31 Judicial Independence in Russia Professor Bill Bowring Introduction On 19 May 2006, Russia will take over as chair of the Council of Europe, an organisation that it joined 10 years ago. The member states of the Council of Europe will be closely watching developments in Russia relating to democracy, human rights and the independence of the judiciary. Since the collapse of the communist system in 1991, there have been a number of significant judicial reforms, and Russians are making far greater use of the civil courts than during Soviet times. But recent developments in the judicial sphere are worrying and the EU needs to be aware of these concerns. The First Phase Joining the Council of Europe and ratification of the treaty covering the European Court of Human Rights (ECHR) in 1998 can be seen as pivotal moments in the process of legal and judicial reform in Russia. Two distinct phases can be distinguished. The first phase began with the publication of the Conception of Judicial Reform on 24 October 1991, after several years work, by Sergei Pashin 3 , Sergei Vitsin 4 and others, and the 22 November 1991 enactment of the Declaration of the Rights and Freedoms of the Person and Citizen by the Supreme Soviet of the RSFSR. The Constitutional Court, created as the USSR reached its death-throes, started work in January 1992, followed by the 26 June 1992 enactment of the Law “On the Status of Judges of the Russian Federation”, and the 27 April 1993 enactment of the Law “On Complaining to Court About Activities and Decisions which Violate the Rights and Freedoms of Citizens”. On 16 July 1993, a great experiment, led by Sergei Pashin, began with enactment of the new Part X to the Criminal Procedural Code (UPK), which introduced jury trial, as an experiment, in nine Russian regions. 5 The dissolution, by force, of the Supreme Soviet and suspension of the Constitutional Court in October 1993 appeared to throw the whole process of reform into doubt. But the new Constitution of the Russian Federation, adopted by (dubious) referendum on 12 December 1993, contained many human rights provisions taken straight from the ECHR and UN instruments. The Constitutional Court was revived on 24 June 1994, with a new law which the judges themselves had drafted, plus an increased complement of 19 judges. It was a positive omen that continuity was retained, with all the pre-1993 judges keeping their positions, including the controversial former Chairman – and now once again Chairman - Valerii Zorkin. The Constitutional Court has consistently begun to refer to and apply the jurisprudence of the European Court of Human Rights. 6 3 his career is described below 4 now professor, indeed a general, in the University of the Ministry of the Interior, in Moscow 5 For analysis of these developments see F. J. M. Feldbrugge Russian Law: The End of the Soviet System and the Role of Law (Martinus Nijhoff Publishers, Dordrecht, 1993); Gordon Smith Reforming the Russian Legal System (Cambridge University Press, 1996); Peter Solomon (ed) Reforming Justice in Russia, 1864-1996. Power, Culture, and the Limits of Legal Order (M. E. Sharpe, Armonk and London, 1997); Peter Solomon “Courts and Their Reform in Russian History” in Peter Solomon (ed) Reforming Justice in Russia, 1864-1996. Power, Culture, and the Limits of Legal Order (M. E. Sharpe, Armonk and London, 1997) pp.3-20 6 W. B. Simons “Russia's Constitutional Court and a Decade of Hard Cases: A Postscript “ Review of Central and East European Law, 1 September 2003, vol. 28, no. 3-4, pp. 655-678(24)