Law, Judiciary and Media Freedom in the Russian Federation. Report of the Moscow Media Law and Policy Institute (2004)

Following the collapse of the Soviet Union, the Russian Federation adopted its Constitution on 12 December 1993. The Russian Federation consists of 89 territorial units (“subjects of the federation”), which include 21 republics, one autonomous region, 49 regions (“oblast”), six territories (“krai”), ten autonomous districts and the cities of Moscow and St. Petersburg, which have federal status.

The President is the head of state. He is elected by direct, popular vote for a term of four years. The President, with the consent of the lower house, State Duma, appoints the Prime Minister. The Prime Minister heads the government.

The legislative power is vested in the Federal Assembly, which comprises two chambers. The State Duma consists of 450 deputies, 50 per cent of whom are elected in single mandate constituencies, with the remaining half elected from party lists. The Federation Council (upper house) has 178 members. Under the previous system, half of them were the chief executives of the regional administrations (most of them had been appointed by the President), and the others were the 89 chairpersons of the regional legislatures. However, President Putin successfully pushed for legislation that stripped the regional leaders of their seats in the Federation Council. Each region now sends two representatives to the Federation Council: one nominated by the governor and approved by the regional legislature, and the other elected from among candidates nominated by the Speaker of the regional legislature or one third of the deputies.

The Duma was newly elected on 7 December 2003. The pro-governmental party “United Russia” won 37,57 per cent of the vote.[1] Together with its single mandatory deputies and those who joined the “United Russia” parliament group the pro-governmental party have the “constitutional” majority – 306 seats. It means that this parliament group can approve or reject any bill without consultations with other political parties. Moreover the “United Russia” is able to change the Constitution without anyone’s assistance (the minimum of votes needed to change constitution is 300).

The Constitution provides the President with substantial powers. According to Article 80, the President is the guarantor of the Constitution and of human and civil rights. Article 84 of the Constitution enables the President to introduce draft laws in the Duma and Article 90 empowers the President to issue decrees and executive orders. The Federal Assembly cannot annul these decrees, it can only advise on them. The President may also veto legislation adopted by the Assembly. Article 85 gives the President the authority to suspend acts by organs of the executive, pending the resolution of the issue in court, if such acts contravene the Constitution of the Russian Federation and federal laws, the international obligations of the Russian Federation, or if they violate human and civil rights and liberties.

The presidential elections were held on 14 March 2004. President Vladimir Putin competed with five other candidates and was re-elected with 71.31 per cent of the vote. The candidate from Communist Party of the Russian Federation, Nikolai Kharitonov came in second place with only 13.69 per cent of the vote.[2]

The Organisation for Security and Cooperation in Europe’s (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) published a preliminary statement on their election observation. This report noted that “Presidential election was generally well administered. The Central Election Commission (CEC) demonstrated professionalism in the technical preparations for the election. However, the election process overall did not adequately reflect principles necessary for a healthy democratic election process: essential elements of the OSCE commitments and Council of Europe standards for democratic elections, such as a vibrant political discourse and meaningful pluralism, were lacking. The election process failed to meet important commitments concerning treatment by the state-controlled media on a non-discriminatory basis, and secrecy of the ballot”.[3]

Vladimir Putin was formally inaugurated as the new Russian President on 7 May 2004. After his inauguration Putin re-nominated Mikhail Fradkov as Prime Minister on 7 May 2004 (on 5 March 2004 Fradkov was first appointed the Prime Minister). The Duma confirmed this nomination on 12 May 2004.

During his first term of office Putin began to diminish the power of the elected regional governors in Russia’s 89 constituent regions and republics. On 13 May 2000 he issued a decree that formed seven federal districts which largely correspond to Russia’s military districts. These districts are the Central, Northwest, North Caucasus, Volga, Ural, Siberian and the Far Eastern Federal district. Putin renamed the North Caucasus federal district by a decree on 23 June 2000 as Southern federal district because it included regions not officially part of the North Caucasus. These districts are headed by presidential envoys who supervise the compliance of the local regions with Russian federal legislation. They are funded by Moscow, so as to prevent any possibility of the regional governors to impede their work. This new system changed the previous system under which there was one presidential representative in each of the 89 constituent regions beside the more powerful elected regional governors. The seven presidential envoys include only two civilians and senior officers from the military or the security services.

President Putin also pushed through further legislation that curtailed the power of the regional governors. These bills extended the president’s power to remove incompetent governors, and the governor’s ex officio right to seats in the Federation Council was abolished. On 1 September 2000 President Putin issued a decree which formed the State Council of the Russian Federation. This body consists of the leaders of the 89 subjects of the Russian Federation. The State Council has only consultative power and the participation is voluntary. It advises the President mainly on matters regarding the central administration and the regions.

The new Russian president, Vladimir Putin, is not only a different type of politician than Yeltsin. He also works in a different climate. The latter influences his policies, including those regarding media regulation.

To begin with, after the December, 1999 election to the State Duma there was no need for the president to fight the parliament. The latter is the least oppositional to the Kremlin in the post-Soviet history of Russia. This means that there is no need to prove — with favours — to the press and the public who is the best friend of freedom of speech and freedom of press. Step by step the economic privileges the media enjoyed are being taken away by both branches of power. The best example of this was seen during discussion of the new tax code in May and June, 2000.

Increased oil prices have allowed Russia to be less dependent on money from the West. This has resulted in less political dependence on what the world thinks of Russia. Restrictions on the media imposed during attempts to cover conflicts and catastrophes, the most visible example of which was the case of reporter Andrei Babitsky, tend to prove this point.

There is less dependence of the Kremlin on the so-called oligarchs. Financial and business leaders, influential in the corridors of Yeltsin administration, have been a target of attacks from the Kremlin. Both Boris Berezovsky and Vladimir Gusinsky have become more cautious in pursuing their agendas through the mass media that they control. They came under direct criticism as manipulators of public opinion and masterminds behind attempts to start political crisis in the public speeches of the president.[4] Other oligarchs play a more subtle role in forming the political and legal basis of the nation. That results in their abilities to wrangle the hands of the Duma deputies and governmental officials in pushing legislation in their interests.

Government now plays a greater role in running media affairs. Drafting changes to the statute On the Mass Media, rules for registering Internet publications and stations that broadcast via computer networks have become one of its preoccupations. The government stepped up the flow of official warnings to the media outlets. Some of the warnings were issued for taking and printing interviews with Chechen rebels who the government believes are terrorists, although there is no firm legal base for the ministry’s actions in such situations.

Last but not least is the fact that Vladimir Putin has no heritage of ushering press freedoms in Russia. He played no role in drafting the Constitution and feels less responsibility to serve as a guarantor of the current rights of the media. Though he pays respect to these rights, that issue is typically down in the list of focal points of the president’s statements.

What is left is the desire of the president and the government to secure and promote their interests, naturally presented as national interests via the mass media. How that is to be done is still an open question. What comes from the top is a combination of pressure, typically rough and clumsy, and manipulation through the use of election campaign techniques in a post-election period.

In the economic field there is a desire to back off from the general and uniform support of the mass media. The process is taking the form of gradual, — so as not to agitate the press, — introduction of amendments to the 1995 statutes on economic support to the media under the slogan of saving budgetary funds and putting all subjects of business activity under similar conditions of taxation and tariffs. There is an increasing number of checks by the tax authorities of the logbooks of the media outlets. The overall goal seems to be decreasing the strength of the press, as well as finding out the sources of financial stability of the numerous publications and stations. The government is not ready to go too far in these directions, because it would make the press hostile and lash back at the Kremlin. An example that this would be a serious threat comes from attempts in the late 1990s to introduce legislation that would make public relations firms transparent. That attempt failed due to consistent and energetic criticism in the media inspired by the PR companies themselves. Making economic relations within the media business transparent is a challenge that the government is not ready to take, yet.

In the sphere of ideology, the Kremlin returned to the idea of making up a doctrine that would provide an explanation and guidelines for national (state) interests in informational policy. On June 23, 2000 the Security Council of the Russian Federation adopted the Doctrine of Informational Security, signed into effect by President Putin on September 9 of the same year.[5] Although the document covers everything from the development of the national telecommunications market to questions of intellectual property, it is united by a single idea: the need to increase governmental control over the flow of information by establishing a legal basis for such control. While nominally committed to freedom of the press and the prohibition of censorship, the document includes language which appears to subvert these general principles. According to the doctrine, individual Russian citizens currently face a number of threats from the media including “use of the mass media for restriction of the human right for the freedom of thought,” “the propaganda of mass culture based on a cult of violence and values in violation of norms accepted by Russian society,” and “the misuse of freedom of information” by the media. Russians, the document continues, face even greater threats from abroad, including “the activity of foreign states, international terrorist and other criminal entities, organisations, and groups directed at infringement of the interests of the Russian Federation in the information sphere, reduction of state influence on the life of society, and diminishing economic ability of the state to protect the lawful interests of citizens, society, and state in the informational sphere,” and even “growing dependence of the spiritual, political, and economic life of the country on foreign information structures.” Though the doctrine has no legal power, it points to the concerns of the Kremlin and possible developments of state policy in the information sphere.[6]

In the political field the Kremlin is harassing its most stubborn opponents among the media owners. The campaign started in 2000 and 2001, when there were raids of law-enforcement bodies at the offices of the Most-Media holding company, with the aim to debase hostile broadcasters. Similar motives were behind an abrupt decision of the Ministry of the Press in 2000 to offer the license used by TV-Tsentr in Moscow for an open competition. TV-Tsentr, a TV company established by the mayor of Moscow, was used to promote his interests, which in 1999 went in the direction opposite to that of Kremlin. In both cases a compromise seemed to be found under which the hostile media outlets subdued their criticism of the Kremlin.

Although Russia became a member of the Council of Europe in 1996 and ratified the European Convention on Human Rights in 1998, it does not mean – at least for now – that legislation of the council has any impact on mass communication regulation in the country. The decisions of the European Court of Human Rights are insignificant for the Russian judiciary. All this takes place despite the fact that the Constitution sets the precedence of the international treaties ratified by the Russian Federation over the national law.[7]

The Constitution itself was adopted by national referendum on December 12, 1993. Article 29 states that “everyone has the right to freely seek, obtain, transmit, produce and disseminate information by any legal method.”

The Statute On the Mass Media was adopted by the legislature of the Russian Federation on December 27, 1991 and went into force on February 8, 1992.

It reinforces the inadmissibility of censorship (Art.3) and includes basic provisions on freedom of information as the activity to seek, obtain, produce, and disseminate information; and on the possibilities to found, own, use, and manage media as well as to prepare, acquire, and operate technical devices required for the functioning of media (Art.1). Furthermore, it allows private ownership of the media outlets and prohibits ownership (founding) of mass media by foreign citizens — but not by foreign companies (Art.7).

Article 18 of the statute states that founders of media outlets shall not interfere in editorial practice. An exception applies if the agreement, which the founder and the editorial staff shall conclude to regulate their relation, expressly allows interference for the case in question.

In today's practice, however, (unlike at the time of the statute’s adoption) founders are also major sponsors of the print media, which leads to violations of this provision. In some cases, the editor-in-chief, the founder (co-founder), and the main shareholder is the same person.[8] In other cases, the financial dependence of media outlets on their sponsor turns editorial independence into a distant goal. Finally, state bodies actively interfere in the activity of the mass media that they found or co-found.

Since the adoption of the statute by the Supreme Soviet of the Russian Federation about thirty statutes and dozens of decrees have been put into force in Russia that affect the mass media.[9] Below is a rather bare enumeration of the applicable federal statutes.[10]

The Criminal Code of the Russian Federation, which came into force on January 1, 1997 and replaced the previous Criminal Code of 1962, defines slander as “dissemination of false information which defames other persons” (Article 129). The Code introduces for the first time into Russian law criminal liability for offences related to the audiovisual sector and new media. Article 146 of the Code (as amended in December 2003) stipulates that if an abuse of copyright or neighbouring rights, as well as plagiarism, inflict substantial damages, violators are subject to either fines up to 500 thousand rubles (in June, 2004 that makes approximately USD 17,240), and a deprivation of freedom up to five years.

Article 151 of the 1995 Civil Code and Article 43 of the Statute on the Mass Media lay the responsibility for the correctness of the information with the defendant (i.e., the journalist or the editors of the media outlet). This has created problems for many publications and broadcasters, who have to prove the accuracy of the allegations in order to avoid liability.

The Statute on State Secrets was adopted by the parliament on July 21, 1993. The statute defines a state secret as "information protected by the state in the area of defence, foreign policy, the economy, intelligence, counter-intelligence and the activity of operational-criminal investigations, the dissemination of which can damage the security of the Russian Federation.” It makes the disclosure of state secrets subject to penalties.

The 1994 Federal Statute on the Coverage of the Activities of State Agencies in the State Media is of high importance due to the fact that a major slice of the mass media in Russia belongs to the state bodies of different levels. The statute stipulates a number of state functions that the relevant state media must broadcast. They include appeals and statements made by the President of the Russian Federation, the Council of the Federation, the State Duma, and the government; opening of the first official sessions of the houses of the parliament and the new government; and the inauguration of the president.

The new Federal Statute on Communication entered into force on January 1, 2004. The statute establishes the legal basis for activities conducted in the area of communications, confers upon the organs of state power the authority to regulate such activities, and determines the rights and obligations of physical as well as legal entities participating in, or availing themselves of, the services of communication. It regulates the procedures for broadcasting stations to obtain a license to transmit their signals.

The Federal Statute on Information, Informatization, and Protection of Information was adopted by the State Duma on January 25, 1995 and came into force on February 20 the same year. The statute was drafted by the just-created Committee on the Policy of Informatization at the office of the President of the Russian Federation (or Roskominform), the principal governmental body that dealt with the challenges of the information society and information technologies. The statute defines many relevant categories and tasks connected with information. It deals mainly with governmental rights on information, but also has provisions for access to data and information.

The Federal Statute on Advertising was adopted by the State Duma on June 14, 1995 and came into force in July, 1995. The statute defines advertising and legal subjects in this field and places emphasis on terms such as "authenticity," "conscientiousness," and "decency" in advertising. It determines the peculiarities of various forms of advertising and suggests instruments for the governmental and public control of advertising. The statute introduced an overall ban on commercials for liquor and tobacco products from January 1, 1996.

The Federal Statute on the Economic Support of District (Municipal) Newspapers was adopted by the State Duma on November 24, 1995. The statute provides subsidies to the newspapers, published by the self-government bodies, recommended by public associations on the condition of a business plan that can be supported by the federal budget. Such publications are included in the Federal Register and can get donations to cover part of the expenses on printing, newsprint, and delivery by mail. The statute expires by 2005.

The Federal Statute on Participation in International Exchange of Information adopted by the State Duma on June 5, 1996 and signed by the President of Russia on July 4, 1996 is the basic statute that regulates issues of international exchange of information, including mass information. The statute aims to secure effective participation and a strong position for Russia in the international information infrastructure. It lists as responsibilities of the government to provide the subjects of the Federation with information from abroad, to update and protect information resources (data banks, archives, etc.), introduce modern technologies, and facilitate exchange of information across national borders. According to the statute, export of mass information documented in material and identifiable form from the Russian Federation shall not be limited. The statute confers upon several governmental institutions specific rights to control different aspects of international exchange of information under the overall supervision of the Committee on Informatization Policy at the office of the President of the Russian Federation. The statute introduces licensing of international information exchange activities in the two cases where state information resources are exported from Russia and where the state pays for the information imported into Russia to supply national data banks.

On May 22, 2002 the State Duma adopted the Federal Statute on Basic Guarantees of the Electoral Rights and the Right to Participate in Referendum of Citizens of the Russian Federation. The concept of election canvassing is defined as the activity of the citizens of the Russian Federation, candidates, and public associations for the purpose of making voters participate in balloting for or against a candidate. The statute regulates canvassing during election and referendum campaigns. It guarantees to all registered candidates, electoral associations, and electoral blocks equal rights of access to the mass media in the form and manner that they independently determine. The statute establishes uniform time limits for the campaigning in the mass media: it shall start 30 days and end 24 hours before the election day. Within five days before the election day and on that day itself no public opinion polls and forecasts concerning the election results, or any other research related to the election or referendum’s possible outcome, shall be released by the mass media. The statute sets special rules for the mass media established by the government (state) or municipal bodies, all state-subsidized media, as well as all media that enjoy benefits or tax relief from the state that are not enjoyed by other mass media. Such federal broadcasting companies make available to all registered candidates and parties at least one hour of free airtime on weekdays during prime-time hours. Respective local stations shall provide 30 minutes of free airtime each workday. All other mass media have the right to participate in campaigning, but shall charge the candidates on uniform terms. In cases of both free and paid airtime every candidate and party shall have the right to obtain an equal share of the time reserved for political campaigning.

Russia has established several bodies to protect human rights. Although these bodies are weak and lack full independence, they have been increasing their activity.

The Office of the Ombudsman may initiate civil and criminal action, ask the Duma to investigate violations of human rights and send reports to the President and the Prime Minister. Human Rights Ombudsman Vladimir Lukin, formerly deputy Chairman of the Russian Democratic Party “Yabloko”, was nominated by President Putin and appointed by the State Duma on 13 February 2004.

The Federal Constitutional Law “On Ombudsman in the Russian Federation” provides for the right of the Russian regions to establish the office of the regional ombudsman. Such offices were established in 14 constituent parts of the Russian Federation. In six regions the office of ombudsman for the rights of children was established.[11]

The Presidential Human Rights Commission investigates complaints and promotes human rights education. This Commission has not played a vital role and only receives limited financial means from the government.

The Russian Federation assumed the membership of the former USSR in the United Nations bodies on 24 December 1991. The Russian Federation has ratified the six main international treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The Russian Federation became a member of the Council of Europe on 28 February 1996. On 5 May 1998 Russia ratified the European Convention on Human Rights and recognised the right of individual petition to the European Court of Human Rights.[12]

The judiciary of the Russian Federation is governed by Chapter Seven of the Constitution of the Russian Federation. Article 120 of the Russian Constitution provides that judges shall be independent and subordinate to the Constitution and the federal law only. However, in reality the Russian judiciary is still subject to executive, military and private pressure and corruption. In addition, one of the main concerns is that so far the judges themselves have failed to understand the concept of judicial independence

The judicial system of the Russian Federation consists of the Constitutional Court of the Russian Federation; constitutional (statutory) courts of the republics and other entities of the Russian Federation; and a four-tiered system of courts of general jurisdiction, which include a Supreme Court, lower Regional (oblastniye) and City Courts, District (rayonniye) and Municipal Courts and justices of the peace. The latter are not federal, but regional judges, the matters of their appointment and organisation of functioning are to be regulated by regional authorities. There are also arbitration courts to consider disputes between business entities and to decide on economic disputes brought against the government. Military courts are organised into a special branch of the judiciary, regulated by a special statute. Their jurisdiction may extend to certain civil cases, a feature for which Russia was criticised in 1995 by the United Nations Human Rights Committee.

The Constitutional Court, which consists of 19 judges nominated by the President and appointed by the Federal Council, reviews the constitutionality of the law applied in a specific case in accordance with procedures established by federal law. The 1993 Constitution empowers the Constitutional Court to arbitrate disputes between the executive and legislative branches and between Moscow and the regional and local government. The Court is also authorised to rule on violations of constitutional rights, to examine appeals from various bodies and to participate in impeachment proceedings against the President. The July 1994 Law on the Constitutional Court prohibits the court from examining cases on its own initiative and limits the scope of the issues the court may hear. The Constitutional Court has assumed an active role in the judicial system since it was re-established in early 1995 following its suspension by President Yeltsin on 5 October 1993.

On 21 February 2003 Valeriy Zorkin was elected by judges of the Constitutional Court the Chairman of the Court. In the very beginning of functioning of the Court Zorkin was its first Chairman (he held the office from 1 November 1991 till 5 October 1993).

The Supreme Court is the highest judicial body on civil, criminal and other matters heard by general jurisdiction courts, and is responsible for judicial supervision over the activity of these courts. The Supreme Arbitration Court is the highest judicial body resolving economic disputes and other cases considered by arbitration courts. It also carries out judicial supervision over their activities in line with federal legal procedures. The Supreme Court of the Russian Federation has prepared a draft bill on Administrative Courts. The bill proposes the establishment of 21 such courts, adequately resourced and with well paid specialised judges to deal with appeals and complaints by citizens against unlawful actions of government officials; normative acts by ministries and departments; Presidential decrees; Government decisions; acts promulgated by the Chambers of Parliament; and laws of the subjects of the Russian Federation. Furthermore the administrative courts are to consider cases on violations of electoral and some tax laws and disputes between bodies of state power.[13]

Article 83 and Article 128 of the Constitution provide that judges of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation are appointed by the Federation Council following nomination by the President of the Russian Federation. Judges of other federal courts are appointed by the President of the Russian Federation in accordance with procedures established by federal law. Justices of the peace are either appointed by legislative bodies of the Russian region or elected by people of judicial constituency.

According to Article 119 of the Constitution a judge must be at least 25 years of age, must have attained a higher education in law and must have at least five years experience in the legal profession. The Law on the Status of Judges requires a federal judge office candidate to take a qualifying examination administered by the Examination Commission, which is composed of executive appointees who are approved by the Qualifying Collegium of Judges. The Qualifying Collegium is charged with reviewing applications of candidates for posts in federal courts. If the Collegium approves a candidate, the President reviews the application for final approval or rejection. The President thus has the power to veto candidates selected by the Qualifying Collegium.

Judges of the Supreme Court are required to have ten years of experience and are selected directly by the President of the Russian Federation. The Federation Council then confirms the nomination. Courts of first instance in civil and criminal matters consist of either one or three professional judges.

According to the Federal Statute “On Bodies of Judicial Community in the Russian Federation” of 14 March 2002 the qualifying collegia are in charge of the discipline, independence and supervision of the judiciary. The qualifying collegia are composed of judges elected by the Congresses of Judges at the district, regional and federal levels.

The Constitution establishes that a judge may not have his or her powers terminated or suspended except under procedures and on grounds established by federal law. Articles 13 and 14 of the Law on the Status of Judges, establish the conditions for the suspension of a judge, as well as the grounds for removal. A judge may be suspended, inter alia, for involvement in criminal activity. A judge may be removed from office for undertaking activities incompatible with his post or for medical reasons. The decision of suspension or removal may be appealed.

President Putin himself acknowledged that the Russian judiciary is in dire need of reform. In his second state of the union address to Parliament on 3 April 2001, he referred to the judiciary as a “political problem” because it violates the rights and interests of Russia’s citizens. He recognised that for many people who are seeking to restore their rights in law, the courts have not been quick, fair, and impartial.[14]

The institute of the justices of the peace was re-established in Russia in 1998 when the Federal Statute “On Justices of the Peace” was adopted. For two years the law was not enforceable because of lack of the financing. Only in 2000 the system started functioning. During the year about some 1,000 justices of the peace were appointed in 33 regions throughout the country. According to the Federal Statute “On Total Amount of Justices of the Peace and Judicial Districts in the Russian Federation” of 29 December 1999 (as amended on 12 February 2001, 9 July 2002, 27 May 2003 and 17 March 2004) there shall be approximately 6200 justices of the peace in Russia. Till then cases that are within jurisdiction of justices will be considered by district or municipal courts. Justices of the peace handle family law and criminal cases where the maximum sentence is two years.

On 22 November 2001 the new Code of Criminal Procedure was adopted by the State Duma and on 18 December 2001 it was signed by President Putin. The Code was amended repeatedly in 2002, 2003 and 2004. About 500 Articles have been changed in the course of three years. Moreover, the Constitutional Court of the Russian Federation in the Decision of 8 December 2003 found unconstitutional part 3 of Article 237 and part 9 of Article 246 of the Code. The first rule prohibited prosecutor to carry out investigative measures if a court returns the case to this prosecutor. The second one deprived victims of the right to appeal against a court’s decision to close the case when prosecutor refuses from conviction.

The most important goals of the new Code are further development of adversary principle of court proceedings, reduction of terms of criminal procedure and expansion of court’s jurisdiction in the sphere of ensuring of human rights. For the first time in the history of Russian procedural law, the constitutional principle of presumption of innocence was provided for by the new Code (Article 14). The most substantial innovation of the Code is the review of powers of prosecution and court.

Courts have acquired a new importance under the new Code. Since July 2002 courts must review the detention of all suspects within 48 hours of their arrest, and they obligated to free them if they find no lawful and essential ground for keeping them in custody. During the new Code’s first three months, courts released 3000 suspects – 1000 more than for the whole of 2001.[15] Orders for custody, arrest of property, control of telephone conversations or correspondence and for search in personal habitation are to be granted only by judges (hitherto such orders were granted by prosecutors).

Courts have only arbitrary functions in the course of court proceedings. The announcement of conclusion to indict is the duty of state prosecutor, according to the new Code. Parties of the process but not court have the right to determine the order of analysis of evidence. Court is allowed to examine witnesses only after the latter are examined by advocate and prosecutor. The Code abolishes the authority of the courts to return a case for additional investigation. This provision seriously limits the terms of investigation and consideration of cases.

Participation of a prosecutor is compulsory for all cases except cases of private accusation. The rejection of prosecution to support accusation automatically entails rehabilitation of the accused. Prosecutors are not authorized to supervise over legality of court decisions anymore.

An advocate shall be allowed to represent a suspect from the moment of virtual arrest. Participation of an advocate is compulsory for all cases with the exception of voluntary rejection of a defendant. The Code guarantees confidentiality of meeting of an advocate and a defendant. According to the Article 75 of the Code testimony of an accused person received in the course of preliminary investigation will not be considered by court as admissible evidence if this testimony was received in the absence of an advocate.

Witnesses are allowed to resort to the help of an advocate in the course of examination. The privilege of witnesses provided for by the Article 56 of the Code.

The new Code gives defendants the right to opt for a jury trial. From 1 January 2004 in all but one of the 89 regions jury trials are functioning. A jury trial should be available in Chechnya from 1 January 2007.

On 14 November 2002 the new Code of Civil Procedure was signed by the President of the Russian Federation. The Code entered into legal force on 1 February 2003.

The Code sets forth goals and principles of civil procedure in the Russian Federation. The civil courts (courts of general jurisdiction) mainly have jurisdiction over disputes between individuals, companies (both Russian and foreign), federal and local state authorities, which arise out of civil, family, inheritance, labour, housing, land, ecology, and certain other legal relationships. (All business and entrepreneurial activity related disputes should be filed with and reviewed by arbitration courts in accordance with the Arbitration Procedure Code – see below).

The Code introduces, among other things, changes to the procedures covering such matters as the grounds on which cases can be reviewed or appealed, the burden of proof, the rights and obligations of witnesses, and the conduct of forensic examinations. It also defines categories of cases that are subject to review by justices of the peace, military courts and other specialised courts. The Code limits the number of circumstances in which a prosecutor may interfere in the proceedings to those cases in which issues of interests of defence of rights, freedoms and legal interests of third parties, and interests of the Russian Federation, constituent and municipal entities are involved.

According to the Code, the civil courts are in charge of recognition and enforcement of foreign court decisions and arbitrate awards, other than those related to business activities of the parties. Also, the Code sets forth the procedure for contesting arbitrate awards rendered in Russia and contains an exhaustive list of grounds based on which such awards can be cancelled.

According to the Federal Statute “On Enactment of the Civil Procedure Code,” lawsuits filed but not reviewed before 1 February 2003, must be reviewed in accordance with the new Code.

The new Russian Federation Arbitration Procedure Code (the Code) came into effect on 1 September 2002 - containing a large number of new provisions.

The Code refers to new classes of actions for the jurisdiction of arbitration courts by setting forth the procedure of their consideration. Thus, the background for the so-called optional jurisdiction that existed before is no longer valid. This is the result of respective provisions contained both in the Civil Procedural Code of 1964 - regulating the judicial procedure in courts of general jurisdiction – as well as the RF Arbitration Procedure Code of 1995 (the “1995 RF APC”).

Another significant novelty of the Code is the institution of administrative procedure under which arbitration courts will have to consider cases. These cases have to arise from administrative and other public relations (Art. 29). The rules are provided in Section III of the new Code.

An important improvement of the Code is Art. 33. This article deals with the special jurisdiction of arbitration courts, i.e. certain types of cases are considered the exclusive jurisdiction of arbitration courts. These are the cases arising from: insolvency; disputes on foundation, reorganisation and liquidation of organisations; disputes on refusal in or evasion of state registration of legal entities and individual entrepreneurs; disputes between a shareholder and a joint-stock company; disputes between members of other business partnerships and companies regarding their activities, apart from employment-related disputes; and protection of business reputation.

Also, the rules regarding the burden of proof have significantly been changed. The Code stipulates that each participant in court proceedings should not only prove the facts and circumstances, but also disclose the evidence supporting his position to other participants in the case prior to court hearings, unless otherwise provided by the Code. Violation of this rule renders such participants unable to refer in hearings to the evidence that has not been provided to other participants beforehand (Art. 65).

Another novelty of the Code is Art. 70. It follows from this article that circumstances acknowledged by parties as a result of their respective agreement are accepted by an arbitration court as facts that do not require any further proof (non-evidence facts). Circumstances that have been acknowledged by parties and are duly certified are not subject to review during further proceedings in the case.

The Code has broadened the provisions relating to pretrial precaution or security measures often undertaken by arbitration courts.

For instance, Art. 93 requires that a motion for pretrial security has to be considered within a day after the motion was delivered to the court. Furthermore, the Code provides for a possibility for such precautions to be undertaken not only with respect to a lodged lawsuit but also with respect to the claimant's economic interests prior to the formal filing of their claim (Art. 90.1).

In accordance with Art. 90.3, pretrial precautions may be ordered on the basis of a motion filed by a party to arbitration tribunal proceedings.

The Code has introduced the notion of counter securing (Art. 94) that, if arranged, necessitate that a motion for pretrial security be granted (Art. 93.4). The new Code determines the procedure of filing of such a motion and the requirements to form and value counter security. Preliminary pretrial security measures are undertaken by arbitration courts only if the claimants provide counter security. When imposing such security, the court determines the time by which the claimants should file their statement of claim.

Article 110.2 of the Code constitutes a further innovation. It requires that costs in relation to payment for counsel services incurred by a party in whose favour a judgement was delivered, must be compensated to a reasonable extent by the arbitration court at the expense of the losing party.

Unlike the 1995 RF APC, the Code provides that submission of a written reply to the statement of claim is the respondent’s duty and a right of other participants in the case (Art. 131). However, the Code does not specify any consequences should this duty be violated.

Furthermore, the preparation of a case for trial is carried out by a sole judge and should be finished by a preliminary hearing within two months from the day the claim was received.

Preliminary hearings are a new institution in Russian arbitration procedure law. They are held with notices sent to parties and other interested persons in accordance with Art. 136. After all the pre-trial issues have been considered and with regard to the opinion of parties and third parties to the case, the court determines whether the case is ready for trial.

The 1995 RF APC allowed for the possibility of delay in handing down a motivated judgment for a period of up to three days only in extraordinary and extremely complex cases. This Code permits arbitration courts to announce in their final hearings either the judgment in full or the resolution only. Drafting of the judgment in full may then be postponed for the term not exceeding five days. It is important to note that the day on which the judgment is handed down in full is considered the day of delivery (Art. 176.2).

It is for the first time that the Code incorporates rules regarding the procedure of considering petitions on disputing awards delivered in Russia by arbitration tribunals, as well as international commercial arbitration tribunals.

Arbitration tribunal's awards on disputes arising from civil relations sourced in business and other economic activities may be challenged by filing a petition for the reversal of an arbitration tribunal award in arbitration courts (Art. 230.2).

For the first time the Code includes provisions prescribing the procedure of acknowledgment and execution by arbitration courts of foreign courts' judgments, as well as foreign arbitration tribunal's awards delivered on disputes arising from economic activities (Art. 241).

The Code has changed the term for filing of cassation appeals. The 1995 APC had provided for a one-month term. Under the new Code, a cassation appeal may be filed within two months from the date of the appealed arbitration court judgment or resolution coming into force, unless otherwise provided by the Code.

Scope of review of a case by the cassation instance court is limited by arguments listed in the cassation appeal and reply to the appeal, unless otherwise stipulated by the Code. Notwithstanding the arguments contained in the cassation appeal, the cassation instance court checks the challenged act for compliance with procedural rules, violation of which constitutes a clear ground for the appealed judgment or resolution of arbitration courts of the first or the appellate instance to be remanded (Art. 286, 288.4).

The Code has introduced significant changes to provisions regulating the judicial review procedure. For instance, the right to submit a petition for judicial review to the RF Supreme Arbitration Court now belongs to participants in the case. A prosecutor may also address the Supreme Arbitration Court with a motion for judicial review in respect to cases listed in Art. 52 of the Code (Art. 292).

The Code deprived the RF Supreme Arbitration Court's chairman and deputies of their right to lodge a judicial review protest. A petition or a motion for judicial review of a court act may be filed with the RF Supreme Arbitration Court within three months from the date of the last judicial act delivered. This is the case, provided that all other existing possibilities for challenging this act have been exhausted (Art. 292.3).

Pursuant to the 1995 APC, the grounds for reversal or amendment of a judicial act within the judicial review procedure were illegal or inconsistence. The Code has further limited the scope of such grounds to the maximum possible extent. Currently, effective judicial acts of arbitration courts may be amended or repealed only if the presidium of the Supreme Arbitration Court questions the act's validity: violates uniformity in the interpretation and application of law by arbitration courts; interferes with the adoption of a lawful judgment in another case; or violates vested rights and interests of an indefinite number of individuals, or other public interests.

The Code has broadened the list of grounds for de novo review of judicial acts in light of new circumstances. The newly incorporated grounds for de novo review are as follows: acknowledgement of a transaction as invalid by an effective judicial act, where such transaction entailed the adoption of an illegal or inconsistent judicial act in the case (Art. 311.5); acknowledgement of a statute, which has been applied in the case, as not conforming with the RF Constitution by the RF Constitutional Court (Art. 311.6); violation, as established by the European Court of Human Rights, of the provisions of the Convention on the Protection of Human Rights and Basic Freedoms committed during consideration of a particular case by an arbitration court (Art. 311.7).

In sum, it should be noted that the enactment of the Code has been aiming at aligning the Russian judicial system with world standards. The Code creates further procedural guarantees and improves the position of parties to judicial processes. The latter have obtained broader opportunities for prompt and efficient protection of their rights and interest in court. The Code makes justice more available and expedient but it also promotes a higher quality, i.e. the validity, of judgements.

On 31 May 2002 the Federal Statute “On Advocacy and Bar in the Russian Federation” was enacted. The law sets aside “Provision on Bar in the Russian Soviet Federative Socialist Republic” of 20 November 1980. The new act changes organisation of advocacy, establishes new rights and duties of advocates, redeterminates relationships between the Bar and the State. The only invariable provision is the guarantee of advocate’s privilege and advocate’s secret.

According to the new law, advocates are granted some investigatory powers. An advocate has the right to inquire information concerning concrete case or defendant from the State bodies (and it is the duty of these bodies to grant such information), to examine witnesses by their consent, to enlist the services of experts etc. The most important power is the advocate’s right to collect materials that may be accepted as evidence by Russian courts. The extension of advocate’s powers is the stride on the way of realisation of principle of adversary process in both civil and criminal procedures.

According to the new law there are many ways to organise functioning of advocates. The law enables advocates to organise practice in the most preferable for themselves way. An advocate has the right either to practice alone (cabinet) or to participate in any forms of advocates associations (bureau, board, and consultation). However, it is compulsory for all advocates to be members of the Bar.

The statute establishes the duty of advocates to render legal assistance free of charge in the number of situations. Moreover, prosecutors, investigatory bodies and courts have the right to provide legal protection for an accused person in criminal procedure. The advocate’s services in such situation are not free of charge, but to be paid by the State.

One of the innovations of the new law is the duty of advocates to insure risk of their professional pecuniary liability. This provision will enter into force on 1 January 2007.

The statute includes arguable provision: according to Article 2 only advocates are authorised to represent the interest of organisations, governmental and self-governmental bodies in civil and administrative procedure. The only exception is representation interests of organisations by the lawyers – members of staff of this organisations. This norm virtually establishes monopoly of advocates to provide legal services. The attempt to contest this provision was rejected by the Constitutional Court of the Russian Federation in its Decision of 5 December 2003. The plaintiff – participant of a certain criminal process – asked if the provisions of the Code of Criminal Procedure prohibiting anybody else but advocates to represent the interests of a person in a court were unconstitutional. The analogous provisions of the Code of Arbitrary Procedure and the Statute “On Advocacy and Bar in the Russian Federation” were also argued. The Constitutional Court ruled that “the right of a victim to receive legal assistance cannot be invariably interrelated with the duty to take member’s of Bar legal advice”. The Court interpreted provisions of Code of Criminal Procedure as granting a person the right to choose between an advocate and another defender. At the same time the Court rejected to consider provisions of the Code of Arbitrary Procedure and the Statute “On Advocacy and Bar in the Russian Federation” on the ground that these acts do not intervene in plaintiff’s rights in the concrete case. That is why the answer to the question of accordance of provisions of the Statute on Bar to the Constitution is still not clear.

There are reports by professional associations at local and federal level that defence lawyers have been the target of police harassment, including beatings and arrest, throughout the country. Police were said to intimidate certain defence lawyers and simultaneously to cover up their own criminal activities. In respect of a number of cases, investigators denied lawyers access to their clients.

Prosecutors are extremely influential in the criminal procedure system and judges are said frequently to render convicting judgement when guilt is not 100 per cent proven, rather than face confrontation with a prosecutor. The police are allowed, according to the Article 100 of the new Code of the Criminal Procedure, to detain a person suspected for organised crime for up to 10 days without official charges. In case if a person is suspected for organised grave crime the police are allowed to detain such a person up to 30 days. Investigations often drag on for many months and suspects can be in pre-trial detention for longer then the official sentence they would receive if convicted immediately. Prosecutors can extend the period of criminal investigation to six months in complex cases and until 12 months in exceptional cases. In the most exceptional cases the period of investigation can be extended personally by Prosecutor General or his Deputies. The court system is overloaded and as a result suspects may be held in pre-trial detention even longer.

[1] Information from the official web site of the Central Election Commission of the Russian Federation - www.cikrf.ru

[2] www.cikrf.ru

[3] OSCE Preliminary Statement on the Presidential Election in the Russian Federation, 14 March 2004.

[4] “They have stolen money, they bought mass media, and they manipulate public opinion… They lie, they lie, they lie! Their logic is simple. They work on a huge audience and they do it to show… the political leadership that we need them, that we should be afraid of them, yield to them, and let them go on plundering the nation… That is the real aim of what they do,” said Vladimir Putin of the media moguls. See: Ekologiya i prava cheloveka (bulletin of ECO-HR), 156, September 2, 2000. Also quoted by The Moscow Times, September 2, 2000, p.V.

[5] Published in Rossiyskaya gazeta on September 29, 2000.

[6] See for a discussion of the doctrine “Russian Media Policy Likened to Soviet Era” by David Hoffman, The Washington Post, September 14, 2000; A24.

[7] Article 15 of the Constitution.

[8] Post-Soviet Media Law and Policy Newsletter, Issue 32, September 5, 1996, supplement, p. 7.

[9] For an explanation of such energetic law-making, see: Richter, Andrei “Media Regulation in Selected Countries of the Former Soviet Union. Media in Europe,” The Yearbook of the European Institute for the Media. 1998. Dusseldorf, 1998, p.153-154.

[10] For the texts of the relevant legislation in Russian and in English, see the web site of the Moscow Media Law and Policy Institute www.medialaw.ru

[11] Information from the official web site of the Russian Ombudsman - http://www.ombudsman.gov.ru

[12] Information from the official web site of the Council of Europe – www.coe.int

[13] www.supcourt.ru

[14] Article in International Herald Tribune from 4 April 2001 “Putin Signals Major Drive for New Round of Reforms.”

[15] Information from the web site of the Center for Defense Information - www.cdi.org.