Judicial Power in Russia: Through the Prism of Administrative Justice
Solomon, Peter H., Jr., Law & Society Review
This article assesses the power of judges in Russia (on courts of general jurisdiction, arbitrazh courts, and military courts) in dealing with cases in which the government or one of its officials is a party. Power, that is, the resources of judges to make binding decisions, is understood as including jurisdiction, discretion, and authority to ensure compliance. The article analyzes the dramatic growth of jurisdiction and caseload in administrative justice in post-Soviet Russia to the year 2002 and examines how the courts have performed in handling the review of actions by officials (including in the military), tax cases, electoral disputes, and the legality of normative acts (both regulations and laws of lower governments), especially in the late 1990s. High rates of success for persons bringing suits against the government suggest that judges were able by and large to adjudicate fairly and rule against the state. To a considerable degree (but not always), those decisions were implemented (more often than were constitutional and commercial decisions). Interestingly, citizens who challenged the actions ofofficials in court had much more success than those who brought complaints to the Procuracy. Finally, the article develops an agenda for future research that would deepen understanding of the significance of administrative justice in the Russian Federation and the power of judges.
How powerful are judges and courts in Russia ten years after the breakup of the USSR? Without answering this question, it is hard to evaluate the ongoing process of judicial reform in the Russian Federation.
That reform has highlighted the struggle to give judges in Russia the basic elements of judicial independence, such as tenure in office, financial security, and administration of their own affairs. At the same time, Russian courts as a whole have acquired many areas of new jurisdiction, ranging from constitutional matters to commercial disputes, pretrial detention, and a wide variety of disputes between citizens and the state (judicial review of administrative acts, regulations, and laws or what Russians call administrative justice) (Solomon & Foglesong 2000). In addition to these achievements of the Yeltsin period (1991-1998), judicial reform gained momentum when President Vladimir Putin made it a personal priority. In the first years of the new millennium, his efforts led to major new financial support for the courts, the adoption of three new procedural codes (criminal, civil, and arbitrazh), and such major initiatives as the establishment of justice of the peace courts and the expansion of jury trials, not to speak of efforts to improve the consistency of laws among the federal government, the subjects of the federation (regions, territories, republics), and municipalities. Among post-Soviet countries, Russia is engaging in the most far-reaching judicial reform effort, and for this reason alone it deserves special attention.
I have argued elsewhere that it was the combination of newly won autonomy for judges and new power in the form of involvement in matters of public import that led Putin to emphasize the accountability of judges in his judicial reform program of 2001 (Solomon 2002, forthcoming). But thus far there has been little scholarship on the nature of this power.1 Nor has sufficient attention been paid in the literature on political and legal transitions to the challenge of making courts in post-authoritarian settings independent and powerful at the same time, arguably a crucial part of the achievement of a modern legal order.2 More than other post-Communist countries, Russia has tried to accomplish these two goals simultaneously, despite the fact that making courts responsible for matters of political or public importance may complicate the realization of judicial independence by increasing the desire of powerful persons to find ways of assuring decisions favorable to their interests and needs. A full assessment of Russia's empowerment of its courts, which this article only initiates, will contribute to an understanding of legal transitions more generally. …