KUTAFIN UNIVERSITY LAW REVIEW
Volume 1 September 2014 Issue 1
WHAT IS CONSTITUTIONAL LAW TODAY?
THE SCOTTISH INDEPENDENCE REFERENDUM: PEACEFUL, CONSENSUAL, AND LAW-BASED
JURY TRIAL: THE RULE OF LAW OR NULLIFICATION?
IVAN IL'IN: RUSSIAN PATRIOT, LEGAL THEORIST, AND DEFENDER OF THE RULE OF LAW
LEO TOLSTOY AND LAW
INTERPRETIVE APPROACH for Next issue INTERNATIONAL LAW
www.kulawr.ru www.kulawr.ru [email protected]
THETHE BBESTEST IDEASIDEAS AREARE ALWAYSALWAYS WWELCOMED!ELCOMED! KUTAFIN UNIVERSITY 2 KUTAFIN UNIVERSITYLAW LAW REVIEW REVIEWVolume I (September 2014) Issue 1 Volume 1 September 2014 Issue 1
Senior Editorial Council Andrea Bonomi Sergey Pashin (University of Lausanne) (Higher School of Economics, William Butler Moscow) (Pennsylvania State University) Roman Petrov Peter Van Elsuwege (Kyiv-Mohyla Academy) (University of Ghent) Csaba Varga Christophe Hillion (Catholic University, (University of Leiden) Budapest) Dimitry Kochenov Junjie Zhang (University of Groningen) (Minzu University of China)
Editorial Board Team Editors-in-Chief Submissions Editors Paul Kalinichenko Marina Lazareva (Kutafi n University, Moscow) (Kutafi n University, Vologda) Irina Alebastrova Ekaterina Tyagai (Kutafi n University, Moscow) (Kutafi n University, Moscow) Executive Editor Public Relations Editors Olga Shevchenko Alexander Ermolenko (Kutafi n University, Moscow) (Kutafi n University, Moscow) International Editors Оlga Gourjian Natalia Sokolova (Kutafi n University, Moscow) (Kutafi n University, Moscow) Diversity and Development Maria Zakharova Editors (Kutafi n University, Moscow) Alexey Salomatin Online Editor (University of Penza) Sergey Zaikin Oleksiy Kresin (Kutafi n University, Moscow) (Volodymyr Koretskyi Institute Promotion Editors of State and Law, Kyiv) Maria Antokolskaja Boris Strashun (VU University Amsterdam) (Kutafi n University, Moscow) Yulia Kalinina Editors (Kutafi n University, Moscow) Jensen Bigelow Bartosz Mendyk (Davidson College, North Carolina) (Jan Kochanowski University, Kielce) Arsen Gourjian Ekaterina Shugrina (Worcester Polytechnic Institute, (Kutafi n University, Moscow) Massachusetts) Vladimir Zhbankov Junior (Student) Editors (Kutafi n University, Moscow) Anna Brodskaya Projects Editor (Kutafi n University, Moscow) Nikita Lyutov Olga Gavrilova (Kutafi n University, Moscow) (Kutafi n University, Moscow)
Frequency Publisher KULawR always welcomes new two issues per year Kutafi n Moscow authors and sponsors Contacts State Law University (MSAL) www.kulawr.ru 9 Sadovaya-Kudrinskaya str., All rights reserved. Any part of [email protected] Moscow, Russia, 123995 this journal may not be published +7 (499) 244-86-85 http://msal.ru/en/ elsewhere without the written www [email protected] consent of the publisher +7 (499) 244-86-35 2 CONTENTS
Welcome Note ...... 4
LAW EVOLUTION Constitutional Law: Notion and Sources Lecture by Boris Strashun ...... 5
LEGAL CONFLICT MANAGEMENT The Scottish Independence Referendum of September 2014: Constitutional and International Aspects Article by Alyson JK Bailes ...... 23
TOWARDS THE 150th ANNIVERSARY OF THE ALEXANDER II JUDICIAL REFORM The History and Challenges of Reintroducing Trial by Jury in Russia Article by Sergey Pashin ...... 41
LEGAL CLASSICS On the Appearance of I. A. Il’in’s Legal Consciousness: Towards the History of the Publication Essay by William E. Butler ...... 55
EXECUTIVE POWER Canadian Model for Centralized Delivery of Legal Services and its Application in Russia Article by Sergey Kabyshev ...... 80
SPORTS LAW Limits of State Intervention and Non-Intervention in the Sports Field Article by Igor Ponkin and Alena Ponkina ...... 92
www.kulawr.ru Volume 1 September 2014 Issue 1 CONTENTS 3
ECONOMIC INTEGRATION Participation in International Trade Organizations as an Indirect Means of Strengthening Human Rights in the Russian Federation Note by Bartosz Mendyk ...... 105
COMPARATIVE LAW OF HUMAN RIGHTS The Russian Commissioner for Human Rights and the European Ombudsman: Comparative Analysis Note by Olga Gavrilova ...... 117
WTO LAW Should the WTO Have Rules on Frivolous Claims in its Dispute Settlement Understanding? Note by Yulia Mogutova ...... 128
BOOK REVIEW Two Books on the Top Shelf Review by Maria Zakharova ...... 141
CONFERENCE REVIEW Judicial Independence as Essential Foundation of Justice and Peace Review by Vladimir Zhbankov ...... 146
Volume 1 September 2014 Issue 1 www.kulawr.ru 4 KUTAFIN UNIVERSITY LAW REVIEW
Dear readers,
On behalf of the Kutafi n University Law Review, let us be among the fi rst to welcome you to the pages of our journal. We hope you will fi nd this periodical as enjoyable as we do. This is one of the few English-language legal journals in Russia. The Kutafi n Moscow State Law University (MSAL) was founded in 1939 as a successor of the Judicial Courses. Today, the MSAL is the biggest and most famous Law University within the territory of the former Soviet Union. About 18.000 students are studying different law disciplines behind the walls of the MSAL at the moment. The Kutafi n University Law Review (KULawR) was established by the MSAL in 2014 as an editorial project aimed to spread legal knowledge generated by leading Russian scholars all over the world. Their achievements have not been accessible to respective non-Russian speaking audiences for a long time. One of the main ideas of this journal is to fi ll that gap. In addition, we welcome contributions from all legal researchers from every corner of the world. We would like to bring the Kutafi n University Law Review to the level of a new and authentically international law journal. It presumes that the content of the periodical should refl ect actual, modern, and innovative legal issues. The contents of the KULawR cover different legal branches and scholarships. We would be happy to focus on random topics of law, as well as allied sciences – legal sociology, criminology, forensics, etc. The pages of the KULawR are opened for a wide range of new and creative opinions. We hope you will enjoy reading the Kutafi n University Law Review. All additional information may be found on the journal website at www.kulawr.ru
Editors-in-Chief Irina Alebastrova, PhD, Associate Professor Paul Kalinichenko, Doctor of science (Law), Professor www.kulawr.ru Volume 1 September 2014 Issue 1 5
LECTURE
CONSTITUTIONAL LAW: NOTION AND SOURCES
By Boris Strashun
Author Doctor of science (Law), Institute of State and Law, Academy of Sciences of the USSR, 1978 Professor, Kutafi n Moscow State Law University E-mail: [email protected] Abstract This paper consists of two main parts. The fi rst one gives an understanding of the term “Constitutional Law” and its different meanings: as a system of legal regulations, legal studies, and an academic discipline. It’s worth mentioning that some scholars defi ne Constitutional Law as a Political Law. This is also correct, even if nowadays, some constitutions tend to include certain issues that seem to be absolutely irrelevant; for example, the ones concerning the institutions of marriage and family. This results from the fact that a constitution-maker considers those issues to have a political meaning. Regarding methods of legal regulation, they are not much different from the ones used in other branches of law, which are: obliging, permitting (authorizing), and prohibiting. At the same time, the author also mentions the method of general principles declaring. Constitutional Law as legal studies is a result of its norms and social relations research, which elaborates recommendations for lawmakers and relevant state bodies concerning the proper development and interpretation of Constitutional Law norms. Most of the law universities in Russia include Constitutional Law of the Russian Federation and Foreign Countries, as well as Comparative Constitutional Law, as a part of scholar program. The second part of this paper defi nes the sources of Constitutional Law. There are also some ideas of constitutionalism. Keywords Constitution, constitutionalism, Constitutional Law
Volume 1 September 2014 Issue 1 www.kulawr.ru 6 KUTAFIN UNIVERSITY LAW REVIEW
§ 1. The Term “Constitutional Law” and “State Law”. Object, Subject and Methods. Scholarship and Studies
1. First of all, Constitutional Law is a system of legal norms. Most of the scholars consider that system to be a branch of law, which is not absolutely correct. Constitutional Law is more the basis of law than a branch of law. What’s more, Constitutional Law contains essential principles of different law branches (Criminal Law, Civil Law, etc.). Until the end of the last century, Constitutional Law had the name of “State Law” in Russia. It’s worth mentioning that the term “State Law” includes all kinds of norms, which regulate organization and activity of a state, i.e. Administrative Law and Process, Judicial Law and Process. Constitutional Law is considered to be a fundamental part of Public Law. Sometimes it may seem diffi cult to differentiate Public Law from Private Law for the reason of the interlacing of Economics and Ecological Law and the infl uence of the European Union and International Law.1 The Constitutional Law of Russia, as well as that of the countries with the Anglo-Saxon and Roman systems, includes all the norms that have constitutional meaning, regardless of the source that contains them. The term “Constitutional Law” originates its name from the name of basic law, the Constitution, which appeared in the time of Ancient Rome. This term used to mean “order”, “structure”. The system of law norms that is nowadays called Constitutional Law used to regulate only a structure of public authority in Ancient Rome. In modern times, there are just a few countries that still use the term “State Law”. Most of the modern states defi ne a system of fundamental legal norms as Constitutional Law. It’s worth mentioning that Constitutional Law appeared in a relatively peaceful way in just a few countries. In most of the cases, it emerged as a result of revolution or other kind of violence. But anyway Constitutional Law became fi rmly established upon fi nding a compromise between contradictory social interests. This is very important for society in general because it has a risk of
1 H Maurer, I Staatsrecht, Grundlagen. Verfassungsorgane. Staatsfunktionen. 6, überarb und ergänzte Auflage (2010) München: C.H. Beck 8. www.kulawr.ru Volume 1 September 2014 Issue 1 Boris Strashun Constitutional Law: Notion and Sources 7
self-destruction without that compromise. What’s more, this concept is exactly what the social and political nature of Constitutional Law means. The object of Constitutional Law should, fi rst of all, include political relations, i.e. relations concerning the organization and functioning of political authority, especially public authority. Constitutional Law sometimes can be defi ned as Political Law, which is also correct, even if nowadays, some constitutions tend to in-clude certain issues that seem to be absolutely irrelevant for politics; for example, the ones concerning the institutions of marriage and family. In particular, the Constitution of the Federal Republic of Brazil contains a lot of similar provisions, so it means that constitution makers consider them to be politically important in this case. The subject of Constitutional Law is formed by the norms regulating social relations, which have to be refl ected in the Constitution. One of the most important Russian Constitutionalists and Legal Scholars, O.E. Kutafi n, stated as follows: The most important subject within Constitutional Law is a group of social relations, which form a ground for the state organization. Another group of social relations is formed by the relations that have a basic level of signifi cance for those spheres through which they have come into existence. Such relations are not obligatory and they can become elements of Constitutional Law, just in case where there is a state interest2. Art. 10 of the Russian Federation Constitution of 1993, declares: “State power in the Russian Federation comes into effect on the grounds of division between legislative, executive, and judicial powers. The respective authorities of the legislative, executive, and judicial powers are independent”. So, state power in the Russian Federation shall be exercised on the basis of its division into legislative, executive, and judicial powers. The respective authori-tative bodies of the legislative, executive, and judicial powers shall be independent. Certain provisions of the Constitution, as well as other laws, specify the limits of every branch of power independence, in addition to the forms of their interaction.
2 Kutafin O.E. Predmet konstitutsionnogo prava. M.: Norma, 2001 (OE Kutafin, The Subject of Constitutional Law (Norma 2001)).
Volume 1 September 2014 Issue 1 www.kulawr.ru 8 KUTAFIN UNIVERSITY LAW REVIEW
Certain provisions of the Constitution, as well as other laws, describe and specify the limits of every branch of power independence, in addition to the forms of their interaction. Regarding the other group of relations (non-obligatory ones), Art. 200 of the Brazilian Constitution, is a very good example of those relations that defi ne the competence of the Common Health System. It’s worth mentioning the opinion of the French Professor J.-P. Jacqué on the subject: “As its subject, Constitutional Law defi nes political relationships with the state power as the most important component.”3 Like many other branches of law, Constitutional Law uses three methods for legal regulation: obliging, permitting (authorizing) and prohibiting. For example, according to § 2 of Art. 17 of the Brazilian Constitution, political parties are obliged to register their statutes with the Superior Electoral Tribunal; according to § 3 of that article, they are permitted to have free access to radio and television; and § 4 of the same Article prohibits them to involve any military organization. At the same time, Constitutional Law implements the method of general principles declaring. For example, Art. 1 of the Polish Constitution of 1997 declares: “the Republic of Poland shall be the common good of all of its citizens”. The method of defi nitions (normative determinations) is also rather common for Constitutional Law. Art. 20 of the German Fundamental Act of 1949, declares: “the Federal Republic of Germany is a democratic and social state”. 2. Constitutional Law as legal studies is the result of the research of relevant norms and relations. It elaborates recommendations for lawmakers (other relevant state bodies) concerning the proper development and interpretation of Constitutional Law norms. But the lawmakers are not always eager to follow those recommendations. The problem is that sometimes, a theory is too far-removed from the reality of practice. But it is more common that legislative, administrative and even judicial practice steps aside from the norms of Constitutional Law, either because of misunderstandings of law norms idea, or because of some sort
3 J.P. Jacqué, Konstitutsionnoe Pravo i politicheskiye instituty. Uchebnoe posobiye / Perevod s fr. Maklakova V.V. M.: Yurist, 2002 (J.P. Jacqué, Constitutional Law and Political Institutions. Tutorial (Translated from French by V Maklakov, Lawyer 2002)). www.kulawr.ru Volume 1 September 2014 Issue 1 Boris Strashun Constitutional Law: Notion and Sources 9
of evil intent. Unfortunately, this kind of phenomenon became more and more common in the last decades. 3. Scholar program of Russian law universities includes Constitutional Law of the Russian Federation, Constitutional (State) Law of Foreign Countries and Comparative Constitutional Law. Constitutional Law of the Russian Federation among others includes Municipal Law, Electoral Law and Constitutional Judiciary. An academic program and educational materials on Russian Constitutional Law are structured according to the structure of the Russian Federation Constitution. Foreign textbooks are different. First of all, they often contain a brief presentation of a general theory of Constitutional Law, or even of a State, subsequently presenting parts that characterize Constitutional Law institutes. The typical example of a Constitutional Law textbook is the one written by Karel Klima, the Czech Professor of Law.4 The fi rst part of it includes general provisions, which characterize the nature of the European Constitution. The subsequent part is devoted to the history and provisions of the Czech Constitution. Finally, it contains a part that deals with Constitutional Court Practice. There is a different approach in “Constitutional and Administrative Law” by the Principal Lecturer of Law at De Montfort University, N. Parpworth.5 The textbook, fi rst of all, contains the essential principles of the Constitution, followed by its structure, and thereafter, by sources of Public Law. It also includes the judicial review of administrative actions, alternative means of compensation, and fi nally, provisions on civil liberties. Another British textbook, which has the same title, written by Professor J. Alder,6 includes general principles (political values: liberalism, republicanism in spite of the monarchic form of government, equality, democracy; sources of the Constitution; historical outline; an overview of the main constitutional institutions; the territory and regions; the rule of law; the separation of powers; parliamentary supremacy; the European Union), followed by government institutions (Parliament, the Crown, ministers, and departments), Administrative Law (the grounds for
4 K Klíma , Ústavní právo. 4. vyd. Plzeň: Aleš Čeněk, 2010. 5 N Parpworth, Constitutional & Administrative Law. (4-th edn, Oxford University Press 2006). 6 J Alder, Constitutional and Administrative Law (Palgrave Macmillan 2009).
Volume 1 September 2014 Issue 1 www.kulawr.ru 10 KUTAFIN UNIVERSITY LAW REVIEW
judicial review, such as illegality and ultra vires, beyond ultra vires, and judicial review remedies; human rights; exceptional powers, such as a security, state secrecy, and emergencies). Another example is “Constitutional Law,” written by Brazilian Professor A. de Moraes.7 It includes the following parts: a general defi nition of Constitutional Law, the constitution-making power, fundamental rights and guarantees, constitutional rights protection, social rights, political rights, political and administrative organization (i.e. organization of the territory), Public Administration, the organization of Powers and of the Public Prosecutor’s Offi ce, the legislative procedure, the control of constitutionality, the defense of the State, and democratic institutions. Therefore, sometimes, it might be hard to differentiate between Constitutional Law and Administrative Law, and even Judicial Law, in some cases. It might depend on the constitution maker’s intention.
§ 2. The Sources of Constitutional (State) Law. Constitution as the Primary Source. Constitutionalism. Other Sources
1. The primary source of Constitutional (State) Law, by its nature, is the Constitution. Constitutions usually have a written form and consist either of a single document (in most of states) or of several documents. For example, the French Declaration of Rights of Man and Citizen (1789), the Preamble of the former Constitution (1946), and the Charter of Environment (2004) are all those documents that have equal legal force with the French Constitution of 1958 and are the integral parts of the French material Constitution. The Swedish Constitution consists of the following acts: the Instrument of Government (1974), Act of Succession (1810), the Freedom of Press Act (1949) and the Fundamental Law on Freedom of Expression (1991). But, as stated above, constitutions exist as a single document in most of the modern States. It is worth mentioning a manuscript of a Russian lawyer, published not long ago, which states: “… A Constitution, in its way, is a social contract between
7 A Moraes, Direito Constitucional. (5a ed., revista e ampliada, Atlas 1999). www.kulawr.ru Volume 1 September 2014 Issue 1 Boris Strashun Constitutional Law: Notion and Sources 11 different social and political forces of a society – the rulers and the ones being ruled. It must be clear for citizens.”8 Some states have so-called unwritten constitutions. The best example is Great Britain, where there is no single constitutional document. The main source of the British Constitution (but not the only one) is the Statute Law. It consists of several laws, which are adopted by Parliament and have the equal legal force. Constitutional norms are also created by doctrine and courts’ practice. The author doesn’t think it’s a good method. However, J. Alder mentions in his text-book: Those familiar with written constitutions sometimes suggest that the UK does not have a constitution. This is, at least historically wrong in that the term ‘constitution’, although originally meaning a government enactment, was used in Britain in its modern sense at least by the seventeenth century. More importantly, the substantive content of a constitution can be the same whether or not it is written down. … Dicey (1915) pointed out that a written constitution can be torn up whereas the unwritten constitution of the UK is embedded in the structure of the law as a whole (Chapter 7). … The language of a written constitution may be very vague, leaving plenty of room for disagreement. For example, the US constitution has been interpreted at different times as both justifying and outlawing slavery.”9 Written constitutions usually consist of a preamble, sections, chapters, or other sorts of parts. As a general rule, the main structural units are articles, which may consist of numbered or non-numbered parts. Some articles of the Brazilian Constitution, for example, have paragraphs. Some constitutions may have paragraphs instead of articles (for example, in Finland). Although a constitution is the supreme law of a state, and even of a society, it doesn’t mean that any constitution is always realized in full. It relegates control to the powers that is – to the head of State, to the government, even to the
8 Lisitsyn-Svetlanov A.G. Predisloviye. Konstitutsiya v ХХI veke: sravnitel’no- pravovoe issledovanie / Pod. obshch. red. V.E. Chirkin. M.: Norma, Infra-M, 2011 (A.G. Lisitsyn-Svetlanov ‘Preface’, The Constitution in the 21st Century: Comparative Law research (V Chirkin ed., Norma, Infra-M 2011)). 9 Alder (n 6) 8.
Volume 1 September 2014 Issue 1 www.kulawr.ru 12 KUTAFIN UNIVERSITY LAW REVIEW
parliamentary majority – and, therefore, operates as a social compromise that is expressed when it is more or less convenient to all sides. But a correlation of forces is changeable, and when there is no possibility to change the Constitution the balance of social interests is violated from above and from below. Then the Constitution becomes more or less fi ctitious. In addition a social confl ict becomes possible, which sometimes happens. In order to evade an easy adaptation of the Constitution to the current interests of the ruling political force, the constitution-making power aims at a certain rigidness of the Constitution. For example, the Russian Constitution of 1993, in its Chapter 9, contains a special defense mechanism for three Chapters – for Chapter 1 (grounds of the constitutional order), for Chapter 2 (rights and freedoms), and for Chapter 9 itself (constitutional amendments and review of the Constitution). To make changes in those Chapters, a convocative decision of the Federal Assembly has to be adopted by a majority of at least 3/5 votes of all members. The Constitu-tional Assembly convocation should be put into effect according to the federal constitutional law, which is not adopted yet, since there is no any common consent on its contents within the society. The Constitutional Assembly either has to confi rm the effi cacy of the valid Constitution or develop a new Constitution, adopting it by 2/3 votes of all members or submitting it to national voting. In case of submission, participation of more than a half of all voters and an expression of will from more than a half of them is required. The other chapters of the Constitution have to be adopted by 3/4 of all Federation Council members and 2/3 of all the State Duma members, and approved by 2/3 of all federal unit legislatures. The implementation of amendments in 2008 and 2014 showed it as not complicated process under the current conditions. Going back to the topic of amending, the Fundamental Act for Germany can be amended by a decision of 2/3 of all deputies of the Bundestag (the parliament) and 2/3 of all members of the Bundesrat (the chamber representing governments of the federal units). Nevertheless, such rigidness does not prevent the amending of the Fundamental Law nearly every year. In India and in some other countries, seeking some similarity to the system of the USA, an amendment is not included in the text of the Constitution, but receives an ordinal number and is added to the Constitution after the end of its text. If a part of the constitutional text is abrogated, it is excluded from www.kulawr.ru Volume 1 September 2014 Issue 1 Boris Strashun Constitutional Law: Notion and Sources 13 the Constitution or is formally left with an indication that it is replaced by an amendment. In Brazil, amendments with consecutive numbers change the text of the Constitution and are incorporated into it. In France, Italy, and some other countries, the Constitution is amended by constitutional laws, which include amendments to the constitutional text. In Italy, constitutional laws may also have another subject; for example, adopting the statutes of fi ve regions with a special status. In Russia, federal constitutional laws don’t amend the text of the Constitution and must comply with it. In France, if a law is adopted by a referendum, it has the legal force of the Constitution and its constitutionality wouldn’t be examined by the Constitutional Council. Many constitutions prohibit amending or abolishing of defi nite norms. Art. 89 of the French Constitution prohibits its review, if that review involves a territory violation of the Republic or government form changes. Part 3 of Art.79 of the German Fundamental Law prohibits any amendments, which can affect: a division of the State into federal units; their principal participation in the legislation; the duty of the State power to respect and defend human dignity and the people’s adherence to inviolable and inalienable human rights; the absoluteness of directly acting upon human rights as part of the legislation; executive power and justice; the democratic, social, and federal character of the State; belonging of the State power to the people; the restrictions of the legislation by the constitutional order and of the executive power by the statute and the law; and the right of the Germans to resist any attempts to remove the constitutional order. The legal protection of a constitution (constitutional control or supervision) is realized in many countries nowadays, either by any court of general jurisdiction (the USA), or only by the Supreme Court (India, Japan), or by the Constitutional Court or Tribunal (Russia, Spain, Italy), or by the Constitutional Council (France, Kazakhstan). The idea of the Constitutional legal protection is to stop the legal effect of any normative or administrative act that doesn’t comply with one of the constitutional norms. That can mean an abrogation, invalidation, a checking of an act, or a deprivation of its legal force. That should be a result of either a court decision, or a legislative or administrative decision. The difference between control and supervision is determined diversely. Mostly, the control assumes the power of a controlling body to abrogate an act of a controlled body, while the supervision entails maximum checking of a
Volume 1 September 2014 Issue 1 www.kulawr.ru 14 KUTAFIN UNIVERSITY LAW REVIEW
supervised body act. If required, the supervised body either has to amend the act or abrogate it and issue a new one. Sometimes, the control may refer to an incidental intervention and the supervision as a constant observance. So long as there is no settled meaning for both terms, we use the term “constitutional control” in a wide sense, including the meaning of “supervision.” Constitutions usually determine the scope of persons who have a right to initiate a procedure of the constitutional control. That scope tends, more often than not, to include those individuals who have the right to constitutional complaint. 3. The term “constitutionalism” originates from the term “constitution”. Constitutionalism appeared in Western Europe as an idea of a state-due organization, proposing the limitation of a Public Power by guaranteeing human rights and freedoms, and by non-admission of any concentration of power in the hands of one branch of power (separation of powers principle). American Professor A. Dick Howard proposed the following fundamental values of constitutionalism:10 a) Consent of people guaranteed by representative bodies, free organization of political parties, free access to voting, and free discussion of political issues; b) Limited government, secured by separation of powers; c) Open society, illustrated, in particular, by the judgment of the USA Supreme Court, according to which there exists a deep national adherence to the principles of free, healthy, and widely open discussions on social problems; d) Inviolability of the person, including privacy and autonomy; these rights may be either absolute or limited; e) Norms of law (fi rst of all, the ones that are applied to human beings) and due process of law, supposing justice, expressed in equality and fairness; f) Succession (stability), coupled with the adaptation of constitutions to new conditions, either by changing their texts or through judicial interpretation.
10 Khovard D. Konstitutsionalism // Progress-Univers. 1992. S. 53-65 (D Khovard, Constitualism (Progress-Universe 1992) 53. www.kulawr.ru Volume 1 September 2014 Issue 1 Boris Strashun Constitutional Law: Notion and Sources 15
Professor R. Bellamy (Great Britain) specifies two kinds of constitutionalism – legal and political ones: a) Legal constitutionalism is formed by law norms (fi rst of all, constitutional ones), regulating the organization of public power institutions so that they could guarantee the rights and freedoms of a human being and citizen, but could not concentrate power and violate, with impunity, these rights and freedoms. As a general rule, legal constitutionalism supposes the existence of a constitution with supreme legal force, and that of the superintending control, which, in this case, is the court; b) Political constitutionalism supposes functioning of the public power in interest of the whole society, a possibility of infl uence on it (including the participation of all adults in it), mentally sane and law-abiding (lawful) citizens, equal attitude to them, and respect of their justifi ed interests on all sides, i.e. a real democracy11. The author would like to mention another kind of constitutionalism, which is an imitated one. It has the necessary institutions of law (constitutions, elections, representative bodies, local self-government, and others), but their real meaning in a society life is either lacking or completely absent. Such constitutionalism may be observed in the majority of contemporary States, including Russia. It would be incorrect to look at this constitutionalism with contempt: as a progressive development of societies, this constitutionalism may turn into a real one, because its infrastructure already exists. There is an opinion that only 23 European States have a functioning democracy. They have a tradition of judicial independence, protection of rights, and a stable system of law. Only three of the mentioned states have a strong system of constitutional judicial review. In four of them, the majority is verifi ed by the Upper House of the Parliament12. It’s worth mentioning that there are some scholars (for example, Professor R. Bellamy) who think that legal constitutionalism’s admission of judicial review of laws does not warrant any preference over democratic political
11 R Bellamy, Political Constitutionalism: a Republican Defense of the Constitutionality of Democracy (Cambridge University Press 2007) 1. 12 ibid 2.
Volume 1 September 2014 Issue 1 www.kulawr.ru 16 KUTAFIN UNIVERSITY LAW REVIEW
constitutionalism. In their opinion, confl icts in the society have to be settled in a political way because courts suffer from many vices for which parliaments are blamed. The reference to the law doesn’t help because laws are sometimes arbitrary and do not guarantee an equal attitude towards citizens. They believe that people need to be self-governed, just to settle those confl icts. Professor R. Bellamy, however, has to admit, that the domination of parties on the political arena leads to a gradual diminishing of democracy. He notes that the democratic mechanism is ill-suited for securing an effective and just government in contemporary, complex, and globalizing societies, where the electorate is too vast and diverse, problems are too technical, and the scale of government is too large for citizens. Under those conditions, constitutionalism could hardly offer the best available instruments for actual democratic decision-making. It becomes global and, as a result, doesn’t give an opportunity for people to contribute to the processes that infl uence their lives. Nevertheless, Professor R. Bellamy supposes that the judicial control of constitutionality remains weakly established, and an unreliable as a method of constitutional values maintaining13. Analyzing political and legal situations of European states, the author comes to the conclusion that in those countries, political constitutionalism is being narrowed, while legal constitutionalism remains more or less stable. Now, let us address to the political issues of the USA pretending to be the standard of democracy. As it was mentioned in the mass media, capital punishment, disregards international agreements, racial and gender discrimination, and mass violations of personal freedoms form a list of claims that the UN member- states put forward to the USA (and the list of them is far from completeness). In most of the countries, including the ones recognized as democratic, we can see, regardless of constitutions, the strengthening of executive power based on the prejudice of legislatures. Integration into the European Union, as it is noted in the western literature, has led to a greater alienation of power structures from the population. It’s worth mentioning that many generations of Russian people did not know democracy. Therefore, it would be naive to suppose that in 20, or possibly even in 40, years, Russia will become accustomed to a democratic way of life,
13 ibid 260–61. www.kulawr.ru Volume 1 September 2014 Issue 1 Boris Strashun Constitutional Law: Notion and Sources 17 as current conditions do not promote it. Democracy demands a responsible attitude of a citizen to his/her social affairs. So the author believes that the constitutional imitation phenomenon will exist in Russia until the social psychology of the people improves. It’s hardly expedient to oppose both kinds of constitutionalism (political and legal). It is much better to realize their optimal combination in practice. In some Moslem states, they have different understanding of Constitutional Law. For example, in Iran, it’s the Quran, and not the Constitution, that has the supreme legal force. An important group of Constitutional Law sources includes laws with constitutional content adopted by parliaments or referendums. They may have different legal force in different countries. Most of the law mentioned above are simple or ordinary laws and their legal force is equal to all the other laws. But in some countries, the legal force of constitutional laws is higher than simple laws, and may even have the same legal force as a constitution does. In Italy, for example, constitutional laws affi rm the charters of fi ve regions with special status. In the Russian Federation, constitutional laws are issued only at the federal level. Federal constitutional laws regulate issues directly foreseen by the Constitution. But there are situations in which the legislator either exceeds the limits of a constitutional norm or, on the contrary, doesn’t follow it at all. According to Art. 84 of the Russian Federation Constitution of 1993, the President of the Russian Federation assigns a referendum in the order established by a federal constitutional law. That means that a federal constitutional law has to regulate only the order of the assignment of a referendum by the President. But the Federal Constitutional Law of June 28, 2008 “On the referendum in the Russian Federation” regulates the whole totality of norms related to carrying out a referendum. Art. 108 (part 1) of the Russian Federation Constitution of 1993 declares: “federal constitutional laws are adopted on the matters foreseen by the Constitution of the Russian Federation”. Some scholars consider that this norm is to be interpreted verbally. In such a case, provisions, which are not less important for the regulation of referendums than the regulation of the order of their assignment, have to be specifi ed in ordinary laws. This makes the system of
Volume 1 September 2014 Issue 1 www.kulawr.ru 18 KUTAFIN UNIVERSITY LAW REVIEW
regulation to be unnecessarily complex and uncomfortable for law enforcement, as its unity may thus be violated. However, according to Art. 128 (part 3) of the Russian Federation Constitution of 1993, an order of forming federal courts and their activities is established by a federal constitutional law. What’s more, those laws that regulate constitutional matters must have the form of federal constitutional law, but the reality can be quite different. For example, the Federal Law of March 4, 1998 “On the order of adopting and bringing into effect of amendments to the Constitution of the Russian Federation” is an ordinary federal law. Those laws that themselves maintain amendments, in spite of the complex procedure of adoption (the same applies to the federal constitutional laws procedure), are not called federal laws, but laws of the Russian Federation, and their legal force is in pari passu with the chapters 3 – 8 of the Russian Federation Constitution of 1993. Many Roman countries (such as Italy, France, Spain and Rumania) have organic laws, which regulate the status of Public Power. The adoption of such laws is complicated and their legal force is higher than that of simple laws. In Brazil, organic laws are municipal constituent acts and are, in their own way, constitutions of municipalities. It’s worth mentioning that Art. 59 of the Brazilian Constitution contains a list of acts that have to be adopted by the National Congress. There are: amendments to the Constitution; supplementary laws; ordinary laws; delegated laws (they are adopted by the President upon the permission of the National Congress); provisional measures, which the President issues in urgent cases for immediate presentation to the National Congress; legislative decrees; and resolutions. Court judgments are also very important as Constitutional Law sources, especially in Anglo-Saxon countries, where those acts sometimes have a character of obligatory precedent. It’s a legal position, which is usually included in the motivating parts of judicial judgments or in the conclusions of superior courts on the issue of interpreting law norms. More often than not, legal positions on the problems of Constitutional Law are contained in acts of constitutional courts or tribunals, or those of constitutional councils. They sometimes have the legal force of the Constitution and sometimes, they make up for its evident defi ciencies. A good example is the judgment of the www.kulawr.ru Volume 1 September 2014 Issue 1 Boris Strashun Constitutional Law: Notion and Sources 19
Russian Constitutional Court of October 31, 1995, which foresaw the order of amendments to Chapters 3–8 of the Constitution, and later took the form of an ordinary federal law. There are some Russian scholars who share the well-known position of Montesquieu, according to which a judge is not a lawmaker, but only “the mouthpiece” of a law. The State’s practice overturns that position, because even a judicial interpretation of constitutions and laws is impossible without the establishment of norms. It is not merely by chance that court judgments have the legal force of a law, while decisions of constitutional courts – and other courts with equal authority – sometimes have the legal force of the Constitution (at least via the interpretation of constitutional norms). 3. Treaties are considered to be a source of Constitutional Law in most of the modern states. First of all, it is about all kinds of international treaties, which can be different: agreements, conventions, pacts, and so on. Sometimes, a constitution only recognizes the superiority of ratified treaties, while ratification is made by parliaments (their chambers) or by heads of states upon the consent of parliaments (chambers). As a general rule, the principle of superiority mentioned above is not applied to constitutions, which are supreme legal acts. As a rule, the legislator isn’t obliged to bring a national law into line with an international treaty: in case of any contradictions between national and international norms, international ones should apply. As a matter of fact, there are other approaches. The Constitution of the Slovak Republic of 199214 (point “a” of part 1 and part 3 of Art. 125) states that the Constitutional Court passes judgments about the conformity of laws with the Constitution, constitutional laws, and international treaties, to which the National Council (the parliament) gave its consent. In case of a lack of conformity, verifi ed by a judgment of the Constitutional Court, a law or its provision should no longer be valid. Intra-state treaties can also be considered as Constitutional Law sources. For example, according to Art. 145 (part 2) of the Spanish Constitution of 1978, statutes of autonomous communities (the biggest territorial units of Spain) may contain provisions, requisites, and conditions of their mutual
14 Č. 460/1992 Zbierki zákonov. The last amendments: 2012 Z.z 232.
Volume 1 September 2014 Issue 1 www.kulawr.ru 20 KUTAFIN UNIVERSITY LAW REVIEW
agreements for the purposes of administration and services. They have to inform the Parliament of those agreements, which sometimes requires the approval of General Cortes. 4. The acts of the bodies of the European Union also serve as Constitutional Law sources for the European states, even when those acts are not international treaties, but have a supranational character and regulate constitutional relations. The best example is a judgment of the European Human Rights Court, established by the Convention on the Protection of Human Rights and Fundamental Freedoms of 1950, which was adopted by almost all European States. In Russia, like in many other states, there is no international treaties’ priority over the Constitution, so when there is a contradiction with judgments of the Russian Constitutional Court, it is in relation to those of the Human Rights Court. 5. It’s very common for Constitutional Law sources to serve constitutional customs (in the United Kingdom of Great Britain and Northern Ireland, they are called constitutional agreements), although they have legal force. Yugoslavian Professor M. Jovičić divided constitutional customs into three groups15. The fi rst group presents constitutional customs generated by the Constitution. As a matter of fact, there are customs related to its interpretation and realization (secundum constitutionem). The second group is formed by the use of customs in making up for Constitutional defi ciency (praeter constitutionem). And the third group includes customs that contradict the Constitution (contra constitutionem); this group exists outside of the legal fi eld for political reasons. As a matter of fact, they are not the sources of Constitutional Law, but on the contrary, are about its direct violation. M. Jovičić, following prominent French scholars, held that all constitutional customs had no legal character and couldn’t be sources of Constitutional Law16. The author believes that opinion is very disputable. Since constitutional customs have no legal force, it would be hardly correct to put them in the same rank with written norms, which imply obligatory application by the courts. Legal positions in judicial and quasi-
15 M Jovičić, O ustavu: Teorijsko-komparativna studija (Savremena administracja 1977) 256. 16 ibid 268. www.kulawr.ru Volume 1 September 2014 Issue 1 Boris Strashun Constitutional Law: Notion and Sources 21 judicial judgments, which refer to constitutional customs, may legitimate them, but hardly oblige other courts to recognize them as a legitimate source of law, provided they are not judgments of a constitutional court (constitutional council) or a supreme court of a general jurisdiction with the constitutional control competence. Unfortunately, customs that contradict the Constitution exist also in Russia. A very good example of this is the presence of widespread corruption, even in structures of Public Power, in spite of the Constitution and the existence of laws. 6. In the United Kingdom, the doctrine is considered to be one of Constitutional Law sources, although it isn’t judicially defended. As a matter of fact, the doctrine determines what should belong to the material constitution. The doctrine consists of distinguished scholarship and judicial judgment works. They serve as the ideological grounds for judicial decisions.
Conclusion
There is no doubt that constitutions and constitutionalism are essential elements of any modern civilized society. During the last centuries, we can see an expansion of the constitutionalism phenomenon in our world. Unfortunately, we can also observe the opposite process: the violation of constitutional regulations. It is diffi cult to foresee the future, but we must consider the existence of states with a forcefully overpowering culture. These states don’t share the values of western culture and also have dangerous technical possibilities. Constitutionalism and human rights are not part of that culture. Any attempt of western powers to use those forces for achieving some political goals has inevitable consequences, which contradict to desirable results. We saw these in Libya and in a number of other countries. Constitutionalism needs a powerful system of defense nowadays.
Volume 1 September 2014 Issue 1 www.kulawr.ru 22 KUTAFIN UNIVERSITY LAW REVIEW
Bibliography
Alder J, Constitutional and Administrative Law (Palgrave Macmillan 2009) Bellamy R, Political Constitutionalism: a Republican Defense of the Constitutionality of Democracy (Cambridge University Press 2007) Jacqué JP, Konstitutsionnoe Pravo i politicheskiye instituty. Uchebnoe posobiye / Perevod s fr. Maklakova V.V. M.: Yurist, 2002 (Jacqué JP, Constitutional Law and Political Institutions. Tutorial (Translated from French by VV Maklakov, Lawyer 2002)) Jovičić M, O ustavu: Teorijsko-komparativna studija (Savremena administracja 2007) Klíma K, Ústavní právo (4 vyd, Aleš Čeněk 2010) Khovard D. Konstitutsionalism // Progress-Univers. 1992. S. 53-65 (Khovard D, Constitualism (Progress-Universe 1992)) Kutafi n O.E. Predmet konstitutsionnogo prava. M.: Norma, 2001 (Kutafi n OE, The Subject of Constitutional Law (Norma 2001)) Lisitsyn-Svetlanov A.G. Predisloviye. Konstitutsiya v ХХI veke: sravnitel’no-pravovoe issledovanie / Pod. obshch. red. V.E. Chirkin. M.: Norma, Infra-M, 2011 (Lisitsyn-Svetlanov AG, ‘Preface’, The Constitution in the 21st Century: Comparative Law research (V Chirkin ed., Norma, Infra-M 2011)) Maklakov V.V. Konstitutsionnoe pravo zarubezhnykh stran. Obshchaya chast’. Uchebnik. Izd. 2. M.: Infotropic, 2012 (Maklakov VV, Constitutional Law of foreign countries. General Part (Wolters Kluwer 2006)) Maurer H, Staatsrecht I, Grundlagen. Verfassungsorgane. Staatsfunktionen. 6., überarb und ergänzte Auflage (C.H. Beck 2010) Mogunova M.A. Gosudarstvyennoye Pravo Shvetsii. M.: Norma 2009 (Mogunova MA, The State Law of Sweden (Norma 2009)) Moraes A, Direito Constitucional (5a ed., revista e ampliada, São P Atlas 1999) Parpworth N, Constitutandional & Administrative Law. (4-th ed., Oxford University Press 2006)
www.kulawr.ru Volume 1 September 2014 Issue 1 23
ARTICLE
THE SCOTTISH INDEPENDENCE REFERENDUM OF SEPTEMBER 2014: CONSTITUTIONAL AND INTERNATIONAL ASPECTS
By Alyson JK Bailes
Author MA (Honours) in Modern History, University of Oxford, 1971 Adjunct Professor, Faculty of Political Science, University of Iceland and Visiting Professor, College of Europe, Bruges E-mail: [email protected] Abstract On 18 September 2014, a referendum on whether Scotland should be an independent state produced a 55% ‘No’ vote. Following upon a gradual increase in Scotland’s powers of self-government, the referendum process was a constitutional and peaceful one, based on agreement between the UK and Scottish Parliaments. Had the result been ‘Yes’, a further negotiation would have taken place to determine the details of separation. Scotland would have faced many tasks and complications in establishing its status on the international scene, for example in relation to NATO and the EU. Despite the ’No’ vote, Scotland now expects to receive certain new delegated powers, and has some options for further enlarging its room for manoeuvre also on the foreign scene. Keywords Scotland, devolution, independence, referendum, small state studies
Introduction
The referendum held on 18 September 2014 among residents in Scotland, asking ‘Should Scotland be an independent country?’, attracted a high degree of international attention. It was of interest because it
Volume 1 September 2014 Issue 1 www.kulawr.ru 24 KUTAFIN UNIVERSITY LAW REVIEW
represented a peaceful, consensual and law-based method of deciding whether to separate the components of an existing nation-state. It raised hopes among other separatist movements in the Western hemisphere, and raised equal concerns among other states affected by these movements. Within and outside Scotland, there was much discussion of the international status that an independent Scotland might aim for and whether such aims were realistic. Key issues included Scotland’s proposed non-nuclear status, its wish to be a NATO member and its wish to remain in or re-accede to the EU. This article is written from an empirical rather than theoretical point of view. It will focus fi rst on the historical and constitutional background to the referendum and the details of the referendum process itself. Secondly it discusses some of the international implications and issues linked to the potential independence of Scotland. Thirdly it considers how Scotland’s ‘devolved’ powers (that is, powers of self-government delegated from the United Kingdom authorities) and its international activities may develop in the near future. The brief conclusions will pull together the various international points of interest in Scotland’s case.
Historical Background The creation of a united Scottish state is traditionally credited to Kenneth MacAlpin in the 9th century. Despite a shifting border and frequent wars with England, Scotland remained an independent kingdom up to 1603, when Queen Elizabeth I of England died childless and James VI of Scotland also ascended the English throne as James I. The two realms stayed initially separate, personally united through the Crown, as has occurred in other historical situations (for instance, the Dual Monarchy of the Habsburgs in Austria and Hungary). A century later, however, opinion moved in favour of uniting the two kingdoms, and two separate Acts of Union adopted in 1706- 7 by the English and Scottish Parliaments1 combined them (together with Wales) to form the United Kingdom (UK).2 Following the independence of the Republic of Ireland, the correct full title of the state is now the United Kingdom of Great Britain and Northern Ireland.
1 For the texts, see Bibliography. 2 J Wormald ‘Scotland: A History’ (2004) Oxford University Press. www.kulawr.ru Volume 1 September 2014 Issue 1 Alyson JK Bailes The Scottish Independence Referendum 25
The story of campaigns for Scottish autonomy or independence in a modern context goes back over a century.3 A Scots National League was created in 1921, influenced by the Irish independence struggle, and after further transformations and mergers it became the Scottish National Party (SNP) in 1935.4 Scottish self-government did not, however, emerge as a mainstream political topic until the 1960s, when Winnie Ewing gained the first SNP seat at the Westminster Parliament in 1967. Boosted by the discovery of North Sea oil and the idea that Scotland might achieve economic self-sufficiency with the profits, as many as seven SNP MPs were returned in the 1974 elections. At this stage the SNP began campaigning for a separate Scottish Parliament, and the Labour Party Government of James Callaghan agreed to put this proposal and other self-government measures to a referendum in Scotland. The term ‘devolution’ came into general use at this time to express the idea of a partial transfer of government competence from London to Edinburgh.5 A majority of those voting in the referendum favoured such devolution, but because of low voter participation, the results did not show support from the required 40% of the electorate and the initiative was shelved. Campaigning for a Scottish Parliament revived in the 1990s, and the Labour Party’s victory in the 1997 general election opened the way for a new referendum. This time 74.3% of those voting, or 44.87% of all Scottish electors, were in favour of devolution and just 25.7% were against. The Westminster Parliament enacted the Scotland Act 19986 to initiate the required transfer of power and the fi rst devolved Scottish Parliament, sitting at Holyrood in the old town of Edinburgh, was duly elected in mid-1999. Interestingly, the voting system for this Parliament differs from that in the UK because 56 of the 129 Members of the Scottish Parliament (MSPs) are elected in nation-wide constituencies by proportional representation, the rest being chosen in local constituencies by the usual UK
3 BBC Scotland, ‘The Devolution Debate This Century’ (2013)
Volume 1 September 2014 Issue 1 www.kulawr.ru 26 KUTAFIN UNIVERSITY LAW REVIEW
system.7 The Parliament nominates a First Minister who forms a separate Scottish government, with power to make its own decisions in fi elds such as police and justice, social services, health, education, agriculture and fi sheries, and environment. Foreign affairs and defence matters are reserved to Westminster, but Scottish representatives join in external activities and negotiations that concern them, such as bilateral fi shery agreements and much EU-related work. Scotland is responsible for fulfi lling the UK’s international obligations, such as relevant EU regulations, within the fi elds of its devolved competence. The SNP led a minority Scottish government from 2007-2011 but won an absolute majority in the 2011 Scottish elections.8 Alex Salmond, Scotland’s new First Minister (the equivalent of Prime Minister in the UK), announced that he would hold a referendum on changing Scotland’s status in 2014-5, and launched a public campaign to rally support for independence. The UK Government in London, at this time a coalition of the Conservatives and Liberal Democrats, insisted that Scotland could not decide such matters alone: the system for Scottish governance was established by UK Parliamentary Acts (such as the latest one of 1998) that might in principle be changed or revoked at any time. While some politicians and experts contested this logic, the Scottish Government was willing to seek a negotiated solution, and in autumn 2012 the Edinburgh and London governments reached agreement on the terms of a referendum, as recorded in the ‘Edinburgh Agreement’ of 15 October that year.9 The referendum would take place on 18 September 2014 – before the next UK national elections which were expected in 2015 – and would ask for a simple ‘Yes’ or ‘No’ answer to the question ‘Should Scotland be an independent country?’. The UK side rejected the idea of offering further devolution (abbreviated as Devo-Max) as an intermediate option. The Scottish Parliament then passed the Scottish Independence Referendum Act (2013)10 to provide a legal basis for the vote itself and to regulate the details.
7 See Scottish Government, ‘Scottish Parliament elections’ at
The Referendum Process
Only those on the local government electoral roll within Scotland (aged 16 years or older) were eligible to vote in the referendum, but since the roll covered all acknowledged residents and tax-payers, this electorate included non-Scottish UK citizens and indeed citizens of many other nations living in Scotland at the time. Both sides gave a political commitment that they would abide by the result of the vote, however narrow the majority might be.11 If it was a ‘Yes’ to independence, each side would form a negotiating team to meet and address all the complex issues involved in Scotland’s secession from the United Kingdom. The Scots themselves estimated that this would take a minimum of eighteen months; thus they did not expect their new status to be activated before 2016. The Scottish Government used the period 2012-4 to develop plans for the contingency of independence, including a major programme document – ‘Scotland’s Future’ – published in November 201312 and a number of more detailed policy statements. The SNP’s vision of the future was not an extreme separatist one, since they proposed to keep the Queen as personal Head of State – rather as Canada and Australia had done on leaving the British Empire – and to continue using the UK’s currency, the pound sterling.13 They assumed that the new Scottish state would include all territories North of the England-Scotland border including the Western and Northern Isles, although the latter – Orkney and Shetland – for their own reasons were quite strongly against independence. Beyond this, the SNP sought to differentiate their programme mainly by offering a more egalitarian and social-minded approach to economic development, taxation and the welfare state.14 They promised to reduce defence expenditure from the current ₤3.3 billion per year (i.e., the sum paid from Scottish taxes into the British defence budget) to some ₤2.5 billion, by adopting a military posture designed for territorial protection and for legally mandated, ‘traditional’
11 This was part of the Edinburgh Agreement, see note 9 above. 12 Text at http://www.scotland.gov.uk/Publications/2013/11/9348. 13 See http://www.snp.org/vision/better-scotland/independence. 14 D Donald, A Hutton Economic Self-Determination: Towards a Political Economy of Scottish Citizenship (G Hassan, R Ilett eds),‘Radical Scotland: Arguments for Self-determination’ (2011) Bell and Bain Ltd.
Volume 1 September 2014 Issue 1 www.kulawr.ru 28 KUTAFIN UNIVERSITY LAW REVIEW
peace-keeping missions rather than ventures like the 2003 invasion of Iraq.15 Following a long-standing anti-nuclear strand in SNP policy, the Scottish Government also stated that they would request the UK to remove the nuclear- armed submarines presently based at the port of Faslane near Glasgow, which now constitute the UK’s only nuclear deterrent force.16 (For other international aspects and implications of the SNP’s programme, please see the next section). Last and not least, the SNP proposed to draft a written constitution for the new Scottish state, something that was a conscious departure from UK practice.17 As is well known, the UK does not have a single written constitution, but constitutional doctrine holds that in the UK, the sovereign is the Crown in Parliament.18 In the Scottish draft constitution, the sovereign would be the people.19 The SNP stood essentially alone in advocating this programme and a ‘Yes’ vote for independence. While two Green Party and three independent MSPs supported them in the Scottish Parliament, giving them a majority of 55% of seats in that body since the 2011 elections (with the rest mostly Labour), all of the three major UK-wide parties – Conservatives, Labour, and Liberal Democrats – were strongly opposed to independence. This meant that the Westminster Parliament was also near-unanimous in favouring a ‘No’ vote, since most of the seats representing Scottish constituencies in the last General Election (41) were won by Labour and the SNP won only 6.
15 For more on Scottish defence plans see Moray Scottish National Party Defence Policy Update, 16 July 2012, and the analyses in Chalmers, M. The End of an ‘Auld Sang’: Defence in an Independent Scotland. Royal United Services Institute, 2012 and Crawford, S., Marsh, R. A´the blue bonnets: defending an independent Scotland. Royal United Services Institute, 2012. 16 For an analysis of issues involved see Scottish Affairs Committee of the House of Commons The Referendum on Scotland: Terminating Trident – Days or Decades? The Stationery Office 2012. 17 A provisional text for the constitution was presented by the Scottish Government in The Scottish Independence Bill: A consultation on an interim constitution for Scotland, June 2014, at http://www.scotland.gov.uk/Resource/0045/00452762.pdf. 18 This became established in the 16th century: see the UK Parliament’s information page ‘Reformation Parliament’
From late 2013 and especially from Spring to September 2014, UK politicians of all parties waged a strong campaign for a ‘No’ vote under the slogan ‘Better Together’, focusing especially on what they saw as misleading claims in the SNP programme. They questioned (for instance) whether the oil and gas resources in Scottish waters20 would provide enough income, for long enough, to sustain the SNP’s proposed spending programmes. They warned that the remaining UK would have no obligation to continue cooperating with a separate Scotland, for instance over energy supplies or contracts for Scottish industry, and that banks and other leading enterprises might move out of Scotland rather than face the uncertainty of independence. Further, in what became a front-line issue right up to the day of the vote, leaders of the UK Government stated fl atly that they would not allow Scotland to continue using the pound sterling. While Scottish representatives argued that this could not be prevented in practice21 and that Scottish banks had capital enough to support their own use of the pound if need be, such warnings undoubtedly caused concern among many undecided voters (including older people dependent on pensions). There were also speculations about a ‘hard’ border being established between Scotland and England that would obstruct movement and cooperation between ordinary people. The UK’s ‘No’ campaign was based more on such warnings than on promises, and many observers commented that it seemed excessively negative. Indeed, there were times – for instance, in Spring 2014 – when a strong warning speech by a UK Government leader actually boosted support for the ‘Yes’ side, presumably because the Scots felt they were being bullied. However, during the whole campaign, the great majority of opinion polls showed that rather more than 50% of voters were likely to vote ‘No’ while the ‘Yes’ vote might be between 35–45%. 22 Only in the last days before the vote did one poll in the
20 Regardless of where the median line would be drawn between an independent Scotland’s and the UK’s territorial waters, it was generally accepted that 90% of the existing North Sea gas and oil installations would fall on the Scottish side. 21 As a parallel case, a number of territories (including Kosovo and Montenegro) use the Euro without explicit permission from the EU, as their main currency or an alternative one. 22 The Telegraph, Scottish independence referendum poll: The latest tracker, at http:// www.telegraph.co.uk/news/uknews/scottish-independence/11045624/Scottish- independence-referendum-poll-the-latest-tracker.html, accessed 6/10/14
Volume 1 September 2014 Issue 1 www.kulawr.ru 30 KUTAFIN UNIVERSITY LAW REVIEW
‘Telegraph’ newspaper show the ‘Yes’ side actually leading by a few points, and this spurred the UK Government to a fi nal effort of persuasion. On 16 September, the leaders of all three main UK Parties – Labour as well as the Conservative/Liberal Democrat coalition – made a declaration confi rming and elaborating upon earlier offers they had made to grant Scotland further devolved powers if it stayed in the Union.23 These powers would lie in the fi scal sphere and would allow Scotland, while receiving a reduced budget grant from London, to raise part of its own tax income directly and spend it on public purposes of its own choosing. This offer was designed among other things to satisfy the Scottish preference for a more socially conscious economic policy than the UK was currently pursuing, and it went some way to reinstate the ‘Devo-Max’ alternative that London had earlier removed from the referendum. Whether this promise, or concurrent UK warnings, had more effect on Scotland’s ‘Don’t Know’ voters is diffi cult to judge, but the outcome of the vote on 18 September was decisive: 55% in favour of staying in the United Kingdom, and 45% in favour of full independence. The voter turn-out was remarkably high by UK standards, at 84.6%. Subsequent analysis would show that the ‘Yes’ side had a majority only in limited parts of industrialized western Scotland, and only in certain younger age-groups.24 Alec Salmond conceded defeat during the night of the 18th and announced that he would shortly stand down from the SNP leadership and his post as First Minister. The SNP would choose his successor at the party conference in November. Meanwhile, the UK Party leaders confi rmed in a Parliamentary motion of 20 September that they would lay detailed plans before the Westminster Parliament by 30 October to legislate the new devolved powers for Scotland into being. The speed of these moves drew criticism from some Conservative politicians who questioned the logic of ‘rewarding’ the Scots and raised other issues that they thought should be considered fi rst, such as the treatment of Wales and why Scottish MPs at Westminster were allowed to vote on issues concerning only England. At the time of writing this article, Prime
23 The Guardian, UK party leaders issue joint pledge to give Scottish parliament new powers, 16/9/14, at http://www.theguardian.com/politics/2014/sep/16/ cameron-miliband-clegg-pledge-daily-record. 24 The Guardian, Scottish independence: poll reveals who voted, how and why, 20 September 2014, at http://www.theguardian.com/politics/2014/sep/20/ scottish-independence-lord-ashcroft-poll. www.kulawr.ru Volume 1 September 2014 Issue 1 Alyson JK Bailes The Scottish Independence Referendum 31
Minister David Cameron was accepting the relevance of these questions but indicating that they should not hold up implementation of the 16 September pledge. SNP politicians were watching for any sign of UK backsliding which they could use to stir up resentment in Scotland. The rapidity with which these issues became politicized and contentious after 18 September – despite the peaceful and consensual nature of the referendum itself – doubtless had something to do with manoeuvrings both between and within the Westminster parties in view of the 2015 General Election.
International Aspects: Politics and Institutions
Had Scotland opted for independence, the fi rst international-legal issue arising would have been whether the remaining UK, or Scotland, or both, should have been considered the successor state. The UK Government had no doubt that the UK would be the only such state,25 and the respective sizes of the two – Scotland having only some 5 million citizens out of the UK’s c. 60 million – made that a common-sense proposition.26 The situation would, in fact, have been not unlike that following the dissolution of the Soviet Union, when those new republics not formerly represented at the UN had to seek membership ab initio in the UN and other organizations, and the Russian Federation took the lead in negotiations to share with them such assets and obligations as required repartition.27 The Scottish Government for its part indicated that it expected to have to seek UN (and OSCE) membership as an early step upon independence, but
25 S Crawford, A Boyle, ‘Referendum on the Independence of Scotland – International Law Aspects’ (2013) Report for the UK Government
Volume 1 September 2014 Issue 1 www.kulawr.ru 32 KUTAFIN UNIVERSITY LAW REVIEW
did not anticipate any particular problems in that connection. Much more important issues of law and policy arose in connection with NATO and EU membership. With just 5 million people, an independent Scotland would have become a ‘small’ state by any practical measure, and also according to most classifi cations used in the academic fi eld of small state studies. The most basic tenet of these studies is that such entities must fi nd ‘shelter’ to protect themselves and to have a chance of advancing their interests on the international scene.28 For problems of military and territorial defence, a large protector state or an alliance of such states is the obvious solution; but states’ security and wellbeing today depends also on economic factors and the ability to handle natural disasters, disease epidemics, major accidents and ‘new’ human threats (terrorism, crime, cyber-attacks). It is unlikely that any single friendly state could solve all these problems for a small partner, and small states in the wider Europe have typically sought a many-sided solution by joining as many regional organizations as possible.29 Scotland’s planning for independence was no exception:30 the SNP declared that they would wish to remain in NATO (which in fact was a departure from their Party’s earlier pacifi st traditions),31 and that – one way or the other – Scotland must retain membership of the EU.32 The background to the latter point is that Scotland benefi ts more clearly than the UK from funding under EU sectoral programmes, and its public opinion also shows a pro-EU majority. At strategic level, becoming a full and favoured member of the EU may be felt by Scots as a way to balance and guard against English domination, rather like the traditional Scotland-France alliance in historical times.
28 For the classic statement of these theories see (among others) Vital D, ‘The Inequality of States: A Study of the Small Power in International Relations’ (1967) Clarendon Press. 29 C Archer, AJK Bailes and A Wivel, Small States and International Security: Europe and Beyond (Routledge 2014). 30 For a detailed reading of Scotland’s case in ‘small state’ terms see AJK Bailes, B Thorhallsson and RL Johnstone, Scotland as an Independent Small State: Where would it seek shelter? (Stjórnmál og Stjórnsýsla 9/1 2013)
According to the Washington Treaty of 1949 and the Treaty on European Union (TEU), respectively,33 the entry of new members to NATO and the EU requires the assent of all existing members as expressed fi rst through the North Atlantic Council and EU Council of Ministers, and then through national ratifi cations of an accession treaty. In practice the formalities of NATO accession are much simpler, although some nations’ ratifi cation procedures and slower and more complex than others. In Scotland’s case, it was clear that the United States would not want any gaps created in NATO’s coverage of Northern Europe, and it seems reasonable to suppose that Alliance members would have agreed on a way to keep Scotland’s territory protected during whatever time was needed to re-establish Scottish membership.34 During the referendum debate, anti-independence speakers pointed to a contradiction between Scotland’s rejection of the stationing of UK weapons and its NATO ambitions; but in fact, all that NATO asks from its members in the nuclear context is that they support its collective policy of nuclear deterrence – which the SNP said they would do. The majority of NATO countries do not have nuclear objects stationed on their territory in peace-time, and Norway and Denmark stipulated that they would never do so at the time they joined NATO in 1949. In this and other respects (see below), the SNP argued that Scotland would merely be conforming to the model of its Nordic neighbours: countries so esteemed in NATO that a Norwegian politician (Jens Stoltenberg) was recently chosen as the organization’s next Secretary-General. Scotland’s proposed proportion of GDP to be spent on defence, at around 1.5%, would also be typical of most small and medium NATO members.35 On this logic, the question of where to place UK nuclear weapons in future would be a purely English-Scottish issue, albeit a very challenging one in that context.
33 Texts at http://www.nato.int/nato_static/assets/pdf/stock_publications/20120822_ nato_treaty_en_light_2009.pdf and at http://register.consilium.europa.eu/doc/ srv?l=EN&f=ST%206655%202008%20REV%207. 34 This view was upheld, among others, by the recently retired UK Permanent Representative at NATO (Mariot Leslie) in a letter to ‘The Scotsman’ before the referendum – see http://www.scotsman.com/news/opinion/letters/nato-not- an-issue-for-independent-scotland-1-3528848 35 For details see the SIPRI military expenditure data-base at http://www.sipri.org/ research/armaments/milex/milex_database.
Volume 1 September 2014 Issue 1 www.kulawr.ru 34 KUTAFIN UNIVERSITY LAW REVIEW
Scenarios for Scotland’s EU membership were more complicated and triggered far greater debate during the campaign. The problem had two principal aspects:36 political attitudes among EU members, and the possibility - or lack - of quick practical solutions within the framework of EU treaties.37 On the former, countries such as Spain and Belgium that faced their own separatist challenges were plainly unhappy with the idea of Scottish independence, and some UK spokesmen suggested that this might lead them to veto eventual EU solutions.38 The then President of the European Commission, José Manuel Barroso, also opined publicly that it would not be easy for Scotland to gain the membership it wanted.39 However, no formal opinion was sought from the EU’s legal experts during the campaign (not least because the UK did not want one), and there was room for differences of legal and professional opinion on what the treaties would actually permit. Article 49 of TEU which lays down normal accession procedures is clearly designed for countries that approach the EU with no previous experience of membership, or having only partially applied the EU’s regulatory system (as do the members of the European Economic Area40). The situation has never arisen before where an existing Member State becomes two states, both currently applying the full EU acquis41 and both wishing to continue to do so. Scotland’s secession would also require the UK to
36 Another issue raised mainly by the ‘No’ side was whether Scotland, as an independent member of the EU, could hope to retain the favourable arrangements the UK had negotiated for capping its EU budget contributions, and the UK’s opt-out from the Schengen Treaty. The latter might have been a non-issue since Scotland would have had no land border with other Schengen nations; Ireland already enjoys an opt-out on the same reasoning. 37 Although written as early as 2001, JE Murkens ‘Scotland’s Place in Europe’ (2001) The Constitution Unit (University College London)
42 Notably, Sir David Edward and Graham Avery in their respective written evidence to an enquiry by the Scottish Parliament during 2014 (see Bibliography). 43 For the text of Articles 48 and 49 see http://en.wikisource.org/wiki/Consolidated_ version_of_the_Treaty_on_European_Union/Title_VI:_Final_Provisions. 44 See for instance Salmond A, ‘Scotland’s place in the world’ (2012) Hugo Young Memorial Lecture
Volume 1 September 2014 Issue 1 www.kulawr.ru 36 KUTAFIN UNIVERSITY LAW REVIEW
Scotland’s new-found ‘smallness’45 and some positive aspects of its identity that were not necessarily shared by the whole UK.46
Prospects after the ‘No’ Vote
What lies ahead for Scotland as a continuing part of the United Kingdom? The expected grant of new devolved powers to Scotland in the domestic sphere has been mentioned above, together with the burgeoning political controversy around it. The UK Government fi nds itself in something of a Catch-22 situation here: if Scotland does gain partial powers of taxation it will look a little more like a sovereign state and can move its day-to-day policies further away from those of England; yet if the powers are withheld, Scottish nationalist sentiment may be re-awakened all the sooner. In general, it is by no means clear whether the idea of attempting independence has now been laid aside for a generation, as Alec Salmond himself predicted. Since part of the logic of the SNP’s appeal was to free Scotland’s left-leaning voters from a Conservative government imposed by English votes, a Conservative victory in the 2015 UK General Election would help – at the least - to keep controversy alive. It would do so all the more since Prime Minister Cameron has promised to follow such a victory with a referendum on whether the UK should leave the EU, and if current opinion polls are correct, the English and Scottish publics might give diametrically opposite answers to that question. Less public interest has been shown so far in the question of Scotland’s external room for manoeuvre following the ‘No’ vote. There is no suggestion from London that the constitutional framework for this might also be enlarged. Nevertheless, while preparing for the referendum the Scottish authorities (and also non-governmental organizations and academics) learned many new things about their neighbours and partners and developed some promising new relationships. The idea of closer Nordic-Baltic cooperation, for example,
45 According to small state literature, such states may benefit from a ‘clean’ non- aggressive image when seeking to mediate or to introduce new normative standards in international debate (the ‘norm entrepreneur’ function). See Archer, Bailes and Wivel, as note 28 above. 46 The functionality of Scotland’s self-alignment with the Nordics is further discussed in Bailes, Thorhallsson and Johnstone, as note 29 above www.kulawr.ru Volume 1 September 2014 Issue 1 Alyson JK Bailes The Scottish Independence Referendum 37 may be possible to explore in ways that remain within the present limits of Scottish competences. Another discussion has revolved around the possibility of Scotland’s developing its own strategy on Arctic affairs,47 in which it is more closely implicated than the rest of the UK, and on which the Faroe Islands have already adopted a separate strategy while remaining a non-sovereign part of the Danish realm.48 There may be other practical options for Scotland to increase its network of representation abroad and to develop its expertise in international affairs, including at the academic level. It is noteworthy, for example, that Scotland has never yet (as Flanders and Catalonia have) created its own institute for peace studies and/or international affairs.49
In Conclusion: Scotland in an International Perspective
The twentieth and early twenty-fi rst centuries have seen the birth of many new nation-states, often as a result of de-colonization but also through the break- up of larger state entities. The circumstances have ranged from inter-state wars and fi erce civil confl icts to the ‘velvet divorce’ typifi ed by the Czech Republic and Slovakia. Sometimes, international society and international institutions have quickly welcomed the new states, and sometimes other states have disagreed over whether to recognize them or not. We can now never know (or at least, not for a long time) how an independent Scotland would have fared within this spectrum. While several partners may have regretted its very existence, it would have been hard for them to deny that its democratic credentials and other features of governance already fully met the requirements of NATO and EU membership. The Nordic states and perhaps Ireland could have been expected to show positive support and sympathy for the new Scotland, and even the UK Government might have hesitated to treat the latter harshly in ways that rebounded against its own interests.
47 RL Johnstone, An Arctic strategy for Scotland (L Heinenen ed., Arctic Yearbook 2012)114. 48 Faroese Government ‘The Faroe Islands – A Nation in the Arctic’(2013) Prime Minister’s Office
Volume 1 September 2014 Issue 1 www.kulawr.ru 38 KUTAFIN UNIVERSITY LAW REVIEW
In constitutional and legal terms, the main interest of the Scottish episode may lie in the steps taken to reach agreement between Edinburgh and London, and the sequence of measures by which a legal foundation was created for the referendum itself. As a result, the passionate arguments of the referendum campaign could be conducted within an accepted framework of UK political pluralism, and actual violence was absent or minimal.50 The UK has reason to congratulate itself on the example that it thereby set, even if the precise modalities may not be applicable to other countries with written constitutions and different forms of power-sharing. What is – up to now - less clear is whether the steps consequential on a ‘No’ vote can be completed in an equally orderly and consensual way, and what the dynamics of separatism may hold in store for Scotland in the longer term.
Bibliography
Archer C, Bailes AJK and Wivel A, Small States and International Security: Europe and Beyond (Routledge 2014) Avery G, ‘Written Evidence to the Scottish Parliament’(2014)
50 One clash was reported between pro- and anti-independence demonstrators one evening in Glasgow. www.kulawr.ru Volume 1 September 2014 Issue 1 Alyson JK Bailes The Scottish Independence Referendum 39
BBC Scotland, ‘The Devolution Debate This Century’ (2013)
Volume 1 September 2014 Issue 1 www.kulawr.ru 40 KUTAFIN UNIVERSITY LAW REVIEW
Murdoch A, England, Scotland, and the Acts of Union (1707) Dictionary of National Biography
www.kulawr.ru Volume 1 September 2014 Issue 1 41
ARTICLE
THE HISTORY AND CHALLENGES OF REINTRODUCING TRIAL BY JURY IN RUSSIA
By Sergey Pashin
Author PhD (Law), Lomonosov Moscow State University, 1988 Professor, Higher School of Economics, Moscow E-mail: [email protected] Abstract This article examines the history of trial by jury as practiced in Russia from 1864 to the present. While implementing court reforms, Alexander II intended to eliminate defi ciencies in Russia’s Justice System, such as the slow consideration of cases, disenfranchisement of the accused and incessant corruption. Introduction of jury trials in post-Soviet Russia became possible due to the democratic changes in the early nineteen nineties and the rejection of totalitarianism. In nine regions of Russia, the reintroduction of trials by jury and the practical implementation of this institution were considered to be an evolutionary tool for reforming Soviet legal precedent, which was inquisitional in form and reprising by nature, especially with controversial proceedings. In particular, the introduction of jury trials made it possible to legitimize the rule that evidence obtained in violation of legal norms is inadmissible in procedural law. It also made the process of abolishing the death penalty in Russia irreversible. In this article, the author analyzes current trends in the development of Russian trials by jury. Among them is a tendency for the increased competence of jury trials. The method that appeared during judicial system development is the method for misleading the juror during consideration of a case. What’s more, it’s worth mentioning that the accused is not currently allowed to speak in the presence of the jury
Volume 1 September 2014 Issue 1 www.kulawr.ru 42 KUTAFIN UNIVERSITY LAW REVIEW
during the preliminary investigation about tortures infl icted upon him/ her designed to solicit confessions. Prosecuting authorities carry out “operational support” of the processes. The article is also concerned with the problem of “nullifi cation”. Keywords People, nullifi cation of law, judicial system, juror, judicial reform, trial by jury
The institution of trial by jury was established in Russia in 1864. It was an integral part of democratic reforms carried out by Tsar Alexander II, who released peasants from serfdom in 1861. A few bodies of the judicial system, such as the Offi ce of Public Prosecutor and the Bar appeared at the same time. Inquest was delegated to investigators - members of circuit courts. The judges became irremovable and formally independent. An independent system for Justices of the Peace was created. The basics of jury trials that could be found in the ancient Russian legal documents, such as the Novgorod Court Certifi cate and the Court Books of 1497 and 1550 were eliminated with the growth of absolutism in Russia. In 1715, Peter the Great approved the Brief Description for Case Consideration process, which affi rmed an inquisitional type of consideration for criminal cases. This practice remained in effect for over 150 years. While developing and practically implementing these court reforms, Alexander II intended to eliminate defi ciencies in Russia’s Justice System, such as the slow consideration of cases, the disenfranchisement of the accused and rampant corruption. Judicial consideration of cases became open. Written consideration was replaced with verbal case discussions. The new principle that evidence should be evaluated based on personal judgment replaced established rules, such as being required to trust a man more than a woman or a church representative more than a secular individual. The Tsar- Reformer declared his objectives in the slogan: “Let truth and discretion reign in courts!”1
1 Vilenskiy B.V. Rossiiskoye zakonodatel’stvo X–XX vekov: Sudebnaya reforma. Tom 8 / Pod obshch red. O.I. Chistyakova. M.: Yuridicheskaya literatura, 1991 (BV Vilenskiy, Russian Legislation of X–XX Centuries. Judicial Reform. Vol 8 (O Chistyakov ed, Legal literature 1991)). www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Pashin The History and Challenges of Reintroducing Trial by Jury in Russia 43
At fi rst, jurors were required to either own real estate or have signifi cant income. However, representatives of government and nobility avoided working in the justice system. Therefore, peasants were invited to work in the circuit courts instead. Sometimes they begged for food during the trial processes. Many of them were not even able to read or write! However, most of their verdicts were fair and full of humanity and society started to trust the jurors.2 In 1866, the fi rst trial with jurors’ participation took place. During the next 40 years the notion of having trials by jury took root in various parts of the Russia. However, trials by jury were not practiced in all of the Empire. In the Caucases, the Arkhangelsk governorate and Siberia, jurors were not used in trials. Activities of the Russian trial by jury were curtailed during the First World War. Subsequently, the collapse of Russian trials by jury began with the February Revolution, in March 1917, when the Provisional government approved temporary trials, which included a Justice of the Peace, as well as representatives of the army and proletariat. By the Decree of the Council of People’s Commissars (dated November 24, 1917)3 – so-called Lenin’s Decree on Court, No. 1 – all judicial bodies established by Alexander II were eliminated. Instead, local courts, consisting of a judge and two assessors, were established, as well as revolution tribunals. On February 15, 1918 left-wing social revolutionaries insisted on the establishment of circuit courts. These were to consist of a judge and 12 People’s Assessors. These circuit courts, however, were not trials by jury. The judge would not pronounce the parting words. He would only provide the assessors with the information on the appropriate punishment. The assessors still participated in the trial even though they didn’t have the right the vote; they could express their misgivings about the case to the judge. Circuit courts only existed from March to November 1918; they were then abolished for political reasons. Over the next seventy years no attempts were made to reintroduce trials by jury in the USSR
2 Kazantsev S.M. Sud Prisyazhnykh v Rossii: Gromkie ugolovnye protsessy 1864– 1917 / L.: Lenizdat, 1991 (SM Kazantsev, Jury Trials in Russia: Loud Crim Proceedings 1864-1917 (Lenizdat 1991)). 3 Dekret Soveta Narodnykh Comissarov ot 24.11.1917 // Sobranie uzakoneniy I rasporyazheniy Rabochego I Krest’yanskogo pravitel’stva (SU RSFSR) 1917. №4. Art.50. (‘Decree of the Council of People’s Commissars from 24.11.1917’ (1917) 4 Collection of Statutes and Directions of Workers’ and Peasants’ government 50).
Volume 1 September 2014 Issue 1 www.kulawr.ru 44 KUTAFIN UNIVERSITY LAW REVIEW
but Soviet scholars criticized the institution of the jury trial. They considered it to be in contradiction with the ideas of the socialist justice system.
Reintroduction of Jury Trials in Post-Soviet Russia
In 1990, a new government declared the independence and sovereignty of the Russian Federation. On October 24, 1991 under the initiative of the President of the Russian Federation, Boris N. Yeltsin, the Supreme Council approved the Concept of the Court Reform. One of the major aspects of the court reform was the reintroduction of the trial by jury. The concept makers pointed out the following advantages of trials by jury: their collective nature, unquestionable independence, lower risk of a mistake and abuses by judicial bodies, implementation of common sense ideas and the people’s gained insight into the bureaucratic legal system. The Concept states “...The trial by jury is a tool for reaching a conclusion in non- typical situations, in which because of potential consequences it is better to violate abstract legal norms than sin against fairness.”4 By the Law of November 1, 1991 amendment to the Constitution established a legal basis for the introduction of trial by jury. However, it remained nothing more than a declaration for almost two years because of the Prosecutor’s Offi ce, Ministry of Internal Affairs and general resistance in the judicial system. The practical implementation of the institution of trial by jury in Russia started in 1992 by the adoption of Presidential Decree No. 530-rp, dated September 22. Before the adoption of this Decree, this institution had only been applied in part. First of all, the trials by jury were established in those regions of Russia where there were adequate conditions. The heads of Moscow, Stavropol, Ivanovo, Ryazan and Saratov regions were responsible for the arrangement of jury trials, including maintaining the lists of jurors, providing the provisions of premises and developing standard procedural forms. Soon after, four more regions joined (Altai, Krasnodar, Rostov and Ulyanovsk). On July 16, 1993 a relevant bill was approved by the Supreme Council of the Russian Federation.
4 Kontseptsya sudebnoy reformy v Rossiiskoy Federatsii / sost. S.A. Pashin, M.: Respublika, 1992 (SA Pashin, The Concept of Judicial Reform in the Russian Federation (BA Zolotukhin ed, Republic 1992)). www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Pashin The History and Challenges of Reintroducing Trial by Jury in Russia 45
A new Constitution, ratifi ed on December 12, 1993, declared the right of the accused to the benefi t of jury trial in the cases specifi ed by the federal law (Article 32, Section 5; Article 47, Section 2 of the Constitution). The Federal Law of 2004 “On Jurors of Federal Courts in the Russian Federation” determines the requirements for jurors. Any fully capable citizen of the Russian Federation, who is at least 25 years of age, without a criminal record, is eligible to become a juror. Based on the mentioned criteria, local administrations develop general and additional lists of jurors based on random selections from the electoral list. It is worth mentioning that there is no any penalty for failure to appear. There are two methods of compensation for jurors: either an average wage at their workplace or half of judge’s salary is paid. Nowadays jurors may consider the following cases: murders committed under aggravated circumstances; attempts on the lives of offi cials; highly dangerous cases of smuggling and drug traffi cking, gangster related activity and the organization of criminal groups, and the hijacking of aircraft. What’s more, such crimes as genocide, ecocide, mercenary, and piracy are also considered by trial by jury. The specifi c features of Russian jury trials are the following: 1) Distribution of power between a judge (assignment of punishment) and jurors who determine whether the guilt of the accused is proved and the indulgence might be applied; 2) Organizational separation of the jury from the professional judge; 3) Ungrounded nature of verdicts passed by juries and absence of any responsibility for their decisions; 4) Possibility to acquit the accused if he/she is not guilty from society’s point of view; 5) Strength of verdicts passed by juries. The verdicts passed by juries can be canceled only in cases of violations while a case is being considered. The fi rst jury trial took place in the Saratov regional court on December 15–17, 1993. About 500 cases have been considered by jury trials since 1993. The ratio of “not guilty” verdicts to “guilty” verdicts in jury trial courts is 1:4 (while the same ratio in traditional courts is 1:200). In 1998, Russian jury trials considered 538 criminal cases, which comprised 5% of the total number of criminal cases. 617 individuals were convicted and 165 were acquitted. In spite of a relatively small share of criminal cases considered by jury trials, reformers
Volume 1 September 2014 Issue 1 www.kulawr.ru 46 KUTAFIN UNIVERSITY LAW REVIEW
have pinned great hopes on this form of legal proceedings. Most of those hopes have thus far been justifi ed. The reintroduction of the institution of trial by jury in Russia and its practical implementation in 9 regions of the country was considered to be an evolutionary step away from soviet legal procedure, which was inquisition-type by its form and a reprisal by nature. Section X of the Criminal Procedure Code introduces the term “controversy” and describes the controversial proceedings. Under the introduction of jury trials some norms of law of evidence that had been in force since 1961 were modifi ed. In particular, the grounds for the exclusion of illegally obtained evidences were listed. It was assumed that the parallel functioning of inquisitional and controversial legal proceedings would make judges, prosecutors, counsels for the defense and legal scholars accept democratic types of proceedings more objectively. The lawyers who used to deal with the traditional system of legal proceedings got a chance to look more closely at controversial proceedings and get used to a new system of justice. In spite of the fact that the public prosecutors insisted on the strict observance of laws, jurors selected from the local population managed to resist unfairly strict laws. However, since 1996 the Supreme Court has adopted a number of decisions and implemented a few procedures. Those decisions and procedures made it possible to nullify “not guilty” verdicts passed by jurors under certain pretexts. Thus, in 1996 a temporary insanity plea (a circumstance that signifi cantly mitigates judicial assessment of a murder) was almost withdrawn from the jurors’ jurisdiction. In 1999, “an extremely liberal verdict” passed by a jury was canceled only because the judge did not interrupt the accused when he spoke about tortures, which the police had subjected him to in order to make him plead guilty. As it was pointed out by the Supreme Court, after it cancelled an acquittal of the Moscow court, the judge was not entitled to explain to the jurors “what they might have in mind,” and “whether they testifi ed under the pressure or not.” According to judges of the Supreme Court, such an evaluation of testimony of a witness is not in the jurors’ competence.5
5 Decision of the Judicial Collegiums on Crim Cases of the Supreme Court of the RF No 5-O07-193SP “The Verdict Decided upon by the Court, with the Help of the Jury, has been Cancelled due to a Violation of Art 340 of the Crim Code of the RF” [2007]. www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Pashin The History and Challenges of Reintroducing Trial by Jury in Russia 47
This conclusion, in fact, removes from jurors a critical tool for evaluating the reliability of evidence. According to a Supreme Court decision dated March 24, 2006 the jurors “should not take into account information provided by the defense witness regarding crimes committed by other individuals.”6 This negative trend is still currently taking place. As was expected, the introduction of jury trials infl uenced law theory and practice in a positive way. On the one hand, the clemency of jurors was one of the reasons for the mitigation of criminal law in 1996. On the other hand, some procedures and ideas of controversy were also applied to traditional (“Soviet”) legal proceedings. For example, traditional courts started to consider solicitations for the exclusion of inappropriate materials. When studying the precedents of trials by jury, judges with the Soviet experience and their young colleagues began to think about the presumption of innocence and some ethical issues, such as keeping defendants in metal cages installed in each court room. Almost all practitioners and scholars acknowledge that the preliminary investigations of criminal cases, which are forwarded to jury trials, are carried out more thoroughly and with better law observance. Thus, it was planned to introduce jury trials in all regions of the Russian Federation on a gradual basis. In 1995, offi cials from 12 more regions, including the Karelia Republic, Kaluga, Nizhny Novgorod, Belgorod regions and the city of Saint Petersburg expressed interest in the introduction of trials by jury. However, the State Duma did not approve the appropriate law because federal funds were not allocated to this purpose. The resolution of the Constitutional Court of 1999 recognizes the right of every individual who might be sentenced to death to a trial by jury trial of the region.7 However, realization of this right was delegated to lawmakers instead of law-practitioners. Lawmakers returned to the idea of further dissemination of trial by jury only in 2001. As a result, the constitutional right (Article 20 of the Constitution of the Russian Federation) of a human being and a citizen to appear in a jury trial was not practically realized despite the declared provisions.
6 Decision of the Judicial Collegiums on Crim Cases of the Supreme Court of the RF No. 31-O06-3SP [2006]. 7 Decision of the Constitutional Court of the RF No 3-P [1999].
Volume 1 September 2014 Issue 1 www.kulawr.ru 48 KUTAFIN UNIVERSITY LAW REVIEW
The process of introducing trials by jury on a step-by-step basis really started in 2001 when the Criminal Procedure Code was adopted. This process was fi nally completed in 2010 when the opportunity for case consideration by the Supreme Court of the Chechen Republic with jurors’ participation appeared.
The Procedure of Consideration of Criminal Cases by Russian Trials by Jury
At the end of a criminal investigation, the accused has the right to fi le a petition for consideration of his case by jury. Otherwise, a judge or judicial committee will consider his case. Prior to the court session, the judge conducts a preliminary hearing to consider solicitations of the parties, including solicitations for exclusion of inadmissible evidence from the proceedings. The parties shall have a right for motivated and non-motivated rejection of jurors. Each party is entitled to cross-out two individuals from the list without any explanation of the reasons for their decision; the judge has the right to increase the number of jurors subject to non-motivated rejection. Selected jurors elect their leader and read their rights. Court investigation begins with opening statements by both parties. At fi rst, the prosecution submits the evidence. Then the defendant’s evidence is examined. The judge asks the victim, witnesses and accused questions. The accused has the right to refuse to testify. A juror shall put his questions in writing and provide a note to the judge. When so-called “legal” issues are reviewed, the jurors are removed from the courtroom. At the end of the trial the accused pronounces “the last word.” After the jurors conclude the necessary courtroom proceedings, the judge formulates questions for them. The questions are summarized in a questionnaire. Then the judge gives a parting speech, in which he covers both legal and factual aspects of the case. In particular, the judge reminds the jurors about evidence reviewed during the court investigation and clarifi es requirements for the presumption of innocence. Jurors should do their best to agree on a unanimous verdict. However, after a three hour-long meeting jurors have the right to vote. The decision supported by a majority of the jury is adopted. If a vote is equally divided (6:6), the decision that is the most favorable to the accused shall be adopted. The verdict is declared publicly and the judge lets the jurors go. Afterwards, www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Pashin The History and Challenges of Reintroducing Trial by Jury in Russia 49 additional evidence might be examined. It may include information about the civil or criminal record of the accused, information characterizing the accused, or mitigating and aggravating circumstances. The judge is obliged to refl ect the jurors’ verdict in the sentence. However, there can be some exceptions. Firstly, the judge is entitled to forward the case for a new examination, if, in his opinion, the accused is innocent. Secondly, the guilty verdict does not prevent an acquittal when the violation of the accused is not a crime. Finally, the judge can mitigate a punishment if the jury did not. Acquittal verdict that entails the acquittal sentence is mandatory for judges. According to the appealing procedures, the parties can appeal the jurors’ verdict. However, the parties cannot refer to the contradiction of the trial conclusions to the circumstances of the case. The appeals or submission of the Prosecutor can only refer to a violation of the criminal procedure law, incorrect application of the criminal law or unfair punishment. The acquittal by jury trial appealed by the Prosecutor or the victim may be cancelled only in the case of a violation of the law by the court. Such a violation usually limits the right of the prosecution to present evidence. It is worth mentioning that trials by jury in Russia are signifi cantly different from the ones established in accordance with the Anglo-Saxon model. First of all, a mixed form of legal proceedings is preserved. Investigation is carried out on an inquisitional basis. Intermediate results are kept in secret. All evidences “in support” and “against” of the accused are forwarded by accusatory bodies to court. Secondly, the Russian legal proceedings do not consist of 2 separate stages: a verdict and a sentence. The judge determines punishment immediately. Thirdly, the accused, regardless of whether he/she pleads or does not plead guilty, has the option to choose between traditional legal proceedings and a jury trial. What’s more, in contrast to the rules of the US federal justice system, the judge’s parting words summarize the evidence. Finally, in contrast to their Spanish and Austrian colleagues, Russian jurors do not justify their decisions.
“Nullifi cation” of Law ― Public Protest against Bureaucratic Justice
An option of "nullifi cation" of law that is available to jurors is of special theoretical and practical interest. In the practice of Russian courts such practices are relatively rare, but the author was able to learn about twenty such stories.
Volume 1 September 2014 Issue 1 www.kulawr.ru 50 KUTAFIN UNIVERSITY LAW REVIEW
Here are two examples of acquittals that would be unrealistic in modern courts without jurors’ participation. In Arkhangelsk oblast court a murder case was considered. At night in the house where the baby stayed with his drunken parents, the child was strangled. In the role of the accused was the father, and mother gave testimony. The couple made the most unfavorable impression to jurors: "Cruel, degraded people." The accused was trying to protect his wife. Jurors admitted that a child could be killed by mother, and gave a negative answer to the fi rst basic question, recognizing the unproven crime. Of course, following the verdict the baby did not come back to life. Jurors had a different goal in their minds. If they found the accused not guilty, the case would be forwarded to the Prosecutor and an investigator was obliged to fi nd another murderer. They saved the mother of the dead child from a fever of investigation, which, in their opinion, would not reveal a real murderer. Another example took place in a court in the Voronezh region. A criminal group committed a bloody robbery. The jury acquitted one of the accused, “because he acted under the pressure.” He was a businessman, and in the jurors’ opinion, he was not interested in income from raids. But, according to the jurors, “if he had refused, he would have lost his business and life.” Professional judges have a different view. Application of mental coercion to an individual that retained an ability to control his actions relieves this individual of criminal responsibility. Judicial practices of punishment and legal doctrine that serve the regime have always tried to dilute a human nature of trials by jury, turning it into a fl at makeweight to the bureaucratic judicial machine. I. Ya. Foinitskii declares: “... In the era of the government absolutism there were such judges as Jeffreys who limited jurors authority to resolution of actual circumstances in a case.”8 Today the followers of this trend continuously talk about “the judges of facts” that are exclusively adapted to fi nd out the circumstances of past events. Thus, the decision of the Cassation Chamber of the Supreme Court of the Russian Federation dated February 24, 1998 states that “...In a trial by jury the jurors participate in the review of case circumstances and resolve questions
8 Foinitskiy I.Ya. Kurs ugolovnogo sudoproizvodstva. Tom 1 / Pod obshch. red. A.V. Smirnova, Spb.: Al’fa, 1996 (IYa Foinitskii, The Course of Crim Proceedings. Vol 1 (A Smirnov ed, Al’fa 1996)). www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Pashin The History and Challenges of Reintroducing Trial by Jury in Russia 51 about facts only. All legal and procedural issues are in the exclusive competence of the judge”. It is obvious, however, that jurors cannot just review criminal case circumstances without looking at a human being. Their “based on facts” verdict has not only legal value, but also legal nature. First of all, the jurors make a legal decision based on the guilt of a particular individual. Secondly, all the circumstances identifi ed by jurors as denial of certain circumstances are not useless information related to the proceedings (“noise”) but serve as legal facts. The judge asks about the presence or absence of the relevant circumstances because those circumstances relate to the accusation and are important for the outcome of the hearings to be interpreted in the offi cial documents. Finally, “when the jurors make an acquittal verdict but there is clear evidence of the guilt of the accused, the jurors do so because they do not agree with the legal regulations or its application in that particular case.”9 Jurors extend the boundaries of law by considering circumstances that are not so important for the court. They can justify the accused or mitigate him/her just because he/she did not have the best lawyer, or because certain behavior is common for certain communities, as well as for the members of certain social groups. The example can be not-guilty verdicts for the bribes received by the traffi c police. Jurors have the right to criticize and punish the government that tortured the accused.
Trends of Development of Trials by Jury in Russia Current data on criminal proceedings by jury trials is summarized in the following table.
Year 2005 2006 2007 2008 2009 2010 2011 2012 Number of cases 617 707 606 535 607 633 537 573 considered by jury trials “Guilty” (numbers) 955 1079 918 899 1066 1157 1046 818 “Not Guilty” 204 227 239 236 244 228 182 157 (numbers) “Not Guilty” (%) 17.6 17.4 20.7 20.8 18.6 16.5 14.8 16.1
9 Bernam U. Pravovaya sistema SSHA // M.: Novaya yustitsiya, 2006 (U Bernam, Legal System of the United States (New Justice 2006)).
Volume 1 September 2014 Issue 1 www.kulawr.ru 52 KUTAFIN UNIVERSITY LAW REVIEW
In 2012, as well as in the previous years, the most of considered cases by jury trial were murders (32.3%), rapes (10.9%) and briberies (21.1%).10 In the fi rst half of 2013, trials by jury considered 272 cases with sentencing. There were 484 accused. 375 (77.5%) of them were convicted and 109 (22.5%) justifi ed. Every year the courts in the Russian Federation consider about 1 million criminal cases, so the percentage of those that are considerd by jury is not very significant. Trials by jury account for about 12-14% of the cases heard in a given year. Nowadays, the constitutional right of Russian citizens to participate in the administration of justice (Part 5, Article 32 of the Constitution) has been decimated. Currently there are two negative trends in the legal regulation and activities of trials by jury. These are the reduction in types of cases within the jurisdiction of trials by jury and manipulations towards jurors. Reduction of the jurisdiction of jury trials began in 2008. The justifi cation was to protect jurors of the North Caucasus from the pressure of relatives of the accused. As a result, the cases on terrorism, hostage-taking, mass riots, treason, espionage, rebellion, sabotage, and other such activities are processed by a panel of three judges. The new wave of reduction in the authority of trials by jury is associated with Federal law № 433 dated December 29, 2010. According to that law, criminal cases on crimes against justice, transport offences, and bribery were transferred to the jurisdiction of district courts. As a result, whoever was accused of the aforementioned types of criminal acts lost the right to choose the jury trial because only one judge is possible in the district court. What’s more, Federal law № 217 dated July 23, 2013 transferred some more groups of criminal cases, including crimes committed by minors and murder attempts to the jurisdiction of district courts. The criminal prosecution authorities developed tactics that allow for avoiding the forwarding of cases to trials by jury. The authorities revised the qualifi cations of crimes so that the case falls under the jurisdiction of district courts.
10 Starting on Jan 1 2013, cases on bribery were transferred to jurisdiction of regional courts where there are no jurors. www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Pashin The History and Challenges of Reintroducing Trial by Jury in Russia 53
Manipulation of the jurors is fi rst of all based on so-called “technical support of processes” and the artifi cial selection of jurors, including individuals that are not on the list of jurors. In addition, due to the legal authority of the Supreme Court, jurors are eliminated from review and resolution of certain issues. It turns out that jurors express their opinion, considering only some evidence of the case (but not all of it), while the other part and evaluation of the crime in general is left to the discretion of judge. For example, jurors are not authorized to determine the selfi sh purpose of the accused, type of guilt, or the confi dentiality of information which disclosure the accused is blamed of.11 The rights of the defense are artifi cially reduced. In particular, it is prohibited to speak about the falsifi cation of evidence during the preliminary investigation, and about using tortures.12 An extremely complex and cumbersome structure of questionnaires complicates the work of jurors. Unfortunately, the law allows multiple revisions of sentences, taken on the basis of jurors’ verdicts, including acquittals. Being aware of the current challenges to Russian trials by jury, the accused keep considering this institute to be the best tool of protection against false and unsubstantiated accusations and a guarantee of objectivity and impartiality of court. In Russia, trials by jury have not exhausted their possibilities. As the concept of judicial reform in 1991 planed, the accused should have the right to apply this tool of protection in regional courts as well, and in the future to certain types of civil cases. Following Russia’s experience, many states that declared sovereignty in the former Soviet Union intended to introduce trials by jury, but not every state succeeded. For example, in Belarus, even though it was ratifi ed into law, it was not put into practice. In fact, only trials by jury operate in Georgia and
11 Review of Judicial Practice of the Supreme Court of the RF “The Rev of Cases Processed by Trials with Jurors’ Participation in 2003”. 12 When cancelling the acquittal of SPb city court by the decision dated Nov 2, 2006, Judicial Collegiums on Crim Cases of the Supreme Court of the RF, among the reasons for cancellation, mentioned the words of the accused that said: “on the question of the lawyer M. regarding the reasons for discrepancies in his testimony, that … at the preliminary investigation... he would have admitted the crucifixion of Jesus Christ as well”.
Volume 1 September 2014 Issue 1 www.kulawr.ru 54 KUTAFIN UNIVERSITY LAW REVIEW
Kazakhstan. In Georgia, they borrowed the principles of legal regulation from the US, while Kazakhstan took Russia’s example, considering some national aspects in both countries.
Bibliography
Bernam U. Pravovaya sistema SSHA // M.: Novaya yustitsiya, 2006 (Bernam U, Legal System of the United States (New Justice 2006)) Foinitskiy I.Ya. Kurs ugolovnogo sudoproizvodstva. Tom 1 / Pod obshch. red. A.V. Smirnova, Spb.: Al’fa, 1996 (Foinitskii IY, The Course of Crim Proceedings. Vol 1 (A Smirnov ed, Al’fa 1996)) Kazantsev S.M. Sud Prisyazhnykh v Rossii: Gromkie ugolovnye protsessy 1864–1917 / L.: Lenizdat, 1991 (Kazantsev SM, Jury Trials in Russia: Loud Crim Proceedings 1864–1917 (Lenizdat 1991)) Kontseptsya sudebnoy reformy v Rossiiskoy Federatsii / sost. S.A. Pashin, M.: Respublika, 1992 (Pashin SA, The Concept of Judicial Reform in the Russian Federation (BA Zolotukhin ed, Republic 1992)) Vilenskiy B.V. Rossiiskoye zakonodatel’stvo X–XX vekov: Sudebnaya reforma. Tom 8 / Pod obshch red. O.I. Chistyakova. M.: Yuridicheskaya literatura, 1991 (Vilenskiy BV, Russian Legislation of X–XX Centuries. Judicial Reform. Vol 8 (O Chistyakov ed, Legal literature 1991))
www.kulawr.ru Volume 1 September 2014 Issue 1 55
ESSAY
ON THE APPEARANCE OF I. A. IL’IN’S LEGAL CONSCIOUSNESS: TOWARDS THE HISTORY OF THE PUBLICATION
By William E. Butler
Author LLD, University of London, 1979 Distinguished Professor of Law and International Affairs, Dickinson School of Law, Pennsylvania State University Emeritus Professor of Comparative Law, University of London, and Member of the Russian International Court of Commercial Arbitration E-mail: [email protected] Abstract This essay offers a detailed look at Ivan Aleksandrovich Il’in, an illustrious Russian thinker who has gained global recognition as a result of his philosophical works. The author focuses on Il’in’s role as a legal scholar, the history behind the creation of his monograph “On Legal Consciousness,” and the events that led up to its fi rst publication in the Russian language. The present essay explores new information which the author has obtained from archival sources previously unavailable to the general public. The narrative describes, in great detail, events following the publication of monograph “On Legal Consciousness” and the people who played a signifi cant role in Il’in’s life during that time, including W. A. Bary and V. P. Riabushinskii. Moreover, the author recounts the activities of an informal organization known as the “Ivan Aleksandrovich Il’in Society,” which was founded after Il’in’s death in 1954 for the purpose of preserving, publishing, and disseminating Professor I. A. Il’in’s works. The essay concludes by addressing the intricate fate of Il’in’s archive, which was kept in an American university library before its return to Russia in 2006 (in accordance with Il’in’s last will). The
Volume 1 September 2014 Issue 1 www.kulawr.ru 56 KUTAFIN UNIVERSITY LAW REVIEW
author gives special consideration to those who have worked to carry on Il’in’s legacy: his wife Natalia, E. F. von Baumgarten, R. M. Siehle, and others. The author also discusses the work of Eugene Klimoff, a noted painter, bookplate designer, and art historian, giving special attention to his creation of Il’in’s bookplate. Keywords Legal consciousness, Russian legal classic, legal scientifi c heritage, philosophy of law Introduction
The intellectual legacy of Ivan Aleksandrovich Il’in had, until 2010, been available only in the Russian, German, and French languages, all of which were, in effect, native tongues for the author. The Grier translation of Il’in’s monumental dissertation on Hegel was the fi rst appearance of Il’in in English.1 The present article addresses his second appearance in the English language and the fi rst in his capacity as a legal scholar rather than a philosopher.2 Furthermore, it adds new data, based on previously unavailable archival sources, to our understanding of Il’in and his writings. Given that Il’in’s long awaited rehabilitation in Russian legal theory has fi nally transpired, Russian readers will welcome a fuller story of how Il’in’s work came to be written in Russia, eventually published abroad for the fi rst time, and fi nally translated into an English version.
On the Origins of Il’in’s Monograph on Legal Consciousness From 1916 onwards Il’in’s principal scholarly preoccupation in Russia was with the fi rst “ailment” of the Russian people identifi ed in his celebrated public lecture on patriotism in February 1918: the lack of a mature legal consciousness among the Russian people. His magister dissertation was essentially completed by then. On 5 June 1917 he wrote to his cousin, L. Ia. Gurevich: “I am fi nishing my book “On the Essence of Legal Consciousness” (it will appear in the autumn)”.3
1 N Medtner, A Memorial Volume (R Holt ed, Dennis Dobson 1955). 2 The J of Comp L, VII (2012) 63. 3 Il’in I.A. Sobranie sochineniy: Pis’ma, memuary (1939-1954). Tom 2 / Pod red. Yu.T. Lisitsy. M.: Russkaya kniga, 1992 (IA Il’in, Collected Works: Letters. Memoirs (1939-1954) (Yu Lisitsy ed, Russkaya kniga 1999)). www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 57
By then, however, whatever may have been the position in manuscript, the book was only partly in galley proof and remained so until February 1919. Although some sources have suggested that a printed book existed by 1918, a careful examination of what evidence has survived would suggest that these remains are various forms of galley proofs. The basis for suggesting that the book as such existed in 1918 appears to be an item catalogued as item 110 in the Il’in Library.4 The catalog entry reads: О sushchnosti pravosoznaniya. – [М.]: [1916-1918]. – 110 с. The annotation to the catalog entry records the dimensions of the volume: 14,5 x 21,8. The “binding” consists of wrappers from the proofs themselves held together by a barbarous piece of black tape or leather scrap. An inscription (probably of R. M. Siehle) in black ball-point pen reads in Russian: “I. A. Il’in. On the Essence of Legal Consciousness – Moscow. 1916-1918”. A further inscription in Russian says: “In this Moscow edition, 10 chapters of the same work published fully in 1956”. At the end of each of the ten chapters, a date is indicated in pencil (Il’in?), as follows: “p. 13: November 1916; addition: 165; p. 22: November 1916; p. 33: November 1916; p. 41: November 1916; p. 53: November-December 1916; p. 63: December 1916; p. 75: January-February 1917; p. 83: February 1917; p. 92: end October 1917 (during uprising of Bolsheviks in Moscow); p. 110: February-July 1918. Traces of reading: pencil and black ink marks”. The rationale for treating this item as a book would appear to have been the following: the item was included as part of the Il’in library and not the archive; the item was bound in a specifi c fashion, however primitively; the item was paginated consecutively; Siehle, probably when inventorying the
4 Il’in I.A. Katalog biblioteki Ivana Aleksandrovicha Il’ina / Pod red. I.L. Velikodnoy. M.: Izdatelstvo Moskovskogo Universiteta, 2011 (IA Il’in, Catalogue of the Library of Ivan Aleksandrovich Ilyin(I Velikodnaya ed, Izdatelstvo Moskovskogo Universiteta 2011)).
Volume 1 September 2014 Issue 1 www.kulawr.ru 58 KUTAFIN UNIVERSITY LAW REVIEW
item for shipment to Michigan State University, treated the item as a book and reinforced this impression with his annotations on the item itself. The rationale for reconsidering this attribution would be as follows: the type setting and the paper on which the item is printed are identical to other galley proofs of this item contained in the Il’in archive; the item was bound up for working purposes, probably as the most complete, if not the last, set of proofs to come from the printing house; the item contains no evidence of having been part of a print run of the fi nal book; the item contains no publication data that would routinely be included in a published book; no record exists anywhere of a copy of this title being published; nothing in the Il’in archives or library otherwise indicates that the book on legal consciousness was published in this text, format, or form. Although a comprehensive comparison has not been undertaken, the so-called “reading marks” appear to be more in the nature of proof corrections than emendations placed by a reader. Why Il’in never published his completed manuscript in Soviet Russia can only be the subject of speculation. Many reasons are possible, including fi nancial, diffi culties in fi nding a printing house, and the political climate of the day. More puzzling is the fact that he did not publish the volume while in exile. Certainly, he thought about and planned a version devoted to this subject- matter. He wrote to General P. N. Wrangel on 5 April 1923: “In the coming months I will print my books written and forged in a Satanic smelter, – on the essence of legal consciousness and on the monarchy”.5 The reference, however, is probably not to the book on legal consciousness written from 1916-18, but to the volume that treats aspects of legal consciousness and appeared in Berlin in 1924. Il’in’s close friend, Roman Martynovich Siehle (sometimes Zile), who knew Il’in from 1928 until his death in 1954 and was in constant correspondence with him, said in a memorial address delivered in 1955: “In 1919 Il’in completes his study on the essence of legal consciousness;6 these were delivered in the form of a course of lectures at Moscow’s higher educational institutions, discussed more than once in sessions of the Moscow Law Society, and consulted in private
5 Letter from IA Il’in to PN Wrangel (5 April 1923). 6 Zile was aware of galley proofs dated Feb 1919 and emendations thereon, although the essence of the work seems to have been completed by spring 1918. www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 59 meetings of the Muscovite docents and professoriate. But this book, entitled “Doctrine on Legal Consciousness”, has still not appeared. However, this is not merely an invaluable contribution to legal doctrine, but a genuinely new, living word about that spiritual atmosphere which law and State require in order to fl ourish”.7 All the evidence suggests that Il’in had continued to prepare the publication of his work on legal consciousness until his death in 1954. The book was not something that he had laid aside and forgotten. His widow, Natalia, guided the Russian-language version of the work, with additional chapters, through press at Munich in 1956.8 Siehle’s address was perhaps an informed hint that the book was important and forthcoming. A comparison of the galley proofs dated 1919 and the text published in 1956 indicates that the texts are virtually identical.
The Role of Woldemar A. Bary
On or about 30 November 1917, Woldemar (Vladimir) Aleksandrovich Bary (30.09.1887-23.12.1979) transferred the sum of “8,000” to I.A. Il’in.9 This entry in the Bary accounts served as the grounds for suspecting that Il’in (and Bary) were involved in a plot against the Soviet Government and the Bolsheviks, and that these funds were intended to be passed on by Il’in to supporters of White armies in southern Russia. Il’in’s explanation was simple: the monies were a gift from Bary to help him publish his book. But which book(s)? At the time of the gift, Il’in was working on two major projects: the fi rst was his dissertation on Hegel, intended to be printed in three volumes, but later combined into two; the second was his work on legal consciousness. By late
7 Il’in I.A. Sobranie sochineniy: v 10 tomakh / Pod red. Yu.T. Lisitsy. M.: Russkaya kniga, 1993-1999 (IA Il’in, Collected Works in 10 volumes (Yu Lisitsy ed, Russkaya kniga 1993-1999)). 8 Ibid 149. 9 The entry in the accounts actually does not specify the currency. Russian sources have treated the sum as being in rubles. Exchange rates at the time, judging from US Embassy correspondence, fluctuated from 10 to 12 rubles per dollar. If the sum was in rubles, Il’in was given roughly between US$650 to $800, which would be more or less consistent with what seemed to be the cost of printing his dissertation. If the sum were in dollars, it would have been extravagantly in excess of printing expenses.
Volume 1 September 2014 Issue 1 www.kulawr.ru 60 KUTAFIN UNIVERSITY LAW REVIEW
November 1917 both works were known to be in galley proofs. Il’in customarily did not confi ne himself to making technical corrections on his galleys; he would polish the prose and insert sundry refi nements of the text at this stage. He did, in fact, engage in a measure of rewriting. The funds from Bary, in other words, could have been intended to help defray printing costs for one, or both, of the books. How Bary and Il’in came to be acquainted is not disclosed by the available materials. They were not far apart in age (about a four-year age difference) and of the same generation. The Bary fi rm was, it would seem, successful and profi table in its various engineering activities, well-regarded for the innovation and quality of its boilers and other products, and known throughout the Russian Empire. Whatever the precise details, Bary was actively supporting the White Guards and not well disposed to the Bolsheviks. He may have been willing to lend material support to the White movement; his fi rm was ultimately nationalized by the Soviet authorities in 1918 and 1919. Il’in is known to have experienced diffi culties with printers during 1917. Whether these were fi nancial issues or others is not a matter of record. It is also not clear how advanced the composition of the Hegel volumes was between 30 November 1917 and the ultimate delivery of the books for the Il’in dissertation defense on 19 May 1918 – a period of fi ve and a half months, with Christmas and Easter holidays in between, and the disruptions of the incipient civil war and armed confl ict. Even under normal circumstances, the setting, proofi ng, and printing of the two large Hegel volumes, and the setting and proofi ng of the essays on legal consciousness, whether at the same printing house (which seems unlikely) or not, was a heroic achievement. Unless the 8,000 “rubles” was fl agrantly extravagant in comparison with its alleged purpose (which seems not to have attracted the attention of the Moscow Revolutionary Tribunal or the investigator as being the case), Bary is owed a considerable debt by intellectual and legal history for his role in helping two important contributions to ultimately appear. The Bary (sometimes: Bari) family originated in France and moved to Lithuania, and then Russia proper. Woldemar A. Bary was the son of Aleksandr Veniaminovich Bary (1847-1913), a citizen of the United States and Russian entrepreneur-engineer. Born in St. Petersburg, A.V. Bary was the godson of Alexander Humboldt (1769-1859), according to family legend. A. V. Bary www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 61 personally knew and corresponded with Karl Marx (1818-1883). As a result, he attracted the attention of Section III of the Imperial Russian Police. He emigrated from Russia to Switzerland in 1862, where he graduated from the Zurich Polytechnic, and then went sometime between 1865 and 1870 to Detroit and Philadelphia in the United States, where he founded an engineering fi rm. In 1875/76 he won a competition to design pavilions for the World Exhibition in Philadelphia commemorating the centennial of United States independence. Bary befriended the Russian delegation to the Exhibition, especially Vladimir Grigorievich Shukhov (1853-1939), and in 1877 was elected a corresponding member of the Pedagogical Council of the Imperial Technical School in St. Petersburg. In that same year, Bary and his wife Zinaida, of German extraction but with roots and relations in Russia, returned to St. Petersburg. Bary co- founded “Bary, Sytenko & Co.” to build equipment for the oil industry. Several years later he established a fi rm called the “Technical Offi ce of Engineer A. V. Bary”. The fi rms fl ourished. A. V. Bary’s widow, Zinaida (15.02.1854- 18.02.1940), inherited the business in 1913. When the fi rm was nationalized by the Russian authorities in 1918-19, it was Zinaida’s property that was taken.10 The settlement ultimately reached with respect to the nationalization of the Bary property resulted in tax litigation in the courts of the United States.11 Woldemar Bary was one of ten children. He was directing the Bary interests in 1918 on behalf of his mother. He was taken into custody by offi cers of the All-Russian Extraordinary Commission against Counter-Revolution, Sabotage, and Speculation on Sunday, 14 April 1918. The United States Vice Consul, John A. Lehrs, was summoned by telephone during the search of the Bary home and appeared while the search was underway. Lehrs lodged a formal protest that the search was being performed without the United States Consulate General having been notifi ed. According to Lehrs, the search produced “… a great amount of correspondence … most of which was returned later in the day; … four revolvers and … two swords, one of them a present
10 Zinaida Bary was a US citizen by virtue of her husband, AV Bary’s, naturalization. She entered the U.S. on 16 Oct 1925 via Rotterdam and 2 years later executed a one-page will bequeathing all her property, wherever situate, to her son, Woldemar A. Bary. She died in NY County; her will was not offered for probate until June 1958; Letters Testamentary were granted to WA Bary on 8 May 1959. 11 Bary’s Estate v Commissioner 24 TCM 1790 (1965) affd 368 F 2d 844 (1966).
Volume 1 September 2014 Issue 1 www.kulawr.ru 62 KUTAFIN UNIVERSITY LAW REVIEW
to Countess Lanskaya from the Cossacks, having an inscription to that effect engraved upon it”.12 Lehrs reported at once to the offi ce of the Extraordinary Committee, where he was received by Feliks Dzerzhinskii. Lehrs demanded to see the charges against Woldemar Bary. This request was declined until instructions were received from the Council of People’s Commissars. Later that same day Lehrs met at 17:00 hours with the People’s Commissar for Foreign Affairs, Grigorii Chicherin, to lodge a verbal protest “… against the house of an American citizen being searched without the knowledge of the Consulate General”, to request a meeting with Woldemar Bary, and to be apprised of the charges. The Vice Consul was notifi ed by telephone that evening of the charges, confi rmed by letter the following day: “supplying offi cers with money for the purpose of joining the counter-revolutionary troops of Kaledin and Korniloff in the Don district … storing of fi re-arms without license … [and] purchase and storage of false documents”.13 The following day Lehrs met with Woldemar’s brother, Victor, and his sister, Catherine Bary, who was engaged to marry Vasilii Vasilevich Krivoshein, charged in the case together with Woldemar Bary and Ivan A. Il’in. Victor Bary knew that Woldemar was in communication with offi cers and “helped them out with money”, had “suspicions that these offi cers were connected with some counter-revolutionary movement”, and therefore had objected strongly “… to those offi cers calling on his brother at their offi ce”. Victor believed that Woldemar in giving money to offi cers had “… acted merely out of charity”. As for the revolvers, Victor Bary said that these had been “… purchased and borrowed from friends for the purpose of self-defense, which was of vital necessity in connection with the attempt the anarchists made on Victor Bary some time ago”. Victor knew nothing of the false documents, but Lehrs believed these documents had been explained to him by Woldemar in an earlier conversation. Woldemar had said that “… he would procure for himself a false document which would enable him to leave Russia at the last moment as a Russian citizen”. At this point, the matter took a sudden and unexpected turn. Catherine Bary succeeded in arranging a meeting with her brother Woldemar when the Vice Consul was unable to do so. She used the good offi ces of the investigator
12 J Lehrs, ‘Memorandum re Woldemar Bary’s Case’ (1918). 13 Ibid. www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 63 in the case, Mr. Vengrov, who seemed to want to ingratiate himself with Woldemar and Catherine. On 16 April Victor Bary informed Vice Consul Lehrs that a confi dential offer had been received: Woldemar Bary would be released if Victor Bary paid 150,000 rubles (the exchange rate about this time was twelve rubles to the United States dollar). Victor Bary reported the offer to his lawyer and to the Vice Consul. In the meantime, Vice Consul Lehrs pressed Chicherin to arrange a meeting with Woldemar Bary. At 21:00 hours, Lehrs received a telephone call at home from Woldemar Bary to say that Investigator Vengrov would grant a meeting at once. They had forty-fi ve minutes together. Lehrs was shown Bary’s dossier in which he observed papers and notes in Bary’s handwriting purporting to account for money being spent for dispatching offi cers and members of a strike force to the south. Woldemar Bary’s explanation was that the money was contributed during the early days of October 1917 when the strike force members were not considered to be counter-revolutionary. The investigator said that had the United States Consulate not intervened, it would have been easy to destroy the evidence; however, because the Consulate had protested the search and arrest, the Extraordinary Committee was keen to prove that there were grounds for the measures taken against Woldemar Bary. The investigator promised not to refer to this compromising evidence and to regard the Vice Consul’s interview with Woldemar Bary as unoffi cial. He further suggested that the Vice Consul make an application to Leon Trotsky and request that Woldemar Bary be released on surety to the Consulate General. Vengrov then left Bary and the Vice Consul together alone: “Mr. Bary told me that his case was very serious and that he implored the Consulate and the Embassy to take immediate measures to release him”.14 Lehrs did not trust Vengrov and was “… inclined to think that he is dishonest”. On 17 April Lehrs was informed through offi cial channels that he might see Woldemar Bary at 12:00 hours on 18 April. Lehrs replied that
14 Ibid. The Moscow press was conversant with what was happening with Bary and Il’in, and reported in some detail on the substance of the charges. Svobodnaya Rossiya. 1918. №16. S. 3. (Free Russia (1918), Vol 16, 3) and Svobodnaya Rossiya. 1918. №17. S. 4. (Free Russia (1918), Vol 17, 4), reproduced in - IA Ilyin (ed IuT Lisitsa), A Collection of Works: Diary, Letters, Documents (1903-1938) (Russkaia Kniga 1993) 586.
Volume 1 September 2014 Issue 1 www.kulawr.ru 64 KUTAFIN UNIVERSITY LAW REVIEW
Catherine Bary already had a meeting with her brother, but did not disclose his own meeting with Woldemar. In the meantime, Consul Maddin Summers, on 16 April 1918, had informed the United States Secretary of State Robert Lansing (1864-1928) by cablegram, through the United States Consul at Vladivostok, about the arrest of Woldemar Bary and sought instructions: “Demand that Bary be allowed counsel and that members of the consular staff be present at trial … I shall inform the Government of serious discontent with the United States Government if an American citizen is convicted and punished by the Revolutionary Tribunal. Similar cases are likely to arise in the near future”. The United States Consul General in Moscow, DeWitt Clinton Poole, approached a Russian sworn Attorney, Aleksandr Semenovich Tager, to act as defense counsel in the forthcoming proceedings. Lehrs did indeed attend the public session of the Investigative Commission attached to the Moscow Revolutionary Tribunal on 30 April 1918, where Tager acted on behalf of Bary and Nikolai Konstantinovich Murav’ev represented Il’in. Illness prevented Il’in from attending, who submitted a medical certifi cate to this effect. Murav’ev sought to separate the accusation against Il’in from those accusations made against the other three defendants. The Tribunal denied this petition. Tager then petitioned the Investigative Committee attached to the Revolutionary Tribunal to consider the proceedings to be an inquiry and to launch a fully-fl edged preliminary investigation, releasing the defendants for the duration of the preliminary investigation. Vice Consul Lehrs supported this petition. The Investigative Committee decreed to satisfy the petition and to refer the case for further investigation to the Political Section of the Investigative Committee. Bary was released on surety to Vice Consul Lehrs. In his three-page letter to Ambassador Francis on 30 April 1918, then in Vologda, reporting the latest news, Maddin Summers added a postscript in hand: “Bary was released today on bail”.15 Lehrs believed that the charges against Woldemar Bary were part of an extortion scheme with respect to the Bary family. He lodged complaints to this effect and apparently succeeded in having two offi cials of the Extraordinary Commission arrested. This led to an interesting issue of international
15 Letter of Summers to Francis (30 April 1918). www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 65 law which Dewitt Poole raised with the Consular Corps in Moscow. The Revolutionary Tribunal requested that Lehrs appear “in the case of attempted extortion growing out of the Bary case”. In Poole’s view, international law was “perfectly clear” that a consular offi cer cannot refuse his evidence in a criminal case, provided the offi cial business of his offi ce is not discussed. Poole sought instructions from Washington on the matter, but in the meantime the Revolutionary Tribunal was advised that Lehrs would be permitted to give his testimony to a commissioner sent to the Consulate General of the United States for that purpose. It was, Poole said, “highly desirable that Lehrs should give his testimony which will be very damaging to those who originally instigated the charges against Bary …”.16 When Lehrs was reassigned to Vologda later in June 1918 as a result of a contretemps with Karl Radek, the United States Consul in Moscow, DeWitt Poole linked the Bary Case with his concerns about the personal safety of Lehrs. Poole reminded Ambassador Francis that “… Lehrs was instrumental in connection with the Bary case. As one of these was a special investigator of the Extraordinary Commission against Counter Revolution, which is an instrument of pure terror, I have been fearful for some time that Lehrs might become the victim of some act of revenge”.17 The subsequent movements of those released on surety are obscure. By 15 June 1918 Poole referred, in a letter to Ambassador Francis, to the “… military side of the Krivoshein group” and that “negotiations between that group and the German representatives here have taken on a much more defi nite character within the past few days”. The Krivoshein Group had apparently been addressed by a German colonel in uniform who promised troops “… to support a coup d’etat against the Bolsheviks”.18 Bary did not remain in Russia, so as not to tempt the fates of the Revolutionary Tribunal. He reportedly escaped from Moscow disguised as a woman19 and made his way back to the United States, presumably via
16 Letter of Poole to Francis (7 June 1918). 17 Letter of Poole to Francis (1 July 1918). 18 Letter of Poole to Francis (15 June 1918). 19 Palomino A. Iz Rossii s lyubov’yu // 2013 № 1. (A Palomino, ‘From Russia With Love: An Immigrant’s Story’ (2013) 1).
Volume 1 September 2014 Issue 1 www.kulawr.ru 66 KUTAFIN UNIVERSITY LAW REVIEW
Vladivostok. On 5 March 1919 he married Natalia (“Nina”) Mikhailovna Anikin at the United States Consulate in the City of Vladivostok. He did not appear for his trial in December 1918, nor did his co-defendants, except for Il’in.20 After returning to the United States, Bary made the acquaintance, in the early 1920s, of the Ukrainian aircraft designer and inventor, Igor Sikorsky (1889-1972), who later founded Sikorsky Aviation Corporation. The Sikorsky helicopters became and remain world-renowned. Bary joined Sikorsky21 and became initially the Treasurer and later Vice President of Sikorsky Aviation, helping to facilitate the company’s relocation from New York22 to Pennsylvania. Upon retirement, Bary lived in Bushkill, Pennsylvania for the remainder of his life. Bary acquired a number of United States patents, including those for: an apparatus for electrolytic protection of vessels against corrosion (No. 2,193,667: 12 March 1940); an infl atable dome structure (No. 2,837,101: 3 June 1958);23 and a closed track airport (No. 3,173,634: 16 March 1965). After Nina Bary’s death, Woldemar Bary remarried in 1973, to Valentina Bary (24.09.1904-29.10.2002).24
20 W Bary, ‘The Engineering Industry in the U.S.S.R.’ (1941) 148 Nature 283. 21 According to Bary’s obituary, he «founded the Sikorsky Aircraft Corporation of Stanford, Conn., in 1921, sold it to Pratt & Whitney and became vice president of the Sikorsky Division. He built the first amphibious aircraft and was a pioneer in amphibious aircraft transport. In later years he was a consultant for major airlines. He was a member of the Greek Orthodox Church of Delaware Water Gap». See - The Pocono Record (Stroudsburg, PA, USA, 24 Dec 1979) 14, col 1. A biography of Sikorsky indicates that Sikorsky Aero Engineering Corp was formed on 5 March 1923 with temporary offices at 114 E 25th St, NYC, and W.A. Bary acting as Treasurer. Very possibly, Bary, Sikorsky, and others operated as an unincorporated entity or within another corporate personality prior to 1923. Sikorsky arrived in the U.S. on 30 March 1919. See - FJ Delear, Igor Sikorsky: His Three Careers in Aviation (Dodd, Mead, & Co 1969) 89. 22 The U.S. Census for 1940 (rep 19 Apr 1940) records Bary and his wife resident in NYC and Bary earning a salary of US$1,300/year. Bary lived in Bushkill, PN, for 19 years prior to his death, which would place his arrival there about 1960. 23 L Wiegler, ‘Tearing into the Metrodome: Are Other Air-Pressurized Stadiums Unsafe and Outmoded?’ (2011) Scientific American. 24 Valentina Bary was born in Dubno, Russia, and emigrated from Czechoslovakia to the U.S. in 1968. The Holland Sentinel (Holland, MI, USA, 30 Oct 2002). www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 67
Riabushinskii
In Il’in studies the name of Vladimir Pavlovich Riabushinskii (1873-1955) is deservedly celebrated for his role in arranging the publication in Paris of Il’in’s treatise on the axioms of religious experience. Both Riabushinskii and Il’in had collaborated with P. B. Struve in publishing the Paris daily newspaper Возрождение [Renaissance] and co-signed Struve’s letter of resignation dated 17 August 1927.25 He also was a frequent contributor to Il’in’s Русский колокол [The Russian Bell].26 The Riabushinskii family, however, was previously associated with Il’in in their capacity as printers. The surviving proofs of Il’in’s work on legal consciousness bear the stamp of «Товарищество типографии Рябушинских» [Partnership of Riabushinskii Printing House].27
The Il’in Personal Archive It is well established that Il’in hoped and expected that his personal archive and library would one day return to the University from which he graduated and by which he was employed. That this actually happened was the outcome of a carefully conceived and executed program by Il’in himself, his wife Natalia, and his friends who survived him. Having been taught a severe personal lesson by having his Hegel dissertation manuscript, notes, and materials confi scated in Austria at the outbreak of the First World War, which then had to be rewritten or reconstructed, all the evidence suggests that Il’in took care to retain and preserve his papers and his books for posterity. This was consistent with his general view set out in an article entitled “A Matter of Keeping”:28 “Our archives
25 The letter is reproduced in full in AV Lomonosov’s “Vozrozhdenie” (“Renaissance”), featured in - AN Nikolyukhin (ed), Lit Ency of the Russian Abroad, 1918-1940 (T 2): Periodicals and Lit Centers (ROSSPEN 2000) 67. 26 Sapov V.V., Russkii kolokol // Literaturnaya entsiklopediya russkogo zarubezh’ya: 1918-1940. 2000. №2. S. 397 (VV Sapov, “Russian bell” (2000) 2 Literary encyclopedia of the Russian abroad 397). 27 The stamp appears on p. 49 (dated 16 Nov 1917) and p. 65 (dated 21 Feb 1918) of a set of galley proofs amateurishly bound together, probably by Il’in himself, for working purposes. 28 Ilyin (n 7) 412.
Volume 1 September 2014 Issue 1 www.kulawr.ru 68 KUTAFIN UNIVERSITY LAW REVIEW
and museums should never be transferred in ownership to foreign powers. We ask them to help us to keep them. We request acknowledgement, respect, and hospitality, but not seizure. That which is collected should have one purpose – a return to Russia, unifi ed and liberated”. When Il’in died on 21 December 1954, all author’s rights and rights of inheritance passed to his widow, Natalia Nikolaevna Il’ina. She was not abandoned and forgotten in widowhood, as all too often can happen. Il’in’s pupils and friends of the family gathered in support. On the second anniversary of his death, these individuals created an informal association known as the “Ivan Aleksandrovich Il’in Society”29 A constitutive document was drawn up which set out their purposes and aims: to render all and every assistance to the cause of preserving, publishing, republishing, and disseminating the works of Professor I. A. Il’in, as well as to promote the extensive dissemination of his ideological legacy. The founders, in addition to Natalia Il’ina, included Elena Fedorovna von Baumgarten (1891-after 1970), who then lived in Zurich; Roman Martynovich Siehle (1900-1971), who lived in Germany; Aleksei Aleksandrovich Kvartirov (1911-1989 ), who resided in Geneva and then relocated to the United States; and Konstantin Evgen’evich Klimov (1896-1974), who lived in Canada. Baumgarten was a medical doctor and director of a clinic in Zurich where Il’in was treated and eventually died. By 1956 she was a pensioner. Siehle was a pupil who had been a follower of Il’in since 1928 in Berlin. He intended to write a book about Il’in (and may have preserved papers for that purpose) and served as the permanent secretary of the Society. Kvartirov had been a pupil of Il’in in Berlin. Together with his sister, Marina, they helped the Il’ins successfully depart Germany for Switzerland in 1938. Both Marina and her husband, Mikhail Georgievich Deriugin (1914-1982), a clergyman in the Russian Orthodox Church Abroad, were members of the Society.
29 For more, refer to OV Lisitsa in - SV Kornilov (ed), Ideological Legacy of I.A. Ilyin and Modern Times: Collection of Scholarly Works (I Kant Baltic Fed U Publ 2008) 29. The term “society” is a loose translation here of what would be more literally and properly conveyed as “commonwealth”. The organizers, it would seem, deliberately chose a vague term that would enable them to pursue a common aim without being required to register an organization under Swiss law, with all the costs, technicalities, risks, and formalities such a body would entail. www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 69
Konstantin Klimov was a noted musician, professor of music at Laval University in Quebec, and brother of the artist and art historian, Evgenii Evgen’evich Klimov (1901-1990). The Il’ins had helped the Klimov family, who had emigrated from Russia in 1921, during their relocation after the Second World War to Germany and Canada. The initial Society members drafted an Appeal to Russian émigrés to help preserve the Il’in legacy. Specifi c projects were mentioned, including the need to publish unpublished manuscripts, to reissue works long out of print or destroyed, to assemble his various articles and reissue them in collected form, and in general to prepare and publish a complete collection of Il’in’s works. The Society was exceedingly cautious and careful in selecting individuals who might wish to be associated with them. Ultimately the following became members: A. D. Bilimovich (United States); Professor V. S. Il’in (cousin of Ivan Aleksandrovich, Venezuela); Professor Alfred A. Swan (Swarthmore and Haverford colleges, United States); Professor P. D. Il’inskii (United States); Archpriest Mitrofan Znosko-Borovskii (Morocco); E. E. Klimov (Canada); G. A. Alekseev (United States); G. V. Ofrosimov (Switzerland); F. A. von Shultess (Switzerland); Archpriest Sergii Shchukin (United States, Canada); G. V. Mesniaev (United States); I. N. Gorianov (Germany); A. I. Buld (United States); M. A. and M. G. Deriugina (Austria); R. M. Trakhtenberg (Switzerland); A. A. Tenson (Germany); A. N. Tsurikov (Germany); and V. A. Boss (Switzerland). A number of measures were taken simultaneously. Some of Il’in’s books and manuscripts began to be published, including the work on legal consciousness. It was decided that part of the collection should be microfi lmed. Nine microfi lms were made, containing about 10,000 pages with additional notes; in all, this came out to be about one-seventh of the archive. Four copies of the microfi lms were made. Next came the question of where they should be stored. As this was all being undertaken during the Cold War, when there literally existed a nuclear balance of terror, the Society members feared the consequences of a nuclear confl ict. Therefore, it was decided that the microfi lms would be dispersed around the world. One would remain in Switzerland with Natalia Nikolaevna Il’ina, and another in New York with Kvartirov. But New York began to be viewed as unsafe – a likely target in the event of a nuclear confl ict. It was decided that a “backwoods” site would be appropriate in the United States: the choice was East Lansing, Michigan.
Volume 1 September 2014 Issue 1 www.kulawr.ru 70 KUTAFIN UNIVERSITY LAW REVIEW
In 1961 Natalia’s health began to deteriorate rapidly. She needed constant supervision and care. The Il’in apartment was vacated; all the Il’in belongings, including the library, archive, and everything else, were packed in boxes and stored in the Baumgarten clinic in Zurich; Natalia herself was placed in a home, where she passed away in 1963. The Commonwealth then began to seek a permanent site for the archive and library. A number of possibilities were considered and rejected (Columbia University in New York was rejected by Natalia because she was not impressed by the curator of the archive; the Russian Museum in San Francisco was in a wooden building, which was not deemed suffi ciently safe; the Hoover Institution at Stanford University was prepared to accept the archive, provided that after 30 years, title to the materials would pass to the Institution, which was absolutely contrary to Il’in’s wishes). Zurich itself was a possibility, but there was no appropriate building. In late 1963 or early 1964 a new plan emerged. K. E. Klimov suggested that Aleksei,30 the son of E. E. Klimov, also a member of the Commonwealth, who was completing his studies of Russian language and literature at Michigan State University under the direction of Professor Poltoratskii, be considered a possible guardian together with his professor. Inquiries were made of Poltoratskii. He was amenable. The University would be asked to cover the costs of transporting the Archive from Europe to the United States. In October 1965 Poltoratskii traveled to Zurich to meet with the Swiss members of the Society. The meeting went well, Poltoratskii was invited to join the Society, and Poltoratskii’s negotiations with the Director of the Michigan State Library, Richard Chapin, proceeded smoothly and successfully. Poltoratskii reported the conditions would be as follows: 1) The Archive would not be sold to nor bestowed upon Michigan State University, but would be provided to the University for temporary use;
30 Aleksei, or Alexis, Klimoff (b. 1939) is Prof Emer. of Russian Studies at Vassar College (1971-2012) and part-time Prof of Russian at Middlebury College (1981- 1997) in VT. He received his B.A. and M.A. at Michigan State U and Ph.D. at Yale U. He is the editor of - Klimoff A (ed), One Day in the Life of Ivan Denisovich: A Critical Companion (NW U Press 1997); co-author of - EE Ericson, Jr. and A Klimoff, The Soul and Barbed Wire: An Intro to Solzhenitsyn (Intercollegiate Studies Inst 2008); among others. www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 71
2) After the liquidation of the Communist regime in Russia, the Archive should be transferred to Moscow University; 3) Il’in’s books should insofar as possible be kept together and not distributed throughout the collection; 4) A small portion of Il’in’s correspondence should remain under seal and be used only upon the expiration of a designated period of time; 5) The materials of the Archive should be kept in conditions normal for such materials; 6) Poltoratskii would be assigned to watch over the keeping and use of the materials; 7) The Michigan State Library would pay the expenses for transporting the Archive and Library to East Lansing from Zurich. Of these conditions, only the second caused some discussion. What might the “liquidation of the Communist regime in Russia” mean exactly? The phrase was ambiguous and might give rise to diffi culties in the future. It was decided that the “fall of communism” should be understood to mean the absence of a one-party dictatorship pursuing such goals as world revolution, or the establishment of Communism, Socialism, or Anarchism all over the world; the permanent establishment of a national Russian governmental system; clear guarantees that national political opinion, scholarly research and teaching, and religious and church activities, were to enjoy complete freedom.31 On behalf of the Society, Elena Fedorovna Baumgarten took over the discussions with Michigan State. She was now in advanced years and wished nothing more than to bring the matter to a conclusion. Michigan State accepted the conditions laid down by the Society. Roman Zile agreed to pack the Archive and books for carriage. An inventory was prepared to ensure that nothing was lost. The shipment arrived in East Lansing in 1966. For three years it was kept under seal until the construction of the new library premises was completed. In 1969 the materials were transferred to the Department of Rare Books and Manuscripts in the Library.
31 This was the formulation set out in the Letter from E. de Baumgarten to the Director of Libraries, Michigan State U, R.E.Chapin, dated 7 May 1965. Reproduced in - CH Haka, The Ivan Aleksandrovich Ilyin Papers and the Michigan State U Libraries (Mich State U Library 2013) 10.
Volume 1 September 2014 Issue 1 www.kulawr.ru 72 KUTAFIN UNIVERSITY LAW REVIEW
Professor Poltoratskii in the meantime had accepted an invitation to join the University of Pittsburgh.32 He nonetheless complied with his obligations to watch over the Archive, undertook his own research in the materials, and published a number of works on Il’in, including a biography.33 In 1990 Poltoratskii traveled to Leningrad to deliver lectures on Il’in. These were received with great acclaim, but he fell ill there and passed away in his Leningrad hotel. The perestroika processes underway in Russia brought Il’in and his works to the attention of the Russian general public for the fi rst time. The ultimate intention of the Society began to be realized: the publication of the Complete Collected Works of Il’in. This became possible because Aleksei Klimov, the student of Poltoratskii and now Professor of Russian Literature at Vassar College near New York, undertook the immense task of making a full inventory and photocopies of the entire Il’in Archive. These were carried over in batches to Iurii and Olga Lisitsa and served as the basis for publishing the Complete Collected Works of Il’in, of which 29 volumes have appeared to date. The individual now acting for the Society was Tamara Mikhailovna Poltoratskaia. She agreed to the reinterring of the remains of Ivan and Natalia Il’in in the cemetery of the Don Monastery in 2005. It was natural that the Archive, comprising some 70,000 pages of material, should follow. The materials were received for processing in Russia on 27 May 2006 and were transferred on 20 November 2006 to the custody of the Department of Rare Books and Manuscripts of the Moscow University. The books (630 titles) came in two lots, in 2006 and in 2008. The mission of the Society, solemnly undertaken in 1956, was successfully completed to the credit of all concerned a half century later.
32 Prof Nikolai Petrovich Poltoratskii was born at Istanbul, Turkey, brought up in Bulgaria, attended the Sofia Russian Gymnasium, and attended various universities in Bulgaria, W. Germany and France, specializing in philosophy, Russian studies, and history. He arrived in the U.S. in 1955, specialized in Soviet studies, headed the Russian program at Michigan State U for 9 yrs. and more than 20 yrs. at the U of Pittsburgh. 33 Haka, ibid. 8. NP Poltoratskii’s scholarly publications included a bio of Il’in published in the Russian language at Tenafly, NJ, USA in 1989. www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 73
The Il’in Private Library
The members of the Il’in family were book people who esteemed books to study, acquire, and treasure. We know little of the Il’in personal library in Moscow prior to the family’s departure, or of the extent to which they carried books into exile as part of their luggage. Il’in’s own property was confi scated in 1923 by Decree of the Soviet Government; what property precisely fell victim to the decree and whether books were part of that property is not a matter of record. Evidently there were personal “confi scations” of professorial libraries. The story is told by Il’in of an incident in the Institute of Philosophy arising out of the Bolshevik practice of seizing professorial libraries and distributing the books among their members. One Bogolepov, a pupil of Ozerov, had seized the latter’s library; Riazanov-Goldendakh had taken the library of S. N. Bulgakov; someone else had taken Novgorodtsev’s books.34 Russian scholars were generous in lending books to one another; the seizures made it diffi cult to say, with accuracy, whose personal library a particular title had originated from. Before departing abroad in 1922, Il’in had given fi fteen books and offprints, six of them autographed, to the Moscow University Library. Additional Il’in materials had been acquired incidentally with the personal archives of S. N. Shil’ (1863-1928) and A. S. Akhmanov. These have been added to or linked with the Il’in Archive and Library and are recorded in the Catalog of the Il’in Library. What the Il’in Library might have become had the Il’ins either remained in Russia, or possessed the fi nancial resources to acquire books on a substantial basis, can only be imagined. Il’in did succeed in moving all of his books from Germany to Switzerland, and presumably the Library remained intact while in the United States. The affection and emotional attachment that Il’in felt for his library is evident in two respects: special bindings and his ex libris. His Hegel dissertation is present in the Library in a fi ne leather binding, probably Russo/German, without a binder’s label, but is plainly superior work. A number of volumes, bound at Zollikon, Switzerland, bear a binder’s ticket or mark. The ex libris
34 Sharipov A.M. Russkiy myslitel’ Ivan Aleksandrovich Il’in. Tvorcheskaya biografiya / Pod red. A.M. Sharipova. M.: Izdatel’stvo Glavarkhiva Moskvy: Delovoy ritm, 2008 (AM Sharipov, A Russian Thinker: Ivan Aleksandrovich Ilyin – An Intellectual Bio (A Sharipov ed, Izdatel’stvo Glavarkhiva Moskvy: Delovoy ritm 2008)).
Volume 1 September 2014 Issue 1 www.kulawr.ru 74 KUTAFIN UNIVERSITY LAW REVIEW
designed by Klimov (see below) for the Il’ins together is pasted into about two- thirds of the volumes and was undoubtedly printed cliché in Switzerland. The idea of having an ex libris may have originated with the designer; the fact that the Il’ins greatly loved and admired the ex libris is demonstrated by the simple fact that they used the bookplate extensively in their library – a library that they intended one day should return to Russia. Ovchinkina gave a rough classifi cation of the books in the Il’in library as follows: (1) belles-lettres, principally Russian and Russian-émigré titles: 76 authors, 266 titles; (2) history, principally Russian, including in foreign languages: 69 authors, 110 titles; (3) art: 34 authors, 72 titles; (4) religion and theology: 16 authors, 19 titles; (5) philosophy: 10 authors, 14 titles.35 The low number of titles on philosophy and law is striking. As a reader, Il’in took full advantage of his books. He made marginal notations frequently in pencil or in pen. Among those frequently appearing in Russian were: “Russia”, “people”, “triviality”, “nonsense”.36 Natalia Il’ina was more reserved in her observations, usually confi ning them to two horizontal marks in the margin or, rarely, a notation; these occurred principally in books on history or in those devoted to the poetry of Pushkin, Lermontov, or Zhukovskii. For those interested in reading patterns, the Il’in collection promises rich insights. The Il’in library and the predominance of belles-lettres and Russian history within it provide occasion to consider their friends and acquaintances, many of whom presented books to the Il’ins. Among their dearest friends was the writer Ivan Sergeevich Shmelev (1873-1950). They did not know one another in Russia; they met in Berlin and maintained a lively correspondence. Shmelev routinely sent warmly-inscribed books to the Il’ins. Among composers and musicians, the Il’ins were close to the Medtners from their days in Moscow. Il’in had defended the works of Emilii Karlovich Medtner (1872-1936)37 vigorously against critical attacks launched in the press by Andrei Belyi (1880-1934; pseudonym of Boris
35 Ovchinkina (n 5) 12. 36 Ibid 13. 37 M Ljunggren, The Russian Mephisto: Study of the Life and Work of Emilii Medtner (Coronet Books Inc 1994). Emilii was a Russian publisher and influential member of the Russian symbolist movement. www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 75
Nikolaevich Bugaev) in 1917 and actively promoted Nikolai Medtner’s music. It was entirely appropriate that the jubilee volume published to honor Nikolai Medtner (1879-1951) should reproduce three of Il’in’s critical appreciations.38 They corresponded frequently from 1915 until Medtner’s death. The Il’in copy of Medtner’s book is extensively annotated. The Klimov family became close to the Il’ins through the Medtners. Il’in accepted and used the ex libris designed by E. E. Klimov, assisted the Klimov family materially after the Second World War, endeavored to arrange exhibitions of Klimov’s paintings in Switzerland, and sought to develop patronage for his works. When the Il’ins traveled on holiday, especially during the interwar period, they arranged to spend time with these individuals. Others with whom Il’in corresponded and those who he accepted as friends included: the actor and director Konstantin Sergeevich Stanislavskii (1863-1938); the painter Mikhail Vasilevich Nesterov (1862-1942), who had produced a remarkable image of Il’in; the composer Sergei Vasil’evich Rachmaninoff (1873-1943); Baron Petr Nikolaevich Wrangel (1878-1928); Aleksei Aleksandrovich von Lampe (1885-1967); and Boris Aleksandrovich Nikolskii (18?-1969). Although on several occasions Il’in vigorously denied being a poet, he wrote verse frequently from his student years at Moscow University on into later life. A number of his verses have been considered to be worthy of publication.39
On the Il’in Bookplate
The initials “E.K.” (the same in Russian and English) conceal the identity of a bookplate designer unknown to Western bookplate literature, yet appear on the bookplate design belonging to Ivan and Natalia Il’in. The initials stand for Evgenii Evgen’evich Klimov, known in Canada and the United States as Eugene Klimoff (he preferred the soft “ff” in the English
38 The 3 essays by Il’in were: «A Study of Medtner»; «Medtner’s Fairy Tales»; and «Sonata Form in Medtner», published respectively in - R Holt (ed), Nicolas Medtner (1879-1951): A Tribute to his Art and Personality (Dennis Dobson 1955) 163 39 Lafitskiy V.I. Bogarne : syd’by i zagadki istorii / M. : Izdarelskiy dom V. EMA, 2013 (VI Lafitskiy, Beauharnais: Fates and Mysteries of History (Izdatelskyi Dom V. Ema 2013)).
Volume 1 September 2014 Issue 1 www.kulawr.ru 76 KUTAFIN UNIVERSITY LAW REVIEW
spelling of his surname, as have so many Russian émigrés, to the Library of Congress transliteration “v” – technically more correct). Klimov was born on 8 May 1901 in the City of Mitau, then part of the Baltic segment of the Russian Empire. His father was a lawyer. Upon completing his secondary education at Novocherkassk in 1918, he enrolled at the Don Polytechnic but was forced by the Russian Civil War to interrupt his studies. He enlisted in the Russian Navy, serving at Novorossiisk and Sevastopol, and by some miracle escaped the mass repressions experienced by the White Russian forces after the fall of the Crimean Peninsula. In 1921 he was permitted as a native of the Baltic region to return to Riga, Latvia, where he was accepted for further studies by the Latvian Academy of Arts. Upon graduating in 1929, he worked as a teacher of art and art history at the Lomonosov Lycée, a Russian-language institution, in Riga. He offered instruction in drawing and art history. He traveled frequently during this Latvian period, including abroad, completing his own graphics and paintings and visiting art museums. He studied techniques of icon painting under the direction of a master who worked in the Old Believer tradition, Pimen Sofronov, and took part in a group project to decorate a church with frescos. Exhibitions, museum work, and study groups were part of the cultural milieu for the Russian community of Latvia, and he took an active role in these. In 1944 he was invited to the Kondakov Institute in Prague, a center for icon restoration, and in 1945, three months after the Soviet Army occupied Czechoslovakia, fl ed with his family to the American occupation zone of Germany. There, he spent four years in a Bavarian village. He resettled in Canada in 1949, choosing, by reason of his command of the French language, to base himself in Quebec. He resumed his teaching career in art history, private art lessons, Russian language instruction, public lectures, and frequent appearances in the Russian émigré press. During the 1960-70s he visited Europe often, also visiting the Holy Land in 1964. An automobile accident took his life on 29 December 1990 in his ninetieth year.40
40 Biographical data is drawn from - Klimoff A, Eugene Klimoff: Selected Works (U of Latvia J 2006), in addition to correspondence with Alexis Klimoff, who was kind enough to share recollections of his father with me. www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 77
So far as the record discloses, the bookplate for the Il’ins is the only one known to have been designed by “E.K.”.41 Eugene Klimoff fi rst met Ivan Aleksandrovich Il’in in 1931, when Il’in visited Riga to deliver some public lectures. Although Il’in returned several times more for this purpose, friendship with the Klimoff family (as opposed to being acquaintances) developed from 1935, when Il’in spent much of the summer at a large dacha in rural Latvia, which the Klimoffs had rented. Surviving correspondence suggests that the Il’in bookplate was not commissioned from the artist, but rather was a gift, perhaps an expression of gratitude for assistance extended by the Il’ins to the Klimoffs when they were refugees after the Second World War in Germany. Il’in sent food parcels from Switzerland together with touching letters of support and encouragement during those diffi cult times. In a letter dated 13 January 194942 Il’in promises to send E.K. a picture of the Kremlin palace. This would suggest the plan of designing a bookplate was underway. On 17 August 1949 Il’in commented on a draft design rather severely. By the time of the third letter the Klimoffs were in Canada. Il’in gave a detailed critique in early Spring 1950 on a further version, which implied that the fi nal design had not been agreed on. Perhaps the fi nal version was done in late spring of 1950. A letter sent in April of 1950 by Il’in requests quite a different bookplate design (an eagle on a cliff), but there is no indication that E.K. ever attempted a design along these lines. A variant of the bookplate is also illustrated here. Correspondence in the archive suggests there may have been another version, probably without the name of Il’in’s wife. Natalia Nikolaevna Il’ina was a noted historian in her own right. Her work criticizing theories of the Scandinavian origins of the Russians appeared in Paris in 1955 and was reissued in Russia in 2010.43
41 A. Klimoff has a dim and perhaps unreliable recollection that his father may have undertaken a woodcut or wood engraved bookplate in the late 1940s or early 1950s, but no copy, if it was ever made, is known to have survived. 42 Ilyin (n 7) 34. 43 NN Ilyina, Banishment of the Norsemen: Routine Task of Russian Historical Sci (Parizh 1955)); reprinted in - Fomin VV (ed), Banishment of the Norsemen from Russian History (Russkaia Panorama 2010) 19: “The Norman theory does not give a satisfactory explanation of those events which disturbed our country in the ninth century and were noted in the early news of the Russian chronicle”. Ibid 120.
Volume 1 September 2014 Issue 1 www.kulawr.ru 78 KUTAFIN UNIVERSITY LAW REVIEW
The bookplate has only recently become known to Russian bookplate collectors.44 A copy has been presented by Alexis Klimoff to the Special Collections Division of the Moscow University Library and is found in 461 books in the Il’in private library. The dimensions of the bookplate are 7.5 x 9.2 cm. (P1).45
Afterword
After all these adventures with Il’in’s work on legal consciousness and his personal archive and library generally, it is a pleasure to record that his last wishes have been more than honored. In August 2014 his work On the Essence of Legal Consciousness was published in London under the editorship and with extended introductions by William E. Butler, Philip T. Grier, and Vladimir A. Tomsinov. This is the very fi rst occasion that one of his books has become available to the English-speaking world. The general topic of “legal consciousness” could not be more timely, as much today as it was in Il’in’s time.
Bibliography
Bary W, ‘The Engineering Industry in the U.S.S.R.’ (1941) 148 Nature 283 Bary’s Estate v. Commissioner, 24 TCM 1790 (1965); affd: 368 F.2d 844 (1966)
44 The 1st illustration was as the cover design for 2 previously unpublished works by Il’in on State structure and constitution for a post-Sov Russia. IA Ilyin (ed IuT Lisitsa), Fundamental Principles of State Structure, Draft of a Basic L of Russia (Rarog 1996). The bookplate appears in color in a collection of unpublished photographs and archival materials - IuT Lisitsa (ed), Ivan Ilyin and Russia: Unpublished Photos and Archived Materials (Russkaia kniga 1999) 160, together with family photos of the Klimoffs and two pencil sketches by E.K. of Il’in. Also refer to WE Butler, ‘The Il’in Bookplate by E. E. Klimoff’ (2012) 34 The Bookplate J. 45 Each entry in the Catalog of the Il’in Library indicates the presence of any bookplates, labels, or other evidence of provenance, whether of the Il’ins or anyone else. Many are illustrated. Among them is an inscribed copy of a book in French by P.P. Vinogradoff, who held the Chair in Comp L at Oxford U. Refer to note 5 above. www.kulawr.ru Volume 1 September 2014 Issue 1 William E. Butler On the Appearance of I. A. Il’in’s Legal Consciousness 79
Medtner N, A Memorial Volume (R Holt ed, Dennis Dobson 1955) Il’in I.A. Sobranie sochineniy: Pis’ma, memuary (1939-1954). Tom 2 / Pod red. Yu.T. Lisitsy. M.: Russkaya kniga, 1992 (Il’in IA, Collected Works: Letters. Memoirs (1939-1954) (Yu Lisitsy ed, Russkaya kniga 1999)) Il’in I.A. Sobranie sochineniy: v 10 tomakh / Pod red. Yu.T. Lisitsy. M.: Russkaya kniga, 1993-1999 (Il’in IA, Collected Works in 10 volumes (Yu Lisitsy ed, Russkaya kniga 1993-1999)) Il’in I.A. Katalog biblioteki Ivana Aleksandrovicha Il’ina / Pod red. I.L. Velikodnoy. M.: Izdatelstvo Moskovskogo Universiteta, 2011 (Il’in IA, Catalogue of the Library of Ivan Aleksandrovich Ilyin (I Velikodnaya ed, Izdatelstvo Moskovskogo Universiteta 2011)) Lafi tskiy V.I. Bogarne : syd’by I zagadki istorii / M. : Izdatelskiy dom V. EMA, 2013 (Lafi tskiy VI, Beauharnais: Fates and Mysteries of History (Izdatelskyi Dom V. Ema 2013)) Lehrs J, ‘Memorandum re Woldemar Bary’s Case’ (1918) Letter from IA Il’in to PN Wrangel (5 April 1923) Letter of Summers to Francis (30 April 1918) Letter of Poole to Francis (7 June 1918) Letter of Poole to Francis (15 June 1918) Letter of Poole to Francis (1 July 1918) Ljunggren M, The Russian Mephisto: Study of the Life and Work of Emilii Medtner (Coronet Books Inc 1994). Emilii was a Russian publisher and infl uential member of the Russian symbolist movement Palomino A, Iz Rossii s lyubov’yu // 2013 № 1. (Palomino A, ‘From Russia With Love: An Immigrant’s Story’ (2013)1) Sapov V.V. “Russkiy Kolokol” (“The Russian Bell”) Nikolyukhin ed, Lit Ency of the Russian Abroad 397 Sharipov A.M. Russkiy myslitel’ Ivan Aleksandrovich Il’in. Tvorcheskaya biografi ya / Pod red. A.M. Sharipova. M.: Izdatel’stvo Glavarkhiva Moskvy: Delovoy ritm, 2008 (Sharipov AM, A Russian Thinker: Ivan Aleksandrovich Ilyin – An Intellectual Bio (A Sharipov ed, Izdatel’stvo Glavarkhiva Moskvy: Delovoy ritm 2008)) Wiegler L, ‘Tearing into the Metrodome: Are Other Air-Pressurized Stadiums Unsafe and Outmoded?’ (2011) Scientifi c American
Volume 1 September 2014 Issue 1 www.kulawr.ru 80 KUTAFIN UNIVERSITY LAW REVIEW
ARTICLE
CANADIAN MODEL FOR CENTRALIZED DELIVERY OF LEGAL SERVICES AND ITS APPLICATION IN RUSSIA
By Sergey Kabyshev
Author PhD (Law), Academy of Management, Interior Ministry of Russia, 1992 Associate Professor, Kutafi n Moscow State Law University E-mail: [email protected] Abstract This article presents a model for the delivery of legal services by Canada’s Department of Justice and demonstrates the advantage of a centralized delivery of legal services for the effectiveness of the government activity and for fulfi lling the needs of the consumers. In 1966, all the lawyers who were public servants became employees of the Department of Justice. The integration made it possible: to enhance the quality and timeliness of the legal services; to ensure the independence and neutrality of the government lawyers (they are currently employed by the Minister of Justice and their career does not depend on the heads of the client departments); to offer wider career opportunities for the lawyers (to provide them with more interesting jobs, higher salaries, professional development); to abate the trend towards issuing opinions of an overly academic nature, as staff turnover ensures better knowledge of the real situation (normally a lawyer stays with one client department for about three years); to ensure consistency of all legal opinions by various government bodies; to optimize expenses. The way Canada organized its legislative process warrants further study. A dedicated Legislation Section was established within the Department of Justice. Analysis of the Canadian experience, as it applies to certain executive bodies of the constituent entities of the Russian Federation, allows one to make a www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Kabyshev Canadian Model for Centralized Delivery of Legal Services 81
conclusion about the applicability of the Canadian model for centralized delivery of legal services in Russia both at the federal and regional levels. Keywords Canada’s Department of Justice, model of centralized delivery of legal services, assessment of legal services’ quality, criteria of satisfaction with the legal services, application of foreign experience
Prior to the 20th anniversary of the Russian Constitution, Prime-Minister Dmitry Medvedev wrote an article concerning the Basic Law, government functions, and effi cient public administration technologies. In his opinion, the most important questions in this fi eld is “…how to avoid distortion of the political, economic, and social content of a legal act in the process of its going through the multistage legislative process, and, what is even more important, how to avoid distortion of its constitutional meaning?.. It is thus apparent that the current key objective is to modify the legislative technologies used within the federal executive system – from the initiative to adopt a legislative act to the monitoring of its enforcement. It is important to apply both centralized and decentralized approaches in the process of managing delivery of legal services” (emphasis added).1 In this connection, it would be appropriate to have a look at the positive relevant experience of other countries. The Justice Department of Canada was established in 1868. Its key function was defi ned as the delivery of legal services to the Canadian Government.2 Evolution of the state brought about new challenges that demanded legal opinion. Departments and agencies of the Canadian Government gradually established their own legal services or resorted to the services of private lawyers. As a result, the Department of Justice, to a considerable degree, was
1 Dmitriy Medvedev. 20 let: put’ k osoznaniyu prava // Rossiyskaya gazeta. 2013. №6255 (279). (Dmitriy Medvedev, ‘20 Years: The Way to Consciousness of Right’ Russian Newspaper (Moscow, 11 December 2013) 1). 2 An Act respecting the Department of Justice, adopted during the first session of the Parliament of the Dominion of Canada and assented to on 22 May 1868 (31 Vic, c 39)
Volume 1 September 2014 Issue 1 www.kulawr.ru 82 KUTAFIN UNIVERSITY LAW REVIEW
not directly involved in the activities associated with the provision of legal services to the federal government. The Royal Commission on Government Organization (Glassco) was established in 1960 “to inquire into and report upon the organization and methods of operation of the departments and agencies of the government of Canada and to recommend the changes which would best promote the effi ciency, economy and improved service in the dispatch of public business.” Having examined the issues, the Commission arrived at the conclusion that the government system of legal services provision was not effi cient. It was also found that over 85% of the legal services provided by the Canadian government were outside the competence of the Justice Department. Small teams of lawyers (sometimes a single lawyer) who had obligations to their client departments, as their employers, did not have a suffi cient degree of independence or breadth of professional vision, which resulted in a protracted inter-departmental tug of war. It was proposed to have all legal services (with a few exceptions3) grouped together under an umbrella of the Department of Justice, thus ensuring a consistent legal policy.4 The government subsequently approved the recommendations of the Commission and their implementation began.5 In 1966, all lawyers who were public servants6 became employees of the Department of Justice. In the period from 1961 till now, the number of employees of the Department of Justice increased from 42 to 5000. The integration made it possible: — To enhance the quality and timeliness of legal services; — To ensure the independence and neutrality of government lawyers (lawyers are now employed by the Minister of Justice and their career does not depend on the heads of the client departments);
3 Exceptions are related to the state secret issues and activities of the Defense Department, Department of Interior, Department of Foreign Affairs. Presently lawyers of the Department of Justice work in 40 of the federal government’s departments and agencies. 4 Report of the Royal Commission on Government Organization, Vol I: Management of the Public Service. Ottawa, Queen’s Printer [1962] 19. 5 TH McLeod, ‘Glassco Commission Report’ 1963 Canadian Public Administration (Vol 6 Issue 4) 386-406. 6 It is important to note that Parliament has its own legal service and its lawyers are not public servants. www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Kabyshev Canadian Model for Centralized Delivery of Legal Services 83
— To offer wider career opportunities for lawyers (to provide them with more interesting jobs, higher salaries, and professional development); — To abate the trend towards issuing opinions of an overly academic nature, as staff turnover ensures better knowledge of the real situation (normally a lawyer stays with one client department for about three years); — To ensure consistency of all legal opinions by various government bodies; — To optimize expenses. This model has a number of advantages, including uniform standards of staff hiring and training, enhanced transparency, and fairness in payments for the lawyers’ services. It must be kept in mind that client departments submit time-keeping data for lawyers that serve them to the Treasury Board and the Department of Justice. The Treasury Board approves the data only after they have been confi rmed and, if necessary, corrected by the Department of Justice. The opportunity to articulate a compelling legal argument is a material advantage of the centralized system for delivering legal services. The formula of “two lawyers, three opinions” is widely known. Lawyers might have different views on the same issue. However, it is quite counterproductive when ministers come to a Cabinet meeting armed with contradicting opinions provided by their lawyers. The Minister of Justice shall smooth the differences prior to the meeting, play the role of an arbiter in the dispute, and present to the Cabinet a consolidated legal opinion. Within the constitutional / legal system of Canada, the Minister of Justice plays the role of a legal adviser for the entire government. The Minister of Justice has to ensure that public administration is performed in accordance with the Canadian Constitution and that the rights are upheld in compliance with the Canadian Charter of Rights and Freedoms. The Minister of Justice is also, by law, the Attorney general of Canada.7 Having a monopoly on the delivery of government legal services, the Department of Justice can speak with one voice to all the government bodies and their offi ces across the country. However, most of the lawyers employed by the Department of Justice are not stationed at its headquarters, but on the premises of the client departments. Furthermore, the Department has a
7 Department of Justice Act 1985, s 4 (RSC) c J-2
Volume 1 September 2014 Issue 1 www.kulawr.ru 84 KUTAFIN UNIVERSITY LAW REVIEW
number of regional offi ces, with about 2000 employees, delivering services to the public servants outside the capital region. The Department of Justice has 42 structural units dealing with such issues as the Canadian Charter of Rights and Freedoms, administrative law, constitutional law, international law, aboriginal affairs, offi cial languages, privacy rights, etc.8 The way Canada organizes its legislative process warrants further study. A dedicated Legislation Section was established within the Department of Justice and its employees (about 100) draft bills in cooperation with the lawyers working on behalf of the client department. The drafters are politically neutral professionals who have an objective of drafting bills in the country’s two offi cial languages. The objective is achieved by following the guidelines for drafting bills developed by the Department of Justice and the centralized management of the process9. The Department of Justice has set up a system of training and professional development of the drafters.10 The Canadian experience is one of a unique nature. The experiment that started in the 1960-s again substantiates the idea of its authors that centralization of legal services within the Ministry of Justice is the most effi cient way of supporting the activities of the Canadian Government.11 To enhance the performance of its employees, the Department of Justice developed a set of common service standards focusing on timeliness, responsiveness, and usefulness. The Department regularly performs a Client Feedback Survey and uses it, among other things, for performance evaluation purposes.12 The results are accessible through the offi cial web-site of the Department.
8 Organization of the Department of Justice
During 2005-2009, within the framework of the Canada-Russia “Public Administration Reform Program”, representatives of the Canadian Ministry of Justice held a series of workshops both in Russia and Canada attended by the Russian lawyers employed by federal and regional government authorities, and also by offi cers of the Administrations of all the constituent regions of the Russian Federation. The aim was to share the Canadian experience in organizing legal services.13 In 2005, the author conducted a study, using a questionnaire survey of the heads of the regional executive bodies in the Russian Federation, as well as lawyers of the legal departments of those regions (a total of about 460 people), in order to fi nd out what practitioners thought about the possibility of enhancing the effi ciency of their work. It was found out that provision of legal services in the constituent regions of the Russian Federation is based on a couple of common principles: the availability of legal departments that provide support to the power authorities, and the availability of lawyers within the structural units, which are formed on a sectoral basis. In this arrangement, the lawyers of the legal departments bear the brunt of the work. According to the information from the Tambov Region, one out of every two legal documents drafted in 2005 by the Region Administration sectoral departments and submitted to the Legal Department for review were returned for redrafting. Information from the Lipetsk Region demonstrated that a lawyer employed daily by the Legal Department participated in two court hearings, reviewed eight legal documents, and participated in three meetings of various working groups, commissions, and committees. The participants of the survey identifi ed a set of negative characteristics associated with the legal services provision: 1. Precedence of the principle of subjective practicability over the principle of lawfulness: heads of the executive bodies (units) striving to achieve their goals do not always choose methods that are in full compliance with the law, and, to a certain degree, ignore the lawyers’ opinion. 2. Strong infl uence of the sectoral departments heads on the career progress of their employees. As a result, employed lawyers do not always insist on full compliance with the legislative documents.
13 Program’s web-site
Volume 1 September 2014 Issue 1 www.kulawr.ru 86 KUTAFIN UNIVERSITY LAW REVIEW
3. Inadequate quality of the documents drafted by lawyers employed by the sectoral departments who believe that lawyers from the legal departments shall correct any shortcoming and be responsible for the fi nal versions of the drafts. 4. Documents undergo double review: by the lawyers from the sectoral departments, and also the ones from the legal departments. 5. Lack of a clear-cut duties distribution between the lawyers employed by the sectoral departments and the lawyers from the legal departments, resulting in the aforementioned shortcomings in the provision of legal services to the executive branch. The analysis reveals that many of the identifi ed defi ciencies result from a lack of a uniform approach to organizing the activities of the legal departments. The survey participants made a number of recommendations for improving legal support to regional executive authorities in the Russian Federation: а) lawyers employed by the sectoral departments shall be transferred to the centralized legal department and report both to the head of such a department and to the head of the client department, to which they are deployed; b) job description of a lawyer shall prescribe both kinds of circumstances, in which he/she will be subordinated to the head of the legal department, and in which to the head of the client department; c) as lawyers support the activities of the client department, they shall reside with such departments; d) job description of a lawyer referred to a client department shall take into consideration the specifi c features of the activities of both the legal department and the client department; e) a lawyer referred to a client department shall not perform duties that are not related to the provision of legal services to the client department; f) disciplinary measures and recognitions with respect to a lawyer may be applied by the head of the legal department on his/her own initiative or on the initiative of the head of the client department, to which the lawyer is deployed; g) there shall be a statutory requirement that all legal documents issued by the client department have to be signed off by the lawyers. The head www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Kabyshev Canadian Model for Centralized Delivery of Legal Services 87
of the client department shall be responsible for compliance with the requirement. Most of the participants polled (83%) expressed an interest in adapting the Canadian model for centralized delivery of legal services, but only a few of the constituent regions of the Russian Federation dared to experiment. On October 30, 2006, the Head of the Lipetsk Administration signed a Resolution “Concerning Centralization of Legal Support to the Head of the Administration and Executive Authorities of the Lipetsk Region,”14 establishing a single Legal Department of the Administration by merging all the previously existing legal units of the regional executive authorities. In accordance with the Resolution, the establishment of any new sectoral executive department shall be followed by the creation of one or more additional lawyer (lawyers) positions at the Legal Department of the Regional Administration. The staff-list for the Legal Department of the Administration included 53 positions distributed across 8 Sections: — Section for Legal Support to the Head of Administration, Administration Departments, and Litigation & Contract Activities; — Section for Legislative Drafting; — Section for Keeping the Register of Municipal Legal Acts; — Section for Legal Support in the Social Sector; — Section for Legal Support in the Finance, Roads Building, Transportation, Energy, Tariffs, and Housing & Utilities Sectors; — Section for Legal Support in the Agriculture, Veterinary, and Environment Sectors; — Section for Legal Support in the Public Procurements and Control Sectors; — Section for Legal Support in the Property & Land Relations and Construction Sectors. Under the new arrangement, lawyers shall be employed by the Legal Department and deliver legal services to the other departments of the Regional Administration while staying on premises. In other words, their physical place
14 The Lipetsk Regional Administration Official Internet Portal
Volume 1 September 2014 Issue 1 www.kulawr.ru 88 KUTAFIN UNIVERSITY LAW REVIEW
of work and duties remained unchanged. However, they stopped reporting directly to the heads of the Regional Administration departments. What’s more, employees of the Legal Department referred to a Client Department of the Regional Administration are obliged to report in writing to the head of the Legal Department about any legal violation made by the client department. In cases of detecting law violations, the head of the Legal Department shall report about them to the Head of Administration. At a later stage, the Canadian model was adopted by many regions in Russia, such as Tver,15 Tambov, Orel,16 and also by the City of St. Petersburg.17 The seven-year experience of implementing the Canadian Model for structuring legal services in seven constituent regions of the Russian Federation, coupled with the sociological surveys conducted by the author (questionnaires and interviews with heads of regional executive authorities and lawyers) demonstrate that the decision to adopt the Model is well-thought-out and makes it possible to arrive at the following conclusions: — Lawyers referred to the client departments grew aware of their independence, which had certain important consequences: — They started providing higher quality expert reviews; — They are involved in the drafting process from the very beginning, which helps to stick to the plan and timetable of the legislative activities;
15 V Tverskoy oblasti rukovoditelyu pravovogo upravleniya Administratsii Tverskoy oblasti bylo predostavleno pravo soglasovyvat’ kandidatury yuristov v inykh organakh ispolnitel’noy vlasti, davat’ im obyazatel’nye dlya ispolneniya porucheniya, trebovat’ otchety o prodelannoy rabote, a takzhe primenyat’ mery distsiplinarnogo vzyskaniya k yuristam, sovershivshim dolzhnostnoy prostupok (In the Tverskaya Oblast Head of the Legal Department of the Oblast Government was given the right to nominate lawyers to client departments, to assign them tasks, to take disciplinary actions against them). 16 Postanovleniem Administratsii goroda Orla № 1429/1 ot 03.07.2007 g. “O vnesenii izmeneniy v shtatnye raspisaniya” yuristy strukturnykh podrazdeleniy administratsii byli perevedeny v shtat pravovogo otdela (In accordance with the Resolution by the Orel City Administration № 1429/1 dated 03.07.2007 “Concerning Amendments to the Staff-Lists” lawyers of all the structural units were transferred to the Legal Department). 17 Shevchuk M. Stroem po vertikali budut hodit’ yuristy Smol’nogo // Kommersant’ – SPB, № 120 (3451) ot 5 iyulya 2006 g. (M Shevchuk, ‘Centralized Delivery of Legal Services in the St. Petersburg City Administration’ (2006) 120 (3451) SPB Kommersant). www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Kabyshev Canadian Model for Centralized Delivery of Legal Services 89
— They wide opportunities for upgrading their skills and exchanging the experience with other lawyers at specialized conferences, meetings, and training sessions; — They are capable of performing more effective reviews of bills submitted to the State Duma for the fi rst reading. The new arrangement opened the way to: — Career progress; —Ef fi cient redistribution of functions between the staff members of the legal service; — Prompt resolutions of the issues, which legal department has to face through the discretionary use of the “brainstorming” technique; — Having a single department responsible for the judicial perfection of decision; — Development of a single legal position for public authorities; — Prevention of pressure placed on the lawyer by higher-ranking court offi cials; — Prevention of the repetition of tasks conducted during expert reviews of legal acts, which helps to speed up the decision-making process and consequently helps to remove administrative barriers; —Ef fi cient generalization of the legal practice. As a result, during the years 2008-2012, not a single legal act of the Lipetsk Administration was contested in court. The quality of the legislative drafts of the pilot regions was enhanced. During the experiment’s seven-year span, the share of the bills introduced by the executive authorities and adopted as laws at the regional level increased from 24% to 70%. Another achievement of the experiment was the streamlining of activities related to the lawyers’ representation of the administration in courts. In Lipetsk region, courts of all jurisdictions used to request court-session participation from representatives of all executive bodies involved and, on a mandatory basis, the lawyers representing the Administration. Under this arrangement, within the span of the court case, the interests of the Administration could be represented by lawyers from two or more different sectoral departments and by a single lawyer from the Legal Department. This did not help to enhance the process effi ciency and, in fact, demanded excessive labor effort. What’s more, there are some, when representatives of the executive bodies, acting from a perspective
Volume 1 September 2014 Issue 1 www.kulawr.ru 90 KUTAFIN UNIVERSITY LAW REVIEW
of departmentalism, were taking in-court legal positions different from those of the lawyer representing the Legal Department of the Regional Administration. Presently, the legal position of the Administration is agreed prior to the court session and only with one lawyer, acting on the basis of a Power of Attorney, represents the interests of the Administration and the sectoral executive authorities. This places a higher responsibility on the lawyers for performing their duties, as the results are judged by the managers, who are also lawyers. The opinion of the manager of the sectoral department is always taken into account when evaluating the performance of the lawyers referred to such departments from the Legal Department. Most of the managers think highly about the new arrangement of legal activities and believe that a single, unifi ed legal service helps: — to achieve uniformity and consistency in the provision of legal support; — to establish, during the process of drafting and approvals, a permanent contact with the offi cers of the legal department who review the drafts; — to take advantage of the joint experience and knowledge accumulated by lawyers referred to the other sectoral executive authorities; — to enhance effi ciency of using limited resources and hence, to improve the performance of the executive authorities. Some heads of executive bodies admit that the lawyers’ activities was improved for the reason of better job descriptions ,and they are no longer required to perform human resource and other non-core functions. The centralization of legal services proved to be a very effective tool.18 After seven years of operation, this opinion is shared by all lawyers from legal departments of the seven pilot constituent regions of the Russian Federation and by the heads of their executive authorities. All participants surveyed note another important outcome of introducing the Canadian model – the improvement of the legal profession status,
18 Savin V.I. Mekhanizmy koordinatsii deyatel’nosti yuridicheskikh sluzhb sub’ektov RF // Prava i svobody cheloveka i grazhdanina: Aktual’nye problemy nauki i praktiki: Sbornik materialov I Mezhdunarodnoy nauchno-prakticheskoy konferentsii. ORAGS. 2009. S. 125-129. (VI Savin, ‘Mechanism of coordination of activities of the legal services of the constituent regions of the Russian Federation’, Rights and Freedoms of the Person and the Citizen: Pressing Challenges of Science and Practice: Information Package of the 1st Workshop and Conference (ORAGS 2009) 125). www.kulawr.ru Volume 1 September 2014 Issue 1 Sergey Kabyshev Canadian Model for Centralized Delivery of Legal Services 91 exemplifi ed by a higher respect for the opinion of the legal expert on the part of the managers, who no longer can make a decision without obtaining a positive opinion from their lawyer. Upon the passing of every year of the experiment, it becomes more evident that the transformation of the legal service into an integrated mechanism ensures the centralized delivery of legal services. It is thus apparent that the idea of extending the experiment of adapting the Canadian model for centralized delivery of legal services to other constituent regions of the Russian Federation, and eventually to the federal level, deserves close attention.
Bibliography Currie A, ‘Legal Aid Delivery Models In Canada: Past Experience and Future Directions’ TR1999-1e (Technical Report) Department of Justice Canada
Volume 1 September 2014 Issue 1 www.kulawr.ru 92 KUTAFIN UNIVERSITY LAW REVIEW
ARTICLE
LIMITS OF STATE INTERVENTION AND NON-INTERVENTION IN THE SPORTS FIELD
By Igor Ponkin, Alena Ponkina Authors Igor Ponkin Doctor of science (Law), Russian Presidential Academy of Public Administration, 2004 Professor, Kutafi n Moscow State Law University E-mail: [email protected] Alena Ponkina PhD (Law), Russian Presidential Academy of National Economy and Public Administration, 2013 Lecturer of Sports Law, Kutafi n Moscow State Law University E-mail: [email protected] Abstract The present article analyses the limits of state intervention and non- intervention in the sports fi eld. The authors underscore the conditions that legally and practically defi ne a need for state involvement in sports management. They also describe the principle of sports autonomy. The principle of sports autonomy refl ects independence from public authorities (including both federal and local, or municipal, authorities). This principle is one of the most basic principles in professional sports. This principle enables the systematization and delimitation of the relations between individuals, society, and government in the sports fi eld, while preventing or reducing any imbalance in such relations. Thus, the key feature of interrelation between public administration and self-administration in the sports fi eld is the limitation (restriction) of public administration. The principle of sports autonomy should also encompass the existence of autonomous extra-legal regulation in the sports fi eld. However, a state not only possesses public interests, but also maintains administrative functions, in this fi eld. In modern professional sports, the development www.kulawr.ru Volume 1 September 2014 Issue 1 Igor Ponkin, Alena Ponkina Limits of State Intervention and Non-Intervention in the Sports Field 93
of sustainable public relations that function in line with public interests cannot be accomplished without public administration, including administrative, criminal, and civil law regulation in the sports fi eld. Keywords Sports law, lex sportiva, sport, public administration in the sports fi eld, state, limits of state competence, state intervention and non- intervention in the sports fi eld Introduction
Sport needs support from both society and state. As Russian Minister for Sports Vitaliy Moutko once said, “Strengthening the role of the state in the regulation of sports allowed Russia to perform successfully in Sochi.”1 The implementation of a governmental strategy for developing physical training and sports in the Russian Federation for the next years2 confi rms a high importance of sports in the lifestyle improvement in Russia. The strategy defi nes the main objectives and goals of implementing the State Policy in the sports fi eld. The main objectives of the State Policy in this fi eld should be: development of an organizational basis for sports, improvement of interaction between different entities in the aforementioned fi eld, and improvement of the sports management system at every level. In accordance with United Nations regulatory documents, public management is a process of realizing political, economic, and administrative power. Management may include any methods used by a society for the distribution of authorities, management of state resources, and the resolution of problems as they arise. Public administration refers to the activity of a state authority, aimed at the achievement, implementation, and protection of public interests, as well as the realization of state functions, which include: integrated planning; legal support; implementation of legislative, executive/administrative, judicial, and control/ supervision power.
1 http://itar-tass.com/sport/1141037 accessed 23 April 2014. 2 Directive of the Government of the Russian Federation № 1101-r, ‘Approval of the Strategy of Development of Physical Training and Sports in the Russian Federation for the Period until 2020’ [2009] 33.
Volume 1 September 2014 Issue 1 www.kulawr.ru 94 KUTAFIN UNIVERSITY LAW REVIEW
The development of social relationships in the sports fi eld is a modern tendency observed in many different countries in the world. This increases connection between the role of state management—including state control— and the growing role of self-administration (including self-regulation). This interconnectedness is aimed at providing the necessary conditions for the stable functioning of national and international systems of sporting relationships, the protection of lawful public and private interests, as well as the preservation of commonly recognized esthetic values in the sports fi eld. The complex interaction between two managing systems mentioned above warrants a need for a scientifi c study investigating their interaction mechanism. The necessity of increasing the efficiency of state management in the sports field, which entails the improvement of a legislative and regulatory basis in this field, is also influenced by the conditions of social relationships and judicial practice in the sports field in Russia. This can lead to the serious problems occurrence, such as the lack of partnerships in the field of sports that possess a proper combination of administrative and self-management systems. It is also worth mentioning an increasing role of non-state entities and their increasing involvement in the processes of state and social management, as well as in the development of public policy. According to that approach, the role of the state evolves from the main policy supplier to one of the entities, which advances the interaction between societal groups with different interests. Ultimately, the state’s role may also involve the coordination and management of such processes.3 As a result, the types of tools needed for effective state management require some modifi cation. As T.V. Milusheva writes, “the boundaries of state activity can be set not only by various segments of human activity, but also by specifi c features of the historical process, national traditions, geographic position of a state, and globalization issues.” 4
3 C Lyall, T Papaioannou and J Smith, The Limits to Governance: The Challenge of Policy-Making for the New Life Sci (Ashgate Publ Ltd 2009) 3. 4 Milusheva T.V. Predely i ogranicheniya gosudarstvennoy vlasti (teoretiko – pravovoe issledovanie) / Dissertatsya. Saratov, 2012 (TV Milusheva, Limitations and Boundaries of State Power: theoretical and law study (DPhil thesis, Saratov 2011)). www.kulawr.ru Volume 1 September 2014 Issue 1 Igor Ponkin, Alena Ponkina Limits of State Intervention and Non-Intervention in the Sports Field 95
Currently, one of the most popular approaches to implementing public management is so-called “New” public management approach. The authors believe that the necessity of a “New” public administration (or public management) is determined by the circumstances described below. — Objective indoctrination of a signifi cant and increasing expansion in the fi eld of public management with respect to the study of subject and object affairs. Presently, this direction is markedly visible, even when compared with the second half of the 20th century, during which the public management fi eld saw the emergence of esoteric new branches in the area of subject and object relations. Yet, although this tendency was undoubtedly observed in the 20th century, it lacked the strong dynamics of the current inclination. Indeed, the sports fi eld in most countries, the fi eld of sports did not become either a subject or an object of public management until the middle of the 20th century. There are only a select few countries where it has been the case since the end of the 19th century. However, the fi nancial resources of the public authorities are progressively becoming less suitable for the provision of full-scale public management in all new branches of subject and object relations, which lead to the deceleration or reversion of states’ annual growth. — Structural complexity of public management, resulting from the signifi cant and increasing substantial cumulative complexity of the structure and content of public relationships in almost every segment of human life. — Considerable complication of the structure and content of public management, caused by the increasing number of public services provided by the public administration after being objectively determined (from the position of their mandatory provision. Although the number of public services is commensurately growing with the demand for them, it is noteworthy that public authorities are much better with their duties than they were several decades ago, let alone a century ago. — Emendation of public rules; complexity of the interconnection between national and international rules. — Increasing in the number of legislative and regulatory management tasks.
Volume 1 September 2014 Issue 1 www.kulawr.ru 96 KUTAFIN UNIVERSITY LAW REVIEW
— Diminishment of democratic principles and the power of the people. — Growing interest for improving the effi ciency of public management; growing demand for “customer-oriented” public services. — Complexity of the economic segment; complexity and necessity of current planning; large diversifi cation of public management tools. — Signifi cant development of information technologies in the fi eld of public services provision. What’s more, the public management paradigm is highly susceptible to current changes in the system of values, regarding the role and purpose of public administration. The previously mentioned changes have been quite visible in the last decades, but are becoming even more pronounced in recent years. The main signifi cant features of the “New” public administration model (“New public management”) – which is increasingly replacing the formerly established “conventional” public management model implemented by the public administration (a system of State and municipal management bodies) - are summarized below. The review of these features is presented in congruence with elements of the authors’ collective perspective on the “New” public management paradigm: — Implementation of the “good” public management concept; — Systematic simplifi cation of legislation (as one of the elements and inherent tools of the “New” public management model); — Reduction in the overall number of narrowing of segments specializations and branches in the public management fi eld, specifi cally in the area of subject and object affairs; — Transfer of an increasing large number of its functions and powers from the public administration to non-State operators, such as self- managed, private, and State/private organizations (e.g. self-managed organizations in the fi elds of fi nancial markets, wine industry, and sports); — Functions and powers that are shifted - those, which have historically and conventionally been included in the state competency; — Transfer of a growing number of responsibilities from public administration to market mechanisms, based on the assumption that such market mechanisms can better adapt to the conditions of a permanently changing environment; www.kulawr.ru Volume 1 September 2014 Issue 1 Igor Ponkin, Alena Ponkina Limits of State Intervention and Non-Intervention in the Sports Field 97
— Appropriation of a subsidiary principle through the provision of public services, including the partial transfer of public service authorities’ total work volume to private operators; — Development of state/private partnership as an element and tool of the “New” public management model (state/private partnership in the fi eld of transportation infrastructure, private intelligence services, private armies, etc.); — Intensifi cation of communication between state management and other types of social management; — Broadening and elaboration of collaborative interaction between public management and self-management; — Interrelation and cooperation between public management and independent, non-legislative regulatory rules, as well as the development of guaranties and mechanisms for independent institutions; — Extension and enrichment of the interaction between State law and other (non-State) regulatory systems (lex sportiva, lex mercatoria, lex canonica, etc.); — Implementation and progressive development of the “electronic state” concept, and an increase in the scope and variety of electronic public services provided by the public administration; — Increase in requirements for public management reporting, as public management is growing subject to permanent societal control; — Signifi cant development of the “line” of public management tools (measures, means, and mechanisms); — Increase in the variety of public management tool modifi cations and the complexity of their combinations (including interference and multiplicative effects); — Implementation of business strategies and other approaches and tools formerly used in business and corporate management by public authorities (strategic planning, performance indicators, etc.); — Reduction of bureaucracy (management restructuring aimed at focusing on results, rather than on process); — Implementation of a results-based management concept, including a line of new mechanisms for quantifying and assessing public management performance;
Volume 1 September 2014 Issue 1 www.kulawr.ru 98 KUTAFIN UNIVERSITY LAW REVIEW
— Increased acceptance of and responsiveness to public interests and social demands that can emerge in various segments of social relationships; — One of the most important principles involved in functioning, reproduction, and development of the abovementioned model is that of sports autonomy. According to the overwhelming opinion of most specialists, the principle of sports autonomy, based on freedom from public authority (state authorities and local, or municipal, authorities) is one of the tenets on which the entire sporting business is based. It is exactly this principle that enables the systematization and delimitation of the relations between individuals, society, and a government in the fi eld of sports, while preventing or reducing any imbalance in such relations. Therefore, the key feature of interrelation between public administration and self-administration in the sports fi eld concerns the limitation (restriction) of public administration in the mentioned fi eld. The principle of sports autonomy is represented by the existence of autonomous extralegal regulation in the fi eld of sports. A basic component of such regulation is recognized and guaranteed by a state, whereas the remaining parts may be allowed by a state, depending on a chosen sport management model. The term «autonomy», with reference to sports, was fi rst registered in the Olympic Charter of 1949 and applied to the national Olympic committees. So, pursuant to article 25 of the 1949 Olympic Charter, the independence and autonomy were among the principal demands made in organizing the national Olympic committees.5 According to Enrico Lubrano, “Sports autonomy is essentially a barrier for intervention by the legal system, with its legal norms and related legal instruments, in the area protected by relevant regulations (in terms of Inigo and Alberto Marani Toro’s6 concept, sports regulations), provided the actions and decisions did not lose their productivity.”7
5 JL Chappelet, Autonomy of Sport in Europe (Council of Europe Publishing 2010) 11. 6 IM Toro, AM Toro, Gli Ordinamenti Sportivi (Giuffrè ed, 1977) 14. 7 E Lubrano, ‘Il Tribunale Nazionale Arbitrale per lo Sport (TNAS): Analisi della Giurisprudenza (2009-2010) e della Natura delle Relative Decisioni (2010) 3 Rivista di Diritto ed Economia dello Sport’ 6. (E Lubrano, ‘The National Court of Arbitration for Sport (TNAS): Analysis of the Law (2009-2010) and the Relative Nature of Decisions (2010) 3 Journal of Law and Economics of Sport’ 6). www.kulawr.ru Volume 1 September 2014 Issue 1 Igor Ponkin, Alena Ponkina Limits of State Intervention and Non-Intervention in the Sports Field 99
One of the most comprehensive defi nitions of the autonomy of sport is given in the monograph by Jean-Loup Chappelet who defi nes it in the national, European, and transnational context as «the possibility for non-governmental, nonprofi t-making sports organizations to: 1) establish, amend and interpret rules appropriate to their sport freely, without undue political or economic infl uence; 2) choose their leaders democratically, without interference by states or third parties; 3) obtain adequate funds from public or other sources, without disproportionate obligations; 4) use these funds to achieve objectives and carry on activities chosen without severe external constraints; 5) draw up, in consultation with the public authorities, legitimate standards proportionate to the fulfi lment of these objectives.»8 In the opinion of the authors, sports autonomy is an regulatory feature of the sporting arena, which represents a decentralization of public relations in this fi eld, a relative autonomy of sport, and sport’s independence from public power. That independence should be regarded in terms of legislation, law application, institutional structure, organization, functioning, fi nance, economy, politics, and ideology, as well as independence from political organizations, religious associations, and business organizations, including independence from their sanctions, intervention, and pressure). However, the state is a very important player in the sports fi eld. In particular, by adopting the relevant laws and political programs, ensuring the development of the required infrastructure, and implementing economic and social policy, a state is able to promote and encourage involvement in some sporting events, while simultaneously prohibiting other sport events (or at the least, depriving them of any developmental opportunities).9 B.D. McPherson, J.E. Curtis, and J.W. Loy have noted that state intervention in the sports fi eld has been observed in many countries throughout history. For example, the government of the city-states in ancient Greece used sport to
8 Chappelet (n 6) 49. 9 B Kidd, ‘The Canadian State and Sport: The Dilemma of Intervention’ (2013) Sport in Soc: Cultures, Commerce, Media, Politics 362.
Volume 1 September 2014 Issue 1 www.kulawr.ru 100 KUTAFIN UNIVERSITY LAW REVIEW
enhance the fi tness of their citizens for war and to demonstrate their superiority over other city-states and the early part of the Roman era, sport was used for military fi tness; in the later years the ruling elites produced sport-like events to entertain and thereby control the masses.10 According to Anneliese Nelson, societal opinion, culture and national pride have always driven state control over sport. Today, sport is a “circus for the masses.” Most of humanity is uplifted when viewing their favourite team or partaking in the sport of their choice in their free time. The State has a careful balance to maintain between regulating for protection of the public while recognising the value of choice in increasingly societies.11 According to Chien-Yu Lin, Ping-Chao Lee, and Hui-Fang Nai, modern state intervention in the sports fi eld is often employed for the purpose of demonstrating a social, political, or economic standard of living.12 In contemporary professional sports, the development of sustainable public relations in the sports fi eld that function in line with public interests cannot be accomplished without public administration, including administrative, criminal, and civil law regulation in the fi eld of sports, which can only occur under the following conditions: 1. Requirements for a social state. This should result in the enhancement of quality of life and public health (through prevention of diseases by engagement in sports). 2. Requirement for rule of law and order in the sports fi eld, with the intent of preventing crimes (corruption, circulation and distribution of prohibited substances, etc.) and administrative offences. At the same time, an active and effi cient State infl uence is needed for the process of signifi cantly sophisticating the structure of public relations in the sports fi eld and actualizing the solutions to any related problems. This is needed for a prevention of offenses and the resolution of potential
10 BD McPherson, JE Curtis and JW Loy, The Social Significance of Sport: An Intro to the Sociology of Sport (Human Kinetics Books 1989). 11 A Nelson, ‘When, Where and Why Does the State Intervene in Sport: A Contemporary Perspective’ (2005) Bond University 1. 12 CY Lin, PC Lee, HF Nai, ‘Theorizing the Role of Sport in State-Politics’ (2009) International Journal of Sport and Exercise Science 23. www.kulawr.ru Volume 1 September 2014 Issue 1 Igor Ponkin, Alena Ponkina Limits of State Intervention and Non-Intervention in the Sports Field 101
problems because it is nearly impossible to effectively counteract those offenses in the fi eld of sports using solely self-governing and self- regulating mechanisms. 3. Requirement for protecting the health of athletes, in the terms of restrictions on the use of performance-enhancing drugs. A legislative ban on drugs in sports is normally imposed to prevent damage to the health of athletes. Typically, most of the performance- enhancing drugs prohibited by national sports law are not prohibited by criminal law.13 4. Requirement for protecting the health of athletes through the introduction of restrictions on especially tough sporting events and on types of sports that involve a high risk to the health and lives of athletes.14 Anneliese Nelson notes that speaking about state intervention in sports via legal regulation of sport events, we should fi rst mention combat sports (i.e. those involving fi ghting), which, from a legal perspective, are granted a certain exception by the state. Although such sports call for striking blows on the opponent, which may make him defenseless, the criminal laws prohibiting murder and the infl iction of harm to a person’s health do not apply here. In a number of countries, special laws on boxing and other types of fi ghting sports provide for signifi cant restrictions on the licensing of boxing matches and similar sporting events, in addition to imposing requirements for the physical condition of participants of such events. The purpose of such laws is to exercise some level of control over professional boxing and other fi ghting sports, in order to promote safety and reduce the risk of improper conduct on the part of athletes and their managers.15
13 Nelson (n 12) 9. 14 Soloviev A.A. Pravovoe regulirovanie sportivnyh edinoborstv: opyt SShA i Kanady / M.: Komissiya po sportivnomu pravu; Assotsiatsyya yuristov v Rossii; Natsional’noye obedinenie sportivnykh yurisrov; Federatsyya kikboksinga v Rossii, 2013 (AA Soloviev, Law Regulation of Combat Sports: Experiences of the USA and Canada (The Commission on sports law Association of lawyers of Russia; National Association of sports lawyers; kickboxing Federation of Russia 2013)). 15 A Nelson (n 12) 3.
Volume 1 September 2014 Issue 1 www.kulawr.ru 102 KUTAFIN UNIVERSITY LAW REVIEW
5. Requirement for protecting the labor rights of athletes.16 6. Requirement for creating the conditions necessary for development. As the sports fi eld develops, it will continue to deal even more with the business fi eld, notwithstanding that the sports industry already accounts for a signifi cant segment of national economics. 7. Requirement for the protection of public morality and a need for special games and sport events regulation. 8. Requirements for the order protection during sport events. A state therefore not only possesses public interests, but also maintains administrative functions, in the fi eld of sports.
Conclusion
It is clear that state involvement is very important for the promotion and management of sports. In addition, the state has an invested interest in various resources provided by the sports fi eld that are important for public power, including the resources related to economic and social fi elds of study, as well as to constructive redirection of the social energy of the masses. That is why the question of researching acceptable mechanisms for ensuring a balance of interests in the sports fi eld is still highly topical. It is becoming even more relevant in the modern conditions of of interplay between public order and autonomous extralegal regulation in the sports fi eld. The principle of the sports autonomy refl ects independence from public authorities and is one of the basic principles of the sport business. This principle enables the systematization and delimitation of the relations between individuals, society, and government in the sports fi eld, while preventing or reducing any imbalance in such relations. Thus, the key feature of interrelation between public administration and self-administration in the sports fi eld is the limitation (restriction) of public administration, which should mean autonomy principle with the autonomous extralegal regulation. A basic component of such
16 Shevchenko O.A. Osobennosti pravovogo regulirovaniya truda v sfere professional’nogo sporta. M.: Commission on Sports Law of the Association of Lawyers of Russia 2013 (OA Shevchenko, The Features of Labor Regulation in the Professional Sports Sphere (Commission on Sports Law of the Association of Lawyers of Russia 2013)). www.kulawr.ru Volume 1 September 2014 Issue 1 Igor Ponkin, Alena Ponkina Limits of State Intervention and Non-Intervention in the Sports Field 103 regulation is recognized and guaranteed by a state, whereas the remaining parts can be allowed by a state, depending on the chosen sport management model. Consequently, the state should have plenty of administrative functions in the fi eld of sports. In modern professional sports, the development of sustainable public relations that function in line with public interests cannot be accomplished without public administration, including administrative, criminal, and civil law regulation in the sports fi eld.
Bibliography
Chappelet JL, Autonomy of Sport in Europe (Council of Europe Publishing 2010) Directive of the Government of the Russian Federation № 1101-r, ‘Approval of the Strategy of Development of Physical Training and Sports in the RF for the Period until 2020’ [2009] 33 Kidd B, ‘The Canadian State and Sport: The Dilemma of Intervention’ (2013) Sport in Soc: Cultures, Commerce, Media, Politics 362 Lin CY, Lee PC, Nai HF, ‘Theorizing the Role of Sport in State-Politics’ (2009) International Journal of Sport and Exercise Science 23 Lubrano E, ‘Il Tribunale Nazionale Arbitrale per lo Sport (TNAS): Analisi della Giurisprudenza (2009-2010) e della Natura delle Relative Decisioni (2010) 3 Rivista di Diritto ed Economia dello Sport’ 6. (E Lubrano, ‘The National Court of Arbitration for Sport (TNAS): Analysis of the Law (2009-2010) and the Relative Nature of Decisions (2010) 3 Journal of Law and Economics of Sport’ 6) Lyall C, Papaioannou T and Smith J, The Limits to Governance: The Challenge of Policy-Making for the New Life Sci (Ashgate Publ Ltd 2009) Management Dev and Gov Div Bureau for Policy and Prog Support ‘Reconceptualizing Governance, Discussion Paper 2’ (1997) 9 UN Dev Prog McPherson BD, Curtis JE and Loy JW, The Social Signifi cance of Sport: An Intro to the Sociology of Sport (Human Kinetics Books 1989) Milusheva TV, ‘Predely I ogranicheniya gosudarstvennoy vlasti (teoretiko – pravovoe issledovanie) / Dissertatsya. Saratov, 2012 (TV Milusheva, ‘Limitations and Boundaries of State Power: theoretical and law study’ (DPhil thesis, Saratov 2012))
Volume 1 September 2014 Issue 1 www.kulawr.ru 104 KUTAFIN UNIVERSITY LAW REVIEW
Nelson A, ‘When, Where and Why Does the State Intervene in Sport: A Contemporary Perspective’ (2005) Bond University 1 Shevchenko O.A. Osobennosti pravovogo regulirovaniya truda v sfere professional’nogo sporta. M.: Commission on Sports Law of the Association of Lawyers of Russia 2013 (Shevchenko OA, The Features of Labor Regulation in the Professional Sports Sphere (Commission on Sports Law of the Association of Lawyers of Russia 2013)) Soloviev A.A. Pravovoe regulirovanie sportivnyh edinoborstv: opyt SShA i Kanady / M.: Komissiya po sportivnomu pravu; Assotsiatsyya yuristov v Rossii; Natsional’noye obedinenie sportivnykh yurisrov; Federatsyya kikboksinga v Rossii, 2013 (AA Soloviev, Law Regulation of Combat Sports: Experiences of the USA and Canada (The Commission on sports law Association of lawyers of Russia; National Association of sports lawyers; kickboxing Federation of Russia 2013)) Starodoubtsev A, ‘Moutko: Increased Govt Role in Regulation of Sports has Allowed for a Successful Outing in Sochi’ (Itar-Tass, 23 April 2014)
www.kulawr.ru Volume 1 September 2014 Issue 1 105
NOTE
PARTICIPATION IN INTERNATIONAL TRADE ORGANIZATIONS AS AN INDIRECT MEANS OF STRENGTHENING HUMAN RIGHTS IN THE RUSSIAN FEDERATION
By Bartosz Mendyk Author PhD student, Jan Kochanowski University, Kielce E-mail: [email protected] Abstract For historical and geopolitical reasons, as well as circumstantial reasons stemming from regional alliances and pacts, Russia cannot duplicate the methods of unifi cation that have come to be known throughout Western Europe. The main cause of it has been identifi ed as the enormous disproportion between Russia and other partner-states in the Customs Union. Some of them, especially Kazakhstan, are afraid of this dissonance and disagree with enhanced cooperation on a political level. It is the reason why states in Eurasia are only able to build economical blocks. Russian and European investors have become more active in the Russian market. Trade is growing steadily and has reached a historical maximum. The EU’s objective is to maintain its position as a major investor in the Russian economy, despite temporary problems. Activity in the WTO, in connection with the Customs Union agenda, increases household income, while trade modernization within the economy helps to protect human rights. This is quite an unexpected effect of internal reforms and accession to the WTO. The WTO strengthens the rights of intellectual property owners and the instruments that they use to enforce those rights in courts. This is one of the examples of how people in Russia have attained an additional instrument for defending their rights. Keywords International Trade Organizations, WTO, human rights, Russian Federation
Volume 1 September 2014 Issue 1 www.kulawr.ru 106 KUTAFIN UNIVERSITY LAW REVIEW
Introduction
The mutual relationship between trade and human rights is increasingly noticeable from the point of view of both domains. It is well-known that international trade is the lifeblood for the economic growth, which is important for the reduction of poverty and stimulation of development process. Consequently, it has a positive effect on human rights. It should be noted that in some cases, international trade may also constitute a threat to human rights. There has recently been a discussion about the impact of patents on prices for essential drugs, which affects a people’s right to healthcare in many poorer parts of the world.1 Since the collapse of the Soviet Union, various initiatives have been aimed at re-integrating independent republics. Contracting parties have signed a large amount of international agreements and organized a number of meetings at the highest political level, but they have failed to reverse the trend of isolationism.2 In the aftermath of the aforementioned turn of events (in the mid- 2000s), the European Union decided to increase its involvement in post-Soviet countries. That involvement was seen as a major source of modernization and an improvement of governance in the region. The rectifi cation of the legal system was considered to be a key precondition for closer relations, in the context of the European Neighborhood Policy (ENP)3 and the Eastern Partnership (EaP).4 As a result of operational state standards, treatments were commonly united with the improvement of human rights. It is worth noting that the new solution should ultimately provide an incentive for domestic and foreign investment.5 In light of
1 United Nation Organization, The Human Rights and Trade Agreements NY (2005) HR/PUB/05/5. 2 R Dragneva, K Wolczuk, ‘Russia, the Eurasian Customs Union and the EU: Cooperation, Stagnation or Rivalry?’ (2012) Chatham House Briefing Paper REP BP 01. 3 KE Smith, ‘The Outsiders: The European Neighbourhood Policy’ (2005) 81 International Affairs 4; Kelley J, ‘New Wine in Old Wineskins: Promoting Political Reforms through the New European Neighbourhood Policy’ (2006) 44 Journal of Common Market Studies 1. 4 Łapczyński M, ‘The European Union’s Eastern Partnership: Chances And Perspectives’. 5 TF Rutherford, DG Tarr, O Shepotylo, ‘The Impact on Russia of WTO Accession and the Doha Agenda: The Importance of Liberalization of Barriers Against Foreign Direct Investment in Services for Growth and Poverty Reduction’ (2005) World Bank Policy Research Working Paper 3725. www.kulawr.ru Volume 1 September 2014 Issue 1 Bartosz Mendyk Participation in International Trade Organizations 107 this, it is signifi cant that the Russian Federation has never participated in the previously mentioned EU programs.
The First Stage of (Re-) Integration: The Commonwealth of Independent States The fi rst and most well-known integration initiative was the establishment of the Commonwealth of Independent States (CIS).6 At the time of its creation (in December 1991), it was regarded more as an intermediary agent for supervising the “correct” disintegration of the USSR, rather than as a trend of integration that might arise among the citizens of the newly created states. However, the goal quickly shifted to the gathering of independent republics around the new economic project.7 The creation of a regional institutional integration of the CIS certainly was not in the center of Russia’s economic strategy. In a 2005 speech, President Vladimir Putin confi rmed that the CIS has never had any special tasks of an economic nature or any integration tasks in the economic sphere.8 Similarly, Kazakh President Nursultan Nazarbayev expressed his own conviction.9
From the Commonwealth of Independent States to the Eurasian Customs Union The origins of the Eurasian Customs Union (ECU) date back to January 1995, when the Russian Federation signed a treaty on the establishment of a customs union with Belarus and Kazakhstan.10 However, the formation of new national tendencies prevented further integration and development projects, as
6 S Taran, ‘Non-Tariff Barriers in Selected CIS Countries’ (2009) CASE Network Studies and Analyses 371. 7 ibid 2. 8 Statement presented on the conference of 25 March 2005, http://www.kremlin.ru/ text/appears/2005/03/85912.shtml. 9 Nazarbayev N, ‘Evraziyskiy soyuz: ot idei k istroii budushchego // Mezhdunardonyy nauchno - analiticheskiy zhurnal. 2011. 10. (N Nazarbayev, Eurasian Union: from idea to the future history (2011) International science and analytics Journal 10). 10 Ratifikacja dogovora o Tamozhennom kodekse tamozhennogo sojuza: federalnyj zakon ot 2 ijunja 2010 g. № 114-ФЗ // Rоs. gаz. 2010. 4 June. (Ratification of Custom Union Treaty: the Federal Act of 2 June 2011, No 114-FZ).
Volume 1 September 2014 Issue 1 www.kulawr.ru 108 KUTAFIN UNIVERSITY LAW REVIEW
it was judged post factum that projects should appear to be “developed only on paper.”11 In the mid-1990s, there was a turning point in relations between Russia and the former Soviet republics. Russian leaders were not satisfi ed with the results that gave rise to cooperation in the framework of the CIS, especially expressing concern about the growing debt of partners in mineral resources. Upon the joint decisions, the parties agreed that the aims of political and economic summits have not been fulfi lled. They decided to adopt a brand new formula that could be globally extrapolated for economic problems.
Achievements of the Eurasian Customs Union12
One of the major achievements of the Eurasian Customs Union was the establishment of a common customs tariff. This should be regarded as a success, given the fact that from 2000 to 2006, only 2% of the tariffs have been harmonized. A preliminary agreement was criticized for its far-reaching restrictions; it contained about 400 exemptions.13 The second signifi cant achievement was the removal of the internal borders between Russia, Belarus, and Kazakhstan, which is considered as a symbolic and historic act.14 Moreover, it should be considered as a momentous acquis for the Commission of the Customs Union, which issued more than 850 normative acts.15
11 Likhachev АЕ, ‘Tamozhennyy soyuz Rossii, Belorusii, Kazakhstana: istoriya, sovremennyy etap i perspektivy razvitiya // Rossijskiy Vneshnejekonomicheskiy Vestnik. 2010. №6. (AE Livachev, ‘Custom Union of Russia, Belarus and Kazakhstan: the history, contemporary and prospects’ (2010) Outside Economical Newsletter 6). 12 C Michalopoulos, DG Tarr, ‘The Economics of Customs Unions in the Commonwealth of Independent States’ (1997), World Bank Policy Research Working Paper 1786. 13 S Shadikhodyaev, ‘Trade Integration in the CIS Region: A Thorny Path Towards a Customs Union’ (2009) 12 Journal of International Economic Law 3. 14 C Wallace, ‘Opening and closing borders: Migration and mobility in East-Central Europe’ (2002) 28 Journal of Ethnic and Migration Studies 4. 15 Matveyeva ТА, ‘Tamozhennoe Regulirovanie v Tamozhennom Soyuze Rossii, Belorussii, i Kazakhstana // Voronezhskiy gosudarstvennyy universitet - Administrativnoe Pravo. 2010. № 2. (TA Matveyeva, ‘The Customs Regulations in Custom Union of Russia, Belarus and Kazakhstans’ (2010) Voronezh State University - Administrative Law 2). www.kulawr.ru Volume 1 September 2014 Issue 1 Bartosz Mendyk Participation in International Trade Organizations 109
The fi nal accomplishment of the ECU was the adoption of the Customs Code, which has replaced the relevant national legislation in the member states of the ECU. In conjunction with certain other acts, the ECU regulates the area of customs, rules of origin, customs procedures and forms, and other relevant key issues.16
Russia’s Accession to the WTO as a Historic Opportunity for Further Development
Accession to the WTO17 is a process that can be considered as an important tool, mainly for economic development, but also for the improvement of parameters that strengthen basic human rights: the right of possession, rights against appropriation without due compensation, adequate healthcare, and so on. Strictly speaking, accession has a direct impact on the operation of many institutions and policies, including tariff policy, customs administration, general norms, rights of foreign investors (especially in services), agricultural policy, and intellectual property. Therefore, it creates a good opportunity to evaluate a very wide range of adjustments and the possibility for implementing important elements in trade, especially those ones that promote direct foreign investment.18 As it was previously mentioned, accession to the WTO also has an impact on the improvement of the quality of human rights and the general welfare of society. Almost all kinds of households have seen gains from Russia’s accession to the WTO. According to recent analyses, approximately 55,000 households will become benefi ciaries of the liberalization of foreign direct investment in business services and the effects of heightened productivity in the delivery of those services.
16 Putin V. Noviy integracionniy proyekt dlya Evrazii – budushchee, kotoroe rozhdaetsya segodnya // Mezhdunarodnyy Nauchnyy – Analiticheskiy zhurnal. 2011. №10. (V Putin, ‘The new integration projects for EurAsia – The future is borning now’ (2011) International Science and Analics Journal 10). 17 About agenda WTO W. J. Davey, The WTO Dispute Settlement Mechanism, [2003]. Illinois Public Law Research Paper No. 03-08. 18 DG Tarr, ‘Russian WTO Accession: What has been Accomplished, What Can be Expected’ 1 Grudzień (2007) World Bank Policy Research Working Paper Series.
Volume 1 September 2014 Issue 1 www.kulawr.ru 110 KUTAFIN UNIVERSITY LAW REVIEW
Liberalization and modernization of the internal law are much more important the economy of Russian Federation than foreign investors subsidies and tariff reform.19 Protection of intellectual property, in particular, patent protection stimulates investment in innovative technologies, including pharmaceutical research. The author believes that it is very important to promote the right to health.20 Of course, this may result in a purely commercial approach to the innovation process and relegate control of the spread of medications and other therapeutic techniques to a limited number of corporations.21 A signifi cant number of economists believe that a strong intellectual property protection is better than no protection of intellectual property at all. Some of them believe that a very strong protection is better than a more moderate level of protection.22 Many of them also believe that the increase in medicine prices is caused not only by patent rights and licenses, but also by several other factors. That Act worth to be mentioned is Vienna Convention on the Law of Treaties23, which corresponds with WTO acquis and supports such an approach. In the interpretation of Article 3.2, the WTO articulates a dispute settlement under which the rules should be interpreted in accordance with the “customary rules of interpretation.” This statement implies that such rules can also be used to improve human rights issues.
19 TF Rutherford, DG Tarr, O Shepotylo, ‘The Impact on Russia of WTO Accession and the Doha Agenda: The Importance of Liberalization of Barriers Against Foreign Direct Investment in Services for Growth and Poverty Reduction’ (2005) World Bank Policy Research Working Paper 3725. 20 Mendyk B, ‘Mozhet li vrach byt’ izobritatelem? Issledovanie, kasayushcheesya voprosov patentovaniya hirurgicheskikh, terapevticheskikh i diagnositechskikh metodov, s tochki zreniya yursita // Aktual’nye Problemy Rossijskogo Prava. (2012) №1 (22). (B Mendyk, ‘Could a phisician be a inventor? The analysis of patentic surgery, therapeutical and diagnostical methods, from the lawyers point of view’(2012) The Actual Problems of Russian law Journal 1 (22)). 21 United Nation Organization, The Human Rights and Trade Agreements NY (2005) HR/PUB/05/5. 22 J Lerner, ‘The Patent System in a Time of Turmoil’ (2010) 2 WIPO J. 23 SR Frankel, ‘The WTO’s Application of ‘The Customary Rules of Interpretation of Public International Law’ to Intellectual Property’ (2005) 46 Virginia Journal of International Law. www.kulawr.ru Volume 1 September 2014 Issue 1 Bartosz Mendyk Participation in International Trade Organizations 111
The fi rst and most relevant provision established that the State could take the measures necessary to protect public health and morality. The second exception allows the adoption of measures that are necessary to protect the life or health of humans, animals, and plants. The third one allows actions to be taken to protect the ordre public. Such clauses appear in the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights), GPA (Agreement on Government Procurement), and GATS (General Agreement on Trade in Services). Having mentioned that, it should be noted that in the GATT (General Agreement on Tariffs and Trade) agreement, there is a lack of such clauses, but in that case, it is not regarded as a signifi cant absence.24 The WTO rarely refers to the protection of human rights. The sole example is the construction of the concept of “public morals” and “public order” (Point A of Article XX of GATS).25 There are precedents for the protection of life or the health of humans, animals, and plants (Paragraph B of Article XX of GATT).26 The mechanism of the WTO had a chance to prove their usefulness by supporting the resolution of some problems. There was a case in Thailand, which concerned imposed restrictions on the import of tobacco products of foreign origin into Thailand. A group of experts that was set up to resolve the dispute concluded that a ban on the import of cigarettes cannot be justifi ed—with reference to Paragraph B of Article XX—because there is no evidence that this measure actually reduces the consumption of tobacco products in the country. They went on to suggest other effective means of limiting smoking. The Group of Experts noted that Paragraph B of Article XX expressly authorizes the parties to an axiological formation of the system, which puts human health over trade liberalization, if only used for measures that are really necessary. The Group also pointed out that the ban on advertising tobacco, based on concerns about the health of the people, can be justifi ed with reference to Paragraph B of Article XX.27
24 G Marceau, ‘WTO dispute settlement and human rights’ (2002) 13 European Journal of International Law 4. 25 Reports Appellate Body of WTO: United States - Measures affecting the cross-border supply of gambling and betting services, [2004] Report of the Panel (WT/DS285/R). 26 United Nation Organization, The Human Rights and Trade Agreements NY (2005) HR/PUB/05/5. 27 Reports Appellate Body of WTO: Thailand - Restrictions on importation of and internal taxes on cigarettes, [1990], Report No. (DS10/R - 37S/200), points-73 and 78.
Volume 1 September 2014 Issue 1 www.kulawr.ru 112 KUTAFIN UNIVERSITY LAW REVIEW
Essentially, the Group decided to consult with the World Health Organization (WHO), which could serve as an expert on the effects of smoking, in order to clarify the question of whether banning the import of tobacco to Thailand is an appropriate means to address issues related to the protection of human health.28 The WTO Panel, in the past, also dealt with restrictions on alcohol consumption in Japan through additional taxation of liquor.29
Membership in the WTO as a Vehicle for Resolving Problems with the European Union Member States
Russia’s WTO accession helped to solve some issues related to trade between the EU and Russia. What’s more, it helped to establish some other neighborly relations. Earlier on, some press reports claimed that the EU was considering blocking Russia’s accession because of foreign relations issues.30 The EU offi cials have not formally rescinded their lack of support for Russia’s accession to the WTO.31 One of the problems encountered was the fact that Estonia moved a Soviet War Memorial Statue in Tallinn. This led to a demonstration at the Estonian embassy in Moscow and complaints to NATO that Russia does not protect the employees of the Estonian embassy. This situation was exacerbated by the fact that Russia cut off oil and coal supplies to Estonia. Another contentious issue was the Russia-imposed ban on the import of Polish meat. The EU considered this to be a disproportionate penalty for the falsifi cation of some documents on selected shipments of Polish meat. The EU was also concerned about the proposed export taxes on timber exported from Russia and as a result the dual prices for timber in domestic and international markets. Those issues in the end led to the abolition of aircraft fl ights over the Russian skies.32
28 72-81 where there is pointed out that measures taken by Thailand exceeded scope of par. b art. XX. 29 Reports Appellate Body of WTO: Japan - Taxes on alcoholic beverages, [1996], (WT/DS11/AB/R). 30 H Zimmermann, ‘Realist Power Europe? The Eu in the Negotiations About China’s And Russia’s Wto Accession’ (2007) 45 Journal Of Common Market Studies 4. 31 DG Tarr, Russian WTO Accession…, 13. 32 T Forsberga, A Seppob, ‘Power without Influence? The EU and Trade Disputes with Russia’(2009) 61 Europe-Asia Studies 10. www.kulawr.ru Volume 1 September 2014 Issue 1 Bartosz Mendyk Participation in International Trade Organizations 113
Russia decided that further relation with the European Union is a long- term priority. It began to participate in a number of important EU institutions, which directly increased its respect for human rights. New possibilities appeared shortly after Russia joined the WTO, at which point Russian specialists could compare positive models of problem resolution. In the operational panels where they began working, they learned to overcome problems by means which that do not affect international trade.33 Soon after, Dmitry Medvedev, who was President in the meantime expressed his conviction that the European Union provided signifi cant support for the resolution of the aforementioned problems. Currently, the Russian government has implemented the package recommended by the WTO. In fact, Russian and European investors became more active in the Russian trade market, which has grown to reach its historic high of $410,000,000,000.34 The task of the EU is to maintain its position as a major investor in the Russian economy, with a total accumulated investment value of more than $260,000,000,000. On the other hand, Russian companies have invested considerable resources nearly $75,000,000,000 in the EU economy. Vigorous activity in the WTO, as well as in the Customs Union, has caused increases in household income; therefore, trade liberalization helps to protect various human rights, which, for Russia’s internal situation, can be considered quite an unexpected effect of international reforms and accession.
The Relationship between the United States and Russia
On the other end of the spectrum, US Trade Representative Susan Schwab expressed the belief of the Senate Finance Committee that “Russia cannot cope with those WTO obligations that would force them to, at this point, became a full-fl edged member of the WTO.”35 The author is strongly convinced that
33 MR Crowley, ‘Stepping onto a Moving Train: The Collision of Illegal Logging, Forestry Policy, and Emerging Free Trade in the Russian Far East, Pacific Rim’ (2005) 14 Law & Policy Journal. 34 Speech available on the web-site: http://government.ru/eng/stens/23436/ 35 HG Broadman, ‘Global economic integration: Prospects for WTO accession and continued Russian reforms’ (2004) 27 The Washington Quarterly 2.
Volume 1 September 2014 Issue 1 www.kulawr.ru 114 KUTAFIN UNIVERSITY LAW REVIEW
accession to the WTO will not have far-reaching effects on the relations between the US and Russia. In large part, this is due to the fact that the other geopolitical events (such as the Edward Snowden case) can also change those relations diametrically.
Bibliography
Broadman HG, ‘Global economic integration: Prospects for WTO accession and continued Russian reforms’ (2004) 27 The Washington Quarterly 2 Carolan B, ‘The Birth of the European Union: US and UK Roles in the Creation of a Unifi ed European Community (2008) 16 Tulsa Journal of Comparative & International Law 1 Crowley MR, ‘Stepping onto a Moving Train: The Collision of Illegal Logging, Forestry Policy, and Emerging Free Trade in the Russian Far East, Pacifi c Rim’ (2005) 14 Law & Policy Journal Davey WJ, ‘The WTO Dispute Settlement Mechanism’ (2003) Illinois Public Law Research Paper 03-08 Dragneva R, Wolczuk K, ‘Russia, the Eurasian Customs Union and the EU: Cooperation, Stagnation or Rivalry?’ (2012) Chatham House Briefi ng Paper REP BP 01 Forsberga T, Seppob A, ‘Power without Infl uence? The EU and Trade Disputes with Russia’(2009) 61 Europe-Asia Studies 10 Frankel SR, ‘The WTO’s Application of ‚The Customary Rules of Interpretation of Public International Law’ to Intellectual Property’ (2005) 46 Virginia Journal of International Law Kelley J, ‘New Wine in Old Wineskins: Promoting Political Reforms through the New European Neighbourhood Policy’ (2006) 44 Journal of Common Market Studies 1 Lerner J, ‘The Patent System in a Time of Turmoil’ (2010) 2 WIPO J Likhachev АЕ, ‘Tamozhennyy soyuz Rossii, Belorusii, Kazakhstana: istoriya, sovremennyy etap i perspektivy razvitiya // Rossijskiy Vneshnejekonomicheskiy Vestnik. 2010. №6. (AE Livachev, ‘Custom Union of Russia, Belarus and Kazakhstan: the history, contemporary and prospects’ (2010) Outside Economical Newsletter 6) www.kulawr.ru Volume 1 September 2014 Issue 1 Bartosz Mendyk Participation in International Trade Organizations 115
Łapczyński M, ‘The European Union’s Eastern Partnership: Chances And Perspectives’ Mansurov T.A. Evrazijskoe ekonomicheskoe soobshchestvo razvivaet svoyu sudebnuyu sistemu // Mezhdunardonyy nauchno-analiticheskiy zhurnal. 2011. №10. (TA Mansurov, ‘EuroAsian economical Union develop its own judicial system’ (2011) International science and analytics Journal 10) Marceau G, ‘WTO dispute settlement and human rights’ (2002) 13 European Journal of International Law 4 Matveyeva Т.А. Tamozhennoe Regulirovanie v Tamozhennom Soyuze Rossii, Belorussii, i Kazakhstana // Voronezhskiy gosudarstvennyy universitet - Administrativnoe Pravo. 2010. № 2. (TA Matveyeva, ‘The Customs Regulations in Custom Union of Russia, Belarus and Kazakhstans’ (2010) Voronezh State University - Administrative Law 2) Mendyk B. Mozhet li vrach byt’ izobritatelem? Issledovanie, kasayushcheesya voprosov patentovaniya hirurgicheskikh, terapevticheskikh i diagnositechskikh metodov, s tochki zreniya yursita // Aktual’nye Problemy Rossijskogo Prava. (2012) №1 (22). (B Mendyk, ‘Could a phisician be a inventor? The analysis of patentic surgery, therapeutical and diagnostical methods, from the lawyers point of view’(2012) The Actual Problems of Russian law Journal 1 (22)) Michalopoulos C, Tarr DG, ‘The Economics of Customs Unions in the Commonwealth of Independent States’ (1997) World Bank Policy Research Working Paper 1786 Nazarbayev N. ‘Evraziyskiy soyuz: ot idei k istroii budushchego // Mezhdunardonyy nauchno - analiticheskiy zhurnal. 2011. 10. (Nazarbayev N, Eurasian Union: from idea to the future history (2011) International science and analytics Journal 10). Putin V. Noviy integracionniy proyekt dlya Evrazyi – budushchehee, kotoroe rozhdaetsja segodnja // Mezhdunarodnyy Nauchnyy – Analiticheskiy zhurnal. 2011. №10. (V Putin, ‘The new integration projects for EurAsia – The future is borning now’ (2011) International Science and Analics Journal 10) Rutherford TF, Tarr DG, Shepotylo O, ‘The Impact on Russia of WTO Accession and the Doha Agenda: The Importance of Liberalization of Barriers Against Foreign Direct Investment in Services for Growth and Poverty Reduction’ (2005) World Bank Policy Research Working Paper 3725
Volume 1 September 2014 Issue 1 www.kulawr.ru 116 KUTAFIN UNIVERSITY LAW REVIEW
Shadikhodjaev S, ‘Trade Integration in the CIS Region: A Thorny Path Towards a Customs Union’ (2009) 12 Journal of International Economic Law 3 Smith KE, ‘The Outsiders: The European Neighbourhood Policy’ (2005) 81 International Affairs 4 Taran S, ‘Non-Tariff Barriers in Selected CIS Countries’ (2009) CASE Network Studies and Analyses 371 Tarr DG, ‘Russian WTO Accession: What has been Accomplished, What Can be Expected’ 1 Grudzień (2007) World Bank Policy Research Working Paper Series United Nation Organization, The Human Rights and Trade Agreements NY (2005) HR/PUB/05/5 Wallace C, ‘Opening and closing borders: Migration and mobility in East- Central Europe’ (2002) 28 Journal of Ethnic and Migration Studies 4 Yashin IO, ‘Perspektivy sozdaniya i funktsionirovaniya tamozhennogo soyuza s uchastiem Rosssii na postsovetskom prostranstve // Rossijskiy Vneshnejekonomicheskiy Vestnik. 2009 №5 (IO Yashin, ‘Prospects of constructing and functioning the Custom Union with cooperation of Russia in post-soviet area (2009) Russian Oustside Economical Newsletter 5) Zimmermann H, ‘Realist Power Europe? The EU in the Negotiations About China’s And Russia’s Wto Accession’ (2007) 45 Journal Of Common Market Studies 4
www.kulawr.ru Volume 1 September 2014 Issue 1 117
NOTE
THE RUSSIAN COMMISSIONER FOR HUMAN RIGHTS AND THE EUROPEAN OMBUDSMAN: COMPARATIVE ANALYSIS By Olga Gavrilova Author Student, Kutafi n Moscow State Law University E-mail: [email protected] Abstract The author analyzes offi cial sources specifying the models for the European Ombudsman and the Commissioner for Human Rights in the Russian Federation. The comparison of ombudsman models, which exist in the EU and Russia, is particularly interesting not only because of that institution novelty, but also due to the fact that the EU, which emerged in the mid – 20th century, has now grown into a highly developed form of European integration. Within the legal internationalization using a positive experience is not only horizontally way, that is, by borrowing from the national legal systems the most valuable and innovative ideas, approaches, institutions and procedures, but also through their generalizations, enrichment and promotion at international and national levels and the reverse infl uence of international law on the national legal systems. Supranational ombudsmen are a striking example of that. Whereas states with well-established democratic values and standards can demonstrate the effectiveness of the ombudsman institution, the Commissioner of Human Rights in Russia cannot, for many reasons (for example, low legal culture of offi cials, corruption etc.).What’s more, the legislation contains a lot of gaps and provisions, which are issued in favor of power structures. The aim of the note is to identify the Achilles’ heel of Russian legislation regarding ombudsman institute in comparison with the community of democratic states. Keywords Ombudsman, human rights, constitution, democracy, legislation, European Union
Volume 1 September 2014 Issue 1 www.kulawr.ru 118 KUTAFIN UNIVERSITY LAW REVIEW
Human rights, which are proclaimed in constitutions of most modern states, have a great value both for individuals and mankind; the proclamation of human rights has a great impact for the growth of values awareness as well as for improving the quality of the legislation. Declaration of the Rights and Freedoms of Man and Citizen (August 26, 1789) is a striking example of how important the proclamation of human rights and freedoms is. It is said in its preamble: “…ignorance, forgetfulness or contempt of the rights of man to be the only causes of public misfortunes and corruption of Governments”. Constitutions of many states, including the Constitution of the Russian Federation (December 12, 1993), proclaim that a human with his/her rights and freedoms is the supreme value. The recognition, observance and protection of humans and citizens’ rights and freedoms shall be an obligation of a state. Therefore, a state accepts responsibility for securing human rights by providing actual and effi cient guarantees. One of them is the institution of ombudsman, internationally proven and recognized. The institution of ombudsman originated in Sweden in the XIX century and remained an exclusively Swedish legal phenomenon for many years.1 However, after World War II other countries started to embrace it. Soon there were established the UN High Commissioner for Human Rights, the Commissioner of the Council of Europe and the Ombudsman of the European Union. 2 The European movement after World War II was based on new grounds — democratic principles and voluntary methods.3 So, the ombudsman concept has a long tradition in most European states and has been incorporated into
1 Timofeev M.T. Institut ombudsmena v Velikobritanii I Irlandii: kontrol’, osnovannyy na sotrudnichestve / Pod obshch. red. ANO ‘Yuristy za konstitutsionnye prava i svobody’. M.: Novaya yustitsiya, 2006 (MT Timofeev, The institution of Ombudsman in United Kingdom of Great Britain and Ireland: control based on collaboration (ANO ‘Lawyers for constitutional rights and freedoms’ ed, New Justice 2006)). 2 Lazar L.K. Deyatel’nost’ mezhdunarodnykh ombudsmenov (komissarov) v sfere zashchity prav cheloveka // Yurist – mezhdunarodnik. 2004. №2. S. 1. (LK Lazar, ‘The activity of international ombudsmen (commissioners) in the sphere of human rights protection’ (2004) 2 International lawyer 1)). 3 B Ziedalski, ‘What does it mean to be a European citizen and why the concept of European citizenship is important to the European Union?’ (2006) 6 New England International and Comparative Law Annual. www.kulawr.ru Volume 1 September 2014 Issue 1 Olga Gavrilova The Russian Commissioner for Human Rights and the European Ombudsman 119
the legal order of the Community.4 In Russia post of Commissioner for Human Rights fi rst appeared in 1991 being fi xed in Declaration of Man and Citizen Rights and Freedoms in November, 1991. “The institution of rights against the Government is not a gift of God, or an ancient ritual, or a national sport.”5 John R. Johannes describes the ombudsman role as being, “in short, the function of the legislature as intermediary between the government and the governed—between citizens and the bureaucrac.”6 He describes two primary aspects of this role: casework and federal projects assistance.7 Casework, which Johannes defi nes as “intervention for individuals, groups, or organizations that have requests of, grievances against, or a need for access to federal (and occasionally state or local) government departments or agencies,”8 might include, for instance, helping a constituent demonstrate eligibility for social security benefi ts,9 or nudging a local highway department to fi ll a pothole. It’s worth mentioning ombudsman’s role also regarding corruption: individuals and businesses should be able to lodge complaints against demands for bribes or other favors, through for example, an independent ombudsman.10 Johannes describes “projects” assistance as ‘assisting state and local governments in their attempts to secure federal grants from agencies that possess discretion in allocating such funds.’11 As it was mentioned before the comparison of two ombudsman models, which exist in the EU and in Russia, is particularly interesting not only because of that institution novelty, but also due to the fact that the EU, which emerged in
4 KM Sari Laitinen-Rawana, ‘Creating a Unified Europe: Maastricht and Beyond’ (1994) 28 INT’L LAW 973. 5 AW Bradley, ‘The Role of the Ombudsman in Relation to the Protection of Citizens’ Rights’ (1980) 10 the Cambridge Law Journal. 6 JR Johannes, To serve the people: Congress and Constituency Service (University of Nebraska Press 1984). 7 Ibid 2. 8 Ibid. 9 Frequently Asked Questions About Social Security, Congressman Gregory W. Meeks. 10 SR Ackerman, ‘Corruption: Greed, Culture, and the State’ (2010) 120 Yale Law Journal Online 125. 11 Johannes (n 7) 2.
Volume 1 September 2014 Issue 1 www.kulawr.ru 120 KUTAFIN UNIVERSITY LAW REVIEW
the mid – 20th century, has now grown into a highly developed form of European integration, playing an increasingly signifi cant role for the global balance of power. This kind of experience should be very interesting and valuable for Russia. The Russian Federation is a state where legal and constitutional traditions are quite weak. Above all, the legislation here contains a lot of gaps and provisions, which are enshrined in favor of power structures. Therefore, the aim of this note is to identify the Achilles’ heel of the ombudsman institute in Russian legislature compared to the community of democratic states. It’s worth noting that it could seem not absolutely correct to make a comparison of the Ombudsman institute between the European Union and Commissioner of Human Rights in Russian Federation. But there are some reasons, which can make sence. First of all within the legal internationalization there are two ways of spreading a positive legal experience: horizontal and vertical. In fi rst case (horizontal way) spreading takes place by borrowing the most valuable and innovative ideas, approaches, institutions and procedures by one country from another (its legal system). The other way is a generalization of the best national legal experiences by international law and spreading it within the different countries. The European Union Ombudsman is a striking example of the second way. Second, the EU is a union of states with a high degree of integration. This means the EU has not only confederative features but even federative:12 1. The EU has common bodies: the European Parliament, the European Council, the Commission, the Court of Justice of the European Union, the European Central Bank, the Court of Auditors. Among the general authorities the EU Ombudsman takes place as a guarantor of Human Rights. 2. Superior Union bodies make the constitutive (determinate) decisions. And some of acts of the EU have a direct effect on the territory of the
12 Strashun B.A. Konstitutsionnoe (gosudarstvennoe) pravo zarubezhnykh stran. Obshchaya chast’: Uchebnik dlya vuzov / Ruk. avt. koll. i otv. red. B.A. Strashun. M.: Norma, 2005 (BA Strashun, Constitutional (state) law of foreign countries. General part: Manual for universities (B Strashun ed, Norm 2005)). www.kulawr.ru Volume 1 September 2014 Issue 1 Olga Gavrilova The Russian Commissioner for Human Rights and the European Ombudsman 121
member states. According to the Part 1 of Article 2 of the Treaty on the functioning of the European Union “When the Treaties confer on the Union exclusive competence in a specifi c area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts”. 3. Another element of federalism is the division of competence between authorities of different levels: Having a form of federation Russia is a very centralized state. At the same time, decentralization and subsidiarity are very important trends for a development of modern states. That’s why a study of the European experience of subsidiarity is very useful for implementation of that principle into legal system of the Russian Federation,13 including the institution of the ombudsman in Russia that includes federal ombudsmen and regional ones. The institution of the Commissioner for human rights is an important public institute, which represents an additional mechanism for legal protection of citizens in terms of unlawful actions of the state bodies, including bodies of executive powers.14 According to the annual report of the Commissioner for human rights for 2013 the average number of appeals is 15.8 out of 100 thousand people. However, the number of appeals to the Commissioners for Human Rights in regions of Russian Federation is considerably higher. For example, the average number of appeals in Republic of Karelia is 109 out of 100 thousand people, in Kirov region it‘s 478, in Tver’ region it’s 80, in Republic of Tatarstan it’s 73, in Kaluga Region it’s 280 out of 100 thousand. As for the
13 Mal’tsev G.V. Pravovedenie: Uchebnik / Pod obshch red. G.V. Mal’tseva. M.: RAGS, 2003 (GV Mal’tsev, Jurisprudence: Manual (G Maltsev ed, RAGS 2003)). 14 Komkova G.N., Lukashova N.F. Problemy vzaimodeystviya upolnomochennogo po pravam cheloveka v subekte Rossiiskoy Federatsyy s gosudarstvennymi organami i organami mestnogo samoupravleniya // Ombudsmen: gosudarstvo i zashchita prav cheloveka. 2012. №1. S. 1 (GN Komkova, NF Lukashova, ‘Problems of interaction of the commissioner for human rights in the subject of the Russian Federation with state authorities and local governments’ (2012) 1 Ombudsman: state and defense of the human rights 1).
Volume 1 September 2014 Issue 1 www.kulawr.ru 122 KUTAFIN UNIVERSITY LAW REVIEW
EU Ombudsman, the average number of appeals is 0.4 out of 100 thousand. The statistics for EU members is also different. In Spain, for example, the average number of appeals is 48 out of 100 thousand; in France it is 129 out of 100 thousand (according to annual reports for 2013). As opposed to other public authorities, the Commissioner for human rights doesn’t have administrative power, so in case of a violation of human rights, he may give recommendations to the relevant public authority in order to improve a violation. Therefore, the effectiveness of the Commissioner directly depends not only on its authority in the state but also on a public support.15 According to the statistics given above, it is important to be aware of the fact that the Commissioner for human rights in the Russian Federation has a public support. However, as a number of human rights’ violation by the authorities in the regions of the Russian Federation is still very high, a number of appeals to the ombudsmen doesn’t show much infl uence of that institute in Russia, unlike it is in the EU member states. Finally, the EU Ombudsman and the Commissioner of Human Rights in the Russian Federation have similar aims – to defend human rights, so their essence is quite similar. Having analyzed the offi cial sources specifying the models for the Ombudsman in the European Union and the Commissioner for Human Rights in the Russian Federation, we can conclude these models have both similarities and differences. First of all, the Commissioner for Human Rights (in accordance with Article 8 of the Federal Constitutional Law On the Commissioner for Human Rights in the Russian Federation) and the Ombudsman (in accordance with Articles 21 and 195 of the Treaty establishing the European Community), are both appointed by parliaments. But the dismissal of the Commissioner for Human Rights takes place by decision of the Parliament, while the EU Ombudsman may be dismissed by the Court of Justice, which can be an example of a real counterbalance between
15 Sereda E.V. Problemy stanovleniya instituta upolnomochennogo po pravam cheloveka v sybektakh Rossiiskoy Federatsii // Ombudsmen. 2012. №1. S. 1. (EV Sereda, ‘Problems of formation of the institution of Commissioner for human rights in Russian Federation’ (2012) Ombudsman 1). www.kulawr.ru Volume 1 September 2014 Issue 1 Olga Gavrilova The Russian Commissioner for Human Rights and the European Ombudsman 123
institutions and bodies of EU.16 So, comparing the Commissioner for Human Rights and the Ombudsman from a point of independence, we can conclude that EU ombudsman is a really independent control institution. Secondly, there are a lot of differences coming out of their roles. The EU Ombudsman has to investigate complaints against EU institutions in case of any violation by activities of any Community institution or body apart from the Court of Justice and the Court of First Instance. Commissioner for Human Rights in Russia deals with appeals against decisions or actions of state bodies, government offi cials and civil servants. Due to certain cultural and legal reasons for the Russian Federation, the possibility to appeal actions of offi cials and civil servants is an important function of the Commissioner for Human Rights. It helps to protect citizens from unreasonable and incompetent decisions against them and also helps to eliminate elements of corruption because the Commissioner for Human Rights must work outside the interests of the existing system. However, the legislation has a weighty gap, concerning the independence of the Commissioner for Human Rights and its actions outside the interests of the system: Article 16 of the Federal Constitutional Law of 1997 On the Commissioner for Human Rights in Russian Federation prohibits complaints for actions of the Parliament and the legislative (representative) bodies. That position restricts the role of the Commissioner for Human Rights as a mechanism of anti – corruption and limits independence of this institution that at the end affects the quality and possibilities of defending citizens’ rights and freedoms. The Commissioner for human rights is a body of parliamentary control. According to the legislature provisions Commissioner for Human Rights in Russia can use remedies of citizen’s rights protection only in respect to Executive power offi cials and bodies. So, how can the state improve that? The experience of the European Union is a very good example to be taken. Thirdly, according to Article 43 of the Charter of Fundamental Rights of the European Union and Article 195 of the Treaty Establishing the European
16 Klochkova Yu.A. Institut ombudsmena v Rossii i Evropeyskom Soyuze: opyt sravnitel’nogo analiza // Mezhdunarodnoye publichnoye i chastnoye pravo. 2007. №4. S. 2. (YuA Klochcova, ‘The institution of Ombudsman in the Russian Federation and European Union: the experience of comparative analysis’ (2007) 4 International public and private law 2).
Volume 1 September 2014 Issue 1 www.kulawr.ru 124 KUTAFIN UNIVERSITY LAW REVIEW
Community, the European Union Ombudsman is empowered to receive complaints from any citizen of the Union or any natural or legal entity residing or having its registered offi ce in a Member State. In accordance with Article 15 of the Federal Constitutional Law on the Commissioner for Human Rights in the Russian Federation, the Commissioner for Human Rights should consider complaints only from Russian citizens and foreign citizens, who are on the territory of the Russian Federation and also stateless individuals. So, it doesn’t consider complaints of legal entities. But the question is: why does law of the Russian Federation prohibit protecting interests of legal entities? No doubt this position doesn’t comply with international standards. It’s worth mentioning that a scientifi c legal thought has produced various classifi cations of ombudsmen. The doctrine identifi es two models of the ombudsman institution: passive (an ombudsman only responds to the complaint) and active (an ombudsman not only responds to the complaint, but also conducts an investigation on his own initiative).17 The EU Ombudsman shall conduct those inquiries for which he/she fi nds grounds, either on his/ her own initiative or on the basis of complaints submitted to him/her directly or through a Member of the European Parliament. As for the Commissioner for Human Rights in the Russian Federation he/she doesn’t carry out an investigation on his/her own initiative for the purpose of a particular citizen rights protection. On the other hand Article 21 of the Federal Constitutional Law On the Commissioner for Human Rights in the Russian Federation, provides the possibility for initiative actions of the Commissioner in cases “if there is an information about mass or gross violations of human rights and freedoms or in cases of particular public importance or concerned with a necessity of protecting interests of persons, who can’t use singly legal recourses of defense…”. At the same time those issues are more often within cognizance of competent organs (Offi ce of Public Prosecutor etc.), but less often of Commissioner. Finally, it’s worth mentioning that the Commissioner for Human Rights in the Russian Federation is able to consider a complaint just in case if the
17 Institut Upolnomochennogo po pravam cheloveka v sub’ekte Rossiiskoy Federatsii / Pod obshch. red. A.Yu. Sungurova. Spb.: Norma, 2003 (The Institute of the Commissioner for Human Rights in Russian Federation in the subject (A Sungurov ed, Norm 2003)). www.kulawr.ru Volume 1 September 2014 Issue 1 Olga Gavrilova The Russian Commissioner for Human Rights and the European Ombudsman 125
applicant has previously appealed decisions or actions of state bodies and offi cials in the juridical or administrative order, while the EU Ombudsman’s role is the opposite: the EU Ombudsman doesn’t conduct an investigation if disputed facts have already been the subject of legal proceedings, which from the author’s point of view is more reasonable. The institution of ombudsman shouldn’t substitute the jurisdiction of judicial review. What’s more, if a citizen doesn’t agree with a court’s decision and has exhausted all available remedies in Russia, the citizen may appeal to the European Court of Human Rights. In the author’s opinion the position of obligatory appeal to a court for further complaint to the Commissioner for Human Rights in the Russian Federation contradicts Article 7 of the Universal Declaration of Human Rights (December, the 10th, 1948) which says: “All are equal before the law and are entitled without any discrimination to equal protection of the law”. Having carried out the analysis of the ombudsman and the commissioner models, it is necessary to mention how important is for Russia to study foreign experience with its history, particularly in the fi eld of fundamental human rights and freedoms. Having mentioned all of these, the author considers that the most important for a person authorized to defend the other people is to be a person of pure, like a blue sky, soul, and so wise as a goddess Maat used to have!
Conclusion
We have to accept that states of Western Europe are leaders in the sphere of observance and security of human rights. This is not only because of a high- developed legal culture of citizens and public servants, but also because of a high laws quality in this fi eld. The ombudsman institute is very important for individuals’ rights and freedoms guaranteeing. As the author has already mentioned the EU Ombudsman investigates complaints against EU institutions in case of any violation by activities of any Community institution or body including the European Parliament and the Central Bank, but excluding the Court of Justice and the Court of First Instance. In a light of recent events, the EU should share its positive experience in human rights protection. If mankind wants to live in peace it’s extremely important to respect all the rights of every individual, especially the right to live.
Volume 1 September 2014 Issue 1 www.kulawr.ru 126 KUTAFIN UNIVERSITY LAW REVIEW
Bibliography
Ackerman SR, ‘Corruption: Greed, Culture, and the State’ (2010) 120 Yale Law Journal Online 125 Bradley AW, ‘The Role of the Ombudsman in Relation to the Protection of Citizens’ Rights’ (1980) 10 the Cambridge Law Journal Institut Upolnomochennogo po pravam cheloveka v sub’ekte Rossiiskoy Federatsii / Pod obshch. red. A.Yu. Sungurova. Spb.: Norma, 2003 (The Institute of the Commissioner for Human Rights in the Russian Federation in the subject (A Sungurov ed, Norm 2003)) Johannes JR, To serve the people: Congress and Constituency Service (University of Nebraska Press 1984) Klochkova Yu.A. Institut ombudsmena v Rossii I Evropeyskom Soyuze: opyt sravnitelnogo analiza // Mezhdunarodnoye publichnoye I chastnoe pravo. 2007. №4. S. 2. (Klochkova YuA, ‘The institution of Ombudsman in the Russian Federation and European Union: the experience of comparative analysis’ (2007) 4 International public and private law 2) Komkova G.N., Lukashova N.F. Problemy vzaimodeystviya upolnomochennogo po pravam cheloveka v subekte Rossiiskoy Federatsyy s gosudarstvennymi organami I organami mestnogo samoupravleniya // Ombudsman: gosudarstvo i zashchita prav cheloveka. 2012. №1. S. 1 (Komkova GN, Lukashova NF, ‘Problems of interaction of the commissioner for human rights in the subject of the Russian Federation with state authorities and local governments’ (2012) 1 Ombudsman: state and defense of the human rights 1) Konstitutsionnoe (gosudarstvennoe) pravo zarubezhnykh stran. Obshchaya chast’: Uchebnik dlya vuzov / Ruk. avt. koll. i otv. red. B.A. Strashun. M.: Norma, 2005 (Constitutional (state) law of foreign countries. General part: Manual for universities (B Strashun ed, Norma 2005)) Lazar L.K. Deyatelnos’t’ mezhdunarodnykh ombudsmenov (komissarov) v sfere zaschity prav cheloveka // Yurist – mezhdunarodnik. 2004. №2. S. 1. (Lazar LK, ‘The activity of international ombudsmen (commissioners) in the sphere of human rights protection’ (2004) 2 International lawyer 1) Pravovedenie: Uchebnik / Pod obshch red. G.V. Mal’tseva. M.: RAGS, 2003 (Jurisprudence: Manual (G Maltsev ed, RAGS 2003)); www.kulawr.ru Volume 1 September 2014 Issue 1 Olga Gavrilova The Russian Commissioner for Human Rights and the European Ombudsman 127
Sari KM, ‘Creating a Unifi ed Europe: Maastricht and Beyond’ (1994) 28 INT’L LAW 973 Sereda E.V. Problemy stanovleniya instituta upolnomochennogo po pravam cheloveka v sybektakh Rossiiskoy Federatsii // Ombudsmen. 2012. №1. S. 1. (Sereda EV, ‘Problems of formation of the institution of Commissioner for human rights in Russian Federation’ (2012) Ombudsman 1) Timofeev M.T. Institut ombudsmena v Velikobritanii I Irlandii: kontrol’, osnovannyy na sotrudnichestve / Pod obshch. red. ANO ‘Yuristy za konstitutsionnye prava i svobody’. M.: Novaya yustitsiya, 2006 (Timofeev MT, The institution of Ombudsman in United Kingdom of Great Britain and Ireland: control based on collaboration (ANO ‘Lawyers for constitutional rights and freedoms’ ed, New Justice 2006)) Ziedalski B, ‘What does it mean to be a European citizen and why is the concept of European citizenship important to the European Union?’ (2006) 6 New England International and Comparative Law Annual
Volume 1 September 2014 Issue 1 www.kulawr.ru 128 KUTAFIN UNIVERSITY LAW REVIEW
NOTE
SHOULD THE WTO HAVE RULES ON FRIVOLOUS CLAIMS IN ITS DISPUTE SETTLEMENT UNDERSTANDING?
By Yulia Mogutova
Author Student, Kutafi n Moscow State Law University E-mail: [email protected] Abstract The globalization of economic relations gives rise to a number of international disputes. The necessity for an international dispute settlement organ is beyond doubt. However, the interdependence of politics and economics creates signifi cant hurdles for the disputes settlement procedure. International courts not only settle disputes but also protect parties against groundless claims. This article addresses frivolous claims in international disputes and in WTO dispute settlements, in particular. It analyzes the legal nature of frivolous claims compared with de minimis claims, outlining the negative and destructive impact on international economic relations of the former. The author analyzes various approaches to handling frivolous claims in some international jurisdictions, including the ICJ as a well-known international dispute settlement body. Special attention is given to ICSID practice, which has many examples of dismissing frivolous claims. The author also analyzes the possibilities for adapting the equivalent mechanism in the WTO Dispute Settlement Understanding. The author suggests that a procedure for dismissing frivolous claim should be introduced at the consultation level and that the injured party should be entitled to compensation. Keywords Frivolous claim, WTO Dispute Settlement Understanding, WTO law, ICSID, international disputes www.kulawr.ru Volume 1 September 2014 Issue 1 Yulia Mogutova Should the WTO Have Rules on Frivolous Claims? 129
Dispute settlement plays a crucial role both in national and international legal systems. Judicial independence is the key element of the right of individuals and States to defend their interests. However, it is worth mentioning that upon a closer examination of the issue, it becomes clear that there are serious obstacles to providing legal protection for States and individuals. Not only dispute settlement organizations, but also parties to the dispute, can make this process unsatisfactory. A party seeking to undermine the authority of the other party, or in other ways to discredit it, is common. Bringing a claim in court is one option for adversely infl uencing the opposite party’s reputation. First, any publicity, which the forthcoming trial receives, may be detrimental to the defendant. As soon as the case is in the court, the proceedings become available to the public. Even though the results of the proceeding depend on the court decision, the claims can have a negative impact on attitudes toward the respondent from the beginning of the procedure. On the other hand, in case of a groundless claim, this may infl uence not only the defendant, but also the court itself, because respect for and confi dence in the judicial authorities are queried. It is important to identify unfounded claims before a trial starts; otherwise, the loss of time and resources impedes the work of the court and the operations of the party, or even the particular economic fi eld as a whole (if the matter concerns global trade, for instance). Dealing with such cases at the international level is a challenge for the international dispute settlement system. When a dispute concerns international economic and political relations it is never easy for the court to outline the real merits of the case and fi nd an appropriate legal solution. However, it is important to determine the reasons for bringing such a claim. The claim could be brought without any legal grounds. Thus, a distinction between de minimis and frivolous claims should be made. Both are to be dismissed by a court; however the consequences for the parties are different. To begin with the de minimis claim, the famous legal maxim is apt: “De minimis non curat lex” which means: “the law does not concern itself with trifl es”.1 In the matter at issue there are legal grounds for bringing a case; however, they are so minor that the court should dismiss the claim.
1 BA Garner (EIC), Black’s Law Dictionary (9th ed. West 2011).
Volume 1 September 2014 Issue 1 www.kulawr.ru 130 KUTAFIN UNIVERSITY LAW REVIEW
A good example of the principle is Article 101 of the Treaty on the Functioning of the European Union and Article 81 of the Treaty establishing the European Community.2 Moreover, there was also a European Court of Justice decision in 2012, where the Court ruled: Articles 101(1) TFUE and 3(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] must be interpreted as not precluding a national competition authority from applying Article 101(1) TFEU to an agreement between undertakings that may affect trade between Member States, but that does not reach the thresholds specifi ed by the European Commission in its notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1), [EC] (de minimis), provided that that agreement constitutes an appreciable restriction of competition within the meaning of that provision.3 Therefore, de minimis claims could even be brought to the court unintentionally (without intent to discredit the respondent) and may not necessarily harm the reputation of the parties. What is more, it can assist with the proceeding and clarifi cation of provisions. Yet, the legal nature of the frivolous claims is completely different. A frivolous claim is “a claim that has no legal basis or merit, especially one brought for an unreasonable purpose such as harassment”.4 Given the preceding defi nition, some common criteria of the frivolous claim may be outlined. Firstly, the claim has no legal basis, thus no infringements or breaches of contract appear. Secondly, the aim of such a claim is to unreasonably harass, discredit, or disparage the counter-party. The concept of frivolous claims or lawsuits is more widespread in national courts. However, both globalization and the development of international relations have led to the expansion of this term to international dispute settlement systems.
2 See Commission Notice (EC) on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis) [2001] OJEU 2001/C 368/07. 3 Case C-226/11 Expedia Inc. v Autorité de la concurrence and Others [2012] ECJ (Second Chamber) 13 December 2012. 4 Black’s Law Dictionary 739. www.kulawr.ru Volume 1 September 2014 Issue 1 Yulia Mogutova Should the WTO Have Rules on Frivolous Claims? 131
The lack of legal regulation for frivolous claims leads to a number of legal issues, also at the international level. If the matter concerns international economic relations, there is also a possibility that such claims may negatively affect not only the disputing parties (the respondent in particular), but also some third parties who are indirectly involved. The best way to solve problems arising from the frivolous litigation is via a mechanism of dismissal. For instance, the United States domestic legislation stipulates grounds for dismissal, including “failure to state a claim upon which relief can be granted”5. However, in most international jurisdictions, the lack of similar rules creates a normative gap. “The need for new procedures allowing tribunals to dispose of frivolous claims on an expedited basis was perceived as crucial considering…”6 As mentioned previously, the sphere of international economic and commercial relations is one of the main areas in which the possibility of frivolous claim is rather high. The primary reason for it is political relations between the states as well as global policy itself. In order to understand the mechanisms of current frivolous litigation regulation, it is important to overview the practice of some international courts. It would be very logical to begin the discussion with one of the most well- known international courts – the International Court of Justice (ICJ). The Statute of the ICJ has no provision regulating the dismissal procedure of a case based on the lack of legal merit. Certainly, it does not mention the concept of frivolous claims either. The practice of ICJ has some examples of dismissals in limine litis on the grounds of lack of jurisdiction. One of such examples is the Legality of Use of Force case, in which the preliminary objections stated that “The Court should take a decision to dismiss the case in limine litis, without further entering into the examination of the question of whether the Court has jurisdiction under the circumstances.”7 However, this matter does not concern the lack of legal merit, while the jurisdictional dismissals are not usually linked to frivolous claims.
5 Federal Rules of Civil Procedure (1938), Rule 12(b)(6)
Volume 1 September 2014 Issue 1 www.kulawr.ru 132 KUTAFIN UNIVERSITY LAW REVIEW
Although there are no any well-known incidents of the ICJ dismissing unfounded claims, there is a Separate Opinion of Judge Fitzmaurice that is worth to be mentioned in this analysis: There is another reason also for postulating certain latitude for the Court, on grounds of policy or propriety, to decline in limine to entertain claims that it might be competent to go into, and which might not be open to objection on grounds of straight inadmissibility. In the general international legal fi eld there is nothing corresponding to the procedures found under most national systems of law, for eliminating at a relatively early stage, before they reach the court, which would otherwise hear and decide them, claims that are considered to be objectionable or not entertainable on some a priori ground.8 Nevertheless, there are other examples from the international courts that have the provisions on the issue of frivolous claims. It is interesting that, in addition to having a narrower jurisdiction than the ICJ, all of the following courts deal with the areas of law that are more specifi c than those handled by the ICJ. The example is the International Tribunal for the Law of the Sea (ITLOS). First of all, it is useful to analyze the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS particularly stipulates the procedure for dismissing frivolous claims. Article 294 determines: A court or tribunal … to which an application is made … shall, or may, determine, at the request of a party that the claim constitutes an abuse of the legal process (proprio motu), or that the claim is well founded (prima facie). If the court or tribunal does determine that the claim is either proprio motu or prima facie, it shall take no further action in the case.9 The provision also directly specifi es that “the prima facie fi nding is not limited to jurisdiction”10 and thus may also be applied to the issue of merit, which is at the root of the frivolous claim. In addition, T. Treves clarifi es:
8 Case concerning the Northern Cameroons (Cameroon v. United Kingdom) (Preliminary Objections) [1963] ICJ Rep 15, 106 (Judge Sir Gerald Fitzmaurice, separate opinion). 9 United Nations Convention on the Law of the Sea (adopted 10 December 1982, 16 November 1994) 1833 U.N.T.S. 3 (UNCLOS) art 294 (1). Art. 96 (7) of the Rules of the Tribunal (ITLOS) corresponds to this provision. 10 T Treves, ‘Preliminary Proceedings in the Settlement of Disputes under the United Nations Law of the Sea Convention: Some Observations’ in Nisuke Ando, Edward Mcwhinney, Rüdiger Wolfrum (eds), Liber Amicorum Judge Shigeru Oda (Kluwer International Law, Hague 2002). www.kulawr.ru Volume 1 September 2014 Issue 1 Yulia Mogutova Should the WTO Have Rules on Frivolous Claims? 133
The prima facie finding is all that is necessary to conclude that the case should not be continued. …It would seem that only the most blatant cases of abuse and the most evident cases of unfoundedness are likely to be stopped by the pre-preliminary filter of claims set out in Article 294. Otherwise, bona fide disputes might be deprived of hearing in justice. 11 What’s more, it is signifi cant to note that the above-mentioned Article is applicable both to the ITLOS and the ICJ, so it is possible to consider a dismissal on the grounds of merits lack in the ICJ preliminary proceedings, but only in cases, concerning the maritime disputes. However, “there appear to have been no practical applications made under Article 294 by UNCLOS, nor have there been any proprio motu determinations by ITLOS. The provision has been quoted in certain pleadings by disputing parties, but so far, has not been refl ected in any of the Tribunal’s judgments.”12 It seems to be of particular interest to the author dispute settlement rules in the fi eld of international economic law. Perhaps the most striking example is the International Center for Settlement of Investment Disputes (ICSID). The ICSID Arbitration Rules, which have a practical application, establish the procedure. The Rule 41(5) provides for the following: Unless the parties have agreed to another expedited procedure for making preliminary objections, a party may, no later than 30 days after the constitution of the Tribunal, and in any event before the fi rst session of the Tribunal, fi le an objection that a claim is manifestly without legal merit. The party shall specify as precisely as possible the basis for the objection. The Tribunal, after giving the parties the opportunity to present their observations on the objection, shall, at its fi rst session or promptly thereafter, notify the parties of its decision on the objection.13 Special attention should be given to several aspects of the Rule. First of all, it is imperative to recognize that the claim must be “manifestly without legal merit,” which is a central aspect of identifying a frivolous claim. Secondly, it is
11 Ibid., 752. 12 Potesta and Sobat (n 6) 145. 13 ICSID Rules of Procedure for Arbitration Proceedings (ICSID Arbitration Rules), 4 Int’l Tax& Bus. Law. 362 (1986) rule 41(5).
Volume 1 September 2014 Issue 1 www.kulawr.ru 134 KUTAFIN UNIVERSITY LAW REVIEW
crucial that it is the party’s duty to prove beyond a reasonable doubt that the claim must be dismissed on the grounds of frivolity. “[Rule 41(5)] has been invoked so far in four instances.”14 In Trans-Global v Jordan, the respondent stated that “Claimant’s claims in several respects are manifestly without legal merit because they allege infringements of non-existent legal rights of the Claimant or non-existent legal obligations of the Respondent. This part of the Respondent’s Objection, so far, raises little diffi culty of interpretation.”15 In this particular case, the Tribunal issued the following ruling: The Tribunal accepts that, as regards disputed facts relevant to the legal merits of a claimant’s claim, the tribunal need not accept at face value any factual allegation which the tribunal regards as (manifestly) incredible, frivolous, vexatious or inaccurate or made in bad faith; nor need a tribunal accept a legal submission dressed up as a factual allegation.16 The case of Brandes v Venezuela is also of particular interest because in this instance, the Tribunal did not accept the objections and determined that “the answers to these questions necessitate the examination of complex legal and factual issues which cannot be resolved in these summary proceedings.”17 Thus, it was impossible to identify the frivolity of the claim, so in order to make a decision, both the summary proceedings and the complex examination were to be carried out. It seems to be a rather common issue when the respondent is unable to provide the Tribunal with enough concrete evidence to substantiate their objections, so the frivolity of the claim can be determined only after the trial. An example of a case, in which the Tribunal has fully accepted the respondent’s objections is that of Global Trading v Ukraine where it was ruled that: “the claims brought in the present arbitration by Global Trading Resource
14 Potesta and Sobat (n 6) 148. 15 Trans-Global Petroleum, Inc. v. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/07/25, Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 95 (12 May 2008). 16 Ibid., 105. 17 Brandes Investment Partners, LP v. The Bolivarian Republic of Venezuela, ICSID Case No. ARB/08/3, Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 72 (February 02, 2009). www.kulawr.ru Volume 1 September 2014 Issue 1 Yulia Mogutova Should the WTO Have Rules on Frivolous Claims? 135
Corp. and Globex International, Inc. against Ukraine are manifestly without legal merit.”18 The practical importance of Rule 41(5) ultimately lies in the fact that it establishes the process, by which a procedural hearing is substantiated. However, its applicability is still a controversial issue.19 Analyzing the application of rules on frivolous claims, it is worth mentioning the M&M Productions, Inc. v Iran case, during which the judge stated that “from the begining of its business… the Tribunal should have adopted a mechanism sorting out … frivolous and baseless claims and dealt with them.”20 This particular case was associated with the fact that the United Nations Commission on International Trade Law (UNCITRAL) (the 1976 version) had no provision establishing the procedure for dismissing frivolous claims. Currently, the UNCITRAL (after the amendments of 2010) has a norm, regulating that issue. Article 17 stipulates a provision: Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings, each party is given a reasonable opportunity to present its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and effi cient process for resolving the parties’ dispute.21 The formulation of that norm is not as precise as that of Rule 41(5) of the ICSID. However, it determines the main purposes of the dismissal: 1) Avoidance of unnecessary delay and expense; 2) Provision of a fair and effi cient process for resolving the parties’ dispute. It is important to understand that each frivolous claim can cause serious time and resource expenditures. However, the UNCITRAL Rule does not clarify
18 Global Trading Resource Corp. and Globex International, Inc. v. Ukraine, ICSID Case No. ARB/09/11, Award, 57 (1 December 2010). 19 Potesta and Sobat, (n 6) 149-159. 20 Potesta and Sobat, (n 6) 164 citing M&M Productions, Inc. v Iran, 6 Iran-US CTR 125, 1984, at 129. 21 UNCITRAL Arbitration Rules as revised in 2010, Art. 17(1), GA Res 65/22 (6 December 2010).
Volume 1 September 2014 Issue 1 www.kulawr.ru 136 KUTAFIN UNIVERSITY LAW REVIEW
the details of such procedure, as the way the ICSID Rule does, so the provision has a more declarative character. Turning to the World Trade Organization (WTO) Dispute Settlement, it is important to note that, in contrast to the ICSID and other international arbitration tribunals, it deals with State-to-State disputes. Although the WTO “is a place where member governments go to try to sort out the trade problems they face with each other”22 and its competence is strictly limited to the trade issues (in other words, to the sphere of economics), it still has a direct connection with global politics. Moreover, the fact that both highly-developed and developing states are members of the Organization could lead to serious infringements by way of frivolous claims. The WTO Dispute Settlement practice does not give many examples of frivolous lawsuits. However, this issue is still very important and the possibility of frivolity increases as the number of presented cases rises. The United States, in the Japan — Measures Affecting Consumer Photographic Film and Paper case, stated that “the non-violation remedy remains an ‘exceptional concept’ in that it provides a right of redress whether or not a measure confl icts with the GATT.”23 It also provides some statistics: After 50 years, there have been only 8 cases (i.e., Ammonium Sulphate, Sardines, Uruguayan Recourse, Citrus, Canned Fruit, Oilseeds, Semiconductors, and Sugar) in which panels have substantively considered Article XXIII:1(b)24, and in three of those cases (i.e., Uruguayan Recourse, Semiconductors, and Sugar) the panel applied the “detailed justifi cation” requirement that now appears in Article 26.1 of the DSU to dismiss frivolous non-violation claims.25 An example of a frivolous claim in a WTO lawsuit is that of the United
22 Understanding the WTO 9
States — Measures Affecting the Cross-Border Supply of Gambling and Betting Services case. “While some U.S. offi cials view Antigua’s lawsuit with the WTO as being without merit and even frivolous, Antigua’s Finance Minister Howard Lovell says his country is deadly serious about the damage the American Justice System has done to Antigua’s economy.”26 Other examples can be found when the United States declared that a claim against them was frivolous, while the real issue was completely different. As Somesh K. Mathur mentions, “developing countries face at least three major problems as far as the implementation of decisions in the DSP is concerned (RIS, World Trade and Development Report 2003)”27 and one of them is “substantial export loss to the developing country during the dispute settlement period, but there is hardly any provision for compensation for this loss even when the measure in question is found to be in contravention of the WTO rules or frivolous”28. The answer to the question of whether or not there should be rules on frivolous claims in the WTO Dispute Settlement Understanding, is indubitably affi rmative. The existence of such rules is important not only for the protection of Respondent-State interests, but also for the whole Dispute Settlement System. The main reasons for this necessity are outlined below. 1. Frivolous claims trivialize the whole system. It makes the procedure senseless and prevents the system from achieving its main purpose – to protect rights and provide remedies. 2. Frivolous claims consume both time and resources. It takes at least 9-12 months to adopt the report. 3. Frivolous claims diminish the system established by the WTO Dispute Settlement. As Judge Fitzmaurice said: Evidently, a judgment of the Court, even if not capable of effective legal application, could have other uses. It could afford a moral satisfaction.
26 GJ Laurenzi, ‘Antigua-Barbuda Declare Gaming Trade War on U.S.’
Volume 1 September 2014 Issue 1 www.kulawr.ru 138 KUTAFIN UNIVERSITY LAW REVIEW
It could act as an assurance to the public opinion of one of the parties that something had been done or at least attempted. There might also be political uses to which it could be put. Are these objects of a kind which a judgment of the Court ought to serve? The answer must, I think, be in the negative, if they are the only objects which would be served - that is, if the judgment neither would, nor could, have any effective sphere of legal application. 29 The Dispute Settlement Body (DSB) should not deal with political issues that may arise concurrently with trade disputes. It should focus only on the legal merit of the claim, which is to be distinguished from all other affairs of the state. However, the mechanism should not only prohibit frivolous claims and dismiss them, but must also provide the remedies for the respondent. “The panel should be mandated to determine the amount of compensation in all cases where … countries are found to violate the WTO rules. This will help prevent the initiation of trade-related measures on frivolous grounds…”30 Not only the dismissal, but also the compensation, can prevent the states from bringing frivolous claims. Such compensation should include both the expenses of the respondent for the dispute settlement procedure and any losses that may arise from the claim. It is imperative that the compensation can be adjudged not only under the WTO rules, but also under the Articles on State Responsibility from 2001, which are also applicable to the WTO disputes,31 as customary international law. Glen T. Schuyler expressed the interesting idea of: “… set[ting] up a commission to fi lter out frivolous claims and advance meritorious ones. This system could be modeled on the European Commission on Human Rights,
29 Case concerning the Northern Cameroons (n 8) 107. 30 SK Mathur (n 27) 186. 31 Kozheurov Ya. S. Mezhdunarodnaya Otvetstvennost za Narushenie “Prava WTO”: Sootnoshenie s Obshchim Mezhdunarodnym Pravom // Aktualnye Problemy Mezhdunarodnogo Prava, 2013. №10 (35). S. 1334-1340, 1137. (YaS Kozheurov ‘International responsibility for the violations of WTO Law: Correlation to General International Law’ (2013) 10(35) Relevant Issues of International law 1334, 1337). www.kulawr.ru Volume 1 September 2014 Issue 1 Yulia Mogutova Should the WTO Have Rules on Frivolous Claims? 139
which serves as a screening mechanism for the European Court of Justice,”32 he writes. It seems to be logical to have such a mechanism at the consultational level. However, a precise dismissal procedure should also exist. The two best models of such a mechanism seem to be Article 294 of UNCLOS and Rule 41(5) of the ICSID. Furthermore, a system of remedies and compensations should be introduced as well.
Conclusion
The practice of international courts shows that the issue of frivolous claims is a very controversial one. Although it is a matter of current importance, the number of explicit and precise provisions regulating this fi eld is limited. Taking into account the specifi c legal nature of the WTO, its increasing importance in the modern international society, and the growing number of disputes settled in its DSB, there is no doubt that the WTO should have rules on frivolous claims in its Dispute Settlement Understanding.
Bibliography
Garner BA (EIC), Black’s Law Dictionary (9th ed. West 2011) Laurenzi JG, ‘Antigua-Barbuda Declare Gaming Trade War on U.S.’
32 GT Schuyler, ‘Power to the People: Allowing Private Parties to Raise Claims before the WTO Dispute Resolution System’ (1997) 65 Fordham L Rev 2275, 2309
Volume 1 September 2014 Issue 1 www.kulawr.ru 140 KUTAFIN UNIVERSITY LAW REVIEW
Mathur SK, ‘Understanding on Rules and Procedures Governing the Settlement of Disputes: A Developing Countries Perspective’ (2006) 11 (2) Lahore J Econ 169 Potesta M and Sobat M, ‘Frivolous Claims in International Adjudication: A Study of ICSID Rule 41(5) and of Procedure of the Other Courts and Tribunals to Dismiss Claims Summarily’ (2012) 1 J Int’l Disp Settl’t 137 Schuyler GT, ‘Power to the People: Allowing Private Parties to Raise Claims before the WTO Dispute Resolution System’ (1997) 65 Fordham L Rev 2275 Treves T, ‘Preliminary Proceedings in the Settlement of Disputes under the United Nations Law of the Sea Convention: Some Observations’ // Nisuke Ando, Edward Mcwhinney, Rüdiger Wolfrum (eds), Liber Amicorum Judge Shigeru Oda (Kluwer International Law, Hague 2002)
www.kulawr.ru Volume 1 September 2014 Issue 1 141
BOOK REVIEW
TWO BOOKS ON THE TOP SHELF
By Maria Zakharova Author PhD (Law), Kutafi n Moscow State Law University, 2005 Head of a research center, Kutafi n Moscow State Law University and Associate Member, University of Bordeaux E-mail: [email protected] Abstract Each new shooting star in the sky, each sound of a clock striking midnight on New Year’s Eve, and even each shrill ring of a morning alarm clock, gives birth to one, or even two, new law books. It is not easy to manage this fl ow of publications, which threatens to turn into a veritable fl ood. Legal literature intended to be strictly professional helps to properly divide an inheritance, decrease the tax burden, or accomplish other useful and important things. Although this type of literature is a necessity recognized by the chaotic courts of justice, the so-called upper shelves of the bookcase often remain unattended because of lack of time and physical strength. In this review the author draws attention to books occupying the upper shelves of a legal bookcase representing two classical legal traditions – the Continental European and the Anglo-Saxon – respectively. Each book mentioned in this review investigates the correlations between the animate and the inanimate and between the animate and the animate. The titles of the books are unexpected. Now that the intrigue is noted, let us unravel it together with the authors of those books. Keywords Law, freedom, legal system, Russia, France
On the top shelf can be found books of honor, valuable and worthy. But their content is remote from current realities. Somewhere in the middle is a scattering of classics: Comte and Kant, Duguit and Dicey, Agarkov and Koni, Meier and Shershenevich.
Volume 1 September 2014 Issue 1 www.kulawr.ru 142 KUTAFIN UNIVERSITY LAW REVIEW
Close at hand and within easy reach are books that are useful in everyday life; for example, those concerning tax optimization, refi nancing programs, and court practice. Of course, there is also – old and totally worn out, with lots of bookmarks, and full of comments made by others or sometimes by your own hand – the “comrade-in-arms” since student days: the Civil Code. Further on, looking at us from behind the placid glass of the bookcase, stern in content and reserved in form, is the Criminal Code and, of course, the book of occasionally failed hopes, the Constitution. However, our story is not about them. It is about the dwellers of the top shelves, seemingly so far removed from us. One of those books in question is “Tolstoï et le Droit. ”1 It was published a short time ago and received the award of the French Academy of Moral and Political Sciences [ l’Académie des sciences morales et politiques] just in a month after its publication. The author, Professor Raymond Legeais, is the Honorary President of the University of Poitiers, Doctor honoris causa of the University of Marburg, and a member of the International Academy of Comparative Law. His works are well known far beyond his hometown, a small medieval-era borough near Paris2. What is his latest book about? Is the word order in its title correct? Is “Tolstoy and the Law” really the best way to phrase it? You will fi nd the answers below. We know from Tolstoy’s War and Peace that “Everything was in confusion in the Oblonskys’ house”. We also can give a verbal portrait of Plato Karataev. But what does all of that have to do with the law? First, it is worth mentioning that in 1844 Leo Tolstoy joined the Department of Oriental Language Arts at Kazan University, but later transferred to the Department of Law. It was around this time that he commented on the “Nakaz”of Catherine the Great, drawing comparisons with Montesquieu’s The Spirit of the Laws. We can see some political and legal grounds in his novel Resurrection, which is a key to understanding the “legal consciousness of the Russian
1 R Legeais, Tolstoï et le Droit (Poitiers 2014) 2 In particular, the classic work of Professor R. Legeais on comparative law “Grands systèmes de droit contemporains-Approche comparative” was translated into Russian. www.kulawr.ru Volume 1 September 2014 Issue 1 Maria Zakharova Two Books on the Top Shelf 143 people.” The Death of Ivan Ilyich in large part depicts the life of a junior lawyer of yesterday and today.3 Legais noted that many topics addressed by Leo Tolstoy in the nineteenth century evolved in the twentieth, from the idea of non-violence4 to criticism of autocracy and, of course, the ideas of “war” and “peace.” Today, more than ever, the international communities (such as the United Nations and the NATO, which are in many ways polarized, as they consist of government delegations from different countries) lack, among their ranks, People of Peace. People of War have already fully shown their worth. There is no doubt that the works should not be viewed as axiomatic, but through them, we are able to better understand even ourselves, as well as our political and legal realities, with their crises (both internal and external), revolutions, evolutions, wars, and peace. The second book under review, entitled Freedom and The Law, appeared more than a half century ago5 (translated into Russian in 20086) and emanated from the pen of Bruno Leoni, an outstanding Italian lawyer and public figure. As Arthur Kemp wrote in the foreword to the third edition of an English version of the book: “Bruno Leoni lived a dynamic, intense, vigorous, and complex life as a scholar, lawyer, merchant, amateur architect, musician, art connoisseur, linguist, and – above all else – as a defender of the principles of individual freedom which he so passionately believed in. He was a Professor
3 It would not be quite right to frighten young lawyers with the word «death» even if it is about some abstract Ivan Ilyich, who lived two centuries ago. But it may be useful for them to have an idea of syllogism, which this character learned about: «…Caius is a man, men are mortal, therefore Caius is mortal.» 4 As Legier suggests, the most conspicuous continuation of Tolstoy’s «non- resistance to evil by force» in the twentieth century was Mahatma Gandhi’s «nonviolent resistance» movement. 5 The book was first published in 1961. 6 Bruno L. Svododa i zakon / per. s angl. V. Koshkina pod red. A. Kuryayeva. M.: IRISEN, 2008. (Seriya “Pravo”) [Bruno Leoni, Freedom and Law (translated from English by V Koshkin, A Kuryayev ed., IRISEN 2008 (Law series)).
Volume 1 September 2014 Issue 1 www.kulawr.ru 144 KUTAFIN UNIVERSITY LAW REVIEW
of Legal Theory and the Theory of the State at the University of Pavia, and also served as the Chairman of the Faculty of Political Science, as a Director of the Institute of Political Science, and as founder-editor of the quarterly journal, Il Politico. As a distinguished visiting scholar, he traveled all over the world, delivering lectures at the Universities of Oxford and Manchester (in England), and Virginia and Yale (in the United States), to mention only a few. As a practicing attorney, he maintained both his law offi ce and his residence in Turin where he was also active in the Center for Methodological Studies. He found time, on occasion, to contribute columns to the economic and fi nancial newspaper of Milan, 24 Ore. His successful efforts in saving the lives of many allied military personnel during the German occupation of northern Italy gained him not only a folding watch inscribed “To Bruno Leoni for Gallant Service to the Allies, 1945,” but also the eternal gratitude of too many persons to mention.” In his critical analysis of the state of affairs in then-modern legislation, Bruno Leoni, in particular, noted: “... A fact that almost always goes unnoticed is that a remedy by way of legislation may be too quick to be effi cacious, too unpredictably far- reaching to be wholly benefi cial, and too directly connected with the contingent views and interests of a handful of people (the legislators), whoever they may be, to be, in fact, a remedy for all concerned. Even when all this is noticed, the criticism is usually directed against particular statutes rather than against legislation as such, and a new remedy is always looked for in “better” statutes instead of in something altogether different from legislation. While legislation is almost always certain, that is, precise and recognizable, as long as it is “in force,” people can never be certain that the legislation in force today will be in force tomorrow or even tomorrow morning. The legal system centered on legislation, while involving the possibility that other people (the legislators) may interfere with our actions every day, also involves the possibility that they may change their way of interfering every day. As a result, people are prevented not only from freely deciding what to do, but from foreseeing the legal effects of their daily behavior...” Doesn’t that remind you anything or anybody? And if you think really well? “... We have changed the time either to winter or to summer ... adopted a www.kulawr.ru Volume 1 September 2014 Issue 1 Maria Zakharova Two Books on the Top Shelf 145 whole bunch of emergency laws making the subject of their regulation illegal...”7 Something like this? What is the solution suggested by the author? “We do not need to take refuge in Utopia in order to fi nd legal systems different from the present ones,” Leoni claims. “Both Roman and English history,” he says, “teach us, for instance, a completely different lesson from that of the advocates of infl ated legislation ... Both the Romans and the English shared the idea that the law is something to be discovered more than to be enacted and that there is nobody in the society who could be powerful enough to identify his own will with the law of the land. The task of “discovering” the law was entrusted to the lawyers and judges. Ways out of diffi cult situations always exist. So, place the residents of the top shelves of the bookcase a little closer to hand and heart and you will surely be rewarded.
Bibliography
Legais R, Tolstoï et le Droit (Poitiers 2014) Bruno L. Svododa i zakon / Per. s angl. V. Koshkina pod red. A. Kuryayeva. M.: IRISEN, 2008, 308 s. (Bruno L, Freedom and Law (translated from English by V Koshkin, A Kuryayev ed., IRISEN 2008) Yermolenko А.S. Yubiley osnovnogo zakona i ego rol’ v formirovanii pravovogo gosudarstva // Konstitutsionalizm i pravovaya sistema Rossii: itogi i perspektivy. Sbornik dokladov. М, 2014. S. 232 (Yermolenko АS, ‘Anniversary of the Basic Law and its Role in Forming the Rule-of-Law’ [2014] Constitutionalism and Legal System of Russia: Results and Prospects. Collection of Reports 232)
7 Yermolenko А.S. Yubiley osnovnogo zakona i ego rol’ v formirovanii pravovogo gosudarstva // Konstitutsionalizm i pravovaya sistema Rossii: itogi i perspektivy. Sbornik dokladov. М, 2014. S. 232 [АS Yermolenko, ‘Anniversary of the Basic Law and its Role in Forming the Rule-of-Law’ [2014] Constitutionalism and Legal System of Russia: Results and Prospects. Collection of Reports 232].
Volume 1 September 2014 Issue 1 www.kulawr.ru 146 KUTAFIN UNIVERSITY LAW REVIEW
CONFERENCE REVIEW
JUDICIAL INDEPENDENCE AS ESSENTIAL FOUNDATION OF JUSTICE AND PEACE
By Vladimir Zhbankov
Author PhD (Law), Kutafi n Moscow State Law University, 2009 Associate Professor, Kutafi n Moscow State Law University E-mail: [email protected] Abstract The Conference on Judicial Independence held by the International Association of Judicial Independence and World Peace took place in Moscow on May 29 – June 1, 2014 in Kutafi n Moscow State Law University. Many world-renowned scholars and legal practitioners took part in the Conference as speakers. They were discussing the problems associated with the institution of the Judicial Branch in modern states in an attempt to fi nd some ways of resolving those problems. Keywords Judicial Independence, International Association of Judicial Independence and World Peace, legal conference
The Conference on Judicial Independence as an Essential Foundation of Justice and Peace held by the International Association of Judicial Independence and World Peace took place in Moscow, Russia on May 29 – June 1, 2014. The Conference was organized with the assistance of Kutafi n Moscow State Law University (Moscow, Russia), Russian Academy of Justice (Moscow, Russia), University of Cambridge – Centre for Public Law (Cambridge, United Kingdom), The Hebrew University of Jerusalem – Faculty of Law, Sacher Institute (Jerusalem, Israel), and Russian law fi rm ART DE LEX. www.kulawr.ru Volume 1 September 2014 Issue 1 Vladimir Zhbankov Judicial Independence as Essential Foundation of Justice and Peace 147
The organizers of the Conference underline that, in spite of untoward conditions in some parts of Russia, foreign participants have optimistic views and are ready to cooperate and share their experiences in the legal fi eld. Many world-renowned scholars took part in the Conference as speakers. Among them were: — Professor Shimon Shetreet (The Hebrew University of Jerusalem) — Dr. Sophie Turenne (University of Cambridge) — Professor Christopher Forsyth (University of Cambridge) — Sir Louis Jacques Blom-Cooper (QC FKC) — Professor Marcel Storme (University of Ghent) — Professor Irina Reshetnikova (Ural State Law Academy, Chair of the Federal Arbitration Court of the Ural Federal District) — Professor Vladimir Yarkov (Ural State Law Academy) — Professor Viktor Blazheev (Kutafi n Moscow State Law University) — Professor Valentin Ershov (Russian Academy of Justice) — Professor Sergey Nikitin (Russian Academy of Justice) — Professor Dmitry Maleshin (Lomonosov Moscow State University) The conference was also attended by representatives of leading universities in the United Kingdom and Australia, as well as by scholars from several additional European and Asian educational institutions. The Conference program was prepared by Kutafi n Moscow State Law University. A highlight of the Conference was a trip arranged by the organizers for the participants in order to visit the Constitutional Court in St. Petersburg. The head of the Conference Organizing Committee was Dmitry Magonya, Managing Partner of ART DE LEX Law Firm. The International Association of Judicial Independence and World Peace was founded in 1982. This Association is one of the most well known international organizations, which unites practicing lawyers, competent experts in law and judges around the world. The Association focuses on drafting international standards of judicial independence and supports the culture of peace in all states. Its efforts are also aimed at promoting the ideas of peace, democracy, freedom, and liberty by strengthening and maintaining judicial independence in all its aspects. The Association participated in drafting a number of international documents, which are currently recognized and applicable all over the world. Among those documents are the Minimum
Volume 1 September 2014 Issue 1 www.kulawr.ru 148 KUTAFIN UNIVERSITY LAW REVIEW
Code of Judicial Independence (in cooperation with the International Bar Association, New Delhi, India, 1982) and the Montreal Declaration on the Independence of Justice (Montreal, Canada, 1983). The organizers: The University of Cambridge is one of the world’s oldest universities and leading academic centers, in addition being a self-governed community of scholars. It is known for its outstanding academic achievements, as well as for the original research of its scholars. The Hebrew University of Jerusalem, which was founded in 1918 and opened offi cially in 1925, is Israel’s premier university as well as its leading research institution. The Hebrew University is ranked internationally among the 100 leading universities in the world and the fi rst among Israeli universities. Kutafi n Moscow State Law University (MSAL) has an enrollment about 17,000 students. It offers courses that provide deep knowledge of the subject matter in combination with relevant practical skills, making efforts to improve the legal system. The Russian Academy of Justice (RAJ) was established in 1998 pursuant to Decree of the President of Russia and the Resolution of the Government of the Russian Federation for the purposes of upgrading judges’ profi ciencies. The founders’ authority was given to the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. ART DE LEX Law Firm, since its foundation in 2005, has been proactively involved in collaborating with professional law associations. Legal culture inevitably leads to social development and enables the attainment of high occupational standards in law enforcement practice. The contribution that is worth mentioning is a speech presented by the Advisor to the President of the Russian Federation, Former Chairman of the Supreme Arbitrazh Court, Professor Veniamin Yakovlev. In his speech, he highlighted the issues of the judges’ power in the terms of judicial independence. He also revealed the importance of internal ethical guidelines for the judges and their role in the achievement of real independence, in terms of the realization of justice. Within the confines of MSAL, well-known scholars and legal practitioners were discussing the issues associated with the institution of www.kulawr.ru Volume 1 September 2014 Issue 1 Vladimir Zhbankov Judicial Independence as Essential Foundation of Justice and Peace 149 the Judicial Branch in modern states in an attempt to find some ways of resolving those issues. There were five sessions held, which dealt with the following topics: — Independence of the judicial power as a basis for a Culture of Peace; — Strengthening of individual independence of judges and the institution of the Judicial Branch; — The infl uence of transnational judicial practice on the independence of judges; — Rule of law, justice and peace; — International standards of judicial independence. It is worth mentioning that for better efficiency the organizers of the Conference involved representatives of Russian and foreign judicial systems. Another work that is worth mentioning is titled “Legal Certainty as One of Most Important Guarantees of Judicial Independence.” It was presented by a well-known scholar and retired judge. Specifically, the presenter was Honored Lawyer of the Russian Federation, Academician of the Russian Academy of Sciences and Rector of the Russian Academy of Justice, Professor Valentine Ershov. In his work, Ershov describes what he views as problems with the sources of law. He also outlines the main factors that he believes should serve as guidelines for judges during the decision-making process. The speech of the President of the Federal Arbitration Court of the Ural District, Professor Irina Reshetnikova, outlines the practical aspects of ensuring the independence of judges in Russia. Dmitry Magonya, Managing Partner of ART DE LEX Law Firm, came up with a presentation on the access to justice for vulnerable groups of citizens and the value of the independence of the judicial power. In his work, Magonya gives particular attention to the social status of participants of the trial process, in addition to exploring the possible infl uence it may have on the judicial power independence. The following were among the other scholars who took part in the Conference: — Professor Vladimir Yarkov (Ural State Law Academy) — Professor Shimon Shetreet (The Hebrew University, Israel) — Dr. Sophie Turenne (University of Cambridge, United Kingdom) — Professor Marcel Storm (University of Ghent, Belgium)
Volume 1 September 2014 Issue 1 www.kulawr.ru 150 KUTAFIN UNIVERSITY LAW REVIEW
— Professor Sergey Nikitin (Russian Academy of Justice) — Professor Dmitry Maleshin (Lomonosov Moscow State University) Within the framework of the Conference, the participants visited the Constitutional Court of the Russian Federation. There was a meeting with a group of judges, headed by Deputy Chairman of the Constitutional Court, Olga Hohriakova. The discussion was mainly about problems related to the realization of the constitutional justice in Russia. There was also a conversation about ensuring constitutionality and learning from foreign experience regarding the oversight of the rule of law. The result of this work was a layout of the principles on which the actualization of judicial independence is based.
www.kulawr.ru Volume 1 September 2014 Issue 1 KUTAFIN UNIVERSITY LAW REVIEW Volume 1 September 2014 Issue 1
Concept and Design
Lubov Mikhalevich (Kutafin University, Moscow)
Published and printed by Kutafin Moscow State Law University (MSAL) 9 Sadovaya-Kudrinskaya str., Moscow, Russia, 123995 http://msal.ru/en/ [email protected] + 7 (499) 244-86-35
Printed in Russia
Updated on 1 October 2014 2014 - 150pp. - 24 x 17 cm
ISSN 2313-5395 Moscow State Law University named after O.E. Kutafi n (MSAL)
www.msal.ru/en/
+ 7 (499) 244-86-35