Reciprocity in International Law (continuation)

After studying the documents provided by the Petitioner I do hereby state the following in addition to the previous expert opinion:

Exhibit A. An extract from Art. 15 of the Constitution of the Russian Federation and a “comment” on par. 4 including a reference to the source (Federal Scientific and Practical Magazine “Arbitral and Civil Procedure”, № 8, 2005) is given as an evidence in the case. The name of the author of the comment is not mentioned, accordingly the court may assume that the mentioned comment is an official interpretation of Art. 15 of the Constitution of the Russian Federation.

However, if one refers to the source – Scientific and Practical Magazine “Arbitral and Civil Procedure”, № 8, 2005 – one will see the articled which is titled “Reciprocity Principle in International Civil Procedure” by Konstantin Leonidovich Branovitsky born on August 09, 1983, who was a student at the Ural State Academy of Law in 2005.

Exhibit A is nothing but a falsification, wishful thinking. “The comment” on Art. 15 of the Constitution has nothing to do with the official text of the Constitution.

Exhibit B – a “comment” on Art. 46 of the Constitution of the Russian Federation – just as Exhibit A, is a liberal interpretation of the Constitution of the Russian Federation. Part 1 of Art. 46 1 of the Constitution of the Russian Federation says that each person is guaranteed judicial protection of his/her rights and freedoms. This provision of the Constitution of the Russian Federation corresponds to Art. 398 of the Code of Civil Procedures of the Russian Federation by virtue of which foreign nationals, stateless individuals, foreign organizations, international organizations (hereinafter referred to as “foreign persons”) are entitled to apply to courts of the Russian Federation in order to protect their rights, freedoms and legal interests. Foreign persons have the same procedural rights and perform the same procedural obligations that Russian citizens and organizations do. The proceedings involving foreign persons are regulated by the Code of Civil Procedures of the Russian Federation and other federal laws.

Art. 46 of the Constitution of the Russian Federation and Art. 398 of the Code of Civil Procedures of the Russian Federation provide for a possibility of commencement of action on the territory of the Russian Federation by any persons.

But such legal provisions do not mean that that foreign judgments can be acknowledged and enforced in the Russian Federation, all the more so as there is no treaty between the countries. Exhibit B is nothing but wishful thinking just as Exhibit A.

“The comment” on Art. 1189 of the Civil Code of the Russian Federation isn’t an official comment either. It is nothing but violent interpretation.

The comment on Art. 415 of the Code of Civil Procedures of the Russian Federation is just a private opinion of Mr. Alexander Mironovich Karafelov, Candidate of Historical Sciences.

The abovementioned comments have no law-enforcement value and cannot be used by courts under any circumstances as they have no legal force. They are nothing but private opinions of some professionals like hundreds other private opinions expressed in thesis, scientific and publicistic works. Acknowledgment and enforcement of foreign judgments based on the reciprocity principle is the subject matter of many dissertation researches (A.I. Muranov, V.P. Zaytsev and others).

The expressed opinion was criticized as nonconforming to the laws and international treaties.

The court practice with respect to family cases is based on the applicable laws only (i.e. enforcement in case a relevant international treaty is available) but not on dissertations, thesis or theoreticians’ assumptions.

The Russian legal system doesn’t provide for enforcement of any foreign judgment on the territory of the Russian Federation in the absence of a relevant international treaty.

By way of example, child support was recovered from G. in favor of N. for the purpose of support of their daughter born on April 01, 1990 and son born on May 20, 1992 by decision of Izmailsky District Court of Odessa Region, Ukraine, dated January 24, 2006; according to the mentioned court decision the child support amounting to 1/3 of G’s monthly income had to be paid from November 15, 2004 to April 01, 2008 and ¼ of G’s monthly income from April 01, 2008 to May 29, 2010. The decision was not enforced on the territory of Ukraine. N. applied to the Supreme Court of the Republic of Mariy-El with a request for acknowledgment and enforcement of the court decision in the territory of the Russian Federation as G resided in Krasnooktyavbrsky Village. The Judge of the Supreme Court of the Republic of Mariy-El considered that the request shall be satisfied in accordance with Art. 54 of the Convention on the legal assistance and legal relations in civil, family and criminal cases between the CIS countries.

A Danish company (applicant) applied to the court of arbitration with a request for acknowledgment and enforcement of a decision of the State Court of Oslo (Norway). According to the applicant the decision had to be acknowledged and enforced based on the principle of reciprocity and international comity and the provisions of the Agreement on stimulation and security of investments signed by the Government of the Russian Federation and the Kingdom of Denmark on 11.04.93.

A Russian company (debtor) objected the claim claiming that there was no international treaty between the Russian Federation and Norway that provided for enforcement of judgments delivered by the countries’ courts and there were no examples of application of the reciprocity principle.

As the proceedings progressed it was established, based on the evidence submitted by the debtor, that foreign judgments could be acknowledged and enforced in Norway subject to the provisions of a relevant international treaty.

The court came to the conclusion that the reciprocity principle could not be applied to Russian judgments on the territory of Norway as there was no international treaty. The debtor presented a certificate issued by the Ministry of Internal Affairs of Norway stating that no judgment of a Russian court had ever been enforced on the territory of Norway. On that ground the court refused to acknowledge and enforce the foreign judgment. Thus, the court assumes reciprocity whereas a party to the dispute shall submit evidence for or against application of the reciprocity principle in the court practice of the country where the judgment was delivered.

Order № 9131-XI “On Acknowledgment and Enforcement of Foreign Judgments and Awards” of the Presidium of the Supreme Soviet of the USSR dated June 21, 1988 is in force up to this day.

According to the abovementioned Order foreign judgments are acknowledged and enforced only when it is provided for by an international treaty or applicable laws.

Foreign judgments referred to in the mentioned Order include inter alia judgments in civil cases.

Acknowledgment and enforcement of foreign judgments on the territory of the Russian Federation is regulated only by the laws of the Russian Federation and international treaties signed by Russia. No State has the right to intervene in the matters within the domestic jurisdiction of any State; it is a basic concept of the international law declared in the UN Declaration dated October 24, 1970. The convention says that “the States shall conduct their international relations… in accordance with the principles of sovereign equality and non-intervention.”

According to the Helsinki Agreement (1975) “The participating States will refrain from any intervention, direct or indirect, individual or collective, in the internal or external affairs falling within the domestic jurisdiction of another participating State, regardless of their mutual relations.”

Therefore, there is no procedure for acknowledgment and enforcement of foreign (including US) judgments on the territory of the Russian Federation due to the absence of a relevant international treaty.