JURIST Guest Columnist William Partlett, of the Chinese University of Hong Kong Faculty of Law, discusses recent reforms to Russia’s judicial system …

Russia is well known for having poor rule of law. Recent empirical research, however, suggests [PDF] that this reputation is not completely justified. This research suggests that Russia has a dualist system of law where politically sensitive cases are decided outside of the law (a “political” track) but where ordinary legal cases generally proceed with little political interference (an “ordinary” track). Recent judicial reforms have improved the adjudication of these ordinary track cases. For instance, the creation of the Justices of the Peace has been widely regarded as a positive step in improving access to courts and improving justice in Russia. Furthermore, since 2005, the leadership of the Russian commercial courts has markedly improved the quality of adjudication in commercial cases.

In June 2013, President Vladimir Putin announced the most far-reaching judicial reform in the last 30 years: The creation of a new “super” Supreme Court that will merge the leadership of the Russian commercial courts with the regular courts. Since this reform was announced, many have debated the effects of this reform. Some have argued that these reforms would further strengthen the ordinary track of the Russian legal system. Others were more pessimistic, warning that it is a way to ensure that more cases are placed on the political track.

The time for speculation is now over. The restructuring is now complete: The new “super” Supreme Court began work on August 6, 2014. Recent details about the makeup and organization of the new “super” court suggest that the pessimists were correct: This reform will weaken rule of law in Russia by eliminating one of the most innovative parts of the Russian judicial system and providing high level officials more opportunities for placing cases on the political track.

Russia’s two court systems

Since 1992, in addition to a stand-alone constitutional court, Russia has had two separate court systems: The courts of general jurisdiction (headed by a 115-judge Supreme Court) and the commercial courts (headed by a 55-judge High Commercial Court). The general courts consider the bulk of Russian legal cases including military, civil, and criminal courts cases. The commercial courts, by contrast, focus on commercial disputes between legal entities.

This separation—which was formalized in the 1993 Constitution—has led to two very different approaches to adjudicating disputes. Much of this difference can be traced to leadership. The Russian court system is incredibly hierarchical. The Chair (and his or her team) has vast bureaucratic power over lower court judges, including depriving them of housing or removing them from office if they are seen to be “underperforming.” This leadership also has the power to shape the law by choosing issues to provide interpretations that guide lower court decisions.

The Supreme Court—under the leadership of Vyacheslav Lebedev (a judge since 1970)—has not changed a great deal from the Soviet period. The courts of general jurisdiction continue to operate in a rather secretive way, stressing deference to government and interpreting statutes in very formalistic ways. Although many ordinary cases are decided without outside interference on the ordinary track, it is rather easy for a case to be placed on the political track in the courts of general jurisdiction.

The commercial courts, by contrast, have been led by Anton Ivanov, a friend of Dmitry Medvedev and a former corporate lawyer. Ivanov has pushed the commercial courts to improve Russia’s poorly drafted commercial law through guiding interpretations with the power of precedent. The High Commercial Court has also adopted a highly transparent approach, making opinions available online and streaming important court meetings on the internet. These reforms have made it more difficult to place cases in the commercial courts on the political track.

Merging the two tracks?

Vladimir Putin proposed merging these two court leadersips in 2013. In response, some expressed optimism about the unification of the two high courts. Judicial reform in recent years has improved access to courts and the quality of justice. Recent efforts to introduce new courts and pay judges more have improved the quality of justice on the ordinary track. Optimists argued that this unifying reform would better allow solutions to cases where the two court systems had developed competing approaches to the same legal matter. Second, others speculated that the consolidation of the two systems could allow the reforms of the Commercial Courts to increase the influence of the ordinary track in the general courts.

Recent details, however, suggest that this optimistic scenario has not come to pass. First, commercial court judges will have far fewer levers to develop and clarify commercial law. Under the reform, the High Commercial Court will be replaced by a far-diminished 30-judge Economic Collegium. This Collegium will have far less power to issue guiding interpretations, ending any experiments with the use of precedent to improve Russian commercial law. These reduced levers of power by the leadership potential are also likely to lead to more variability in lower court decisions, undermining any greater uniformity in adjudication.

Second, the selection process for the new court has eliminated most of the former leadership of the High Commercial Court. Indeed, the judges who were selected to the new Economic Collegium were those who opposed Ivanov’s policies. The head of the new Economic Collegium is Oleg Sviredenko, a Moscow commercial court judge who opposed many of the former Chair reforms. By contrast, the leadership of the old Supreme Court has remained entirely intact: The former head of the old Supreme Court, Vyachaslev Lebedev, remains in charge of the new “super” Supreme Court.

Conclusion

The reform, therefore, has become embroiled in politics and emerged as a way to eliminate the innovative and assertive leadership of the High Commercial Court. Although this reform will not extinguish all of the positive steps made in Russian rule of law and the improvement made to ordinary track cases, it is likely to reduce the pace of innovation and reform in the Russian judicial system overall. This will certainly weaken the development of commercial law in Russia—a critical component of Russia’s economic development. More broadly, this reform will likely damage recent attempts to reduce the number of cases decided on the political track.

William Partlett is an Assistant Profesor in the Law Faculty at the Chinese University of Hong Kong. Dr. Partlett holds a J.D. from Stanford Law School as well as a DPhil in Soviet History and MPhil in Russian and East European Studies from the University of Oxford (where he was a Clarendon Scholar). Dr. Partlett draws on this cross-disciplinary background to work in the field of comparative constitutional and criminal law.

Suggested Citation: William Partlett, Judicial Backsliding in Russia, JURIST – Academic Commentary, September 30, 2014, http://jurist.org/academic/2014/09/william-partlett-russia-reform.