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Regular version of the site

Book chapter

Property rights in Russia: reconsidering the socialist legal tradition

P. 295-325.

Our research shows that ECHR protection of property rights standards in general may be regarded as “legal transplant” for the Russian law. The broad concept of “property”, requirements of proportionality and balance of public and private interests, rule of law prescriptions that form the core elements of property rights protection under the ECHR were mostly unfamiliar for the Russian legal system at the time Russia ratified the European Convention in 1998. Russian legal system cannot be said to be a fertile ground for human rights norms and the ECHR provisions in particular. Long-standing socialist legal tradition (including public interest domination and ultra-positivism) explains many difficulties and challenges of the ECHR implementation process in Russia. The eight chosen empiric examples of the ECHR violations demonstrate numerous collisions of ECHR spirit with attitudes common for the Russian law. Inherent features of the mentioned tradition (that remains dominant in Russia) produce most of the problems that result in disproportionate, unpredictable interference with private property rights, failure of the State to comply with its positive obligations and provide effective remedies to private parties in case of property rights violations. And it is not a coincidence that most of Article 1 P-1 violations by Russia are coupled with violation of Article 6 (for example, non-execution of court decisions, breach of legal certainty in supervisory review proceedings, confiscatory measures taken in course of criminal or administrative proceedings). This brings us to conclusion that Russian courts and judges need to play more proactive and significant role in property rights protection then they do now. Our study also shows that situation with property rights protection is not static but improving. None of the eight problematic areas of property rights violations remained intact; there were numerous positive developments, changes of legislation and case law necessary to remedy the situation. Overall, we may say that Russia has demonstrated its readiness and willingness to reform its legal system and to strengthen private property rights protection. In most instances, we observed dynamic and productive dialog between Russia, ECtHR and Committee of Ministers of the Council of Europe. But the most important impact of the ECtHR on Russia is expressed in gradual evolution of the Russian legal tradition. ECtHR and its legal doctrines, principles, concepts influenced Russian legal system by diffusing, transferring new values, knowledge, best-practices to lawyers, judges, and scholars. ECtHR provoked internal discussions in the Russian legal community, stimulated changes in interpretation of law by courts.

 

In book

Property rights in Russia: reconsidering the socialist legal tradition
Antonov M., Starzhenetsky V., Malksoo L. et al. Cambridge: Cambridge University Press, 2017.