Legal Precedent in Russia - Reality or Fiction?

P. Mishyna, School of Governance and Politics

The problem of judicial precedent in Russia is highly debated but there is no its regulation on the legislative level. It is discussed if legal precedent will become a future of the legal system in Russia. Inclination to the judicial formation of the law is observed today. It is necessary to fix the judicial precedent as an independent form of law for its official recognition.The article highlights the main issues.

Keywords: judicial (legal) precedent, law of practice, source of law, court, legal system.

Introduction. New developments in the world legal space bring about the changes in Russian legislation. The system of law in the world changes and develops basing on public interests, universal values and democratic ideas. Democratization causes significant growth of importance of all the legal sources including judicial precedent.

In the age of the globalization, there is a rapprochement of different legal systems. Continental legal system show its interests in the law of practice. Russian law belongs to the Civil Law system which has The Legal Act as the main source. Other legal sources are optionally important. But in The Russian Federation the importance of legal precedent grows today. The accumulated practice shows that in the nearest future judicial precedent will become an independent source of Russian law. All above makes this subject is relevant.

Theoretical Background. The information on the recent changes in the law, as the work of the Russian Constitutional and the Russian Supreme Courts, is available to every citizen today. It helps to make the right analysis. Also there are many different articles and studies where the problem of the judicial precedent in Russia is explored. That is why it is rather easy to collect necessary information, to analyse it and to answer the main question: «Does the law of practice is a real future of the Russian law?»

Study. Methods. The analysis of appropriate federal laws, searching for the «echos» of the judicial decisions help to make the conclusion about the role of the Courts in Russian legislature. According to the acting laws it is possible to decide if it is possible to legally recognize judicial precedent as an official legal form. Comparison legal reality with the current laws can show the gaps in Russian law and  suggest real solutions of its problems.

Procedure. Presently judicial precedents in The Russian Federation are  virtually established by Russian Constitutional Court. The legal decisions of The Constitutional Court are obligatory, they cannot be ignored. The precedents created by the Constitutional Court have a normative and regulating function. According to this statement its judgments and official interpretations have a real legal force. In this way the judicial authority is in fact equated to the legislative body. A lot of scholars are against the judicial legislation as it contradicts one of the basic constitutional principles in Russia that of «checks and balances». But legal judgments should not be mixed with the law-making. The judicial decisions are based on the law, its decisions are under the law and they are in conformity with the decisions of the representative body. It cannot be contrary to the acts of the Parliament, it only complements and explains its decisions.

Law enforcement shows that judicial precedent is already actually one of the legal sources in Russia. The precedents of The European Court of Human Rights (ECHR) is very often are taken into considering in the judicial decisions. Russian Constitutional Court refers itself to its previous decisions on the similar questions like to the legal precedents. There are legislative rules in some laws which fix judicial acts (that of article 390 of the Civil Procedure Code).

The role of the legal precedents should not be underestimated. Law of practice is closer to the changing reality, it is more flexible in using than the abstract norms. Nowadays the Russian law system faces a number of problems which partly are the result of the overloading in the Russian law, its defects and numbers of its gaps.

In conformity with the federal law on the Russian Constitutional Court the decisions of the Constitutional Court are obligatory for the execution in the whole territory of the Russian Federation for each public authorities. Other legal norms which are created by the Russian Supreme Court have similar legal nature. It means that the judicial act is admitted as a normative legal act. Today it is not officially admitted as a legal source in Russia. The role of this legal form and its place in Russian legal system need official fixing in the law. The real decision of this problem is observed. Legal ways let separate the field of actions of legislature from the field of actions of judicial authority in the questions of law-making. It is important not only to consolidate law of practice legally but to limit its application and the possibility of its use.

A judge who faces a gap in the law can make a decision based only on the constitutional frameworks of the Russian Federation. Legal rules created by the jurisprudence could be recognized in law only in the degree of its conformity with the main regulations of the Russian Constitution and with the human rights and liberties. It is necessary to fix legally the order of law-making of the judicial authorities. In future inclusion the decisions of the European Court which are applicable for the Russian legal system in the system of the judicial precedents as the official legal sources could be considered too.

Results. Russian Constitution, different federal laws and judicial decisions are explored in the following article. It is clear that if the role of the legal precedent is correctly fixed in the law it will not be contrary to the Russian legal frameworks. Law of practice needs recognition today.

Discussion. This conclusion is really significant. But it also needs much work and elaboration. Such change is really important and difficult for the Russian legal system. This problem will become more relevant over time.

Conclusion. A legal precedent is one of the real ways of solving the immediate legal problems in the Russian Federation. Law of practice can become an effective tool in Russian legal system as the others legal forms. Its recognition in law will become an important stage of the development of the law in the Russian Federation.

References:

1. The Constitution of the Russian Federation.
2. Civil Procedure Code of the Russian Federation.
3. Gushchina N., Glukhoedov M. (2013). Judicial precedent in Russian legal system: history, theory and practice. Modern law 2, 79-85.
4. Kuzheleva M. (2014). Judicial precedent in constitutional law of Russian Federation. Omsk University journal 2, 104-116.
5. Lapkovich A. (2014). Judicial precedent in Russian legal system. Young scientist 19, 422-424.
6. Pashentsev D. (2011). Judicial precedent as a source of law in the Russian law system. Modern law 4, 77-80.
7. Zorkin V. (2004). The precedent in the decisions of the Russian Constitutional Court. The journal of the Russian law 12, 27-30.
8. Zorkin V. (2005). The Russian Constitutional Court in the European law system. The journal of the Russian law 3, 50-52.