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Judicial Review and Individual Legal Activism: the Case of Russia in Theoretical Perspective

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Judicial Review and Individual Legal Activism: the Case of Russia in Theoretical Perspective Judicial Review and Individual Legal Activism: The Case of Russia in Theoretical Perspective Anna Jonsson Uppsala University Faculty of Law & Department of East European Studies 2005 In Memory of Stig V. Svensson Dissertation for the Degree of Doctor of Law at the Faculty of Law, Uppsala University in 2005. Copyright © Anna Jonsson 2005 Printed in Sweden ISBN: 91-85031-05-4 ABSTRACT Jonsson, Anna (2005), Judicial Review and Individual Legal Activism: The Case of Russia in Theoretical Perspective, Faculty of Law, Uppsala University. This dissertation deals with judicial review of governmental action and individual legal activism. It investigates whether judicial protection of individual rights and individual legal activism, within the field of public law, can be seen as an alternative or complement to electoral control of political and administrative powers. To discuss the effect of various standing rules and the potential societal function of public law adjudication, a model for analyzing the character of public law adjudication has been developed. The model allows for a characterization of public law adjudication as either Liberal or Republican, depending on features of standing rules, court proceedings, and court decisions. It concludes that judicial protection of individual rights and individual legal activism within the field of public law can be seen as an alternative or complement to electoral control of political and administrative powers, especially when public trust in, and the powers of, the legislative assembly and political parties is low and decreasing, and if the preconditions for individual legal activism are of such a character that access to justice is available to the larger public and not only a limited group of advantaged individuals. This theoretical framework is then used to analyse judicial protection of individual rights and individual legal activism in post-Socialist Russia. The results show that the Russian state is best described as authoritarian and that the traditional principal-agent relationship is weak. Thus, in order to strengthen the individual in relation to the state, alternatives for exercising control and participation are required. An analysis of the legislative framework, i.e., the law as it is laid down in the books, shows that Russian administrative law is rights-based and that the character of Russian public law adjudication is closer to the Republican model than the Liberal. However, the Russian support structure is still weak and finds itself in an increasingly inhospitable environment – legally, financially, and politically. In addition, this dissertation concludes that Russia’s membership in the CoE has had an impact on judicial protection of individual rights within the sphere of public law in terms of: improving the legislative framework; developing Russian court jurisprudence referring to the ECHR and to the jurisprudence of the ECtHR; exerting pressure on the Russian state to improve practices of the state bureaucracy; stimulating individual legal activism, and increasing individuals’ knowledge and awareness of their lawful rights and how to implement them. Keywords: Judicial review, judicial protection, individual rights, individual legal activism, democracy, support structure, standing rules, legal aid, public law adjudication, civil society, Council of Europe, access to justice, Russia, post-Socialist, legal transition. Anna Jonsson, Department of East European Studies, Uppsala University, Box 514, 75120 Uppsala, Sweden. Acknowledgements Writing this dissertation has allowed me to go places, meet people and experience things that I otherwise probably would never have had the chance to do. It has been a great experience for which I am eternally grateful. I am indebted to several persons for making this possible. I am especially indebted to my supervisors Anders Fogelklou and Thomas Bull. Without their expertise, inspiration, and encouragement this would not have been possible. It has been a great pleasure to travel with Anders Fogelklou to Eastern Europe and to benefit from his knowledge about the region. Thomas Bull has patiently listen to my concerns, provided advice, and read manuscripts. This is a dissertation in Constitutional Law, but my employment has been with the Department of East European Studies, at the Faculty of Social Sciences, Uppsala University. Although I sometimes has felt awfully lonely as a legal scholar, this mixture of two academic worlds has indeed been stimulating. Amongst other things it means that I have had the opportunity to present texts at Higher Seminars at both the Faculty of Law and the Department of East European Studies. The comments and recommendations provided in both places have been of great help. I especially want to thank Fredrik Sterzel, Lena Marcusson, and Daniel Lindvall for valuable comments on the text. Besides, Ivan Pavlov has provided important comments on parts of the text on the Russian legal order. Iain Cameron and Jane Henderson have been generous with references and material. In addition, Eric Boberg has read and commented on early drafts of specific chapters of the dissertation. Through the years I have been fortunate to be supported by colleagues and friends. I first arrived at the Department of East European Studies in 1998 as a student. Since then, Anders Fogelklou, Stefan Hedlund, and Kristian Gerner have been great sources of inspiration. In addition, Stefan Hedlund has offered valuable support. A very special quartet of grand ladies, Jarmila Durmanova, Lena Wallin, Kerstin Nyström and Eva Dreimanis, has, all in their own special ways supported, encouraged and raised the spirit in so many ways. As have Johan Öhman and Christoffer Hägg, friends from student life that later became colleagues, and Johan Larsson and Matthias Sigfridsson. Rebecca Stern, Mona Aldestam, and Lotta Lerwall have contributed to me not having lost contact with colleagues on the other side of “the Old Square”. This dissertation is written within a multi disciplinary project led by Axel Hadenius at the Department of Political Science, Uppsala University and sponsored by the Bank of Sweden Tercentary Foundation, In addition, STINT has generously granted a scholarship for spending four months in Moscow at the Institute for State and Law at the Russian Academy of Sciences. Apart from that my doctoral studies has been funded by the Department of East European Studies. Engaging in studies of the Russian legal order is not an easy task and I am grateful to several persons who have contributed to making this possible. Boris Topornin for accepting me as a visiting scholar at the Institute for State and Law. Yuri Filippov, Anna and Max, and Lali for making my stay in Moscow a pleasant one. Alexander Kvoschinsky, Irina Kalinina, Olga Shepeleva, and Ivan Pavlov for helping me to find my way in the legislative jungle. I believe that changing environments, meeting new people, and traveling is essential for inspiration. Therefore I am especially thankful to Herman Schwartz for making it possible for me to spend three months at the Washington College of Law, American University. This trip was also made possible by a travel grant from the Faculty of Law at Uppsala University. In addition, several trips have been made possible and pleasant due to the generosity of friends. Liv Tigerstedt generously opened up her home in Strasbourg, as did Joanna Kurosz during one of my trips to Moscow. I have had invaluable help from several persons turning this text into a book. Christopher Goddard has edited the language and Svante Cornell has copyedited and made the layout. Last, but not least, I want to thank my family and friends for their patience and support. Without good friends life would be utterly boring. However, with Jennie, Linda, Lotta, Louise, and Ulrika around this will never be the case. Svante has made sure that I would not starve to death. His generous support and encouragement is indeed essential to me and I cherish every moment that we have and will spend together. My mother Bodil, grandmother Elsa and aunt Nilla have through the years believed in and supported me, as did my grandfather Stig, who unfortunately cannot share this moment with me. This book is dedicated to his memory. Anna Jonsson Stockholm, April 2, 2005 Contents Acknowledgements .....................................................................................v Abbreviations ............................................................................................ xi Part One - Introduction 1. Introduction.............................................................................................1 2. Research Design......................................................................................6 2.1 Purpose and Research Questions................................................................................6 2.2 Methods Used to Address the Research Questions .................................................7 2.3 Delimitations..................................................................................................................9 2.4 Sources ..........................................................................................................................13 2.5 Outline of the Dissertation ........................................................................................14 3. Theoretical Approach............................................................................ 16 3.1 A Theoretical Approach to Public Law....................................................................16
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