Опубликовано в журнале Отечественные записки, номер 2, 2003
| This edition of Oz is devoted to the Russian judicial system. We believe that without an effective and independent administration of justice social and economic transformation cannot be successful. Judges, lawyers, and other stakeholders in the matter have contributed articles on most vital problems of judicial reform in the country. Of course, there is a great diversity of opinions on both the theoretical foundations and practical aspects of the system. The administration of judicial authority has evolved a great deal in post-Soviet Russia after the passage of the Constitution of 1993. Before that, Soviet courts were regarded merely an instrument of executive power. Since then, a number of steps have been taken to adjust the system of judicial administration to the principles of the division of power and to make it more effective in general. However, reforming an old system run by old people is a tricky task. In her “On the Halfway to Justice,” Counselor of the Constitutional Court Tamara Morshyakova contemplates advantages and disadvantages of the judicial reform. Contention between businesspeople is common in a normal economy, you just have to settle arguments in a civilized way. Veniamin Yakovlev, Chairman of the Superior Arbitration Court tells a story of Russia’s unique experience of building an arbitration system capable of dealing with new market realities. The judicial system is a key element of market economy. Risk assessment in investment policies, settling debts, dealing with bankruptcies and other decisions in business depend heavily on the quality of the administration of justice. Behind the scenes of a democratic legislative process, the fight for redistribution of property continues to move on. Edward Rebgun, who owns a legal advisory company, brings arguments and evidence on how domestic courts and state bureaucracy involved in arbitration interact with legal businesses. Rebgun also speculates about the impact of the new law on bankruptcy on Russian enterprises. Was jury trial in old Russia a tribunal of social conscience or the case of adjudication by the mob? Political interference and a lack of empirical sociological data obscured the view of the phenomenon. Alexander Afanasyev in his historical account of the Russian jury trial examines the misconceptions of old and modern research on the subject, while looking at the reasons of its advent in 1860s, the peculiarities of its organization, the jurors characteristics, and the attitude of government and society to this form of trial. The Office of Public Prosecutor has long been the pillar of the punitive system in the Soviet Union. Now, it’s criticized for reluctance to give up its huge powers and undergo transformation. Should the office of public prosecutor duplicate overseeing authority of the judicial power? Inahistorical account of prosecution in Russia, Igor Petrukhin argues that such duplication makes the supervision ineffective; paradoxically, the more controlling and supervising agencies there are in the country, the less law and order we have. Even in a democracy, under exceptional circumstances courts have to act as a court-martial with no defense and the right to plea. Where is the margin between an exceptional, but still legitimate right of the state to defend itself and military dictatorship? What legislation changes taken at wartime or at periods of domestic instability are efficient and justified? Sergey Pchelintsev reviews Russian state-of-emergency legislation from the international and historical perspective. The sore point in judicial reform is, of course, lack of financial resources. What are the criteria on which budget expenditures are allocated to different areas of the country? How much does the existing system cost? Based on analysis of federal budget expenditures for the judicial institutions, Dmitry Fomin looks at the problems of effectiveness of the Russian court system. Russians are not accustomed to thinking about law and order in economic terms. With this perspective absent in reformers’ minds, how can a reform have sensible results? Yuri Kuznetsov explains that to analyze soundly and realistically the effectiveness of maintaining the system, to plan its future functioning, and to reform it, one has to mind the economic aspects of the system. If courts are expected to be independent, they certainly must not depend financially on other institutions or individuals. Alexander Gusev, head of a department in the Supreme Court responsible for finance and logistics, gives an account of the crucial needs of the Russian courts. Investing in courts means investing in the overall social well-being, the author maintains. In the Soviet economy, convicts’ labor played an important role and produced a substantial portion of the revenue. Leonid Bogdanov’s article is on finances of the criminal penitentiary system. He names institutional changes that have to be undertaken to reform federal budget financing of the national correctional institution. If a state authority has to infringe upon personal rights and freedoms in a democracy, then how should the rules be worked out? How do we determine that state intervention is necessary? Analyzing the role of the writs of the European Court of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms in the evolution of Russian national judicial system and promotion individual rights and freedoms, Pavel Laptev describes how international jurisprudence transcends national legislation. The Civil Code, Arbitration Code and Criminal Code have been changed significantly in the course of the judicial reform. Mikhail Mikhailovsky gives a general overview of novelties. Boris Gavrilov of the Interior Ministry analyzes aspects of the new Code of Penal Procedures of the Russian Federation enacted on July1,2002. Beside a number of encouraging amendments, the Code still contains some statutes that make legal recourse overly complicated and an unnecessary burden on the taxpayer, the author argues. Another article by Gavrilov is on problems of creation the Federal Service of Investigations of the Russian Federation, in which he presents pros and cons of creating such an agency and considers its purposes in the system of law and order. It took about ten years for leading academics and practitioners to develop a draft of the Russian new Civil Procedural Code — that would be the most mature of the newly passed codes. Besides, unlike some other statutes and codes, it was widely discussed by the expert community. Alexander Voronov analyzes the results of the work, the code’s new provisions and their practical application. Igor Makarov, a lawyer with British Petroleum, comments on novelties in the arbitration legal procedure. He concentrates on unresolved issues which may backfire and complicate life for business in Russia. Peter Solomon, Jr. of the University of Toronto gives an outlook of the Russian judicial reform. He maintains that many obstacles to the reform come from institutions and practices outside judiciary. In the Russian context, reforming the society means reforming the state, and reforming the state is not feasible without restructuring the system of the administration of justice. It is the responsibility of the state to perform the reform and ensure that it is irreversible. Vladimir Komarovsky and Mikhail Mizulin look at the judicial reform as part of a broader Russian political process. Depending on what poliТЫ line prevails, we will have either a renewed totalitarianism or — finally — a democratic state, the authors argue. According to sociological data presented in Georgy Satarov’s article, court corruption is one of the most potent Russian corruption markets, and its level tends to increase. The court corruption is both the result of general social corruption and the reason of promoting further corruption in the society. It is the main cause of social distrust in the state authority. The absence of private property protection and contract law that judicial system is supposed to provide impedes normal market competition and harms Russian economy. Reforming the system of legal practice performed in the early 1990s has attracted into business the hordes of paralegal brokers claiming to be lawyers, Simon Aria and Valentin Sherker state, and although the Law on the legal practices of May 31, 2002 in Russia did improve the situation, it has not cured it completely. The authors argue that many progressive reform measures are hindered by practitioners and bureaucrats of justice administration. A federal judge from one of the Russian provincial towns, Nikolai Ilyasov is acutely critical about the ways of reforming Russian system of justice administration. He says that measures taken to improve social and financial status of judges are both ineffective and irrelevant to the improvement of overall functioning of the system; they merely obscure legislators’ vision of real problems. Ilyasov names the criteria of judicial system effectiveness and suggests ways of its substantial reforming. To create a system of judicial administration fully meeting the needs of the society, a lot of reform steps have been taken. Some are helpful, and many have created even more problems. Viktor Zhuikov, deputy chairman of the Supreme Court, gives an account of the reform achievements and flaws. Social revolutions have had a great impact on the Russian system of justice administration. Sergei Pashin, one of the architects of the ongoing court reform, tells a story of judicial reforms in Russia. Pashin draws conclusions about the character and peculiarities of the current judicial reform which can be understood as both a tool and a sort of a side effect of the current bloodless social revolution. First Vice-Chairman of the Supreme Court of the Russian Federation Vladimir Radchenko shares his view of the reform. He finds that the key element of the process is improving social and remuneration status of the judges. Vast international research data prove that incarcerating people accused of misdemeanors is absolutely inefficient. Moreover, imprisonment not just fails to improve one’s behavioral patterns but tends to warp individual psychology toward making convicts professional criminals. Policies of “harsh measures” or “intensifying the struggle” against all sorts of offenders only produce results contrary to expected, Yakov Gilinsky states. Are alternative policies possible in Russia today? Why do people trust or distrust judicial authority? Mikhail Krasnov argues that intellectual and moral capacities of judiciary, their sense of justice are a crucial aspect of building the trust that in its turn is crucial to building law and order in a society. The project of the judicial reform that passed in the end of 1991 provided for creation of justices of the peace in Russia. Vladimir Maximov reports on the history and present state of this long forgotten practice that is making legal help more accessible to people. Alexey Muravyev gives an overview of ecclesiastical law that governs internal discipline of the Church and its relations with the world, and Leonid Siukiyainen tells about the law of Shariat. Olga Edelman reviews traditional flaws of the Russian legal system. Supposedly, it was based on a system of intrinsic rules that were not identical to the official written law, Edelman believes. In the Publication section, we publish excerpts from Renй David’s Le Droit Comparй: Droit d’hier, Droit de demain where he compares different law systems, Taking Rights Seriously by Ronald Dworkin about the ethical mission of law, and Teodor Shanin’s The Awkward Class: Political Sociology of Peasantry in a Developing Society: Russia 1910–1925 about the Russian Peasant Law. In this issue, we continue discussion of defense and military issues. Today’s puzzles of the Russian defense industrial complex brings back memories of the U.S. experience in dealing with the country’s defense industry problems in 1970–1980s, according to Vitaly Shlykov. Shlykov analyzes common problems of hi-tech industries and presents his view of challenges that Russia is facing in this respect. In our round table discussion we brought together several CEOs of Russian defense industry companies to talk about the most pressing issues they face. While the problem of non-proliferation of nuclear weapons has been given an adequate attention by the U.S. and Russia, another threat seems to remain underestimated, Valeriy Yarynych notes. According to Yarynych, lowering the level of alert of national strategic forces (de-alerting in American parlance) is not adequate if we want to protect the world from a nuclear weapon attack triggered by malicious terrorist interference into strategic Command, Control and Communication (C3) networks. This leaves the nuclear powers with the only alternative, which is building a joint system of so-called negative control in the C3, i. e. guaranteeing joint verification of generated commands and ability on each side to efficiently bar an unauthorized launch of missiles or provoking false attack alerts. In the Language Reform section, we publish articles by linguists Alexey Shmelev — about some legislators who think that they are to decide, how exactly all the peoples of the nation should talk and write, and Maxim Krongauz — about his inner refusal to comprehend how the language could be regulated by legal means. Drug dealers that have long been in the business wish they could start their life and career over again, if they had a chance. In the Country of OZ section, Sergey Kaluzhanov describes hard work of Russian petty hemp dealers. Bolsheviks were fond of altering the names of localities. These new names were supposed to reflect new ideology and conform to a political situation of the day. With times changing, the people’s attitudes to these matters also transform. Sergey Nikitin tells a story of modern Russian toponymy. |