Legislation But Ineffective Representation? Establishing the Federal Assembly – Its Activities

I. INTRODUCTION

T

his chapter explores Russia’s representative and legislative agency, the Federal Assembly (FA). The rules on the formation of both the FA’s c hambers, the State Duma (hereinafter Duma) and the Federation Council (FC), have been amended remarkably frequently. Arguably, the result has reduced both representation and effectiveness. Here we examine legislative activity, and the Duma and FC’s other powers. Finally, we note calls to rebalance State power by strengthening the Duma’s role. We assess the 2020 constitutional amendments in that context. II. ESTABLISHING A MULTI-PARTY LEGISLATURE

A. Perestroika Reforms In October 1989 the 1978 RSFSR Constitution was amended to allow for a RSFSR Congress of People’s Deputies (CPD). Deputies were elected by multi-candidate elections: 900 from constituencies based on population and 168 from Russia’s different federal subjects.1 There were no allocated 1 This figure comprised 84 from the autonomous units (4 from each autonomous republic, 2 from each autonomous region and 1 from the autonomous area), with the other 84 from the territories, regions, and the cities of Moscow and Leningrad with special federal status.

118 The Legislature seats for social organisations, such as the USSR CPD had (see Chapter 2, section V). The RSFSR CPD indirectly elected a reformed Supreme Soviet to be the ‘permanently functioning legislative, administrative and control agency of state power of the RF’ (amended Article 107). Elections for the first Russian CPD were held on 14 March 1990. Boris Yel’tsin stood to represent his home region, Sverdlovsk. He won easily, with more than 72 per cent of the vote despite 11 other candidates. From there he became CPD Chairman and in June 1991 President, from which position he led Russia out of the USSR. Before then, on 15 June 1990, the Russian CPD amended Article 6 of the 1978 RSFSR Constitution to allow different political parties to exist. In late June a Russian Communist Party was established; previously the CPSU had represented both USSR and Russian interests. Perhaps not coincidentally, on 20 June 1990 the Russian CPD legislated to forbid any head of a Russian agency of State power from simultaneously holding office in a political organisation. B. Current Representation Russia’s 1993 Constitution gave it a new ‘representative and legislative agency’, the Federal Assembly (FA). This has two chambers, the Federation Council (FC) and the State Duma (hereinafter ‘the Duma’), which function separately; indeed, they are currently housed in different buildings in Moscow, although they meet together for special occasions, such as the President’s Annual Address. The first elections for both were held on the same day as the national plebiscite adopting the Constitution: 12 December 1993 (see Chapter 3, section II.B). The FC is also known in English as the Council of the Federation or the Soviet of the Federation (recall that soviet means council). Since the 2020 constitutional amendments, FC members are called Senators. ‘Duma’ stems from the Russian verb dumat’, meaning to think or advise. One commentator remarked about the name’s reintroduction that the: [P]rerevolutionary name ‘Duma’ evokes a not very successful history, the first three Dumas having been elected and then summarily dismissed by Tsar Nicholas II.2

2 M Merritt, ‘The Russian State Duma, On-stage and Off: Inquiry, Impeachment, and Opposition’ (2000) 8 Demokratizatsiya 165, 175, fn 4.

Establishing a Multi-party Legislature 119 The founding premise was that the Duma represents the general population, and the FC ‘the collective voice of the regions’.3 However, as will be seen below, changes to the composition of the FC have undermined that principle. Both chambers hold two sessions each year, although of slightly different lengths, running from January to June/July, and September to December. The Duma usually has plenary meetings on Tuesdays, Wednesdays and Thursdays; other days are reserved for committee and commission work.4 The FC is more part-time, meeting ‘as required, but at least twice a month’ (Article 41(3) of its Reglament). The Constitution is surprisingly unspecific about the composition of the chambers. It prescribes that the Duma has 450 deputies and is ‘elected for a term of five years’ (emphasis added. Article 96 as amended December 2008; previously four years), and stipulates that the ‘procedure for the formation of the FC and the procedure for elections of the Duma shall be established by federal laws’ (emphasis added). Importantly, it is thus left unclear whether FC senators should be elected or appointed. A mix of methods has been used (see below). As with other important posts, the 2020 constitutional amendments require Senators and Duma deputies to be Russian citizens, living in Russia with no current foreign citizenship or residence permit, or bank accounts or valuables abroad (Articles 95(4) and 97). Senators must be at least 30 years old (or 21 for Duma deputies). The FC and the Duma each elects a Chair and Deputy Chair, with appropriate powers. Each also establishes committees to consider proposed legislation and monitor governmental activity. The Duma’s ‘Reglament’ lists 26 committees (though others may be formed). Membership is between 12 and 35 deputies, the composition being proportional to Duma factions. Every deputy (except the Duma Chairman) serves on one committee. There are also seven commissions. The FC has ten committees and seven commissions. Generally, Duma committees’ areas of interest correspond to Government ministries and departments, and commissions to more general fields or internal issues, such as the Duma Commission on Deputy Ethics. FC committees look

3 I Busygina, ‘Federalism in Russia: Outcomes of the Decade 1993–2003 and the Newest Developments’ in K Malfleit and R Laenen (eds), Elusive Russia. Current Developments in Russian State Identity under President Putin (Leuven, Leuven University Press, 2007) 52, 57. 4 Reglament, art 40(3). English translation updated to 2013 in WE Butler, Russian Public Law, 3rd edn (London, Wildy, Simmonds & Hill, 2013) 298.

120 The Legislature at broad sectors (eg, foreign affairs, economic policy); its commissions tend to be for a specific purpose, for example, ‘protection of state sovereignty and prevention of foreign interference in Russia’s affairs’. As with many other States’ legislatures, detailed scrutiny takes place in these bodies. i. Formation of the Duma Duma election rules have changed frequently. Under Transitional Provision 7 of the Constitution, the first convocation was for two years. After that, there were four-year terms until 2011, when five-year terms began. For the first three convocations (1993–2003), there was a divided system, with half of deputies elected on a first-past-the-post system in single-member districts and the other half by proportional representation (PR), based on nationwide voting for a registered party or electoral bloc (coalition of parties). The threshold for allocation of PR seats was 5 per cent of the national vote. A similar system pertained for the next two convocations (1995–99, 1999–2003), although with some amendments – for example, the 1995 threshold for a valid turnout was reduced from 50 to 25 per cent.5 For elections from 2003 onwards, only registered parties and not electoral blocs could compete for the PR seats. A more dramatic change affected the 2007 and 2011 elections. All single-member seats were abolished. The PR threshold was raised to 7 per cent, although with special provisos for extreme situations if only two parties succeeded or if the total successful parties’ vote was less than 60 per cent of the overall vote.6 The ‘against all’ option and minimum turnout requirement were removed. These and other changes – for example, to party financing rules – resulted in a reduction of the number of eligible parties and the effective eradication of all independent deputies.7 Vladimir Putin’s justification for the changes was that they would encourage a strong party system. However, this was over-optimistic or indeed mendacious. The link between the electorate and deputies became

5 See J Henderson, ‘Election Time in Russia’ (1996) 2(1) European Public Law 63, 65. 6 For details, see N Munro and R Rose, ‘A Guide to Russian Elections’, Study in Public Policy Number 428 (Aberdeen, University of Aberdeen Centre for the Study of Public Policy, 2007) 17. 7 N Munro and R Rose, ‘Russian Elections since 1991’ (2009) 465 University of Aberdeen Studies in Public Policy 10–11.

Establishing a Multi-party Legislature 121 more tenuous. Electors were encouraged to vote for headline delegates, although they rarely become deputies: 105 candidates winning United Russia [UR] seats in the 2007 [Duma] election resigned shortly after their election and their seats passed to names lower down the party’s list.8

In the 2011 election, 89 UR deputies waived their seats.9 Some household-name candidates took Government posts or were Governors. The overall effect of such substitution is that: Duma members are not immediately accountable to the electorate but to the party leader who puts them high enough up the party list to receive seats allocated to the party by the PR system. Any Duma member who leaves his or her party is thereby deemed to have resigned their Duma seat. In the words of the United Russia’s general secretary, ‘The Duma’s place is not for political discussion but technical issues’.10

The 2007 Duma elections were not subject as previous elections to an observer mission from the Organization for Security and Cooperation in Europe (OSCE), although there was some oversight by other international organisations.11 Importantly, the respected Russian independent organisation Golos monitored the campaign, with dramatic results: On polling day itself Golos coordinated the work of 2,500 activists at more than 20,000 polling stations across the country, which was about a fifth of the total, from the opening of the ballot boxes at 08.00 until the final protocols had been signed … Golos and its local monitors drew attention to a whole series of mechanisms that allowed the Kremlin to exercise a disproportionate degree of influence on the outcome of an election.12

These included unequal and biased media coverage, Electoral Commissions (Central and local) packed with partisan members, the purchase of votes, inducements and/or threats, votes by ‘dead souls’, ballot-box stuffing, incorrect tallying, the selective disqualification of potential parties or candidates for fictional, fabricated or very minor rule breaches, inappropriate raids by security enforcement on offices, and the rejection by partial courts of complaints of electoral fraud. 8 R Rose and W Mishler, ‘A Supply-Demand Model of Party-System Institutionalization: The Russian Case’, Study in Public Policy Number 445 (Aberdeen, University of Aberdeen Centre for the Study of Public Policy, 2008) 11. 9 ITAR-TASS News Summary, 16 December 2011. 10 Rose and Mishler, above n 8 at 14, citing A Jack, ‘Critics See No Room for Dissent in New Duma’ Financial Times, 5 February 2004. 11 S White, ‘Elections Russian Style’ (2011) 63(4) Europe-Asia Studies 531, 537. 12 ibid 538.

122 The Legislature By the December 2011 Duma elections, new information and communication technologies allowed numerous electoral frauds to be given widespread attention.13 Shocking footage of ballot-box stuffing and ‘carousel voting’ where compliant voters were bussed from one polling station to another to vote multiple times were widely viewed.14 OSCE observers stated that the elections were marred by violations.15 ‘Communist Party leader Gennady Zyuganov was quoted by Reuters as saying it was the “dirtiest” election since the collapse of the Soviet Union.’16 Public anger brought ‘the most massive opposition rally over the past twenty years’ in Moscow (and other centres).17 President Dmitrii Medvedev responded with promises of reform, including a simplified party registration process and a return to a dual electoral system for the Duma’s 2016 elections. The threshold for PR seats was reduced back to 5 per cent. OSCE observers were again unimpressed; the final report notes that ‘democratic commitments continue to be challenged and the electoral environment was negatively affected by restrictions to fundamental freedoms and political rights, firmly controlled media and a tightening grip on civil society’.18 A record low voter turnout returned only four parties and gave United Russia (UR; Edinaia Rossiia) 343 of the 450 seats, well over the two-thirds needed for the Duma stage of constitutional amendment. At the time of writing, preparations are underway for the 2021 Duma elections. There will be three days’ voting. As with the extended week-long national vote confirming the constitutional amendments, which were justified as allowing safe voting during the COVID-19 pandemic, this makes effective independent compliance observation practically impossible.

13 M Bader, ‘Crowdsourcing Election Monitoring in the 2011–2012 Russian Elections’ (2013) 29(4) East European Politics 521; H Bækken, ‘Selections before Elections: Double Standards in Implementing Election Registration Procedures in Russia?’ (2015) 48 Communist and Post-Communist Studies 61. 14 T Wesolowsky, ‘Allegations of Electoral Violations Made across Russia – and Online’ RFE/RL Russia Report, 4 December 2011. 15 T Balmforth, ‘International Watchdogs Slam Russian Vote’ RFE/RL Russia Report, 5 December 2011. 16 ibid. 17 ‘Most Massive Opposition Rally over Past 20 Years Held In Moscow’ Russian Press Review (Itar-Tass World Service), 12 December 2011. See S Greene, Moscow in Movement: Power and Opposition in Putin’s Russia (Stanford, Stanford University Press, 2014) ch 8, 202ff. 18 OSCE/ODIHR Election Observation Mission Final Report on the State Duma Elections, 18 September 2016 (Warsaw, 23 December 2016).

Establishing a Multi-party Legislature 123 ii. Formation of the Federation Council Article 95(2) of the Constitution originally specified that the FC was composed of two members from each federal subject: one from its legislature and one from its executive. A 2014 amendment gave the President power to appoint 17 extra members; inexplicably, none were. The 2020 amendments introduced the term ‘Senators’ and under Article 95(2)(c) expanded the potential number of presidential appointees to 30 (seven for life; the others for six-year terms). President-appointed senators are exempt from residency conditions imposed on other senators. Under Article 95(2)(b), a former President could also become a senator-for-life. The President’s senatorial appointment power clearly gives scope for patronage and leverage (especially as senators have immunity from prosecution) and increases presidential influence within the FC. The possibility of a former President becoming a life senator also adds to Putin’s retirement options. Exceptionally, the first FC was formed entirely by first-past-the-post elections on 12 December 1993. This overcame the problem that many federal subjects’ legislatures were disbanded following Yel’tsin’s attack on the Russian Supreme Soviet, so could not nominate members.19 The Constitution’s transitional arrangements set the initial term for both the FC and the Duma as two years. The dispute about how to form the next FC was unresolved until a week before the December 1995 deadline. President Yel’tsin wanted an appointment system, whilst incumbent members preferred to seek re-election.20 The compromise was that from the beginning of 1996, the FC would consist ex officio of each federal subject’s executive head (Governor or equivalent), and its legislature’s chairman, but to give effect to the principle of democracy, Governors should be elected rather than presidentially appointed. This change was indirectly considered and supported by the Constitutional Court in an important ‘legal position’ in 1996,21 but was subsequently reversed in 2005.22 Such composition meant FC membership was a ‘kind of political school for regional leaders and a means through which they move to the

19 See R Ortung, ‘New, But Transitional, Federation Council Starts Working’ EastWest Institute Russian Regional Report, 6 February. 20 Henderson, above n 5 at 65. 21 Brief extract in PB Maggs, O Schwartz and W Burnham, Law and Legal System in the Russian Federation, 7th edn (Huntington, NY, Juris Publishing, 2020) 356. 22 See ibid 302 and 365; WE Pomeranz, ‘Medvedev and the Contested Constitutional Underpinnings of Russia’s Power Vertical’ (2009) 17 Demokratizatsiya 179.

124 The Legislature national level of politics’.23 However, because of their important roles elsewhere, achieving a quorum was problematic despite sitting for only one week in four. Occasionally the difficulty was so acute – particularly for Federal Constitutional Laws (FCLs), which require approval by threequarters of FC members – that postal voting was used, for instance in 1996 for the FCL on the Judicial System. New rules for FC formation were part of newly elected President Putin’s centralising reform package in 2000.24 Under a new federal law, half its members would be elected by secret ballot by federal subject legislatures (and could be similarly recalled). The other half would be Governors’ nominees, appointed by gubernatorial decree, provided that the federal subject legislature had not vetoed the nominee by a two-thirds majority. Recall was at the Governor’s whim. The FC would also meet at least twice a month.25 As I noted in 2000, ‘The response to Putin’s proposals were a little mixed. Members of the Duma’s federal affairs committee had earlier complained that a likely result was regions being represented by incumbent Governors’ “lovers and nephews”.’26 Governors themselves were content to relinquish their obligation to attend FC meetings in Moscow in exchange for membership of the newly established State Council, chaired by the President, thus giving its members a new lobbying opportunity.27 The composition of the FC altered noticeably from 1 January 2002, when the reform came into effect. On average, new members were younger with a Moscow business background;28 to achieve optimal results for their federal subject, Governors nominated representatives familiar with Moscow deal-making. There was also an influx of oligarchs (powerful individuals with immense personal wealth based on natural resources, acquired during Russia’s transition to a market economy). There was a corresponding reduction in personal links between the representative and the federal subject; there were allegations that some FC members had 23 Busygina, above n 3 at 58. 24 See J Henderson, ‘Redefining Russia’s Federal Structure?’ (2000) 6 European Public Law 496; C Ross, ‘Putin’s Federal Reforms and the Consolidation of Federalism in Russia: One Step Forward, Two Steps Back!’ (2003) 36 Communist and Post-Communist Studies 29 at 38. 25 Ortung, above n 19 at 73. 26 Henderson, above n 24 at 502–3, citing (2000) 4 RFE/RL Newsline 126, from Kommersant, 29 June 2000. 27 J Henderson, ‘Signs and Portents’ (2002) 8 European Public Law 321. 28 ‘As of 30 January [2002], 166 of the Council’s 178 members had been named (Izvestiya, 30 January [2002]). Of these 71 were permanent residents of Moscow’. Ortung, above n 19 at 74/383.

Establishing a Multi-party Legislature 125 never visited ‘their’ federal subject. There was also increased turnover.29 This was somewhat reduced by a rule change in November 2004 introducing specific grounds for recall, thus reducing arbitrary dismissals by Governors or regional legislatures.30 The same year saw increased presidential control over Governors as he selected the gubernatorial candidate to be confirmed into office by the regional legislature (see Chapter 6, section IV). This was controversially supported by the Constitutional Court’s 2005 revision of its earlier 1996 position that Governors should be elected. In 2007 there were further refinements. New FC members needed to prove a 10-year residency in their region, although existing members were exempt, as were military officers and procurators of at least 10 years’ standing. Putin’s reforms changed the FC; it became ‘boring’.31 Since 2003, its function as a second legislative chamber was undermined because UR’s large majorities in successive Dumas meant that any dissent could easily be overridden, ‘leaving the Federation Council little to do besides appoint judges and prosecutors and declare war’.32 As Ben Noble succinctly summarises: Such has been the shift in the balance of power between the federal centre and the regions that experts have concluded the following: the [Federation] Council ‘Effectively represents the federal government in the regions rather than providing the regions representation in federal policy-making’.33

The 2020 constitutional amendments, adding more presidential appointees, have furthered that development. Some aspects have not changed. First, beyond the first two-year transitional period, the FC does not run to fixed terms. It has a ‘rolling membership’, not periodic elections. Each Senator’s individual but 29 JA Corwin, ‘House of Lords or House of Valets?’ Radio Free Europe/Radio Liberty Russian Political Weekly, 6 August 2004, citing Kommersant, 2 August 2004. 30 L Belin, ‘Federation Council Seeks to Reduce Turnover’ Radio Free Europe/Radio Liberty Newsline, 29 November 2004 citing Regions.ru. 31 Nezavisimaia Gazeta, 24 July 2001, as cited in JA Corwin, ‘Has the Federation Council Finally Been Tamed?’ Radio Free Europe/Radio Liberty Russian Federation Report, 25 July 2001. 32 JA Corwin, ‘Governor Says Federation Council, State Council No Longer Needed’ Radio Free Europe/Radio Newsline, 14 May 2004, citing an interview with utro.ru on 13 May 2004. Note: only the most senior judges and procurators; others are appointed by the President. 33 B Noble, ‘Parliamentary Politics in Russia’ in R Sakwa, HE Hale and S White (eds), Developments in Russian Politics (Durham, NC, Duke University Press, 2019) 54, 60, citing C Ross and R Turovsky, ‘The Representation of Political and Economic Elites in the Russian Federation Council’ (2013) 21(1) Demokratizatsiya 59.

126 The Legislature renewable term corresponds to the period set by the agency that elected or appointed them, although a Senator might lose their seat through early recall (on limited grounds, as noted above) by the Governor or federal subject legislature that put them in office. Second, in contrast to the Duma, the FC rules do not allow Senators to form factions. Individual members are not forbidden to be members of a political party, but are expected to refrain from pushing party agendas. The influence of party politics has generally been more attenuated in the FC than in the Duma, where parties have an important role in the allocation of chairs and memberships of Duma committees. This brings us to a brief consideration of Russian political parties. C. Political Parties in Russia The development of a successful multi-party system remains an ongoing issue in Russia. There was no strong historical tradition of political parties in pre-revolutionary Russia, and during the 70-odd years of Soviet rule, no independent pressure groups were tolerated by the Communist Party of the Soviet Union (CPSU; ‘the Party’). The CPSU itself was not a political party as understood in Western-style democracies.34 Organised on Leninist principles to create an effective vanguard for the working class, it restricted membership to ‘suitable’ activists. A detailed induction process included personal recommendations from at least three existing members and a two-thirds majority agreement at the primary Party organisation and the district or city Party committee, then a mandatory one-year probation as ‘candidate’ before possible full membership. The CPSU was more like a disciplined religion than a political party. Not only was ideology of primary importance, but the expected standard of behaviour of ‘new Socialist man (or woman)’ also touched all aspects of life. Membership brought privileges – access to clinics, special shops and so on – but also imposed an extra responsibility of exemplary behaviour. Lenin felt that any Party member who committed a crime should be punished more severely than a non-member because higher standards of conduct were expected of Party members.35 In the developed Soviet system this would have been against the 1977 USSR Constitution’s equality provision; nevertheless, in a criminal case, after establishing identity, the first question the accused faced was ‘Partinost’?

34 WE

Butler, Soviet Law, 2nd edn (London, Butterworths, 1988) 163.

35 ibid.

Establishing a Multi-party Legislature 127 [Party membership?]’. Party Rules allowed expulsion of a member who had committed a crime; in practice, someone would be stripped of membership before trial to save Party embarrassment (an overall conviction rate of around 99 per cent made acquittal unlikely). Expulsion was an additional punishment, removing previously enjoyed privileges. A Party member might also have to make difficult life choices; for example, divorce was not forbidden, but ‘either the fact of or the grounds for divorce [might] disclose conduct incompatible with continued party membership’.36 Likewise, the Party controlled personnel through the nomenklatura system, whereby it nominated or approved appointment to all key positions. Any Party member wishing to leave a nomenklatura post risked Party disapproval. If the Party refused permission to resign, the individual might be put in the invidious position of having to choose between leaving that post or retaining Party membership. In post-Socialist Russia new parties formed across the political spectrum,37 although parties based on profession, religion or ethnicity are not allowed.38 Importantly, however, a ‘party of power’ has been developed to support the President and Government.39 In the 1990s it was a different party for each Duma election, but following the 1999 elections, a new party, UR, was created in 2001 from an amalgam of existing parties. Since then, it has been dominant, both centrally and in federal subjects. Ora John Reuter summarises: In 2017, it controlled 75 per cent of the seats in the Duma and 80 per cent of seats in the Federation Council. 57 of Russia’s 85 governors are UR members. The party has a majority in all 85 regional legislatures and super majorities in 78 of those regions.40

To give a semblance of competitive party politics, a ‘loyal opposition’ in the form of A Just Russia (Spravedlivaia Rossiia) was created in October 2006 by a merger of three existing parties. Its role ‘as Putin’s left foot’ meant that ‘Russia … [has] become possibly the first country in history with a two-party system in which both parties share the same overriding principle, [namely] that the executive is always right’.41 36 ibid. 37 OJ Reuter, ‘Political Parties’ Russia’ in Sakwa et al, above n 33 at 38. See also D Treisman, ‘Elections in Russia, 1991–2008’ Higher School of Economics Working Paper, 7 June 2009. 38 Federal Law on Political Parties, art 9. An English translation of the 2001 law as updated to 2013 is in Butler, above n 4 at 63, 66. 39 D Hutchison, Parliamentary Elections in Russia (Oxford, British Academy, 2018) 28. 40 Reuter, above n 37 at 43. 41 P Moore, ‘As Part of ‘Imitation Democracy’ Radio Free Europe/Radio Liberty Newsline, 30 October 2006, citing Moscow Times, 30 October 2006.

128 The Legislature Its leader, Sergei Mironov, is a ‘long time Putin ally’.42 It usually polls in single digits. In January 2021 it merged with two other parties; the new entity keeps all three names. Party registration is not easy. The most vocal critics of the current regime are often outside the formal party structure (not always by choice). The requirement of signatures for registration is easily abused. Writing about the 2007 Duma elections, Stephen White observes: ‘For whatever reason, it was the supporters of parties and candidates that represented at least a potential electoral challenge who appeared to have the greatest difficulty with their handwriting.’43 A similar issue plagued oppositionist activists’ attempts to register for the September 2019 Moscow Duma elections.44 This triggered widespread interest in what is normally regarded as a ‘non-event’ and led to large well-publicised demonstrations in Moscow, where generally peaceful protests were suppressed with disproportionate brutality.45 In the 1990s the mix of different parties and factions in the Duma encouraged legislative debate, but since 2003 the limited range of parties and their support for the President and Government has changed this dynamic.46 There is a common perception that the current Duma is a ‘rubber stamp’ or ‘printing machine’ enacting executive policy.47 However, groundbreaking research by Ben Noble has shown that a more nuanced perception is needed. Writing with Ekaterina Schulmann, he calculated that between 2012 and 2015, the executive was responsible for only around 20 per cent of bills; deputies themselves sponsored around 50 per cent.48 Of course, some of these may nevertheless have been drafted by the Presidential Administration or a Government department. 42 Reuter, above n 37 at 48. 43 S White, ‘Elections Russian-Style’ (2011) 63(4) Europe-Asia Studies 531, 540. 44 I Rodin, ‘Proverka podpisei kandidatov ostavila mnogo zagadok [Verification of Candidate Signatures Left Many Mysteries]’ Nezavisimaia Gazeta, 5 September 2019. See also A Shekhovtsov, ‘Controversial “International Observation” at the 2019 Regional Elections in Russia’ European Platform for Democratic Elections Publication, 8 October 2019. 45 See, eg, M Luxmoore, ‘Police Detain Hundreds at Opposition Rally in Moscow’ RFE/ RL Russia Report, 3 August 2019; ‘Russia: Run-up to Local Moscow Election Marred by Unprecedented Attacks on Rights’ Amnesty International, 6 September 2019. 46 For a summary of executive influence during different Duma convocations, see B Noble and E Schulmann, ‘Not Just a Rubber Stamp’ in D Treisman (ed), The New Autocracy (Washington DC, Brookings Institute Press, 2018) 49, 52–57. 47 Example quotes in B Noble, ‘The State Duma, The “Crimean Consensus,” and Volodin’s Reforms’ in O Irisova, A Barbashin, F Burkhardt and E Wyciszkiewicz (eds), A Successful Failure: Russia after Crime(a) (Warsaw, Centre for Polish-Russian Dialogue and Understanding, 2017) 103, 104. 48 Noble and Schulmann, above n 46 at 58.

Establishing a Multi-party Legislature 129 As Noble notes: ‘In order to circumvent the oftentimes arduous process of intra-Government sign-off, ministries and other executive bodies have reverted to introducing their policy initiatives through deputy proxies.’49 Noble and Schulmann quote opposition Duma deputy Il’ya Ponomarev, who argued ‘that almost 80 per cent of bills formally sponsored by parliamentarians are not, in reality, the personal initiatives of the same deputies’.50 Any bill directly initiated by the President stands a very high chance of adoption.51 D. Regional Legislatures The Soviet system of councils – soveti – gave way during perestroika to regional administrations with executive heads. Article 66 of the Constitution envisaged federal subjects would have their own legislative (representative) bodies, but gave no details. The landmark federal law ‘On the General Principles of Organization of Legislative (Representative) and Executive Agencies of State Power of Subjects of the Russian Federation’ was subsequently adopted on 6 October 1999.52 A major amendment in 2010 stipulated the number of deputies in federal subjects’ legislatures should be proportionate to the population. Federal subjects’ legislatures have a variety of names. The 2010 amendment disallowed a name which might be mistaken for a federal agency, but otherwise allowed a free choice. No republics have a ‘Duma’, although two out of nine territories, 23 out of 46 regions, one city (Moscow) and two autonomous areas (Khanty-Mansiiskii-Iurga and Chukotskii) have Dumas.53 There is specific allowance for ‘taking into account the historical, nationality, and other traditions of the subject of the Russian Federation’54 and seven republics include a traditional name within their legislatures’ titles, for example, Khural.55 Since 2010, all subjects’ legislatures are unicameral.

49 Noble, above n 47 at 114. 50 Noble and Schulmann, above n 46 at 64. 51 ibid 60, fig 3-2. 52 An English translation as updated to 2013 can be found in Butler, above n 4 at 714. 53 See J. Henderson, ‘Socialist Constitutional Legacies in Regional Constitutions and Charters in Russia’ (2021) 9(2) Russian Law Journal 125. 54 Federal law of 23 December 2010 No 376-FZ. A translation of art 4(2) as amended can be found in Butler, above n 4 at 717–18. 55 In Buriatiia, Kalmykiia and Tyva. Altai has a State Assembly (El Kurultai), Adygeia has a State Council (Khase) and Bashkortostan has a State Assembly (Kurultai).

130 The Legislature III. LAW-MAKING BY THE FEDERAL ASSEMBLY

The FA passes legislation on matters within federal jurisdiction (Article 71 of the Constitution) or within the joint jurisdiction of the federation and federal subjects (Article 72). Federal legislation has direct effect throughout Russia (Article 76), at least in theory. A federal law may not be contrary to any FCL (Article 76(3)) and all legislation should conform to the Constitution (Article 15(1)). The main branches of law are codified in Russia, but codes are merely a type of federal law, with no specially defined place in the legal hierarchy. Nevertheless, it is expected that other legislation will conform to the codes, and, in particular, the Civil Code on its own terms requires this. Legislative procedure is outlined in the Constitution, with further detail in the Reglaments of the Duma56 and the FC. All federal legislation begins as a Duma bill.57 The right of legislative initiative is quite broad, although not as broad as it was in Soviet times. It belongs to the President, the FC, Senators, Duma deputies, the Government, federal subjects’ legislatures and also, ‘with regard to questions of their jurisdiction’, the Constitutional Court and the Supreme Court (Article 104(1)). By contrast, Article 113 of the 1977 USSR Constitution gave legislative initiative not only to all such equivalents as existed at that time, but also to the Procurator-General (P-G) and ‘social organisations through their all-union agencies’. This latter formula covered trade unions and the Party. Important social legislation was often jointly presented by Party and Government, and all labour law traditionally had trade union involvement. Also of note in relation to Soviet law-making is that before 1987, all discussion took place behind closed doors; drafts put before the Legislature received 100 per cent support by a show of hands. The first law where there was public debate in the Legislature was the USSR Law on Citizens’ Appeals of 30 June 1987 (see Chapter 8, section IV.C).58 Since November 1999, a draft submission may be made in electronic format. It must be accompanied by an explanatory memorandum, a list of laws impacted, a ‘financial-economic substantiation’ if it entails financial expenditure, and a Government assessment if it might affect the federal budget (Article 104(3) of the Constitution). The Duma Chairman

56 See Butler above n 4 at 280. The Reglament in translation is over 100 pages long. 57 See ‘Overview of the Legislative Process in the Russian Federation’, duma.gov.ru/en/ news/28319. 58 Communication to the author by Robert Sharlet at the 1985 ICEES World Congress, Washington DC.

Law-Making by the Federal Assembly 131 delegates to the ‘profile committee’ the registration of receipt and checking conformity with requirements. The Duma Council allocates the draft to an appropriate committee to be the ‘responsible committee’. The Duma Council may send copies to relevant bodies for responses. The Reglament lists interested agencies as Duma committees, commissions and factions, the President, the FC, the Government, the Accounts Chamber, the Public Chamber, and also the Supreme Court and the Constitutional Court on questions of their jurisdiction. The responsible committee may itself consult relevant agencies and get scholarly expert evaluations, including from the Duma’s own Legal Administration. Sometimes a special working group is created, composed of deputies, representatives of the originating agency, experts and other interested persons contributing specialist knowledge. Procedure, particularly in the plenary sessions of the legislative process, is quite formal; contributions from the floor are strictly timed, although debate can be lively and physical confrontation are not unknown.59 The Duma first reading discusses the bill’s overall conception, its conformity to the Constitution, and its urgency and practical significance. However, for some legislation, particularly budgetary matters,60 from the early 2000s there developed a practice of having a ‘zero reading [nylevoe chenie]’ allowing expert discussion before formal introduction to the Duma.61 This consultative process was approved by President Putin in October 2012.62 The bill on state and municipal control and supervision reportedly benefited from a zero reading over two years before its introduction to the Duma in October 2017.63 Provided a draft passes its first reading, a period of at least two weeks is given for suggested amendments. The responsible committee develops these and presents at the second article-by-article reading the original 59 Famously on 30 March 2005 between Vladimir Zhirinovskii and Motherland faction deputies: see R Coalson, ‘Duma Looking at Ways of Preventing Deputies from Fighting’ Radio Free Europe/Radio Liberty Newsline, 7 April 2005. The proposed new service would ‘comprise three to five “intellectually and physically well-developed men” wearing “clothing that inspires respect”’: Coalson, citing RIA-Novosti, 6 April 2005. 60 Noted in Noble, above n 47 at 114. 61 AP Liubimov, ‘“Nulevoe chtenie” zakonoproektov kak instrument soglasovaniia interesov [Null Reading of Bills as a Tool for Agreements of Interests]’ (2005) 1(61) Predstavitel’naia Vlast’ -XXI vek 3. 62 ‘Putin predlozhil vernut’ nulevoe chtenie zakonoproektov [Putin Proposed Returning Zero Reading of Bills]’ RIA-Novosti, 30 October 2012. See also ch 6, s V.B. 63 ‘Zakonoproekt o goskontrole proshel “nulevoe chtenie” v Gosdume [The Bill on State Control Passed “Zero Reading” in the State Duma’ 20 October 2017, https://old-knd. ac.gov.ru/news/zakonoproekt-o-goskontrole-proshyel-nulevoe-chtenie-v-gosdume.

132 The Legislature and a revised draft, along with recommendations for the adoption or rejection of specific amendments. The responsible committee gets any agreed draft back for a final polish with the participation of the Duma Legal Administration. The final draft faces its third reading, where either the Duma adopts it – at which point it is called ‘law’ – or rejects it as a whole.64 There are special considerations for the annual budget law, which is regulated in greater detail and routinely has four readings.65 The law is sent to the FC within five days. Not all laws are actively considered by the FC, but Article 106 of the Constitution specifies that it must examine any that relate to the following: the federal budget; taxes; ‘financial, currency, credit, customs regulation, and monetary emission’; ratification and denunciation of international treaties; status and defence of the Russian State boundary; and ‘war and peace’. Otherwise the FC can choose whether or not to scrutinise a particular law and, if so, whether a committee should look at it in detail. The FC may actively approve a federal law by a straight majority. However, Article 105(4) of the Constitution specifies that if the FC does not reject a law within 14 days of receipt, it is deemed to be approved. If a law is rejected, the Duma reconsiders and may override the FC’s decision by a two-thirds majority. Alternatively, a conciliation commission may be established consisting of members of both chambers and tasked with producing a compromise for further Duma consideration. These conciliation commissions are a useful ‘back-door’ through which the FC can influence legislation. A federal law adopted by both chambers is sent within five days to the President for signature. He has 14 days to sign and promulgate it, or to exercise his veto. Following a veto, the two chambers reconsider and may override it by an overall two-thirds majority. Then the President must sign within seven days and promulgate the law. In 1998 the Constitutional Court determined that this was so even if the President believed there were voting irregularities.66 The 2020 amendment to Article 107(3) gives the President an additional option to ask the Constitutional Court to confirm the constitutionality of an unsigned law or FCL. If it is approved, he must sign it within three days; otherwise he remits the disapproved law to the Duma.

64 For examples of law-making in practice, see ‘Zakonodatel’naia retseptura [Legislative Recipe]’ Kommersant’ Vlast’, 26 January 2015. 65 WE Butler, Russian Law and Legal Institutions, 3rd edn (Clark, NJ, Talbot Publishing, 2021) 408. 66 ibid 374.

Law-Making by the Federal Assembly 133 The Constitution demands that laws are published and ‘unpublished laws shall not be applied. Any normative legal acts affecting the rights, freedoms, and duties of man and citizen may not be applied if they have not been published officially for general information’ (Article 15(3)).67 This is an important statement of principle, given that during Soviet times there was no such requirement.68 In November 1990 the USSR Constitutional Supervision Committee issued an opinion that unpublished legislation which affected individual rights and liberties would lose force, and as a result a number of hitherto secret legislative acts were published in the official Vedomosti. On its wording, Article 15(3) only requires publication of laws – zakony – implying that normative legal acts not affecting human rights might be valid even if not published. However, a series of Constitutional Court judgments have clarified this.69 In 1995 the Court held that a trade union was a group of citizens, so normative legal acts impacting its rights required publication.70 In 1996, the Court held that legal entities (even commercial entities) are also groups of individuals and so should benefit from the publication requirement.71 A later case confirmed that Article 15(3) applies to legal persons.72 Thus, Constitutional Court interpretation has expanded the impact of this important rule. The Constitution has three entrenched chapters which the FA cannot amend (see Chapter 3, sections III.A and III.C). Instead, their amendment requires a specially convened Constitutional Assembly, for which the requisite FCL does not yet exist. The non-entrenched chapters are amended by a complex adoption process through the FCL procedure described below, plus positive confirmation by two-thirds of federal subjects’ legislatures (see Chapter 3, section III.C). One exception to these stringent requirements is amending the list of federal subjects in Article 65. Provided the requisite process for voluntary amalgamation has been followed, based on the December 2001 FCL, the change can be recorded by a federal law or, in its absence, a presidential edict.

67 See also the Federal Law on the Procedure for Publication and Entry into Force of Legislation of the Federal Assembly in Butler, above n 4 at 58; and discussion of current publication issues in Butler, above n 65 at 154. 68 See Butler, above n 34 at 57. 69 I am extremely grateful to Kirill Koroteev for the following details. 70 17 May 1995 No 5-P. Extract in Maggs et al, above n 21. The law at issue was the 1989 USSR law on the procedure for settlement of collective labour disputes. 71 Judgment of 24 October 1996 No 17-P. 72 eg, 28 March 2000 No 5-P.

134 The Legislature In reality, constitutional amendment has been painless. Since 2000, the FA’s make-up has ensured little opposition to constitutional or FCL amendment. In December 2008 President Medvedev easily extended the presidential and Duma terms. Equally easily, in February 2014 President Putin revised the top courts and the system for appointing high-ranking procurators. And although the 2020 constitutional reforms on their own terms required added procedures, of Constitutional Court verification that the draft conformed to the entrenched chapters, and a positive public vote, there was no serious or effective opposition; the only adverse factor was the vote’s delay because of the COVID-19 pandemic. FCLs cover specific topics identified in the Constitution.73 These are: conditions for a military situation (martial law) or an ‘extraordinary situation’ following a natural disaster; procedure for admission to the RF and formation of a new federal subject, or change of an existing subject’s status; description and use of the State flag, arms and anthem; referendum procedure; the Plenipotentiary for Human Rights; the Government; the judicial system; the Constitutional Court; the Supreme Court; other federal courts; and the procedure for invoking a Constitutional Assembly. An FCL requires qualified majorities of two-thirds in the Duma and three-quarters in the FC for its adoption, amendment or repeal, but cannot then be vetoed by the President. However, Article 108(2) of the Constitution, as amended in 2020, gives the President a new power to ask the Constitutional Court to confirm the constitutionality of a draft FCL awaiting presidential signature. The normal 14-day period for signing is suspended while the Court considers this. If positively confirmed, the President must sign within three days; if not, the President returns the draft unsigned to the Duma. All but one of the required FCLs have been passed; some are even in their second and third generation. In the 1990s, with a generally divided and oppositional Duma and strong regional representation in the FC, the stringent adoption procedure generated serious debate over a number of FCLs. For example, the FCL on the Plenipotentiary for Human Rights was ‘considered at least 10 times by two different Dumas. Twice, after making it through the thornbush of the Duma, it went on to the Council of the Federation and was rejected’.74 This century, there has been little dissent. 73 Articles 56, 65(2), 66(5), 70, 84, 87(3), 88, 103(1)(e), 114(2), 118(3), 126, 128, 135 and 137. 74 Kommersant-Daily, 26 December 1996, as reported in (1996) XLVIII(52) Current Digest 12.

The Federal Assembly’s Other Powers 135 IV. THE FEDERAL ASSEMBLY’S OTHER POWERS

The Constitution defines the FA as the ‘representative and legislative agency’ (Article 94), but, apart from budgetary control and impeachment, before Medvedev’s 2009 constitutional amendments made no explicit mention of oversight.75 However, the Constitutional Court affirmed in 1997 that the nature of the executive branch executing laws implied a duty to report to the representative branch.76 Initially the Constitution gave budgetary oversight in three ways. First, as noted above, Article 106 imposes a specific duty on the FC to consider federal laws affecting fiscal matters, amongst other important topics. More indirectly, the Duma monitors the spending of federal funds by the Government and other organisations, including companies, by assigning the Accounting Chamber (AC) (Schetnaia Palata, also known as the Chamber of Accounts) to audit their accounts. The AC is set up jointly by the Duma and the FC.77 The FC appoints and relieves from office the Chair and half the auditors (AC members); the Duma appoints and relieves from office the Deputy Chair and the other auditors. Before the 2020 amendments, the AC was similarly constituted, but previously the Duma appointed and removed the Chair, and the FC the Deputy. However, the Legislature is not autonomous. The President nominates the Chair and Deputy from shortlists of three submitted by the Councils of the FC and the Duma, as appropriate; if the President disapproves a nominee, he may submit an alternative (Articles 7 and 8 of the 2013 Federal Law on the AC). Candidates for auditors are similarly subject to a presidential filter before appointment. No AC post may be held for more than two consecutive terms, although the wording might allow a return after a break. The AC is a legal entity with both organisational and functional independence, and a well-staffed supportive apparatus. It reviews federal accounts and, following its findings, the Duma may issue decrees

75 S Whitmore, ‘Parliamentary Oversight in Putin’s Neo-patrimonial State: Watchdogs or Show-Dogs?’ (2010) 62(6) Europe-Asia Studies 99, 1003. Whitmore points out (at fn 8) that this is not unusual; there is no provision for a constitutional oversight role in the US or German Constitutions. 76 Decree of 10 December 1997 No 19-P, cited in PV Sushchenko, ‘Nekotorye Voprosy Konstititsionno-Pravivoi Reglamentatsii Parliamentskogo Kontrolia [Some Issues of Constitutional and Legal Regulation of Parliamentary Control]’ (2019) 2 Elektronnoe Prolozhenie k Rossiiskomu Iuridicheskomu Zhurnaly, 61, 62. 77 Details in English can be found at audit.gov.ru/en/structure.

136 The Legislature pointing out faults. The FC also reviews the AC’s work, subjecting its Annual Report to detailed analysis and making recommendations for improvement. Unfortunately, neither the Duma nor the FC has the power to enforce any recommendations. Aleksei Kudrin, a respected economist and the AC’s Chair since May 2018, has strongly focused on ministers’ fulfilment of key State programs. Kudrin noted on his appointment that the AC has authority to comment on ministers’ presentations during ‘Government Hour’ in the Duma (see below).78 A year later, he suggested his agency should become an independent analytical centre with greater powers, but this was not supported by the FC Chair, who reminded him that it ‘is just a tool of parliamentary control over the implementation of the federal budget’.79 The third mechanism for financial oversight (also indirect) is through the Duma’s command of Russia’s Central Bank, which has a key role in regulating banks in Russia as well as issuing currency. Its Chair is nominated by the President, although appointed to and relieved from office by the Duma, which also reviews the Bank’s annual report, as well as referring it to the President. The Duma receives the Bank’s draft annual monetary and credit policy plans for discussion in plenary session, and can initiate a Bank audit. In practice, the degree to which any of these mechanisms has a practical impact on Russia’s labyrinthine fiscal structure may be doubted; nevertheless, it is something that might develop in the future. The Constitution also designates the Duma a role in the appointment of the Government Chair (see Chapter 6, section II). As will be seen, in practice this role is constrained. The rules on Duma motions of no confidence in the Government are also somewhat hazardous (see Chapter 6, section III). However, other legislation has given increasing opportunities for legislature oversight. First, Article 7(1) of the 1994 law ‘On the Status of a Member of the Federation Council and Deputy of the Duma’80 specified four different measures of parliamentary control: (b) participation in work of a parliamentary commission [parlamentskoe rassledovanie]; …

78 A Kudrin, ‘Schetnaia Palata budet vliat’ na otsenku kazhdogo ministra [The Accounts Chamber Will Influence the Assessment of Each Minister]’ TASS, 23 May 2018. 79 M Sergeyev, ‘Audit Chamber Stripped of Independence’ Nesavisimaya Gazeta, as reported in BBC Monitoring Summary of Russian Press, 30 May 2019. 80 Federal law of 8 May 1994 as amended to 2012 in Butler, above n 4 at 249.

The Federal Assembly’s Other Powers 137 (f) submission of a parliamentary query (query of the FC or Duma), or deputy query [deputatskii zapros] by a FC or Duma member; (g) recourse with questions [obrashchenie c voprosami] to Government members at a FC or Duma session; and (h) demanding relevant officials take measures to immediately suppress violation of citizens’ rights.

The parliamentary query of the FC or the Duma can go to a wide range of officials ‘with regard to questions within their competence’, with a reply expected within 15 days. The decision to send a parliamentary query is adopted by majority vote. Alternatively, an FC Senator or Duma deputy can send a deputy query or question (obrashcheniia) on their own initiative without any need for debate. The reply must be made within 30 days (Articles 7(1)(g) and (h) and 14). A query is likely to concern a specific issue affecting a member of the public, often social or financial. In July 2020 the Duma Committee on Regulations approved the publication of anonymised inquiries on the Duma website, although not the responses.81 Publication began in late January 2021.82 Relevant officials can be invited to speak at either the FC or the Duma, particularly during ‘Government Hour’, which is usually held every other Wednesday during Duma sessions, but less frequently in the FC. Since 2004 the particular Duma Government Hour topic has been planned ahead, with input from the President’s and Government’s representatives, and listed in the Duma plan. Unfortunately: ‘The change limited the capacity of the Duma to respond to the burning issues of the day.’83 Topics must be within Duma jurisdiction, which excludes ‘important aspects of internal and foreign policy such as the military doctrine’.84 The names of invited officials are posted on the Duma website, and deputies propose appropriate questions. If a particular official is unavailable, they inform the Duma Chairman, giving reasons and suggesting a substitute. The Duma Council may choose to postpone that topic until the specific official is available. Once there, the official gives a short speech, and deputies put brief questions and receive replies. Representatives of deputy factions are allowed to express opinions briefly before the official

81 M Makutina, ‘Komitet Gosdumy po Reglamentu Utverdil Poriadok Publikatsii Deputatskikh Zaprosov [State Duma Committee on Rules of Procedure Approved the Procedure for Publishing Deputy Inquiries]’ Kommersant’, 17 July 2020. 82 M Lisitsyna, ‘Na Saite Gosdumy Nachali Publikatsiiu Deputatskikh Zaprosov [The State Duma Website Began Publishing Parliamentary Inquiries’ RBC, 21 January 2021. 83 Whitmore, above n 75 at 1009. 84 ibid.

138 The Legislature has the last word. A Duma resolution in January 2017 imported into the governing Duma regulations a provision based on procedure in the 2013 federal law ‘On Parliamentary Oversight’ (discussed below) allowing the Duma, following Government Hour discussions, to adopt a resolution for consideration by the relevant committee(s) and subsequently by the whole Duma. Government Hour is a tool for both obtaining information and expressing views, although deputies have ceded control of topics to the Duma Council. On occasion, it is held in camera; for example, in 2008 for an assessment by then Defence Minister Anatolii Serdiukov of lessons learned from the situation in Abkhazia and South Ossetia.85 In March 2019, in a reportedly unprecedented event: ‘The speaker of the Russian State Duma halted an appearance [at Government Hour] by Economic Development Minister Maksim Oreshkin and told him to come back another time.’86 This may have been a personal attack between possible future presidential rivals rather than a disagreement about economic targets, but it also chimed with Duma Speaker (since October 2016) Viacheslav Volodin’s aspiration for a greater role for Russia’s Legislature.87 Parliamentary oversight was somewhat extended in 2005 when a federal law established the process for setting up a Parliamentary Commission.88 This filled a gap. The Plenipotentiary for Human Rights has the power, under Article 32(2) of the FCL governing his role, to request the Duma to establish a Parliamentary Commission to investigate human rights violations.89 However, prior to the 2005 law, there was no mechanism for this. The law instituted a complex procedure allowing both legislative chambers to establish a joint Parliamentary Commission on one of three bases: (a) blatant or mass violations of constitutionally guaranteed rights and freedoms; (b) man-made emergency situations; and (c) man-made or natural disasters (Article 4(1)).

85 Y Gavrilov, ‘Troops are Ordered to Group Themselves’ (2008) 102 Defence & Security, 15 September, citing Rossiyskaya Gazeta 12 September 2008. 86 ‘Russian Duma Speaker Rebukes Economy Minister in Sign of Tension’ Radio Free Europe/Radio Liberty Report, 6 March 2019. 87 On Volodin’s Duma reforms, see Noble, above n 47 at 106ff. 88 27 December 2005 No 196-FZ, ‘On Parliamentary Investigation of the Federal Assembly of the Russian Federation’. 89 FCL of 26 February 1997 as amended to 2011 in Butler, above n 4 at 101.

The Federal Assembly’s Other Powers 139 Consideration of activities of the President, courts or preliminary investigation agencies are specifically disallowed (Article 4(2)). Both chambers must agree to establish a Commission, and no investigation should last longer than a year. The 2005 law was heavily criticised as being too narrow and too cumbersome, so that: [I]n practice investigation could only be initiated if the president approved, and some deputies … called this a law banning parliamentary investigations … [they] were now legal, but almost impossible to conduct.90

Scope for further Duma oversight of the Government increased after constitutional reforms in December 2008. Article 103 was expanded, giving the Duma power to hear an annual Government report and ask questions; Article 114 imposes the complementary duty on the Government to submit the report. Four years later, the adoption of the federal law of 7 May 2013 ‘On Parliamentary Oversight’91 (updated in 2014) both consolidated and expanded legislative oversight, although it is not a complete code. Presidential impeachment procedure and oversight of state security are not included. The law states principles, says who implements control and its basic forms, without defining oversight. Article 5 lists 18 forms, most of which already existed: a Duma decree of no confidence in the Government; budgetary oversight; hearing annual Government and Central Bank reports; other forms of Central Bank control based on its 2002 law; Duma or FC parliamentary queries; FC Senator or Duma deputy queries; ‘Government Hour’ in the chambers, committees or commissions; hearing officials’ information on ‘matters of an extraordinary nature’ (including from Chairs of the Government, the Central Bank or the Central Electoral Commission, the Government Vice-Chair or the P-G); control of the Account Chamber as described under its 2013 legislation; Duma oversight of the Plenipotentiary for Human Rights; annual P-G reports to the FC hearing; Duma and FC representatives at organisations (if federal law prescribes); parliamentary hearings; and parliamentary investigations. This systematisation of parliamentary control allows clearer analysis of who is monitoring (Duma or FC, committee or commission, or a

90 Whitmore, above n 75 at 1010. 91 2013 No 77-FZ. The original version is available in Russian at rg.ru/2013/05/14/ kontrol-dok.html. The updated version in Russian as amended in August 2018 is available at base.garant.ru/70372950.

140 The Legislature separate agency – eg, the Accounts Chamber), when control is exercised (prior, contemporaneously, or subsequent) and possible outcomes.92 Russian academic commentary notes that some control methods are underused. Pavel Sushchenko points out that ‘despite the fact that considerable time has passed since the adoption of the [2005] Law on Parliamentary Investigation, this form of parliamentary control has only been implemented twice’.93 Since 2016, the Duma has sent only five parliamentary queries.94 Andrei Zubarev considered Duma and FC parliamentary queries from 2000 to 2017.95 Of 286, 250 (217 Duma; 33 FC) were sent to heads of federal agencies of executive power. Only two were directed to federal subjects’ senior government heads. A total of 36 (34 Duma; 2 FC) went to other agencies, eg, the P-G. Thus, in practice, parliamentary queries go to a much narrower group than legislation allows. Reviewing the topics, Zubarev noted they divided into two almost equal groups:96 145 queries (133 Duma; 12 FC) concerned unlawful activity (officials’ nonfeasance and the like); and 141 questioned officials’ positive actions implementing domestic and foreign policy. Zubarev suggests that it is more appropriate to limit parliamentary queries to the Duma both practically (the FC makes only a handful) and theoretically (the method of FC formation gives it an ‘inability to objectively control the executive branch’).97 The system of queries and statements is currently a comparatively weak instrument, characterised by Zubarev as ‘primarily informational and advisory in nature’.98 It has seen both growth and decline. Writing in 2000, Merritt tracked developments in the 1990s, from 37 queries in 1994 to 3,025 in 1998, although she also noted that compared to the US, equivalent numbers were extremely low.99 Her statistics also showed that individual deputies were overwhelmingly the source of queries, rather than the more formal parliamentary query. Zubarev gives figures 92 ibid. 93 Sushchenko, above n 76 at 64: an inconclusive report into the 2004 Beslan terrorism, and an investigation into the 2009 Saiano-Shushenskaia hydroelectric power station turbine failure and flooding. 94 ibid. 95 AS Zubarev, ‘Tipy Parlamentskikh Zaprosov Palat Federal’nogo Sobraniia Rossiiskoi Federatsii [Types of Parliamentary Queries of the Chambers of the Federal Assembly of the Russian Federation’ (2018) 90(5) Aktual’nye Problemy Rossiiskogo Prava 65, 66–67. 96 ibid 68. 97 ibid 76. 98 ibid 65. 99 Merritt, above n 2 at 168. She calls them inquiries.

The Federal Assembly’s Other Powers 141 averaging around 17 parliamentary queries per year during his 17-year study. Whitmore considered oversight from 2000–08, and her figures, which exclude deputy queries, show a fall in the use of the other three oversight tools.100 More worryingly, she cogently argues that the role of oversight methods has been subverted, so that they act more to legitimise governmental activities than question them; even more disturbingly, the use of formal oversight channels for private gain is well documented.101 Nevertheless, despite parliamentary oversight being currently underwhelming, proposals by Duma Chair Volodin in July 2019 that the Legislature should have a stronger role intimated that in future, there might be scope for increased accountability of individual ministers to the Legislature. In February 2021 Volodin also proposed that Duma deputies be accountable for campaign promises, but without identifying a suitable mechanism.102 Finally, it should be noted that the Duma and FC are amongst the agencies which may initiate Constitutional Court oversight (see Chapter 7, section II.B). Both legislative chambers have other functions. Some are discussed elsewhere, but are noted here for the sake of completeness. The Duma confirms the President’s appointment of the Government Chair, Deputy Chairs and ministers (apart from the special block; see Chapter 4, section IV.C), and appoints and dismisses the Plenipotentiary for Human Rights. It may consider the question of confidence in the Government (see Chapter 6, section III). Writing in 2001, Igor Grankin asserted that the ‘single fully independent authority reserved for the Duma’103 is its power to declare an amnesty. The 2020 reforms have not changed this. An amnesty applies to a group of people, unlike presidential pardon of an individual. In February 1994 the Duma amnestied all those involved in the August 1991 abortive putsch against Gorbachev (see Chapter 2, section VI.A) as well as those who in the autumn of 1993 held out against Yel’tsin (see Chapter 3, section II.B).104 Yel’tsin was furious and ordered the P-G to arrange the re-arrest of the 100 Whitmore, above n 75 at 1011–13. 101 ibid 1018–19. 102 M Makutina and K Veretennikova, ‘Obeshchaniem my nakazany: Spiker predlozhil deputatam otvetit’ za predvybornye posuly [We are Punished with a Promise; Speaker Invited MPs to Answer for Election Promises]’ Kommersant’, 1 March 2021. 103 I Grankin, ‘The Special Powers of Russia’s Parliament’ (2001) 9 Demokratizatsiya 26, 37. 104 The Duma issued a wider amnesty at the same time for prisoners who had previously served in active combat zones, participated in the clean-up after the Chernobyl nuclear disaster, were over 60, were disabled or were female.

142 The Legislature amnesty’s beneficiaries. The P-G informed him that the Duma had acted within its constitutional powers.105 Yel’tsin was thus thwarted by a provision in the Constitution he had effectively imposed. The FC appoints and can terminate the appointment of the most senior judiciary (see Chapter 7, section III) and is consulted – whatever that means – about high-level Procuracy appointments, and also regarding the President’s ministerial appointments within the special block (see Chapter 4, section IV.C). It confirms boundary changes between federation subjects (see Chapter 3, section III.F.ii). It must confirm a presidential edict in order for martial law to come into operation, either as a ‘military situation’ or an ‘extraordinary situation’. However, this is ex post facto and does not derogate from the President’s power as guardian of Russian security to take appropriate steps (Articles 87, 88 and 102 of the Constitution). Use of armed forces outside Russia does require FC agreement. The FC also takes the formal step of calling presidential elections. Both chambers would be involved in any presidential impeachment process (see Chapter 4, section V.C). Outside the Constitution, electoral rights legislation establishes a 15-member Central Electoral Commission, of whom one-third each are appointed by the Duma, the FC and the President. V. REFORM PROPOSALS

In July 2019 Duma Chair Viacheslav Volodin published in Parlamentskaia Gazeta an initiative suggesting that the Constitution should be amended to expand the Legislature’s role, including greater input into the composition of the Government.106 He emphasised that he was not seeking fundamental reform, but was enhancing checks and balances ‘to provide a higher quality of interaction and coordination of the state mechanism’.107 He linked his proposals to the principle of a ‘living constitution’ frequently advocated by Constitutional Court Chair Zork’in, including

105 T Foglesong, Pardons and Amnesties in Russia: Clarifying the Difference (New York, Vera Institute of Justice, May 2002). 106 Reported in Russian on the Duma website: ‘Predsedatel’ GD Predlozhil Likvidiravat’ Disbalans Vetvei Vlasti v Konstitutsii RF [Chairman of the State Duma Proposed to Eliminate the Imbalance of Branches of Power in the Constitution of the Russian Federation]’, duma.gov.ru/news/45719. 107 ibid.

Reform Proposals 143 in a high-profile newspaper article in October 2018, ‘The Letter and Spirit of the Constitution’.108 Volodin’s proposal was published shortly after a Bloomberg report that Putin could remain in power after 2024 as Government Chair with ‘enhanced constitutional powers’ and as the ruling party’s leader, if the 2021 Duma elections were modified away from party lists to compensate for UR’s falling popularity, and the Duma given a stronger role in choosing government officials.109 There was widespread and generally positive press coverage of the principle of rebalancing State powers in the Legislature’s favour. The fact that Volodin served as the Presidential Administration’s First Deputy Chief of Staff from 2011 to 2016 suggested that he would not have floated his proposal without presidential approval. Putin’s January 2020 annual Address, which activated the major constitutional amendments, included as its fifth proposal strengthening the Legislature’s role – in particular, more responsibility in Government formation and thus more responsibility for government policy.110 However, the actual reforms gave the President ‘the last word, suggesting that Putin perhaps changed his mind between January and March’.111 There were a few tweaks, but no substantive independent gains by either the FC or the Duma. Further, presidential influence in the FC has potentially been increased. Analysing the implementation of the constitutional reforms, Ben Noble and Nikolay Petrov note that little discussion was expected: ‘Putin’s plenipotentiary representative in the State Duma, Garri Minkh, appeared keen to shut down critical debate … [His comments] suggested he thought that constitutional reform implementation bills should be adopted automatically, without legislative scrutiny.’112 Noble and Petrov astutely observe that the speed of adoption of implementing legislation ‘suggests they were not scrutinized to the degree such important legislation would seem to merit’.113 Thus, aspirations for a strengthened Parliament, raised in 2019, evaporated.

108 V Zor’kin, ‘Bykva i Dukh Konstitutsii [The Letter and Spirit of the Constitution]’ Rossiiskaia Gazeta, 9 October 2018. 109 Summary from The Bell. I Arkhipov and H Meyer, ‘Putin Seeks to Lock in Parliament Control’ Bloomberg Report, 12 July 2019. 110 E Teague, ‘Russia’s Constitutional Reforms of 2020’ (2020) 5 Russian Politics 301, 319. 111 ibid. 112 B Noble and N Petrov, ‘From Constitution to Law: Implementing the 2020 Russian Constitutional Changes’ (2021) 6 Russian Politics 130, 141. 113 ibid 142.

144 The Legislature VI. CONCLUSION

Article 94 defines the FA as Russia’s representative and legislative agency. However, it is not clear who or what is represented. For a variety of reasons, including problems with the political party system, the Duma’s composition consistently fails adequately to reflect the range of public opinion. In future in the FC up to 30 Senators will be purely presidential picks. The other 170 have only indirect links to the federal subjects they supposedly represent, and minimal accountability to them. The legislative process is also compromised. Independent reform proposals are virtually impossible and such debates as exist (in committees and commissions) tend to be between supporters of different rival Government ministers. Oversight by the Legislature of the Executive is also currently weak. The 2020 reforms seem to be a missed opportunity. As Noble and Petrov conclude: ‘A reform project pitched as rebalancing power – away from the president and to parliament and other bodies – proved in its substance and implementation to move power in precisely the opposite direction.’114 FURTHER READING D Hutchison, Parliamentary Elections in Russia: A Quarter Century of Multiparty Politics (Oxford, British Academy, 2018). M Merritt, ‘The Russian State Duma, On-stage and Off: Inquiry, Impeachment, and Opposition’ (2000) 8 Demokratizatsiya 165. N Munro and R Rose, ‘A Guide to Russian Elections’, Study in Public Policy Number 428 (Aberdeen, University of Aberdeen Centre for the Study of Public Policy, 2007). B Noble and E Schulmann, ‘Not Just a Rubber Stamp’ in D Treisman (ed), The New Autocracy (Washington DC, Brookings Institute Press, 2018). WE Pomeranz, ‘Medvedev and the Contested Constitutional Underpinnings of Russia’s Power Vertical’ (2009) 17 Demokratizatsiya 179. R Rose and W Mishler, ‘How Do Electors Respond to an Unfair Election? The Experience of Russians’, Study in Public Policy Number 446 (Aberdeen, University of Aberdeen Centre for the Study of Public Policy, 2008). R Sakwa, HE Hale and S White (eds), Developments in Russian Politics (Durham, NC, Duke University Press, 2019). N Tkachenko, ‘Statistical Analysis of Federal Legislation in Russia’ (2017) 51(4) Statutes & Decisions 518.

114 ibid

152.

6 The Government and Other Agencies Establishing the Government – Accountability – Regional Government – Institutions Supporting Governance

I. INTRODUCTION

I

n this chapter we examine the Government and associated agencies. Commentaries on Russia’s executive tend to focus strongly on ‘The Kremlin’ – that is, the President and his Administration – with the Government almost an afterthought.1 While this is understandable in the context of realpolitik, it is technically incorrect; as noted in Chapter 4, the President is not formally in Russia’s Executive. Article 110 of the Constitution assigns executive power to the Government, that is, the Government Chairman (Prime Minister (PM)), his Deputies and federal ministers. The 2020 constitutional reforms added that such exercise is ‘under the general leadership of the President’. The Government thus literally executes the President’s policy. Here we examine Government formation and relevant accountability mechanisms. We overview executive power in the federal subjects and consider some agencies instituted to assist governance. II. ESTABLISHING THE GOVERNMENT

Chapter 6 of the Constitution is on the Government. It also requires (Article 114(2)) a Federal Constitutional Law (FCL) on the Government. 1 See, for recent examples, the otherwise excellent discussion by M Ananyev in D Treisman (ed), The New Autocracy: Information, Politics, and Policy in Putin’s Russia (Washington DC, Brookings Institute, 2018) 29; JP Willerton, ‘Presidency and Executive’ in R Sakwa, HE Hale and S White (eds), Developments in Russian Politics (Durham, NC, Duke University Press, 2019) 18.

146 The Government and Other Agencies The FCL adopted in December 1997 was replaced in November 2020, taking into account the 2020 constitutional reforms. Civil servants are separately regulated by the 2003 federal law ‘On the System of State Service’. During the Constitution’s first two years, Transitional Provision 9 allowed Duma deputies to be Government members.2 Since then, ‘compatibility’ is disallowed (Article 97(3)). In November 2004 an amendment to the then FCL on the Government prohibited Government members from ‘holding other office in agencies of State power and agencies of local selfgovernment’. However, since January 2010, the President could appoint a Deputy PM or federal minister as Presidential federal representative (polpred; see Chapter 4, section IV.C), and Article 4(2) of the 2020 FCL on the Government permits Government members to hold other public office (federal or regional) if an FCL, federal law or Presidential decree allows. We noted in Chapter 4 that so far the President has avoided political party membership. Similarly, Government ministers need not belong to a particular party; in fact, of the current leading members, nearly twothirds are ‘independent’ (the rest belong to United Russia (UR)). Suggestions have been floated that the majority Duma party might nominate the candidate for PM, but so far this has been rejected. Nor have there been demands that Government ministers should belong to the Duma majority party. Indeed, before October 2004, it was not clear whether ministers were allowed to be political party members; at least one, then Deputy PM Aleksandr Zhukov, was reported as suspending his UR membership whilst holding office.3 The Government consists of the PM, Deputy PMs (currently 10), ministers (currently 21) and their deputies.4 Although no longer separately listed as the ‘Presidential Bloc’, ministries directly under the President (see Chapter 4, section IV.C) include that fact in their description. We will call them the Presidential Bloc for convenience. Prior repeated attempts to reduce the size of the Government have failed.5 In September 2019 Russian media reported that ‘Russia sets

2 See ch 3, s III.B.iii. Deputy immunity did not cover their governmental activities. 3 JA Corwin, ‘Duma Lifts Ban on Cabinet Ministers’ Political Affiliations’ Radio Free Europe/Radio Liberty Newsline, 14 October 2004. 4 Senior Government officials are listed (although without mention of any political allegiances) at government.ru/en/structure. 5 See, eg, V Vyzhutovich, ‘Number of Bureaucrats Grows Despite Cuts’ Rossiyskaya Gazeta, cited in BBC International Reports Summary of Russian Press, 21 July 2017.

Establishing the Government 147 record in terms of numbers of deputy ministers’, with nearly 170.6 It contrasted the Russian Finance Ministry’s 11 deputy ministers with the US Treasury Department’s three. It remains to be seen whether administrative reforms launched by PM Mikhail Mishustin in November 2020 will succeed in achieving a sleeker more efficient federal executive.7 A new Government is formed following Presidential inauguration (or Presidential dismissal of an existing Government). Initially the PM is put in post (see below). Within one week, he submits to the President proposals on the Government structure (Article 112 of the Constitution). The time limit does not apply if the prior PM was dismissed by the President (Articles 83(b1) and 112(1)). The President then decides the structure; normally shortly after inauguration he issues an appropriate edict. In May 2018 Putin’s edict simply specified changes from the previous structure. The 2020 reforms introduced enhanced restrictions on who may serve. Government members must be aged at least 30, without current foreign citizenship or residence rights; neither they nor their spouse or minor children may have assets abroad. Government members are forbidden to undertake various paid activities and must make financial reports, including of resources belonging to any spouse and minor children (Article 6 of the FCL). The 2020 reforms complicated Government formation. Under Article 83(e) of the Constitution in its original version, the PM proposed all Deputy and ministerial candidates to the President to appoint (and subsequently dismiss). Now the PM submits ministerial candidates to the Duma, except for ministers within the Presidential Bloc, whom the President appoints following consultation with the Federation Council (Article 83(e1)). The Duma decides within a week, and if it confirms the candidate the President must appoint them (Articles 83(e) and 112(3)). In reality, this is unlikely to be problematic. It is virtually inconceivable that the PM would propose someone about whom the President has doubts. If the Duma rejects three times a candidate the PM has submitted to them, Article 112(4) allows the President nevertheless to appoint that individual. If the Duma rejects three times more than one-third of governmental posts, the President can dissolve the Duma and initiate new elections. 6 M Sergeyev, ‘Russia Sets Record in Terms of Numbers of Deputy Ministers’ Nezavisimaya Gazeta, cited in BBC International Reports Summary of Russian Press, 3 September 2019. 7 D Butrin, ‘Zamestitel’skaia terapiia [Substitution Therapy]’ Kommersant’, 16 November 2020.

148 The Government and Other Agencies The President can accept the resignation of the PM, the Deputy PM, or any minister or (within the Presidential Bloc) other agency head (Article 83(c1)). If the Government as a whole tenders its resignation, the President decides the outcome, including the possibility of it continuing to serve. Alternatively, he can remove from office any of these people at will (Article 11(1) of the FCL on the Government) or dismiss the whole Government (Article 83(c) of the Constitution). Article 114 of the Constitution lists the main areas of Government competence. These focus on financial and social activities: the federal budget; financial, credit and monetary policy; culture, science, education, public health, social security and ecology; the administration of federal ownership; ensuring defence, State security and foreign policy implementation; ensuring legality, citizens’ rights, protection of ownership and public order, and the struggle against criminality. The 2020 amendments expanded the list with detailed pointers for government priorities: preservation of traditional family values; State support for scientific-technological development, and the preservation and development of Russia’s scientific potential; a functioning system of social security for the disabled, safeguarding equal rights and accessibility; support for civil society institutions, including non-governmental organisations (NGOs), ensuring their participation in preparing and implementing State policy; support for voluntary activity; for entrepreneurship and private initiative; social partnership in labour relations; creating ‘favourable conditions for the vital activity of the population’, reduction of negative environmental impacts of economic and other activity, preservation of the country’s unique natural and biological diversity, and forming in society a responsible attitude towards fauna; and developing citizens’ environmental education and nurturing an environmental culture. The list is explicitly open-ended; powers could be added by the Constitution, federal law or Presidential edict. Chapter 3 of the FCL on the Government details activities within these varied fields of interest. The Government, although not the PM as individual officeholder, has the right to ‘issue decrees and regulations and ensure their execution’ (Article 115(1) of the Constitution), but only on the basis of and in execution of the Constitution, federal laws, and Presidential edicts, regulations and assignments (the latter two being added by the 2020 reforms). Governmental decrees and regulations are binding throughout Russia; however, the President has unfettered power to repeal any which he feels fail to conform to the listed legislation. They may also be subject to judicial review (Article 5(8) of the FCL on the Government).

Establishing the Government 149 The Constitution’s original version specified that the PM was appointed by the President with the Duma’s consent (s soglasiia) (Article 83(a)). Such procedure, of one agency nominating a candidate for another’s approval, was common during Soviet times. It could be characterised as Russia’s ‘checks and balances’ system, but clearly only functions as such if both agencies are sufficiently autonomous. Unfortunately, other constitutional provisions undermine the Duma’s options. Article 109 gives the President the power to dissolve it in ‘instances provided for by Articles 111 and 117’. Article 111 relates to the PM, and the fourth paragraph of its original version provided that: ‘After the State Duma three times rejects the candidacies submitted for PM, the President appoints the PM, dissolves the Duma, and calls new elections.’ In 1998 Boris Yel’tsin put this provision to the test. He presented ‘young reformer’ Sergei Kirienko as candidate to the Duma three times. The majority of the Duma believed Kirienko to be too inexperienced and quickly rejected him twice. The third time, the Duma deputies decided it was more important to avoid an immediate re-election campaign than express their clearly-felt disapproval. They therefore approved Kirienko as PM in April 1998. Five months later, Yel’tsin wanted to change PM. The Duma twice rejected Viktor Chernomyrdin, a former PM. However, Yel’tsin forbore to present Chernomyrdin a third time, instead proposing Evgenii Primakov. The Duma readily accepted him as a compromise. After the very serious economic crisis in the late summer of 1998, Yel’tsin did not want Duma elections, likely to result in a more oppositional composition. That was not quite the end of the story. The Duma appealed to the Constitutional Court about the constitutionality of the President’s actions. By a majority of 14, with three very strong dissents,8 the Court decided the Constitution’s literal interpretation did not give a clear answer. However, the President’s overall duty to form, direct and control the Government, and his constitutional responsibility for its activity, gave him the prerogative to decide on the candidate for PM. As the Constitution did not restrict his right, he could propose ‘one candidate three times, or two or three different candidates’.9 By its decision, the Court majority handed the President a tool for disproportionate leverage over the Duma. As Yury Luryi sharply observed, an unscrupulous

8 By Justices Viktor Luchin, Nikolai Vitruk and Vladimir Olienik. 9 GP van den Berg, ‘Appointing_Premier_Article_111_interpretation_111298 No. 28-P’ (2001) 27 Review of Central and East European Law 337, 338.

150 The Government and Other Agencies President could propose on three occasions an obviously unsuitable candidate in order to initiate a Duma dissolution.10 The wisdom of allowing the Duma to be dissolved if it could not approve the President’s candidate was questioned during the drafting of the Constitution.11 However, in the circumstances of its adoption, Yel’tsin wanted this useful control. Its theoretical justification is the President’s right to determine internal policy and duty to ensure the coordinated functioning of the agencies of State power. As Head of State, he needs a PM in whom he has confidence. If the Duma cannot work with this person, it should stand down. This has not been an issue for Presidents Vladimir Putin or Dmitrii Medvedev. The 2020 amendments made changes to this process. The President still appoints the PM, but now he is appointed ‘after confirmation of his candidacy [posle utverzhdeniia ego kandidatury] by the Duma’. The difference from the previous ‘with the consent’ is unclear, although detail has been added to Article 111(2), prescribing time limits on the President’s proposal of his PM candidate: within two weeks of inauguration or a previous Government’s dismissal, or within one week of the Duma’s prior rejection of a candidate, or the PM’s own dismissal or resignation. The Duma has one week to consider a proposed candidate. The ‘sting in the tail’ which might arise if the Duma rejects a candidate for PM three times is maintained, but with a slight difference in wording. Under the original version, the President, having appointed his preferred candidate, ‘dissolves the Duma, and calls new elections’. Now Article 111(4) specifically says the President ‘shall have the right to dissolve the Duma and call new elections’. Commentators suggest that previously the President had no choice other than to dissolve the Duma if he wanted to appoint a PM rejected three times by the Duma, whereas now it is explicit that he can appoint his chosen PM and keep the existing Duma. In fact, it is not clear whether this is novel. It may be that the Constitutional Court would have implied a Presidential discretion into the original wording. We will never know. The right to dismiss the PM individually has also been clarified; amended Article 83(a) specifically gives the President that power.

10 Y Luryi, ‘The Appointment of a Government Chairman in Russia: The President. The Duma. The Constitutional Court’ (1999) 25 Review of Central and East European Law 585, 588. 11 ibid, citing IG Shablinskii, Predely vlasti. Bor’ba za Rossiidkuiu Kontitutsionnuiu Reformu (1089–1995) [The Limits of Power. The Struggle for Russia’s Constitutional Reform (1089–1995)] (Moscow, publisher not given, 1997).

Government Accountability 151 Article 113 of the Constitution in its original form stated that the PM, in ‘accordance with the Constitution and federal laws and edicts of the President’, organises the work of the Government, and that he should ‘determine the basic orientation of the Government’s activity’. The 2020 amendments remove the latter words, add Presidential regulations and assignments to the list of governing legislation, and specify that the PM bears personal responsibility to the President for exercising governmental powers. These revisions emphasise the President’s prerogative to determine policy. Article 27 of the FCL on the Government incorporates and fleshes out the constitutional provisions. It includes the PM’s right to propose to the President dismissal or disciplinary actions against a Deputy PM or federal minister, or their encouragement. The PM becomes Acting President ‘in the cases provided for by the Constitution’. Under Article 92(2), these are: resignation, inability through ill health, or impeachment. The PM becomes Acting President, pending Presidential elections. As such, he cannot dissolve the Duma, call a referendum, or propose constitutional amendment. The PM represents the Government at home and abroad, presides over Government meetings, signs Government legislation and, in accordance with FCLs, federal laws and Presidential edicts, regulations and assignments, distributes responsibilities among members of the Government. He has little independent executive power; he is deeply dependent on the President. III. GOVERNMENT ACCOUNTABILITY

As seen above, the President appoints the PM following confirmation by the Duma, but can dismiss him at will. This means that there is no necessary correlation between a PM’s performance and retention of his post. A PM might optimise pleasing the President to organising effective Government. Before the 2020 constitutional amendments, there was discussion about giving the Duma a greater role in governmental appointment in the hope that it would increase Duma oversight of the Government (see Chapter 5, section V). However, in reality, whilst involving in governmental appointments either the Duma or FC (for the Presidential Bloc), the amendments maintain the President’s control, even, as we shall see, following a successful no-confidence motion. Article 117 of the Constitution sets out the procedure for the Duma to pass a decree of no confidence in the Government by a simple majority

152 The Government and Other Agencies vote of the total number of deputies. Following such a vote, the President may dismiss the Government but is not obliged to do so. If the Duma expresses its lack of confidence a second time within three months, the President has the choice of either dismissing the Government or dissolving the Duma and calling new elections. The PM can initiate consideration by the Duma of confidence in his Government (Article 117(4)). The Duma must decide within seven days. If it declines to give its confidence, the President decides within seven days whether to dismiss the Government or dissolve the Duma. This procedure could be manipulated by a PM to force an unhappy Duma to back him or risk being dissolved. This does not require any repeated action by the Duma; one refusal of confidence raised by the PM is enough to allow the President to initiate new Duma elections. The 2020 amendments add a further possibility: if the Government within three months raises the issue of confidence again, and the Duma refuses it, the President may nevertheless exercise a choice: dismiss the Government or dissolve the Duma. It is not clear what the 2020 amendments have added. They refer to ‘the Government’ rather than the PM raising the confidence issue. They specifically say ‘again’ within three months. Still, in the event that confidence is refused, the President may choose between the Government’s resignation or the Duma’s dissolution. It is not currently possible for the Duma to express no confidence in the PM or ministers individually. The PM, his Deputies or any federal ministers can submit their resignation, but the President decides whether or not to accept. If a Government has resigned or been dismissed, the President can nevertheless tell it to continue work until a new Government is formed. Likewise, even if an individual’s resignation is accepted by the President, he can instruct them to carry on, or can designate an interim to fulfil their role, pending a new appointment. There are some limitations. Under Article 117(6), the Duma may not express no confidence in the Government within a year of a PM’s appointment; it may not be dissolved for lack of confidence (raised by its own deputies or the PM) for one year after its election, once Presidential impeachment proceedings have been initiated, during a period of martial law or state of emergency, or in the six months before a Presidential election (Article 109(3–5)). As Sakwa points out, in its first year or within six months of a Presidential election, ‘the Duma can dismiss one government after another with impunity’.12 This unlikely event has not yet happened.

12 R

Sakwa, Russian Politics and Society, 4th edn (Abingdon, Routledge, 2008) 115.

Regional Government 153 IV. REGIONAL GOVERNMENT

In this section we consider government in Russia’s federal subjects (see Chapter 1, section II for an overview of the federal structure). Federal subjects’ executive heads used to have a variety of names: President (of a republic within Russia), Head of Government, Government Chair or Governor. Federal legislation in 2010 stipulated that after 2015 only the federal President could use that title.13 So far, Tatarstan has successfully resisted this. For the sake of simplicity, we will refer to all executive heads of federal subjects as ‘Governor’. During the Soviet period, all government, including regional, was organised through the hierarchy of soviets (see Chapter 2, section IV.A). Each soviet elected an executive committee as its administrative agency. During perestroika, this changed. Direct election of heads of regional and local administrations was one of the democratic ideals of perestroika. Moscow, St Petersburg (with its name changed from Leningrad) and Tatarstan led the way.14 In August 1991 Russian President Yel’tsin decreed that there should be regional administrations rather than soviets, with their heads appointed by the President as Governors, in agreement with the respective legislatures, except for republics within Russia, whose head would be elected, either directly or indirectly.15 These elections were not necessarily free and fair; as Jeffrey Kahn notes, ‘85 per cent of the time the men who chaired the bodies responsible for creating the post of [republic] president became its first officeholder’.16 Elections for some Governors were to be held in December 1991. However, in early November they were delayed until December 1992 (recall that in late 1991, Russia was busy moving towards independence). There was a threat of further delay, but a number of federal subjects, in by-now independent Russia, decided to hold elections in April 1993.17 13 See ‘Tatarstan Vote Seen as Test for Russian Regional ‘President”’ RFE/RL Report, 12 September 2015. 14 AV Kynev and AN Maximov, ‘Formirovanie organov ispolnitel’noi vlasti sub”ektov Rossiiskoi Federatsii: Mezhdu vyborami i naznacheniami [The Formation of Executive Bodies of Subjects of the Russian Federation: Between Elections and Appointments]’ Expert Analytic Report (2013, Committee for Civil Initiatives) 2. 15 J Kahn, Federalism, Democratization, and the Rule of Law in Russia (Oxford, Oxford University Press, 2002) 210ff. 16 ibid 211. 17 ibid: Amur, Briansk, Lipetsk, Oriol, Penza, Smolensk, Cheliabinsk regions and Krasnoiarsk Territory. See also ‘Istoriia vyborov i naznachenii rukovoditel’ei sub”ektov Rossii [History of Elections and Appointments of Heads of Constituent Entities of Russia]’ TASS, 7 September 2018.

154 The Government and Other Agencies Article 77 of the Constitution envisages a system of agencies of State power, including executive power, within federal subjects, but gives little detail, instead requiring federal law to establish the general principles for organising representative and executive agencies. Federal and subjectlevel executive agencies form a unified system (Article 77(2)). With mutual consent, powers may be transferred between them (Article 78(2) and (3)). Discussions in 1995 about the formation of the Federation Council (see Chapter 5, section II.B.ii) led to the establishment, by Presidential edict in September 1995, of the principle that Governors should be popularly elected.18 By 1997, this pertained in all but one region. William Pomeranz assessed this to be ‘a critical step in Russia’s transition to a federal and democratic state’.19 There was no federal law covering Governor elections until 1999. Nevertheless, before then, the Constitutional Court considered gubernatorial elections. It received a complaint that the Altai Legislative Assembly had assigned to itself excessively broad powers over the regional administration, including the right to determine its head. In a ruling (postanovleniia) in January 1996,20 the Court ‘objected to this arrangement, in part because it meant executive leaders would fail to receive their mandate directly from the electorate’.21 This important ‘legal position’ of the Court supporting direct gubernatorial elections was controversially overturned in 2005 (see below). In October 1999 the foundational law ‘On General Principles of Organisation of Legislative (Representative) and Executive Agencies of State Power of Subjects of the Russian Federation’ (hereinafter ‘On GPO’) was adopted. This established in Article 18 that the Governor is elected for a term of no more than five years and for no more than two consecutive terms. The law was amended in January 2001, setting the start date for that restriction as the date of its adoption, allowing 69 Governors to run for a third term and 17 for a fourth.22 Since then, there have been many amendments, most importantly the reassertion from 2004 of Presidential control over gubernatorial

18 Kynev and Maximov, above n 14 at 8. Presidential edict of 17 September 1995 repealed by edict no 1110 of 17 June 2000. 19 WE Pomeranz, ‘President Medvedev and the Contested Constitutional Underpinnings of Russia’s Power Vertical’ (2009) 17(2) Demokratizatsiya 179, 180. 20 No 2-P. Brief extract in PB Maggs, O Schwartz and W Burnham, Law and Legal System in the Russian Federation, 7th edn (Huntington, NY, Juris Publishing, 2020) 356. 21 Pomeranz, above n 19 at 184, citing para 6 of the ruling. 22 ibid 181, noting that the Constitutional Court gave a ‘generous interpretation’ of the law.

Regional Government 155 candidates.23 Ostensibly in response to the tragic school siege in Beslan in 2004,24 Putin strengthened the ‘unified system of executive power’ (power vertikal’) by abolishing gubernatorial elections. Instead, the President nominates his chosen candidate to the federal subject’s legislature for approval. The term of office remains five years, with scope for renewal. However, a provision was included that was analogous to that for the Duma confirming the PM: ‘If the regional legislature twice rejected the president’s nominee or took no action, then the president reserved the right to disband the legislature and temporarily appoint an acting governor.’25 Putin’s reform required change to the 1999 law ‘On GPO’. There was comparatively little opposition and it was amended in December 2004. Existing Governors seemed to welcome the new policy.26 A considerable number arranged a personal meeting with Putin, and voluntarily stood down early, to be re-appointed under the new procedure. As an earlier commentator succinctly remarked, ‘it is much easier to lick one boot than to clean 400,000’.27 Not only did these newly appointed Governors save themselves the expense of a re-election campaign, they also bypassed the restriction on the number of successive re-elections. A Presidential edict in December 2004 established the appointment procedure. Initially two names were put to the President for consideration by the Presidential Administration, from a shortlist compiled by the relevant Presidential federal representative (polpred). This was amended in June 2005, allowing the polpred to suggest a single name directly to the President.28 The candidate would then be presented to the federal subject’s legislature for confirmation. As of early 2007, ‘not a single regional assembly has openly challenged a Presidential nomination for governor’.29 23 JP Goode, ‘The Puzzle of Putin’s Gubernatorial Appointments’ (2007) 59(3) EuropeAsia Studies 365. 24 Brief summary in ‘Beslan School Siege: Russia “Failed” in 2004 Massacre’ BBC News, 13 April 2017; WE Pomeranz, Law and the Russian State: Russia’s Legal Evolution from Peter the Great to Vladimir Putin (London, Bloomsbury Academic, 2019) 150. 25 Pomeranz, above n 19 at 180. 26 Goode, above n 23 at 365. 27 Said by an unidentified FC member to former Presidential adviser L Smirnyagin in March 2001, cited in JA Corwin, ‘Why are So Many Elected Leaders in Russia Ready to Give up on Elections?’ RFE/RL Political Weekly, 16 September 2004. See also AV Ledeneva, How Russia Really Works: The Informal Practices That Shaped Post-Soviet Politics and Business (Ithaca, NY, Cornell University Press, 2006) 56. 28 L Belin, ‘Putin Changes Procedure for Selecting Regional Leaders’ RFE/RL Newsline, 1 July 2005. 29 Goode, above n 23 at 382.

156 The Government and Other Agencies This process was reviewed by the Constitutional Court. In December 2005, the Court dramatically reversed its previous ‘legal position’ that Governors should be popularly elected. It now acquiesced to the constitutionality of appointment by an elected Head of State.30 An individual citizen had brought the case, claiming their constitutional rights were violated by Sergei Sobyanin’s appointment as Tiumen region’s Governor.31 As Pomeranz describes, ‘the court split dramatically’.32 The decision was 12 to 6, with two justices – Anatoly Kononov and Vladimir Yaroslavtsev – giving ‘blistering dissenting special opinions’.33 While President, Medvedev instituted a quicker and more transparent gubernatorial appointment procedure, under which the President ‘was limited to nominating a candidate as governor from a minimum of three individuals chosen and submitted by the majority party of deputies in each regional assembly’.34 Medvedev’s limited appointment reorganisation was superseded. Following public disquiet about the cynical manoeuvre bringing Putin back as Presidential candidate in 2012 (see Chapter 4, section III.C), and public demonstrations against widespread ballot falsification during the December 2011 Duma elections (see Chapter 5, section II.B.i), Medvedev promised various reforms. One was a return to direct gubernatorial elections. Medvedev’s initial proposal (presented to the Duma in January 2012) included the possibility of ‘consultations’ with political parties.35 During the course of the resulting bill’s passage, this changed to a ‘municipal filter’ under which representatives of municipalities would have a say in the candidate selection process. The law appropriately amending the 1999 law ‘On GPO’ was signed by Medvedev on 2 May 2012 (before handing the presidency to Putin on 7 May).36 It came into force on 1 July. It establishes that the Governor 30 CCRF ruling of 21 December 2005 No 13-P. Extract in Maggs, Schwartz and Burnham, above n 20 at 364. 31 More than 50 SPS members later joined as individual plaintiffs. See Pomeranz, above n 19 at 180. 32 ibid 182. 33 ibid 184. Extract of Kononov’s dissent in Maggs, Schwartz and Burnham, above n 20 at 367. 34 JC Moses, ‘The Political Resurrection of Russian Governors’ (2014) 66(9) Europe Asia Studies 1395, 1397. 35 Details of discussions in H Blakkisrud. ‘Governing the Governors: Legitimacy vs Control in the Reform of the Russian Regional Executive’ (2015) 31(1) East European Politics 104, 106. See ch 5, section III.B.i for Duma electoral reforms. 36 Analysis of the effects is given in G Sharafutdinova, ‘Regional Governors Navigating through Putin’s Third Term: On the Wave of Patriotism through the Troubled Waters of the Economy’ (2016) 1 Russian Politics 372.

Regional Government 157 should be elected by universal, equal and direct suffrage by secret ballot, with either political party or self-nomination of candidates, depending on subject-level regulations. The exact details of the ‘municipal filter’ are not spelled out in the law, as federal subjects are given some limited discretion, but basically it requires potential candidates to gain a certain percentage of signatures from either municipal legislators and elected municipal heads (for candidates proposed by a political party) or from registered voters (if the federal subject allows self-nominating candidates).37 The municipal filter’s stated justification is that it excludes participants without sufficient voter support and so would ‘weed out obviously unsuitable persons’.38 The Constitutional Court confirmed in December 2012 that the restrictions are not unconstitutional. However, concerns remain and the process has been condemned by the Council of Europe’s Congress of Local and Regional Authorities as creating serious obstacles to citizens’ voting rights.39 Further reforms in 2013 and 2015 allow federal subjects to opt for indirect gubernatorial elections by their legislatures. It was anticipated that this process might be used in potential troublespots – for example, six republics within the North Caucasus federal district.40 Indirect elections have since been instituted in the autonomous areas and currently pertain in 10 federal subjects.41 In all cases the ‘municipal filter’ operates. This gives disproportionate influence to parties in power in subject-level legislatures. If there were competitive democracy at that level, this would not be a problem, but as it is, the ‘party of power’ supporting the President can ensure that the President’s choice of candidate will head the ballot, or perhaps more precisely that anyone in the President’s disfavour will find it practically impossible to register. Presidential approval has become axiomatic for

37 ‘Protsedura vyborov gubernatorov v Rossii [The Procedure for the Election of Governors in Russia]’ RIA Novosti, 23 September 2018. See also Blakkisrud, above n 35 at 107. 38 The stated goals are critically appraised in SG Solov’ev, ‘K voprosu o potentsii munitsipal’nogo fil’tra [On the Potency of the Municipal Filter]’ (2018) 9 Gosudastvennaia vlast’ i mestnoe samoupravlenie 33. 39 E Trifonova, ‘Sovet Evropy ukazhet RF na problemy s demokratiei [Council of Europe Will Present Russia Problems with Democracy]’ Nezavisimaia Gazeta, 19 August 2019. 40 Dagestan, Ingushetiia, Kabardino-Balkariia, Karachevo-Cherkesskaia, North Osetia and Chechnia. The district also includes Stavropol territory. 41 The Republics of Adygeia, Dagestan, Ingushetiia, North Osetia, Crimea, KabardinoBalkaraia and Karachaevo-Cherkesskaia, and the Nenetskii, Khanty-Mansiiskii–Iurga and Iamalo-Nenetskii autonomous areas.

158 The Government and Other Agencies Governors; no longer, as in the 1990s, are there regional politicians with their own power bases.42 Directly elected mayors and city councils were eliminated in 2014.43 Although this is under review,44 the overall picture in relation to both regional and local government is of excessive central control with complete undermining and disempowerment of local democracy.45 This is not a sustainable long-term strategy. As Nikolay Petrov vividly expressed it in 2010: ‘By making governors more and more dependent on the centre, the Kremlin succeeded in creating power steering for the driving wheel; however, the connection between the driving wheel and the other wheels has become much weaker.’46 Grassroots activism in Russia exists and at some point will confront top-down restrictions on democratic expression.47 This was exemplified by major demonstrations in Moscow following perceived foul play against opposition candidates registering for the 2019 Moscow Duma elections. However, the situation may be complicated by whatever changes are made implementing the 2020 constitutional reform’s introduction of the as-yet unexplained ‘unified system of public power (edinaia sistema publichnoi vlasti)’.48 Whatever this involves is unlikely to strengthen local democracy. The President may suspend a Governor accused by the ProcuratorGeneral of commission of a grave or especially grave crime.49 Suspension can be immediate, without warning, and clearly without recourse to a court. In the circumstances of Russian political life, it would not be difficult to procure such an accusation, so the mere existence of this power ensures that Governors respect central policy. As Kahn succinctly states, 42 For an example of the impact of Presidential opinion, see A Pertsev, ‘Changing the Guard: The End of Russia’s Bodyguards-Turned-Governors’ Carnegie Moscow Centre Report, 10 June 2019; contrast D Litvinova, ‘Putin’s Game of Thrones: The Men in Epaulets Take Over’ Moscow Times, 29 July 2016. 43 JC Moses, ‘Putin and Russian Subnational Politics in 2014’ (2015) 23(2) Demokratizatsiya 181. 44 D Garmonenko, ‘Mery stanut podushkoi bezopasnosti dlia gubernatorov [Mayors Will Be the Airbag for Governors]’ Nezavisimaia Gazeta, 25 June 2019. 45 See the discussion and assessment of different methods in R Smyth and R Turovsky, ‘Legitimising Victories: Electoral Authoritarian Control in Russia’s Gubernatorial Elections’ (2018) 70(2) Europe-Asia Studies 182. 46 N Petrov, ‘Regional Governors under the Dual Power of Medvedev and Putin’ (2010) 26(2) Journal of Communist Studies and Transition Politics 276, 303. 47 See the discussion about popular views on Putin and his regime in S Greene and G Robertson, Putin v People: The Perilous Politics of a Divided Russia (New Haven, Yale University Press, 2019). 48 See E Teague, ‘Russia’s Constitutional Reforms of 2020’ (2020) 5 Russian Politics 301, 312ff. 49 ‘On GPO’ art 291(4), as amended in 2004.

Regional Government 159 ‘this is the power that regional executives truly feared, especially as their senatorial immunities were taken away by the law on the Federal Assembly’.50 Importantly, the President appoints his choice as Acting Governor, pending elections under the set gubernatorial electoral cycle. This unrestricted right troubles opposition politicians.51 Adding to the practical barrier the ‘municipal filter’ creates for potential opposition candidates, it puts the President’s chosen in the privileged incumbent position from which to run their election campaign. One of newly installed President Putin’s federal reforms was amendments in July 2000 to the 1999 ‘On GPO’ law. These give the President power to dismiss a Governor under certain conditions, in particular, if the Governor has repeatedly refused to amend or withdraw legislation suspended by the President (Article 291). After two months, the President can issue a warning. If this is ignored, he may dismiss the Governor within six months of the legislation’s initial suspension. Dismissal could be appealed to the Supreme Court, but no recourse to a court is needed for any of the earlier stages.52 Alternatively, the President can exercise a less cumbersome procedure through a right given to him by the December 2004 amendment to the 1999 law.53 Under Article 19(1)(b), a Governor’s powers can be terminated early by the President following an expression of no confidence by the federal subject’s legislature. Further, Article 19(1)(d) allows the President to remove a Governor ‘in connection with a loss of confidence of the President for the improper performance of his duties, and also in other instances provided by the present federal law’. A 2012 amendment specifically names corruption as a reason for removal. In brief, the combination of the 2000 changes to the formation of the Federation Council (see Chapter 5, section II.B.ii) and increased Presidential leverage over Governors has stifled regional autonomy, compared with the (albeit rather chaotic) situation under Yel’tsin in the 1990s. It is beyond the scope of this book to assess Russia’s federative structure, but it seems clear that initial imbalances between the central authorities and federal subjects have been exacerbated, and local democracy emasculated. 50 Kahn, above n 15 at 264, referring to the 2000 Federation Council reform. 51 eg, I Rodin, ‘Oppozitsiia trebuet zapretit’ president naznachat’ predvybornykh vrio [Opposition Demands That President Should Be Banned from Appointing Pre-electoral Acting Governor]’ Nezavisimaia Gazeta, 2 July 2019. 52 See Kahn, above n 15 at 262, Table 8.4 ‘Procedures for the Dismissal of Regional Executives and Legislatures Established by Federal Law no 106-FZ, 29 July 2000’. 53 Pomeranz, above n 19 at 181.

160 The Government and Other Agencies V. INSTITUTIONS SUPPORTING GOVERNANCE

In this section we examine some institutions ostensibly designed to support the orderly working of society. The State Council could have been discussed in Chapter 4, while the Public Chamber and other oversight bodies linked to protection of rights could be considered in Chapter 8. However, for convenience, we survey them here as mechanisms to assist Russia’s governance. A. The State Council Putin created a State Council by Presidential edict on 1 September 2000 ‘To help the President exercise his constitutional authority in defining domestic policy.’54 It was not a complete innovation. Tsar Alexander I’s liberal reforms included an advisory State Council, which transformed in 1906 into the semi-representative upper chamber of the new bicameral Legislature. The Tsar appointed half the members (including the Chairman and Deputy), but half were elected from various social groups.55 The modern State Council is not as directly representative as its historic forebear. The State Council’s establishment in 2000 occurred alongside reform to the Federation Council (FC), in Putin’s deal with Governors.56 They would make up the majority of its composition, although the President might appoint other people. In February 2007 Putin widened the membership to include former Governors who supported the Government. He simultaneously created an Advisory Commission to the State Council’s Presidium, appointing to it: ‘Those who have experience in public (state and social) activities.’57 However, these worthies did not become State Council members. In July 2012 newly re-elected President Putin further expanded its membership, to include the FC Chair, the Duma Chair and heads of

54 ‘President of Russia: Status and Authority: Domestic Policy’, en.kremlin.ru/structure/ president/authority/internal-policy. 55 The clergy, the nobility, the provincial zemstvo organizations (a form of local Government), the Academy of Sciences, university professors and large industrialists’ and merchants’ associations. Information given in the TASS report of 5 April 2018. 56 See J Henderson, ‘Redefining Russia’s Federal Structure?’ (2000) 6(4) European Public Law 496. 57 Edict No 24 of 23 February 2007, art 1(c).

Institutions Supporting Governance 161 Duma factions. In August 2012 he added his polpredy (see Chapter 4, section IV.C).58 Chaired by the President, the State Council would meet three times a year to discuss policy matters, on an agenda set by the Presidential Administration. Each session would focus on a single issue.59 Occasionally meetings might be held jointly with the Security Council, which the President also appoints. The State Council’s smaller Presidium would meet once every three months (before July 2012, monthly). The President also chaired it and personally selected the composition of one Governor from each federal district. In both name and function the Presidium recalls the Soviet practice of State and Party organisations having a smaller executive agency meeting more frequently and wielding extensive power. However, this Presidium has only limited influence, having no specific powers and a composition that changes every six months. The State Council gained enhanced media interest after Putin’s election in March 2018 for a second successive Presidential term, as a possible instrument to allow him to retain power and influence after 2024, when, under the then-existing rules, he would be bound to step down. Sociologist Olga Kryshtanovskaya explained in August 2018: [The State Council’s] functions include acting as arbiter among the institutions of power. That’s perfect. Putin can be the arbiter. He can monitor, influence and even control the new president. There’s already some evidence of this happening. The president’s administration has created a new department for the State Council. It’s very strange – there aren’t any such departments for other government organs, such as the State Duma. But there it is.60

Kryshtanovskaya also said that the State Council is ‘somewhat similar to China’s Central Military Commission under Deng Xiaoping’.61 It was thought easier to adapt the State Council to be something like the Soviet Politburo than have major constitutional amendments.62 58 ‘Vneseno izmenenie v Polozhenie o Gossovete [Amendments Made to the Law on the State Council]’ 11 August 2012, kremlin.ru/events/president/news/16215. 59 See the brief summaries on the Presidential website of meetings in reverse chronological order: ‘News about State Council’, en.kremlin.ru/events/state-council. 60 M Whitehouse, ‘What Comes after Putin Could Be Trouble: The Transfer of Power Will Be Perilous, Says a Prominent Russian Sociologist’ Bloomberg Opinion, 25 August 2018. 61 ibid. 62 V Solovei, ‘Vlast’, sama togo ne znaia, delaet vse ob”edineniia obshchestva [The Authorities, without Knowing it, are Doing Everything to Unite Society]’, interview,

162 The Government and Other Agencies However, the Constitution was amended. From Putin’s initial January 2020 Address through to the enactment of legislation implementing the reforms, the State Council took a prominent, if relatively unclear, role. In his Address, Putin proposed consolidating its position into the Constitution, along with the necessity ‘to radically increase the role of regional governors in the development and adoption of decisions at the federal level’.63 This was noteworthy because Putin had previously reduced Governors’ autonomy, and, as Teague explained: ‘There was accordingly suspicion that Putin’s real purpose in embedding the State Council in the Constitution was not to give more power to regional governors, but rather to create an alternative power centre that Putin himself might head, should he decide to step down as president in 2024.’64 That possibility remains, but the renewed State Council does not appear to be independently powerful. Almost all its members are beholden to the serving President, so it would be an unlikely sanctuary for an ex-President hoping to keep control over policy, as exemplified by Kazakhstan’s ex-President, Nursultan Nazarbayev, who in March 2019 assumed lifelong chairmanship of Kazakhstan’s Security Council.65 Rather, the State Council appears to remain a ‘talking shop’. As Ekaterina Schulmann and Mark Galeotti elegantly express it, the State Council (and the Russian Security Council) are ‘institutionalized fora for resolving disputes between crucial stakeholders’.66 The 2020 amendment to Article 83(f5) of the Constitution on Presidential power includes the formation of the State Council, with its status to be determined by federal law. The consequential 2020 Law on the State Council was amongst the first post-amendment laws adopted. The Presidential draft was passed, unchanged, in March.67 However, as Teague observantly noted, ‘what read in the January draft as “organs of state power” was changed in March to read “organs of public power”’.68 The Law on the State Council gives initial inklings of the new public

1 September 2018, www.activist.msk.ru/2018/09/valeriy-solovey-vlast-objedinyaet-obshestvo.html. 63 See Teague, above n 48 at 316. 64 ibid 317. 65 ibid 318. 66 E Schulmann and M Galeotti, ‘A Tale of Two Councils: The Changing Roles of the Security and State Councils during the Transformation Period of Modern Russian Politics’ (2021) Post-Soviet Affairs 1, 14. 67 K Veretennikova, ‘Gossovet ne povod dlia diskussii [The State Council is Not a Subject for Discussion]’ Kommersant’, 24 November 2020. 68 Teague, above n 48 at 318.

Institutions Supporting Governance 163 power concept introduced but not defined in the constitutional amendments. The first two articles focus on it. Article 1 states: This federal law, in accordance with the Constitution RF and in order to ensure the coordinated functioning and interaction of agencies included in the unified system of public power, determines the basis for the functioning of public power, as well as the status, organizational and legal basis of the formation and activities of the State Council.69

Article 2, ‘The concept of a unified system of public power’, explains: Under the unified system of public power are understood to be the federal agencies of state power, agencies of state power of the Russian federal subjects, other state agencies, agencies of local self-government in their entirety, exercising within constitutionally-established limits on the basis of the principles of coordinated functioning and established on the basis of the Constitution RF and in accordance with the legislation on organisational, legal, functional and financial and budgetary interactions, including on the issue of the transfer of authority between levels of public power, its activity with the aim of fulfilment and defence of the rights and freedoms of man and citizen, creating the conditions for socio-economic development of the state.70

This rather wordy conceptualisation indicates that there will be a single hierarchy of ‘public power’, tying together different levels of State agencies with local self-government. This and changes to the Constitution’s chapter on local self-government (especially Article 133) suggest that legislation will alter local self-government’s role, possibly strengthening central control in the guise of ‘improvement’ and ‘monitoring’. As was noted in Chapter 3, this seems inconsistent with the declaration in entrenched Article 12 of local self-government’s autonomy. Further discussion of ‘public power’ is beyond the scope of this book, as we await explanatory legislation. The status of the State Council is a ‘constitutional state agency formed by the President’.71 However, the Constitution’s entrenched Article 11 lists agencies effectuating State power, without mentioning the State Council. So the State Council is a ‘constitutional state agency’ whilst not exercising State power. Introducing the bill to the Duma, Pavel Krasheninnikov affirmed this: ‘I want to note that the State Council is not a state agency. It is not endowed with administrative authority [vlastnymi polnomochiiami] nor with the right of legislative initiative.’72 Rather, it

69 The

text of the law in Russian is available at www.kremlin.ru/structure/state-council. art 2(1). 71 ibid art 3. 72 Veretennikova, above n 67. 70 ibid

164 The Government and Other Agencies ‘will assist the Head of State in the implementation of his powers’.73 This includes resolving disagreements between agencies of State power and deciding what new laws or amendments are needed. This unusual status of appearing to act as a State agency without having that qualification was queried by the Venice Commission in its thorough review of the 2020 amendments: It appears to [us] that the State Council is, de facto, a body exercising state power. The legitimacy provided to [the] Council of State though [sic] its constitutionalisation and the strengthening of the Presidential Administration acting on the basis of advice from the Council of State can weaken the Government and add to the problems of ‘double administration’.74

The membership of the State Council has not changed dramatically, although one innovation is the mandatory inclusion of the head of the Presidential Administration.75 Putin’s December 2020 decree on its 104 members includes ‘Governors, the Duma and Federation Council Chairs, plenipotentiaries, [and] leaders of parliamentary parties’.76 Polpredy are amongst the Presidential invitees under the 2020 State Council law. Chatham House’s Nikolai Petrov noted: This means that ninety per cent of the new body consists of figures appointed to their posts by the president and as such is more of a political Noah’s Ark than an efficient state agency whose function is to advise the head of state in the running of the country.77

It will be interesting to see how the renewed State Council interacts with the Presidential Administration and the Government. An initial assessment suggests that its main role will be to add a veneer of consultation to the exercise of Presidential power. B. The Public Chamber and Other Social Oversight Agencies In 2005 another advisory, non-State body was established at the behest of President Putin: the Public Chamber (Obshchestvennaia Palata, translated 73 ibid. 74 European Commission for Democracy through Law (Venice Commission), ‘Russian Federation: Interim Opinion on Constitutional Amendments and the Procedure for Their Adoption’, 19–20 March 2021, 21, para 90. 75 Schulmann and Galeotti, above n 66 at 5. 76 ‘Putin utverdil sostav Gossoveta [Putin Approved the Composition of the State Council]’ Kommersant’, 21 December 2021. 77 Email to subscribers, 21 January 2021.

Institutions Supporting Governance 165 on its website as ‘Civic Chamber’). This was also not a complete innovation. In the early 1990s Yel’tsin created something with the same name and similar functions as ‘a ready-made alternate leg of legitimacy on which to stand in the event of a dissolution of parliament’,78 although it never fulfilled that function. Unlike the initial State Council, the Public Chamber was established by federal law, not Presidential edict. Putin presented the reform following the tragic Beslan school siege in September 2004.79 The Presidential Administration produced a draft which the Legislature enthusiastically received. The law was finalised in April 2005. Its first meeting was held that October. A principal proponent, UR Duma Deputy Valerii Galchenko, reportedly said: ‘The country must have at least one moral-ethical organ that can stand on the same level with the president in the eyes of society.’80 Putin required prospective members to be non-politicians and ‘distinguished people who have made contributions to the state and society’.81 Not everyone welcomed this collection of worthies. Some critics drew parallels with a body existing in Benito Mussolini’s Fascist Italy, and initially a number of prominent human rights organisations refused to be involved.82 When the Public Chamber’s composition was renewed two years later, 25 original Presidential appointees were retained, with 17 incomers, a number of whom had ties to Putin. Some well-known human rights campaigners were included as social organisation appointees, evidencing its greater acceptance by active NGOs. In March 2008, then President-elect Medvedev spoke at a Public Chamber meeting, supporting more ‘expert examination’ of draft legislation.83 The Public Chamber seemed an ideal forum for this. As a result, its scope was expanded in December 2008, giving it the right to receive for consideration all draft legislation, not just a selection. It was also empowered to demand assessments from State agencies on draft measures which might restrict individual freedoms through arrest, 78 E Huskey, Presidential Power in Russia (Armonk, NY, ME Sharpe, 1999) 174. 79 On Beslan, see above n 24. 80 R Coalson, ‘As Bill’s Author Defends the Initiative’ Radio Free Europe/Radio Liberty Newsline, 18 February 2005, citing strana.ru, 17 February 2005. 81 ‘VY Putin Forges Ahead on “Public Chamber” Project’ Radio Free Europe/Radio Liberty Newsline, 4 August 2005. 82 J Bransten, ‘Public Chamber Criticized as “Smokescreen”’ RFE/RL Russian Political Weekly, 1 April 2005. See also M McAuley, Human Rights in Russia (London, IB Tauris, 2015) 152. 83 ‘Bills Should Undergo Public Scrutiny before Adoption – Medvedev’ Itar-Tass, 19 March 2008.

166 The Government and Other Agencies detention or seizure of property. Previously it had highlighted problems for NGOs registering with the Federal Registration Service.84 It also criticised proposals to reduce access to jury trial for those accused of treason. Its comments were ignored, but induced President Medvedev to order a review of the proposed amendments, although to no avail. Following support in Putin’s annual Federal Assembly Addresses in both 2013 and 2014, from 2014 the Public Chamber’s role in giving a preliminary assessment of legislation was strengthened. These ‘zero readings’ (nulevye chteniia) occur before any formal legislative procedure (see Chapter 5, section III). Putin is on record as characterising the Public Chamber’s zero readings as a ‘real mechanism of direct democracy’.85 They even have their own Facebook page.86 The Public Chamber’s role has evolved. In 2010, its website gave its aim as being a consultative body to ‘facilitate coordination between the socially significant interests of citizens of Russia, NGOs, and national and local authorities’.87 Now its purpose is more concrete: [T]o help citizens interact with government officials and local authorities in order to take into account the needs and interests of citizens, to protect their rights and freedoms in the process of shaping and implementing state policies, and to exercise public control over the activities of executive authorities.88

There has also been a change in membership. A law in July 2013 established a new formation procedure. Previously there had been 126 members: 42 selected by the President, 42 social organisation representatives and 42 chosen by the other members. Since 2014, there are 166 members: 40 Presidential selections, 83 representatives of regional public chambers and 43 representatives of national social associations.89 ‘The forms of work are as follows: civil forums, public hearings, workshops, hot lines, citizens’ appeals, etc.’90 There are four plenary sessions per year. At the first, a President and Vice-President are elected for three-year terms, and a number of subsidiary bodies established: 84 R Coalson, ‘Public Chamber Criticizes Application of NGO Registration Law’ Radio Free Europe/Radio Liberty Newsline, 10 April 2008. 85 ‘Putin: “nulevye chteniia” v OP mekhanizmim priamoi demokratii [Putin: “Zero Readings” at the Public Chamber are a Mechanism of Direct Democracy]’ RIA Novosti, 23 June 2015. 86 www.facebook.com/nullread. 87 J Henderson, The Constitution of the Russian Federation, 1st edn (Oxford, Hart Publishing, 2011) 146. 88 ‘About the Chamber’, www.oprf.ru/about_the_chamber/4. 89 ibid. 90 ibid.

Institutions Supporting Governance 167 commissions, coordination councils and working groups. The current listing includes amongst its 20 commissions those for ‘youth, volunteerism and patriotic education’, ‘culture development and the preservation of spiritual heritage’ and ‘demography, protection of family, children and traditional family values’.91 In 2020 the Public Chamber was given a role in coordinating the registration of voter observation by political parties.92 The establishment of the federal Public Chamber encouraged the creation of others. These are also advisory bodies, set up for three-year rotations. Membership is by competitive selection from citizens who volunteer themselves, with NGO backing. Some regional Public Chambers pre-dated the federal Chamber, and in 2004 Putin recommended their experience when advocating the federal Chamber.93 In June 2016 a federal law, into force from January 2017, regularised their creation and activity, including submitting Federal Chamber members. In his Federal Assembly Addresses, Putin highlighted other ‘civic engagement’. Mentioned in 2012, but accentuated in the 2013 Address: I would ask the Civic [Public] Chamber, the Human Rights Council and other non-governmental and human rights organisations to be actively involved in drafting the bill ‘On Social Oversight [Ob obshchestvennom kontrole]’ that would establish the legal basis for such civic participation.94

The Duma reacted ‘promptly to the President’s proposal on Public Chamber reform voiced in his Address: the bill was tabled the same day’.95 The result was the 21 July 2014 Federal Law ‘On the Fundamentals of Social Oversight in the RF [Ob osnovakh obshchestvennogo kontrolia v RF]’ allowing citizens ‘to participate in the implementation of social oversight’ (Article 3(1)), both personally and as a member of a social association or other NGO, to ‘ensure the implementation and protection

91 ‘The Structure of the Public Chamber’, www.oprf.ru/structure_chamber. 92 K Veretennikova, ‘Neverov: obshchestvennye palaty mogli by nabliudat’ za golosovanniem na vyboprakh [Neverov: Public Chambers Could Observe Voting in Elections]’ Kommersant’, 23 July 2020. 93 ‘Obshchestvennye palaty bez “chernogo vkhoda” [Public Chambers without a “back door”]’ European Ombudsman, 24 October 2016. 94 An English version is available at en.kremlin.ru/events/president/transcripts/messages/ 19825. 95 S Samokhina, ‘New Reform Prescribed for Public Chamber’ Kommersant’, 13 December 2013, as cited in BBC Monitoring Summary of Russian Press.

168 The Government and Other Agencies of human rights and freedoms’ (Article 5 (1)(1)). Article 13 also encourages public chambers to be established at federal executive agencies, as well as legislative and executive agencies in federal subjects, and local government. The Public Chamber’s website states that 53 federal power agencies (including the Federal Security Service, the Ministry of Finance and the Ministry of Internal Affairs) have public chambers.96 The Law on Social Oversight has not been well received in expert assessments, and proposals have been made to improve it.97 Highprofile lawyer Vladislav Grib pointed out restrictions and limitations: none of the ombudsmen who actually carry out oversight activities have any status under the law.98 Also, entire sectors have no social oversight: banks, courts, electoral process enforcement and ‘the Investigative Committee and General Procurator’s Office are beyond the scope of social oversight’.99 The impression is created that the social oversight system, whilst well-meaning, is just pokazukha – ‘window dressing’. One important set of oversight bodies under the Public Chamber’s aegis are the Public Monitoring Commissions, often known by their Russian acronym ‘ONKs’. These have a significant role as (supposedly) independent agencies monitoring detention centres, prison settlements and the like. Since the early 1990s, civil rights activists had advocated something akin to the British prison visitor system.100 Eventually in 2007 a committee of the then new Public Chamber put forward a draft law and ONKs were established in 2008 as part of public oversight during the ‘Medvedev thaw’. They can exist in federal subjects, with membership renewed every three years. Their size varies – between 4 and 40 members, with an average of 16. Following the death in November 2009 of the former Hermitage Capital auditor Sergei Magnitsky in Moscow’s Matrosskaya Tishina Detention Centre, the ONK, led by human rights activist Valerii

96 ‘About the Chamber’, above n 88. 97 See, eg, AA Ivanov, ‘Ekspertnaia otsenka federal’nogo zakona “Ob osnovakh obshchestvennogo kontrolia v Rossiiskoi Federatsii”: kratkii obzor [Expert Assessment of the Federal Law “On the Fundamentals of Social Control in the Russian Federation”: An Overview’ (2016) 3 Gumanitarnye, Sotsial’no-Ekonomicheskie i Obshchestvennye Nauki 33; V Grib, ‘Advokaty dolzhny vziat’sia za obshchestvennyi kontrol’ [Lawyers Must Take over Social Control]’ Regnum, 30 March 2017. 98 Grib, above n 97. 99 ibid. 100 McAuley, above n 82 at 216 ff. See also ‘An Interview with Valery Borshchev: The Evolution of Russian Prisons – from Institutionalised Bullying to Transparency’ Moscow Helsinki Group Pravda.ru, 11 January 2017, posted by Rights in Russia, 23 January 2017, www.rightsinrussia.info/russian-media/pravdaru.

Institutions Supporting Governance 169 Borshchev, held a public inquiry which concluded that Magnitsky’s death was a result of torture.101 Unfortunately, ‘for every action, there is a reaction’.102 The security services responded by ensuring that the 2010 elections to the Moscow ONK brought in new members who were former military or represented the interests of intelligence agencies. In 2013 the new chairman was Anton Tsvetkov, head of the ‘Officers of Russia’ organisation.103 The proportion of former siloviki (members of security services and similar) in ONKs increased and rights activists were excluded. From October 2016, the Moscow ONK had three journalists and three human right activists, but the other 25 members are ‘either former siloviki or their business partners’.104 As summarised in the headline to Paul Gobel’s commentary: ‘Magnitsky’s Jailor Now Member of Russian Penal Monitoring Group’.105 There has also been a reduction in the number of members of ONKs, making monitoring problematic in areas with large numbers of detention camps and colonies. Human rights activists suggest that ONKs’ effective role of might be restored – for example, by changing who oversees candidate selection to, say, the Human Rights Commissioner or the Presidential Human Rights Council. Also, ONK observers should have stronger rights for unimpeded visits and use of technical equipment.106 The requirement for robust oversight of places of detention was brought yet again to public attention in the summer of 2018 with the release of an horrific video showing brutal torture at the IK-1 colony in Yaroslavl.107 Six guards involved were subsequently arrested and 17 other officials dismissed. But such sanctions are uncommon and appropriate accountability is insufficiently developed. The agencies described here should assist good governance. However, the extent to which they can be effective under the current Russian regime is questionable. Particularly at the federal level, one suspects ‘show’ rather than effectual input. Nevertheless, a framework for social 101 See, amongst other accounts, Amy Knight, ‘Russia’s Magnitsky Affair and How it Comes Closer to Donald Trump’ Financial Review, 15 February 2018. 102 Z Svetova, ‘How the State Hijacked Russia’s Only Independent Prison Watchdog’ Moscow Times, 3 November 2016. 103 ibid. 104 ibid. 105 P Goble, ‘Magnitsky’s Jailor Now Member of Russian Penal Monitoring Group’ Window on Eurasia, 23 October 2016. 106 A Babushkin, ‘How to Overcome the Crisis of Public Monitoring Commissions in Five Steps’, 29 November 2017, posted 11 December 2017 on the Rightsinrussia website. 107 See, amongst others, ‘Brutal Video Exposes Torture in Russian Prisons’ The Independent, 20 July 2018.

170 The Government and Other Agencies oversight and other monitoring activities exists, and, as with other institutions which currently appear somewhat sham, in future they might develop into effective agencies for democratic influence. VI. CONCLUSION

Governing a country as large as Russia is challenging. ‘Departmentalism’ – favouring one’s own department rather than fostering cross-governmental cooperation – has a strong tradition, with little incentive to cooperate with other ministers and infighting between different ‘clans’ encouraged. The Russian Government, its Chairman and individual members are really only answerable to the President, despite some scope for legislative inquiry (see Chapter 5, section IV). Links between the Government and the general population are weak. Unsurprising, then, that public trust in the Government is low. A representative Levada opinion poll in late October 2019 had 33 per cent stating that the Government was not at all deserving of trust and 37 per cent ‘not quite deserving’; only 26 per cent viewed the Government as trustworthy.108 Local government, more closely linked to the population, fared slightly better. Nonetheless, there are social oversight mechanisms which could allow effective governance if those in power were willing to entrust people to work to promote better social conditions. However, for that to happen, there would need to be a transformation, allowing more ‘bottom-up’ input rather than the current ‘top-down’ style of governance. Given the introduction in 2020 of the concept of a ‘unified system of public power’ which appears to promote further central control, it seems unlikely that accountable grassroots government will develop in Russia any time soon. FURTHER READING E Huskey, ‘The State-Legal Administration and the Politics of Redundancy’ (1994) 11 Post-Soviet Affairs 115. H Oversloot, ‘Reordering the State (without Changing the Constitution): Russia under Putin’s Rule, 2000–2008’ (2007) 32 Review of Central and East European Law 41.

108 ‘Institutsional’noe doverenie [Institutional Trust]’ Levada Press Release, available in Russian at www.levada.ru/2019/10/24/institutsionalnoe-doverie-5.

Further Reading 171 C Ross, ‘Federalism and Inter-governmental Relations in Russia’ (2010) 26(2) Journal of Communist Studies and Transition Politics 165. E Schulmann and M Galeotti, ‘A Tale of Two Councils: The Changing Roles of the Security and State Councils during the Transformation Period of Modern Russian Politics’ (2021) Post-Soviet Affairs 1. JF Young and GN Wilson, ‘The View from Below: Local Government and Putin’s Reforms’ (2007) 59 Europe-Asia Studies 1071.

7 Courts and Judges Russia’s Courts Develop – Judicial Independence under Threat I. INTRODUCTION

P

campaigners in Russia (see Chapter 2, section V) regarded judicial reform as a necessity, most notably expressed in the 1991 Conception of Judicial Reform.1 This was approved by the Russian legislature in October 1991, creating a bedrock for subsequent developments. Thus, many significant changes, such as indeterminate judicial tenure, pre-date the Constitution. But neither perestroika nor the Constitution solved the issue of judicial independence, which we will consider after exploring the courts.2 erestroika

II. RUSSIA’S COURTS

A. Constitutional Provisions on Courts When the Constitution was adopted, there were three separate fora for litigation. The RSFSR Constitutional Court, established in 1991, conducted constitutional oversight. The Highest Commercial (Arbitrazh) Court headed a hierarchy of commercial (arbitrazh) courts, also created in 1991,3 adjudicating business disputes and disputes between businesses

1 English translation in (1994) 30(2) Statutes and Decisions 7. 2 See also PB Maggs, O Schwartz and W Burnham, Law and Legal System in the Russian Federation, 7th edn (Huntington, NY, Juris Publishing, 2020) 75ff; WE Butler, Russian Law and Legal Institutions, 3rd edn (Clark, NJ, Talbot Publishing, 2021) 257ff. 3 See K Hendley, ‘Remaking an Institution: The Transition on Russia from State Arbitrazh to Arbitrazh Courts’ (1998) 46 American Journal of Comparative Law 93.

Russia’s Courts 173 and the state.4 The Supreme Court headed a hierarchy of domestic and military courts, dealing with all other litigation: civil, criminal and administrative. Chapter 7 of the Constitution, ‘Judicial Power’, made no immediate changes. Although the RSFSR Constitutional Court was suspended at the time, the Constitution detailed jurisdiction for a continuer Constitutional Court of the Russian Federation (CCRF) to be established under a Federal Constitutional Law (FCL). The Constitution also mandated an FCL on the Highest Commercial (Arbitrazh) Court and an FCL on the Supreme Court. The Constitution gives little detail about courts, instead articulating important principles. Article 118(1) specifies that ‘Justice [pravosudie] in the RF shall be administered only by a court’. The 1977 USSR Constitution had the same words, but with a different meaning: anything not a court need not be interested in ‘justice’. So Soviet arbitrazh tribunals resolving disputes within the Soviet centralised, State-planned economy focused on the economic Plan, not legal particulars. Now it signifies that all courts should administer justice through proper procedures to defend rights and protect the legal interests of individuals, legal entities and other participants. The original wording of Article 118(2) was: ‘Judicial power shall be effectuated by means of constitutional, civil, administrative, and criminal procedure.’ The 2020 constitutional reforms added ‘arbitrazh’ to the list. The Constitution does not allocate these different procedures to particular courts, leaving that to other legislation, such as the 1994 FCL on the CCRF; the 1995 FCL on the Commercial (Arbitrazh) Courts (until its repeal); the 1996 FCL on the Judicial System; the 1998 federal law ‘On Justice of the Peace Courts’; the 2011 FCL on Courts of General Jurisdiction; and the 2014 FCL on the Supreme Court.5 Originally Article 118(3) stated: ‘The creation of extraordinary courts shall not be permitted.’ This prohibition has historic roots. From 1934, special boards attached to the Soviet Ministry of Internal Affairs tried especially dangerous crimes against the State, and much Stalinist terror was channelled through them. They were colloquially named ‘troika’ after the Russian three-horse sleigh. They were abolished in the post-Stalin reforms of the late 1950s. Revulsion against troika excesses 4 Arbitrazh is not arbitration, which ‘has a venerable history in Russia’; see Butler, above n 2 at 327. 5 All except the 2014 FCL are included (with amendments up to 2012) in WE Butler, Russian Public Law, 3rd edn (London, Wildy, Simmonds & Hill, 2013).

174 Courts and Judges prompted the inclusion of this prohibition.6 However, the Constitution does not disallow specialised courts. Military courts (headed by the Supreme Court) and courts for intellectual rights (as specialised commercial courts, with first and cassational instances) exist; other specialist courts such as administrative, juvenile and immigration courts could be created following appropriate amendment of the FCL on the Judicial System. Intellectual property courts were established in this way in December 2011.7 Administrative courts were discussed for a number of years, with positive pressure from the longstanding Supreme Court Chair, Viacheslav Lebedev. However, they never materialised. Instead, the 2011 FCL on Courts of General Jurisdiction mandated a ‘Judicial Division for Administrative Cases’ within the Supreme Court, without creating separate lower administrative courts. In 2020, Article 118(3) was amended to: The judicial system of the RF shall be established by the Constitution RF and federal constitutional law. The judicial system of the RF shall consist of the Constitutional Court RF, Supreme Court RF, federal courts of general jurisdiction, arbitrazh courts, and justices of the peace of federal subjects. The creation of extraordinary courts shall not be permitted.

The significance of this specific list of courts was not immediately apparent, but it soon became clear that its deliberate exclusion of constitutional or charter courts of federal subjects presaged the abolition of the existing 15 courts (see section II.C below). Article 123 mandates: ‘Proceedings in all courts shall be open’ (apart from instances provided for by federal law); ‘hearing criminal cases in absentia shall not be allowed except in instances provided for by federal law’; and ‘judicial proceedings shall be conducted on the basis of adversarial principles and equality of the parties’. All these contrast with Soviet procedure and practice. Unfortunately, despite the law explicitly requiring adversariality, Russian criminal procedure does not give true equality of arms between prosecution and defence.8 Chapter 2 of the Constitution on the Rights and Freedoms of Man and Citizen also includes other important procedural guarantees, such as being deemed 6 Article 160 of the 1977 USSR Constitution also prohibited convictions for crime other than by a court. 7 See Butler, above n 5 at 391. 8 See, eg, P Jordan, ‘Criminal Defence Advocacy under the 2001 Criminal Procedure Code’ (2005) 53 American Journal of Comparative Law 157; PH Solomon, ‘Understanding Russia’s Low Rate of Acquittal: Pretrial Screening and the Problem of Accusatorial Bias’ (2015) 40 Review of Central and East European Law 1.

Russia’s Courts 175 innocent until proved guilty; a prohibition against double jeopardy (being tried a second time for the same crime); the use of illegally obtained evidence; self-incrimination; or retrospective imposition or increase of any penalty.9 Article 124 promises sufficient federal finance for effective court functioning. On this basis, in 1998 the Supreme Court successfully petitioned the CCRF on the unconstitutionality of proposed budget cuts. The Constitution named the three top courts: the Constitutional Court, the Supreme Court and the Highest Commercial Court (HCC). Article 125 sets out CCRF jurisdiction (see below). Article 126 specified the Supreme Court’s role and Article 127 defined that of the HCC. This Article was deleted and Article 126 was amended in the 2014 court reorganisation. The Supreme Court’s role and tasks were specified in Article 126 as exercising judicial supervision over the courts of general jurisdiction, and rendering explanations (raz”iazneniia) on questions of judicial practice. Such explanations effectively act as a source of law, despite in theory being interpretation of enacted legislation.10 Similarly, before 2014, Article 127 defined the HCC as heading the courts dealing with economic disputes, and also exercising supervision and rendering explanations. The Civil Code applies in both court hierarchies, and both the Supreme Court and the HCC gave explanations on important civil law matters (including occasionally joint explanations). The risk of such explanations being inconsistent was one of the (very few) justifications for the precipitous court reform in 2014. The first intimation of this was in the summer of 2013.11 President Vladimir Putin made a surprise announcement at a plenary session of the St Petersburg International Economic Forum that he intended to unite the Supreme Court and the Highest Commercial Court.12 The proposal received almost universal criticism as a retrograde step, since the commercial courts ‘are perceived by many as much more transparent, independent and modernized than the old-fashioned courts of general

9 Articles 49, 50, 51 and 54. 10 See below, text following n 37. 11 Maggs, Schwartz and Burnham, above n 2 at 76ff; PH Solomon, ‘The Unexpected Demise of Russia’s High Arbitrazh Court and the Politicization of Judicial Reform’ (2014) 147 Russian Analytical Digest, 2; J Henderson, ‘Developments in Russia’ (2015) 21(2) European Public Law 229, 233. 12 ‘Putin Proposes to Unite Supreme Court, Supreme Arbitration Court’ ITAR-TASS World Service, 21 June 2013.

176 Courts and Judges jurisdiction’.13 The stated rationale ‘struck most observers as lame’.14 Nevertheless, the necessary legislation was quickly passed. Compliant federal and regional legislatures gave the required approval for constitutional amendment. The new FCL on the Supreme Court RF (SCRF) was adopted, and 28 other legislative acts appropriately amended.15 The SCRF could have 70 judges. It can sit as a Plenum (Plenary Session) with powers including legislative initiative, and forming a Presidium and seven judicial chambers (collegia): administrative, civil, criminal, economic, military, as well as a judicial disciplinary chamber and an appellate chamber.16 The Presidium is composed of the Chief Justice and Deputy Chief Justices ex officio, plus other SCRF judges selected ‘on proposal of the President RF, based on presentation of the [SCRF] Chief Justice … if there is a positive conclusion of the High Qualification Board of Judges’.17 It meets at least once a month. Its powers include supervisory review and preparing referrals to the CCRF.18 The FCL on the SCRF specifies that it would sit in St Petersburg, not in Moscow as at present. This followed a previous surprise announcement by Vladimir Putin in 2013 that he intended to move the then top two courts to St Petersburg ‘where they would join the Constitutional Court that moved in 2006 and create a “city of courts” (against the wishes of many residents)’.19 Now there would be only one court to move. However, the proposed St Petersburg ‘judicial quarter’ development has experienced difficulties and delays.20 There were a number of troubling aspects of the SCRF reform. It proceeded despite strongly expressed contrary expert views, ‘in just four months, and without any amendments to the initial draft having been made over the course of the legislative process’.21 The existing

13 Maggs, Schwartz and Burnham, above n 2 at 79–80. 14 Solomon, above n 11 at 2. 15 Henderson, above n 11 at 234, citing ‘Federation Council Approves Law on Unification of Supreme Court, Supreme Arbitration Court’ Interfax Russia & CIS Business Law Weekly, 5 December 2013. 16 See art 3 in extract in English of the ‘Law on the Supreme Court’ on the court’s website at www.vsrf.ru/en/about/law. 17 ibid art 6(3). 18 ibid art 7. 19 Solomon, above n 11 at 3. 20 A Pushkarskaia, ‘Verkhovnomu sudu otlozhili pereezd. Sudebnyi kvartal dostroiat v 2021 godu [The Supreme Court Move Postponed. The Judicial Quarter Will Be Completed in 2021]’ Kommersant’, 3 April 2017. 21 ‘Appointing the Judges: Procedures for Selection of Judges in the Russian Federation’ 2014 International Commission of Jurists Mission Report 49.

Russia’s Courts 177 HCC judges were not consulted. Peter Solomon notes that the merger exemplified one mode of politicisation of judicial reform, as ‘a decision that has little or no connection to the policy area at hand, namely the improvement of the courts’.22 Also, he points out: The earlier move of the Constitutional Court was seen by many as an act of judicial counterreform, designed to produce a more compliant court with less competent staff. If Petersburg lacked the depth of legal talent to support the Constitutional Court (19 judges, 200 staff), how much greater would be the challenge for the Supreme Court (170 judges, 1,000 staff)? In short, the court merger and the move to Petersburg ensured that some of the most experienced judges in handling business disputes would retire.23

This indeed happened. Only eight of the 50 HCC judges joined the new Court. Former Chair Anton Ivanov, a noted reformer, was not among them.24 There were even suspicions that one motivation for the reform was to undermine Ivanov.25 He had been instrumental in enhancing transparency and bolstering the commercial courts’ reputation for fairness.26 However, his ‘allegedly extravagant lifestyle allegedly offended some in the leadership’.27 Whether or not this was true, it is telling that credence has been persistently given to rumour that the reform was deliberately designed to sideline him. Only the top court was abolished; lower-level commercial courts remain untouched. William Partlett, writing at the end of September 2014 after the restructuring process was complete, clarified that: Recent details about the makeup and organization of the new ‘super’ court suggest that the pessimists were correct: This reform will weaken rule of law in Russia by eliminating one of the most innovative parts of the Russian judicial system and providing high level officials more opportunities for placing cases on the political track.28

The Duma’s Communist faction challenged the reform at the CCRF, claiming the amendments were ‘contrary to the constitutional principles of balance of powers of agencies of state power, regulatory stability and legal certainty’ and the new appointment procedures breached the 22 Solomon, above n 11 at 4. 23 ibid 3. 24 Maggs, Schwartz and Burnham, above n 2 at 80. See also A Zanina and A Pushkarskaya, ‘At Least 7 Judges Quit Supreme Arbitration Court’ Kommersant, 10 October 2013 as cited in BBC Monitoring Summary of Russian Press. 25 Solomon, above n 11 at 4. 26 Henderson, above n 11 at 234. 27 Solomon, above n 11 at 4. 28 W Partlett, ‘Judicial Backsliding in Russia’ Jurist, 30 September 2014.

178 Courts and Judges ‘constitutional principle of the irremovability of judges’.29 However, the CCRF refused to consider this ‘unique case’.30 An assessment in 2019 of the court reform noted positively that some of the commercial courts’ modernising features, such as an e-justice system (electronic claim filing etc), have been successfully introduced into the domestic courts.31 However, the SCRF Chamber for Economic Disputes has half as many judges as the HCC had. Although as yet this appears not to have adversely impacted access to justice or the quality of decisions, there is credible concern that in future the commercial court system may be seriously under-resourced. According to Kommersant’, the Chamber for Economic Disputes is regarded by the SCRF as ‘a “useful, but nonetheless alien” body that does not require investment or development’.32 This does not bode well for maintaining a coherent body of Russian commercial law. Chapter 7 of the Constitution ends with the one article on the Procuracy (Article 129). There was widespread agreement that this was misplaced in the chapter ‘Judicial Power’. The remedy was to rename it ‘Judicial Power and the Procuracy’ in 201433 (for more on the Procuracy, see Chapter 4, section IV.C and Chapter 8, section IV.A). B. Constitutional Court Control Gaining a Constitutional Court significantly changed the Russian legal landscape. The RFSFR Constitutional Court pre-dated the current Constitution by 18 months. It was itself pre-dated by the USSR Constitutional Supervision Committee (CSC), which was a novelty. For a short time in the 1920s, the first USSR Supreme Court had the power to advise the Legislature about the inconsistency of any law with the USSR Constitution, and, if requested, to give an opinion on the constitutionality of Union Republic laws, or resolve legal disputes between

29 CCRF decision of 17 July 2014 no 1567-O, point 1. 30 A Pushkarskaya, ‘The Constitutional Court Refuses to Consider the “Unique Case”’ Kommersant, 22 July 2014 as cited in BBC Monitoring Summary of Russian Press. 31 A Kashanin et al, Ekonomicheskoe pravosudie v RF 2014–2018 [Economic Justice in the Russian Federation 2014–2018] (Moscow, Tsentr Razvitiia Sovremennogo Prava, 2019). 32 D Butrin, ‘Piat’ let posle VAS Reforma pomogla arbitrazhu v podderzhke sudov, no ostavila ego bez resursov [Five Years after the HAC Reform Helped Arbitrazh Support the Courts, But Left it without Resources]’ Kommersant’, 28 March 2019. 33 See J Henderson, ‘The 2014 Amendments to the 1993 Constitution of the Russian Federation’ (2016) 1 Uppsala Yearbook of Eurasian Studies 279, 282.

Russia’s Courts 179 Union Republics (Article 43 of the 1924 USSR Constitution).34 But before perestroika, no court or tribunal could judge the constitutionality of legislation; ‘constitutional control’, such as existed, was by the Legislature.35 In July 1988 the Communist Party resolved at its policy-making 19th Conference that it ‘would be useful’ to institute a CSC. As a direct result, in December 1988 the 1977 USSR Constitution was appropriately amended and in December 1989 the USSR law ‘On Constitutional Supervision in the USSR’ was adopted.36 This established a ‘committee’, not a court; a compromise body whose members were ‘specialists in the field of politics and law’ (Article 5). In fact, all but one held higher law degrees (the exceptions had degrees in philosophy and history). All were academics without previous judicial experience – a sign that the CSC was to be respected, as in the culture of the time, academics, but not judges, were well regarded. The CSC was supposed to have 25 members, although it never achieved the full complement. The three Baltic republics – Latvia, Lithuania and Estonia – abstained.37 The USSR CSC clearly acted as a precursor to the Russian Constitutional Court, although its powers were rather different. It could review the constitutionality of drafts not just laws, and also of the USSR Supreme Court Plenum’s ‘guiding explanations’. At a colloquium at University College London in March 1990, the spellbound audience witnessed Soviet legal academic Valerii Savitskii publicly challenging the CSC law’s lead draftsman, Aleksandr Larin, over this. Savitskii rightly pointed out that, formally speaking, guiding explanations were merely legislative interpretation, not a source of law. Larin equally correctly responded that they were binding on courts, so were included within the CSC’s remit. The colloquium was held just after Mikhail Gorbachev’s appointment as Soviet President. Larin admitted that he did not know whether presidential legislation would be subject to CSC supervision because the presidency was established after the adoption of the CSC

34 PH Solomon, ‘The USSR Supreme Court: History, Role, and Future Prospects’ (1990) 38 American Journal of Comparative Law 127. 35 See M Lomovtseva and J Henderson, ‘Constitutional Justice in Russia’ (2009) 34 Review of Central and East European Law 37, 60. 36 WE Butler, Basic Documents on the Soviet Legal System, 2nd edn (New York, Oceana, 1991) 185. 37 There was also some ‘doubling up’ for representation of autonomous republics within Russia. See H Hausmaninger, ‘From the Soviet Committee of Constitutional Supervision to the Russian Constitutional Court’ (1992) 25 Cornell International Law Journal 305, 307.

180 Courts and Judges law. It transpired that the CSC could exercise review because Gorbachev was appointed to office by the Legislature rather than being elected by the general population. As an ‘official’ of the Legislature, his actions were within CSC jurisdiction. The CSC issued declaratory opinions. Their effect depended on the nature of the legislation reviewed. If the CSC decided it violated ‘basic human rights and freedoms consolidated in the USSR Constitution and international treaties to which USSR is a party’ (Article 21 of the CSC law), it became void. Other legislation would be suspended, but could be resurrected if the USSR Congress of People’s Deputies (CPD) voted by two-thirds to overrule the CSC’s opinion. During its existence – from March 1990 to the end of 1991 – this never happened. The CSC could take cases on its own initiative, and a landmark opinion resulted from one of these.38 A complaint about housing rights revealed that the applicable legislation remained unpublished. Reviewing the issue of such ‘secret law’, the CSC issued a binding opinion that legislation affecting the rights and interests of citizens that remained unpublished after a specified date would be void. As a result, a number of previously unpublished laws appeared in the Legislature’s official Vedomosti (‘Herald’); a major victory for ‘openness’ (glasnost’), although not eliminating all ‘limited circulation’ legislation. The CSC’s powers were severely circumscribed,39 and it was undermined by fractious federal relations. A leading study by Joseph Middleton concluded that the CSC was doomed to failure because of the unresolved issue of federal imbalance.40 Gorbachev had hoped that the CSC would solve this, but by then the Union Republics would not accept adjudication by any federal agency. Political events overtook the groundbreaking CSC and it disbanded when the USSR dissolved. Russia established a true Constitutional Court before the USSR’s demise. The 1989 amendments to the 1978 RSFSR Constitution envisaged a Russian CSC, but this was never instituted as further amendments in December 1990 mandated a RSFSR Constitutional Court (CC).41

38 See P Maggs, ‘Enforcing the Bill of Rights in the Twilight of the Soviet Union’ (1991) 4 University of Illinois Law Review 1049. 39 B Bowring, ‘Human Rights in Russia: Discourse on Emancipation or Only a Mirage?’ in I Pogany (ed), Human Rights in Eastern Europe (Aldershot, Edward Elgar, 1995) 87, 101. 40 J Middleton, ‘The Soviet Experiment with Constitutional Control: The Predictable Failure of the USSR Constitutional Supervision Committee’ in A Mullerson, M Fitzmaurice and M Andenas (eds), Constitutional Reform and International Law in Central and Eastern Europe (The Hague, Kluwer, 1998) 133. 41 Thanks to Kirill Koroteev for this information.

Russia’s Courts 181 The explicit motivation for the Court was explained by Sergei Shakhrai, Chairman of the RSFSR CPD Committee on Legislation: the establishment of the Russian Presidency that spring created a need for an ‘instrument’ to ensure balance between the legislative, executive and judicial powers.42 The Russian Supreme Soviet adopted the draft law in May 1991. This was before presidential elections on 12 June, which Boris Yel’tsin won. In July the CPD considered the draft. In particular, it had to decide whether to re-introduce a section rejected by the Supreme Soviet, allowing the CC to consider ‘cases of constitutionality of the practice of application of laws’.43 Under this unusual power, the CC could look beyond a law’s text to its ‘customary application’. The CPD took the hint of its presenter, leading reformer Boris Zolotukhin, and on 12 July 1991 passed the law including this power. Thus, litigants – citizens, foreigners, stateless persons and legal entities – could appeal directly to the RSFSR CC about unconstitutionality of a law’s ‘customary application’, provided other procedures were exhausted. The CC could refuse to hear a case on a number of grounds, the broadest of which was that it ‘finds the consideration of the individual appeal to be inexpedient [netseleoobraznoe]’ (Article 69(14)). William Burnham and Alexei Trochev date the ill-will between the Supreme and Constitutional Courts to the battle over this contentious jurisdiction.44 The Supreme Court (and other bodies) thought that this ‘intrusion’ into laws’ application would trump legislation with judgemade law – made by the CC – and would overburden the CC. The latter fear proved to be unfounded. The RSFSR CC only used this power in eight of its 29 decisions; in all eight, the individual won.45 The RSFSR CC reviewed the constitutionality of enacted law, not drafts, except draft international treaties, although in practice it never

42 VS Biulleten’ (1991) 26 at 12, cited in J Henderson, ‘The First Russian Constitutional Court: Hopes and Aspirations’ in Mullerson, Fitzmaurice and Andenas, above n 40. 43 Section III, ch 3. 44 W Burnham and A Trochev, ‘Russia’s War between the Courts: The Struggle over the Jurisdictional Boundary between the Constitutional Court and Regular Courts’ (2007) 55 American Journal of Comparative Law 381, 388. 45 Figures given by Judge E Ametistov at a speech at Columbia Law School, 15 November 1993, cited in A Korkeakivi, Justice Delayed: The Russian Constitutional Court and Human Rights (New York, Lawyers Committee for Human Rights, 1995) 4. Judge N Vedernikov gives a different figure of 8 out of 27 in ‘Problems of Constitutional Jurisprudence and the Formulation of a “Rule of Law” State in Russia’ (1993–94) 38 St Louis University Law Journal 895, 908.

182 Courts and Judges reviewed any.46 Like the USSR CSC, the RSFSR CC could take cases on its own initiative. The 1991 Law forbade the CC to ‘consider political issues’ (Article 1(3)), but in December 1992 the Constitution was amended, giving the CC jurisdiction over ‘political parties and other social organisations’ (Article 165-1). This conveniently allowed it to hear the politically and socially significant case on the constitutionality of the Communist Party, the legality of Yel’tsin’s ban of it and seizure of its property.47 The 1991 Law said that the RSFSR CC would have 15 judges, each with a minimum age of 35, appointed to a fixed retirement age of 65. Appointment was by the CPD in a secret electronic ballot (by at least half of its deputies) of candidates nominated by the Supreme Soviet Chair, following recommendations from parties and factions in the Legislature. A total of 13 candidates were successfully elected in late October 1991. This created the required two-thirds quorum and no further candidates were considered. The newly sworn-in judges elected their Court Chair by secret ballot: Valerii Zor’kin, previously professor at the USSR Ministry of Internal Affairs’ Higher School of Law. Under his guidance, the Court became an important player on the political and legal stage.48 Zor’kin unfortunately became embroiled in the 1993 power struggle between President and Legislature (see Chapter 3, section II).49 Yel’tsin viewed Zor’kin’s mediation attempts as favouring his enemies and was minded to abolish the CC in retaliation. He proposed transferring constitutional oversight to the Supreme Court, but was persuaded that this was unwise. However, he peremptorily suspended the Court in September 1993, justifying his unlawful act by quoting Zor’kin’s own declaration that the amended 1978 RSFSR Constitution was too inconsistent to apply. Yel’tsin said that the Court should cease sitting until there was a new Constitution, and meanwhile the judges should draft a new Constitutional Court Law. However, he determined to confine the CC’s role by specifying its powers in the new Constitution, forming the basis for the FCL ‘On the Constitutional Court of the RF (CCRF)’ that was subsequently approved in July 1994. 46 Thanks to Kirill Koroteev for this information. 47 See Iu Feofanov, ‘The Establishment of the Constitutional Court in Russia and the Communist Party Case’ (1993) 19 Review of Central and East European Law 623; J Henderson, ‘The Russian Constitutional Court and the Communist Party Case: Watershed or Whitewash?’ (2007) 40 Communist and Post-Communist Studies 1. 48 R Sharlet, ‘Chief Justice as Judicial Politician’ (1993) 2 East European Constitutional Review 32. 49 See Burnham and Trochev, above n 44 at 386ff.

Russia’s Courts 183 We now examine the Court’s powers, as specified in Article 125 of the Constitution. The 2020 amendments altered some features; changes to the FCL on the CCRF were amongst the first follow-up reforms implemented.50 The jurisdiction of the CCRF is listed under six main headings, as discussed below. i. Abstract Review (Article 125(2)) Abstract review checks conformity to the Constitution of various types of legislation, subdivided into four groups: (a) federal laws, since 2020 Federal Constitutional Laws, and legislation adopted by the President, the Federation Council (FC), Duma and Government; (b) federal subjects’ constitutions, charters, laws and other legislation on issues within either federal or joint federal-subject jurisdiction; (c) treaties between the federal Government and federal subjects’ governments, and treaties between those governments; and (d) draft international treaties. Unlike the RSFSR CC, the CCRF cannot check international treaties in force. The list of those who can appeal to the CCRF for abstract review is also reduced compared to those who could appeal to the RSFSR CC – no longer the Procurator-General or a single Duma deputy or FC member, as happened, for example, in the countersuit in the Party case.51 Only the President, the FC, a group of one-fifth of its senators, the Duma, onefifth of its deputies, the Government, the Supreme Court and a federal subject’s legislature or executive can apply for abstract review.52 The CCRF itself had expanded its scope to include FCLs, which were not originally mentioned. Expansion to review regulations based on federal law exacerbated a dispute with the Supreme Court, which regarded this as an illegitimate trespass into its own jurisdiction. The disagreement lasted 15 years, before finally being resolved in 2013 in the CCRF’s favour.53 50 Amended on 9 November 2020. 51 J Henderson, ‘Making a Drama out of a Crisis: The Russian Constitutional Court and the Case of the Communist Party of the Soviet Union’ (2008) 19 King’s Law Journal 489. 52 Plus, before its abolition in 2014, the HCC. 53 See Henderson, above n 11 at 231; M Antonov, ‘Conservatism in Russia and Sovereignty in Human Rights’ 2014) 39 Review of Central and East European Law 1, 17, fn 58.

184 Courts and Judges ii. Resolution of Separation of Power Issues (Article 125(3)) In keeping with the initial motivation for establishing a CC, and an important area during its first phase of existence,54 the CCRF can resolve separation of power issues between federal agencies of State power, federal agencies and subject agencies, and between federal subjects’ highest agencies. A case may only be initiated by one of these, or the President, after he has tried conciliation. iii. Reference from a Specific Case (Article 125(4)) This is significant as it provides the only means for an individual to get CCRF consideration of their rights. The Court is asked to verify the constitutionality of legislation being applied or subject to application in their specific case.55 Such reference may be made by citizens, legal entities and municipalities (Article 96 of the FCL on the CCRF). The 2020 amendments added that, in accordance with federal law, Rights Commissioners (federal or subject-level Ombudsmen), all-Russian organisations or other agencies and officials may (with consent) represent the interests of citizens or legal entities. However, all domestic remedies must have been exhausted first. The court hearing the case can also make a reference. This became a source of dispute between the CCRF and the Supreme Court, as neither the Constitution nor the FCL on the CCRF made clear whether court reference was mandatory or discretionary. Unsurprisingly, although unfortunately, the two leading Courts took contrary views as part of their disagreement mentioned above.56 Eventually the Supreme Court conceded in a Plenum resolution in April 2013, amending one from October 1995.57 Thus, only the CCRF can give a definitive, binding ruling on the constitutionality of legislation. So although the Constitution says it is directly applicable, since 2013, courts other than the CCRF are ‘prohibited from directly referring to the Constitution’, as Alexei Yelayev of the Russian Lawyers’ Union characterised the SC Plenum Resolution’s

54 H Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago, University of Chicago Press, 2000) 142 says over 40 per cent of its rulings in its first two years were on separation of powers issues. 55 The 2020 amendment specifies legislation of the types listed in art 125(2)(a) and (b). 56 See text to n 44. 57 Supreme Court Presidium Resolution [postanovlenie] No 9 of 16 April 2013.

Russia’s Courts 185 effect.58 Despite CCRF Chair Zor’kin’s praise for the citizens’ right of appeal to the CCRF,59 he suggested to its judges in mid-December 2019 that ordinary citizens should have to exhaust all domestic appeals before approaching the CCRF.60 This requirement was included in the 2020 reforms. Note that the CCRF only considers the constitutionality of the legislation being applied in the case, not the constitutionality of any judgment. iv. Authoritative Interpretation of the Constitution (Article 125(5)) The CCRF in plenary session may give an authoritative interpretation of the Constitution’s text. Only a closed list of agencies can request this: the President, the FC, the Duma, the Government and the federal subjects’ legislatures. However, authoritative interpretation can also arise following referral from a specific case under the previously discussed power. Occasionally following such referral, the CCRF decides there is no disputed meaning, so no arguments need be heard; the Court declares the constitutional meaning in an opredelenie (ruling or determination). Contested disputes lead to a judgment (decree; postanovlenie). In November 1994 the then new Chairman Vladimir Tumanov emphasised the importance of authoritative interpretation, believing it would free the Court from a slavish adherence to the Constitution’s literal words, which had been a problem for the previous RSFSR CC applying the much-amended and internally inconsistent RSFSR Constitution. Valerii Zor’kin (RSFSR CC Chair from November 1991 to October 1993 and February 2003 to date) also highlights the CCRF’s interpretative role in bringing out the Constitution’s ‘living voice’ from its words. This is a recurrent theme in his extrajudicial discourses. He champions the Court’s authoritative interpretations as a mechanism to adapt the Constitution to fit his vision of Russia’s ‘constitutional identity’, for example, in a well-publicised opinion piece in Rossiiskaia Gazeta in October 2018: ‘The Letter and Spirit of the Constitution.’61 He emphasised the CCRF’s role in expounding the ‘deep legal meaning’ of the constitutional text so as to ‘reveal its relevance in the context of modern 58 A Yelayev, ‘Russian Constitution: Can’t Be Mentioned’ Interfax Russia & CIS Business Law Weekly, 11 April 2013. 59 ‘Citizens’ Right to Go Directly to Constitutional Court is Plus for Russia – Zorkin’ Interfax Russia & CIS General Newswire, 12 December 2019. 60 E Trifonova, ‘Zorkin Redefines Constitution’ Nezavisimaya Gazeta, 17 December 2019. 61 V Zorkin, ‘Letter and Spirit of Constitution’ Rossiiskaia Gazeta, 10 October 2018.

186 Courts and Judges social and legal realities’ – in other words, to form a ‘national doctrine of social rights’ which would better suit Russia’s ‘constitutional identity’ (see further Chapter 8, section III). The 2020 amendments add a new three-part paragraph to Article 125(5). Article 125(51)(a) gives the President the right to send draft law (a constitutional amendment, FCL or federal law) to the CCRF for verification of its constitutionality. In the context of a compliant CCRF, this expands the President’s control over legislation beyond his power to veto federal law. Article 125(51)(b) states the CCRF’s power to settle, in a procedure established by a FCL, the question of the possibility (vozmozhnost’) of executing decisions of interstate agencies, adopted on the basis of international treaties, depending on whether they contradict the Russian Constitution, and also the possibility of executing a decision of a foreign or international (or interstate) court or foreign or international arbitration court if the decision contradicts the fundamental principles of public order in Russia. This is not all completely new. A significant amendment in December 2015 to the FCL on the CCRF gave the Court power to decide on the possibility of implementing in Russia any decision of an international agency – for example, the European Court of Human Rights (ECtHR).62 The CCRF could consider if such a decision breached the Russian Constitution, consequentially making implementation impossible. Commentators suggested this dramatic but ill-defined expansion of CCRF power seemed inconsistent with Article 15(4) of the Constitution, the 1998 federal law ratifying the European Convention on Human Rights and Fundamental Freedoms (ECHR) as well as a binding Supreme Court Plenum Ruling of June 2013 on applying the ECHR.63 The CCRF was very cautious in its use of its new power. Indeed, Kirill Koroteev suggested that its main purpose was for Russia to avoid paying YUKOS shareholders compensation, following an ECtHR ruling.64 Now that 62 For a fuller discussion, see J Henderson, ‘Russia’s Recent Dealings with the Council of Europe and European Court of Human Rights’ (2018) 24(3) European Public Law 393. 63 Noted by B Bowring, ‘Russian Cases in the ECtHR and the Question of Implementation’ in L Mälksoo and W Benedek (eds), Russia and the European Court of Human Rights: The Strasbourg Effect (Cambridge, Cambridge University Press, 2017) 188, 190. 64 Personal communication to the author: ‘There has been no other cases of application of the 2015 amendments to the 1994 FCL on the Constitutional Court for the two years that followed the YUKOS judgment, leaving open the question as to whether or not the whole enterprise that started with the judgment of 14 July 2015 had been orchestrated in order to not pay the awards made to the YUKOS shareholders.’ On the YUKOS case, see Henderson, above n 62.

Russia’s Courts 187 power has been constitutionalised and expanded (see also Chapter 8, section IV.D). New Article 125(51)(c) sets out the CCRF’s power to respond to a presidential query over the constitutionality of federal subjects’ draft laws, before they are promulgated. This is completely new and is not listed in the Constitution’s chapter on the President. Presidential power to submit draft federal laws to the CCRF is in the chapter on the Federal Assembly (Article 107; Article 108 gives the equivalent for draft FCLs). Article 125(6) states the effects of a declaration of unconstitutionality: legislation or individual provisions lose force, draft international treaties do not enter into force and (a new feature introduced in 2020) if the CCRF declares a particular legal interpretation unconstitutional, then it may not be used. The CCRF may also instruct the appropriate agency to produce revised legislation. It has been a matter of increasingly acrimonious comment by successive CC Chairmen that such instructions are frequently ignored. The FCL on the CCRF was amended in December 2001, imposing time limits on recalcitrant agencies. The maximum is six months (for a federal subject’s legislature, with non-compliance risking dissolution) and the minimum is two months (for the President and for Governors who risk dismissal for non-compliance). Alexei Trochev suggests that these amendments undermined the Court’s power by implying its rulings were not otherwise self-enforcing.65 One example of CCRF instructions being bypassed is the governmental failure to fulfil the requirements allowing the small number of elderly victims of Stalin-era repression their promised return to their families’ original abode.66 v. Presidential Impeachment Proceedings (Article 125(7)) As was discussed earlier (see Chapter 4, section V.C), the process for removing a President requires the CCRF to give an opinion that the correct accusation procedure has been followed. So far, the Court has not been asked to do this. The 2020 amendments add a similar role for stripping immunity from an ex-President.

65 A Trochev, ‘Implementing Russian Constitutional Court Decisions’ (2002) 11 East European Constitutional Review 95. 66 M Belykh and J Henderson, ‘Addressing Historic Injustice in Russia: The Case of Child Victims of Political Repression’ (2021) 9(2) State Crime Journal 196.

188 Courts and Judges vi. ‘Other Powers’ The Constitution gives the CCRF legislative initiative in Article 104(1). It may propose draft legislation on matters within its jurisdiction; effectively, its own operation and procedure. This could create separation of powers anomalies if it drafted legislation which it were then asked to review. Some Russian academics advocate the removal of this power, although others feel that any risk is outweighed by the benefit of the Court bringing its expertise to relevant legislation. (The Supreme Court has an equivalent power.) The 2020 constitutional reform adds new paragraph (8) to Article 125, explicitly allowing other powers provided by a FCL. FCLs have already done this: ‘On the Referendum’; ‘On the Procedure for Accepting a New Subject into the Russian Federation’; and ‘On the Commissioner for Human Rights’. All give rights of appeal to the CCRF; in the case of the first two, by the President; in the last, by the Commissioner. Article 35(6) of the Federal Law on the Procuracy gives the Procurator-General the power to appeal to the CCRF on behalf of an individual over the application of law in a specific case. He is now also empowered to raise the impossibility of applying decisions of an interstate agency such as the ECtHR. The FCL on the CCRF gives the Court a free hand in legal interpretation. Under Article 74(2), the Court should ‘evaluate both the literal meaning … and the meaning given to it by official or other interpretation or law-application practice that has developed’. Thus, it can use any mix of interpretive approaches – eg, grammatical (philological, lingual, textual), systematic, logical, historico-political and teleological.67 The CCRF has broadened its powers though expansive interpretation. For example, the right to appeal the constitutionality of law applied in a specific case was given to ‘citizens’. However, based on fairness and equality, the Court interpreted this to include foreign citizens, stateless persons, citizens’ associations, political parties, local municipalities, and both State-owned and commercial organisations. The Court has also taken a broad view of what is meant by ‘law’ (zakon) being applied in a specific case. Normally zakon is primary legislation, passed by federal or subject-level legislatures. But the CCRF extended the reach of its review

67 See

Lomovtseva and Henderson, above n 35 at 63.

Russia’s Courts 189 to other subject-level legislation and Duma decrees.68 This is despite views expressed at the Constitutional Convention in the summer of 1993 that challenge should be limited to questions of ‘law’ (zakon), otherwise ‘the Constitutional Court would have to review every “sneeze”’.69 The 1994 FCL on the CCRF envisaged 19 judges. The 13 existing judges stayed, but six more were needed before the Court could resume because the FCL demanded the full quota vote for their Chair (Zor’kin had stood down as Chair just before Yel’tsin suspended the Court in October 1993). Under the 1994 FCL, new judges would serve a onceonly 12-year term, with a minimum age of 40 and retirement at 70. This subsequently changed, initially to a 15-year term and then to unlimited tenure until the age of 70. The tortuous process by which the tenure length for all CC judges was harmonised by 2005 was extremely politicised and deliberately timed to extend tenure for Marat Baglai (Chair 1997–2003), whilst maintaining retirement at 65 for judges originally in the RSFSR CC such as Viktor Luchin, ‘one of the fiercest critics of presidential power’70 and the indomitable Tamara Morshchakova. Alexei Trochev describes these machinations in detail.71 An amendment in 2010 to the FCL on the CCRF exempts the Chair from any maximum age and extends the Deputy Chair retirement age to 76. The Supreme Court Chair has equivalent dispensation. Thus CCRF Chair Zor’kin, born in February 1943 (and Viacheslav Lebed, Supreme Court Chair, born August 1943) keep their posts whilst they maintain the President’s confidence. The 2010 amendment also reformed the procedure for instituting the Chair, as from 2012. Rather than the judges electing the Chair from amongst themselves by secret ballot, he and his two Deputies are appointed for a renewable six years by a majority FC vote, following presidential nomination. The 2020 amendments now allow a Chair to be appointed who is not currently a CCRF judge. The removal of the judges’ power to elect their own Chair is one of a number of structural changes that undermine the Court’s independence (see below). 68 A Trochev, Judging Russia: Constitutional Court in Russian Politics, 1990–2006 (Cambridge, Cambridge University Press, 2008) 159 says that there was a change from the Tumanov court to the Baglai court in relation to this; the Court’s jurisdiction was expanded by the latter. 69 Burnham and Trochev, above n 44 at 404, quoting Constitutional Court Judge T Morshchakova. 70 ibid 69. 71 A Trochev, ‘Tinkering with Tenure: The Russian Constitutional Court in a Comparative Perspective’, in F Feldbrugge (ed), Russia, Europe, and the Rule of Law (Leiden, Martinus Nijhoff Publishers, 2007) 47.

190 Courts and Judges CCRF judges are also appointed by a majority FC vote, following presidential nomination. Since mid-2010, no new appointments were made to replace retirees, so by late 2020, there were only 12. The 2020 amendment changed Article 125(1) to say that the Court would have 11 judges (including the Chair and Deputy), with a minimum of eight and a quorum of six. The smaller size will be reached through retirement. Under the 1994 FCL, the CCRF could sit in two chambers. In 2009 this was changed; the Court reverted to sitting only in plenary session, like the RSFSR CC. This makes the formation of precedential ‘legal positions’ easier as they are created – or indeed overturned – at a plenary session (see Chapter 6, section IV on the Court in 2005 changing its 1996 ‘legal position’ on regional governors’ election). Individual judges have the right to give a ‘special opinion’, which may support the majority or dissent. Publication of these has been controversial in a country without a tradition of judge-made law.72 Nevertheless, it was an unwelcome surprise when the FCL on the CCRF was amended in November 2020 disallowing publication, or indeed any publicity, of special opinions. Any such opinion is retained on the Court file, but is no longer available for academic and practitioner perusal and comment, thus eradicating one strand in the development of a dynamic field of constitutional law. In the past, certain judges had been serial dissenters. One such, Anatolii Kononov resigned in 2009 following criticism of Judge Vladimir Yaroslavtsev for interview comments published in the Spanish newspaper El Pais in an article entitled ‘In Russia They Send in the Security Forces, as in Soviet Times’.73 Chairman Zor’kin denied any connection between criticism of the two judges and their many dissents. C. Non-federal Courts The 1996 FCL on the Judicial System allowed two types of non-federal court. These were federal subjects’ constitutional or charter courts, and

72 See A Vereshchagin, Judicial Lawmaking in Post-Soviet Russia (Abingdon, RoutledgeCavendish, 2007) 161; D Barry, ‘Decision-Making and Dissent in the Russian Federation Constitutional Court’ in R Clark, F Feldbrugge and S Pomorski (eds), International and National Law in Russia and Eastern Europe (The Hague, Kluwer, 2001) 1; A Trochev, ‘Russia’s Constitutional Spirit: Judge-Made Principles in Theory and Practice’ in G Smith and R Sharlet (eds), Russia and its Constitution: Promise and Political Reality (Leiden, Brill, 2008) 53. 73 J Henderson, ‘Tenure and Discipline Developments in Russia’ (2011) 17(1) European Public Law 1, 2. See also below, text to n 134.

Russia’s Courts 191 justices of the peace (mirovye sud’i). These are established (and eliminated) by federal subjects’ laws. Some overarching federal principles apply – for example, the ‘Law on the Status of Judges’ protects against arbitrary dismissal. Although all federal subjects have either a constitution (for republics) or a charter (all other subjects), there are shockingly few established courts to enforce them. In early 2020 only 15 out of 85 federal subjects, covering less than 20 per cent of the population, had an operative court.74 The reasons for this lack may have been both financial and political; regional executives and legislatures are reluctant to invest in an institution whose role frequently involved criticising them.75 The 2020 reforms have now removed regional choice. Constitutional and charter courts are abolished (by the beginning of 2023). Instead, there will be Constitutional Councils attached to regional legislatures; we await details. Justice of the Peace Courts are much more popular.76 They are an interesting re-introduction of courts that existed in late imperial Russia, but were abolished by the Bolsheviks. A federal law of 17 December 1998 set the new framework to be fleshed out by federal subjects. Judges are appointed by their regional legislature for an initial term of up to five years (with possible renewal) up to retirement at the age of 70. Candidates must have a higher legal education and at least five years’ legal experience. The federal budget pays the salary while the regional budget provides premises and infrastructural support. Although not federal courts, justices of the peace form the lowest tier of the federal court hierarchy, relieving overworked federal courts of many low-level civil, administrative and criminal cases. Thus, for example: ‘In 2018 the Justice of the Peace Courts handled 47.9 per cent of first instance criminal cases and 80.03 per cent of first instance civil cases.’77 They hear all administrative offences that require a court hearing.78 74 Based on the 2010 Russian Census. 75 See J Henderson and ML Belykh, ‘Regional Constitutional Justice in the Context of Russia’s Aspiration to be a Rule of Law State’ (2018) 43 Review of Central and East European Law 251. 351; A Trochev, ‘Less Democracy, More Courts: A Puzzle of Judicial Review in Russia’ (2004) 38 Law and Society Review 513. 76 See V Andrianova, ‘The Everyday Experiences of Russian Citizens in Justice of the Peace Courts’ in M Kurkchiyan and A Kubal (eds), A Sociology of Justice in Russia (Cambridge, Cambridge University Press, 2018) 68; K Hendley, Everyday Law in Russia (Ithaca, Cornell University Press, 2017); K Hendley, ‘The Unsung Heroes of the Russian Judicial System: The Justice-of-the-Peace Courts’ (2013) 5(3) Journal of Eurasian Law 337. 77 Maggs, Schwartz and Burnham, above n 2 at 101–02. 78 O Schwartz, ‘The Creation of an Independent Judiciary and the Changing Nature of Courts and the Courtroom’ in WA Pridemore (ed), Ruling Russia: Law Crime and Justice in a Changing Society (Lanham, MD, Rowman & Littlefield, 2005) 59, 70.

192 Courts and Judges Justices of the peace have been generally welcomed. They hear minor cases comparatively cheaply, and users report favourably on their accessibility and comparative informality. III. JUDICIAL INDEPENDENCE

Concern about a lack of judicial independence is a recurrent theme in Russia. Both the 1936 and 1977 USSR Constitutions asserted judicial independence.79 However, courts were explicitly part of the Soviet State machinery, and judges were expected to assist development towards the communist utopia. Judges were elected by secret ballot, but, as with all Soviet elections, the number of candidates matched the number of positions. The Communist Party of the Soviet Union (‘the Party’) positively vetted candidates to ensure the requisite ‘social consciousness’. It was commonly believed that in a politically sensitive case, the judge would receive Party instructions by phone, giving rise to the expression ‘telephone law’ (telefonnoe pravo). Legal academic Valerii Savitskii explained in 1996: In the USSR, there never was a separate and independent judicial power. All the courts, the procuracy and the organs of investigation did in the name of the state was done on direct instruction of assorted party committees and individual members of their staff … As a result, not a single constitutional provision proclaiming the independence of the courts was applied in practice. The norms of the Constitution merely served as a fig leaf covering the spineless obsequiousness and grovelling obedience of the so-called judicial power, which from day one, was under the thumb of the party apparatus.80

Despite this, if a case had no political dimension, Soviet justice may not have been markedly worse than that meted out elsewhere. Perestroika reformers strove to create the framework for an independent judiciary giving impartial adjudication, vital for a market economy. The groundbreaking 1988 19th All-Union Party Conference Resolution on Legal Reform acknowledged that judicial independence needed strengthening. USSR judges were required to have higher legal education, their renewable five-year terms of office were doubled, and contempt of court became punishable.81 79 Articles 112 and 155 respectively. 80 V Savitskii, ‘Judicial Power in Russia: First Steps’ (1996) 22 Review of Central and East European Law 417. 81 See J Henderson, ‘The Law of the USSR on the Status of Judges in the USSR’ (1990) 16(3) Review of Socialist Law 305.

Judicial Independence 193 In December 1992 the now independent Russia amended the 1978 RSFSR Constitution, moving from renewable periodic election of judges to appointment for an unspecified term until the set retirement age.82 In April 1993 the 1992 Russian Law on the Status of Judges was appropriately amended, giving judges tenure until the age of 70. An initial probationary period of five years, reduced to three in December 2001, was abolished in July 2009. This reduced one significant pathway for inappropriate influence by the Court Chair, who could manipulate the panel assessing suitability at the end of a judge’s probation. Articles 119–22 of the 1993 Constitution set out criteria and guarantees for judges. Judges must be at least 25 years old, with a higher legal education and five years’ legal work experience. Restrictions were added in 2020 as for other public office holders: no current foreign citizenship or right to reside abroad, and no money or valuables located abroad. Article 120(1) specifies that: ‘Judges should be independent and subordinate only to the Constitution RF and to federal law.’ The second clause has been used to justify judicial reluctance to accept binding precedent.83 Nevertheless, respecting previous case law is now part of the Russian legal system, especially in the form of the ‘legal positions’ of the Constitutional Court, and Supreme Court ‘explanations’.84 Article 121 states that judges are irremovable. Tenure length is not specified. Dismissal or suspension must be under procedure and on grounds established by federal law. Under Article 122, judges are inviolable and immune from criminal prosecution except following procedure determined by federal law. In 2001 President Putin instigated judicial reform, including consideration, by a team headed by German Gref, of whether judges had become too independent and thus unaccountable. Gref produced a plan which threatened unlimited judicial tenure.85 The judges fought back, and in 2001 Dmitrii Kozak, who took over juridical reforms, brokered a deal which retained unlimited tenure, but increased accountability by expanding the membership of the Judicial Qualifications Collegia to include

82 See J Henderson, ‘Amendments to the 1992 Russian Law on the Status of Judges’ (1996) 2(4) European Public Law 510. 83 See, eg, W Pomeranz and M Gutbrot, ‘The Push for Precedent in Russia’s Judicial System’ (2002) 37 Review of Central and East European Law 1; K Koroteev, ‘Russian Courts Capable of Creating Precedents? Overcoming Inconsistency in Case Law’ (2013) 38 Review of Central and East European Law 341. 84 See above, text to n 10. 85 See P Solomon, ‘Putin’s Judicial Reform: Making Judges Accountable as Well as Independent’ (2002) 11 East European Constitutional Review 117 at 119.

194 Courts and Judges one-third non-judges, limiting the Court Chairs’ terms of office, and simplifying the process for the removal of judicial immunity. In November 2009, at President Dmitrii Medvedev’s instigation, legislation was amended to create a new disciplinary body to consider appeals by judges against decisions of the Judicial Qualifications Collegia to strip them of immunity from criminal prosecution. The law was controversial and its commencement was delayed until 1 March 2010. On 1 January 2013 a new system of ranks (classes) of judicial qualification came into force overseen by the Highest Judicial Qualification Collegium (HJQC). The 2014 Supreme Court reform includes a judicial disciplinary chamber to hear appeals against HJQC findings. Article 128 outlines judicial appointment by the President of all judges except those of the highest courts, where he nominates but the FC appoints. The subsequent 1996 FCL on the Judicial System added a wealth of detail, such as judicial examinations and the requirement for approval by a Judicial Qualifications Collegia. In keeping with Yel’tsin’s encouragement of regional autonomy in return for political support, the 1996 FCL required subject-level legislatures to approve federal judges who would serve in their area. This right was removed in 2001, when Putin increased centralisation. The Supreme Court’s Judicial Department took over court administration from the Ministry of Justice in 1998, a reform undertaken for Russia’s joining the Council of Europe in 1996. The Judicial Department organises the RF Council of Judges (which meets at least twice a year, with more frequent meetings of its Presidium) and the HJQC.86 Both are important for the professionalisation of the Russian Judiciary. The first gives an organised forum for judges to express their opinions and is accountable to the annual All-Russian Congress of Judges, while the HJQC heads the mechanism for judicial self-regulation, overseeing the suitability of candidates for office, promotion and removal of immunity. However, judicial appointment is not completely transparent or independent. The HJQC’s decisions on suitability are not dispositive. HJQC-approved candidates are also subject to an executive filter. They are ‘submitted for consideration to the Human Resources Department of the Presidential Administration before the necessary Decree of Appointment can be prepared and submitted to the President for signing’.87 This HR Department is assisted by a special Commission on 86 The Federal Law on Judges’ Community Agencies of 14 March 2002 as amended to 2012 in Butler, above n 5 at 395. 87 Maggs, Schwartz and Burnham, above n 2 at 273.

Judicial Independence 195 Preliminary Consideration of the Candidates to the Positions of Federal Judges, initially established by presidential decree in 1994. A further decree of 2008 (as amended through June 2014) establishes the current Commission’s composition: 20 people with ‘seriously strengthened’ Presidential Administration representation.88 The ‘consideration’ procedure is confidential and the candidate not present. The Commission makes recommendations to the President, who has unlimited discretion on the final decision. No reasons are given for rejection. According to Maggs, Schwartz and Burnham: ‘After President Putin came to power the number of rejected candidates started to grow.’89 Former Deputy Minister of Finance (amongst other things) Sergey Aleksashenko describes how the Russian Federal Security Service (FSB) is also involved in judicial selection and promotion: ‘it became the new norm’ for the FSB to give informal approval before appointment.90 Aleksashenko cites the International Commission of Jurists 2014 report on ‘Procedures for Selection of Judges in the Russian Federation’, quoting a 2003 ‘interview of [then] Justice Valentin Kuznetsov, Justice of the Supreme Court, Former Chair of the High Qualification Collegium of Judges’,91 which was subsequently removed from the Supreme Court website.92 FSB oversight remains ongoing. This author was informed in early 2020 by a confidential credible source that although not established by law, it is policy that any Russian judge obtains FSB approval before travelling abroad: ‘if they did not, they would find themselves not a judge for very much longer’.93 The 2020 constitutional reforms gave the President power to submit to the FC a recommendation to dismiss from office Constitutional or Supreme Court judges (including the Chairs and Deputy Chairs), and judges of cassational and appellate courts, although only for cause as defined in Federal Constitutional Law.94 The constitutional provision mentions ‘commission of an act disgracing the honour and dignity of a judge’, which, with a suitably submissive FC, is sufficiently vague to

88 ibid. 89 ibid at 274. 90 S Aleksashenko, Putin’s Counterrevolution (Washington DC, Brookings Institute Press, 2018) 116. 91 International Commission of Jurists, ‘Appointing the Judges: Procedure for Selection of Judges in the Russian Federation’ (2014) 41 at n 304. 92 Aleksashenko, above n 90 at 143, fn 22. 93 Private conversation with the author, early February 2020. 94 Constitution, art 83(f3) as amended.

196 Courts and Judges allow ‘awkward’ judges to be dismissed. The President now also appoints the Chair and Deputy Chair in domestic courts.95 Creation of the new Supreme Court of the Russian Federation (SCRF) in 2014 raised a new spectre impacting judicial independence: that a court could be abolished to deprive its judges of their Article 121 guaranteed irremovability. Because the Supreme Court and the HCC had ceased to exist, their judges’ powers terminated without any of the normal processes. They were thus ‘lawfully’ deprived of their existing posts and if they wished to continue in judicial office, they needed to re-apply. As noted above,96 only a handful of former HCC judges joined the new SCRF’s economic chamber. Further, the normal HJQC was bypassed and a bespoke Special Qualification Commission was established to select the new judges. No justification for this tailor-made procedure was forthcoming.97 Nor were the appointment criteria clear.98 Sergey Aleksashenko asserts: Nobody explained why such an entity was needed, but, as became evident later, it allowed the Kremlin to veto the appointment of any candidate proposed to the Special Qualification Board [Commission]. In other words, the actual purpose of the reform was to test candidates for loyalty.99

The International Commission of Jurists (ICJ) report cited arbitrary reasons for non-recommendation, such as relatives’ employment or the fact that the candidates ‘had made “frequent” trips abroad’.100 Refusal to appoint Tatiana Andreeva, a former Deputy Chair of the HCC, was reportedly linked to her public opposition to the Supreme Court reform.101 The ICJ concluded that ‘not all of the bodies involved in appointments and promotions are institutionally independent, even in law’.102 It named the Presidential Commission as a particularly egregious example. Executive elimination of ‘awkward’ judges through manipulation of the court structure also occurred in Cheliabinsk, where the Regional Charter Court was peremptorily abolished in 2014 by the then new

95 Article 83(f) as amended. 96 See the text to n 24 above. 97 International Commission of Jurists, above n 91 at 49. 98 ibid 55. 99 Aleksashenko, above n 90 at 137. 100 International Commission of Jurists, above n 91 at 55. 101 ‘SKKS otkazaka zampredu VAS – postoiannomu kritiku sudebnoi reform [SCQJ Turns down Deputy of the HAC, a Constant Critic of the Reform]’ pravo.ru, 22 Мay 2014. 102 International Commission of Jurists, above n 91 at 59.

Judicial Independence 197 Acting Governor Boris Dubrovskii.103 Dubrovskii’s action was clearly ultra vires, but remained unremedied. Systemic issues also impact judicial independence. Many Russian judges are recruited from the ranks of court clerks, the Procuracy or police, and are therefore used to hierarchical discipline. Existing judges particularly welcome former court clerks who intimately know the system and are primed to cope with the immense workload.104 There are exceptions. The redoubtable Judge Olga Kudeshkina (see below) was previously an advocate. Nevertheless, there is an informal rule that judges and advocates should remain separate, even to the extent that a judge should not have an advocate in their family. Both Kudeshkina and the 2009 PACE Report105 call for a wider range of candidates for judicial office. Given current preferences, however, this is unlikely. A combination of a heavy workload and Russian legal culture (see Chapter 1) fosters a strong emphasis on bureaucratic processes and documentary evidence, with an implicit bias to accept such evidence, without considering the context within which it might have been obtained. Agnieszka Kubal characterises this (in relation to immigration and refugee law) as a ‘culture of materiality’, with the ‘the centrality of the paper and the written formal documents’.106 Consequentially, judges ‘do not question or challenge the quality of the formal evidence produced before them and generally trust the legality of the previous decisions’.107 This passivity allows judges to avoid awkward conflicts with State officials. Particularly during the economic crisis in the late 1990s, courts faced serious funding shortages. Federal courts should be funded through the federal budget, but in practice some district courts could receive ‘sponsorship’ from local authorities and even local businessman who would expect a return of favours. In July 1998 the Supreme Court successfully petitioned the Constitutional Court over unconstitutional budget cuts; a 1999 Federal Law on Court Financing established a more secure footing.

103 See Henderson and Belykh, above n 75 at 369. 104 V Volkov and A Dzmitryieva, ‘Recruitment Patterns, Gender, and Professional Subcultures of the Judiciary in Russia’ (2015) 22(2) International Journal of the Legal Profession 166, 174ff. 105 Parliamentary Assembly of the Council of Europe Committee on Legal Affairs and Human Rights Report ‘Allegations of Politically-Motivated Abuses of the Criminal Justice System in Council of Europe Member States’, Document 11993 of 7 August 2009. 106 A Kubal, Immigration and Refugee Law in Russia: Socio-Legal Perspectives (Cambridge, Cambridge University Press, 2019) 78. 107 ibid 101.

198 Courts and Judges However, ‘the extrabudgetary financing [of judicial salaries] was a Trojan horse that ultimately posed a threat to the independence of the judiciary’.108 Fund distribution is linked to performance criteria, with the chosen targets being formal, for example, case throughput, with reversals on appeal taken negatively. Kathryn Hendley in her meticulous observations of the practical reality of Russian courts notes the judges’ understandable obsession with caseload management, including the avoidance of being overturned on appeal.109 This desire to avoid adverse appeal has encouraged ‘informal’ suggestions to first instance judges from higher courts via their Court Chair. When a Court Chair’s ‘suggestions’ are not followed, there can be repercussions, with welldocumented instances of judges having disciplinary action framed against them. Court Chairs are notoriously powerful, having an important role in promotion and disciplinary decisions.110 In one notorious case in May 2004, whistleblower Judge Olga Kudeshkina was dismissed after refusing to bow to pressure to convict a senior procurator who had been investigating the Three Whales smuggling scam implicating government officials. Further, she would not condone the falsification of the court record suggested by then Moscow City Court Chair Judge Olga Yegorova to conceal improper prosecutorial behaviour. Kudeshkina’s appeal against dismissal was allocated to a specific judge by Judge Yegorova, who was an interested party. Kudeshkina’s objections were ignored. Eventually, having failed to get redress from the Judicial Complaints Commission, in July 2005 she appealed to the ECtHR. The Chamber of the Court held in her favour and awarded her €10,000. Kudeshkina’s case was not unique.111 In November 2006 the then HCC Chair Ivanov admitted that the tax authorities had pressurised judges after too many cases were decided against them.112 In May 2008, the HCC First Deputy Chair Elena Valiavina gave evidence in a defamation case brought by Valerii Boyev, a Presidential Administration official in charge of recommending judicial awards and promotion, against an investigative reporter who alleged

108 ibid 114. 109 See, eg, Hendley, Everyday Law, above n 76 at 146ff and 170. 110 International Bar Association, ‘Striving for Judicial Independence: A Report into Proposed Changes to the Judiciary in Russia’. 111 See particularly Parliamentary Assembly Report, above n 105 at s 2.5. 112 Olga Pleshanova, ‘Vyshaia arbitrazhnaia sut’. Glava VAS priznal fakt davleniia [Supreme Arbitrazh Essence: The Head of HAC Admitted the Fact of Pressure]’ Kommersant’, 29 November 2006 (thanks to Bill Bowring for the reference).

Judicial Independence 199 that Boyev had attempted to influence judges. Judge Valiavina testified that this had happened to her. Three other judges were also prepared to testify, but Boyev dropped the defamation case after Valiavina’s damning testimony.113 In 2008 the issue of fair trial in Russia was at the heart of an English Commercial Court case, Cherney v Deripaska.114 Cherney applied to pursue his claim in London rather than the events’ venue, Russia. On the basis of Bill Bowring’s expert evidence, Mr Justice Christopher Clarke held that there would be ‘a significant risk of improper government interference if Mr Cherney would bring the present claims in Russia’ (at [248]). This result was upheld by the Court of Appeal.115 There is clear evidence of pressure in ‘prosecutions to order’ (zakaznye dela). The case against Mikhail Khodorkovsky and other executives of the YUKOS oil company brought another expression into the political lexicon, named after the court where key procedural issues were (wrongly) decided: ‘Basmanny justice’ (Basmannoe pravosudie), meaning ‘justice serving the needs of authorities or powerful persons’.116 Khodorkovsky was sentenced in May 2005 to nine years’ deprivation of freedom for fraud and tax evasion. In 2013 the ECtHR ruled that the trial was unfair, although it found no direct evidence of political motivation.117 A claim in the Moscow Arbitrazh Court against YUKOS for nonpayment of value-added tax in 2001 led to consideration by the Constitutional Court of the statute of limitations in relation to tax offences. Legislation sets this as three years, but the Court controversially ruled in July 2005 that time limits do not extend to deliberate tax evasion.118 Both Judges Yaroslavtsev and Kononov gave strong dissenting opinions.119 (Yaroslavtsev also strongly dissented in 2017 when the Constitutional Court supported the Ministry of Justice’s refusal to

113 Maggs, Schwartz and Burnham, above n 2 at 198, quoting Kommersant, 13 May 2008. 114 Cherney v Deripaska [2008] EWHC 1530 (Comm). 115 Cherney v Deripaska [2009] EWCA Civ 849. 116 See R Sakwa, The Quality of Freedom: Khodorkovsky, Putin and the Yukos Affair (Oxford, Oxford University Press, 2009) 260. 117 See, eg, N Buckley, ‘Khodorkovsky Trial Unfair, Human Rights Court Finds’ Financial Times, 25 July 2013; Judgment in the ‘Case of Khodorkovskiy and Lebedev v Russia’ in (2013) 6(1&2) Journal of Eurasian Law 1 & 187 respectively. 118 JA Corwin, ‘Constitutional Court Buttresses Tax Police in Battles with Business?’ 9(74) I RFE/RL Newsline, 20 April 2005. 119 Decree of the CCRF No 9-P, 14 July 2005.

200 Courts and Judges implement the ECtHR’s directive to compensate former shareholders of YUKOS.120 By that stage, Kononov had retired.) On 30 June 2008 Khodorkovsky was subject to new charges.121 As Bowring notes, the 14-volume/3,500-page indictment accused him (and fellow director Lebedev) of embezzling all oil produced by three YUKOS production subsidiaries for six years, as well as embezzling shares held by a YUKOS subsidiary and laundering money acquired from the sale of the oil and shares: ‘According to the defense lawyers, the most obvious absurdity of the new charges is the concept that Khodorkovsky and Lebedev physically took possession of and embezzled approximately 350 million metric tons of oil. Where would they have put it?’122 Also, as one of Khodorkovsky’s lawyers observed: ‘if they are asserting that he stole all the oil his company produced, what did he go to prison for the first time if there was nothing to be taxed?’123 The second trial began in March 2009 and concluded with an inevitable conviction in December 2010. Originally the verdict was expected on 15 December, but without explanation was postponed until 27 December. On 16 December, during a television interview, then Prime Minister Putin opined about Khodorkovsky that ‘a thief should sit in jail’, earning Putin a rare rebuke from President Medvedev.124 More dramatically, a few weeks after Khamovnichesky Court Chair Viktor Danilkin had read out Khodorkovsky’s verdict and sentence, his assistant Natalia Vasilyeva gave an interview in which she asserted that Danilkin’s text was not his own, but had been provided by the Moscow City Court: ‘She said she knows the names of the judges who penned the text, but preferred to withhold them for now.’125 Vasilyeva subsequently resigned.126 Disquiet over aspects of the second trial prompted the Presidential Council on Development of Civil Society and Human Rights, with

120 ‘Minority Opinion of Constitutional Court Judge Yaroslavtsev on Admissibility of Justice Ministry’s Appeal Regarding Yukos Case Published in St Petersburg’ Interfax Russia & CIS General Newswire, 23 January 2017. 121 B Bowring, ‘The Second Trial of Mikhail Khodorkovsky’ in Russia’s Judicial System (2009) 59 Russian Analytical Digest 5. 122 ibid 5. 123 Karina Moskalenko cited in SL Loiko, ‘Russia Seeks 14-Year Sentence for Khodorkovsky’ Los Angeles Times, 23 October 2010. 124 ‘Business Law Report’ Interfax Russia & CIS Business Law Weekly, 12 January 2011. 125 A Odynova, ‘Assistant: Judge Was Pressured on Yukos’ Moscow Times, 15 February 2011. See also N Vasilyeva, ‘Broken Justice: How Khodorkovsky Judge was Pressured into Verdict’ Open Democracy, 14 February 2011. 126 ‘Whistle-Blower in Khodorkovsky Case Quits Job’ RFE/RL Report, 28 March 2011.

Judicial Independence 201 President Medvedev’s agreement, to conduct an expert examination.127 This led to further extraordinary events, meticulously documented by Jeffrey Khan, one of the non-Russian experts involved.128 In December 2011 the Council presented to Medvedev its conclusion that the second criminal trial was unfounded. It recommended a review to repeal the verdict because of fundamental errors and violations of law during the trial, and that a pardon would be appropriate.129 Shockingly, the Russian experts advising the Council, including former Constitutional Court judge Tamara Morshchakova, found themselves subject to harassment.130 Medvedev, in the last weeks of his presidency, ignored his own Council’s recommendations. The Khodorkovsky and YUKOS sagas have thrown up numerous issues pointing to inappropriate control of Russian court processes. Space constraints prevent further detailed consideration here. Despite the fact that the proceedings were extraordinary and atypical, they unfortunately show a lamentable lack of due process in cases with political ramifications. There have been particular issues with Constitutional Court independence. One example of ‘less-than-transparent efforts to put political pressure on the court and influence the final outcome of the case’131 relates to the CCRF’s 2005 transfer from Moscow to St Petersburg, against strongly voiced opposition by Court Chair Zor’kin. (Since 2008, the CCRF has occupied the extremely prestigious former Senate building, with its judges housed on an island in a specially-built gated community.) The Duma’s consideration of legislation establishing the financial settlement for the judges’ relocation was during the five weeks between legal argument and the Court’s ruling on whether regional Governors could be presidentially appointed rather than elected (see Chapter 6, section IV). CCRF judges received a substantial pay rise of 5.5 times the previous

127 ‘Russia’s Human Rights Council to Examine Khodorkovsky Verdict’ ITAR-TASS World Service, 3 February 2011. 128 J Kahn, ‘Report on the Verdict against MB Khodorkovsky and PB Lebedev’ (2011) 4(3) Journal of Eurasian Law 321. See also J Kahn, ‘The Law is a Causeway: Metaphor and the Rule of Law in Russia’, SMU Dedman School of Law Legal Studies Research Paper No 148. 129 ‘Presidential Human Rights Council Intends to Request Medvedev to Pardon Khodorkovsky’ Itar-Tass World Service Russian Press Review, 8 February 2011. 130 ‘Russian Rights Council Says Experts Working on Yukos Case Persecuted’ BBC International Reports (Former Soviet Union), 6 February 2013. See also JD Kahn, ‘In Putin’s Russia, Shooting the Messenger’ New York Times, 26 February 2013. 131 WE Pomeranz, ‘President Medvedev and the Contested Constitutional Underpinnings of Russia’s Power Vertical’ (2009) 17(2) Demokratizatsiya 179, 182.

202 Courts and Judges rate, which was affordable because of high world oil prices and more efficient tax collection.132 Concern about loss of judicial independence at the CCRF was heightened in early December 2009, when Anatolii Kononov, one of the longest-serving judges, resigned his tenure (which otherwise would have run until 2017) as from 1 January 2010. This followed a plenary meeting ruling by his fellow judges that his forthright criticisms of the Russian Judiciary were in breach of judicial ethics because they might ‘weaken the authority of the judicial branch’.133 The previous day, another judge, Vladimir Yaroslavtsev, stepped down as the CCRF’s representative on the Council of Judges, following CCRF Plenum criticism of his outspoken views in an interview in August 2009 to the Spanish newspaper El Pais.134 His comments included the following: ‘The security organs can do whatever they want and that the courts simply ratify their decision. The security bodies are the ones in charge and that is a return to the Soviet era.’135 Also, ‘during the presidency of Vladimir Putin and his successor Dmitrii Medvedev the judicial branch in Russia had been turned into an instrument to serve the executive branch’ and that the ‘centre for decision making is in the President’s staff’.136 Both judges had ‘filed blistering dissenting special opinions’ in the 2005 case on the presidential appointment of Governors.137 Commentators saw the high-profile recusal of these two independently minded judges as evidence of CCRF subservience.138 Court Chair

132 Aleksashenko, above n 90 at 142 fn 15. 133 A Pushkarskaia, ‘Konstitutsionnyi sud teriaet osobye mneniia [Constitutional Court Loses Dissenting Opinions]’ Kommersant’, 2 December 2009. See also A Osborn, ‘Judges Forced out after Accusing Kremlin of Hijacking Judiciary’ The Telegraph, 2 December 2009. 134 P Bonet, ‘En Rusia mandan los órganos de seguridad, como en la época soviética [In Russia They Send the Security Organs, as in the Soviet Era]’ El Pais, 31 August 2009. 135 ibid (author’s translation). 136 A Pushkarskaia, ‘Konstitutsionnyi sud teriaet osobye mheniia’ [Constitutional Court Loses Dissenting Opinions] Moscow Kommersant Online, 2 December 2009. See also A Osborn, ‘Judges Forced out after Accusing Kremlin of Hijacking Judiciary’ The Telegraph 2 December 2009 137 Pomeranz, above n 131 at 184. 138 See, eg, O Kozlovsky, ‘Clearing Constitutional Court of Too Independent Judges’ Oleg Kozlovsky’s English Weblog, olegkozlovsky.wordpress.com/2009/12/02/ clearing-constitutional-court-of-too-independent-judges.

Judicial Independence 203 Zor’kin denied that the disciplining resulted from too many special (dissenting) opinions by them.139 Organisational changes may also impact independence. As noted earlier, since 2012, CCRF judges no longer secretly elect the Court Chair from amongst themselves; instead, the Chair and two Deputies are appointed by the FC following presidential nomination (the same as for the Supreme Court Chair). In reality this gifts the President his choice of Chair, which is not ideal for a Court making politically sensitive rulings. The Chair’s period of office also increased from three to six years, with the 70-year maximum age limit eliminated. Furthermore, the Court no longer sits in two chambers. Instead, decisions are taken at plenary meetings with a two-thirds quorum. Although this benefits the development of a system of CCRF precedent – its ‘legal positions’ are set at plenary sessions – it privileges the Chair presiding over whatever hearing they choose. The 11-judge maximum set by the 2020 amendments creates less chance for effective internal debate. Recall also that dissent is silenced; any ‘special opinion’ can no longer be published.140 CCRF disciplinary procedure is also out of the judges’ hands. Previously, based on Article 18 of the FCL on the CCRF, dismissal required a two-thirds vote by the other judges to petition the FC for dismissal. The 2012 reforms gave the FC the authority to dismiss judges without a CCRF petition. Grounds for dismissal were also expanded to include repeated absence or refusal to participate. Former CCRF judge Tamara Morshchakova protested: How does the Federation Council intend to prove a judge’s absence from the session or his refusal to vote? … After all, there is such a concept as the secrecy of judges’ conferences. Will parliament call judges onto the carpet and take evidence from them?141

The 2020 constitutional reforms have added the possibility of the President asking the FC to dismiss judges, including CCRF judges.142 Although dismissal must be for judicial misconduct, this includes vague 139 ‘Russian Constitutional Court Chairman Comments on Dissident Judge’s Departure’, report by Russian radio station Ekho Moskvy 2 December. 140 See above, text following n 72. 141 A Pushkarskaya, ‘They Have Brought Criminal Accountability to the Constitutional Court’ (2010) World News Connection (Newswire), 7 July, cited in Henderson, above n 73. 142 Amended Constitution, art 83 f3.

204 Courts and Judges formulations such as ‘bringing the judiciary into disrepute’, so might easily be manipulated. IV. CONCLUSION

Modern Russian courts protect legal rights more effectively than Soviet courts. However, judicial independence remains an issue. That is not to say that all, or even a majority, of Russian judges are corrupt, but recruitment patterns, the contemporary judicial ethos and various pressures under which judges work mitigate against impartial decisionmaking, most especially in cases in which the State has an interest. For example, judges’ predisposition to believe security force evidence and disallow defence alternatives can have a disproportionate effect in public order prosecutions. Civil or commercial disputes are generally better adjudicated. In the Conclusion to the first edition of this volume, I noted some traditional elements. Reliance on ‘contacts’ and informal networks undermine the ideal of impartiality: ‘The first question a client asks is “Do you know the judge? Do you have access to the judge?”’143 Nevertheless, despite strong expressions of mistrust in opinion polls, in reality Russians (individuals and companies) frequently utilise courts as one strategy for dealing with neighbours or business partners. Significantly, familiarity with courts (prior use) tends to encourage further use rather than discourage it. Hendley discusses this paradox and concludes that may be inappropriate to expect the rule of law from a ‘Western’ perspective in Russia, when ‘for decades, if not centuries’144 Russians have coexisted with telephone law and have a strategic awareness of which cases might be subject to influence and which not. As she puts it: ‘Russians are actually savvy consumers. They know when to bring a case and when to stay away’.145 Despite some systemic and persistent difficulties, courts have become important in Russian civil life, not least in the defence of human rights, which is discussed in the following chapter.

143 D Holiner, barrister and advokat, at the Bar Human Rights Committee and the EU-Russia Centre meeting, London, 8 February 2010, reported in M Karp, ‘The Case of Judge Kudeshkina’, www.rightsinrussia.info/blogs/mashakarpthecaseofjudgekudeshkina. 144 K Hendley, ‘Telephone Law and the Rule of Law: The Russian Case’ (2009) 1 Hague Journal on the Rule of Law 241. 145 ibid 261.

Further Reading 205 FURTHER READING B Bowring, ‘Politics and Pragmatism: The Constitutional Court of the Russian Federation and its 20 Years of Engagement with the European Convention on Human Rights’ (2018) 1(1) East European Yearbook of Human Rights 5. M Kurkchiyan and A Kubal (eds), A Sociology of Justice in Russia (Cambridge, Cambridge University Press, 2018). A Ledeneva, ‘Telephone Justice in Russia’ (2008) 24 Post-Soviet Affairs 324. O Schwartz, ‘The Creation of an Independent Judiciary and the Changing Nature of Courts and the Courtroom’ in WA Pridemore (ed), Ruling Russia: Law, Crime and Justice in a Changing Society (Lanham, MD, Rowman & Littlefield, 2005). P Solomon, ‘Informal Practices in Russian Justice: Probing the Limits of PostSoviet Seform’ in F Feldbrugge (ed), Russia, Europe, and the Rule of Law (Leiden, Nijhoff, 2007). A Trochev, Judging Russia: Constitutional Court in Russian Politics, 1990–2006 (Cambridge, Cambridge University Press, 2008). A Trochev and PH Solomon, ‘Authoritarian Constitutionalism in Putin’s Russia: A Pragmatic Constitutional Court in a Dual State’ (2018) 51 Communist and Post-Communist Studies 201.

8 The Treatment of Rights Introduction – Establishing Human Rights – Rights Enforcement

I. INTRODUCTION

T

his chapter focuses on rights in Russia. Constitutional rights are in entrenched Chapter 2. That chapter remains unamended, but in recent years individual freedoms have been re-evaluated to favour the regime’s view of society’s needs. This aligns with conservative values in public discourse since around 2012. The 2020 constitutional amendments include statements supporting those values. We appraise these developments, after reviewing the background context and before exploring various means available for rights protection. II. ESTABLISHING HUMAN RIGHTS

In Chapter 2 we noted that Soviet rights were concrete and dependent (rights awarded contingent on duties performed for the State) and that perestroika brought about a change. The Soviet approach had practical benefits: free medical care, free education, social support, and so on. Although Soviet State-provided services were less than luxurious, in practice they worked well enough for Soviet citizens; for example, the USSR had low infant mortality and high literacy rates. The USSR did not completely ignore international legal developments. In 1973 it ratified the two 1966 United Nations Covenants on Economic Social and Cultural Rights (ICESR) and on Civil and Political Rights (ICCPR). In 1975 it signed the Helsinki Final Act at the First Conference on Security and Cooperation in Europe (CSCE) Summit of Heads of State or Government. The USSR’s decision to sign the Helsinki Final Act was probably taken in the expectation that it would have little internal impact. However, it resulted for the first time in rights monitoring in the

Establishing Human Rights 207 USSR against an international standard, and in May 1976 the Group to Assist in the Implementation of the Helsinki Agreements in the USSR, soon known as ‘the Moscow Helsinki Group’, was formed. This and similar grassroots pressure groups may have had a regime-changing impact.1 The Soviet ‘dependent rights’ approach was rejected during perestroika. Following a USSR Constitutional Supervision Committee Opinion in April 1991, with impressive speed, on 5 July the USSR Supreme Soviet acceded to the Optional Protocol to the ICCPR, recognising the jurisdiction of the UN Committee for Human Rights. On 5 September 1991, as its last legislative act, the USSR Congress of People’s Deputies (CPD), urged by renowned jurist academician Vladimir Kudriavstev, adopted the USSR Declaration of the Rights and Freedoms of Man. The Preamble declared ‘No group, party or State interests may be placed above the interests of the individual’ and Article 1 stated: Each person possesses natural inalienable and inviolable rights and freedoms. They are sealed in laws that must correspond to the Universal Declaration of Human Rights, international covenants on human rights and other international norms and the present Declaration.

Thus, inherent rights entered Soviet law for the first time. However, the Declaration’s legal status was unclear – it did not fit in the normal legislative hierarchy and clearly contradicted the then Constitution.2 The practical difficulties this might cause were precluded by the USSR’s dissolution at the end of 1991. Meanwhile, on 22 November 1991, Russia passed its ‘Declaration of the Rights and Freedoms of Man and Citizen’. In April 1992 the newly independent Russia replaced wholesale Chapter 5 of the 1978 Russian (RSFSR) Constitution, on Fundamental Rights, Freedoms and Duties of Citizens with the Declaration’s provisions (except one article, ironically on establishing a Human Rights Commissioner). For the first time, Russia has constitutional human rights matching international standards. The 1993 Constitution continues this inherent rights approach.3 Now ‘Individuals and their rights and freedoms are of supreme value.

1 DC Thomas, The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism (Princeton, Princeton University Press, 2001). 2 See GP van den Berg, ‘Human Rights in the Legislation and the Draft Constitution of the Russian Federation’ (1992) 18 Review of Central and East European Law 197 at 202, fn 15, which looks at the legal status of the Declaration and concludes that ‘declarations are deceiving documents and a serious parliament should abstain from adopting them’. 3 A Korkeakivi, ‘The Reach of Rights in the New Russian Constitution’ (1995) 3 Cardozo Journal of International and Comparative Law 229.

208 The Treatment of Rights Recognition of, respect for and protection of rights and freedoms of man and citizen shall be the duty of the State’ (Article 2) and ‘the basic rights and freedoms of man and citizen are inalienable and belong to everyone from birth’ (Article 17(2)). However, some rights are only for citizens, and the limitation clause in Article 55(3) is far-reaching as it does not distinguish between different types of rights. It allows derogation by federal law where necessary for ‘defence of the foundations of the constitutional system, morality, health, rights, and legal interests of other people and ensuring the defence of the country and state security’. Note that morality is on this list. The influence of Soviet concrete rights might nevertheless still pertain. Article 7 declares that: Russia shall be a social state … [In it] shall be ensured labour and people’s health, a guaranteed minimum level of payment established for labour, state support provided for the family, motherhood, fatherhood and childhood, and disabled and elderly citizens, a system of social services developed, and government pensions, benefits and other social security guarantees established.

The 2020 constitutional reform added to this. It did not alter provisions in entrenched Chapter 2, but found other places to declare State support. Children are prioritised in the new Article 671(4), protection of the family is mentioned in additions to Article 72, and a guaranteed minimum monthly living wage and indexation of pensions is specified in revised Article 75, along with guaranteed compulsory social insurance, targeted social support for citizens, and indexation of social benefits and other social payments. The extent to which economic reality will allow Russia to fulfil expectations raised by these widely advertised amendments might be doubted, but the aspiration is unambiguously affirmed. Also, the new Article 751 includes a phrase reminiscent of Soviet dependent rights. It states: In the RF shall be established conditions for the stable economic growth of the country and raising the well-being of citizens, for the mutual trust of State and society, guaranteeing the defence of the dignity of citizens and respect for the working person, ensuring the balance of rights and duties of the citizen, social partnership, economic political and social solidarity. [Emphasis added]

These symbolic statements appear in the chapter on the Federal Structure.

Russians’ Rights 209 III. RUSSIANS’ RIGHTS

Space precludes examination of all the rights listed in Chapter 2 of the Constitution.4 Instead, we note some general features and then examine recent developments. The Constitution’s array of rights draws heavily on perestroika reforms, so ‘does not omit a single right that non-socialist countries consider essential in the civil and political rights domain’.5 As the Chapter title ‘Rights and Freedoms of Man and Citizen’ suggests, these are individual not collective rights. Some are given to ‘each’ and some are reserved for citizens. Both the September 1991 USSR Declaration of the Rights of Man and the November 1991 Russian Declaration of the Rights of Man and Citizen made similar distinctions. Constitutions frequently grant citizens special favours. Issues of style could play a part,6 but the specific rights suggest that the differentiation is deliberate, despite Article 62(3) allowing foreign citizens and stateless persons equal rights and duties as citizens, except where otherwise provided by federal law or international treaty. Importantly, the Article 31 right to peaceful assembly and to hold meetings, rallies, demonstrations, marches and pickets only belongs to citizens. Similarly, only a citizen has the right to participate in State affairs, both directly and through representatives (Article 32(1)). Significantly, Article 61 forbids the deportation or extradition abroad of a Russian citizen. The 2020 constitutional amendments add further limitations. Although not touching the entrenched rights chapter, changes elsewhere limit the holder of specific posts to being a citizen ‘permanently residing in the RF, not having citizenship of a foreign state nor a residence permit or other document confirming the right to permanent residence … on the territory of a foreign state’.7 Further, post holders are forbidden to hold funds and valuables in foreign banks outside Russia. As Teague succinctly explains: ‘This represents the formalisation of the policy of “nationalisation of the elite” that had been introduced by Putin in 2012

4 An English translation of the still-valid ch 2 is available at www.constitution.ru/ en/10003000-02.htm. 5 Korkeakivi, above n 3 at 231. 6 Van den Berg, above n 2 at 235. 7 See, eg, art 77(3).

210 The Treatment of Rights and 2013.’8 One might speculate why it was felt necessary to elevate these restrictions to a constitutional level. Certainly it raises their profile, readily demonstrating the futility of any dissident in exile dreaming about future State service. The specified posts are: those who work in federal or municipal State service (Article 71(r)); a Governor (Article 77(3)); the Head of a federal State agency (Article 78(5)); the President (Article 81(2)); Federation Council Senators (Article 95(4)); Duma Deputies (Article 97(1)); the Commissioner for Human Rights (Article 103(1)(f)); the Government Chairman, his Deputies, federal ministers and other heads of federal agencies of executive authority (Article 104(4)); judges (Article 119); and procurators (Article 129(2)). Confirming the constitutionality of the amendments before they went to the public vote, the Constitutional Court justified the limitations as guaranteeing civic loyalty to assist in the protection of Russia’s sovereignty. The President can never have had foreign citizenship or residence, except for that of a State which subsequently joined Russia. This automatically excludes as a potential presidential candidate anyone who has spent sufficient time abroad to gain residence status. For other officials, the restrictions only relate to their current circumstances, not their past. Although Chapter 2 deals with individual rights, group rights, such as rights of national-cultural minorities, are not unknown in Russia. Russia signed the Council of Europe’s 1994 Framework Convention for the Protection of National Minorities on joining in 1996 and ratified it in 1998 without restrictions.9 In the Federal Structure chapter, Article 69(1) of the Constitution states that the Russian Federation: [G]uarantees the rights of small indigenous peoples in accordance with the generally recognised principles and rules of international law and international treaties of the RF.

The 2020 reforms add two paragraphs to Article 69: (2) The State shall defend the cultural distinctiveness of all peoples and ethnic communities of the RF and guarantee the preservation of ethnocultural and language diversity.

8 See E Teague, ‘Russia’s Constitutional Reforms of 2020’ (2020) 5 Russian Politics 301, 310. 9 B Bowring, ‘Austro-Marxism’s Last Laugh? The Struggle for Recognition of NationalCultural Autonomy for Rossians and Russians’ (2002) 54 Europe-Asia Studies 229.

Russians’ Rights 211 And perhaps more controversially: (3) The RF shall render support to compatriots [sootechestvenniki] living abroad in exercising their rights, ensuring defence of their interests, and preservation of all-Russian cultural identity.

This puts at a constitutional level a commitment to support Russians overseas. The word translated here as compatriots was defined in Russian legislation in 1999 as being people with a common language, history, cultural heritage, traditions and customs, and their direct descendants. For those outside Russia, compatriots include people and their descendants belonging to a group historically living in Russia, plus direct descendants of inhabitants of Russia who have made a free choice in favour of spiritual, cultural and legal ties with Russia. These can encompass former USSR citizens who became citizens of other States or are stateless.10 Support for compatriots has real-world consequences. In 2008 the protection of those holding Russian passports was one justification for Russia’s incursion into South Ossetia during that summer’s war with Georgia.11 The new Article 69(3) also fits within the strong Russian narrative of protecting sovereignty – one of the justifications articulated for the constitutional reforms.12 A. The Individual versus Society As noted above, constitutional rights focus on the individual. However, this century, conservative societal values have been increasingly articulated in Russia and individual rights constrained. As Marianna Muravyeva observes: ‘All of these [restrictive] legal initiatives have been passed with the powerful rhetoric of the supremacy of national interests over human rights.’13 A timeline for the start of this ‘human rights backlash’14 might begin with the return of Valerii Zor’kin as Constitutional Court Chair in 10 Federal law ‘On the State Policy of the Russian Federation in Relation to Compatriots Abroad’ of 24 May 1999 No 99-FZ, as amended on 23 July 2010. The author is immensely grateful to Bill Bowring for sharing his invaluable knowledge of this. 11 R Allison, ‘The Russian Case for Military Intervention in Georgia: International Law, Norms and Political Calculation’ (2009) 18(2) European Security, 173, 185. 12 Teague, above n 8 at 308. 13 M Muravyeva, ‘Conservative Jurisprudence and the Russian State’ (2017) 69(8) EuropeAsia Studies 1145, 1151. 14 L Mälksoo, ‘Introduction: Russia, Strasbourg, and the Paradox of a Human Rights Backlash’ in L Mälksoo and W Benedek (eds), Russia and the European Court of Human Rights: The Strasbourg Effect (Cambridge, Cambridge University Press, 2018) 3.

212 The Treatment of Rights February 2003. Zor’kin frequently makes extrajudicial comment and is an advocate of Russian exceptionalism. According to Mikhail Antonov, who has studied Zor’kin’s legal philosophy deeply: Zorkin demonstrates a good deal of intellectual honesty when he directly admits his propensity to authoritarianism; this is not an easy step for the constitutional Chief Justice in a country that, according to its Constitution, is democratic. And of intellectual bravery: he undertakes an attempt to demonstrate philosophically that authoritarianism is better (for contemporary Russia) than ‘liberal’ Western democracy exactly from the vantage point of the protection of human rights (sic!)15

This was in a 2014 speech16 at Moscow University when amongst other things, Zor’kin suggested ‘serfdom was that spiritual buckle that maintains the unity of the nation’.17 Other scholars date the ‘conservative turn’ slightly later. Muravyeva highlights Vladimir Putin’s use of conservative political ideologies in his Address to the Federal Assembly in December 2013:18 ‘This recognition gave the green light to a number of essentially conservative legal initiatives all of which appealed to the protection of Russian sovereignty as an important legal and political value.’19 Gulnaz Sharafutdinova dates the expansion of ‘morality politics’ to the Pussy Riot trial in 2012.20 Pussy Riot are a feminist punk rock performance art collective. They came to worldwide fame when three members were prosecuted for pre-meditated hooliganism for a performance by five of them in February 2012 in Moscow’s Cathedral of Christ the Saviour of a ‘punk prayer’: ‘Virgin Mary, Chase Putin Away!’21 Two received three-year prison sentences, despite being mothers of young children, at what was widely perceived as a show trial.22 There had previously been a number of equally transgressive art performances – for example, the 15 MV Antonov, Formalism, Decisionism and Conservatism in Russian Law (Leiden, Brill, 2021) 57. 16 V Zorkin, ‘Sudebnaia reforma Aleksandra II dlia Rossii [The Court Reform of Alexander II: Lessons from Russia]’, presentation made on 25 November 2014 at the IV Moscow Legal Week, cited in Antonov, above n 15 at 57, fn 14. 17 Antonov, above n 15 at 80. 18 Muravyeva, above n 13. 19 ibid 1146, citing M Antonov, Conservatism in Russia and Sovereignty in Human Rights (2014) 39(1) Review of Central and East European Law 1. 20 G Sharafutdinova, ‘The Pussy Riot Affair and Putin’s Démarche from Sovereign Democracy to Sovereign Morality’ (2014) 42(4) Nationalities Papers 615. 21 ‘100 Women of the Year. 2012: Pussy Riot’ Time, 5 March 2020. See also ‘Pussy Riot: The Story So Far’ BBC News, 23 December 2013. 22 Sharafutdinova, above n 20 at 617.

Russians’ Rights 213 infamous group Voina painted a large phallus on the bridge facing the FSB St Petersburg headquarters.23 In contrast to Pussy Riot, the cases against Voina were dropped by the prosecution or dismissed by the courts.24 B. The Politicisation of Rights Below, in roughly chronological order, we examine examples of the politicisation of rights, where deliberately vaguely worded legislation restricts rights such as freedom of conscience (Article 28 of the Constitution), of thought and speech (Article 29), the right of association (Article 30), and the right of peaceful assembly and demonstration (Article 31). i. The Right to Protest Article 31 of the Constitution gives citizens an unqualified right to peaceful assembly. However, particularly following the ‘coloured revolutions’ that ‘swept across the post-Soviet space in 2003–5’,25 an increasing number of requirements have been imposed by federal and regional legislation. A 2004 Law on Rallies, Meetings, Demonstrations, Marches and Picketing requires prior notification (in practice, permission) before citizens can assemble for peaceful protest, restricts who could organise an event and makes them responsible for public order during it.26 In response, some exercised imagination to achieve safe protest by displays of toys or the deliberate use of nonsensical slogans.27 Mass street protests against the ‘stolen’ Duma elections in November 2011 prompted amendments in June 2012. These prohibit multiple unsanctioned meetings, rallies, demonstrations, marches or pickets

23 N Sturdee, ‘Don’t Raise the Bridge: Voina, Russia’s Art Terrorists’ The Guardian, 12 April 2011. 24 M Popova, ‘Putin-Style “Rule of Law” and the Prospects for Change’ (2017) 146(2) Daedalus 64, 68. 25 JL Wilson, ‘Coloured Revolutions: The View from Moscow and Beijing’ (2009) 25(2–3) Journal of Communist Studies and Transition Politics 369, 370. 26 Federal Law No 54-FZ of 19 June 2004. 27 See O Kupchinsky, ‘Toys for Democracy: In a Siberian City, Activists Find a Creative Way to Protest’ Radio Free Europe/Radio Liberty Report, 16 January 2012. See also T Balmforth, ‘“Monstration” Rallies Hold up Mirror to “Absurd” Russian Reality’ Radio Free Europe/Radio Liberty Report, 1 May 2015. Kirill Koroteev adds: ‘Its organiser was fined 20,000 roubles in 2016, and served 10 days in prison for the 2015 event’ (personal communication to the author).

214 The Treatment of Rights during a six-month period: ‘New administrative offences related to “inciting” people to participate in unsanctioned protest were established.’28 In 2014, fines were massively increased and administrative detention up to 20 days was added under the Code of Administrative Violations as a possible punishment for unsanctioned demonstrations. Second and third violations lead to increasing penalties, including criminal liability under Article 212.1 of the Criminal Code, of up to five years’ incarceration.29 This pertains even if the unauthorised activity is a peaceful individual picket. In December 2015 the activist Ildar Dadin was sentenced to three years (later reduced to 2.5 years) under these provisions.30 Dadin became famous not only for being the first person imprisoned under the repeated offence rule, but also because of the important Constitutional Court (CCRF) ruling on 10 February 2017 about his case. The CCRF declared that Article 212.1 should only be applied where the repeated administrative offences constitute socially dangerous activity. This is consistent with the Russian definition of crime, which requires an element of social danger.31 The Court asserted that peaceful demonstration, especially by a single individual, is not per se socially dangerous. Following the CCRF ruling, the Supreme Court Presidium reversed Dadin’s sentence, released him and recognised his right to rehabilitation.32 The CCRF proposed that the demonstrations law should be appropriately amended, but this has not happened.33 Unfortunately, law enforcement agencies have ignored the CCRF public danger requirement for criminal prosecution. In September 2019 Konstantin Kotov was sentenced to four years’ incarceration for repeated violation of the Law on Rallies.34 The sentence severity caused such an outcry that President Putin raised the issue with the Procuracy.35 Kotov himself appealed to the CCRF, pointing out that its ruling in Dadin’s

28 Russia under Putin: 20 Years Of Protests (Institute of Modern Russia Report, 2020) 14. 29 ibid 14. 30 D Mednikov, ‘Taking Some Human Rights Back: The Case of Ildar Dadin’ Oxford Human Rights Hub, 22 May 2017. 31 Criminal Code 1996, art 14. 32 ‘Russia’s Supreme Court Sets Ildar Dadin Free’ Meduza, 22 February 2017. 33 ‘Justice Ministry Not Preparing Amendments in Wake of Constitutional Court Decision on “Dadin Case”’ Interfax Russia & CIS General Newswire, 17 May 2017. 34 ‘Russian Activist Sentenced to 4 Years for “Multiple Protests”’ Moscow Times, 5 September 2019. 35 ‘Russian Opposition Activist Kotov’s Prison Term Shortened’ Radio Free Europe/ Radio Liberty Report, 20 April 2020.

Russians’ Rights 215 case was being ignored. The Court strongly agreed, asserting that, absent legislative clarification, its earlier Dadin ruling must be followed.36 The Court also stated that inconvenience, such as blocked roads, is not social danger. Despite this, Kotov’s appeals failed and he was sentenced to 18 months’ incarceration.37 In January 2020 Kotov appealed to the European Court of Human Rights (ECtHR). Kotov’s unauthorised rally in August 2019 was near the Presidential Administration buildings. In November 2019 the CCRF declared unlawful blanket bans on rallies near State buildings.38 On 5 June 2020, based on earlier rulings, it ruled that regional rally legislation should not be more restrictive than federal law.39 However, it also suggested that normally rallies should be held in especially designated squares, so-called ‘Hyde Parks’, unless there was good reason why not. This is more restrictive than an earlier ruling.40 Human rights monitors note that the CCRF decision – that demonstrating near State buildings is not intrinsically unlawful – was only implemented into legislation in four regions, while the rest ignored it.41 The law’s imposition of responsibility for public order on the event organiser was reviewed by the CCRF in June 2019. The Court interestingly ruled that State authorities could not divest themselves of their public order duty towards citizens’ safety and impose a disproportionate obligation on event organisers.42 Individual picketing is a thorny issue (see the Dadin case above). Law enforcement authorities took the view that a sequence of individual pickets can constitute a rally, following a Supreme Court Plenum ruling that a succession of single pickets in the same place with one organiser and similar placards could be deemed a mass action. This strongly impacts not only the possibility of arrest, but also any sentence imposed,

36 Section 2 of Ruling [opredelenia] No 7-O 27 January 2020. 37 See J Wiersema, ‘Protest in Peril? Russia’s Constitutional Court Upholds Article 212.1’ Kennan Cable 66, April 2021. 38 M Starikova, ‘Mitingi proshli vo vlast’ [Rallies Came to Power]’ Kommersant’, 7 November 2019. 39 ‘Regional Restrictions on Rallies Must Not Go Beyond Federal Ones – Russian Constitutional Court’ Interfax Russia & CIS General Newswire, 5 June 2020. 40 E Trifonova, ‘Zor’kin pozvilil vlastiam umaliat’ svobodu sobranii [Zor’kin Allowed the Authorities to Diminish Freedom of Assembly]’ Nezavisimaia Gazeta, 10 June 2020. 41 E Trifonova, ‘Zakonodatel’stvo o mitingakh vykhodit za ramki Konstitutsii [Legislation on Rallies Beyond Scope of the Constitution]’ Nezavisimaia Gazeta, 14 June 2020. 42 Ruling No 24-P of 18 June 2019. See the extract in PB Maggs, O Schwartz and W Burnham, Law and Legal System in the Russian Federation, 7th edn (Huntington, NY, Juris Publishing, 2020) 427.

216 The Treatment of Rights effectively abolishing individual picketing. In July 2020 a case was initiated at the CCRF by Doctor of Law Ilia Shablinskii, who challenged in connection with his own arrest the constitutionality of this interpretation of the Law on Rallies – the ‘latent form of collective public action’ approach.43 To date, no decision has been given. Underage protesters have troubled the authorities, particularly in the March 2017 anti-corruption rallies. Heavy-handed tactics were taken to discourage attendance – for example, intimidation at school and threats to parents that they would be held responsible for their offspring’s actions.44 The brutal arrest of young people during demonstrations could rebound. It has been suggested that parents seeing videos of security forces beating up their children during peaceful protests was a factor amplifying attendance at Ukraine’s pivotal February 2014 Euromaidan demonstrations which led to the overthrow of Viktor Yanukovych. In 2018 the Rallies Law was amended to prescribe ‘a fine, compulsory community service, and 15 days’ detention for “involving a minor” in an unsanctioned protest, though the meaning of “involving” was not clarified’.45 In 2019 prosecutors threatened a Russian couple with deprivation of their parental rights as a result of attending a rally with their three daughters, aged three months, three years and 10 years, although the courts refused the deprivation order.46 This followed a similar, and also unsuccessful, threat in an earlier case where demonstrating parents had left their one year-old with an activist relation. This section of this chapter contains details demonstrating practical difficulties, deliberately created by restrictive legislation, in the exercise of Article 31 rights. Russia is not alone in having public order concerns about demonstrations. However, arbitrary harsh enforcement of restrictive laws (both federal and regional),47 ignoring binding CCRF interpretation, is extremely troubling and may indeed backfire.

43 E Trifonova, ‘Zor’kin reshit sud’bu odinochnykh piketchikov [Zor’kin Will Decide the Fate of Single Picketers]’ Nezavisimaia Gazeta, 26 July 2020. 44 Russia under Putin, above n 28 at 18–19; C Schreck, ‘Think of the Children: Russian Officials Fret over Youthful Protesters’ Radio Free Europe/Radio Liberty Report, 21 May 2017. 45 Russia under Putin, above n 28 at 15. 46 ‘Moscow Protest Couple Allowed To Keep Children’ Radio Free Europe/Radio Liberty Report, 2 September 2019. 47 See ‘“Crash-Test Democracy”: Russian Reporters Highlight Vagaries of Protest Laws’ Radio Free Europe/Radio Liberty Report, 31 March 2016.

Russians’ Rights 217 ii. Extremist Activity The 2002 Law on Extremist Activity was extended to non-violent groups in 2007.48 The Moscow-based SOVA Center for Information and Analysis tracks misuse of anti-extremism legislation, issuing annual reports.49 These highlight abuses with unfortunate regularity. For example, the law is being used against religious minorities, including Jehovah’s Witnesses.50 They received local bans under the law as early as 2009. In 2014 the Supreme Court ruled the Jehovah’s Witnesses’ website is extremist, followed by a declaration in April 2017 that the organisation is extremist.51 Since then, there have been numerous prosecutions of Jehovah’s Witnesses. Why they have been particularly targeted is unclear. Another example is the declaration that Alexei Navalny’s AntiCorruption Foundation (FBK), already deemed a ‘foreign agent’ (see section III.B.iv below), is an extremist organisation.52 This has been followed by legislation retrospectively disallowing anyone associated with an extremist organisation in the previous three years from standing for election. The legislators deny any breach of the prohibition on retrospective criminalisation in Article 54 of the Constitution.53 iii. Propagandising ‘Non-traditional Sexual Relations’ Consensual male homosexual acts were decriminalised in 1993 by presidential edict (female homosexuality was never illegal). The current Criminal Code penalises non-consensual sexual activity, which could include homosexual activity; the coercion gives rise to the illegality.54 However, as Antonov succinctly explains: Nowadays, the issue of homosexuality has become a political rallying cry for conservatives in Russia claiming that the country must be safe from the 48 In September 2015 the US Library of Congress published a useful summary: Legal Provisions on Fighting Extremism in China, Pakistan, Russia, and Tajikistan, available at hdl.loc.gov/loc.law/llglrd.2016295693. 49 See www.sova-center.ru/en/misuse. 50 EB Baran and Z Knox, ‘The 2002 Russian Anti-Extremism Law: An Introduction’ (2019) 46 Soviet and Post-Soviet Review 97. 51 Z Knox, ‘Jehovah’s Witnesses as Extremists: The Russian State, Religious Pluralism, and Human Rights’ (2019) 46 Soviet and Post-Soviet Review 128; ‘Russia: Escalating Persecution of Jehovah’s Witnesses’ Human Rights Watch, 9 January 2020. 52 See, eg, D Kamyshev, ‘Kontrrevoliutsionnoe pravosoznanie [Counterrevolutionary Legal Awareness]’ Kommersant’, 8 May 2021. 53 K Veretennikova, ‘A esli on tam steny krasil? [And If He Painted the Walls There?]’ Kommersant’, 19 May 2021. 54 1996 Criminal Code, arts 131–33.

218 The Treatment of Rights ‘decadent West’ that allegedly imposes a perverted form of sexual morality under the guise of liberalism and human rights.55

Since 2006, there have been increasingly widespread attacks by Russian legislatures on freedom of expression by lesbian, gay, bisexual or transgender (LGBT) individuals. The excellent Equal Rights Trust report Justice or Complicity? LGBT Rights in the Russian Courts published in London in September 201656 says that from 2006, 13 regions in Russia adopted laws banning ‘propaganda of homosexuality’ or ‘propaganda of non-traditional sexual relations’. In November 2012 Madonna was prosecuted (in absentia) under the St Petersburg law. A sensible judge threw this out; there was no evidence of children at the concert and no evidence of her propagandising homosexuality.57 In 2013 federal legislation was adopted that included a new administrative offence of ‘propagandising to minors non-traditional sexual relationships’, with steep fines and the possibility of administrative detention, or deportation for foreign perpetrators using media networks.58 The law means that useful health advice and warnings cannot legally be given to teenagers who arguably might most need them. This is not its only absurd consequence.59 Equally irrationally, transsexuals were banned from driving in 2015.60 Russia also refuses to comply with a 2010 judgment of the ECtHR, which requires Moscow to allow the kinds of lesbian and gay pride event that are held in most major European cities.61 iv. Foreign Agents From 2012, any non-governmental organisation (NGO) that receives funding from foreign sources (including governments, NGOs, foundations or 55 Antonov, above n 15 at 144 (references omitted). 56 See https://www.equalrightstrust.org/resources/justice-or-complicity-lgbt-rights-andrussian-courts. 57 ‘Madonna Gay Propaganda Trial – Live Updates’ Russian Legal Information Agency, 22 November 2012. 58 Code of Administrative Violations, art 6.21. See also P Johnson, ‘“Homosexual Propaganda” Laws in the Russian Federation: Are They in Violation of the European Convention on Human Rights?’ (2015) 3(2) Russian Law Journal 37. 59 See, eg, A Shamanska, ‘Russian Lawyer Sees Illegal “Gay Propaganda” in Tiger-Goat Friendship’ Radio Free Europe/Radio Liberty Report, 29 January 2016. 60 A Rogers, ‘Now Russia Makes Transgender Driving a Criminal Offence’ The Independent, 9 January 2015. 61 Alekseyev v Russia nos 4916/07, 25924/08 and 14599/09 (ECtHR 21 October 2010). See also Antonov, above n 15 at 152ff; Johnson, above n 58 at 52ff.

Russians’ Rights 219 individuals) has to identify itself as a ‘foreign agent’ in all its communications.62 There is a steep fine for non-compliance. In Russian, the expression ‘inostrannyi agent’ has very strong negative connotations – tantamount to being a spy. The Ministry of Justice keeps the list of NGOs who must identify as foreign agents, and may add NGOs itself, although this can be appealed in court. In 2017 the Foreign Agent law was expanded to include media outlets with overseas funding – for example, Radio Free Europe/Radio Liberty’s Russia Service – and from 2019 could include individuals with foreign funding who use social media. A 2020 amendment ‘allows Russian officials to label all politically active individuals as “foreign agents” if they receive financial or organisational support from abroad’.63 In 2013 the Council of Europe’s European Commission for Democracy through Law (the Venice Commission) said there were serious issues with the law and its application.64 A second Opinion in 2021 following the expansion of the law strongly recommends either abandoning registration and disclosure requirements or complete revision of the entire body of legislation on foreign agents.65 ‘Foreign agents’ include Navalny’s Anti-Corruption Foundation, Russia’s Committee against Torture, the GOLOS election monitoring organisation, the Levada Centre, Memorial, and the Institute for Law and Public Policy. v. Insulting Religious Feelings Following the Pussy Riot trial (see section III.A above), amendments to Article 148 of the Criminal Code came into force in July 2013 criminalising ‘public actions, expressing obvious disrespect for society and committed to insult the religious feelings of believers’.66 Article 213 already forbade hooliganism for motives of, amongst other things, ‘religious hatred or enmity’. A new administrative offence penalises ‘public

62 GB Smith, ‘Russian Exceptionalism? Putin’s Assertion of Sovereignty at Home and Abroad’ (2015) 19, available at www.law.upenn.edu/live/files/1882-gordon-smith-russianexceptionalismpdf; F Daucé, ‘The Duality of Coercion in Russia: Cracking Down on “Foreign Agents”’ (2015) 23(1) Demokratizatsiya 57. 63 V Laine and K Silvan, ‘Russia’s Latest Foreign Agents Law Undermines EU’s Russia Policy’ Friends of Europe, 24 February 2021. 64 Venice Commission Opinion No 716-717/2013. 65 Venice Commission Opinion No 1014/2020. 66 G Fagan, ‘Russia: “Religious Feelings” Not Offended – or the Calm before the Storm?’ Forum 18, 14 August 2013. See also the SOVA Center for Information and Analysis report, ‘Inappropriate Use of Anti-Extremist Legislation, above n 49.

220 The Treatment of Rights desecration and damaging of religious and/or liturgical literature, signs and emblems of belief systems’.67 The new protections were not universally approved. The then Human Rights Commissioner Vladimir Lukin saw no need to single out religious believers’ feelings. Popular opposition blogger Oleg Kozyrev wrote that the Duma had ‘banned Christianity’: ‘The law hovers around the notion that the feelings of believers are not to be hurt. This is a deeply anti-Christian legislative initiative, which destroys the very essence of believing, preaching, confessing,’ he wrote, adding that ‘faith cannot be very profound if in order to help it you run to the State Duma for a fine’.68

The law led to some apparent absurdities. In March 2015 it was reported that Russia’s Investigative Committee launched an inspection of the Novosibirsk State Academic Opera and Ballet Theatre over its production of Richard Wagner’s opera Tannhäuser.69 In May 2017 veteran Russian journalist and critic of the law Vladimir Posner, then aged 83, asked on TV’s popular First Channel whether or not his well-known atheism might lead to criminal prosecution: As it is known, I am an atheist. I stridently believe there is no God … I do not hide my convictions … By propagating this view, am I violating the Criminal Code? … Perhaps [then Russian Orthodox Church head] Patriarch Kirill would say whether I am insulting his religious feelings by affirming there is no God. Perhaps the chairman of the Constitutional Court could tell me if I have the right to think what I think and say what I say. Perhaps, the head of state could clarify: Does court await me, will [I be given] a ‘soft’ sentence?70

vi. Preserving Memory In May 2014 the Criminal Code and the Code of Administrative Violations were amended to punish ‘rehabilitation of Nazism’ by denial of the Nuremberg War Crimes Tribunal’s findings and ‘public dissemination of knowingly false information about the Soviet Union’s activities

67 Code of Administrative Violations, art 5.26. 68 ‘Russian Rights Activists, Bloggers Slam New Law on Protecting Religious Feelings’ BBC International Reports (Former Soviet Union), 12 June 2013, citing oleg-kozyrev.livejournal.com/4594475.html. 69 ‘The Church, the State, and the Arts: A Crackdown on Russian Theaters’ Meduza, 4 March 2014. 70 See T Balmforth, ‘Veteran State TV Journalist Asks on Air: Can Atheism Get You Jailed in Russia?’ Radio Free Europe/Radio Liberty Report, 16 May 2017.

Russians’ Rights 221 during the Great Patriotic War’.71 Muravyeva characterises this as restrictive legislation on freedom of speech and self-expression to protect ‘“national identity” from both without and within’.72 In early 2021 amendments increased the penalties and further criminalised ‘insulting the memory of defenders of the Fatherland and humiliating the honour and dignity of veterans’.73 vii. Undesirable Organisations In 2015 a law against undesirable organisations banned foreign and international NGOs that were deemed a threat to the constitutional order or Russian State security. The Procurator- General (P-G) makes the decision. Any Russian maintaining links with an undesirable organisation faces severe punishment. A 2016 Venice Commission Opinion found that the law was vague, sanctions disproportionate, and their wide scope interfered with several rights under the 1950 European Convention on Human Rights and Fundamental Freedoms (ECHR).74 Even the Russian Human Rights Commissioner voiced serious concerns about the scope of the law.75 These have been ignored. The list of undesirable organisations includes the National Endowment for Democracy, the Open Russia Foundation, the Institute of Modern Russia, the European Endowment for Democracy, the Jamestown Foundation and Bard College.76 C. The 2020 Constitutional Amendments We noted earlier that the 2020 amendments constitutionalise limitations on who can hold certain posts. The amendments also incorporate into the Constitution some ‘conservative values’ underlying the rights restrictions outlined above, as well as emphasising State sovereignty. These insertions appear in the Federal Structure chapter. The new Article 671 declares the Russian Federation to be the legal successor of the USSR on

71 See G Bogush, ‘Criminalisation of Free Speech in Russia’ (2017) 69(8) Europe-Asia Studies 1242. 72 Muravyeva, above n 13 at 1151. 73 Criminal Code, art 351.1(3). 74 Venice Commission Opinion No 814/2015. 75 Commissioner’s Opinion on Federal Law No 129-FZ of 23 May 2015 ‘On Introduction of Amendments to Certain Legislative Acts of the RF’, 25 May 2015. 76 List in ‘Russia Investigative News Group Starts Liquidation Process Following “Undesirable” Designation’ Radio Free Europe/Radio Liberty Report, 16 June 2021.

222 The Treatment of Rights Russian territory and ‘successor (or continuer)’ of the USSR in international organisations. As Ekaterina Mishina points out, this: [C]ould be music to the ears of those nostalgic for the Soviet Union. However, this sweet tune is not new: in its January 13, 1992, note, Russia’s Ministry of Foreign Affairs had already informed all heads of diplomatic missions that ‘the Russian Federation continues to exercise the rights and fulfill the responsibilities established by international treaties agreed upon with the USSR … The Ministry requests that the Russian Federation replace the USSR as a party to all effective international treaties’.77

Article 671 also talks of the RF as ‘united by a thousand-year history, preserving the memory of ancestors who transmitted to us ideals and belief in God’ (paragraph 2), while paragraph 3 says Russia shall honour the defenders of the Fatherland and ensure protection of historic truth, forbidding denigration of the significance of the people’s achievement in that defence. Paragraph 4 defines children as the highest priority for State policy; the State will create conditions to ensure their all-round spiritual, moral, intellectual and physical development, nurturing in them patriotism, civic consciousness and respect for the elderly. Quoting Mishina again: The amendments to Article 67 protecting Russia’s sovereignty and territorial integrity, as well as banning calls for alienation of a part of the country’s territory, might sound just as sweet but still are not new. The preamble to the Constitution proclaims the resurrection of Russia’s sovereign statehood, and the sovereignty norm is already included in Part 3, Article 1, and this norm is a foundation of the constitutional order. As for public calls for violating Russia’s territorial integrity, they already constitute a separate corpus delicti since 2014, according to Article 280.1 of the Criminal Code. Constitutional amendments on the protection of the historical truth and the impermissibility of undermining the heroic deeds of the Russian people who defended their land are unnecessary as well: both the historical truth and the heroic deeds of the people are protected by Article 354.1 of the Criminal Code.78

Article 68(1) of the Constitution as originally adopted sets Russian as the official language of the RF. The revised version characterises it as ‘the language of the nation forming people within the multinational union of equal people’ within the RF. A new paragraph 4 asserts that: ‘Culture in the Russian Federation is the unique heritage of its multinational people. Culture shall be supported and protected by the state.’ 77 E Mishina, ‘How the US and Russian Constitutions were Changed’ Institute of Modern Russia, 8 July 2021. 78 ibid.

Rights Enforcement 223 A new paragraph, Article 72(g1), inter alia gives both the Federation and federal subjects the authority to defend marriage ‘as the union of a man and a woman’. This definition already existed in family law, but according to the Constitution Amendment Working Group Chair, Pavel Krasheninnikov, constitutionalising it prevents ‘possible disputes and unnecessary discussions’ about recognising same-sex marriages contracted abroad.79 Krasheninnikov said that the Working Group had received many proposals to define the family in the Constitution, but the variety of family circumstances made this difficult, so instead the concept of marriage was made a constitutional norm. It is difficult to resist a conclusion that the amendments cited were included in the Constitution ‘for show’. Indeed, this may also be true for the declarations of social support, which, as Mishina points out, ‘either establish the norms that already exist in federal law or in the Constitution itself or are declarative, propagandistic in nature’.80 Such political statements in a Constitution are reminiscent of Soviet Constitutions as educative documents for both internal and external audiences (see Chapter 2, section IV.C). IV. RIGHTS ENFORCEMENT

Having rights declared but protection methods limited would be reminiscent of the Soviet approach. Modern Russia differs, in theory if not always in practice, depending on the rights in question. There exist a number of means of rights enforcement – in fact, the range is so broad that one English public lawyer, surveying the ‘impressive array’81 shortly after the adoption of the Federal Constitutional Law (FCL) on the Human Rights Commissioner in 1997, suggested that Russia could be in danger of breaching its requirement under the UN International Covenants to provide an ‘effective remedy’: It would be ironical if this rich network [of methods for challenging rights’ abuse] … was adjudged inadequate because of a lack of clarity about how the different strands of the network related to each other.82

79 V Kulikov and B Yamshanov, ‘God Zakona [Year of Law]’ Rossiiskaia Gazeta, 4 July 2021. 80 Mishina, above n 77. 81 J McGregor, ‘The Law on the Plenipotentiary for Human Rights’ (1998) 4 European Public Law 188, 189. 82 ibid 190.

224 The Treatment of Rights Two approaches to enforcement can be identified: through courts; or via a non-judicial agency, such as the Procuracy or the Human Rights Commissioner (Ombudsman). Historically, non-judicial methods predominated, so we will discuss these first. A. The Procuracy Peter the Great set up the imperial Procuracy in 1722 to be the ‘eye of the Tsar’. He may have gained the idea on his ‘Great Embassy’ – an 18-month European grand tour – as Germany, France and particularly Sweden had something similar. However, the institution he created became unique to Russia (and later, the USSR and, after its dissolution, the independent states that previously formed it). The Imperial Procuracy was abolished in November 1917, but in May 1922, ‘at Lenin’s behest’,83 the RSFSR Procuracy was established. It was the only organisation in Soviet Russia not subject to ‘dual subordination’, in that it was a free-standing hierarchy that was only accountable at the highest level (the P-G to the USSR Supreme Soviet). The Soviet Procuracy was important because of its wide role; not only was it State prosecutor, but because of its duty to ‘supervise legality’, it acted as the main route whereby individuals could seek redress for unlawful actions of agencies and officials. ‘After Stalin’s death and the abolition of the special boards, it was decided to reinforce rather than to abandon the supervisory role of the Procuracy.’84 It was also ‘the eye of the Party’. It could supervise courts, including civil cases (whether the litigants wanted it or not); it was so important that it was characterised as the ‘fourth branch of state’.85 The modern Procuracy is proud of its heritage and has fought to keep a wide role. Gordon Smith characterised the single article on the Procuracy in the 1993 Constitution as a win, giving information about procuratorial appointment, but leaving procuratorial powers unchanged.86 Legal reformers – for example, in the influential 1991 RSFSR Conception of 83 WE Butler, Russian Law and Legal Institutions, 3rd edn (Clark, NJ, Talbot Publishing, 2021) 286–87. 84 ibid 287. 85 HJ Berman, Justice in the USSR: An Interpretation of Soviet Law (Cambridge MA, Harvard University Press, 1963) 246, cited in WE Pomeranz, ‘Russia’s Resilient Legal Powerhouse: The Procuracy Enters the 21st Century’ 42 Kennan Cable, 24 June 2019, 2. 86 GB Smith, ‘The Procuracy: Constitutional Questions Deferred’ in GB Smith and R Sharlet (eds), Russia and its Constitution: Promise and Political Reality (Leiden, Brill, 2008) 105.

Rights Enforcement 225 Judicial Reform – had recommended its reduction to only being the State prosecutor.87 Until February 2014 the constitutional article on the Procuracy, Article 129, was incongruously in the ‘Judicial Power’ chapter. Under it, the P-G appointed his Deputies, procurators of federal subjects (albeit with those subjects’ agreement) and other procurators. The original version of Article 129(1) characterised the Procuracy as a ‘unified centralised system with the subordination of inferior procurators to superior and to the P-G’. The 2014 amendment changed the chapter title to ‘Judicial Power and the Procuracy’ and gave greater presidential control over procuratorial appointments.88 The P-G’s Deputies were ‘appointed to and relieved from office by the Federation Council (FC) on the President’s recommendation’ (Article 129(2)) with federal subjects’ procurators being appointed by the President following P-G recommendation and federal subject agreement (Article 129(3)). The President had unqualified power to dismiss federal subject procurators. The description of the Procuracy as a ‘unified centralised system’ was removed. The 2020 constitutional reform has reasserted that ‘The Procuracy is a unified federal centralised system’ and now includes a summary of its role (to be detailed in federal law): [E]xercising supervision over compliance with the Constitution RF and implementation of laws, supervision over compliance of the rights and freedoms of man and citizen, criminal prosecution in accordance with its powers, and also the performance of other functions.

Presidential control is further enhanced. Now the P-G and Deputies, as well as procurators of federal subjects or their equivalent, are appointed by the President after ‘consultation’ with the FC. The President can dismiss any of them without consultation. Other procurators are appointed and dismissed by the President, unless federal law gives this task to the P-G (Article 129(6)). Previously the P-G (and from 2014 his Deputies) would be relieved from office by the FC (which appointed them following presidential recommendation). Dismissal of a P-G was a problem for Boris Yel’tsin. He twice asked the FC to dismiss P-G Iurii Skuratov, but the FC refused. Skuratov was overseeing investigations of corruption in Yel’tsin’s close circle. Immediately

87 An English translation can be found in (1994) 30(2) Statutes & Decisions 9. 88 See J Henderson, ‘The 2014 Amendments to the 1993 Constitution of the Russian Federation’ (2016) Uppsala Yearbook of Eurasian Studies 279.

226 The Treatment of Rights after the FC’s first refusal in March 1999, extracts from a video of ‘a man resembling Skuratov’ in bed with two naked women were broadcast on the State-owned television channel. At the time, Vladimir Putin was in charge of the Federal Security Service (FSB).89 He claimed that the FSB had proved the man in the video was Skuratov. In April, hours after receiving Skuratov’s report on corruption, Yel’tsin suspended him from office, on the justification of a criminal case resulting from the video. The Duma showed its disapproval by inviting Skuratov to address it, and the FC rejected Skuratov’s dismissal a second time. It was not until April 2000, by which time Yel’tsin had a former President’s immunity, that the FC eventually dismissed Skuratov. Perhaps Putin remembered the affair and included presidential control over P-G dismissal in the 2020 amendments. The 2020 reforms underline the Procuracy’s increasing role and its ‘reemergence as the most influential legal institution in Russia’.90 As Pomeranz succinctly explains: ‘Its general supervision activities include oversight for the fulfillment of laws by all federal executive bodies of state power, all regional executive bodies and legislatures, local selfgovernment, and local regulatory agencies (organy kontrolia)’91 as well as prisons and bailiffs, and even ‘theoretically extends to the corporate and non-profit sectors through its supervision of state bodies responsible for the administration of commercial and non-commercial organizations’.92 Its expanded portfolio encompasses oversight of the violation of laws giving rights to businesspeople and investors, a prominent role in the fight against corruption. There is also added emphasis on the enforcement of citizens’ rights, particularly labour and social rights. Pomeranz notes that: ‘It appears that no issue is too small to escape the scrutiny of the procuracy.’93 Amongst his examples: ‘in Perm, the procuracy used its supervisory powers in 2018 to protest a decision to suspend a 15-year old student for pink hair, ultimately concluding that the principal’s action violated existing administrative regulations’.94 Unsurprising, then, that ‘opinion polls indicate that the procuracy remains the first institution

89 Thanks to Professor Bill Bowing for alerting the author to Putin’s role in procuring the video. 90 Pomeranz, above n 85 at 2. 91 ibid 3. 92 ibid. 93 ibid 6. 94 ibid, citing ‘Russian Principal Prosecuted for Suspending Schoolgirl over Pink Hair’ Moscow Times, 21 September 2018.

Rights Enforcement 227 that Russian citizens turn to when they believe that their rights have been violated’.95 Although as Pomeranz rightly observes: Its potential as a promoter of human rights, however, remains limited by a particularly Soviet understanding of the rights and freedoms of citizens. Indeed, the procuracy still emphasizes the defense of social rights over civil rights while serving as the ‘go to’ institution in Putin’s crackdown on freedom of speech, the internet, and civil society.96

From July 2021 the P-G’s Office (rather than the Ministry of Justice) represents and protects Russian interests at international tribunals such as the ECtHR. The Procuracy has also been given the right to ask the Constitutional Court to determine the ‘possibility’ of enforcement of international court or tribunal rulings (see section IV.D below).97 B. The High Commissioner for Human Rights (Ombudsman) The 1993 Constitution provided a new institution in Russia to oversee rights implementation: the High Commissioner (Plenipotentiary) for Human Rights (Upolnomochennyi po Pravam Cheloveka), or ‘Ombudsman’. Article 40 of the 1991 Russian Declaration of the Rights of Man and Citizen proposed that there should be an Ombudsman, but this was omitted when the Declaration was incorporated into the RSFSR Constitution in April 1992. Twenty months later, Article 103(e) of the 1993 Constitution gave the Duma jurisdiction to appoint and relieve from office the Commissioner for Human Rights acting in accordance with an FCL. This was adopted three years later (into force February 1997), by which time it had: [B]een considered at least 10 times by two different Dumas. Twice, after making it through the thornbush of the Duma, it went on to the Council of the Federation and was rejected.98

As of 2021, the Ombudsman is Tatiana Moskalkova, formerly a MajorGeneral in the Ministry of Internal Affairs. She is the fourth person to hold office under the FCL. 95 Pomeranz, above n 85 at 7. 96 ibid 8. 97 ‘Putin Signs into Law Bills Vesting Prosecutor General’s Office with Right to Represent Russia at ECHR’ Interfax Russia & CIS General Newswire, 1 July 2021. 98 J Henderson, ‘The Russian Ombudsman’ (1998) 4 European Public Law 184 at 187, citing Kommersant-Daily, 26 December 1996 as in (1996) 48 Current Digest 52.

228 The Treatment of Rights There are also regional ombudsmen (one in each federal subject), a federal ombudsman for children’s affairs and a federal business ombudsman, as well as regional business ombudsmen. Not all are satisfactorily effective.99 The Ombudsman’s powers aim to guarantee ‘the protection by the state of civil rights and freedoms, their observance and respect by state bodies, institutions of local self-government and officials’.100 Federal or regional legislatures’ decisions are outside the Ombudsman’s remit. Complaints (which can be made online) may be from people (citizens, foreigners or stateless people, but not legal entities) dissatisfied with the outcomes of other complaint mechanisms within a year of the alleged rights violation. The Ombudsman cannot invalidate administrative actions, but has broad disclosure rights and can enquire about the basis of powers exercised. They can request the initiation of administrative or criminal proceedings against an official or organisation, or go to court to support a citizen’s claim to protect rights and freedoms. They can investigate massive human rights violations on their own initiative. One important weapon is publicity, including the Annual Report. In her Report to the President in April 2020, Moskalkova highlighted that out of over 38,000 complaints she received, 32 per cent related to criminal proceeding, an increase of 9 per cent on the previous year.101 Unfortunately, it seems that in this particular area, the Ombudsman’s efforts have little effect; likewise, Moskalkova’s statement in April 2021 that ‘Solo picketing should not be seen as a mass event even during a pandemic’ was ignored.102 C. Citizens’ Appeals (Administrative Appeal) We now consider court remedies, beginning with domestic (Russian) courts. Although the possibility of citizens appealing to court ‘acts of officials committed in violation of law, in excess of authority, which infringe rights’ was outlined in Article 58(2) of the 1977 USSR Constitution, it required enabling legislation. Ten years passed before a Law on Citizens’ 99 See, eg, E Trifonova, ‘Ombudsmenov napravliaiut na perezagrusku [Ombudsmen are Sent to Reset]’ Nezavisimaia Gazeta, 10 January 2020. 100 ‘Status and Authority’ (citing art 1 of the FCL on the Ombudsman) on the English Ombudsman website, eng.ombudsmanrf.org/ombudsman/content/status_and_authority. 101 ‘Moskal’kova otchitalas’ Putinu ob obrashcheniakh grazhdan [Moskalkova Reported to Putin on Citizens’ Appeals’ Kommersant’, 14 April 2020. 102 ‘Solo Picketing Should Not Be Seen as Mass Event Even during Pandemic – Moskalkova’ Interfax Russia & CIS General Newswire, 1 April 2021.

Rights Enforcement 229 Appeals was adopted. Unfortunately it restricted appeals to unlawful actions of an official. This severely limited its application, as few important actions were taken by an individual Soviet official. Group decisions were not covered. This limitation was not accidental. As perestroika progressed, a less restrictive approach to rights enforcement led to a replacement law in 1989. This covered acts of agencies of State administration (committees) as well as officials, although some practical limitations remained. Independent Russia adopted its own law on 27 April 1993. The ‘Law of the RF on Appealing to a Court Actions and Decisions Violating the Rights and Freedoms of Citizens’ was a considerable improvement on its Soviet precursors. It covered decisions not to act, as well as ultra vires activities, and also allowed Armed Forces personnel to bring appeals.103 This was important since Russia has compulsory conscription for young males and a shocking tradition of conscript abuse. Two years later, the law was amended, improving the procedure. The process for administrative appeal has now been codified in the 2015 Code of Administrative Procedure. This establishes the process for administrative cases at courts of general jurisdiction, including the Supreme Court, which has an Administrative Chamber. One positive innovation is that the Code allows collective appeals (class actions) by groups of 20 or more. Unfortunately the Code also limits representatives to those with legal qualification, despite complaints by Ombudsman Moskalkova and her predecessor Ella Pamfilova that without free legal aid, this impedes indigent citizens.104 D. The European Court of Human Rights (ECtHR) The first edition of this book stated: Russia’s decision to apply for membership of the Council of Europe (CoE) in May 1992 might in the long term be as significant as the USSR’s signature on the Helsinki Final Acts in 1 August 1975, which brought for the first time the possibility of external verification of Soviet compliance with international human rights agreements. In both cases, what began as a political decision has invaluable longer-term ramifications for the development and enforcement of human rights. (At 246, reference omitted) 103 See PH Solomon Jr, ‘Judicial Power in Russia: Through the Prism of Administrative Justice’ (2004) 38 Law and Society Review 549. 104 ‘Konstitutsionnyi sud ne razreshil sudit’sia s gosudarstvom bez diploma [Constitutional Court Did Not Allow Suing the State without a Diploma]’ Kommersant’, 12 October 2016.

230 The Treatment of Rights This could still be true, but Russia’s relationship with the CoE has become increasingly fraught, including its suspension from the Parliamentary Assembly (PACE) following the annexation of Crimea in 2014.105 Although reinstated in 2019, following the settlement of a dispute over Russia’s refusal to pay any dues while its representatives were excluded, tensions persist.106 The CoE had initial misgivings about Russia’s suitability,107 but concluded that ‘integration is better than isolation; cooperation is better than confrontation’.108 Russia’s membership was accepted in February 1996 and it ratified the ECHR on 30 March 1998, into force on 1 November 1998, along with some additional protocols and the Convention for the Prevention of Torture.109 CoE accession gives individuals in Member States the right to petition the ECtHR in Strasbourg about subsequent breaches of their ECHR rights, provided they have exhausted local remedies and apply within a six-month time limit.110 The 1993 Russian Constitution makes appropriate provision for this by Article 46(3) allowing applications in accordance with international treaties to ‘to inter-State agencies concerned with the defence of the rights and freedoms of man’. This countered the traditional autarky of the Russian judicial system.111 Importantly, the Constitution also asserts in Article 15(4) that: Generally-recognised principles and norms of international law and international treaties of the RF shall be an integral part of its legal system. If an 105 See ‘Russia and the Council of Europe’ House of Commons Library Research Briefing, 13 July 2018. 106 A Kortunov, ‘Russia Rejoins PACE: But the Battle isn’t over in Europe’ Carnegie Global Think Tank, 27 June 2019. 107 PA Jordan, ‘Russia’s Accession to the Council of Europe in Compliance with European Human Rights Norms’ (2003) 11(2) Demokratizatsiya 281, 285. See also B Bowring, ‘Russia’s Accession to the Council of Europe: Four Years on’ (2000) 4 European Human Rights Law Review 362. 108 Jordan, above n 107 at 285, quoting the CoE rapporteur reviewing Russia’s application. 109 For an overview of the impact of the ECHR in Russia, see B Bowring, ‘Politics and Pragmatism: The Constitutional Court of the Russian Federation and its 20 Years of Engagement with the European Convention on Human Rights’ (2018) 1(1) East European Yearbook of Human Rights 5. 110 See A Trochev, ‘All Appeals Lead to Strasbourg? Unpacking the Impact of the European Court of Human Rights on Russia’ (2009) 17(2) Demokratizatsiya 145, text to fn 13. 111 The USSR accepted the jurisdiction of the International Court of Justice in The Hague during perestroika – see T Schweisfurth, ‘The Acceptance by the Soviet Union of the Compulsory Jurisdiction of the ICJ for Six Human Rights Conventions’ (1990) 2 European Journal of International Law 110 – but this did not give recourse to individuals.

Rights Enforcement 231 international treaty of the RF establishes rules other than those provided for by a law, the rules of the international treaty shall apply.

Both articles are in entrenched chapters (see Chapter 3, sections III.A and III.C). However, other Russian legislative reforms affect Russia’s reception of ECtHR jurisprudence (see below). It is worth noting that Russia joining the CoE had a wealth of consequences besides acceding to ECtHR jurisdiction. Membership conditions were listed in a 1996 PACE opinion. They included 12 assurances and 25 commitments.112 Examples are: ‘demilitarisation’ of the penitentiary system, shifting it from the Ministry of Interior to the Ministry of Justice; changes to civil and criminal procedure; improving conditions in criminal detention; and removal of the death penalty.113 The latter issue is politically fraught, as public sentiment tends towards retention. The 1996 Criminal Code includes five crimes for which death by shooting is an optional punishment, but only for male convicts aged between 18 and 65. A de facto moratorium from August 1996 prevented executions from taking place.114 The Constitutional Court ruled in February 1999 that, based on Article 20 of the Constitution, imposition of the death penalty would be unconstitutional until jury trial was available throughout Russia. This would have pertained from 1 January 2010. The previous November, the Constitutional Court satisfied a Supreme Court request for clarification, ruling to extend the moratorium indefinitely. This essentially fulfils Russia’s promise to the CoE without formal ratification of Protocol 6 to the ECHR on abolishing the death penalty in peacetime.115 Russia has greatly impacted the ECtHR’s caseload. The deluge began as a trickle. Before June 2001, no case from Russia passed the initial admissibility test, but increasingly that hurdle was surmounted. The first substantive decision was in May 2002, when Russia lost a case brought by Anatoliy Burdov over a failure to receive compensation for injuries

112 See Jordan, above n 107; Bowring, above n 107. 113 See the discussions in Bowring, above n 107. 114 See DD Barry and EJ Williams, ‘Russia’s Death Penalty Dilemmas’ (1997) 8 Criminal Law Forum 231. 115 See V Sergeyeva and A Pokras, ‘The Abolition of the Death Penalty and its Alternative Sanction in Eastern Europe: Belarus, Russia and Ukraine’, Penal Reform International Research Paper, 2012.

232 The Treatment of Rights suffered responding to the Chernobyl nuclear disaster.116 As Alexei Trochev noted in 2009: Since then, the number of judgments has increased exponentially, from just 2 judgments in 2002 to 244 in 2008. By May 1, 2009, there were a total of 745 judgments involving Russia as a defendant.117

In 2012, ECtHR reforms eliminated early inadmissible applications. Additionally, the Russian authorities sent lawyers to Strasbourg to speed up the assessment process: The numbers began to decline, and by 2017 the number of complaints from Russia reached a record low figure of 7,750. Since then, their number has steadily increased, and by 2020 we can speak of a twofold increase in the number of applications compared to 2017.118

In June 2020, analysis by Moscow’s Higher School of Economics revealed that in 2019 Russian complaints amounted to almost 30 per cent (12,000) of the total of 44,000 received by the ECtHR. The Court handed down 1,884 decisions, of which 198 were complaints from Russian citizens.119 The 2020 Ombudsman’s report noted that more than 18,000 Russian complaints were currently under Court consideration, and in 2019 applicants from Russia had been awarded around €25.5 million in compensation by the Russian treasury.120 One major advantage of the ECtHR compared to Russian domestic courts is its ability to enforce judgments. Indeed, almost half of the cases from Russia involve complaints about a failure to implement domestic court decisions. Accordingly, as Trochev wryly observed, the ECtHR ‘is the most popular court in Russia today’.121 Sometimes an ECtHR decision is not required; instead, the Court’s pre-trial settlement procedure suffices. According to Kirill Koroteev, head

116 Burdov v Russia No 59498/00 (ECtHR, 7 May 2002), available at hudoc.echr.coe.int/ fre?i=001-60449. See JD Kahn, ‘Russia’s “Dictatorship of Law” and the European Court of Human Rights’ (2004) 29 Review of Central and East European Law 1. 117 Trochev, above n 110, text accompanying fn 25. 118 A Kornia, ‘Chislo zhalob rossiian v Strasburgskii sud [The Number of Russian Complaints to the Strasbourg Court]’ Vedomosti, 30 January 2020. 119 M Starikova, ‘Zhalobnoe liderstvi VShE proanalizirovala obrashcheniia v ESPCh [Complaining Leadership HSE Analysed the Appeals of Russians to the ECtHR]’ Kommersant’, 8 June 2020. 120 April 2020 Ombudsman report, cited in M Starikova, ‘Nekazonnoe ugolovnoe issledovianie [Illegal Criminal Investigation]’ Kommersant’, 15 April 2020. 121 Trochev, above n 110 at 145.

Rights Enforcement 233 of international practice of the human rights group Agora, during 2019 Russia agreed to satisfy 600 complaints without trial. He adds, ‘usually the overwhelming majority of such cases are about the actions of law enforcement agencies or the Federal Penitentiary Service’.122 However, increasingly, enforcement in Russia is problematic. A review by the newspaper Kommersant’ in late January 2020 revealed that in Russia at least 62 per cent of ECtHR decisions – on its most recent data, as of 17 December 2019, a minimum of 1,683 judgments – ‘are awaiting execution’.123 The ECtHR itself recognised that recurrent violations caused by systemic or structural problems are not remedied by individual compensation. Accordingly, it introduced a ‘pilot-judgment procedure’ under which one exemplar case is given priority, with its resulting ‘pilot judgment’ including clear indications of appropriate means to eliminate the dysfunction.124 The first pilot judgment against Russia in 2009 related to unconscionable delay in Burdov receiving his due compensation for his Chernobyl injuries.125 It had the desired effect.126 The ECtHR’s influence potentially goes beyond satisfaction for a small though increasing number of litigants. Russian judges are supplied with Russian translations of ECtHR rulings, and Convention rights are increasingly cited by Russian courts. In May 2019, CCRF Justice Nikolai Bondar reported that over 30 per cent of CCRF rulings contain references to the ECtHR and the ECHR, noting that reference had been made even before formal ratification.127 However, close study suggests that Russian courts invoke the ECHR in a sporadic and unsophisticated manner.128

122 A Prokof’ev, ‘Rossia – lider po zhalobam v ESPCh. O chen eto govorit? [Russia is the Leader in Complaints to the ECHR: What is This Talking about?]’ Polit.ru, 31 January 2020. 123 A Chernykh and M Starikova, ‘Ispolnitel’nyi list ozhidaniia [Executive Waiting List]’ Kommersant’, 18 January 2020. 124 ‘European Court of Human Rights, The Pilot-Judgment Procedure: Information Note issued by the Registrar’ (2009) available at www.echr.coe.int/Documents/Pilot_judgment_ procedure_ENG.pdf. 125 Burdov v Russia (No 2) No 33509/04 (ECtHR, 15 January 2009). 126 M Issaeva, I Sergeeva and M Suchkova, ‘Enforcement of the Judgments of the European Court of Human Rights in Russia: Recent Developments and Current Challenges’ (2011) 8(15) Sur – International Journal on Human Rights 67. 127 ‘Russia’s Constitutional Court Invokes European Human Rights Court, Convention in One-Third of Rulings – Judge’ Interfax Russia & CIS General Newswire, 15 May 2019. 128 See A Burkov, The Impact of the European Convention on Human Rights on Russian Law (Stuttgart, Ibidem-Verlag, 2007).

234 The Treatment of Rights Unfortunately, this ‘intrusion’ of ECtHR jurisprudence triggered a backlash.129 Amendments to the FCL on the CCRF came into force in December 2015, giving it a significant, but very imprecise, power.130 Under revised Article 3(3-2), the CCRF: [O]n the application of a federal agency of State power … when considering complaints against the RF in an interstate agency for the protection of the rights and freedoms of man on the basis of an international treaty of the RF decides the issue of the possibility [vozmozhnost’] of implementing the decision of the international agency.

The meaning of ‘possibility’ was not defined. Mechanisms were established: appeal to the CCRF could be brought either by the Russian federal agency responsible for handling the nation’s interests in international court cases, or by the President or the Government.131 Bowring notes that ‘the State Duma’s own lawyers had expressed concerns as to the legality of the amendments’132 in the light of Article 15(4) of the Constitution, the 1998 federal law ratifying the ECHR, and a binding Ruling of the Russian Supreme Court’s Plenum of 27 June 2013 on how to apply the ECHR. The CCRF gave its first judgment in such an appeal in April 2016.133 The issue was the possibility of implementing the ECtHR July 2013 judgment in the case of Anchugov and Gladkov v Russia,134 condemning a blanket ban on prisoners’ voting rights (aptly characterised by Bowring as ‘the Russian Hirst v UK’).135 Russia has a particular problem with this as Article 32(3) of the Constitution specifically stipulates that: ‘Citizens found by a court to lack dispositive legal capacity, and also citizens held in places of deprivation of freedom by a court judgment, shall not have the right to elect or to be elected.’ This is in an entrenched chapter, so arguably the 2013 ECtHR judgment condemning the prisoners’ voting

129 The following section draws on J Henderson, ‘Russia’s Recent Dealings with the Council of Europe and European Court of Human Rights’ (2018) 24(3) European Public Law 393. 130 For a thorough and nuanced analysis, see B Bowring, ‘Russian Cases in the ECtHR and the Question of Implementation’ in Mälksoo and Benedek, above n 14 at 188. 131 ‘Russian Duma Allows Constitutional Court to Override International Court Orders’ Moscow Times, 4 December 2015. 132 Bowring, above n 130. 133 No 12-P/2016, 19 April 2016. 134 Anchugov and Gladkov v Russia Application Nos 11157/04 and 15162/05, judgment of 14 July 2013. 135 Bowring, above n 130; Hirst v United Kingdom (No 2) [2005] ECHR 681, Application No 74025/01, judgment (Grand Chamber) of 6 October 2005.

Rights Enforcement 235 ban is inconsistent with the Russian Constitution. Indeed, in June 2015 a group of Duma deputies took a case to the CCRF to get a ruling on the constitutionality of, inter alia, Article 1 of Russia’s 1998 Law on Ratification of the ECHR, on the grounds that it ‘obliged Russian organs of legislative, executive and judicial power, to unconditionally implement judgments of the ECtHR, even in cases where such judgments contradicted the Constitution’.136 In July 2015 the CCRF issued a resolution (postanovlenie) that the Ratification Law was compatible with the Constitution.137 However, as Bowring presciently puts it, the CCRF ‘laid the basis’ for change by suggesting that in a future case, it could review the constitutional incompatibility of an ECtHR judgment. In March 2016, the Venice Commission published its Interim Opinion on the amendments to the FCL on the CCRF.138 The Final Opinion followed in June.139 Paragraph 13 noted: The Court [CCRF] considered that it was entitled, as an exceptional case, to disagree (with the ECtHR) but that it was ready to search for a lawful compromise within the limits of what the Russian constitution allows. The Court pledged to adopt a responsible and restrained approach to the solution of the question of the implementation of the judgments of the European Court of Human Rights.140

This restraint in general continued, although Russia did not follow the Venice Commission’s recommendation to remove the controversial December 2015 amendment. The timing of that amendment was suggestive. A number of cases were brought to the ECtHR as a result of the convictions of Mikhail Khodorkovsky and fellow YUKOS executive Platon Lebedev, and the dismemberment of YUKOS as a company.141 Amongst these was a claim by YUKOS shareholders of a breach of their right to a fair trial in the 2000 Russian taxation case against YUKOS. Their application to the ECtHR was in 2004; by 2009, admissibility was declared and the case was eventually heard in March 2010. The decision in 2011 vindicated the 136 Bowring, above n 130. 137 No 21-P/2015. 138 ‘Interim Opinion on the Amendments to the FCL on the CCRF’. 139 ‘Final Opinion on the Amendments to the Federal Constitutional Law on the Constitutional Court’. 140 ibid 5. 141 See ch 7, s III, text to nn 116ff. For an impressively perceptive summary of events and assessment of the ECtHR judgments, see L Groen, ‘The “Iukos Affair”: The Russian Judiciary and the European Court of Human Rights’ (2013) 38(1) Review of Central and East European Law 77.

236 The Treatment of Rights applicants, and time was given for the parties to settle. The judgment became final in March 2012 when the ECtHR’s Grand Chamber refused further appeal. Eventually, in July 2014 the ECtHR ruled that Russia should pay the claimants €1.86 billion in compensation and €300,000 in court fees. This was the largest award of damages ever made by the ECtHR, although substantially less than the €37.98 billion originally claimed, allowing Russia’s Deputy Justice Minister to claim that Russia was not a loser in the proceedings.142 Unsurprisingly, no payment was made. The CoE Committee of Ministers issued a final reminder on 15 June 2015, the very same day as the Duma deputies went to the CCRF for a ruling on the constitutionality of Russia’s 1998 ECHR Ratification Law. On 14 July 2015 the CCRF pronounced that in principle ECtHR judgments could be enforced in Russia, provided they did not contradict the Russian Constitution. However, this ruling did not specifically address YUKOS shareholders’ compensation issue. This was left to a later proceeding initiated by the Ministry of Justice in October 2016, asking the CCRF to verify the constitutionality of the ECtHR ruling obliging Russia to pay compensation to the former YUKOS shareholders. The CCRF hearing began in December, behind closed doors, and it gave its decision on 19 January 2017.143 Two of the 16 judges gave separate opinions, but the majority concluded that compensation payment to former YUKOS shareholders was (constitutionally) ‘impossible’. The main justifications were that the CCRF had earlier deemed YUKOS’ prosecution for tax evasion to be constitutional (the Court decided the statute of limitations did not apply to wrongdoers); in the historical context of the economic uncertainty of the 1990s, it was correct that the Russian Government should seek to ensure fair tax payments; YUKOS had acted in bad faith and should have foreseen Government action to recoup the tax. Giving compensation to the former shareholders for what the CCRF viewed as tax avoidance would be unconstitutional and therefore not possible.144 The two dissents drew in part on an amicus brief submitted by the Institute for Law and Public Policy. Judge Vladimir Yaroslavtsev, a serial

142 ‘Russia No Loser in Europe’s Yukos Case – Deputy Justice Minister’ Itar-Tass World Service, 22 October 2015. 143 For thorough comment and assessment, see Bowring, above n 130. 144 See M Timofeyev, ‘Money Makes the Court Go Round: The Russian Constitutional Court’s Yukos Judgment’, cited in Bowring, above n 109.

Rights Enforcement 237 dissenter,145 asserted that the CCRF contradicted the principle of legality and had exceeded its competence.146 Judge Konstantin Aranovskii was scathing of the CCRF’s reasoning and ‘Like Vladimir Yaroslavtsev … considers it “inadmissible” to consider the request of the Ministry of Justice in the Constitutional Court about the possibility not to comply with the ECtHR decision in the YUKOS case’.147 He also concluded that as the ECtHR had not named those to whom money was owed, there was no one to whom compensation should be paid.148 The CCRF’s decision obviously pleased the Russian authorities, and fitted the general mood in Russia of asserting exceptionalism and sovereignty.149 Since then, there has been further development. As noted earlier (see Chapter 7, section II.B), the CCRF’s extraordinary jurisdiction to decide about ‘the possibility of implementing the decision of an international agency’ is now embedded by the 2020 reforms in a new Article 125(51)(b). Also, an addition to Article 79 of the Constitution bluntly declares: Decisions of international organisations adopted on the basis of provisions of international treaties of the RF which in their construction are contrary to the Constitution RF shall not be subject to implementation in the Russian Federation.

This fits with Russia’s preoccupation with sovereignty. The amendment was condemned by the CoE experts in the Venice Commission,150 although they diplomatically did not comment on its relationship to Article 15 of the Constitution, which gives priority to ‘generally recognised principles and norms of international law and international treaties of the RF’. Andrei Klishas, the co-chair of the working group on constitutional amendments, ‘took note’ of the Venice Commission’s

145 See J Henderson, ‘Tenure and Discipline Developments in Russia’ (2011) 17(1) European Public Law 1, 2. 146 See A Pushkarskaya, ‘V dele IuKOSa poiavilos’ osoboe mnenie [Dissenting Opinion Appears in Yukos Case]’ Kommersant’, 23 January 2017. 147 A Pushkarskaya, ‘Rossia mogla ne platit’ i bez sanktsii KS opublikovano btoroe osoboe mnenie po delu IuKOSa [Russia Could Not Pay Even without the Approval of the Constitutional Court]’ Kommersant’, 26 January 2017. 148 ibid. 149 See, eg, Antonov, above n 19. 150 ‘Venice Commission of the Council of Europe Adopts Opinion on the Russian Constitutional Amendments Related to the Execution of European Court’s Decisions in Russia’ Council of Europe Directorate of Communications, 18 June 2020.

238 The Treatment of Rights opinion, but declared that: ‘No changes will be made to the amendment law in connection with this position.’151 The FCL on the CCRF was amended in November 2020 implementing the reform. Article 3(32) gives the Court jurisdiction to issue a ruling, at the request of the President, the Government, the Supreme Court or the Procuracy (added in July 2021), to say if it is ‘possible’ to implement interstate agencies’ decisions, depending on whether they are contrary to the Constitution RF. Under Article 3(33), one of the same group can ask the Court to resolve the possibility of implementing the decision of a foreign or international (interstate) court, or foreign or international arbitration court (arbitration) if it contradicts ‘the basics of public order’ in Russia. Thus, the CCRF’s power, gained in December 2015, to disapply a decision of an interstate human rights agency such as the ECtHR has now been extended to include a wider set of rulings contrary to nebulous criteria, albeit in both cases at the request of a limited range of agencies. V. CONCLUSION

An assessment of the state of human rights and their enforcement in Russia is problematic; depending on one’s view, it could be ‘glass half full’ or ‘glass half empty’. On the one hand, many important rights exist and are effectively enforced. On the other hand, rights protection can be absolutely contingent on whether the ruling regime feels a political threat. Pomeranz’s succinct characterisation of the Procuracy as focusing on the defence of social rights over civil rights exemplifies this approach.152 Also, the approach to rights has been politicised and Russia’s compliance with international rights standards has unfortunately become entangled with the currently popular Russian exceptionalism. The idealism of those drafting the 1993 Constitution has been replaced by a transactional approach to rights, reminiscent of Soviet dependent

151 ‘Klishas: popravki k Konstitutsii iz-za pozitsii Venetsianskoi Komissii meniat’ ne budem [Klishas: We Will Not Change the Amendments to the Constitution Due to the Position of the Venice Commission]’ Kommersant’, 19 June 2020. See also L Lezhneva, ‘Sami s pravami: kak popraka o prioritete zakonov RF povliiaet na stranu [Rights for Us: How the Amendment on the Priority of Laws of the Russian Federation Will Affect the Country]’ Izvestiia, 22 July 2020. 152 See above, text to n 96.

Further Reading 239 rights.153 But this may change. The inevitable demographic shift will before long bring to prominence generations born in a post-Soviet world, who may prefer to embrace international collaboration. FURTHER READING M Antonov, ‘Conservatism in Russia and Sovereignty in Human Rights’ Review of Central and East European Law 39 (2014) 1. M Antonov, Formalism, Decisionism and Conservatism in Russian Law (Leiden, Brill, 2021). B Bowring, ‘Russia and Human Rights: Incompatible Opposites?’ (2009) 1 Göttingen Journal of International Law 257. P Jordan, ‘Russia’s Accession to the Council of Europe and Compliance with European Human Rights Norms’ (2003) 11(2) Demokratizatsiya 281. L Mälksoo and W Benedek (eds), Russia and the European Court of Human Rights: The Strasbourg Effect (Cambridge, Cambridge University Press, 2018). WE Pomeranz, ‘Russia’s Resilient Legal Powerhouse: The Procuracy Enters the 21st Century’ 42 Kennan Cable, 24 June 2019, available at www.wilsoncenter. org/publication/kennan-cable-no-42-russias-resilient-legal-powerhouse-theprocuracy-enters-the-21st. Russia under Putin: 20 Years of Protests (Institute of Modern Russia Report, 2020).

153 ‘Rossiia vernulas’ k sovetskoi teorii prav i svobod [Russia Returned to the Soviet Theory of Rights and Freedoms’ Nezavisimaia Gazeta, 22 April 2021.

9 Conclusion

T

his book was written during a time of change for Russia, with the sudden arrival of draft constitutional amendments. This new edition has provided the opportunity to explore their impact in the context of Russia’s existing constitutional history. Chapter 1 raises the issue of Russian constitutionalism. When the Constitution was drafted, Russia incorporated a European/ Western liberal tradition, but over recent years has developed its own idiosyncratic approach. There has been a clear move away from the internationalist idealism of the perestroika reformers who strongly i nfluenced the Constitution’s formation, towards Russian exceptionalism and ‘conservative values’, even when this creates apparent conflicts with the Constitution’s text. Constitutional Court Chair Valerii Zor’kin’s emphasis on the spirit of the Constitution going beyond its words allowed this switch in emphasis even before the 2020 constitutional amendments embedded it. Chapter 2 surveys developments through pre-Imperial and Imperial Russia and the dynamic twentieth century, showing some common themes, such as reform from above, disjunction between words and deeds, recurrent societal division and distrust, and a tension between universalism and traditionalism.1 We track in Chapter 3 the troubled circumstances of the 1993 Constitution’s genesis, and in thematic Chapters 4–8 explore the Presidency, Legislature, Government and Judicial System bestowed by that Constitution. We note that presidential accountability is minimal and ineffectual, and the 2020 amendments have extended presidential power in what was already an unbalanced Constitution. Further change will inevitably come. At the time of writing, the current President is on the cusp of his seventieth year (born 1952). The

1 See, eg, T Borisova, ‘Russian National Legal Tradition: Svod versus Ulozhenie in Nineteenth-Century Russia’ (2008) 33 Review of Central and East European Law 395.

Conclusion 241 two highest judges, Chairs of the Supreme Court and the Constitutional Court, are almost 10 years older (born 1943). Although the constitutional amendments give Vladimir Putin the opportunity, if he so wishes, to seek re-election in 2024, it is only a matter of time before one way or another, Putin will no longer be President. Whether Putinism will survive that change is a subject of debate.2 Will generational change bring further constitutional change? Or even a new Constitution? Russia’s twentieth-century experience, albeit in a very different context, was of short-lived Constitutions. The longest lasting was the RSFSR 1978 Constitution, but that was subject to massive amendment during its latter years. As noted above, one recurrent theme is the ‘ideological clash between two opposite approaches to law and legality’, as so ably expressed by Tatiana Borisova:3 [T]he contrast between two slogans: ‘verkhovenstvo prava’ (the Russian analogue of ‘rule of law’) versus ‘diktatura zakona’ (dictatorship of law) … the first approach underlines the need to protect individual rights (pravo) and freedoms which are being constantly challenged by the state, while the second stresses the value of public order and the state’s interests, as stipulated in legislation (zakon).4

Russia’s current constitutionalism very much favours ‘diktatura zakona’; indeed, that phrase is favoured by Putin. Mikhail Antonov’s research also reveals contrasting approaches in Russian law, particularly in rights law. His analysis: [D]emonstrates what can be seen as one of the major paradoxes of Russian law. The Russian state has endorsed a lengthy list of liberal norms and principles that do not fit the actual political objectives of the state but is unwilling to change or repeal these norms and principles … Political developments in Russia (the rise of authoritarianism) shattered the previous liberal ideas about prevalence of human rights that once inspired the authors of the 1993 constitution. The actual normative state of affairs in Russian law shows the distance between the normative and the factual regulations; as legal realists would put it, between ‘law in books’ and ‘law in action’.5 2 See, eg, B Whitmore, ‘Russia: Putin May Go, But Can “Putinism” Survive?’ RFE/Radio Liberty, 29 August 2007 available at www.rferl.org/a/1078413.html; RE Berls, ‘Toward 2024 and Beyond: The Fate of Vladimir Putin’s Reign, Part II’ NTI, 13 July 2021. 3 T Borisova, ‘The Institutional Resilience of Russian Law through 1905–1917 Revolutions’ (2017) 5(4) Russian Law Journal 108, 109. 4 ibid, reference omitted. 5 MV Antonov, Formalism, Decisionism and Conservatism in Russian Law (Leiden, Brill, 2021) 195, reference omitted.

242 Conclusion This is not new, but it may be that the pendulum swing towards Russian exceptionalism is reaching its farthest point. Recent protests in Russia suggest that those who have come of age knowing nothing but Putin’s rule may prefer the law in action to respect the liberal values of protection of individual rights, tolerance of differing views and even celebration of diversity, rather than imposing social cohesion. Russia’s current path of attempting to constrain thought, speech and behaviour within the confines of a very ill-defined concept of traditional values may well fail in a world where international connections in virtual space are routine. However, we cannot be sure of such a development. The only certainty is that more change will surely come as the current regime of old men cannot sustain. FURTHER READING JM Dollbaum, M Lallouet and B Noble, Navalny (London, Hurst, 2021). E Luce, ‘“Succession”: The Xi, Putin and Biden editions’ Financial Tines, 30 July 2021. R Sakwa, Russian Politics and Society, 5th edn (Abingdon, Routledge, 2021)

Index For individual pieces of legislation, see Table of Legislation, p xvii 1993 Constitution, x, 1–2, 11–15, 52–4, 60–1, 62–4, 73–4 Articles 1–3, provisions of, 71 Article 67, 221–2 CCRF interpretation of, 185–6 citizen rights under, 209 constitutional amendment in, 64–70 Constitutional Court’s interpretation of, 61–2 constitutionalism and, 2–3 draft constitution, publication of (November 1993), 59–60 earlier constitutions, difference from, 63 federal subjects, in, 71 legal force of (Article 15), 74–5 local government in, 173 national vote for constitutional amendments, 69–70, 122 ownership rights in, 71–2 plebiscite for, 59 presidential term of office, on, 91–4 separation of powers in, 72 social support in, 71 State Council embedded in, 161–2 2020 constitutional amendments, vii–viii, 67–70, 73–5,79–81,83, 88–9, 93–4, 97–8, 100, 105–7, 113, 115, 118–9, 123, 132, 134–5, 145, 147–8, 150–2, 162, 174, 184–91, 193, 195, 203, 208–9, 221, 225–6, 237 Volodin’s proposed amendment to (2019), 142–3 voter error and, 60–1 ‘A Just Russia’ (political party), 127–8 absolutism, growth of, 16–19 Accounting Chamber (AC), 135–6 Administration of Affairs of the President, The, 101–2

Alekseev, Sergei, draft constitutions, 52–4 Alexander I (1801–25), 21–2 Alexander II (1855–81), 23–4 Alexander III (1881–94), views and actions of, 25 All-Russia People’s Front, The (ONF), 90–1 All-Russian Congress of Soviets, 34 All-Union Party Conference Resolution on Legal Reform (1988), 192 Alma Ata Declaration (1991), 47 amnesty, Duma’s power of, 141–2 Anna Ivanovna’s failed reforms, 19 Anti-Corruption Foundation (FBK), 217 April referendum 1993, 54 ‘April Theses’ (Lenin), 29 Arbitrazh courts – see commercial courts Article 81, Tereshkova’s amendment (2020), viii, 93–4 autocracy: Anna Ivanovna and, 19 Mongol development of, 13–14 October Manifesto, considered in, 26 autocratic power, ruler’s obligations under, 7–9 autonomous republics, 77 autonomy: federal subjects of, 77–8 regional, stifling of, 159 Brezhnev, Leonid, on ‘developed socialism’, 33 Catherine II (1762–96), 19–21 Enlightenment introduced by, 19–21 Central Bank, Duma’s oversight of, 136 Central Elections Commission (CEC), 34, 60, 111 Chamber for Economic Disputes (SCRF), 178 Church and State (Russia), unity of, 14–15

244 Index citizens: appeals (administrative appeals), 228–9 constitutionality of law applied to by CCRF, 188–9 representation in CPD, 40 Civil Code’s application in domestic and arbitrazh courts, 175 civil servants, 22–3 Codification Commission, 20–1 commercial courts, 172–3 common law: impact of lawyers, 7–9 judicial interpretation of, 8–9 communism, Khrushchev on, 33 Communist Party of the Soviet Union (CPSU), 126–7 compatibility Transitional Provision 9 (1993), 146 conservative political ideologies (Putin), 212 Constituent Assembly (1917), 27 constitutional amendment, vii–viii, 65–70, 133–4 Constitutional Arbitration Commission (1993), 56 Constitutional Assembly, convocation requiring FCL, 65 Constitutional Assembly (1993): draft of approved, 56 goals of, 56 members of, 55 opinions on, 55 Constitutional Court (CCRF), 9, 109–10, 141, 176,189, 190, 201–3 1993 Constitution, binding interpretation of, 61–2 2014 reform measures, 177–8 abstract review powers, 183 authoritative interpretation of Constitution, 185–6 consideration of rights arising from cases, 184–5 constitutionality of law applied to citizens, 188–9 declaration of unconstitutionality, effects of, 187 ECtHR judgments and jurisprudence, 234–5 (case law), 236 federal subjects’ draft laws, response to presidential query about, 187

international agencies’ decisions, implementation of in Russia by, 186–7 international treaties, checking constitutionalityof draft, 183 interstate agencies’ decisions, execution of, 186, 237–8 legislation, power to draft, 188 powers of provided by FCLs, 188 presidential impeachment proceedings, correct accusation procedure followed, 187 rulings and judgments, ECtHR and ECHR mentioned in, 233–5 separation of power issues, resolution of, 184 treaty application checked for constitutionality, 186 Constitutional Court (CCRF) judges: appointment of, 190 dismissal of, 195–6 ‘special opinions’, examples, 54, 156, 202 ‘special opinions’, right to give, 190 terms of office, 189 Constitutional Court judgments, 133, 197, 199, 210, 214, 231, 235, 236–7 Constitutional Court (RSFSR), 180–1 abolition of threatened (1993), 182 dispute over jurisdiction with SC, 181 judges of, 182 jurisdiction of, 172–3 political issues, consideration of banned, 182 powers of, 181–2 constitutional monarchy, attempt to create, 21–2 ‘constitutional state agency’, State Council is, 163–4 Constitutional Supervision Committee, USSR (CSC), 178 cases heard by, 180 declaratory opinions issued by, 180 powers of, 179–80 reduction of power and disbandment, 180 constitutionalism and 1993 Constitution, 2–3 constitutions in the Soviet State, 34

Index 245 Council of Europe: membership conditions (1996 PACE opinion), 231 Russian membership of, 229–31 Russian withdrawal, x Courts, see also commercial courts, Constitutional Court (CCRF), Constitutional Court (RSFSR), Supreme Court (SCRF) 2014 reforms, 175–8 adverse appeals, avoidance of, 198–9 case load management, 198–9 charter courts, 190–1 Civil Code applied in, 175 constitutional provisions, 172–8 extraordinary, 173–4 federal finance budget cuts, 175 funding shortages and, 197 Justice of the Peace, 191, 192 non-federal, 190–2 open proceedings in, 174 republic constitutional courts, 190–1 specialised, 174 criminal procedure, 174–5 Declaration of the Rights and Freedoms of Man and Citizen (RSFSR), 207 Declaration of the Rights and Freedoms of Man (USSR), 207 Declaration of the Rights of the Working and Exploited People (Lenin), 35 Declaration on the State Sovereignty of the RSFSR (1990), 45–8 decrees and regulations issued by government, 148 ‘dependent rights’, rejection of, 207 deputies’ role in CPD, 40–1 Deputy Prime Minister, PM’s right to discipline or dismiss, 151 dictatorship of law (‘diktatura zakona’ Putin), 74, 241 dictatorship of the proletariat (Lenin), 32 discrimination against the rural population, 35 Duma, 118–20 2007 and 2011 elections, 121 Central Bank, control of, 136

composition of, 119–20 consent needed from for PM appointment, 149–50 elections for and formation of, 120–2 government accountability, role in, 151 Government Chair (PM), appointment of, and, 136 governmental appointments, role in, 151 legislative practice and debate in (1990s–2015), 128–9 Parliamentary Query Procedure, 137–8 PM candidates, rejection of, 147–8 powers of amnesty, 141–2 sessions, 119 vote of no confidence in the Government, 151–2 Duma elections: 1993 elections, 59 2011 elections, 92, 156, 121–2, 213 electoral frauds and irregularities, 121–2 formation of Duma and, 120–2 periods between reform of, 65–6 reform measures for, 122 economic rights (Marxist), 36 edicts, presidential, 87, 98, 100, 102–3, 107, 142, 147, 154–5, 160, 165, 217 (RSFSR), 83 (USSR), 42 elections: accountability of President in, 110–12 CPD, to, 40, 41–2, 118 Duma – see Duma elections gubernatorial, 154–5, 157, 165 Engels, Friedrich, on Marxist theory, 32 Enlightenment, introduced by Catherine II, 19–21 equality of citizens (1977 Constitution), 37 European Convention on Human Rights (ECHR), CCRF rulings referred to in, 233–5 Russian Federation, application in, 230, 234 European Court of Human Rights (ECtHR), 229–38 caseload, Russia’s contribution to, 231–3 CCRF rulings and judgments, in, 233–6 jurisprudence in CCRF rulings, 234–5

246 Index ‘pilot-judgment procedure’, 233 Russian Federation, in, 234 Russia’s ability to petition, 230–1 ex-presidents: guarantees of support for (law), 87–8 immunity of, 112–13 impeachment procedure for, 113–14 fair trial in Russia, 199–201 (case law) Federal Assembly (FA), 118 Addresses by President, 95–6 budgetary and financial oversight of, 135–6 Federal Constitutional Laws (FCLs), 124 2020 amendments to, 70 adoption procedure, 134 CCRF and, 183, 188 Constitutional Assembly, convocation of, 65 government, establishment of by, 145–6 rights enforcement after adoption of, 223–4 topics of, 134 ‘federal districts’, Medvedev and Putin create, 103–4 federal Government decrees and regulations, presidential power to cancel, 107 federal laws (law): 2020 amendments to, 70 ex-presidents, guarantees of support for, on, 87–8 presidential elections on, 86–7 federal legislation: FC’s consideration of, 132 presidential powers for, 97 procedure for adoption, 130 stages of, 131–2 ‘federal presidential representatives’ (Polpredy), 102–5 opinions about, 104–6 federal relations, 77 Federal Russia, 75–80 Federal Security Service (FSB), involvement in judicial selection, 195 federal subjects: 1992 treaties, subject to, 78 1993 Constitution in, 71

autonomy of, 77–8 draft laws, response to and CCRF, 187 presidential power to suspend legislative acts, 107 responsibilities and jurisdiction of, 79 structure and details of, 78–9 types of, 4–5 Federation Council (FC), 118–20 appointment of members (1995), 123 composition of, 119–20, 123, 124–5 federal bills, consideration of, 132 formation of, 123–6 Parliamentary Query Procedure, 137–8 powers of, 142 President’s power to appoint members, 106 Putin’s reform package (2000), 124, 125–6 sessions, 119 foreign agents, organisations and individuals classified as, 218–19 foreign and military affairs, Presidential powers of, 98–9 Framework Convention for Protection of National Minorities (Council of Europe, 1994), Russia’s ratification of, 210–11 glasnost’, 38, 39, 42, 180 Gorbachev, Mikhail Sergeevich, ix, 1, 33, 38, 40, 44, 47, 179–80 putsch against, 44, 141 USSR President, as, 42–3, 47, 76–7, 88 government: 2020 amendments on, 148 appointments, Duma’s role in, 151 central government reforms (Peter I) (1717), 18 Chair, Duma’s role in appointment of, 136 competence, 148 composition and establishment of, 145–51 decrees and regulations issued by, 148 dismissal of, President’s power over, 152 Duma’s vote of no confidence in, 152 FCL establishes, 145–6 Hour (Duma), 138

Index 247 members, prohibition on holding other offices, 146 size of, 146–7 government accountability, 151–2 CPD to, 85 Duma’s role in, 151 government formation, 147–8 2020 reforms, 147 governors: acting, presidential appointment of, 159 appointment procedure, 156 elections for, 153–4,156, 157 presidential power over, 108 Head of State, President as, 88–9 High Commissioner for Human Rights see ombudsman Highest Commercial (Arbitrazh) Court (HCC): abolition of (2014), 66, 175–7 jurisdiction of, 172–3 role and tasks of, 175 Highest Judicial Qualification Collegium (HJQC), 194–5, 194 decisions of, judges’ appeal against, 194–5 homosexuality, 217–18 human rights: 1977 Constitution, not in, 37 backlash, 211–12 establishment of, 206–8 Human Rights, High Commissioner for see ombudsman violations, Parliamentary Commission set up for, 138–9 Ianaev (Yanaev), Gennadii, USSR VicePresident, 43 impeachment of President, 113–14 correct accusation procedure for, CCRF ensures, 187 ex-presidents, of, 113–14 Imperial Russia, approaches to reform, 28 ‘Independent Principalities’, 11–13 individual picketing, 215–16 individual rights (1977 USSR Constitution), 36 revolution, 75 Soviet law on, 35–8

inherent rights, 207–8 international agency decisions, issue of implementation of, 186–7, 234–5 International Commission of Jurists (ICJ), 195–6 Report (2014) on appointment of judges, 196 international legal agreements, USSR’s ratification of, 206–7 international treaties, CCRF cannot check once in force, 183 interstate agency decisions, CCRF ruling on applicability, 186, 237–8 ‘Ivan the Great’ (Ivan III), 14 ‘Ivan the Terrible’ (Ivan IV), 15 successors of, 16 judges: accountability and independence of, 192–204 backgrounds of, 197 Constitutional or Supreme Court, process for dismissal of, 195–6 dismissal of, 195–6, 203–4 ICJ Report on appointment of (2014), 196 JQC decisions, appeal against, 194–5 passivity of, 197 RF Council of, 194 tenure of, 193 judicial independence, 192–204 deprivation of, 196–7 organisational changes can impact, 203 judicial interpretation, Russian and common law approaches compared, 8–9 judicial power: courts’ administration of, 63,173 procuracy and, 63, 224–5 Judicial Qualification Collegium (JQC), 193 decisions of, judges’ appeal against, 194–5 justice, courts’ administration of, 173 Justice or Complicity? LGBT Rights in the Russian Courts (2016 report), 218

248 Index Khodorkovsky, Mikhail, 199–201 (politicised prosecutions) Khrushchev, Nikita, on communism, 33 Kononov, Anatolii (CCRF judge), resignation of, 190, 202 Kotov, Konstantin, violation of Law on Rallies, 214–15 Land Assemblies (Sobornoe Ulozhenie), 16 land holdings, hereditary status of established, 18 law: legality and, approaches to, 241 Russian terminology of, ix laws: constitutionality of, 183–4, 186 publication of, 133 lawyers and judges, Russia and European development of compared, 7–8 legal nihilism, 5–7 legal reforms (1864), 24 Legal Reform, CPSU Resolution on (1988), 39, 192 legislation: CCRF and SCRF power to draft, 188 Presidents’ creation or initiation of, (2000–16), 96–8 procedure for adoption, 130 Public Chamber assesses, 165–6 zakon, ix, 133,188–9 Legislature (see also: Duma, Federal Assembly, Federation Council): establishing multi-party, 117–29 Yel’tsin’s struggle with, 54, 84 Lenin, Vladimir Il’ich, 18, 27, 29, 32–5, 38, 69, 126, 224 local and provincial government, reorganisation of (Alexander II), 24 local government (see also: public power): 1993 Constitution, in, 73 peasants’, 24 marriage, defence of (2020 Constitutional amendment), 223 Marxist theory: Engels on, 32 society, on, 31–2 state and law, on, 31–3

mass street protests, additional sanctions for, 213–16 matreshka federalism, 77 media outlets identified as foreign agents, 219 Medvedev, Dmitrii Anatol’evich, viii, 65–6, 90–2, 94, 98, 104, 106, 111–2, 114–5, 122, 134–5, 150, 156, 165–6, 168, 194, 200–3 ministers: appointment of by Yel’tsin, presidential power for, 84–5 appointment under the 1993 Constitution, 146–7 dismissal, 148, 151 ‘presidential bloc’, 99, 106, 141–2, 146–9 Ministry of Justice, 99, 194, 219, 231, 236–7 Minsk Agreement (1991), 47 Mongol: administrative system, 13 autocracy, development of, 13–14 conquest, Russian transformation under, 13–14 ‘morality politics’, 212–13 ‘municipal filter’ (regional governor elections), 156, 157–8 Nakaz of Catherine II, 20–1 Navalny, Alexei, 87, 217, 219 Nicholas I, 22–3 totalitarian control of, 22 Nicholas II, constitutional reforms (1905–6), 25–6 non-traditional sexual relations, 217–18 October Manifesto (1905), 25–6 autocracy considered in, 26 Okhrana (secret police), 25 ombudsman, 227–8 annual reports of, 228 powers of, 228 Oprichniki (Ivan the Terrible’s security organisation), 15 Organization for Security and Cooperation in Europe (OSCE), 87, 111, 121, 122

Index 249 Orthodox Christianity, Russian population’s conversion to (988), 11–12 ownership rights in 1993 Constitution, 71–2 parliamentary: control measures, 136–7 oversight, 139–41 queries and statements as control measures, 140–1 query procedure (Duma and FC), 136–7 Parliamentary Assembly to the Council of Europe (PACE), 111, 197, 230–1 Russian suspension from, 230 Parliamentary Commission: human rights violations, for, 138–9 procedure for setting up, 138–9 party politics, President’s independence from, 90 peaceful assembly, right to, 213 perestroika, 38–43 19th Party Conference, discussed at, 38–9 elements of, 38 Russian developments (1989–90), 45, 117–18 USSR Constitution amendments, 39–41 Peter I (Peter the Great), 17–19 Emperor, becomes (1721), 17 innovations of, 17–18 state control measures, 17–18 places of detention, oversight of, 168–9 plebiscite on 1993 Constitution, 59–60 plebiscite on 2020 amendments, 69–70, 122 political parties: overview of, 126–9 party registration, 128 Yel’tsin ban of Soviet and Russian Communist Parties (1991), 46, 182 Posner, Vladimir, 220 ‘power ministries’, presidential power over, 99, 106, 141–2, 146–9 ‘pravo’, ix, 38–9, 241 ‘pravovoe gosudarstvo’, viii, ix, 39

presidential: activity, 95–9 Administration (PA), 100–1 edicts, power to issue, 97 edict number 1400 (1993), 58–9 immunity, 112–13 office, requirements and qualifications for, 89–91 representatives, appointment of, 102 presidential elections: federal law on, 86–7 irregularities in, 111–12 presidential powers, 95–110 implied, 109–10 to legislate, 97–8 presidential term of office, 91–4 1993 Constitution on, 91 discounting previous terms of, viii, 68–9, 93 early termination of, 91 reform of length (2008), 65 president: appointment of Prime Minister, role in, 149–50 dismissal of government and ministers, 152 FC members, appointment of some, 106 government ministers, appointment of, 99 Head of State, as, 88–9 impeachment of, 113–14 legislation, role in, 96–8 Legislature, conflict between (1993), 54 party politics, independence from, 90 regional governors, supervision of, 158–9 residence and citizenship qualifications and requirements, 210 Prime Minister (PM): appointment of, 149–50 candidates proposed by, Duma’s rejection of, 147–8 disciplinary actions against deputy PM or federal ministers, 51 duties of, 151 government activity, determination of, 151

250 Index Procuracy, the, 224–7 2014 constitutional reform, in, 107, 225 2020 constitutional reform, in, 107, 225 history and development of, 18, 224 increasing role of, 226–7 judicial power and, 63–5, 188, 197, 224–5 Procurator-General (P-G), 130, 158, 183, 188, 221 appointment and dismissal of, 106–7, 225–6 ‘propagandising to minors non-traditional sexual relationships’ (offence), 218 Public Chambers, 164–70 legislation assessed by, 165–6 membership of, 166 regional, 167 ‘work carried out by’, 166–7 Public Monitoring Commissions (ONKs), 168–9 public order and demonstrations, 214–6 public power, 67–8, 80, 108, 158, 162–3, 170 Pussy Riot trial (2012), 212–13 Putin, Vladimir Vladimirovich: ‘2024 problem’, viii, 66, 94, 115, 143, 161 acting President (2000), 89 as Prime Minister (2008), 66, 90–2 constitutional amendment proposals (2020), vii, 67–9 Federal Council, reform of (2000), 124–6 ‘federal districts’, creation of, 103–4 FSB head, as, 106–7 public power, bill to amend, 68, 73 President, election as (2004), 90 President, election as (2018), 87 ‘Question and Answer’ call-in session (presidential), 96 third term of office (2020 amendment), 93–4 referendum (USSR Gorbachev 1991), 43–4 referendum (Yelt’sin), 53–4, 58 regional: administrations (1991-), 153 legislatures, 129 local government and, central control of, 158

regional government, 153–9 Soviet period, during, 153 regional governors: President’s supervision of and powers over, 108, 158–9 procedure to put in office, 84, 125, 153–7, 201–2 ‘rehabilitation of Nazism’, punishment for, 220–1 religious feelings, disrespect for, 219–20 repeated demonstration offence rule, 214 Resolution on Democratisation (CPSU 19th Party Conference 1988), 39 Resolution on Legal Reform (CPSU 19th Party Conference 1988), 39, 192 right to protest, 213–16 right and duty to work (1977 Constitution), 36–7 rights: enforcement, 223–38 inherent rights, 48, 75, 207 politicisation, 213–21 Soviet dependent rights, 37, 206 RSFSR Congress of People’s Deputies (CPD), 117–18 government accountability to, 84–5 RSFSR Constitution (1918), 30 RSFSR (Russian Socialist Federated Soviet Republic), 29–30 constitution and laws, development of, 45–6 rule of law, Russian interpretation of, viii–ix, 204, 241 Rumiantsev Commission (1990–2), 52 rural population, 1918 RSFSR Constitution discrimination against, 35 Russian: compatriots (Russians living abroad), 80, 211 language, official language of RF, 222 presidency, first, 82–6 Russian Declaration of the Rights of Man and Citizen (1991), 48 Russian Federation, 3–4, 47–8, 75, 77–80 ECHR application in, 186, 230–5 Russian Federation Treaty (1992), 48, 64, 78

Index 251 Russian presidents: characteristics of, 83 duties and responsibilities of, 82–3 first, 82–6 first presidential election, 84 powers of, 83–4 Russkaia Pravda (Russian law), 12 Senate, Peter I establishes, 18 Senators (Federation Council), 123 terms of membership of FC, 124–6 separation of powers: 1993 Constitution, in, 72 resolution of issues of by CCRF, 184 serf emancipation, 23–4 serfdom: ‘Abolition of Serfdom in Russia, The’ (1861), 23–4 consolidation of, 16–17 Shakhrai, Sergei, drafts of 1993 Constitution, 53–4 Skuratov, Iurii, Yel’tsin’s attempted dismissal as Procurator General, 106–7 Sobchak, Anatolii, draft of 1993 Constitution, 52–3 Sobornoe Ulozhenie (law code), 16 social support in 1993 Constitution, 71, 208, 223 socialism: ‘developed socialism’ (Brezhnev), 33 Stalin on, 32–3, 35 society, Marxist theory on, 31–2 socio-political rights (1977 Constitution), 37–8 Soviet: Constitutions, 33–5 elections, pre-election selection, 30–1 Experiment, end of, 43–4 system, 30–1 Soviet of Workers’ Deputies (1905), 29 Soviet State: conventions in, 34 creation of, 29–31 Speransky, Mikhail, 21–2 Stalin, Joseph, on socialism, 32–4 state: administration, agencies of (1936), 30 agencies (Soviet), 30, 34–5

law and, Marxist theory on, 31–3 Lenin on, 33–4 State Council, 160–4 1993 Constitution, embedded in (Putin), 161–2 business and membership of, 160–1, 164 power of (2020), 162 Presidium, 161 State Council status: ‘constitutional state agency’, is, 163–4 determined by federal law, 162–3 state power, federal agencies in 1993 Constitution, 72–3, 163 Sudebnik (Russian law code 1497, 1550), 15 Supreme Court (SCRF): reform of (2014), 66, 175–6 dispute over jurisdiction with CC, 181 judges’ dismissal, of, 195–6 jurisdiction of, 173 role and tasks of, 175 Supreme Soviet (USSR), 30 1988 reform, 40–1 Presidium (USSR 1988 reform), 41 ‘Table of Ranks’ (1722), 18 ‘tandemocracy’, 92 Tereshkova, Valentina, Article 81 amendment (2020), viii, 93–4 Treaty of the Federation (Russian, 1992), 48, 64, 78 unconstitutionality, declaration of, and CCRF, 175, 187 underage protesters, control of, 216 undesirable organisations, 221 Union Republics (USSR): Declarations of Sovereignty, 77 seats in UN, 76 sovereign states, as, 76 status of, 73–7 United Nations, Union Republics’ seats in, 76 United Russia (UR) political party (2001), 90, 121, 122, 127, 147 unpublished laws, 133 unsanctioned demonstrations, increased fines and periods of detention for, 214

252 Index USSR Congress of People’s Deputies (CPD), 39–42, 44 citizen representation on, 40 elections to, 40, 41–2, 118 televising of sessions, 42 Yel’tsin elected to, 45 USSR (Union of Soviet Socialist Republics), 29 constitutions of, 29 President, role of created, 43 Presidium (1920), 30 Supreme Soviet, powers of, 30, 178–9 Vice President, role of created, 43 veche procedure, 13 Venice Commission Interim Opinions, 35, 164, 219, 221, 235, 237 vertical (‘vertikal’) of power, 2, 71, 104, 105, 108, 155 Vice-President, significance of lack of, 88–9 Volodin, Viacheslav, 2019 proposed amendment to Constitution, 142–3 vote of no confidence by Duma, 151–2 voter error and 1993 Constitution, 60–1

voting rights (1936 USSR Constitution), 35–6 October Manifesto (1905), in, 26 Working Group on constitutional amendments (2020), 67–8 amends FCLs and federal laws, 70 Yaroslavtsev, Vladimir (CCRF judge), resignation of, 202 Yel’tsin, Boris Nikolaevich, 41 1991 presidential election, 84 1996 presidential election, 110–11 additional powers and, 84, 85–6 CPD USSR and RSFSR, elections to (1989,1990), 45 impeachment action against (1993), 53–4 legislation, control over, 97 legislature, interaction with, 57, 84 loss of authority, 58–9 presidency of, 84–6 ‘presidential coup’, 57–8 YUKOS (oil company), 199–20, 235–7 zakon, ix, 30, 133, 188–9, 241 Zor’kin, Valerii, 66, 84–6, 182, 185, 189–90, 201, 211–12, 240