Precedent po-Russky

Things are once again afoot in the Russian judiciary, this time in a somewhat unanticipated direction.

Last week the Russian Constitutional Court (KSRF) reached a decision which effectively paves the way for the doctrine of binding precedent in trhe civil law regime. The decision relates specifically to the proceedings of the Supreme Arbitration Court (VAS)

While a little esoteric, this decision is fairly revolutionary for those of us that follow Russian jurisprudence.

Obiter would greatly welcome the sharing of any academic or journalistic analysis of this that comes to readers' attentions.

Sergei Magnitsky - RIP

It was announced today by the investigative committee of the Ministry of Internal Affairs that Sergei Magnitsky, lawyer with the Moscow firm Firestone Duncan, has died in prison.

His death comes almost a year to the date since his spurious arrest on tax evasion charges arising from his work with Firestone client, Hermitage Capital.

This is an immense tragedy that is beyond comment. Our condolences go to his family, friends and colleagues.

Obiter

Penal reform

Obiter is very pleased by Medvedev's recent interest in reform of the penal system and lack of judicial discretion with regard to sentencing. Community service for at least of the 890,000 Russians in detention throughout the country would make a lasting impact on the country and a system that has clearly been disfunctional for some time now.

We continue to monitor these developments and welcome readers' thoughts or observations as always.

law firm raids

Seems that the battle over the Moskva hotel project is being ramped up again as it occassionally does and this time has claimed White & Case and DLA as victims. Both firms' Moscow offices were raided by the Investigative Committee of the MVD on 17th June as part of an alleged fraud investigation.

It seems that the target of the raids was Ashot Egiazaryan, a competitor of Luzhkov and Baturina in the Moskva deal as well as the owner of Daev Plaza, one of the two office centres raided.

Obiter RU is not surprised that administrative pressure is still being applied by the Mayor's people but once again, the battle creeps into the legal sphere with amazing ease. It is quickly getting to the stage where if there are any commercial/political interests at stake in your case; go to Paris or Frankfurt and get representation there.

Thoughts on Politkovskaya

Obiter RU has reserved judgement on the February acquittal of Ibragim and Dzhabrail Makhmudov and Sergei Khadzhaikurbanov over the murder of Anna Politkovskaya. It did so as it was and obviously remains an emotive subject, and the dust had to settle before we got any sense out of those involved.


Perhaps predictably, the standard response to date can be characterised as follows:
- It is symbolic of the lack of rule of law in Russia;
- It is reflective of political involvement in the Judicial process;
- It is indicative of the failure of jury trials;
- It is indictment of the Procuracy and its poor evidential standards;
- That her death was the work of foreign conspirators inspired to destabilise the current regime and the verdict itself is thus a side show (one of the more unbalanced points made by intellectually unchallenging Kremlin parrot Peter Lavelle).


In the given case these points are moot if, with the exception of the latter, valid concerns that merit attention. We argue that it is encouraging that an acquittal was awarded at all. The General Procurator and his staff were placed under immense political pressure to secure a conviction. The general public was convinced if not of the defendants' specific complicity in this crime, then of their general complicity in criminality. An acquittal under such circumstances is indeed rare and ones hopes is indicative of some measure of independent judicial discretion and the objectivity of the jury trial in the face of external pressures.

Perhaps not a resounding victory but a sign that there remains some measure of resistance and independence in the legal system. If one is optimistic, as Obiter RU remains, this may mean that the Procuracy will have to improve their evidential standards and levels of professionalism in order to secure what their leadership considers politically desirable or expedient.

Chapter 29- a new dialogue?

A welcome sign this week that the legislature will revisit the Federation's much discussed and highly controversial Chapter 29 (Section X) of the Criminal Code of the Russian Federation. Chapter 29 relating to "Crimes against the fundamentals of the Constitutional System and State Security" includes statues relating to high treason, espionage and state secrets.

The review of the broadening of the interpretation of these laws seen over 2008 is being openly supported by President Medvedev in what Kremlin officials are using as a display of Medvedev's increased willingness to enter into a dialogue with the the public. The measures have been highly controversial and the debate over the interpretation has moved beyond jurists and freedom of speech NGOs to be discussed widely in the press.

A rare dialogue well worth continuing.

Memorial raid ruled illegal

On Tuesday 20th January, a ruling was heard at the Dzerzhinsky District Court which declared a 4th December 2008 raid on the offices of human rights NGO memorial illegal.

The December raid was conducted by several masked and armed men who claimed to be from the local Investigative Committee of the General Procurators' office acting upon alleged social and ethnic hatred incited by an article by St. Petersburg journalist Konstantin Chernyayev Paper files and computers were confiscated in the course of the raid.

The ruling to dismiss the legal grounds for the raid was based on the fact that Memorial was denied the right to have legal counsel present during the raid. Video evidence submitted to the court showed the investigators ignoring the attempts of Memorial's lawyer to enter the offices.

The case is now pending an appeal.