As discussed, this is reflected in the hardening of procedural rights regarding access to justice and of protective rights against administrative violation, and it entails assimilation of international norms into domestic law. However, this also means that rights can assume more volatile normative force and they can give rise to less managed constitutional effects. The transformative, norm-producing quality of litigation in Russia is visible, first, in relatively typical processes of strategic litigation, which have clear similarities with cases in other countries.
Although academic literature, both in Russian and in English, addressing standard patterns of strategic litigation in Russia is very scarce, it is clearly documented that this is a topic of increasing importance, and there exist openings for strategic legal mobilization Kachanov Guidance for lawyers working in the area of strategic litigation is usually provided by foreign NGOs. Such mechanisms are deployed in the areas of consumer protection, employment law, or environmental law. One very notable success story of the Sutyajnik lawyers is a set of cases challenging the ban on long prison visits for persons serving a life sentence.
In these cases, the lawyers used relevant ECtHR jurisprudence, to induce significant legislative changes. In such respects, strategic litigation in Russia is close to the model of contentious norm formation documented in other polities. The transformative, norm-producing impact of litigation in Russia is generally visible in the fact that litigation often reinforces the authority of constitutional norms, and it leads to the expansion of constitutional rights when such rights are constructed in conjunction with international law.
In this way, even when it is motivated by purposes of social control, litigation forms a constitutional impetus in society, with far-reaching impact on the political system. After the collapse of the Soviet Union, notably, Russia inherited a very patchy system of legal regulation, in which legal certainty was limited.
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This problem was particularly acute in procedural legislation referring to civil and administrative litigation. Prior to the adoption of the new procedural codes, consequently, judges were encouraged to apply the Constitution in any case in which a gap in regulation was detected.
This fact has particular importance for recent developments in administrative litigation. Notably, as administrative litigation has increased over recent years, judges have continued their practice of applying constitutional norms directly, and the rising quantity of litigation has acted as a catalyst for enhanced judicial materialization of constitutional norms.
In fact, courts have shown surprising willingness to curtail the powers of government agents in sensitive cases, and even to use constitutional authority to tackle the decisions of the political branch. The willingness of courts to expand constitutional law is exemplified, for instance, by cases in which Russian courts have applied human rights norms to challenge federal immigration policy, especially concerning deportation of aliens.
The courts have done this by insisting that immigration policies must show regard for the family ties, health conditions, and risks to the life of persons subject to deportation by public officials. In the period —, the Court invalidated several provisions of the federal Tax Code. These changes entailed the elimination of double taxation for individuals, the protection of the right to file applications for claims against the federal taxation authorities, and protection of the rights of businessmen against excessive inspection. For example, in February a district court in Voronezh reached an unpopular decision on the basis of the Constitution and international law.
In this case, the court deemed the demonstration lawful, noting that the public meeting had been agreed with the local authorities, while the measures used to prevent the protest did not constitute a legitimate and proportionate limitation of the constitutional freedom of assembly. In such respects, litigation is not simply a controlled practice. In fact, governmental stimulation of litigation of itself creates a counter-systemic impulse, and litigation also generates robust, binding norms for the political system itself. The fact that litigation is encouraged to promote systemic consolidation necessarily contributes to a logic of political transformation.
The norm-producing impact of litigation in Russia can also be identified within the legal system itself, and it has led, discernibly, to an increase in the basic autonomy of the judicial system as a branch of government. Notably, the rising volume of litigation heard by the courts has involved an increasing use of the human rights provisions expressed in the Constitution to establish violations and to provide remedies.
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In turn, this has led to a growing reliance of the courts on international human rights law to develop their jurisprudence. Through this, the courts have cemented and intensified their own position, within the governance system as a whole, as relatively independent producers of norms with constitutional implications. First, the growing autonomy of the judiciary is evident in the fact that the courts increasingly apply legal concepts derived from ECtHR jurisprudence Starzhenetskiy To be clear, the reception of ECtHR in different regional courts is not uniform, and it sometimes requires significant effort on the part of strategic litigants.
An important example of the constitutional outcomes of rulings based in the ECHR can be seen in the fact that the courts follow ECtHR precedents in imputing liability for public acts. Notably, a ruling of the Supreme Court Plenum and a Constitutional Court Ruling both used international law to expand the scope of responsibility for agents performing public functions, insisting that private organizations with a special public status could be subject to standard norms of public liability.
A further important example of the constitutional impact of the ECHR is evident in the fact that judicial use of ECtHR jurisprudence has led to a wide acceptance of the doctrine of proportionality in Russian courts. For example, in , the Court issued an important ruling on the unconstitutionality of legislation restricting the legal position of persons with limited legal capacity due to mental illness and other similar causes.
As a result, amendments were introduced to Arts 29—32 of the Civil Code, which meant that judges were allowed to determine limitations to the rights of persons with mental health problems in accordance with the actual state of the particular person concerned. In consequence, the norm-producing power of courts increased substantially.
Seond, the growing autonomy of the judiciary is manifest in the fact that increasing reference to international law has reinforced the role of judicial precedent in the Russian legal system, and it has partly converted the legal order into a precedent-based system. This trend is particularly visible in the work of arbitrazh courts. However, in more recent practice, it has become common for courts to refer to the decisions of courts that are located at the same level in other regions. Nonetheless, precedent is becoming de facto a practical part of the Russian judicial system, and courts increasingly rely on precedents, both of international extraction and established purely under domestic law.
One result of the increasing use of precedent is that litigation instills uniformity within the legal system. Indeed, as court findings are increasingly based either in ECHR norms or in precedent, the judiciary becomes increasingly reliant on inner-legally constructed norms for the production of rulings.
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One further result of this is that the autonomy of the judiciary as a norm-provider is reinforced. Indeed, as with the growth of proportionality, the rising use of precedent means that actors in the legal system are able to generate powerfully pervasive norms.
Overall, on these counts, litigation has acquired a pervasive norm-producing, even constitutional impact in Russia. In a range of ways, the growth of legal action has triggered constitutional reactions within the legal system, which have a broad impact on the exercise of government power. On one hand, as discussed, the growing volume of litigation is induced by systemic motives, and it is promoted as a means to harden the effective authority of the state.
However, this systemic process also contains transformative elements, and it produces normative structures with a real constitutional valence, strong enough to formalize a distinct system of norms for the exercise of governmental powers.
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In this respect, the patterns of litigation that can be observed in Russia reflect a constitutional hybrid, combining inner-systemic and counter-systemic results. Litigation assumes constitutional functions quite specific to a hybrid state, in which the government promotes use of law for systemic consolidation, aimed to increase social penetration of state agencies. Yet, the government is also forced to accept the counter-power , expressed in the process of normative, even constitutional transformation, to which such consolidation gives rise. Unlike other societies, the constitutional force of litigation in Russia is not necessarily expressed through strategic legal activism.
Instead, we look, mainly, for a diverse array of litigants, availing themselves of legal procedures opened to them by the government, often filing suits with implications for basic human rights. Often, in fact, such agents may not perceive themselves as mobilized, and they may not understand themselves as implicated in citizenship practices. However, litigation in Russia engenders political outcomes whose consequences clearly parallel those evident in less controlled jurisdictions.
Even where shaped by systemic prerogatives, litigation widely leads to transformative outcomes or even to outcomes that re-orient constitutional law.
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Public-law litigation in Russia, especially as it addresses human rights law, is not widely researched, but it is an important phenomenon. In Russia, litigation is deliberately triggered by government agencies because the government relies on litigation for state capacity building and political-systemic nationalization. As a result, however, litigation also assumes a certain norm-constitutive autonomy, and systemic stimulation of litigation has consequences that are not fully controllable.
Naturally, this does not imply that judicial reform policies have created a comprehensive accountability structure for the Russian government. Even more alarmingly, recent years have witnessed an increasing politicization of criminal justice. A distinctive sociological framework, relativizing the common claim that public-law litigation has a contentious character, is required to capture this. Manifestly, Russia has a distinctive position in any cross-national comparison concerning litigation and legal mobilization.
In Russia, first, litigation is at once more systemically controlled and less overtly politicized than in other countries. Second, litigation occurs in an institutional setting in which organs of political mobilization are not galvanized by inter-party competition. Third, the starting point for development of state capacity after the crises of the s was particularly low. On the latter two counts, litigation in Russia assumes unusually extensive capacity-building functions.
In other respects, however, litigation in Russia, especially in matters referring to human rights, throws distinctive light on the consequences of contentious litigation in other societies. Using Russia as an extreme example, we can see that litigation with implications for human rights widely reflects a dialectical relation between litigation and the governance system, and, even where it involves acts of anti-government mobilization, it frequently has systemically beneficial outcomes, especially regarding state capacity building and systemic nationalization.
An example of this can be seen in contemporary Colombia, where litigation regarding human rights law is strategically encouraged as a means to build state institutions. The counter-systemic dimension of legal mobilization was more pronounced in the United States in the s than in contemporary Russia.
However, legal mobilization was clearly encouraged inner-systemically, notably by the broad construction of civil rights proposed by the Supreme Court. In this regard, Russia can be seen as an extreme example of a state which relies on litigation for systemic capacity building and nationalization, and therefore tolerates the build-up of normative counter-power that this necessitates.
However, we can also cite Russia as a paradigm, which offers a general framework for interpreting legal mobilization.
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The fact that litigation institutionalizes patterns of citizenship that extend the reach of the political system into national society might be a reason, quite generally, why governments are prepared to accept strategic litigation. Other commentators have noted, accurately, how governments with some authoritarian propensities may encourage high-level access to court, and they have stressed the symbolic gains that such governments obtain from this in signalling their legitimacy Ginsburg The claim can be added to analysis of courts in hybrid systems, however, that governments may well also identify systemic nationalization, enhancing their own institutional capacity, as an unintended beneficial result of public-law litigation, and this may also have a value that outweighs its political inconveniences.
See the seminal perspective in Black For an overview see McCann For a very high appreciation of the role of litigants in ending discrimination in the United States see Francis For studies of litigation as mobilization for more particular rights see with a focus on Canada and the UK Vanhala ; Burstein ; McCann ; Feeley and Rubin ; Epp See for more sceptical comment Rosenberg ; Brown-Nagin For views which stress the role of litigation as a distinctive expression of citizenship, see Siegel ; Eskridge ; Yeazell See this claim in Sabel and Simon ; Epp , p. See an extreme version of this claim in Hunt This claim is clear in Epp , p.