¹ Steven Lee Myers, Russia turns away from the European “idea”, International Herald Tribune, 31.12.03, at 1.Google Scholar

² See generally Felix Philipp Ingold, Liebe zum Sonderweg – Die slawophile Utopie – Europa als Westprovinz Rußlands, Frankfurter Allgemeine Zeitung, 25 April 2001.Google Scholar

³ Denis Huber, Ein historisches Jahrzent, Der Europarat 1989-1999, Munich 2001, at 28ff. (Translation from the German by the authors.)Google Scholar

⁴ See, for example, ambivalent opinion of Mikhail Gorbachev, in a newspaper interview earlier this year, Arkady Ostrovsky, “Without freedom this country has no future”: Ex-president admires his successor's record -with reservations, Financial Times, 12 February 2004, at 3.Google Scholar

⁵ For example, Dmitri Trenin, Deputy Director of the Carnegie Moscow Center, speaks of Russian leaders viewing the West more and more, “as a source of resources for modernization and geopolitical challenges – not as a common home where Russia itself may find its proper place”. Myers, supra note 1.Google Scholar

⁶ The addition of material elements to the definition distinguishes ‘law’ (enactments of legislatures) from ‘Law’ (first principles for the regulation of human relations). A state that is governed by laws is beholden merely to positivist procedural requirements and may be unjust, whereas a state ruled by Law is subordinated to other normative standards not of its own creation.Google Scholar

⁷ See Robert Sharlet, Legal Transplants and Political Mutations: The Reception of Constitutional Law in Russia and the Newly Independent States, East European Constitutional Review 59, 62 (Fall 1998). Many foreign institutions and development organisations have participated in the transfer such as the European Union through the TACIS-Program, the World Bank, the UNHCR and the Council of Europe. Twenty-six agencies from the US government alone have concerned themselves with different areas of law. The Dutch, German, British and French governments as well as private foundations like the Rockefeller, Ford, MacArthur, Soros and Eurasia have also engaged in various law-related projects. Stephen Holmes, Can Foreign Aid Promote the Rule of Law?, East European Constitutional Review 68 (Fall 1999).Google Scholar

⁸ Among the Czar(ina)s, Peter the Great adapted Swedish law and administrative practice above all; Empress Elisabeth built on Belgian and Austrian models of law and state; and Catherine the Great imported large portions of Italian criminal law. In the Soviet regime's early years, Lenin led a process of legalisation that involved the reception of modern European law codes; in its last years, Gorbachev opened the Soviet system so that western legal ideas could flow in. Sharlet, supra note 7, at 63. Despite this positivist borrowing, the traditions of Russian law remained very different from those of common and civil law Europe. What we may be seeing in the attempt to establish the rule of law in contemporary Russia is history repeating itself. (See Section V below.)Google Scholar

⁹ Sharlet, supra note 7, at 64.Google Scholar

¹⁰ Art. 17(1) proclaims that in the Russian Federation human rights are recognized and guaranteed “in conformity with the generally recognized principles and norms of international law”.Google Scholar

¹¹ Ljuba Trautmann, Russland zwischen Diktatur und Demokratie 100 (1995).Google Scholar

¹² Gennady M. Danilenko, The new Russian Constitution and International Law, 88 Am J Int'l L 470 (1994).Google Scholar

¹³ Jeffrey Hsu, The Russian Judicial System and the Right to Due Process, WWS Task Force on “Human Rights in Eastern Europe“ 2 (2001).Google Scholar

¹⁴ See generally Alexander Trunk, Westeuropa – Osteuropa: Rechtsangleichung als Integrationsinstrument, Antrittsvorlesung an der Universität Kiel, 28 January 1999, available at http://www.unikiel.de/eastlaw/antrvor.htm.Google Scholar

¹⁵ See generally, Danilenko, supra note 12, at 458ff.Google Scholar

¹⁶ “From the very beginning […], the Soviets considered it imperative to grant a package of human rights; they only made sure, both through the invention of a spurious theory as well as through its legislative implementation, that Soviet new-style civil rights would in no way hamper the regime's complete freedom to act”. Ferdinand Feldbrugge, Human Rights in Russian Legal History, in, Human Rights in Russia and Eastern Europe 65f (Ferdinand Feldbrugge & William B. Simons eds., 2002).Google Scholar

¹⁷ The relevant paragraph provides “[t]he generally recognized principles and norms of international law and the international treaties of the Russian Federation shall constitute an integral part of its legal system. If an international treaty of the Russian Federation establishes other rules than those stipulated by the law, the rules of the international treaty shall apply”.Google Scholar

¹⁸ Accompanying this change in the status of international law in Russian municipal law was a general reform of the judicial system. The judicial reform enabled the Constitutional Court to become an important institution promoting the direct application of international law by introducing constitutional review of official acts and decisions. Analysis of its jurisprudence shows that the Court in practice invokes international law in almost all review cases concerning fundamental rights, especially as a means of interpretation of the applicable constitutional provisions. Where domestic human rights law has conflicted with the generally recognized principles and norms of international law, the latter has been typically accorded a higher status by the Court. Gennady M. Danilenko, Implementation of International Law in Russia and Other CIS States, 10 European Journal of International Law 61 (1999)Google Scholar

¹⁹ See also Tarja Langström, Transformation in Russia and International Law 424ff., 433ff. (2003).Google Scholar

²⁰ Russia's readiness to enter into such international commitments is affirmed in Art. 79 of the new Constitution.Google Scholar

²¹ The EU-Russia partnership agreement provides for the development of cooperation inter alia in the area of law. The Russian Federation has in this agreement even committed itself to render its legislation EU-compatible where possible. (The emphasis here is on business law broadly defined, where in the Council of Europe it is on criminal law.) EU-compatibility of Russian law offers prima facie proof that it corresponds to European rule-of-law standards. How far Russia fulfils this commitment depends, of course, on Moscow's political will.Google Scholar

²² Via the CIS the Russian Federation strives to maintain special relations with other USSR successor states. An essential element of these special relations are measures to approximate municipal laws. In contrast, efforts within the organisation to ensure successful transnational protection of human rights and economic rights look less likely to achieve their goal. The possibility of participation in the CIS having any significant impact on the domestic implementation of international law is accordingly to be doubted. Danilenko, supra note 18, at 68f.Google Scholar

²³ Trunk, supra note 14, at 1.Google Scholar

²⁴ Id.Google Scholar

²⁵ Rudolf Bernhardt et al., Report on the Conformity of the Legal Order of the Russian Federation with the Council of Europe Standards, 7 October 1994, AS/Bur/Russia (1994), reprinted in 15 Human Rights Law Journal 287 (1994). See also: “It would be unrealistic to assume that, where human rights are concerned, all is now well in a Russia that has proclaimed itself to be a democratic, law governed state and that has explicitly embraced the universal principles in the field of human rights and freedoms. The heritage of many centuries of autocracy, dictatorship and enforced orthodoxy and unity is a heavy burden which has a strong psychological impact on the Russian polity. Most of the defects of the present state of Russian democracy and of the system of government are connected with the inability or unwillingness to let go of the ‘winner-takes-all’ mentality”. Gordon B. Smith, The Struggle over the Procuracy, in Reforming Justice in Russia, 1864-1996 348 (Peter H. Solomon Jr ed., 1997).Google Scholar

²⁶ Put in terms of a broader geo-political context, Europe and the USA have so far chosen to treat post-Cold War Russia according to what a former US Ambassador to NATO called the German model, namely „promoting post-defeat inclusion and encouragement rather than punishment and isolation“. Robert Hunter, The west must now reassess its gamble on Russia, Financial Times, 19.04.04., at 13.Google Scholar

²⁷ Western governments and international organisations appear to be currently reconsidering their approach to relations with Russia: the so-called German model may no longer be exclusively applied. See, for example, a policy paper released earlier this year by the European Commission. The paper expressly criticized problems with democracy, human rights and press freedom in Russia and called for “discussing frankly Russian practices that run counter to universal and European values”. Dark skies to the east, Russia and the European Union, Economist, 21.02.04., at 27.Google Scholar

²⁸ See, for example, the comments of President Putin during a State-of-the-Nation speech this spring. Putin criticized civic groups advocating democracy and human rights in Russia for claiming to support the people's welfare but in fact serving other, dubious foreign and domestic interests for pay. The groups criticized fear that his comments will be used to justify future restrictions on their activities. Seth Mydans, Putin takes aim at outside forces: Speech shakes human rights groups, International Herald Tribune, 17.06.04., at 1.Google Scholar

²⁹ See, e.g., Steven Lee Myers, Russia curtails activities of Jehovah's Witnesses, International Herald Tribune, 17.06.04., IHT online. The Jehovah's Witnesses intend to appeal the ban of Moscow city authorities referred to in the article to the European Court of Human Rights. Remarked one long-standing Russian group member about the recent religious repression: “Nothing has changed since the fall of the Soviet Union”.Google Scholar

³⁰ The recent murder of a U.S. journalist, Paul Klebnikov, is only the latest in a series of attacks on reporters and editors working in Russia. According to a former media envoy for the Organization for Security and Cooperation in Europe, attacks are especially likely when a case of corruption or illegal privatization is being investigated. (Freimut Duve, quoted in Mark McDonald, Russia's alarming record, Montreal Gazette, 11.07.04., at A7. According to the chairman of the opposition Yabloko Party, the murder of Klebnikov “speaks to two things. First, the authorities in Russia do not wish to fulfill their obligation to protect [… citizens,] if their activities do not correspond with the interests of the ruling group. […] Secondly, criminal elements are directly involved in politics”. Grigory Yavlinsky, Letter to the Editor, International Herald Tribune, 17-18.07.04, at 5.Google Scholar

³¹ The Russian historian Igor Sutjagin was sentenced to fifteen years’ imprisonment, because he allegedly sold secret information to a foreign secret service. Sutjagin's lawyers argued that all the information that had been passed on came from publicly accessible sources; they are convinced that their client was tried due to his western contacts alone.Google Scholar

³² Various reforms reconstituting the Russian state (e.g. strengthening the executive at the expense of the legislative, limiting press freedom, curbing regional governors’ autonomy, enhancing the security services’ – siloviki's – influence) have raised serious questions as to President Putin's commitment to political pluralism. See, for example, the opinion of a former US ambassador for the former Soviet Union: democracy in Russia is being “subordinated […] to order, stability and bureaucratic authority”. Stephen Sestanovich, A Tale of Two Post-Soviet Presidents, Wall Street Journal Europe, 30.07.- 01.08.04, at A11.Google Scholar

³³ The prevailing opinion of informed international observers is that President Putin is using the judiciary in the Yukos-affair to selectively prosecute a political foe, Mikhail Khodorkovsky, and to gain (direct or indirect) control over the eponymous Russian energy giant. The affair represents in the words of one foreign newspaper, “a piece in a mosaic that shows an increasingly threatening picture of how the Russian ruler understands ideas like freedom and democracy”. Eröffnung des Prozesses gegen Chodorkowski in Moskau, Neue Züricher Zeitung, 17.06.04., p. 1; translation from the German by the authors. According to a former Russian economy minister, the lesson to be drawn is that the government is above the law: it can ruin anyone or any company. Yevgeny Yasin, The wilful destruction of Yukos tells us: be afraid, Financial Times, 29.07.04., at 13.Google Scholar

³⁴ Timothy Frye, The Two Faces of Russian Courts: Evidence from a Survey of Company Managers, East European Constitutional Review 125 (Winter / Spring 2002).Google Scholar

³⁵ Jeffrey Kahn, Russian Compliance with Articles Five and Six of the European Convention of Human Rights as a Barometer of Legal Reform and Human Rights in Russia, 35 University of Michigan Journal of Legal Reform 654 (2002).Google Scholar

³⁶ Boris Schumatsky, Die Vertikale der Macht: Angst – eine alte Herrschaftstechnik kehrt züruck, Neue Züricher Zeitung, 03.05.04., at 43.Google Scholar

³⁷ “Modern Russia has inherited its burdens of the past, both Imperial and Soviet. Many believe the Imperial pattern of autocracy, intolerance, russification, bureaucratism, backwardness, and the absence of a modern legal tradition, however much the Revolutions of 1917 may have been directed at these evils and abuses, contributed in the Soviet era to resistance to political pluralism, absence of religious freedom, disregard of the rule of law, a suspicion of legal rationalism, Stalinist arbitrariness, and a reluctance to subject the political system to legal intervention. The post-Soviet Russian legal order must come to terms with the entire Russian historical legacy”. William E. Butler, Russian Law 31 (1999).Google Scholar

³⁸ Trautmann, supra note 11, at 99ff.Google Scholar

³⁹ Use of the courts as a tool of government prosecution reached its apogee under Stalin's prosecutor-general, Andrei Vyshinky, the architect of the purge trials, who coined the phrase, “Give me the man and I'll find the crime”. Guy Chazan, Saga of Russian Judge Makes Case That State Still Looms Over Courts, Wall Street Journal Europe, 05.08.04, at 1.Google Scholar

⁴⁰ Richard Anderson, Review: Tom Bjorkman, Russia's Road to Deeper Democracy, International Journal, Canadian Institute of International Affairs, Winter 2003-2004, at 226.Google Scholar

⁴¹ Assen Ignatow, Die mühsame Entdeckung des Individuums, Wertewandel und Wertekonflikte in Russland, 1997, at 14. Ignatow describes ‘the law as too tight a corset for the broad Russian soul.'Google Scholar

⁴² Stephen Holmes, Introduction – Feature: Citizen and Law after Communism, East European Constitutional Review 70 (Winter / Spring 1998).Google Scholar

⁴³ See, for example, a Russian expert's characterization of the way in which the law functions: “It is not that Russian legislation is violated; rather it does not work. […] Russian laws exist, but they do not regulate the real relations of those subject to the law. […T]he real relations […] are established in a unique dimension that is parallel to the one at which formal legal regulation is only aimed”. Vladimir Pastukhov, Law under Administrative Pressure in Post-Soviet Russia, East European Constitutional Review 66 (Summer 2002).Google Scholar

⁴⁴ Opinion by the Committee on Legal Affairs and Human Rights on Russia's Application for Membership of the Council of Europe, Eur. Consult. Ass., 1996 Sess., Doc. 7463 (Jan. 18, 1996), reprinted in 17 Human Rights Law Journal 218-9 (1996).Google Scholar

⁴⁵ Kahn, Russian Compliance 641.Google Scholar

⁴⁶ Boris Zheleznow, professor of law and a member of the Russian Academy of Scientists, concludes: “I should say that we lawyers were […] apologists, freely or not freely, but we were apologists of all former laws and it was very difficult for lawyers to reconstruct themselves”. Jeffrey Kahn, Federalism, Democratization, and the Rule of Law in Russia 60 (2002). See also: “the Soviet lawyer whether he be a convinced Marxist-Leninist or not, of whatever disposition, his concepts of law, its origins, role, and purpose, has been affected by this [Marxist-Leninist] intellectual framework”. William E. Butler, Soviet Law 27 (2^nd ed. 1988).Google Scholar

⁴⁷ Smith, supra note 25, at 348; Bernhardt, supra note 25, at 287. See also: “there are so far no traditions of understanding of separation of powers understanding. Contemporary jurists and politicians, who grew up in the preceding totalitarian era, still haven't really internalized the idea that the positive principle of the separation of powers constitutes a guarantee against an overweening, threatening concentration of power in the hands of a given state authority”. And further: “The separation of powers is considered quasi as an obstacle to a productive combination and cooperation”. M. Baglai, Verfassungsgerichtsbarkeit und Gewaltenteilung in Russland, in Föderalismus und Verfassungsgerichtsbarkeit in Russland 13 (Johannes Ch. Traut ed.,1997). (Translation from the German by the authors)Google Scholar

⁴⁸ Official figures show that Russian judges still find defendants guilty in 99.2% of cases. Peter Baker, Not for TV: Tycoon's Trial In Russia Could Lull An Insomniac to Sleep, Wall Street Journal Europe, 20-22.08.04, at 1.Google Scholar

⁴⁹ It was only in 1996 with the passage of the Constitutional Law on the Judicial System that the traditional dependence of courts of general jurisdiction on the Ministry of Justice was officially ended. Until then, the Ministry provided them with logistical support and was charged with their oversight. Nonetheless, it is still the case, as the Organization for Economic Development and Cooperation recently reported, that “interference in judicial process by state institutions is […] a problem. The courts are often subservient to the executive, while the security services, prosecutors and the police remain highly politicized”. Chazan, supra note 39.Google Scholar

⁵⁰ A poll in 2003 indicated that twice as many Russians distrust their judges as trust them (56% vs. 28%). Id.Google Scholar

⁵¹ Frye, supra note 34, at 125. See in more detail also Peter Solomon Jr., Courts and Transition in Russia: the Challenge of Judicial Reform (2000).Google Scholar

⁵² See also Holmes, who argues that the general public's lack of confidence in and hestitation about resorting to the courts results in the absence of another pressure determinative of the courts’ ability to deliver justice, namely public oversight and where appropriate, censure. Stephen Holmes, Introduction -Feature: Reforming Russia's Courts, East European Constitutional Review 91 (Winter / Spring 2002).Google Scholar

⁵³ See generally Christoph Schmidt-Häuer, Russland in Aufruhr – Innenansichten aus einem rechtlosen Reich, 1993.Google Scholar

⁵⁴ Open Letter from Vladimir Putin to Russian Voters, 25 February 2000, available at: http://putin2000.ru/07/05.html. A poll by the independent Russian Research Institute for Socio-Political and Economic Problems in Moscow from 2000 indicated that the Russian people placed their hopes in an autocratic enforcement of law and order: over three-quarters of those polled agreed with the statement that „Russia needs an iron hand to bring order in the country“ (Quoted in: Alexander Tschepurenko, Die Akzeptanz von Demokratie und Marktwirtschaft, in:, Russland unter neuer Führung 213 (Hans-Hermann Hähmann / Hans-Henning Schröder Eds.2001)Google Scholar

⁵⁵ As regards rules concerning the application of international law by Russian courts, see Danilenko, supra note 18, at 56ff.Google Scholar

⁵⁶ Sharlet, supra note 7, at 63.Google Scholar

⁵⁷ “Law is not a kitchen appliance that we can unplug in the United States or Germany and simply plug in again in Russia”. (Holmes, supra note 7, at 71.Google Scholar

⁵⁸ Sharlet, supra note 7, at 63.Google Scholar

⁵⁹ Shawn S. Cullinane, Can the Constitutional Court of the Russian Federation Lead the Way to the Creation of a True Democratic Society in the New Russia in the 21^st Century?, 17 Touro Law Review 397 (2001). See also Alexander Trunk, Auf dem Wege zum Rechtsstaat?, Russland unter neuer Fürhung 272 (Hans-Hermann Höhmann & Hans-Henning Schröder eds., 2001). It should be noted that President Putin has since 2001 undertaken to raise judges’ salaries and to build new courthouses.Google Scholar

⁶⁰ Solomon, supra note 51, at 157.Google Scholar

⁶¹ The best qualified judges are moving to the private sector, leaving close to 5,000 vacancies on the bench. Chazan, supra note 39.Google Scholar

⁶² Hsu, supra note 13, at 8ff.Google Scholar

⁶³ John M. Burman, The Role of Clinical Legal Education in Developing the Rule of Law in Russia, 2 Wyoming Law Review 89 (2002); Picker, Jane M. & Picker, Sidney, Educating Russia's Future Lawyers – Any Role for the United States?, 33 Vanderbilt Journal of Transnational Law 17 (2000).Google Scholar

⁶⁴ Dmitri Rogozin, leader of the Motherland party and deputy parliamentary speaker, quoted in Myers, supra note 1.Google Scholar

⁶⁵ Hsu, for one, makes a series of recommendations at the end of his paper as to how judicial independence, legal competence as well as timeliness and access to courts could be enhanced in the Russian Federation. Hsu, supra note 13, at 22f.Google Scholar

⁶⁶ See more generally “[i]t is well-known […] the jurisprudence of the European Court of Human Rights exerts a strong influence on the attitude of domestic courts of the members of the Council of Europe”. Danilenko, supra note 18, at 66.Google Scholar

⁶⁷ See, for example, a former chairman of the Constitutional Court of the Russian Federation, Baglai, supra note 47, at 13ff.Google Scholar

⁶⁸ Art. 46(3) enshrines this right in the new Constitution: it provides that everyone is entitled in accordance with international treaties of the Russian Federation to submit petitions to international human rights bodies after exhausting domestic remedies. The Constitutional Court has held that this provision means that “decisions of inter-state organs may lead to the reconsideration of specific cases by the highest courts of the Russian Federation and, consequently, establish their competence with respect to the institution of new proceedings aimed at changing the previously rendered decisions, including decisions handed down by the highest domestic judicial instance”. Danilenko, supra note 18, at 68.Google Scholar

⁶⁹ The fate of high-profile cases appealed to Strasbourg will likely have a particularly great impact in these regards. The ECHR has agreed, for example, to examine the complaints of arbitrary detention and unlawful arrest of the Yukos’ defendants. Andrew Jack, Human rights court agrees to scrutinise Yukos probe, Financial Times, 22.03.04., at 5. Its independent evaluation of the Russian authorities’ legal procedure will likely do much to shape perceptions of justice in the particular case and of defendants’ ability to get a fair trial in Russia generally.Google Scholar

⁷⁰ The ECHR Registrar does not apparently consider the Constitutional Court to be an effective domestic remedy that must be exhausted before consideration in Strasbourg due to the discretionary nature of the Russian high court's judicial review of individual complaints. Kahn, supra note 35, at 686f.Google Scholar

⁷¹ According the Russian judge sitting on the ECHR, complaints have concerned pensions and the right to a fair trial in particular. Id., at 683.)Google Scholar

⁷² To date (31.08.04), twelve ECHR judgments concerning the Russian Federation have been released. See http://www.echr.coe.int.Google Scholar

⁷³ As an example, the case of Kalashnikov v. Russia, App. No. 47095/99 may be cited. Valerii Kalashnikov was arrested on embezzlement charges and spent nearly five years waiting for his case to be heard. The Court found inter alia that the conditions of detention, in particular the severely overcrowded and insanitary environment and its detrimental effect on the applicant's health and well-being, combined with the length of his detention in such conditions, amounted to degrading treatment (Art. 3 ECHR). The Government had argued that Kalashnikov's detention conditions did not differ from, or at least were no worse than, those of most detainees in Russia: overcrowding was a problem in pre-trial detention facilities generally. It also acknowledged that, for economic reasons, the conditions of detention in Russia were very unsatisfactory and fell below the requirements set for penitentiary establishments in other member Council States. The judgment raises naturally the question of implementation. Russia will not be able in the next few years to guarantee appropriate conditions of detention, and a flood of similar complaints is accordingly to be reckoned with. Likewise, Russia will hardly be able to settle the many other complaints alleging a failure to try within reasonable time other than case by case given its many judicial vacancies (see above).Google Scholar

⁷⁴ In considering the likelihood of adverse findings, the ECHR's doctrine of the margin of appreciation should not be overlooked. The Court does not always insist on uniform and rigid standards for compliance with Convention rights in all member states and has already shown the Russian Federation some leeway as regards the admissibility of claims of violations. Kahn, supra note 35.Google Scholar

⁷⁵ Janis notes that there is an additional obstacle to ensuring compliance in the case of Russia: the same political considerations that led the Council to accept the Russian Federation as a member may “make it difficult for Strasbourg to force the Russian government to comply with adverse findings.” Mark Janis, Russia and the ‘Legality’ of Strasbourg Law, 8(1) European Journal of International Law 98 (1997).Google Scholar

⁷⁶ It will also be interesting to see how Russia's membership influences the development of European human rights law and institutions. As regards the difficulties and dangers for the authority of the ECHR and the Council of Europe should Russia fail to obey its law and to comply with its decisions, see Janis, supra note 75, at 93ff.Google Scholar

⁷⁷ Danilenko, supra note 18, at 51. For a survey of international law in the domestic legal systems of other CIS states, see Id., at 59ff.Google Scholar

⁷⁸ Kahn, Russian Compliance, p. 641. Comparisons might be usefully drawn to the experience in this regard of contemporary Turkey. The government in Ankara has passed many democratic and human rights reforms in recent years with an eye to joining the EU. The new laws have yet to work their way down to the lower bureaucratic levels, however. Widespread violations (e.g. torture, restrictions on free expression, abuse of women) continue to occur. “Progress has undoubtedly been made, but concerns remain over the follow through of that progress”, said Peter Baehr, human rights expert and member of Dutch advisory body considering whether EU negotiations with Turkey should be begun. EU hopes are raised for Turkey, International Herald Tribune, 26.08.04, at 3.Google Scholar

⁷⁹ Sergei Sokolov, quoted in Myers, supra note 1.Google Scholar

⁸⁰ Sharlet, supra note 7, at 64.Google Scholar