Jeffrey Kahn

The Parade of Sovereignties: Establishing the Vocabulary of the New Russian Federalism

On the basis of extensive on-site interviews and documentary sources, the author interprets the dynamics of the collapse of the Soviet Union by analyzing the cascade of sovereignty declarations issued by republics of the USSR as well as by autonomous republics and other subunits of the Russian republic, in 1990-1991. Interrelationships among the declarations, and other putative causes of their content and timing, are explored. A case study of Tatarstan is provided. The study also analyzes the impact of the process on subsequent Russian approaches to federalism.

Russia's Criminal Procedure Code Five Years Out

After a long delay in drafting, a new Criminal Procedure Code for Russia was passed in 2001 and went into effect in 2002. The new Code contains some striking innovations, most notably changes at the trial stage, which implement the constitutional requirements of adversarial principles. However, it also retains several throwbacks to the past, particularly its preservation of the formal pretrial investigation, during which evidence is parsed and collected in a dossier, which then dominates the trial of the case. The result is that old and new constantly contend with each other. Implementation of the new adversarial procedures is also made difficult by the enormity of the changes demanded by them. This article examines these and other issues in the new Codes implementation over its first five years of operation.

Russia's 'Dictatorship of Law' and the European Court of Human Rights

This article is an adaptation of a lecture given at St. Antonys College, Oxford on 5 July 2003 in honor of the fiftieth anniversary of the Centre for Russian and East European Studies at Oxford University. The author evaluates the effect of the European Convention on Human Rights on Russian law and politics. Russia has been a signatory to the Convention for five years. The author argues that the full power of the Convention as a force for reform in Russia was unanticipated at the time of Russias accession. Nevertheless, the Convention has been the catalyst for substantial reforms, especially in the criminal justice system. The author examines these reforms as well as the increasing number of cases in which Russia is a respondent before the European Court of Human Rights in Strasbourg. Drawing on interviews, the Courts statistics and his own experience training Russian human rights lawyers, the author charts the rapid growth in Russia of interest in the Strasbourg process.

The Rule-of-Law Factor

Nationwide surveys in 1996, 1998, and 2000 revealed strong, albeit abstract, support among citizens of the Russian Federation for rule-of-law principles at levels roughly comparable to those found in Western Europe.1 But, when Russians were asked to apply those ideals to their own circumstances, a 2004 nationwide survey found that ‘an overwhelming majority of Russians do not think that they live under a rule-of-law state’.2 A 2007 survey continues to support these earlier findings,3 and recent surveys reveal that few Russians believe this will change during President Medvedev’s tenure.4

How Federal Is the Russian Federation

It is undeniably true that in the last 8 years Russian law has experienced an extraordinary period of unification. Whether the Russian Federation (Russia) continues to operate a federal system of government, however, is a question on which reasonable minds differ. On the one hand, its constitution proclaims Russia to be a “federal, rule-of-law” state, divides the country into 83 component states of six different types, and appears to allocate separate spheres of both exclusive and shared jurisdiction to both the central government and to the component states. On the other hand, Russia’s political system has grown increasingly centralized and the actual implementation of the Constitution’s division of jurisdiction between governments has resulted in such an extraordinary degree of central control that the de facto federal nature of the system is thrown into doubt.

Very Like a Whale: Analogy and the Law

Analogical reasoning is common in legal writing, just as analogies are a part of everyday life. Indeed, they may be inescapable features of human cognition. Used well, analogies illuminate the writer’s reasons and persuade the reader. Used poorly, however, they may obscure or even replace the precision and detail in reasoning that is crucial to the development of law. Without entering the ongoing debate about the nature of human thought, this article explores some of the dangers present in the relationship that analogy maintains with law. In particular, the article examines the risks inherent in analogizing across a technological or social divide. The article concludes by noting the long-term consequences of analogies and metaphors in shaping thought and, therefore, society.

‘Unlawful Influence’ and the al-Nashiri Military Commission at Guantánamo Bay

This short essay is based on remarks made on 21 September 2016 at the Asia Pacific Military Justice Workshop held at the National University of Singapore Faculty of Law. The author discusses his perceptions as a designated observer for the National Institute of Military Justice at the military commissions held at the U.S. Naval Station at Guantanamo Bay, Cuba. He was sent to monitor oral argument of one of the most significant pre-trial motions in the commission trying Abd al-Rahim Hussein Muhammed al-Nashiri, the alleged mastermind of the USS Cole bombing. Al-Nashiri alleged unlawful influence by the civilian Convening Authority of the commission and moved to dismiss his prosecution with prejudice. The author examines the origins, argument, and resolution of this motion in the larger context of the commissions themselves, concluding that Guantanamo exemplifies the danger that U.S. State Department Legal Advisor William Taft perceived in “the temptations to cut corners.”

Adversarial Principles and the Case File in Russian Criminal Procedure

In this essay, the author argues that the Russian Criminal Procedure Code satisfies neither European nor American conceptions of adversarial principles. The first section of the article describes what the author calls the hybrid nature of Russias criminal justice system and summarizes the argument that adversarial principles, however defined, are unsatisfied by it. The second section provides a detailed explanation of how the Codes retention of the case file subverts its adoption of adversarial principles. The third section presents a brief discussion of how the continued power of the case file tends to thwart efforts by defence counsel to use their new powers to collect evidence independently for admission at trial. Brief conclusions follow in the last section.