Russia's war between the courts: The struggle over the jurisdictional boundary between the Constitutional Court and Regular Courts

American Journal of Comparative Law

Volumn 55, Issue 3, 2007, Pages 381-452

  Burnham, William ^a,b   Trochev, Alexei ^c  

^a WAYNE STATE UNIVERSITY   (United States)

^b UNIVERSITY OF MICHIGAN   (United States)

^c QUEEN S UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34548776997     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.1093/ajcl/55.3.381     Document Type: Review

References (362)

1. Leslie Turano, Spain: Quis Custodiet Ipsos Custodes?: The Struggle for Jurisdiction Between the Tribunal Constitucional and the Tribunal Supremo, 4 INT'L J. CON. L. 151 (2006) (Spain);
2. John H. Merryman & Vincenzo Vigoriti, When Courts Collide: Constitution and Cassation in Italy, 15 AM. J. COMP. L. 665 (1967) (Italy);
3. Lech Garlicki, Constitutional Courts Versus Supreme Courts, 5 INT'L J. CON. L. 44, 64 (2007) (Germany, Italy and Poland);
4. RADOSLAV PROCHAZKA, MISSION ACCOMPLISHED: ON FOUNDING CONSTITUTIONAL ADJUDICATION IN CENTRAL EUROPE 159-67 (2002) (Czech Republic);
5. Renate Webber, The Romanian Constitutional Court: In Search of its Own Identity, in CONSTITUTIONAL JUSTICE, EAST AND WEST 283-308 (Wojciech Sadurski ed., 2002) (Romania);
6. Jiri Priban, Judicial Power vs. Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System, id. 373-94 (Czech Republic);
7. Interview with Jan Drgonec, 6 E. EUR. CONST. REV. 89 (1997) (Slovakia);
8. TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTI-TUTIONAL COURTS IN EAST ASIA (2003) (Korea and Taiwan);
9. Hervé Bribosia, Report on Belgium, in THE EUROPEAN COURTS & NATIONAL COURTS - DOCTRINE AND JURISPRUDENCE 3-39 (Anne-Marie Slaughter et al. eds., 1998) (Belgium).
10. Garlicki, supra note 1, at 64.
11. For more detail on the judicial system, see WILLIAM BURNHAM ET AL., LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 49-129 (3d ed. 2004).
12. See Kathryn Hendley, Remaking an Institution: The Transition in Russia from State Arbitrazh to Arbitrazh Courts, 46 AM. J. COMP. L. 1 (1998).
13. Subjects (sub'ekty) are the "states" or lander comprising the federation. They go by various names-from "republics" to various different names that could be understood in translation as "provinces," "territories," "regions," or "areas." See Constitution of the Russian Federation, art. 65, as translated in BURNHAM ET AL., supra note 3, at 650
14. and id. at 206-32.
15. The only courts discussed in this article are federal courts. There are two subject courts. The first are "charter" or " constitutional" courts, functioning in 16 subjects, which have jurisdiction to determine whether subject laws violate the constitutions or charters of the subject. Their decisions are not appealable to any federal court. See Alexei Trochev, Less Democracy, More Courts, 38 LAW & SOC'Y REV. 513 (2004).
16. The other subject court is the justice of the peace court, which handles minor civil and criminal cases. Their decisions may be appealed to the lowest level federal court, the district court. See Peter H. Solomon, Jr., The New Justices of the Peace in the Russian Federation: A Cornerstone of Judicial Reform?, 11 DEMOKRA-TIZATSIYA 381 (2003).
17. Constitutional statutes are laws that rank in the hierarchy of laws between the Constitution and federal statutes. They must be passed by three-quarters of the members of the Federation Council and by two-thirds of the members of the State Duma. See arts. 76, 108(2) and 128(3), Constitution of the Russian Federation.
18. See Zakon RSFSR "O Konstitutsionnom Sude RSFSR" ot 12.07.1991 g. (Law "On the Constitutional Court of the RSFSR") of July 12, 1991, VEDOMOSTI S"EZDA NARODNYKH DEPUTATOV I VERKHOVNOGO SOVETA RSFSR (Bulletin of the Congress of People's Deputies and Supreme Council) [hereinafter Ved. RSFSR] 1991, No. 30, items 1016 and 1017 [hereinafter 1991 Law on the Constitutional Court]. The preand post-1993 constitutional courts in turn had a forerunner of sorts in the USSR Committee on Constitutional Supervision established in 1988, which operated in 1990 and 1991. The Committee was not a court, however, but a committee of the legislature, the USSR Congress of People's Deputies.
19. See Herbert Hausmaninger, From the Soviet Committee of Constitutional Supervision to the Russian Constitutional Court, 25 CORNELL INT'L L.J. 305, 332 (1992).
20. For more complete accounts of this struggle, see Herbert Hausmaninger, Towards a "New" Russian Constitutional Court, 28 CORNELL INT'L L.J. 349, 355-66 (1995)
21. and Kim Lane Scheppele, Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe, 154 U. PENN. L. REV 1757, 1791-1846 (2006). The Scheppele article is the more comprehensive of the two.
22. Boris Yeltsin Offers the Country a Peaceful Way Out of the Crisis, ROSSIISKIE VESTI, Mar. 23, 1993, at 1-2, translated in 45 CURRENT DIG. OF THE POST-SOVIET PRESS No. 12, at 1-4 (1993).
23. Finding No. 1-Z of Mar. 23, 1993, Ved. RSFSR, No. 13, item 466;
24. translated in 30 STATUTES & DECISIONS 86, 88-89 (July-Aug. 1994).
25. Ukaz "O deiatel'nosti ispolnitel'nykh organov vlasti do preodoleniia krizisa vlasti" No. 379 ot 20.03.1993 g. (Decree "On the Activity of Executive Bodies Pending the Resolution of the Crisis") of Mar. 20, 1993, IZVESTIIA, Mar. 25, 1993, at 1, translated in 45 CURRENT DIG. OF THE POST-SOVIET PRESS No. 12, at 11-12 (1993). The Constitutional Court later dismissed the constitutional challenge to this decree.
26. See Determination 70-R of July 12, 1993 (unpublished, available on Garant, http://www. garant.ru). Garant is a Russian legal database that is widely used for legal research in Russia. However, like its counterparts in the United States and other countries, it is available only on a paid subscription basis. The URL indicated here, however, will permit access to basic legal documents and to "hot documents" that have been received, but have not yet been indexed and included in its permanent database. Other legal databases are Konsul'tant-Plius and Kodex.
27. For a description of the exact questions posed and the percentages they garnered, see Scheppele, supra note 9, at 1757.
28. Ukaz "O poetapnoi konstituttsionnoi reforme v Rossiiskoi Federatsii" No. 1400 ot 21.03.1993 g. (Decree "On the Progressive Constitutional Reform in the Russian Federation") No. 1400 of Sept. 21, 1993, SOBRANIE AKTOV PREZIDENTA I PRAVITEL'SVA RF (Collected Acts of the President and Government of the RF) [hereinafter SAPP], 1993, No. 39, item 3597.
29. In response, the Supreme Soviet immediately passed a resolution in response that declared that the powers of the President were terminated under art. 121.6 of the then existing Constitution. Postanovlenie "O prekrashchenii polnomochii Prezidenta Rossiiskoi Federatsii Yeltsina B.N." No. 5780-I ot 22.09.1993 g. (Decree "On Terminating the Powers of the RF President B.N. Yeltsin") No. 5780-1 of Sept. 22, 1993, ROSSIISKAIA GAZETA, Sept. 23, 1993.
30. Ukaz "O poetapnoi konstituttsionnoi reforme v Rossiiskoi Federatsii" No. 1400 ot 21.03.1993 g. (Decree "On the Progressive Constitutional Reform in the Russian Federation") No. 1400 of Sept. 21, 1993, item 10, SAPP, No. 39, p. 3597.
31. Finding No. 2-Z of Sept. 21, 1993, (On Conformity of the Actions and Decisions of the Russian President with the Constitution), VESTNIK KONSTITUTSIONNOGO SUDA RF (Bulletin of the RF Constitutional Court) [hereinafter VKS] 1994, No. 6, p. 40.
32. Ukaz "O Konstitutsionnom sude RSFSR" No. 1612 ot 7.10.1993 g. (Decree "On the Constitutional Court of the Russian Federation") No. 1612 of Oct. 11, 1993, SAPP 1993, No. 41, item 3921.
33. Jane Henderson, The First Russian Constitutional Court: Hopes and Aspirations, in CONSTITUTIONAL REFORM AND INTERNATIONAL LAW IN CENTRAL AND EASTERN EUROPE 105-21 (Rein Müllerson et al. eds., 1998).
34. MIKHAIL MITIUKOV, K ISTORII KONSTITUTSIONNOGO PRAVOSUDIIA ROSSII 91-92 (2002) (Toward a History of the Constitutional Justice). People as varied as Communist Party member Yuri Slobodkin, a local judge from the Moscow suburbs, and Yeltsin's protégé, Valentin Stepankov, the Procurator General, united in their opposition. Slobodkin insisted that only regular courts should deal with individual complaints. In his view, Constitutional Court jurisdiction in this area would discredit the Supreme Court. Stepankov accused the Court of usurping the regular courts' power to determine the constitutionality of the "law-application" practice in process of handling individual appeals of regular court decisions and of replacing the Supreme Court as a court of last resort. Id.
35. Id. at 96-97.
36. Law on the RSFSR Constitutional Court, supra note 8, pt. Ill, ch. 3. This power of the Constitutional Court was strengthened further in Jan. of 1992, when art. 36 of the "Law on the Procuracy" was passed, authorizing the Procurator General to refer decrees of the Plenum of the Supreme Court to the Constitutional Court. Ved. RSFSR, 1992, no. 8, item 366. This provision was never used and was repealed in 1995.
37. See ALEXANDER BLANKENAGEL, DETSTVO, OTROCHESTVO, IUNOST' KONSTITUT-SIONNOGO SUDA 38 (1996) (Childhood, Adolescence and Youth of the Constitutional Court).
38. For an explanation of explanations, see infra text at notes 144-45.
39. Decision No. 2-P of Feb. 4, 1992, Ved. RSFSR, 1992, no. 13, item 669.
40. Zakon RF "O vnesenii izmenenii i dopolnenii v KZoT RF" ot 12.03. 1992 g. (Law on Amending the Labor Code) of Mar. 12, 1992, Ved. RSFSR, 1992, no. 14, item 712.
41. Decision 8-R of Sept. 24, 1992, VKS, 1993, No. 1, pp. 38-39. In Mar. 1993, the Constitutional Court once again ordered the Supreme Court to re-open a case involving an illegal dismissal. Determination 10-R of Mar. 16, 1993 (unpublished).
42. Decision 1-P of Jan. 27, 1993, Ved. RSFSR, 1993, no. 14, item 508. One engineer among the petitioners fought his dismissal in courts for 12 years and eventually won his case, but received only one year of back wages.
43. Determination 29-0 of June 15, 1995, VKS, 1995, Nos. 2-3, pp. 67-71.
44. Federal'nyi zakon "O vnesenu izmenenii i dopolnenii v KZoT RF ot 17.03.1997 g." (Law on Amending the Labor Code) of Mar. 17, 1997, SOBRANIE ZAKONODATEL'STVA RF (Russian Federation Compiled Legislation) [hereinafter SZ RF], 1997, no. 12, item 1382.
45. Determination 198-0 of Oct. 5, 2000, VKS, 2001, No. 1, p. 60.
46. See Presidential Draft of the Constitution of the Russian Federation, MOSKOVSKAIA PRAVDA, May 5,1993, available at http://constitution.garant.rU/DOC_1205.htm#sub_para_N_2 5447.
47. A good treatment of the constitutional drafting in this period is SUREN AVAKIAN, KONSTITUTSIIA ROSSII: PRIRODA, EVOLIUTSIIA, SOVREMENNOST 122-84 (2000) (The Constitution of Russia: Its Nature, Evolution and Application Today).
48. See also Ukaz "O sozyve Konstitutsionnogo soveshchaniia i zavershenii podgotovki proekta Konstitutsii Rossiiskoi Federatsii No. 718 ot 20.05.1993 g." (Decree "On Calling of a Constitutional Convention and Completing the Preparation of the Draft of the Constitution of the Russian Federation") No. 718 of May 20, 1993, as modified by Ukaz "O vnesenu dopolneniia v Ukaz Prezidenta Rossiiskoi Federatsii No. 718 ot 20.05.1993 g. 'O sozyve Konstitutsionnogo soveshchaniia i zavershenii podgotovki proekta Konstitutsii Rossiiskoi Federatsii No. 718 ot 20.05.1993 g.' No. 790 ot 31.05.1993 g." (Decree "On Amending the Decree No. 718" No. 790 of May 31, 1993 (presidential orders appointing the representatives of the subjects), SAPP 1993, No. 21, item 1903 and No. 23, item 2103. These orders and a complete list of delegates to the convention are set out at http://constitution.garant.ru/tom1.htm in the first volume of the 20-volume set of materials on the convention, infra note 35.
49. Compare art. 121 of the presidential draft, http://constitution. garant.ru/DOC_1205.htm#sub_para_N_25447 (presidential draft, published in MOSKOVSKAIA PRAVDA, May 5, 1993)
50. with art. 125 of the July 12, 1993 draft, http://www.constitution. garant.ru/DOC_55000.htm (draft as approved July 12, 1993, published in RABOCHAIA TRIBUNA, July 21, 1993).
51. Decree No. 1612, supra note 17, ¶ 5.
52. NIKOLAI VITRUK, CONSTITUTIONAL JUSTICE IN RUSSIA (1991-2001) 23-31 (2001).
53. KONSTITUTSIONNOE SOVESHCHANIE: STENOGRAMMY. MATERIALLY. DOKUMENTY. 20 APRELIA - 10 NOIABRIA 1993 G. v 20 TOMAKH (Constitutional Convention: Transcript, Materials and Documents, Apr. 29 to Nov. 10, 1993, in 20 Vols.) (Moscow: Iuridicheskaia literature, 1995-1996) [hereinafter Convention Materials]. These materials are also available at http://www. constitution.garant.ru/DOC_55000.htm, though the scanned page-by-page format they are in makes them hard to use.
54. It is somewhat puzzling that the transcript is not used very often by scholars or courts. A scholarly guide to the debates was written by two delegates to the convention, MIKHAIL MITIUKOV & ALEKSANDR BARNASHOV, OCHERKI K ONSTITUTSIONNOGO PRAVOSUDIIA. SRAVNITEL'NO-PRAVOVOE ISSLEDOVANIE ZAKONODATEL'STVA SUDEBNOI PRAKTIKI (An Outline of Constitutional Justice: Comparative and Legal Examination of Legislation and Judicial Practice) (Tomsk: Izd-vo Tomskogo gosudarstvennogo universiteta, 1999). Pt. Ill, Ch. 1, is devoted to convention discussions of Constitutional Court jurisdiction. For a rare court use of the debates, see the dissenting opinion of Judge Ametistov in Decision 2-P of Jan. 28, 1997 (Right to Counsel), VKS, 1997, No. 1, pp. 25-42.
55. The "explanations" of the law referred to here take place outside formal judicial decisions of cases. See infra text at notes 144-45.
56. This is not accidental. Yeltsin's team expected his enemies to dominate the soon-to-be elected legislature and ensured through this detailed outline that his opponents in the parliament would not be able to expand the jurisdiction of the Constitutional Court to attack him.
57. Art. 125(2) provides: The Constitutional Court of the Russian Federation, on the request of the President of the Russian Federation, the Federation Council, the State Duma, one-fifth of the members of the Federation Council or deputies of the State Duma, the Government of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitrazh Court of the Russian Federation, organs of legislative and executive power of the subjects of the Russian Federation, shall decide cases concerning the compliance with the Constitution of the Russian Federation of: a) federal statutes and normative acts of the President of the Russian Federation, the Federation Council, the State Duma and the Government of the Russian Federation; b) constitutions of the republics and charters, as well as statutes and other normative acts of the subjects of the Russian Federation concerning issues of whether they are within the authority of the organs of state power of the Russian Federation and joint authority of the organs of state power of the Russian Federation and organs of state power of the subjects of the Russian Federation; c) treaties between the organs of state power of the Russian Federation and organs of state power of the subjects of the Russian Federation, agreements between the organs of state power of the subjects of the Russian Federation; d) international treaties of the Russian Federation that have not entered into force.
58. The State Duma is the lower house of the Federal Assembly, the federal parliament. The Federation Council is the upper house of the parliament. Their modes of election and selection are set out in arts. 95, 96, and 97 of the Constitution.
59. The Procurator General is the chief law enforcement officer of the country. See BURNHAM ET AL., supra note 3, at 136-42, and European Commission for Democracy Through Law (Venice Commission), Opinion on the Federal Law on the Prokuratura (Prosecutor's Office) of the Russian Federation, Opinion No. 340/2005, CDL-AD(2005)014 Or. Eng. (June 13, 2005), available at http://www.venice.coe.int/docs/2005/CDL-AD(2005)014-e.pdf.
60. Art. 125(4) provides: The Constitutional Court of the Russian Federation, in response to petitions complaining of a violation of the constitutional rights and freedoms of citizens or on the request of the courts, shall review the constitutionality of a statute that has been applied or is subject to being applied in a specific case, in accordance with procedures established by federal law.
61. See art. 93, Grundgesetz (Basic Law of the Federal Republic of Germany) ("The Federal Constiutitonal Court shall rule on constitutional complaints, which may be filed by any person alleging that one of his or her fundamental rights . .. has been violated by public authority.").
62. Arts. 125(2) and (4) are set out in supra notes 39 and 42.
63. Art. 125(5) provides: The Constitutional Court of the Russian Federation, on the request of the President of the Russian Federation, the Federation Council, the State Duma, the Government of the Russian Federation and the organs of legislative power of the subjects of the Russian Federation, shall provide an interpretation of the Constitution of the Russian Federation.
64. See A.A. BATIAEV, KOMMENTARII K FEDERAL'NOMU KONSTITUTSIONNOMU ZAKONU OT 21 IIULIA 1994 G. "O KONSTITUTSIONNOM SUDE ROSSIISKOI FEDERATSII" (Commentary on the Constitutional statute on the Constitutional Court) (Moscow, 2006): Art. 106 ("such an interpretation can be used ... by the legislative bodies in their consideration of draft laws"). Such official interpretations are relatively rare. In the entire history of the Court, there have only been 13 decisions on the merits and 37 decisions dismissing the request.
65. Art. 125(3) provides: The Constitutional Court of the Russian Federation shall settle disputes over scope of power: a) between federal organs of state power; b) between organs of state power of the Russian Federation and organs of state power of the subjects of the Russian Federation; c) between the highest organs of state power of the subjects of the Russian Federation.
66. Art. 92, Federal'nyi konstitutsionnyi zakon "O Konstitutsionnom Sude Rossiiskoi Federatsii ot 12.07.1994 g." (Federal Constitutional Statute on the Constitutional Court of the Russian Federation) 1-FKZ of July 21, 1994, SZ RF, 1994, no. 13, item 1447 [hereinafter 1994 Constitutional Statute on the Constitutional Court].
67. Federal'nyi konstitutsionnyi zakon "O sudebnoi sisteme Rossiiskoi Federatsii ot 31.12.1996 g." (Federal Constitutional Statute on the Judicial System of the Russian Federation) 1-FKZ of Dec. 31, 1996, SZ RF, 1997, no. 1, item 1. See also art. 120(2) of the Constitution ("A court of law, having established during the consideration of a case that any act of a governmental or other organ does not correspond to the law, shall render a ruling in accordance with the law.").
68. 1994 Constitutional Statute on the Constitutional Court, supra note 48.
69. Quoted supra text at note 17.
70. For discussions before Oct. 7, see, e.g., Convention Materials, supra note 35, vol. 1, pp. 447-48 (discussion of a single supreme court as proposed in the Sakharov draft constitution).
71. For discussions after Oct. 7, see id. vol. 18, pp. 337-38 (similar proposal by Center for Private Law).
72. The opposing view in favor of keeping the Court was largely informed by concern over the message that its elimination would convey. See id. vol. 9, p. 385 ("[A] country that permits itself not only to adopt a Constitution, but also to periodically change constitutional courts is not worthy of respect. The Constitutional Court is an institution that must continue through different Constitutions, different presidents and different governments.") (remarks of K.A. Bendukidze).
73. Art. 165.1, ¶ 4, Constitution of the RSFSR, as amended by the Laws on Amending the Constitution No. 2708-1 of Apr. 21, 1992 and No. 4061-1 of Dec. 9, 1992, Ved. RSFSR, 1992, no. 20, item 1084, and 1993, no. 2, item 55.
74. Convention Materials, supra note 35, vol. 13, p. 107 (Filatov & Iakovlev).
75. Id. vol. 11, p. 25 (Savitskii). Despite this intent, the delegates did approve art. 128 of the Constitution, which provides that "the powers, procedure for establishment and the activities (deiiatel'nost')" of all three court systems "shall be established by a constitutional statute," and the Constitutional Statute on the Constitutional Court provides that the Court "may exercise other powers bestowed on it by the Constitution ... federal treaties and federal constitutional statutes." However, no major legislative expansions have occurred. Moreover, the Court's expansions of its jurisdiction as discussed in this article have been based on the Constitution and not on any specific provision of its enabling constitutional statute.
76. Cf. infra text at notes 61-73, where "law-application practice" is discussed.
77. An exception may be reviewing any non-normative acts that might be involved in art. 125(3) disputes among federal and state agencies. However, conflicting non-normative acts will most often be claimed to be legitimate only because authorized by a valid normative act, so the Constitutional Court is likely to focus on the conflicting normative acts empowering such agencies to take the contested conflicting non-normative actions.
78. Art. 93 Grundgesetz (Basic Law).
79. Art. 165(1), Constitution of the RSFSR (constitutionality of laws "and other acts").
80. The other aspect of the Constitutional Court's role in the events of Sept.-Oct. of 1993 was its use of its power to initiate cases itself. Despite efforts of some to argue for that power, there was little support. The result, in the words of Presidential Council member Smirniagin, would be that the Court "awakens as on Olympus only in the event that someone from below disturbs it." Convention Materials, supra note 35, vol. 7, p. 40.
81. Convention Materials, supra note 35, vol. 18, p. 343; vol. 19, pp. 270-71.
82. Id. vol. 19, pp. 273-81. Morshchakova was one of the dissenters on the Court in the 1993 cases against Yeltsin.
83. See supra text at notes 18-25.
84. Art. 165.1, ¶ 1, Constitution of the RSFSR, supra note 52.
85. This provision was carried forward in the constitutional draft approved in July of 1993 by the convention delegates before the events of Sept. and Oct. See also art. 66(1), pt. (2), 1991 Law on the Constitutional Court, supra note 8.
86. Convention Materials, supra note 35, vol. 11, pp. 25-27.
87. Id. vol. 11, pp. 16-29, 33-34.
88. Id. vol. 19, pp. 283-84.
89. Id. vol. 18, pp. 337-38.
90. Id. vol. 11, p. 32;
91. vol. 18, pp. 345-46.
92. Id. vol. 14, p. 108.
93. Id. vol. 18, pp. 351-53.
94. Id. vol. 18, p. 351.
95. Id. vol. 19, pp. 342-44, 382-89.
96. Federal Constitutional Statute on the Constitutional Court, supra note 48.
97. See also, Alexander Blankenagel, Court Writes its Own Law, E. EUR. CONST. REV. 74 (Summer/Fall 1994);
98. VITRUK, supra note 34, pp. 35-37.
99. Art. 74, para. 2, Constitutional Statute on the Constitutional Court (emphasis added).
100. See supra text at note 37, where these articles are quoted.
101. "Konstitutsionnyi Sud - sudebnyi organ konstitutsionnogo kontrolia, samostoiatel'no i nezavisimo osushchestvliaiushchii sudebnuiu vlast' posredstvom konstitutsionnogo sudoproizvodstva." Art. 1, Constitutional Statute on the Constitutional Court (emphasis added). This is somewhat ambiguous. Since Russian does not have articles, the statement could mean either "a judicial organ" or "the judicial organ." In this context, it is probably the latter.
102. See art. 1 of the Draft Constitutional Statute on the Constitutional Court and Explanatory Notes Accompanying the Draft (Feb. 1, 1994), p. 2. The draft and explanatory notes were submitted over the signature of Chief Judge Nikolai Vitruk.
103. See art. 125 of the presidential draft of the Constitution, supra note 30.
104. Convention Materials, supra note 35, vol. 11, pp. 5-20.
105. Id. vol. 13, pp. 125-26.
106. This is the case in Austria. See Herbert Hausmaninger, Judicial Referral of Constitutional Questions in Austria, Germany, and Russia, 12 TUL. EUR. & CIV. L.F. 25 (1997).
107. See infra text at notes 91-96 for a discussion of why this limitation was decided on.
108. Convention Materials, supra note 35, vol. 9, p. 84.
109. The legal basis for this assertion is set out in note 111.
110. Convention Materials, supra note 35, vol. 9, p. 85.
111. Id. vol. 11, p. 111.
112. Id. vol. 12, p. 194;
113. vol. 13, p. 342. A compromise position was suggested-that any court may hold a subject law void for its violation of the Constitution, but if the issue is the constitutionality of a federal statute, then the court has to refer the issue to the Constitutional Court. But this was not approved either.
114. Id. vol. 13, pp. 384-85.
115. MITIUKOV & BARNASHOV, supra note 36, at 222.
116. Convention Materials, supra note 35, vol. 18, p. 352-53.
117. Art. 101, 1994 Constitutional Statute on the Constitutional Court. Compare arts. 99 and 101, Draft "Law on the Constitutional Court of the Russian Federation" (Feb. 1, 1994) with Draft "Law on the Constitutional Court of the Russian Federation" (June 22, 1994) (unpublished, on file with the authors).
118. The Supreme Court sought unsuccessfully to change this to a "right" formulation. BIULLETEN' GOSUDARSTVENNOI DUMY FEDERAL 'NOGO SOBRANIIA RF. Pervyi sozyv ot 24.06.1994 g. (Bulletin of the State Duma of the Federal Assembly of June 24, 1994), No. 43(43) pt. 1, pp. 4-63.
119. See also the "explanatory notes" submitted with the Feb. draft law indicate that the proposed law "realizes the constitutional provision on the right of any court to refer to the Constitutional Court the issue of the constitutionality of statutes." (unpublished, on file with the authors).
120. See supra note 76.
121. See art. 5(3) of that law, quoted supra text at note 49.
122. Art. 125(4) is quoted supra note 42.
123. The Court can undertake abstract review of at least some substatutory laws under art. 125(2) if the issue is raised by the limited list of government officials or entities set out there, but not otherwise. But even here an important category of laws is left out. As noted earlier when referral was discussed, the lowest level normative that can be reviewed under art. 125(2) is a decree of the Government, thus not including all manner of substatutory acts issued by ministries or other government agencies.
124. Convention Materials, supra note 35, vol. 19, p. 382. This also underlays the concern of Egor Larionov, the representative from Yakutia Republic, who was afraid that it would be "terrible for the Constitutional Court to accept constitutional complaints from public associations."
125. Id. vol. 19, p. 391.
126. Id. vol. 19, p. 389.
127. Id. vol. 19, p. 391.
128. Id. vol. 19, pp. 384, 386.
129. Cf. id. vol. 19, pp. 270-81 (Morshchakova complaining of an impermissible mix of "administrative justice and the constitutional judicial process.").
130. Art. 59, 1991 Law on the Constitutional Court, supra note 8.
131. See also arts. 91, 95, and 100 of the Constitutional Statute on the Constitutional Court.
132. Art. 93, point 1), point 4) (emphasis added).
133. See also art. 93, point 5) ("the petitioner has earlier addressed a written notice to the governmental organs . . . complaining of a violation by them of its powers as established by the Constitution") .
134. See art. 93(1) (President "may only be removed from office by the Federation Council on the grounds of charges of high treason or another serious crime brought by the State Duma, provided the Supreme Court of the Russian Federation confirms that the President's actions as charged constitute a crime and the Constitutional Court of the Russian Federation confirms that the established procedures for the bringing of charges have been observed.").
135. Art. 93(1)-(2).
136. NAUCHNO-PRAKTICHESKII KOMMENTARII K KONSITTUTSII ROSSIISKOI FEDERATSII (Commentary on the Russian Constitution) (V.V. Lazarev ed., 2003): Commentary on art. 93, ¶ 1. Before leaving the discussion of the contours of art. 125, we should note that the Constitutional Court jurisdiction does not have jurisdiction to hold domestic laws invalid for their conflict with international law or otherwise to apply international law. This is so despite the fact that the application of treaties, such as the European Convention on Human Rights, to invalidate domestic laws has parallels
137. See Peter B. Maggs, The Russian Courts and the Russian Constitution, IND. INT'L & COMP L. REV. 99, 107-10 (1997) (discussing cases from 1993 and even some Soviet roots of the practice).
138. The full bench of the Supreme Court numbers over 115 judges. Typically these rulings are the result of meetings, which are attended not only by the judges of the Supreme Court, but by judges of other courts, academics, and others. The results are usually published "explanations" of the law in a particular area. See discussion infra text at notes 144-45.
139. Ruling of the Plenum of the Russian Supreme Court on Some Questions Concerning the Application of the Constitution of the Russian Federation by Courts, Ruling No. 8 of Oct. 31, 1995, BULLETEN' VERKHOVNOGO SUDA RF (Bulletin of the Supreme Court of the Russian Federation) [hereinafter BVS] 1996, No. 1, p. 3.
140. See also art. 5(3) of the Constitutional Statute on the Judicial System, quoted supra at note 49.
141. Id. ¶ 3.
142. This language, from art. 101 of that law, is quoted supra text at note 89.
143. V.M. Lebedev, "O nekotorykh voprosakh primeneniia sudami Konstitutsii Rossiiskoi Federatsii pri osushchestvlenii pravosudiia" (Commentary on Some Questions of Courts' Application of the Russian Federation Constitution in the Administration of Justice), BVS, 1996, No. 2, p. 1, at 2.
144. See Peter Krug, Departure from the Centralized Model: The Russian Supreme Court and Constitutional Control, 37 VA. J. INT'L L. 725, 755 (1997).
145. Letter of the Supreme Arbitrazh Court No. S3-7/OZ-614 of Aug. 25, 1994, VESTNIK VYSSHEGO ARBITRAZHNOGO SUDA ROSSIISKOI FEDERATSII, 1994, No. 11 [hereinafter WAS].
146. In this respect, it resembles the theory behind Marbury v. Madison, 5 U.S. 137 (1803), in which the United States Supreme Court held that, in deciding an issue to which both a statute and the Constitution apply, must follow the appropriate hierarchy of law and apply the constitutional provision instead of the statute.
147. See art. 231 of the 1964 Russian Civil Procedure Code, as added by Zakon RF "O vnesenu izmenenii i dopolnenii v Grazhdanskii protsessual'nyi kodeks RSFSR" No. 4882-1 ot 28.04.1993 g. (Law on Amending the Civil Procedure Code) No. 4882-1 of Apr. 28, 1993, Ved. RSFSR (1993), no. 22, item 787, and Zakon RF "Ob obzhalovanii v sud nepravomernykh deistvii dolzhnostnykh lits, ushchemliaiushchikh prava grazhdan" ot 27.04.1993 g. (Law on Complaints against Officials) of Apr. 27, 1993, ROSSIISKAIA GAZETA, May 12, 1993. Actually, art. 58 of the 1977 USSR Constitution provided for the right to contest illegal acts of government officials, though it permitted such suits only "as provided for by law" and the requisite "law" was adopted only in 1987.
148. See Peter H. Solomon, Jr., Judicial Power in Russia: Through the Prism of Administrative Justice, 38 LAW & SOC'Y REV. 3, 555 (2004).
149. Also, Zakon RF "O kraevom, oblastnom Sovìte narodnykh deputatov i kraevoi, oblastnoi administratsii" ot 5.03.1992 g. (Law on Regional Legislatures and Administrations) of Mar. 5, 1992, Ved. RSFSR, 1993, no. 13, item 663, in art. 61(3) gave procurators the right to challenge legal acts of the subjects in court.
150. "Grazhdanskii protsessual'nyi kodeks RF No. 138-FZ ot 14.11.2002 g." [hereinafter 2002 Civil Procedure Code] No. 138-FZ of Nov. 14, 2002, SZ RF (2002), No. 46, item 4532.
151. Art. 239-1 of the Civil Procedure Code of the RSFSR, as amended by Zakon RF "O vnesenii izmenenii i dopolnenii v Grazhdanskii protsessual'nyi kodeks RSFSR" No. 4882-1 ot 28.04.1993 g. (Law on Amending the Civil Procedure Code) No. 4882-1 of Apr. 28, 1993, Ved. RSFSR (1993), no. 22, item 787. Actually, art. 116 of the RSFSR Code, applied only to non-normative acts of the Government. The Supreme Court interpreted it by analogy to include normative acts. See "Postanovlenie Presidiuma Verkhovnogo Suda RF No. 268pv-2000pr ot 7.02.2001 g." (Decree of the Presidium of the Russian Supreme Court No. 268pv-2000pr of Feb. 7, 2001) (unpublished), available at the website of the Supreme Court, http://www.supcourt.ru/vs_cases1.php. The Arbitrazh Procedure Code contains similar provisions granting jurisdiction to the arbitrazh courts over challenges not within the exclusive jurisdiction of the Constitutional Court.
152. See arts. 191-96 (normative acts) and arts. 197-201 (non-normative acts) of "Arbitrazhnyi protsessual'nyi kodeks" No. 95-FZ of July 24, 2002 g. (Arbitrazh Procedure Code) No. 95-FZ of July 24, 2002, SZ RF (2002), No. 30, item 3012.
153. Similar provisions were first introduced in 1992. See art. 22 of
154. This provision was also in the law since 1993. See art. 239-3 (1) of the RSFSR Civil Procedure Code, as amended by Zakon RF "O vnesenu izmenenii i dopolnenii v Grazhdanskii protsessual'nyi kodeks RSFSR" No. 4882-1 ot 28.04.1993 g. (Law on Amending the Civil Procedure Code) No. 4882-1 of Apr. 28, 1993, Ved. RSFSR (1993), no. 22, item 787.
155. See Krug, supra note 108.
156. As Krug points out, id. at 752-53, the 1995 Plenum Ruling was preceded by a case in which the Supreme Court Presidium staked out the same position, holding that non-normative actions of the provincial officials were reviewable by it where they were challenged as authorized by an unconstitutional statute.
157. These figures include subject laws and decrees of executive and legislative bodies of subjects. Svetlana Sukhova, "Zakonnyi disput" (Dispute over Laws), SEGODNYA, Feb. 16, 2000, 2.
158. As discussed below, this activity continues today. See infra text at notes 208-10.
159. See infra text at notes 152-60, where this position is described and critiqued.
160. BVS, 1996, No. 11, p. 11 (labor code's limitation on the categories of employees who can sue to contest dismissal (in this case, a presidential appointee) violates the right to judicial protection of rights). The cases enumerated here are discussed in Krug, supra note 108, at 758-67.
161. BVS, 1996, No. 3, p. 4 (holding that Moscow residence law was unconstitutional). This case also invoked the right of equality before the law and proportionality.
162. BVS, 1996, No. 11, p. 15 (reversing denial of application for pension benefits).
163. BVS, 1996, No. 10, p. 7 (military conscription act violates freedom of religion for not including religious beliefs as a ground for exemption from military service).
164. See art. 251(1), Civil Procedure Code, and art. 51(1), Arbitrazh Procedure Code, authorizing procurator challenges to normative acts. Procurators can also file suits on behalf of citizens to protect their rights, including constitutional rights, but only in cases where individuals are "unable because of health, age, mental impairment or other good reason" to themselves sue. Art. 45(1), Civil Procedure Code.
165. See also the informational letter of General Procuracy No. 8-15-2003 of Jan. 27, 2003, EZHENEDEL'NYI BULLETEN' ZAKONODATEL'NYKH I VEDOMSTVENNYKH AKTOV 2003, No. 15 (Apr.), where this limitation is emphasized.
166. See art. 35(6), Federal Law "On the Procuracy" No. 168-FZ of Nov. 17, 1995, SZ RF, 1995, No. 47, Item 4472.
167. COMMENTARY TO THE RULINGS OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION IN CIVIL CASES 6 (Viktor Zhuikov ed., 2000).
168. Ruling of the Plenum of the Supreme Court No. 5 of Apr. 27, 1993 (On Some Issues Arising During the Judicial Consideration of Cases Upon Procurators' Applications Concerning the Recognition of Legal Acts as Contrary to the Law), in SBORNIK POSTANOVLENII PLENUMA VERKHOVNOGO SUDA ROSSIISKOI FEDERATSII (Moscow, 1994).
169. See generally JEFFREY KAHN, FEDERALISM, DEMOCRATIZATION, AND THE RULE OF LAW IN RUSSIA (2002) and PUBLIC POLICY AND LAW IN RUSSIA: IN SEARCH OF A UNIFIED LEGAL AND POLITICAL SPACE - ESSAYS IN HONOR OF DONALD D. BARRY (Robert Sharlet & Ferdinand Feldbrugge eds., 2005).
170. See the federalism cases discussed in Krug, supra note 108, at 764-67.
171. BVS, 1996, No. 11, p. 12.
172. Decision No. 2-P of Jan. 28, 1997, VKS, 1997, No. 1, p. 25.
173. Determination No. 28-0 of June 9, 1995, KONSTITUTSIONNYI SUD RF. POSTANOVLENIIA. OPREDELENIIA. 1992-1996 GG. 160-162. (Tamara Morshchakova ed., 1997).
174. Determination No. 56-0 of Mar. 19, 1997, SZ RF, 1997, No. 24, item 2803.
175. Determination No. 116-0 of Dec. 4, 1995 (unpublished, available on Garant).
176. Para. 4, Decision No. 13-P of Oct. 8, 1997, SZ RF, 1997, No. 42, item 4901.
177. See also Determination No. 23-0 of Feb. 4, 1997 (unpublished, available on Garant).
178. See supra text at notes 107-08.
179. See Decision No. 4-P of May 3, 1995, SZ RF, 1995, No. 19, item 1764.
180. Decision No. 4-P of May 3, 1995, SZ RF, 1995, No. 19, item 1764.
181. Decision No. 7-P of Apr. 30, 1997, SZ RF, No. 20, item 238.
182. See supra text at notes 80-90.
183. Decision No. 19-P of June 16, 1998, VKS, 1998, No. 5 (interpretation of arts. 125-27 of the Constitution).
184. Id.
185. See art. 5(4), Constitution ("The Constitution ... and federal laws have supreme effect over the entire territory of the Russian Federation.") (emphasis added). If the "general effect" of regular court decisions needs to be shored up to provide for equality and uniformity, the Constitutional Court has not been exactly sympathetic to legislative efforts to do so.
186. As discussed infra note 197, it held unconstitutional the legislature's attempt to define a more generalized effect for regular courts' decisions, even on subconstitutional conflicts.
187. See also Determination 88-0 of Oct. 7, 1997, SZ RF, 1997, No. 42, item 4900 ("the courts of general jurisdiction are allowed neither to change the statute-based system of judicial procedure nor to formulate general directives of a normative nature on the non-applicability of a statute, which was not repealed or not declared unconstitutional, nor to issue their own official interpretation of the judgments of the Constitutional Court and to make it binding on other lawenforcement agencies.").
188. See Peter B. Maggs, Judicial Precedent Emerges in the Supreme Court of the Russian Federation, 9 J. E. EUR. L. 479 (2002) and sources cited therein.
189. For examples of the Supreme Court citing prior cases in support of its decisions, see id. and V.M. ZHUIKOV, SUDEBNAIA ZASHCHITA PRAV GRAZHDAN I IURIDICHESKIKH LITS (Moscow, 1997) (Judicial Defense of the Rights of Citizens and Juridical Persons). The possibility that court decisions are a source of law was even considered in Soviet times.
190. See SUDEBNAIA PRAKTIKA V SOVETSKOI PRAVOVOI SISTEME (Judicial Practice in the Soviet Legal System) (Moscow, 1975). An essential prerequisite to an effective system of stare decisis, of course, is access to relevant judicial decisions. Paid private computerized legal databases exist, but more ambitious efforts are planned.
191. See "Postanovlenie Pravitel'stva Rossiiskoi Federatsii "O federal'noi tselevoi programme 'Razvitie sudebnoi sistemy Rossii' na 2007-2011 gody No. 583 ot 21.09.2006 g." (Decree of the Government of the Russian Federation 'On a Federal Targeted Program "Development of the Judicial System of Russia, 2007-2011') No. 583 of Sept. 21, 2006, ROSSHSKAIA GAZETA, Oct. 3, 2006, at http://www.rg.ru/2006/10/03/sud-dok.html.
192. Indeed, under current legislation, the Supreme Court has jurisdiction as a trial court over challenges to non-normative acts of the federal legislature and normative decrees of the President and the Government. Art. 27(1), points 1 and 2, Civil Procedure Code.
193. Such explanations are provided for in art. 126 (Supreme Court) and art. 127 (Supreme Arbitrazh Court), reprinted supra text at note 37.
194. Art. 389, Civil Procedure Code. The Supreme Arbitrazh Court has the same powers.
195. See art. 292, Arbitrazh Procedure Code. Supervisory review is third instance review of court decisions on issues of law alone. Before the quoted provisions from the 2002 Civil Procedure Code were passed, this supervisory review power was even broader, permitting any judge of a superior court or a procurator to invoke review in a higher court. This procedure ran into trouble in the European Court of Human Rights when, in Ryabykh v. Russia, App. No. 52854/99 (Eur.Ct.H.R. July 24, 2003), that Court held that the procedure violated the right to a fair hearing to the extent that it "allowed a judicial decision which had become final and binding to be quashed by a higher court on an application made by a State official."
196. Id. ¶ 56.
197. In light of the Ryabykh, decision, one could argue that even the current provisions violate the Convention, but so far these have not been challenged. While there is a one year time limit on supervisory review of cases at the behest of parties for any reason, conformity review on the motion of the chief judge or assistant chief judge apparently has not time limit. For more on supervisory review, see BURNHAM ET AL., supra note 3, at 62-63, 402-08.
198. Judge Gadzhiev, in dissent, took a more straight-forward view of the problem: Since a dispute has arisen between the Plenum of the Supreme Court... and the Constitutional Court... on the question of [their jurisdiction], resolution of the dispute by one of the participants in that dispute, who is clearly interested in the outcome, is a violation of art. 93 of the Federal Constitutional Statute "On the Constitutional Court" and the general principle embodied in it that "no man may be a judge in his own cause." Judge Gadis Gadzhiev, dissenting in Decision No. 19-P of June 16, 1998, supra note 140.
199. Determination No. 56-0 of Mar. 19, 1997, supra note 132.
200. Decision No. 1-P of Jan. 27, 2004, VKS, 2004, No. 2 (judicial review of Government decrees).
201. See, e.g., ¶ 4, Decision No. 8-P of July 14, 2005, VKS, 2005, No. 4 (holding Government rules invalid for lack of delegated power in a statute).
202. Delegation of power to agencies to make rules in Russia, as in other countries, can be rather general. One need look no further than art. 100 of the Constitutional Statute on Constitutional Court, which authorizes the Government to define the procedures and amount for compensating costs incurred by petitioners who won their cases in the Constitutional Court. If one were to challenge the Government's scale of amounts allowed as constitutionally insufficient, this is clearly not a challenge to the constitutionality of art. 100 itself, but to the Government rule.
203. Decision No. 8-P of Apr. 4, 2002, VKS, 2002, No. 5.
204. Determination No. 15-O of Feb. 8, 2001, VKS, 2001, No. 4,
205. translated in 41 STATUTES & DECISIONS 72-26 (Jan.-Feb. 2005).
206. See also Decision No. 1-P of Jan. 27, 2004, VKS, 2004, No. 2, discussed supra text at notes 149-50 ("judicial review of a normative act of the Government . . . is impossible without establishing the consistency of such an act and/or of that very federal statute to the Constitution . . . from the standpoint of separation of powers as established by it and the division of the competence between federal organs of legislative and executive power.").
207. Decision No. 13-P of July 18, 2003, VKS, 2003, No. 5 (judicial review of charters),
208. translated in 41 STATUTES & DECISIONS 12-30 (Mar.-Apr. 2005).
209. Determination No. 284-O of Dec. 10, 2002, VKS, 2003, No. 2 and No. 3. Dissenting Judge Gadzhiev argued that the Constitutional Court in this case lacked the power either to resolve such subconstitutional conflicts or and to reverse the judgments of the Supreme Court, in which it declared federal regulation void.
210. See art. 120, Constitution, quoted supra text at note 49.
211. Decision No. 1-P of Jan. 27, 2004, VKS, 2004, No. 2 (dissenting opinion of Judge Kononov). The majority had held, similar to the cases quoted in the text, that "judicial review of a normative act of the Government . . . is impossible without establishing the consistency of such an act and/or of that very federal statute to the Constitution . . . from the standpoint of separation of powers as established by it and the division of the competence between federal organs of legislative and executive power." This case was discussed for a different proposition, supra text at notes 149-50.
212. Determination No. 456-O of Nov. 8, 2005, VKS, 2006, No. 2. Determinations are usually devoted to procedural issues, in most cases dismissals of cases as not coming with the jurisdiction of the Court. However, some are viewed by the Court as having "positive content" ("pozitivnoe soderzhanie"), which would be important on questions of jurisdiction.
213. See Kim Lane Scheppele, Constitutional Negotiations: Political Contexts of Judicial Activism in Post-Soviet Europe, 18 INT'L SOC. 227-33 (2003) (Scheppele calls them "delimitations" rather than "determinations").
214. Determination No. 545-0 of Nov. 3, 2006 (unpublished, available on the website of the Russian Constitutional Court).
215. See Decision No. 1-P, supra note 149.
216. The original Russian phrase states that the Court interprets the statute "po svoemu konstitutsionno-pravovomu smyslu v sisteme dejstvuiushchego pravavogo regulirovaniia." It is not known what the last part of the phrase "in the system of the system of current normative legal regulation" means, since none of the cases involve dealing with laws that have lapsed in effect. How institutionalized this device is can be shown by inputting the phrase into a computerized legal database, which nets about 160 Constitutional Court cases.
217. See Gadis A. Gadzhiev, Konstitutsionnyi printsip sudebnoi nezavisimosti (The Constitutional Principle of Judicial Independence), ZHURNAL ROSSIISKOGO PRAVA (Jan. 2003). Judge Gadzhiev is a judge on the Constitutional Court.
218. Wolfgang Zeidler, The Federal Constitutional Court of the Federal Republic of Germany: Decisions on the Constitutionality of Legal Norms, 62 NOTRE DAME L. REV. 504, 509 (1987).
219. Id. at 511.
220. Decision No. 1-P of Feb. 27, 2003, VKS, 2003, No. 3 (case on counting time served in detention).
221. Art. 46 deals with the right to a judicial remedy, art. 49 secures the presumption of innocence, and art. 50 defines the right against being prosecuted twice for the same offense.
222. The Court also cited international standards that it said supported its interpretation. But international law is for the regular courts to apply. See supra note 102.
223. Decision No. 9-P of July 14, 2005, VKS, 2005, No. 4 (court may "go beyond merely ascertaining that a limitation period has run and take into account other circumstances, in particular, to verify whether there have been wrongful actions on the part of a taxpayer in response to a requests from the tax authorities that impeded normal auditing measures that were aimed at delaying them.").
224. Determination of Dec. 20, 2001, No. 269-O (unpublished, available on Garant).
225. German practice also requires that the constitutional court's interpretation "not conflict with the wording and clearly expressed intent of the legislature." Zeidler, supra note 163, at 509. There is no sense bending a statute completely out of shape to save it from unconstitutionality. If nothing else, it would give rise to serious notice problems about what the statute prohibits or authorizes.
226. See supra note 158. This has been part of the basis for regular court resistance to reopening cases based on determinations.
227. See infra text at notes 240-43.
228. Decision No. 1-P, supra note 165.
229. Zeidler, supra note 163, at 511.
230. See infra text at notes 192-201.
231. Decision 3-P of Mar. 21, 2007, ROSSIISKAIA GAZETA, Mar. 30, 2007, ¶ 4 (referendum case) (emphasis added).
232. The other problem with placing judicial review of decisions of the Central Election Commission in the Constitutional Court is that those determinations are non-normative decisions. See supra text at notes 55-60 and 130-31.
233. Id. ¶ 3. The two articles of the Constitution that concern referendums are art. 3(3) ("Referendums and free elections shall be the supreme direct manifestation of the power of the people.") and art. 32(2) ("Citizens of the Russian Federation shall have the right to vote and to be elected to organs of state power and organs of local self-government, and to participate in referendums.").
234. See Decision, supra note 175, ¶ 3.1.
235. See Decision No. 1-P of Jan. 27, 2004, supra note 149.
236. See supra text at notes 61-79.
237. Such roving authority could well run into the same problems that supervisory review has run into in the European Court of Human Rights. See supra note 146. And this is not to mention possible problems with separation of powers and the guarantees of "adversarial principles" in art. 123(4).
238. Art. 46(1) provides in full: "Everyone is entitled to judicial protection of his or her rights and freedoms." Art. 46(2) states: "The decisions and actions or inactions of the organs of state power, local self-government, social organizations and officials may be appealed in court."
239. See, e.g., Decision No. 5-P of Feb. 3, 1998, VKS, 1998, No. 3;
240. Decision No. 9-P of May 28, 1999, VKS, 1999, No. 5;
241. Determination No. 36-O of Feb. 8, 2001, VKS, 2001, No. 4.
242. Decision No. 4-P of Feb. 2, 1996, VKS, 1996, No. 2, p. 2.
243. See also Determination No. 218-O of Oct. 5, 2000, SZ RF, 2000, no. 48, item 4738 ("a supervisory court that has the right and duty enter an order recognizing the necessity for the review of a final decision that has gone into effect on grounds of newly discovered circumstances if there is a basis in the law, including where it is a repeat request for supervisory review.");
244. Determination 403-O of Nov. 8, 2005, (unpublished, available on Garant) ("The provision of article 412(1) of the Criminal Procedure Code . . . does not prevent the effectuation of the right to judicial protection for citizens whose rights were violated as a result of a judicial error - where error is discovered, it must be corrected, including when the complaint is repetitive.") There may be a special interest in Russia of permitting rehabilitation of political prisoners. However, none of these cases involved that. Also, a special statute had already been passed dealing with review in those types of cases.
245. The basis for the rehearing in such a case is the provision in all the procedural codes for reopening decisions based on "newly discovered circumstances," i.e., the fact that the Constitutional Court has made a decision on an issue in the case.
246. Determination of Dec. 20, 2001, No. 269-O (unpublished, available on Garant), discussed supra text at notes 169-70.
247. Decision of the Federal Arbitrazh Court of the Northwest District of July 29, 2002 (unpublished).
248. Determination No. 34-O of Feb. 6, 2003, VVAS, 2003, No. 9.
249. Ruling of the Presidium of the Supreme Arbitrazh Court No. 8282/02 of Mar. 16, 2004, WAS, 2004, No. 7. While the Supreme Arbitrazh Court based its holding in part on the Constitutional Court's Determinations, it also found that the lower court's interpretation of the tax laws violated its own established judicial practice.
250. See supra note 140. Because this case came to the Court as a request for an official interpretation of the Constitution under art. 125(5), the case was decided by the entire court, not just one of its two panels.
251. See supra text at notes 45-46.
252. Id. ¶ 2.
253. See supra text at notes 174-78.
254. Decision 3-P of Mar. 21, 2007 (referendum case), ROSSIISKAIA GAZETA, Mar. 30, 2007, VKS.
255. Of a piece with this departure from art. 125, are the Court's references in several cases to its jurisdiction as involving deciding "public law disputes."
256. See 2002 case, quoted supra text at note 152 (Court "is empowered to decide in the final instance public law disputes on the consistency of normative acts of subjects with the Constitution . . . or federal statutes")
257. and the 2004 case quoted supra text at note 179 ("the Constitutional Court . . . operates as a court of final resort in resolving such public law disputes.").
258. It is ironic that the Constitutional Court in both the 1998 and the 2007 cases seeks to support its "constitutional mode" theory with a citation to art. 6(1) of the European Convention on Human Rights, "which requires that the power of various courts must be provided for in the Constitution and laws enacted consistent with it," while in the same breath, seeking to avoid the very article of the Constitution that defines its jurisdiction. 1998 Decision, ¶ 2; 2007 Decision ¶ 5.2. The Russian version of art. 6(1) is art. 47(1).
259. It is interesting that an "economic mode of judicial procedure" was originally in art. 118(2), but was omitted at the convention. MITIUKOV & BARNASHOV, supra note 36, at 223.
260. Certainly the legislature saw no problem with filling the gaps in the Constitutional Court's art. 125 jurisdiction by empowering the regular courts to engage in judicial review of the validity of laws. In art. 251(1) of the Civil Procedure Code, it gave citizens and others the right to file suit in the general jurisdiction courts challenging the validity of any law whenever the Constitutional Court did not have exclusive jurisdiction. And in art. 253(3), it provided: A decision of the court declaring a normative legal act . . . to be inoperative shall cause such normative act . . . to lose its legal force, as well as other normative legal acts that are based on the normative act declared to be inoperative or which have the same content. But in the 2004 decision discussed earlier, supra text at notes 149-50, 160, and 179, the Constitutional Court held this provision of the Civil Procedure Code unconstitutional. Decision 1-P of Jan. 27, 2004, VKS, 2004, No. 2.
261. Decision No. 19-P of June 16, 1998 (case on interpretation of arts. 125-27 of the Constitution), VKS 1998, No. 5. The Court made clear, however, that the legislative authorization had to be in the form of a constitutional statute.
262. Decision No. 6-P of Apr. 11, 2000, SZ RF, 2000, No. 16, item 1774, ¶ 7,
263. translated in 41 STATUTES & DECISIONS 60-71 (Jan.-Feb. 2005). If the law can no longer be applied, the victorious plaintiff is not likely to care if it still remains on the books. And the government agency will be bound by the determination - if not by an injunction - not to apply the law to anyone else. Perhaps there could be an impact on the amount of damages that could be awarded, but that is doubtful, given that from the date of judgment on "the law cannot be applied." So a claim for damages could not be barred since adjudication of it would arise after the date of the court's decision, though this is not entirely clear.
264. Federal'nyi konstitutsionnyi zakon "O vnesenu izmenenii i dopolnenii v Federal'nyi konstitutsionnyi zakon "O Konstitutsionnom Sude Rossiisskoi Federatsii" No. 4-FKZ ot 15.12.2001 g." (Federal Constitutional Statute "On Amending the Law on the Constitutional Court") No. 4-FKZ of Dec. 15, 2001, SZ RF, 2001, No. 51, item 4824, amending art. 87 of the Constitutional Statute "On the Constitutional Court."
265. See also Determination No. 147-O of Nov. 5, 1998, VKS, 1999, No. 1 (if the law is the very same language, the effect is that the law is "invalid"). The quoted provision of art. 87 was prompted by Supreme Court decisions that took very narrow views of the precedential effects of Constitutional Court decisions. In one 1999 case, the Supreme Court Presidium refused to apply a Constitutional Court precedent invalidating a provision of a statute of the Udmurtia Republic to invalidate similar provisions of a law of the Bashkortostan Republic, on the ground that the two cases involved laws of different republics.
266. See Determination No. 19-O of Mar. 4, 1999 N, ¶ 1, SZ RF, No. 15, item 1928.
267. He also criticized the Court for reaching out to decide the issue of judicial review of decisions of the Central Election Commission, when none of the parties presented it for decision. Art. 74, point 3, of the Constitutional Statute on the Constitutional Court provides that the Constitutional Court "makes decisions and provides conclusions only on the topic set out in the petition and only with respect to that part of the act . . . the constitutionality of which is placed in doubt."
268. See supra text at notes 115-17. These figures include subject laws and decrees of regional executive and legislative bodies.
269. Svetlana Sukhova, "Zakonnyi disput" (Dispute over Laws), SEGODNYA, Feb. 16, 2000, 2.
270. See supra text at note 200, where art. 87 is quoted in relevant part.
271. Decision 19-O of Mar. 4, 1999, VKS RF, 1999, No. 3.
272. Decision of the Presidium of the Russian Supreme Court No. 71-pv98 of Feb. 10, 1999 (unpublished), cited in Valentin Ershov, "Priznanie normativnykh pravovykh aktov protivorechashchimi Konstitutsii RF i federal'nym zakonam: zakonotvorcheskie idei" (Declaring the Normative Legal Acts As Non-Conforming with the Constitution of the RF and with Federal Laws: Legislative Ideas), ROSSIISKAIA IUSTITSIIA, no. 6 (2003).
273. For the draft law, see the Ruling of the Plenum of the Russian Supreme Court No. 4 of Feb. 18, 1999 (unpublished, available on Garant).
274. To be sure, the Federation Council, which at that time consisted of regional governors and speakers of regional legislatures, blocked this bill because regional politicians did not want to have judicial scrutiny at all and not because they cared about the proper distribution of the judicial review powers.
275. Viacheslav Lebedev, Praktika primeneniia reshenii Konstitutsionnogo Suda RF sudami obshchei iurisdiktsii pri osushchestvlenii pravosudiia, in PROBLEMY ISPOLNENIIA FEDERAL'NYMI ORGANAMI GOSUDARSTVENNOI VLASTI I ORGANAMI GOSUDARSTVENNOI VLASTI SUB'EKTOV ROSSIISKOI FEDERATSII RESHENII KONSTITUTSIONNOGO SUDA ROSSIISKOI FEDERATSII I KONSTITUTSIONNYKH (USTAVNYKH) SUDOV SUB'EKTOV ROSSIISKOI FEDERATSII 47 (Mikhail Mitiukov et al. eds., 2001).
276. See, e.g., the stenographic report of the seminar "Practice of Handling Court Cases against Normative Legal Acts," for the judges of Siberia and Far East, held on Apr. 20-21, 2005 in Ulan-Ude, Russia, at http://www.vsudrb.ru/protocol1.doc (last visited Apr. 18, 2007).
277. The Supreme Court's website has a long list of cases challenging normative acts: http://www.vsrf.ru/vs_npa.php?autor=1050001.
278. Id. (presentation of Judge Serkov). At the same time, the district courts heard 5,486 challenges to municipal laws in 2003, upholding 72 percent of those challenges, and 5,716 challenges in 2004, granting 73.8 percent of them. The Supreme Court also introduced a bill creating federal administrative courts, under its supervision, that would hear individual complaints claiming that regional laws violated regional charters or constitutions. Gosudarstvennaia Duma FS RF, "Postanovlenie no. 824-III GD 'O federalnykh admnistrativnykh sudakh v Rossiiskoi Federatsii,'" Nov. 22, 2000 (published in the legal database "SPS Konsul'tant Plius: Zakonoproekty"). The State Duma approved the bill on its first reading in Nov. 2000, but it went no further.
279. See Gennady Zhilin, Problemy povysheniya effektivnosti konstitutsionnogo sudoproizvodstva v Rossiiskoi Federatsii (Problems of Improving the Effectiveness of Constitutional Justice in the Russian Federation), in KONSTITUTSIONNOE PRAVOSUDIE 4, 14-22 (2000).
280. See supra note 198 and accompanying text. One wonders why any law beyond the basic Constitutional Statute on the judiciary passed in 1996 would be necessary, since the power to engage in the "administrative mode of procedure" is already granted there. Art. 19(1), 1996 Constitutional Statute on the Judicial System. It further states that "[a] court that has established while hearing a case the inconsistency of an act of a government or other entity . . . with the Constitution [or other federal law] . . . shall make a decision in accord with the legal provisions that have the higher legal force." Art. 5(3).
281. See, e.g., Anton Burkov, "Bor'ba za vlast mezhdu Konstitutsionnym Sudom RF i Verkhovnym Sudom RF: postradaiut li prava cheloveka?" (The Struggle for Power between the Russian Constitutional Court and the Russian Supreme Court: Will Human Rights Suffer?),
282. GRAZHDANIN I PRAVO (2003), no. 2, pp. 33-38 and no. 5, pp. 33-38. Criticism was undoubtedly fueled by a strong dissent by Judge Gadzhiev in the 1998 case, in which he argued that removing this power violated the right of citizens to a judicial remedy under art. 46 of the Constitution and the instruction in art. 5(3) of the 1996 law.
283. Federal'nyi zakon "O vnesenu izmenenii i dolpolnenii v Grazhdanskii protsessual'nyi kodeks RSFSR" No. 120-FZ ot 7.08.2000 g. (Law on Amending the RSFSR Civil Procedure Code) No. 120-FZ of Aug. 7, 2000, SZ RF, 2000, No. 33, item 3346.
284. See also supra text at notes 111-12. Actually, in late 1998 President Yeltsin did introduce a draft of a federal constitutional statute that would have complied with the Court's requirements.
285. See "Pis'mo Prezidenta RF" No. Pr-1622 ot 12.12.1998 g. (Letter of the Russian President) No. Pr-1622 of Dec. 12, 1998 (Draft of the federal Constitutional Statute on the courts of general jurisdiction in Russia) (unpublished, available on Garant). The Supreme Court drafted the bill, but asked Yeltsin to sponsor it. However, the bill did not even survive a first reading in the Duma and was withdrawn by Putin in June of 2006.
286. See supra notes 111-13 and accompanying text.
287. See also Pt. II of the Constitution, sec. 2 (prior laws effective to the extent that their content does not violate the Constitution).
288. See Decision No. 1-P ¶ 7 (Jan. 27, 2004), discussed supra text at notes 149-50 and 179.
289. Ruling of the Plenum of the Russian Supreme Court No. 19 of May 25, 2005, ROSSIISKAIA GAZETA, June 1, 2000.
290. However, according to the Constitutional Court, it has "appellate" jurisdiction through petitions by subject legislatures or governors acting pursuant to art. 125(2).
291. See supra text at notes 179-89. The Court also repeatedly held that the power of the general jurisdiction court to operate in an administrative mode of procedure to declare subject laws inoperative did not extend to the Constitutions and charters of subjects. Decision 13-P of July 18, 2003, ROSSIISKAIA GAZETA, July 29, 2003.
292. Ruling of the Plenum of the Supreme Arbitrazh Court No. 6 of Apr. 27, 2000 (unpublished, available on Garant). This bill was later withdrawn in 2003 after the Arbitrazh Procedure Code was approved.
293. Arts. 29 and 34 of the Arbitrazh Procedure Code.
294. Determination No. 119-O of June 8, 2000 (Khabarovsk) (unpublished);
295. Determination No. 17-O of Jan. 18, 2001 (Tiumen) (unpublished);
296. Determination No. 15-O of Feb. 8, 2001 (Karelia), SZ RF, 2001, No. 11, item 1070;
297. Determination No. 152-O of Apr. 2, 2001 (Tyva), VKS, 2001, No. 6;
298. Determination No. 228-O of Dec. 6, 2001 (Buriatia), VKS, 2002, No. 2;
299. Determination No. 136-O of July 11, 2002 (Pskov) (unpublished).
300. Decision 13-P of July 18, 2003, ROSSIISKAIA GAZETA, July 29, 2003. This case involved challenges to subject constititutions or charters, but this part of the decision would apply to other challenges as well.
301. See, e.g., Decision 19-P of Dec. 15, 2003, ROSSIISKAIA GAZETA, Dec. 24, 2003;
302. Decision 10-P of May 13, 2004, ROSSIISKAIA GAZETA, May 25, 2004.
303. The Constitutional Court consistently avoided taking jurisdiction over petitions against the President from individuals and advised the plaintiffs to go to the Supreme Court.
304. See, e.g., Determination 209-O of Apr. 22, 2005 (Presidential Decree on the social guarantees for the members of the Federal Assembly in 1990-1995) (unpublished, available on Garant);
305. Determination 207-O of July 11, 2002 (Presidential Decree on the urgent measures of the implementation of land reform) (unpublished, available on Garant). Meanwhile, the Supreme Court consistently rejected almost all such petitions.
306. See its list of cases on its website at http://www.vsrf.ru/vs_npa. php?autor=1050010.
307. "Rabota sudov Rossiiskoi Federatsii v 2002 godu," ROSSIISKAIA IUSTITSIIA 2003, No. 8, p. 69.
308. Determination No. 284-O of Dec. 10, 2002, VKS, 2003, No. 2, No. 3;
309. Determination No. 283-O of Dec. 10, 2002, VKS, 2003, No. 2.
310. Supreme Court Decision No. GKPI03-49 of Feb. 12, 2003, EZHENEDEL'NYI BULLETEN' ZAKONODATEL'NYKH I VEDOMSTVENNYKH AKTOV 2003, No. 15 (Apr.);
311. Cassation Chamber of the Supreme Court Determination No. KAS-03-167 of May 15, 2003 (unpublished, available on Garant).
312. Decision No. 1-P of Jan. 27, 2004, SZ RF, discussed supra text at notes 149-50.
313. Determination No. KAS06-9 of Jan. 31, 2006 (unpublished), Russian Supreme Court website, available at http://www.supcourt.ru.
314. Decision 456-O of Nov. 8, 2005, VKS, 2006, No. 2, discussed supra text at note 158.
315. The Constitutional Court's asserted "appellate" powers were discussed supra text at notes 179-89.
316. See, e.g., Determination No. 53-G01-9 of Aug. 17, 2001 (unpublished, available on Garant) (declaring the provision of the federal law on the immunity of the subjects' legislators unconstitutional);
317. Determination No. 51-G02-11 of Mar. 15, 2002 (unpublished, available on Garant) (declaring that courts have the right to refer issues to the Constitutional Court under the 1994 Constitutional Statute on the Constitutional Court);
318. Ruling of the Presidium of the Tiumen Regional Court of Nov. 15, 2002, BVS, 2003, No. 4) (declaring a provision of the Family Code unconstitutional).
319. These and other statistics in this paragraph are based on the annual compilations of the decisions and determinations of the Constitutional Court and on "Deiatel'nost' konstitutsionnogo Suda RF v tsifrakh (noiabr' 1991 g. - iiul' 2001 g.)" (The Activity of the Russian Constitutional Court in Numbers (Nov. 1991 - July 2001),
320. ROSSIISKAIA IUSTITSIIA, 2001, No. 10, pp. 43-44, at http://lawmix.ru/jude_ practice.php?id=11537. There were 15 referrals in 1997 and 26 referrals in 1998. However, there was a bigger jump in 1996 (from 3 to 12) and then in 2003-2004 (average of 50 each year).
321. Oleg Boikov, an Assistant Chief Judge of the Supreme Arbitrazh Court has suggested that it could well be laziness.
322. See his Postanovleniia Konstitutsionnogo Suda Rossiiskoi Federatsii v deiatelnosti arbitrazhnykh sudov (Decisions of the Constitutional Court of the Russian Federation in the Work of the Arbitrazh courts),
323. in PROBLEMY ISPOLNENIIA FEDERALNYMI ORGANAMI GOSUDARSTVENNOI VLASTI I ORGANAMI GOSUDARSTVENNOI VLASTI SUB'EKTOV ROSSIISKOI FEDERATSII RESHENII KONSTITUTSIONNOGO SUDA ROSSIISKOI FEDERATSII I KONSTITUTSIONNYKH (USTAVNYKH) SUDOV SUBEKTOV ROSSIISKOI FEDERATSII 50-55 (Mikhail Mitiukov et al. eds., 2001). For the latest edition of the debate over referrals between Tamara Morshchakova, the ex-Vice-Chair of the Russian Constitutional Court, and Viacheslav Lebedev, the Russian Supreme Court Chief Judge,
324. see KOMMENTARII K ZAKONODATELSTVU O SUDEBNOI SISTEME ROSSIISKOI FEDERATSII 56-63 (Tamara Morshchakova ed., 2003) (Commentary on the Legislation on the Judicial System in the Russian Federation).
325. Between 1995 and 2005, the Constitutional Court received at total of 134,677 individual complaints. The judges actually examined only 6,473, the rest being dealt with by court clerks. This compares to 319 judicial referrals in the same period.
326. VERA ANISHINA, NAPRAVLENIE SUDOM OBSHEI IURISDIKTSII ILI ARBITRAZHNYM SUDOM ZAPROSA O PROVERKE KONSTITUTSIONNOSTI PRIMENENNOGO ILI PODLEZHASHCHEGO PRIMENENIIU ZAKONA V KONSTITUTSIONNYI SUD RF (MOSCOW, 2002).
327. Natalia Kostenko, "Luzhkov prizval arbitrazh borotsia s reiderstvom," (Luzhkov has called on arbitrazh courts to combat hostile takeovers),
328. NEZAVISIMAIA GAZETA, Sept. 12, 2006. Since then, a draft law on the subject has been published, available at http://www.vestnik.ru/apk. php.
329. Determination 59-O of June 6, 1997, SZ RF, 1997, No. 25, item 2950 (noting that this is what the Supreme Court did).
330. Konstantin Katanian, "Konstitutsionnyi Sud protiv vseh ostal'nykh sudov" (Constitutional Court Against the Rest of the Courts), NEZAVISIMAYA GAZETA, Feb. 13, 1996.
331. For the summary of these complaints, see id.
332. See supra text at note 171.
333. See, e.g., Presidium of the Supreme Court Decision No. 31pv02 of July 31, 2002 (unpublished, available on Garant), which re-opened the case on the basis of the Constitutional Court decision 1-P of Jan. 15, 2002, SZ RF, 2002, No. 6, item 626.
334. Ugolovno-protsessual'lnyi kodeks RF, ot 18 dekabria 2001 g. No. 174-FZ, SZ RF, 2001, No. 52 (chast' I), item 492 (Criminal Procedure Code), art. 413(4), point 1,
335. translated in 40 STATUTES & DECISIONS (Jan.-Aug. 2004);
336. Arbitrazhnyi protsessual'nyi kodeks RF ot 24 iiulia 2002 g. N. 95-FZ (Arbitrazh Procedure Code), art. 311, point 6. While there is no similar provision in the Civil Procedure Code, commentaries state that it is implied.
337. Aliia Samigullina, "KS legalizovalsia na bumage" (The Constitutional Court Has Legalized Itself on Paper), GAZETA.R U, Dec. 12, 2006, at http://www.gazeta.ru/2006/12/12/oa_226337.shtml.
338. See, e.g., Oleg Boikov, supra note 233 and ALEXANDR BOIKOV, TRET'IA VLAST' V ROSSII. KNIGA VTORAIA. PRODOLZHENIE REFORM 77-101 (Moscow, 2002) (The Third Branch of Government in Russia. Volume 2. Continuation of Reforms).
339. See supra text at notes 182-89.
340. "Spravka ob ispolnenii reshenii Konstitutsionnogo Suda Rossiiskoi Federatsii, priniatykh v oktiabre-dekabre 2001 goda," (Statement on the Implementation of the Decisions of the Constitutional Court of the Russian Federation Issued Between October and December 2001) (Apr. 3, 2002, unpublished document).
341. Ruling of the Presidium of the Supreme Arbitrazh Court No. 11801/06 of Dec. 5, 2006 (unpublished, available on Garant).
342. Boikov, supra note 233, at 54.
343. Mikhail Mitiukov, "Kak ispolniaiutsia resheniia Konstitutsionnogo Suda Rossiiskoi Federatsii konstitutsionnykh (ustavnykh) sudov sub'ektov Federatsii," (How the Judgments of the Russian Constitutional Court and Subject Charter Courts Are Implemented) ZHURNAL ROSSIISKOGO PRAVA, 2001, No. 7.
344. Interview with a Judge of the Russian Constitutional Court, in Moscow (June 2001).
345. See supra note 8.
346. Alexei Trochev, Implementing Russian Constitutional Court Decisions, 11:1/2 E. EUR. CONST. REV. 95-103 (Winter/Spring 2002). Art. 87 of the constitutional statute, quoted supra text at note 200, was one of the amendments adopted.
347. See also art. 125(5), providing for the Court to issue binding interpretations of the Constitution.
348. As a practical matter, the modest work product of the Constitutional Court suggests that an active role for the regular courts would be helpful. In the period 2001 through 2006, the Court issued only 97 decisions and 2,843 determinations. In 2005 and 2006 alone, the Court received 14,989 and 14,944 petitions, respectively. These statistics are taken from annual compilations of statistics published by the Court (Konstitutsionnyi Sud Postanovlenia Opredelenia 2001-2005) and the Court's website for 2006, http://www.ksrf.ru/ contact/review.htm.
349. See Onishchenko v. Directorate of Internal Affairs of Moscow, BVS, 1996, No. 3, p. 4
350. (Jan. 3, 1996) and Decision No. 9-P, VKS, 1996, No. 2, No. 42 (Apr. 4, 1996). Whether decisions on unconstitutionality of residence permits will ever solve the problem is another matter.
351. See "Pasportnye stoly Moskvy pridumyvaiut svoi 'pravila registratsii'" (Passport Offices in Moscow Make Up Their Own Registration Rules), http://www.izvestia.ru/capital/article420094/.
352. Art. 125(6), which specifies that some of the same institutions listed in art. 125(2) can request "an interpretation of the Constitution," might also be used by the institutions specified there, though the fact that such requests must be considered by the full bench of the Constitutional Court may make this option unwieldy.
353. Art. 87, Constitutional Statute on the Constitutional Court, quoted in relevant part supra text at note 200.
354. See BATIAEV, supra note 46, commentary on art. 83: "The practice of the Constitutional Court . . . issuing determinations in which it clarifies earlier decisions it has made is very widespread. Often there are requests to clarify positions taken by the Constitutional Court . . . that are not in connection with the main issue that was examined by the Constitutional Court . . . , but rather to clarify other statements set out by the Constitutional Court . . . (other observations and justifications) in passing in the process of arriving at its main conclusion . . . ." In common law parlance, even obiter dictum can be explored on a request for clarification.
355. See, e.g., Determination of the Cassation Chamber of the Supreme Court No. KAS06-298 of Oct. 26, 2006 (unpublished, available at http://www.supcourt.ru);
356. Determination of the Cassation Chamber of the Supreme Court No. KAS06-311 of Aug. 22, 2006 (unpublished, available on Garant);
357. Determination of the Cassation Chamber of the Supreme Court No. KAS06-129 of May 25, 2006 (unpublished, available on Garant);
358. Decision of the Supreme Arbitrazh Court No. 10539/04 of Mar. 15, 2006, WAS, 2006, No. 5.
359. See supra text at note 71.
360. The system could define exhaustion variously, from requiring only exhaustion in the trial court, to requiring the pursuit of one appeal (cassation), to requiring that supervisory review be sought.
361. Art. 74, Constitutional Statute on the Constitutional Court. Calling the Constitutional court's determination a "guess" is not a judgment of the quality of the interpretation, but a statement about the absence of any authority in the Constitutional Court to engage in statutory interpretation.
362. See supra text at notes 98-102.