The Legal Grounds for Judicial Law-Making in Russia

The present section consists of legal regulations which confer law-making powers upon Russian highest courts. Such powers are effectuated by way of:

• interpretation of the Russian Constitution and legislation in force;  
• adoption of precedential decisions which ensure the unity of judicial practice throughout the legal system;
• invalidation of certain provisions of federal laws and regulations;
• adoption of internal rules of courts.

This selection also includes the provisions on judicial dissents, whose existence testifies to judges’ having an opportunity to choose among several legitimate solutions to a dispute at hand.

The rules below are given in the version currently in force, unless it is clearly indicated otherwise.  The expressions 'arbitrazh court' and 'commercial court' shall always mean the same.

A short overview of the Russian court system may be found here. 

 

[reproduced from W. E. Butler, Russian Public Law (2d. ed.; London, Wildy, Simmonds & Hill, 2009)]

[Excerpts]

 

Article 118

1. Justice in the Russian Federation shall be effectuated only by a court.

2. Judicial power shall be effectuated by means of constitutional, civil, administrative, and criminal procedure.

3. The judicial system of the Russian Federation shall be established by the Constitution of the Russian Federation and by a federal constitutional law. The creation of extraordinary courts shall not be permitted.

 

Article 119

Citizens of the Russian Federation who have attained 25 years of age and have a higher legal education and work experience in the legal profession of not less than five years may be judges. Additional requirements for judges of courts of the Russian Federation may be established by a federal law.

 

Article 120

1. Judges shall be independent and subordinate only to the Constitution of the Russian Federation and to a federal law.

2. A court, having established when considering a case the failure of an act of a State or other agency to conform to a law shall adopt a decision in accordance with the law.

 

Article 121

1. Judges shall not be removable.

2. The powers of a judge may be terminated or suspended not other than in the procedure and on the grounds established by a federal law.

 

Article 122

1. Judges shall be inviolable.

2. A judge may not be brought to criminal responsibility other than in the procedure determined by a federal law.

 

Article 123

1. The examination of cases in all courts shall be open. The hearing of cases in closed session shall be permitted in the instances provided for by a federal law.

2. The examination of criminal cases in courts in absentia shall not be permitted except for instances provided for by a federal law.

3. Court procedure shall be effectuated on the basis of contentiousness and equality of the parties.

4. In the instances provided for by a federal law court procedure shall be effectuated with the participation of jurors.

 

Article 124

The financing of the courts shall be only from the federal budget and must ensure the full and independent effectuation of justice in accordance with a federal law.

 

Article 125

1. The Constitutional Court of the Russian Federation shall consist of 19 judges.

2. The Constitutional Court of the Russian Federation shall, at the requests of the President of the Russian Federation, Soviet of the Federation, State Duma, one-fifth of the members of the Soviet of the Federation or deputies of the State Duma, Government of the Russian Federation, Supreme Court of the Russian Federation and Supreme Arbitrazh Court of the Russian Federation, agencies of legislative and executive power of subjects of the Russian Federation, settle cases concerning the conformity to the Russian Constitution of:

(a) federal laws, normative acts of the President of the Russian Federation, Soviet of the Federation, State Duma, and Government of the Russian Federation;

(b) constitutions of the republics, charters, and also laws and other normative acts of subjects of the Russian Federation issued with regard to questions relegated to the jurisdiction of agencies of State power of the Russian Federation and the joint jurisdiction of agencies of State power of the Russian Federation and agencies of State power of subjects of the Russian Federation;

(c) treaties between agencies of State power of the Russian Federation and agencies of State power of subjects of the Russian Federation, and treaties between agencies of State power of subjects of the Russian Federation;

(d) international treaties of the Russian Federation which have not entered into legal force;

3. The Constitutional Court of the Russian Federation shall settle disputes concerning the competence:

(a) between federal agencies of State power;

(b) between agencies of State power of the Russian Federation and agencies of State power of subjects of the Russian Federation;

(c) between the highest State agencies of subjects of the Russian Federation.

4. The Constitutional Court of the Russian Federation shall verify the constitutionality of a law being applied or subject to application in a specific case in the procedure established by a federal law with regard to appeals against a violation of constitutional rights and freedoms of citizens and at the requests of courts.

5. The Constitutional Court of the Russian Federation shall at the requests of the President of the Russian Federation, Soviet of the Federation, State Duma, Government of the Russian Federation, and agencies of legislative power of subjects of the Russian Federation give an interpretation of the Constitution of the Russian Federation.

6. Acts or individual provisions thereof deemed to be unconstitutional shall lose force; international treaties of the Russian Federation which do not conform to the Constitution of the Russian Federation shall not be subject to introduction into operation and application.

7. The Constitutional Court of the Russian Federation at the request of the Soviet of the Federation shall give an opinion concerning the compliance with the established procedure of the putting forward of an accusation against the President of the Russian Federation of treason against the State or commission of another grave crime. (With an amendment effective from 6 August 2014)

 

Article 126

The Supreme Court of the Russian Federation shall be the highest judicial agency with regard to civil cases, the resolution of economic disputes, on criminal, administrative and other cases falling within the jurisdiction of the courts created in accordance with a federal constitutional law, effectuate in the procedural forms provided for by a federal law the judicial supervision over the activity of these courts, and give explanations regarding questions of judicial practice. (as amended....

 

The Supreme Arbitrazh Court of the Russian Federation shall be the highest judicial agency for the settlement of economic disputes and other cases to be considered by arbitrazh courts, effectuate judicial supervision over their activity in the procedural forms provided for by a federal law, and give explanations regarding questions of judicial practice. (Lost effect on 6 August 2014)

 

Article 128

1. Judges of the Constitutional Court of the Russian Federation, Supreme Court of the Russian Federation, and Supreme Arbitrazh Court of the Russian Federation shall be appointed by the Soviet of the Federation upon the recommendation of the President of the Russian Federation.

2. Judges of the other federal courts shall be appointed by the President of the Russian Federation in the procedure established by a federal law.

3. The powers, procedure for the formation, and activity of the Constitutional Court of the Russian Federation, Supreme Court of the Russian Federation, Supreme Arbitrazh Court of the Russian Federation, and other federal courts shall be established by a federal constitutional law. (With amendments effective from 6 August 2014 )

 

[reproduced from W. E. Butler, Russian Public Law (2d. ed.; London, Wildy, Simmonds & Hill, 2009)]

[Excerpts]

 

Decisions of the Constitutional Court of the Russian Federation shall be binding throughout the entire territory of the Russian Federation for all representative, executive, and judicial agencies of State power, agencies of local self-government, enterprises, institutions, organizations, officials, citizens, and associations thereof.

 

A judge of the Constitutional Court of the Russian Federation who does not agree with the decision of the Constitutional Court of the Russian Federation shall have the right to set out in writing his dissenting opinion. The dissenting opinion of a judge shall be attached to the materials of the case and shall be subject to publication in the Вестник Конституционного Суда Российской Федерации together with the decision of the Constitutional Court of the Russian Federation [as amended by Federal Constitutional Law of 15 December 2001].

  A judge of the Constitutional Court of the Russian Federation who voted for the decree adopted or the opinion relating to the substance of the question being considered by the Constitutional Court of the Russian Federation but remaining in a minority when voting with regard to some other question or with regard to the reasoning of the decision adopted shall have the right in writing to set out his opinion concerning disagreement with the majority of judges. In this event the written disagreement of the judge also shall be affixed to the materials of the case and shall be subject to publication in the Вестник Конституционного Суда Российской Федерации.

 

Decrees and opinions of the Constitutional Court of the Russian Federation shall be subject to immediate publication in official publications of agencies of State power of the Russian Federation and of subjects of the Russian Federation which are affected by the decision adopted. Decisions of the Constitutional Court of the Russian Federation shall be published also in the ВестникКонституционногоСудаРоссийскойФедерации, and, when necessary, in other publications.

 

A decision of the Constitutional Court of the Russian Federation shall be final, not subject to appeal and shall enter into force immediately after its proclamation.

  A decision of the Constitutional Court of the Russian Federation shall operate directly and shall not require confirmation by other agencies and officials. The legal force of a decree of the Constitutional Court of the Russian Federation concerning the deeming of an act to be  unconstitutional may not be overcome by the second adoption of the same act.

  Acts or individual provisions thereof deemed to be unconstitutional shall lose force; international treaties of the Russian Federation deemed not to conform to the Constitution of the Russian Federation shall not be subject to introduction into operation and application. Decisions of courts and other agencies based on acts deemed to be unconstitutional shall not be subject to execution and must be reviewed in the instances established by a Federal law.

  If by decision of the Constitutional Court of the Russian Federation a normative act is deemed not to correspond to the Constitution of the Russian Federation in full or in part or from the decision of the Constitutional Court of the Russian Federation the need arises to eliminate a gap in legal regulation, the State agency or official who adopted this normative act shall consider the question of the adoption of a new normative act which must, in particular, contain provisions concerning the repeal of the normative act deemed not to correspond to the Constitution of the Russian Federation fully, or to make necessary changes and/or additions to the normative act deemed to be unconstitutional in an individual part thereof. Until the adoption of a new normative act the Constitution of the Russian Federation shall apply directly [as amended by Federal Constitutional Law of 15 December 2001].

 

Article 80. Duty of State Agencies and Officials to Bring Laws and Other Normative Acts into Conformity with Constitution of Russian Federation in Connection with Decision of Constitutional Court of Russian Federation [as amended by Federal Constitutional Law of 15 December 2001]

If by decision of the Constitutional Court of the Russian Federation a normative act has been deemed not to correspond to the Constitution of the Russian Federation in full or in part or the necessity arises from the decision of the Constitutional Court of the Russian Federation to eliminate a gap in legal regulation:

(1) the Government of the Russian Federation not later than three months after publication of the decision of the Constitutional Court of the Russian Federation shall submit to the State Duma a draft new federal constitutional law, federal law, or number of mutually-connected draft laws or draft law concerning the making of changes and/or additions to a law deemed to be unconstitutional in an individual part thereof. The said draft laws shall be considered by the State Duma in an extraordinary procedure;

(2) the President of the Russian Federation and Government of the Russian Federation shall not later than two months after publication of the decision of the Constitutional Court of the Russian Federation repeal the normative act respectively of the President of the Russian Federation or Government of the Russian Federation, adopt a new normative act, or make changes and/or additions in the normative act deemed to be unconstitutional in an individual part thereof;

(3) the legislative (or representative) agency of State power of a subject of the Russian Federation shall within six months after publication of a decision of the Constitutional Court of the Russian Federation make necessary changes in the constitution (or charter) of the subject of the Russian Federation, repeal a law of the subject of the Russian Federation deemed to be unconstitutional, adopt a new law of the subject of the Russian Federation or a series of mutually-connected laws or make changes and/or additions in a law of the subject of the Russian Federation deemed to be unconstitutional in an individual part thereof. The highest official of a subject of the Russian Federation (or executive of the highest executive agency of State power of a subject of the Russian Federation) shall submit a respective draft law to the legislative (or representative) agency of State power of a subject of the Russian Federation not later than two months after publication of a decision of the Constitutional Court of the Russian Federation. If upon the expiry of six months after publication of a decision of the Constitutional Court of the Russian Federation the measures provided for by the present point are not taken by the legislative (or representative) agency of State power of a subject of the Russian Federation in connection with the decision of the Constitutional Court of the Russian Federation, the mechanism of responsibility provided for by federal legislation shall apply;

(4) the highest official of a subject of the Russian Federation (or executive of the highest executive agency of State power of a subject of the Russian Federation) shall not later than two months after publication of a decision of the Constitutional Court of the Russian Federation repeal a normative act deemed to be unconstitutional, adopt a new normative act, or make changes and/or additions in a normative act deemed to be unconstitutional in an individual part thereof. If upon the expiry of two months after publication of a decision of the Constitutional Court of the Russian Federation the measures provided for by the present point are not taken by the highest official of the subject of the Russian Federation (or executive of the highest executive agency of State power of the subject of the Russian Federation) in connection with the decision of the Constitutional Court of the Russian Federation, the mechanism of responsibility provided for by federal legislation shall apply.

(5) federal agencies of State power and agencies of State power of subjects of the Russian Federation which have concluded a treaty deemed in full or in part not to correspond to the Constitution of the Russian Federation between federal agencies of State power and agencies of State power of subjects of the Russian Federation or a treaty between agencies of State power of subjects of the Russian Federation shall within not later than two months after publication of the decision of the Constitutional Court of the Russian Federation make changes and/or additions in the respective treaty or terminate the operation of the treaty [Article 80 in the version of 15 December 2001].

 

The failure to execute, improper execution, or obstruction of the execution of a decision of the Constitutional Court of the Russian Federation shall entail the responsibility established by a Federal law.

 

One of the following decisions shall be adopted by the Constitutional Court of the Russian Federation with regard to the results of the consideration of a case concerning the verification of the constitutionality of the normative act of an agency of State power or treaty between agencies of State power:

(1) concerning the deeming of a normative act or treaty or individual provisions thereof as corresponding to the Constitution of the Russian Federation;

(2) concerning the deeming of a normative act or treaty or individual provisions thereof as not corresponding to the Constitution of the Russian Federation.

  The deeming of a federal law, normative act of the President of the Russian Federation, normative act of the Government of the Russian Federation treaty or individual provisions thereof as not corresponding to the Constitution of the Russian Federation shall be grounds for repeal of the provisions in the established procedure of other normative acts based on the normative act or treaty deemed to be unconstitutional in full or in part, or reproducing them or containing the same provisions which were deemed unconstitutional [as amended by Federal Constitutional Law of 15 December 2001].

  The deeming of a normative act of a subject of the Russian Federation, treaty of a subject of the Russian Federation, or individual provisions thereof not to correspond to the Constitution of the Russian Federation shall be grounds for repeal in the established procedure by agencies of State power of other subjects of the Russian Federation of provisions of normative acts adopted by them or treaties concluded containing the same provisions which were deemed to be unconstitutional [as amended by Federal Constitutional Law of 15 December 2001].

  The provisions of normative acts or treaties specified in paragraphs two and three of the present Article may not be applied by courts, other agencies, and officials [added by Federal Constitutional Law of 15 December 2001].

  If within six months after publication of the decision of the Constitutional Court of the Russian Federation a normative act analogous to that deemed unconstitutional is not repealed or changed, and the operation of the treaty analogous to that deemed to be unconstitutional is not terminated in full or in part, the State agency or official empowered by a federal law shall bring a protest or apply to a court with a demand to deem such normative act or treaty to be not operating [added by Federal Constitutional Law of 15 December 2001].

 

The Constitutional Court of the Russian Federation shall adopt one of the following decisions with regard to the results of the consideration of an appeal against a violation by a law of the constitutional rights and freedoms of citizens:

(1) concerning the deeming of the law or individual provisions thereof as corresponding to the Constitution of the Russian Federation;

(2) concerning the deeming of the law or individual provisions thereof as not corresponding to the Constitution of the Russian Federation.

If the Constitutional Court of the Russian Federation deemed a law being applied in a specific case as not corresponding to the Constitution of the Russian Federation, the particular case in any event shall be subject to review by the competent agency in the usual procedure.

In the event of a federal law or law of a subject of the Russian Federation, or individual provisions of the said laws, to be deemed not to correspond to the Constitution of the Russian Federation, citizens and/or associations of citizens who have had recourse to the Constitutional Court of the Russian Federation in accordance with Article 96 of the present Federal Constitutional Law shall be compensated at the expense of means of the federal budget or budget of the respective subject of the Russian Federation in the procedure and amounts established by the Government of the Russian Federation:

(1) State duty paid;

(2) expenses for payment of the services of representatives;

(3) expenses for travel and accommodation of applicants and their representatives incurred by them in connection with appearance in court;

(4) postal expenses connected with consideration of the case;

(5) contributory compensation for time actually lost [paragraph three as amended by Federal Constitutional Law of 7 June 2004].

 

An interpretation of the Constitution of the Russian Federation given by the Constitutional Court of the Russian Federation shall be official and binding upon all representative, executive, and judicial agencies of State power, agencies of local self-government, enterprises, institutions, organizations, officials, citizens, and associations thereof.

 

(Translated by W.E.Butler)

[Excerpt]

 

1. Views and evaluations not relevant directly to the question concerning constitutionality or unconstitutionality of the provisions of a normative legal act being considered of the constitutional law construing thereof must not be expressed in a dissenting opinion or opinion of a judge who does not agree with the decision of the Constitutional Court adopted in the course of effectuating a constitutional court proceeding as a whole or with provisions of the reasoned part thereof.

2. The text of a dissenting opinion or opinion of a judge must be submitted not later than 14 days from the day of proclamation (or adoption – when settling a case without holding a hearing) of the final decision of the Constitutional Court or adoption of a ruling of the Constitutional Court.

 

(Translated by W.E.Butler)

[Excerpts]

 

The Supreme Arbitrazh Court of the Russian Federation shall be the highest judicial agency for the settlement of economic disputes and other cases considered by arbitrazh courts, effectuate judicial supervision in the procedural forms provided for by a federal law over their activity, and give explanations regarding questions of judicial practice. (Lost effect on 6 August 2014)

 

(6) work out proposals relating to the improvement of laws and other normative legal acts which regulate relations in the sphere of entrepreneurial and other economic activity; (Lost effect on 6 August 2014)

 

2. With regard to questions of its jurisdiction the Plenum of the Supreme Arbitrazh Court of the Russian Federation shall adopt decrees which are binding upon arbitrazh courts in the Russian Federation. (Lost effect on 6 August 2014)

 

consider individual questions of judicial practice and inform arbitrazh courts in the Russian Federation about the results of the consideration. (Lost effect on 6 August 2014)

 

COMMERCIAL PROCEDURE CODE OF THE RUSSIAN FEDERATION
(Federal law of 24.07.2002 N 95-ФЗ)

(excerpts)

Article 20. Resolution of Issues by the Court in Panel. The Dissenting Opinion of a Judge

2. The judge who does not agree with the opinion of the majority of judges who vote for the delivery of a judicial act is obliged to sign the act and may express a dissenting opinion in the written form.
  The judge who votes for the delivered judicial act on the merits of the issue under the court's consideration, but is left in minority after a vote on any other issue or on the motivation of the delivered judicial act, may also express a dissenting opinion in the written form.
  When rendering the separate opinion, the judge may not provide anyone with information regarding the contents of the discussion during the delivery of the judicial act, the position of certain judges of the court composition, or in any other way divulge the secret of the judges' conference.
  The judge's dissenting opinion must be formulated within five days from the day of delivery of the decision on the case. The judge's dissenting opinion is attached to the case materials, but is not pronounced.

Article 167. Delivery of a Decision

5. Judges of the commercial court have no right to inform anyone about the contents of discussion during the delivery of the judicial act or about the position of individual judges, included into the composition of the court, or in any other way to divulge the secrecy of the judges' conference. Herewith, the judges of commercial courts are not deprived of the right to express their dissenting opinion in conformity with Article 20 of this Code, which cannot be seen as divulgence of the secret of the judges' conference.

Article 195. Court Decision in a Case of Challenge of a Normative Legal Act

4. The commercial court decision in a case of challenge of a normative legal act enters into force immediately after it is delivered.
5. A normative legal act or its individual provisions, recognised by the commercial court as invalid, are not subject to application from the moment of entry of the court decision into force and are to be adjusted by the body or person, which adopted the disputed act, to conform to the law or to another normative legal act of greater legal force. (Lost effect on 6 August 2014)

Article 303. Consideration of a Case by the Presidium of the Supreme Commercial Court of
the Russian Federation

9. The judge, disagreeing with the opinion of the majority of members of the Presidium of the Supreme Commercial Court of the Russian Federation, has the right to express a dissenting opinion, which is attached to case materials and is subject to publication with the judgment of the Presidium of the Supreme Commercial Court of the Russian Federation.
The judge, who votes for the delivered judgment of the Supreme Commercial Court on the merits of the case under consideration, but is left in minority during the vote on the motivation of the delivered judgment, may render a dissenting opinion in the written form. In this case, the dissenting opinion is likewise attached to the case materials and is subject to publication along with the judgment of the Presidium of the Supreme Commercial Court of the Russian Federation. (Lost effect on 6 August 2014)

Article 304. Grounds for the Supervisory Review Judicial Acts which Have Entered into Legal Force and for Awarding a Compensation for the Violation of Right to a Fair Trial within a Reasonable Time

1. Judicial acts of commercial courts which have entered into legal force are subject to amendment or reversal if, while considering the case in supervisory review proceedings, the Presidium of the Supreme Commercial Court of the Russian Federation establishes that the disputed legal act:
1) violates the uniformity of interpretation and application of norms of law by commercial courts;
2) violates the human and citizen’s rights and freedoms, according to the universal principles and norms of international law and the international treaties of the Russian Federation;
3) violates the rights and lawful interests of the general public or other public interests. (Lost effect on 6 August 2014)

Article 305. Judgment of the Presidium of the Supreme Commercial Court of the Russian Federation

3. Directions of the Presidium of the Supreme Commercial Court of the Russian Federation, stated in the judgment on the reversal of a court decision or judgment, in particular regarding the interpretation of law, are obligatory for the commercial court considering the given case de novo. (Lost effect on 6 August 2014)

Article 311. Grounds for the Review of Judicial Acts due to New or Newly Discovered Circumstances
1. The following are the grounds for the review of judicial acts, according to the rules of this Chapter:
[…]
5) determination or change of interpretation of a legal norm by a decree of the Plenary Session of the Supreme Commercial Court of the Russian Federation or by a judgment of the Presidium of the Supreme Commercial Court of the Russian Federation, if the appropriate act of the Supreme Commercial Court of the Russian Federation specifies the possibility of review of effective judicial acts by virtue of this circumstance.


DECREE OF THE PLENARY SESSION OF THE SUPREME COMMERCIAL COURT OF THE RUSSIAN FEDERATION OF 20.12.2006 №65
“ON THE PREPARATION OF A CASE TO JUDICIAL CONSIDERATION”

(excerpts)

7. According to part 3 of Article 133 of the Code [of Commercial (or Arbitrazh) Procedure] within the task of preparation of a case to judicial consideration there is the determination by the judge of the character of the disputed legal relations and determination of the legislation which is subject to application. 
In connection with this and for the purposes of uniform interpretation and application of the norms of substantive law and norms of procedural law the judge should every time, when preparing a case to judicial consideration, analyse the court practice of the application of the legislation which regulates the disputed legal relations.


REGLAMENT OF COMMERCIAL COURTS OF THE RUSSIAN FEDERATION
(adopted by the decree of the Plenary Session of the Supreme Commercial Court of 05.06.1996 № 7; shall be in force until amended by the Supreme Court)

(excerpts)

44. The judge who does not agree with the opinion of the majority of judges who vote for the delivery of a judicial act is obliged to sign the act and may express a dissenting opinion in the written form. The judge's dissenting opinion shall be attached to the case materials.
The judge who votes for the delivered judicial act on the merits of the issue under the court's consideration, but is left in minority after a vote on any other issue or on the motivation of the delivered judicial act, may express a dissenting opinion on disagreement with a majority of judges. In this case the written disagreement of the judge shall also be attached to the case materials.
The judge's dissenting opinion must be prepared within the time not exceeding five days from the day of delivery of the decision, that is of the day of its preparation in complete form. 
                    
59.2. The Presidium of the Supreme Commercial Court of the Russian Federation shall consider cases by way of supervision with regard to the verification of judicial acts of commercial courts in the Russian Federation which have entered into legal force, and also shall consider individual questions of judicial practice and inform commercial courts about the results of the consideration.

61.6. The judgment of the Presidium of the Supreme Commercial Court of the Russian Federation shall be adopted by a majority of votes from the total number of members of the Presidium who took part in voting.
None of the members of the Presidium has a right to refrain from voting. The judge presiding over the session of the Presidium shall be the last to vote.
The member of the Presidium, disagreeing with the opinion of the majority of members of the Presidium, shall have the right to express in writing a dissenting opinion. The dissenting opinion shall be  which is attached to case materials.

61.9. The judgment of the Presidium of the Supreme Commercial Court of the Russian Federation shall be subject to publication in the Bulletin of the Supreme Commercial Court of the Russian Federation and shall be placed on the official website of the Supreme Commercial Court of the Russian Federation.
At the same time, the commercial courts must keep in view that from the day of placing of the judgment of the Presidium of the Supreme Commercial Court of the Russian Federation in the full form on the web site of the Supreme Commercial Court of the Russian Federation the practice of application of legislation, on whose provisions this judgment is based upon, shall be regarded as settled for them (para 5.1 of the Decree of the Plenary Session of the Supreme Commercial Court of the Russian Federation of 12.03.2007 № 17 in the version of the Decree of the Plenary Session of the Supreme Commercial Court of the Russian Federation of 14.02.2008 № 14).
Analogous rules shall apply when ascertaining the date from which the practice of application of the legislation on the issues, explanations of which are contained in the decrees of the Plenary Session and information letters of the Presidium of the Supreme Commercial Court of the Russian Federation, shall be regarded as settled.


DECREE OF THE PLENARY SESSION OF THE SUPREME COMMERCIAL COURT OF 30 JUNE 2011 № 52 “ON THE APPLICATION OF PROVISIONS OF THE COMMERCIAL PROCEDURE CODE OF THE RUSSIAN FEDERATION IN THE EVENT OF REVERSAL OF JUDICIAL ACTS ON THE GROUNDS OF NEW OR NEWLY DISCOVERED CIRCUMSTANCES”
(in the version of the Decree of 23 March 2012 № 12)

(a summary of relevant parts)

The Decree affect the powers of the Plenary Session and Presidium of the Supreme Commercial Court to develop the law which they exercise by way of working out ‘legal positions’ (legal opinions or interpretations) which are binding upon lower courts. In particular, para 11 of the Decree provides that:

- the circumstances which, contrary to general rule, allow reversing final judicial decisions in analogous cases by reference to a legal opinion of the Supreme Commercial Court shall include the expiry of periods established by Art 312 of the Commercial Procedure Code; the possibility to deteriorate the conditions of a person who was brought to public law responsibility; non-exhaustion of possibility to make recourse to court of appellate or cassational instance;
- when a decree (judgment) of the Plenary Session or Presidium contains several legal opinions, it is possible to give retroactive force to only one of them, if the judgment explicitly indicates so;
- even in the absence of a reservation clause  in the decree (judgment) of the Plenary Session or Presidium as to the retroactive force of respective legal opinion in the meaning of Art 311 of the Commercial Procedure Code such legal opinion (interpretation) must nevertheless be taken into account by courts when considering analogous disputes which may arise in the future (prospective force of legal opinions);  
- “in the judgment of the Plenary Session or Presidium of the Supreme Commercial Court of the Russian Federation there can be defined the  range of court decisions to which such reservation clause shall extend”;
- “for the judgments not containing the retroactive force reservation clause, the Plenary Session or Presidium of the Supreme Commercial Court may define the limits of the application of the legal opinion formulated by it, in particular by way of indicating the date of arising or change of legal relations to which it shall apply”. In other words, the application of binding interpretations worked out by the Plenary Session or Presidium may start not from the moment of their publication, but from a later moment as indicated in the respective judgment. This option is analogous to the one which is already enjoyed by the Constitutional Court of Russia.

In spite of the abolition of the Supreme Commercial Court, the Decree is technically in force until it is explicitly repealed or amended by the Supreme Court.


JUDGMENT OF THE  CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION OF 21 January 2010 No. 1-П
in the case concerning the review of the constitutionality of the provisions of Section 4, Article 170, Section 1, Article 311, and Section 1, Article 312 of the Commercial Procedure Code of the Russian Federation

(excerpts)

3.1. […] The power of the Supreme Commercial Court of the Russian Federation to provide clarifications on issues of judicial practice, as follows from Article 127 of the Constitution of the Russian Federation, is aimed to promote uniformity of interpretation and application of statutory norms by commercial courts and represents an element of the constitutional mechanism for the protection of the unity and coherence of the Russian legal system. This mechanism is based on provisions of Articles 15 (Section 1), 17, 18, 19, and 120 of the Constitution of the Russian Federation, and its implementation in procedural regulation is ensured by the possibility prescribed by law to reverse judicial acts, inter alia due to their divergence from the acts of the highest court within the system of commercial courts of the Russian Federation, which provide clarifications on issues of judicial practice.
   The exercise of this power by the Supreme Commercial Court of the Russian Federation objectively may not fail to be based upon its legal opinions interpreting legislative provisions subject to clarification. Denial of the right of the Supreme Commercial Court of the Russian Federation to provide, on the basis of aggregated judicial practice, abstract interpretation of legal norms applied by commercial courts and denial of the right to form respective legal opinions would result in derogation from its constitutional functions and purpose as the highest court in the system of commercial courts, especially because it may neither transgress the limits of its competence determined by the Constitution of the Russian Federation and federal constitutional laws nor intervene in the competence of other public authorities (including judicial bodies).

3.2. Decree of the Plenum of the Supreme Commercial Court of the Russian Federation No. 14 of 14 February 2008 clarifies the procedural mechanism providing a possibility to reconsider, under newly discovered circumstances, a judicial act which entered into legal force and is challenged by an applicant in supervisory review proceedings, provided that such act is based on statutory provisions for which law-application practice was set (or altered) after its delivery by a decree of the Plenum of the Supreme Commercial Court of the Russian Federation or decision of the Presidium of the Supreme Commercial Court of the Russian Federation, adopted upon consideration of another case by way of supervision and giving due regard to the established practice, inter alia relying on the legal opinions expressed by the Plenum of the Supreme Commercial Court of the Russian Federation.
   On the one hand, this procedural mechanism allows enhancing the efficiency of review of judicial acts which have entered into legal force, while the Presidium of the Supreme Commercial Court of the Russian Federation is relieved of consideration of cases which should be decided relying on the existing legal opinion formulated by the Supreme Commercial Court of the Russian Federation. On the other hand, for the persons participating in the case it provides for a stronger possibility to achieve protection of their rights or lawful interests in other commercial courts by referring to the interpretation of statutory norms given by the Supreme Commercial Court of the Russian Federation.
    This approach is predetermined in the system of commercial procedure regulation in force by the possibility to reconsider, under newly discovered circumstances, a judicial act which entered into legal force, due to loss of legal force by the statutory act on which such judicial act was based. In particular, Article 311 of the Commercial Procedure Code of the Russian Federation lists, among other grounds for reconsideration under newly discovered circumstances, significant circumstances of the case which were not and could not be known by the applicant, reversal of a judicial act or decision of another public authority serving as the ground for the decision by a commercial court (Section 4), and recognition of the law that was applied by the commercial court in a particular case as non-conforming to the Constitution of the Russian Federation, by the Constitutional Court of the Russian Federation in connection with the delivery of a judgment in the case where the applicant had appealed to the Constitutional Court of the Russian Federation (Section 6).

3.3. […]The legal force of decisions by the Constitutional Court of the Russian Federation establishing the constitutional meaning of norms determines the impossibility to apply such norms (and hence terminates their effect) in an unconstitutional interpretation, i.e. their loss of force for the future in the meaning previously acceptable but diverging from the established constitutional meaning. Consequently, as a general rule, from the moment a decision of the Constitutional Court of the Russian Federation enters into force these norms should not be interpreted in any other way or applied in any other meaning. Therefore a decision establishing the constitutional meaning of the norm has legal effect similar to recognition of the norm as non-conforming to the Constitution of the Russian Federation as provided by Section 2, Article 100 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, which guarantees reconsideration of the applicant’s case by a competent authority in established procedure.
   It follows from the abovementioned legal opinions of the Constitutional Court of the Russian Federation, which remain in force, that commercial courts shall reconsider judicial acts, inter alia under newly discovered circumstances, if they are based on a norm which was applied in the particular case and assigned the meaning diverging from its constitutional meaning subsequently established by the Constitutional Court of the Russian Federation.
   Interpretation of the provisions of Article 311 of the Commercial Procedure Code of the Russian Federation as articulated in Decree of the Plenum of the Supreme Commercial Court of the Russian Federation No. 14 of 14 February 2008 corresponds to the abovementioned legal opinions of the Constitutional Court of the Russian Federation regarding the legal force of its judgments and decisions establishing the constitutional meaning of certain normative provisions. Accordingly, the possibility of reconsidering judicial acts is not precluded for commercial courts, inter alia under newly discovered circumstances, if these acts are based on a norm which was applied in a particular case and assigned the meaning diverging from its legal meaning subsequently established by the Supreme Commercial Court of the Russian Federation. As follows from Decree of the Plenum of the Supreme Commercial Court of the Russian Federation No. 14 of 14 February 2008, the Supreme Commercial Court of the Russian Federation in these cases allows reconsideration, under newly discovered circumstances, of a commercial court judicial act which entered into legal force (and, as follows from the law-enforcement practice of commercial courts, regardless of its actual enforcement).    
 
3.4. In the Russian judicial system, interpretation of a law by superior judicial authorities has significant influence on the formation of judicial practice. As a general rule, assuming the power of superior instances to reverse and alter judicial acts, it is de facto binding for lower courts. At the same time, reconsideration and reversal of judicial acts previously delivered and relying on other interpretations of the applied norms is allowed in cases where retroactive effect is permissible under general legal and constitutional principles.
   In the case law of the European Court of Human Rights it is not rare that cases are decided with reference to its legal opinions elaborated in previous decisions on similar cases, inter alia upon applications of Russian citizens. This demonstrates that the European Court of Human Rights regards its legal opinions as inducing a uniform approach in evaluating similar factual and legal grounds for deciding particular cases.
   This trend is observed in the practice of commercial courts where this practice was formed due to de facto endorsement of a possibility of reconsidering, under newly discovered circumstances, judicial acts delivered before the expression by the Supreme Commercial Court of the Russian Federation of its legal opinion giving an interpretation of the underlying norms which diverge from the interpretation previously given in the application of these norms.
Thus, as a result of interpreting the provisions of Article 311, Commercial Procedure Code of the Russian Federation, as provided by the Supreme Commercial Court of the Russian Federation in Decree of the Plenum of the Supreme Commercial Court of the Russian Federation No. 14 of 14 February 2008, the normative basis for practical reconsideration of judicial acts under newly discovered circumstances in the system of commercial courts is in fact further clarified.
 
4. The general legal requirement of formal certainty, clarity and unambiguity of a legal norm (formal legal certainty), which is preconditioned by the nature of normative regulation in legal systems relying on the rule of law, stems directly from the principle of legal equality (Sections 1 and 2, Article 19) and the principle of supremacy of the Constitution of the Russian Federation and federal laws based on it, as they are prescribed by the Constitution of the Russian Federation. Uncertainty of legal norms leads to their ambivalent understanding and hence inconsistent application, opens a possibility for unlimited discretion in law-enforcement and results in arbitrariness, and thus violates the abovementioned constitutional principles which may not be secured without uniform understanding and interpreting legal norms by all enforcement authorities (Judgments of the Constitutional Court of the Russian Federation No. 3-П of 25 April 1995, No. 11-П of 15 July 1999, and No. 16-П of 11 November 2003).
   Legal norms may be interpreted by the Supreme Commercial Court of the Russian Federation both in connection with consideration of a particular case (ad hoc) and with respect for all cases with similar factual circumstances on the basis of aggregated judicial practice in order to secure their uniform understanding and application by commercial courts. Accordingly, within the procedure introduced by Decree of the Plenum of the Supreme Commercial Court of the Russian Federation No. 14 of 14 February 2008 it is permissible to provide interpretation of a legal norm on the basis of aggregation of judicial practice. Such interpretation shall be regarded as a legal opinion having retroactive effect only if it is specifically referred to as such by the Supreme Commercial Court of the Russian Federation and is formally certain, clear and lucid. […]
   Thus, reconsideration under newly discovered circumstances of judicial acts which entered into legal force, under Articles 311 and 312 of the Commercial Procedure Code of the Russian Federation as interpreted by Decree of the Plenum of the Supreme Commercial Court of the Russian Federation No. 14 of 14 February 2008 implies the necessity of explicit indication of the possible retroactive effect of the interpretation of a legal norm provided in a decree of the Plenum of the Supreme Commercial Court of the Russian Federation or a decision of the Presidium of the Supreme Commercial Court of the Russian Federation.
 
5. Pursuant to Decree of the Plenum of the Supreme Commercial Court of the Russian Federation No. 14 of 14 February 2008, the interpretation of a particular legal norm settling (altering) its enforcement practice if it is given in a decree of the Plenum of the Supreme Commercial Court of the Russian Federation or a decision of the Presidium of the Supreme Commercial Court of the Russian Federation may be regarded as a ground for reconsideration, under newly discovered circumstances, of a judicial act which entered into legal force before the Supreme Commercial Court set the judicial practice on the issue. This possibility is preconditioned by the request for reversal, in supervisory review procedure, of a judicial act delivered in the case in which the applicant participated.
   It follows from the above that commercial courts are obliged to assume the retroactive effect of legal opinions expressed both in an abstract interpretation of legislation by the Plenum of the Supreme Commercial Court of the Russian Federation (upon aggregation of judicial practice) and in connection with consideration of a particular case by the Presidium of the Supreme Commercial Court of the Russian Federation when the position is aimed at uniform application of legal norms in cases with similar factual circumstances. However, a specific reference of the Supreme Commercial Court, which precludes arbitrary assignment of retroactive effect to the interpreted legal norm, is necessary and provided that such reference does not predetermine the decision of the competent commercial court in proceedings for reconsideration under newly discovered circumstances. […]
    
7. Thus, the provisions of Section 1, Article 311, and Section 1, Article 312 of the Commercial Procedure Code of the Russian Federation, as interpreted by the Supreme Commercial Court of the Russian Federation in Decree of the Plenum of the Supreme Commercial Court of the Russian Federation No. 14 of 14 February 2008 in the system of legal regulation of reconsideration of legal acts under newly discovered circumstances do not contradict the Constitution of the Russian Federation in their normative content (Subsection 1, Section 1, Article 86 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”), since they are aimed at securing fairness of judicial decisions, full and effective judicial protection of rights and freedoms.
   The mechanism of reconsideration of judicial acts under newly discovered circumstances, as it is formed on the basis of provisions of Articles 311 and 312 of the Commercial Procedure Code of the Russian Federation, in the interpretation given by the Supreme Commercial Court of the Russian Federation, relies on the powers of the Supreme Commercial Court of the Russian Federation as set forth by Article 127 of the Constitution of the Russian Federation. It may not be recognized as violating the constitutional requirements of a lawful court and independence of judges on the sole ground that Decree of the Plenum of the Supreme Commercial Court of the Russian Federation No. 14 of 14 February 2008 provides for a broader interpretation of these provisions due to the actual needs of proceedings in commercial courts.


FEDERAL CONSTITUTIONAL LAW ON THE SUPREME COURT OF THE RUSSIAN FEDERATION of 07.02.2011 No. 1-ФКЗ

(excerpts)

Article 2. Powers of the Supreme Court of the Russian Federation

7. The Supreme Court of the Russian Federation shall:
1) for the purposes of ensuring the uniform application of the legislation of the Russian Federation study, gives the courts clarifications on the issues of judicial practice, based on its study and generalization.

Article 5. Plenary Session of the Supreme Court of the Russian Federation

3. The Plenary sessin of the Supreme Court of the Russian Federation shall:
1) consider the materials regarding the analysis and generalisation of judicial practice and give clarifications on issues of judicial practice to the courts or the purposes of ensuring the uniform application of the legislation of the Russian Federation;
[…]
13) adopt the Reglament of the Supreme Court of the Russian Federation;

Article 7. Powers of the Presidium of the Supreme Court of the Russian Federation

1. The Presidium of the Supreme Court of the Russian Federation:
1) in accordance with procedural legislation of the Russian Federatio and with the aim to ensure the unity of the judicial practice and lawfulness shall examine by way of supervision, by way of the judicial proceedings resumption due to the new or newly discovered circumstances the judicial acts, which came into force;  

CIVIL PROCEDURE CODE OF THE RUSSIAN FEDERATION
(Federal constitutional law of 14.11.2002 N 138-ФЗ)

(excerpts)

Article 253. Decision of the Court on an Application for Challenging a Normative Legal Act

1. Having recognised that the disputed legal normative act does not contradict the federal law or the other legal normative act of a great legal force, the court shall adopt the decision on the refusal in the satisfaction of the corresponding application.
2. Having established that the disputed legal normative act or a part of it contradicts the federal law or the other legal normative act of a great legal force, the court shall recognise the legal normative act as invalid, fully or in part, as from the day of its adoption or of another moment indicated by the court.
3. The court decision on recognising a normative legal act or part of it as invalid shall come into legal effect in accordance with the rules envisaged in Article 209 of the present Code, and shall entail the loss of the force of this normative legal act or of a part of it, as well as of the other normative legal acts based on the normative legal act which is recognised as invalid, or reproducing its content. Such decision of the court or the communication about the decision after its entry into legal effect shall be published in the printed edition in which the normative legal act was officially published. If the given printed edition has ceased to function, such decision or communication shall be published in another printed publication in which the normative legal acts of the corresponding state power body, of the local self-government body or of the official are published.

4. The decision of the court on recognising a legal normative act as invalid cannot be overcome by a repeated adoption of the same act.

Article 391.9. Grounds for Reversal or Alteration of Judicial Decisions by Way of Supervision

The judicial decisions cited in Part Two of Article 391.1 of this Code shall be subject to reversal or alteration, if the Presidium of the Supreme Court of the Russian Federation finds, while considering a case by way of supervision, that an appropriate judicial decision violates the following:
1) the civil and human rights and freedoms guaranteed by the Constitution of the Russian Federation, by the universally recognised principles and rules of international law and by international treaties of the Russian Federation;
2) the rights and legitimate interests of an indefinite circle of persons or other public interests;
3) the uniformity of interpretation and application of rules of law by courts.

Article 392. Grounds for Reviewing Effective Judicial Decisions (Due to Newly Discovered or New Facts)

1. Effective judicial decisions may be reviewed due to newly discovered or new facts. […]
4. The following shall pertain to new facts:
[…]
5) determining (changing) by a decision of the Presidium of the Supreme Court of the Russian Federation the practice of applying the rule of law used by a court in the specific case, the judicial decision on which has entailed filing an application for reviewing the case by way of supervision, or by the decision of the Presidium of the Supreme Court of the Russian Federation based on the results of trying another case by way of supervision or by a decision of the Plenary Session of the Supreme Court of the Russian Federation.


REGLAMENT OF THE SUPREME COURT OF THE RUSSIAN FEDERATION
(adopted by the decree of the Plenary Session of the Supreme Court of 07.08.2014 № 2)

(excerpts)

1.    General provisions
The Supreme Court shall be the highest judicial agency with regard to civil cases, cases on resolution of economic disputes, criminal, administrative and other cases falling within the jurisdiction of the courts created in accordance with the Federal constitutional law "On Judicial System of the Russian Federation', shall effectuate judicial supervision over their activity in the procedural forms provided for by a federal law, and give explanations regarding questions of judicial practice.
   The Supreme Court within its jurisdiction shall consider cases in the capacity of a court of first, appellation,  cassation or supervisory instances and by virtue of new or newly discovered circumstances in the procedure, provided for by federal laws.  

3.1. Plenary Session of the Supreme Court. Powers and procedure for formation
The Plenary Session of the Supreme Court shall:
consider the material of analysis and generalisation of judicial practice ans give clarifications on the issues of judicial practice for the purposes of ensuring the uniform application of the legislation of the Russian Federation;

 

3.2. Presidium of the Supreme Court. Powers and procedure for formation
The Presidium of the Supreme Court shall:
in accordance with the procedural legislation of the Russian Federation and for the purposes of ensuring the unity of judicial practice and lawfulness review by way of supervision, by way of the judicial proceedings resumption due to the new or newly discovered circumstances the judicial acts, which came into force; [...]
consider particular issues of judicial practice;
endorse the surveys of legislation and judicial practice which are brought to the attention of judges and employees of the Supreme Court, sent to the ... regional courts..., be published in quarterly surveys of legislation and judicial practice of the Supreme Court, and also in the Bulletin of the Supreme Court of the Russian Federation;


FEDERAL CONSTITUTIONAL LAW “ON THE DISCIPLINARY JUDICIAL DEPARTMENT” OF 11.09.2009 № 4-ФКЗ

(excerpt)

Article 8. Sessions of the Disciplinary Judicial Department and the procedure for adopting decisions
[…]
8. Member of the Disciplinary Judicial Department may set out in writing his dissenting opinion, which shall be attached to the decision of the Disciplinary Judicial Department. (Lost effect on 6 August 2014)


REGLAMENT OF THE DISCIPLINARY JUDICIAL DEPARTMENT
(adopted by a joint decree of the plenary sessions of the Supreme Court and the Supreme Commercial Court of 04.02.2010)

(excerpt)

7. Member of the Disciplinary Judicial Department may set out in writing his dissenting opinion, which shall be attached to the file of the case.
The text of dissenting opinion must be submitted to the Secretary Office not later than five working days from the day of preparation of the complete text of the decision.
8. The complete decision of the Disciplinary Judicial Department, signed by all members of the Disciplinary Judicial Department taking part in the consideration of the given case,  shall be sent within five working days to the Supreme Court of the Russian Federation, the Supreme Commercial Court of the Russian Federation, the Supreme Qualification Collegium of Judges of the Russian Federation, possibly via e-mail. 
9. The decision of the Disciplinary Judicial Department, and also dissenting opinions of members of the Disciplinary Judicial Department shall be published in "The Bulletin of the Supreme Court of the Russian Federation", "The Herald of the Supreme Commercial Court of the Russian Federation" and place on the Internet web site of the Disciplinary Judicial Department. (Lost effect on 6 August 2014)


CONVENTION  FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
(adopted in Rome, 4.XI.1950; ratified by Russia on 30.03.1998)

(excerpts)

ARTICLE 19
Establishment of the Court

To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as “the Court”. It shall function on a permanent basis.

ARTICLE 32
Jurisdiction of the Court

1. The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.
2. In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.

ARTICLE 46
Binding force and execution of judgments

1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.