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5 First Class Russian Legal System Example Essays
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- Kings College London (KCL)
These essays achieved a 70 overall in Russian Legal System at King's College London
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Russian JudiciaryQuestion 4 “Independent judiciary is the cornerstone of a functioning system of democratic checks and balances"
(Robert Spano). Do you agree? What does the concept of judicial independence mean in the context of Russia? Is it
attainable? (1000 words)
In an independent judiciary, judges make decisions based solely on law and facts, ensuring democratic checks. In Russia context,
President Vladimir Putin's prioritisation of a 'supremacy of legislation' over a 'rule-of-law state' in Russia renders judicial
independence a nominal concept, serving the state's interests. While some semblance of independence exists in general
jurisdiction and Arbitrazh courts, pervasive executive interference, through ex parte communication, renders genuine judicial
independence unattainable.
An independent judiciary is crucial to the functioning of a democracy through operating as a system of accountability that deal
with all portions of society including the most powerful actor in society - the state. In the UK, the Human Rights Act of 1988
guarantees citizens' rights, but true impact relies on judicial independence. Without the UK’s judicial independence, rulings such
as Belhaj 2017 where the Supreme Court ruled against the state - would not occur and democratic rights would be eroded by the
state.
In the context of Russia, the significance of judicial independence has shifted according to how leaders view the role of the law.
Mikhail Gorbachev himself believed that judicial independence was necessary for a socialist state with market reforms and
sought to achieve through the Perestroika, (meaning restructuring or reconstruction) (Henderson, 2022). During the 19th
All-Union Conference in 1988, the last of the Six ‘Theses’ forwarded by the party was Legal Reform to ‘to ensure the supremacy
of the law in all spheres of the life of society’. This is reflected in Yeltsin’s 1993 Constitution, Art 1(1) stating that Russia is a
‘rule-of-law based’ state’‘pravovoe gosudarstvo' in Russian. This conception in early Russia as a state that protects judicial
independence to preserve the state’s rule of law, can be contrasted by Putin’s interpretation of a ‘rule of law state’ - ‘gospodstvo
zakona’ (Hendley in Sakwa, Hale and White, 2018) - meaning ‘supremacy of legislation’. Hendley asserts that the latter carries
the connotation of the law as a subordinate aim to the legislative (ibid). This dichotomy in language is important for
understanding how in the modern-day Russian context, the rule of law and hence judicial independence, means very little to
Putin.
Formally, Russian law acknowledges the need for judicial independence. Various articles from the 1993 Constitution reflect this,
Art 119-22 prescribes the requirement for judges to be over 25, have high education and 5 years of legal work experience -
ensuring judges are well educated and experienced. Judges are also free from criminal prosecution (Art 122) and are explicitly
acknowledged to “be independent and subordinate only to the Constitution” (Art 120(1)). Putin’s 2020 Constitution adds to this
with the requirement that public servants cannot have overseas bank accounts - preventing corruption. This evidence falsely
suggests that under Russia’s context, judicial independence is a cornerstone of the Russian Constitution and has been reinforced
across leaders to institute formal measures for independent adjudication.
Whilst the concept of judicial independence is present in Russia, it is unattainable for the state due to the culture of executive
interference in Russia. The frequency of ex parte communication in Russia has allowed its executive to influence the judicial
leadership through close proximity (Popova, 2012). Through the use of presidential decree, Putin created a series of department
to form a Presidential Administration (PA) of which he personally selects the membership of. Putin then created various
PA-affliated commissions to create informal dialogue and ex parte communication about court cases between the judiciary and
the executive. Under many PA Commissions, chairs of the Supreme and Supreme Arbitrazh Courts, the Supreme Qualification
Commission, the director of the Court Department, and the Union of Judges preside on the same commission as the deputy
director of the FSB and several PA directors (Popova, 2012). This means that highest court decisions are unlikely to ever go
against the will of the executive and cases can be pre-discussed prior to the judges examining the facts. This systemically
prevents judicial independence as the Supreme Court can invalidate lower court appeals if they proceed - making any lower court
appeal useless or better, make a telephone call to sway a decision (Ledeneva, 2008). Furthermore, even if these justices were to
make a ruling counter to the state, they can easily be dismissed and replaced. As a result of the 2020 Constitutional Reforms, the
President can submit a recommendation to the Federation Council to dismiss Constitutional Court judges or Supreme Courts
,judges or Court chairs due to any act ‘disgracing honour and dignity of a judge’ (Henderson, 2022). As such, judicial
independence is unattainable in Russia due to systematic executive interference.
Despite this, some level of judicial independence has been attainable due to it being desired in the mundane and commercial
claims. According to the 2010 Levada Study, over 70% of Russian court veterans surveyed felt their rulings was mostly fair and
based on the law. Only 13% reporting that they were unfair (Hendley in Sakwa, Hale and White, 2018). This is attributed to the
fact that most Russians are not part of politically significant decisions. In this regard, particularly in courts of general jurisdiction
and especially Arbitrazh commercial matters (Sharipova, 2020), the Russian state has an interest in a predictable legal system and
hence to ensure judicial independence. However, this limited attainability should not be mistaken for the entire commercial
sphere, all appeals from Arbitrazh courts eventually reach the higher courts (Hendley in Sakwa, Hale and White, 2018). In a 2005
Arbitrazh Court claim against YUKOS for non-payment of VAT, the Constitutional Court (today the case would be referred to the
Supreme Court) ruled that time limits do not permit tax evasion - despite legislation setting a statute of limitations of 3 years
(Henderson, 2022). This shows that judicial independence is only attainable so far as the claims are inconsequential and therefore
is overall unattainable.
In line with Spano's view, an independent judiciary is crucial for democratic oversight. In Russia, though formal acknowledgment
exists, executive interference undermines genuine judicial independence. While some limited independence is seen in routine
matters, significant cases remain subject to state influence, rendering true independence unattainable.
Bibliography
● Belhaj and another (Respondents) v Straw and others (Appellants) [2017] UKSC 3
● Henderson J, The Constitution of the Russian Federation a Contextual Analysis (Bloomsbury Publishing Plc 2022)
● Hendley K, Everyday Law in Russia (Cornell University Press 2017) 229
● Human Rights Act 1998
● Ledeneva A, ‘Telephone Justice in Russia’ (2008) 24 Post-Soviet Affairs 324
● Popova M, Politicized Justice in Emerging Democracies : A Case Study of Courts in Russia and Ukraine (Cambridge University Press 2012)
● Sakwa R, Hale HE and White S, ‘Assessing the Rule of Law in Russia’, Developments in Russian Politics 9 (Bloomsbury Publishing 2018)
● Sharipova AR, ‘The Quality of Justice in Criminal, Arbitrazh, Civil and Administrative Cases: Comparison by Individual Parameters’ [2020]
Lex Russica 53
● OAO Neftyanaya kompaniyça YUKOS v Russia (Application no. 14902/04)
● Konstitutsiia Rossiĭskoĭ Federatsii [Konst. RF] [Constitution] art. 1(1), 119, 120, 121, 122 (Russ.).
Russian Entrepreneurship
Question 6 “It is impossible to do business in Russia. Loans are expensive and this means you have to rely
on your family and friends to start off or expand your business. You have no guarantee that your contracts
will be upheld. Your business can be raided. You can be accused of fraud at the drop of the hat. Judges have
no commercial sense whatsoever and their sense of justice is screwed to the extreme.”
Do you agree with the statement above? You could draw a distinction between the legal framework for doing
business, on the one hand, and the way in which the rules are applied in real life, on the other . You should
support your points with references to the specific legislative provisions. Where relevant, you may wish to
illustrate your answer with examples from case law or real-life examples discussed in the news. Please note
that you are not expected to cite any Russian case law in full. It is sufficient to include a pointer or two to
help the reader to identify the case and/or example used. (992 words)
The statement is largely accurate; conducting business in Russia is arduous. While legal safeguards for general performance exist,
pervasive difficulties stem from low-threshold fraud charges exploited by state-affiliated entities. Yet, even when business is
feasible, difficulties still arise when dealing with unaffiliated entities due to the legal ambiguities threatening small businesses.
The statement erroneously ignores the tangible business protections in Russia. Freedom of economic activity and private
ownership are protected under the constitution (Art 8, parts 1 and 2) with explicit rights for entrepreneurship under Art 34(1). The
Russian Civil Code’s Western European law influence is reflected in the modern day, which proclaims freedom of contract (Art
1) and conclusion of contract on their own terms (Art 421) (Maggs, Schwarts and Burnham, 2015). The Supreme Court case of
Zotkina demonstrates the Russian legal systems’ legitimate framework. In a case of a loan dispute between two private parties,
the Supreme Court ruled that the appellate instance court had erred is not taking Articles 807-810 of the Civil Code into
, consideration (Maggs, Schwartz and Burnham, 2015) and ordered a new trial with fresh consideration for the appellate instance
court. These cases where a higher court admits the mistake of a lower instance one are not unique, Maggs, Schwartz and
Burnham note multiple cases where judges make such rulings due to the merit of the case. This disproves that contracts can’t be
upheld and judges have no commercial sense in Russia. The existence of a numerous codes covering matters of Tax to Land
(Maggs, Schwarts, and Burnham, 2015) underscores a robust system of commercial frameworks. Thus, despite challenges, doing
business in Russia remains viable, underpinned by universal contract guarantees and judiciary's commercial acumen.
The statement correctly highlights the high likelihood of fraud charges in Russia, facilitated by legal provisions like s.159(4) of
the Russian Criminal Code (Foy, 2021), businessmen with state connections often coerce rivals into relinquishing assets,
exploiting s.159(4) which classifies any non-performance of contract to be fraud. In 2019, Michael Calvey, a private equity fund
founder was charged under fraud (s.159) for a $32m banking transaction - despite Russian Ombudsman stating it was fully
‘lawful and competitive’ (InterfaxRu, 2021). In reality, Calvey's fellow Vostochnyi Bank board member Artem Avestiyan,
leveraging his ties with Putin (Foy, 2021), orchestrated a commissioned prosecution against Calvey to coerce him into dropping
lawsuits in overseas proceedings (Seddon, 2020). This negative publicity allowed Avestiyan to seize control of Vostochnyi Bank
and coerce Calvey into dropping the charges. Calvey, after dropping the charges, received a five-year sentence for embezzlement
(s160(4) Criminal Code). This illustrates how Russia’s legal system permits connected parties to exploit their influence for
business ends. The low threshold for criminal fraud facilitates the success of corrupt commissioned prosecutions, allowing the
state to exert extortionary pressure. Despite these challenges, conducting business in Russia remains feasible, albeit notably more
arduous due to pervasive interactions with government-linked individuals who tend to be the heavily involved in
entrepreneurship.
Judges’ commercial sense stunningly lacks in this instance. In 2014, the Supreme Court's review implied s.159(4) was not harsh
enough. The court praised s.159(4)’s protection of good faith entrepreneurs and property relations whilst stating the article’s
contradiction was not punishing intentional non-performance enough (Maggs, Schwarts, and Burham, 2015). Thus while Russian
judges retain commercial sense in cases between unconnected parties - this commercial sense is absent when regulating potential
tools for state corruption.
Admittedly, commissioned prosecutions also occur in the US. Crucially, the difference is that in the US, criminal organisations
are extorted by law enforcement to prevent crime whereas in Russia, commissioned prosecutions extort businesses upon bribe
(Firestone, 2012). As such, both countries legislators share the same aim, but corrupt state actors hijack the goal - showing the
distinction legal application from content is part of difficulty.
Further, small businesses are at risk as well due to high legal ambiguity in Russian offences. In the “Chemists Case” (Firestone,
2010) Russian Drug Enforcement (FSKN) brought criminal charges against a chemical business by asserting that they had
illegally disseminated ‘virulent’ substances (Art 234 Criminal Code) - a statute with no statutory definition. This allowed the
FSKN to pay a third-party ‘expert’ to classify various substances as ‘virulent’ and prosecute the Chemists. Resulting in the
detention of business owners for 7-months in jail before the Ministry of Health and a public campaign cleared their charges. This
ambiguity extends across various sectors. For instance, in 2003 ketamine was prohibited by one law but permitted for veterinary
use by another. (Firestone, 2010). Nevertheless, 20 veterinarians were authorities, only being exonerated after the Ministry of
Agriculture sanctioned ketamine's usage one year later (Vermisheva, 2004). The cases highlight businesses expensive reliance on
friends and family for business loans and legal campaigning during detention - affirming the statement. More importantly, it
displays the challenges in conducting business in Russia, irrespective of party affiliations. Punitive legal ambiguities subject
small businesses, like those of chemists and veterinarians, to threats from extortionate authorities. The root issue is
underdevelopment of legislative content and culture of corruption, rendering bribery or extortion threats almost inevitable. Thus,
the statement holds true that doing business in Russia often necessitates navigating these challenges.
Firestone notes that raiding culture stems from Soviet-era private Marxist theory (Firestone, 2010). Russians still adhere to the
Soviet belief that complete abolition of private property was necessary for a just society (Burnham, Maggs, and Danilenko,
2004). This sentiment is echoed by 45% of business owners who believe that property law offers no protection against state
officials seizing property (Firestone, 2010). It is this ingrained disregard for private ownership that promotes uncertain property
rights among owners and creates fertile ground for extortion schemes.
In conclusion, conducting business in Russia is undeniably challenging. Yet, constitutional safeguards and judicial oversight offer
some protection. However, navigating commissioned prosecutions for fraud charges, whilst manoeuvring legal ambiguities
renders the experience makes the statement largely accurate. Business in Russia is not impossible, but impossibly difficult.
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