“The last mile” in court: unchecked balances

The HCA of Russia has considered the dispute between the Chelyabinsk Electrometallurgical Complex and the Urals Inter-regional Distribution Network Company regarding the so-called “last mile” model. The judgment will surely be, and is already being, avidly discussed by the interested parties. Some say that the HCA of Russia has protected the people from the manifold increase of electricity bills, and the others claim that the Court has deterred the economical development of Russia and its industrial potential in particular.

However, this arbitration dispute is most likely to be remembered not by its economic consequences, but as an example of an unprecedented violation of the separation of powers principle. There has hardly ever appeared such a tide of instructions by lobbyists of all kinds and ranks to the higher court instance on how it should settle the dispute. <…>

Experts: no article is applicable

The HCA of Russia adopted the practice of publishing the non-procedural addresses to the leadership and judges on specific cases on its website, and due to that the letters on the case “CEMC vs. the Urals IDNC” became available to the public.

There are messages from O.P.Korolev, Head of Administration of the Lipetsk Region; A.A.Volkov, President of the Udmurt Republic; Y.M.Andrianov, Chairman of the Government of the Tula Region; A.V.Revyakin, First Deputy Chairman of the Government of the Ryazan Region; M.A.Men, Governor of the Ivanovo Region; Y.A.Lipatov, Deputy of the State Duma of the Russian Federation… According to certain mass media, there were many more.

It is easy to guess that all regional officials were eager to support the regional network companies, which, as they see it, prevent social uprisings in the regions with the help of the “last mile” mechanism. It is much harder to understand, how such close attention of the officials to a particular court case complies with the constitutional principle of separation of powers.

However, it is easily understandable, how such epistolary outbursts affect the authority of the Judicial. Even more so, as the Board of the HCA of Russia adopted a decision, which would formally suit the applicants. The judges have apparently listened to the wise council, haven’t they? It would seem that who else but the highest-ranking officials should care about the image of the Court, among other things. Are there any possible legal consequences for the authors of the letters to the Court?

Sergey Gorbachev, managing partner of the Moscow Bar Association “Legis Group”, reminds that the federal legislation, in particular – the Law “On the status of a member of the Council of Federation and the status of the deputy of the State Duma of the Federal Assembly of the Russian Federation”, stipulates that the senators and the deputies are not allowed to interfere with the activity of the courts. And the Federal Constitutional Law "On the judicial system of the Russian Federation" contains a direct provision, according to which the courts perform their activities autonomously, independently from any one’s will, and obey only the Constitution of the Russian Federation and the law.

The Penal Code of Russia (Article 294) also contains an appropriate article, which stipulates liability in the form of imprisonment of up to two years in the case of any form of interference with the activity of any court in order to prevent the exercise of justice.

However, S.Gorbachev believes that “the study of the requests published at the website of the HCA of Russia permits to conclude that there is no way to apply the Article 294 of the Penal Code to the actions of the applicants, since the letters contain no demands to take any unambiguous decisions to the favour of the claimant or any other persons, limiting themselves to requests to pay attention or to take the public interests into account”.

Vladislav Dobrovolsky, Head of the Corporate Practice, Scientific secretary of the Law Group “Yakovlev and Partners” agrees that “the governors’ and deputies’ addresses to the HCA of Russia prior to the court’ session cannot be formally seen as direct pressure over the Court”. Since, according to V.Dobrovolsky, “neither the governors nor the deputies are able to influence the judgment by the Board of the HCA of Russia, nor take any decision regarding their disciplinary and other liability, taking into account the separation of powers principle fixed by the Constitution”. <…>

At the same time, in the opinion of Artem Kukin, Partner of the Law Firm "YUST", “the messages of the governors and deputies to the Chairman of the HCA of Russia regarding specific cases and containing the requests to adopt this or that decision may be considered embracery in itself”. A.Kukin is convinced that the existence of a separate section of the HCA’s website and publishing of similar letters of non-procedural nature there is just the way to counter embracery.

The expert points out that the “if the higher instance adopts the judgment, which was requested by a deputy, this does not automatically mean that it was precisely that request which influenced the result of the dispute consideration”.

We point out from our own side: the fact that officials consider themselves to be more able to interpret the legal relations and legal consequences arising thereof than the members of the board of a higher judicial instance is their personal business. But the society is unavoidably offended by the fact that such hyper-activity of the officials and deputies misbalances the already imperfect mechanism of checks and balances that functions in the Russian state. The “disinterested aid” by the representatives of the Executive and the Legislative does a disservice to their colleagues from the Judiciary. The dispute about the “last mile” evidences this enough.

Sergey Fekliunin, RAPSI, 12.03.2013

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