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Published in
Global Justice: Democracy and the Rule of Law in a Changing World
(Washington: Congressional Quarterly Press, 2001.
Norman Dorsen & Prosser Gifford, eds.).



«Trophy Art Law» as an Illustration of the Current Status
of Separation of Powers and Legislative Process in Russia

Alexander N. Domrin

 


        Russia is a country of extremes. «The Icon and the Axe», symbolically titled James H. Billington his book of «interpretative history of Russian Culture», and George F. Kennan called contradictions the «essence of Russia»: «West and East, Pacific and Atlantic, Arctic and tropics, extreme cold and extreme heat, prolonged sloth and sudden feats of energy /.../ ostentatious wealth and dismal squalor /.../ simultaneous love and hate for the same objects /.../ The Russian does not reject these contradictions. He has learned to live with them, and in them. To him, they are the spice of life /.../ The American mind will not apprehend Russia until it is prepared philosophically to accept the validity of contradiction» 1*.
        Evaluations of Russia, of her cultural and spiritual heritage are often extreme as well. According to a French poet, «even if everything dies and only the remains of Ancient Greece and the Russia of the 19th century endure, then nothing will be lost» (Paul Valery), whereas an American scholar alleges that Russia and her people have no «cultural capital» at all (Richard Pipes) 2*.
        As Harold J. Berman has observed, contemporary legal systems are only surface expressions of deeper, broader forces of cultural evolution: «Law cannot be neatly classified in terms of social-economic forces. A legal system is built up slowly over the centuries, and it is in many respects remarkably impervious to social upheavals. This is as true of Soviet law, which is built on the foundations of the Russian past, as it is of American law, with its roots in English and Western European history» 3*.
        The «Scythian complex» of Russia - the dialectical dichotomy of being an inseparable part of the European civilization, and historically being in confrontation with it 4*, attraction toward the «West», and alienation from it, enthusiastic receptivity to all cultures, natural and absolutely organic multiculturalism (vsechelovechestvo, in Pushkin’s and Dostoevsky’s terms) 5*  and traditional Russian suspiciousness, two-headed eagle, as a historical symbol of Russia, with one head turned towards the West, and the other one towards the Orient, a centuries-long dialogue between those who in the early 19th Century became known as «Westernizers» and «Slavophiles» - manifests itself in various forms of social life, including contemporary Russian legislation. Among them - the Trophy Art Law, those circumstances in which the law was drafted and adopted, and the collision between all three branches of Government in respect to that law.
        Indeed, if there is any particular Russian legislation, which in the years of the Second Russian Republic 6*   have stirred major controversy in Russia and abroad and made the biggest number of headlines in Western media, it’s probably the federal Law on Cultural Values Transferred into the USSR as the Result of the Second World War and Remaining in the Russian Federation, also known as Trophy Art Law 7*.
Apart from the context of Russian-German relations and international property rights, which have been quite extensively studied in a number of works (although, with a rare exception in English legal literature 8*, predominantly from anti-Russian positions 9*), the controversy around the Trophy Art Law is extremely important for a more adequate understanding of peculiarities of the current status of separation of powers, legislative process in the Russian Federation and the role of all three branches of government in it.
It is recognized that the Russian Constitution of 1993 clearly violates the doctrine of separated powers by granting the President disproportionate leverage 10*.
        Whether the President and Parliament adhere to the Constitution depends largely on the effectiveness of judicial enforcement 11*. So it was inevitable that President Yeltsin’s constitutional coup in September-October 1993 was aimed not only against the federal legislature, but against the third branch of government too 12*. Simultaneously with the violent dissolution of the Russian Parliament, President Yeltsin, in his Decree No. 1400 «On the Gradual Constitutional Reform in the Russian Federation» (September 21, 1993), also «advised» the Constitutional Court «not to convene» until after the elections (art. 10). The same night the Constitutional Court of Russia, in emergency session, voted 9 to 4 that the President’s action violated the Constitution and might justify impeachment. The Court stated that the President violated Article 121-6 of the Constitution, according to which the President couldn’t use his powers «to dismiss, or suspend the activities of, any lawfully elected agencies of state power». Otherwise, the President’s powers «are discontinued immediately». Originally, it was an article of the Law «On the President of the RSFSR» (of April 1991) which introduced the Presidency in Russia 13*.
        On October 7, 1993, President Yeltsin formalized his assault on the power of constitutional review in the country and signed Decree No. 1612 «On the Constitutional Court of the Russian Federation» stripping the only constitutional watchdog in the Russian Federation of its key powers and virtually suspending its functions. As admitted by the New York--based Lawyers Committee for Human Rights, the only fault of the court was that it obeyed the constitution, but was unlucky and «ended up on the losing side when Yeltsin emerged victorious from the bloody events of October» 14*. It was only 18 months later that the new Constitutional Court of Russia resumed its work.
        Besides shutting down the Russian federal parliament, regional legislatures 15*, and the Russian Constitutional Court, President Yeltsin introduced censorship, closed 15 independent periodicals, and pushed a new Draft Constitution simultaneously warning the Russian citizens to refrain from criticizing the draft 16*.
        The new Constitution, whose actual adoption by the Russian population is doubtful and still disputable, provided for one of the strongest presidencies in Europe, «superpresidentialism» or «a modern-day czar», and was described as placing Russia, once again, under something similar to an authoritarian rule 17*. As a «victor’s Constitution» (Robert Sharlet) 18*, the new Russian Constitution introduced presidential supremacy and placed the Executive above the other branches of government 19*. Among other things, the 1993 Constitution granted several areas of traditional court jurisdiction, like protection of civil rights and freedoms (art. 80.2), to the President. Such delegation of authority to the Executive to protect constitutional rights «not only violates separation of powers doctrine, but may give him or her a claim, albeit tenuous, to usurp the Court's jurisdiction, and suspend judicial review in a time of crisis» 20*.
        That is the context within which the Trophy Art Act was drafted, debated and adopted.

        Legislative history of the Law is really dramatic.
        The original version of the bill was passed by the Duma in the Fall of 1996, but rejected by the Federation Council 21*. By February 1997, when the Duma passed a revised version of the law, gubernatorial elections had been held in about 50 out of 89 regions of the Russian Federation. The elections increased the independence of governors who, unlike in the past, could no longer be appointed or dismissed by a President’s decree 22*. Since governors form one half of the Federation Council, the upper chamber of the Russian parliament got a better opportunity to reassert its position in the system of separation of powers in the Russian Federation.  On March 5, 1997, the bill declaring that the art taken from Germany during and immediately after World War II, would be the «sole property of the Russian Federation» was adopted by the Federation Council.
        If signed into effect, the law would make it practically impossible for Germany to reclaim the remains of the trophy art seized from the Nazis by Soviet troops at the end of World War II, and subsequently would have a negative effect on German-Russian relations.  In an attempt to appease the largest creditor of Yeltsin’s regime 23*  and arguably its closest ally in the West, on March 18, 1997, the Russian President vetoed the bill calling it (in a letter to Federation Council Chairman Yegor Stroev) a «unilateral decision» made «without regard for generally accepted norms of international law,» and adding that it did not differentiate between the art works of Germany and its allies in World War II and art valuables originating in the nations of anti-Hitler coalition and Nazi-occupied countries. As a result, according to Yeltsin, the bill «weakens Russian positions in difficult negotiations now under way with France, Germany, Liechtenstein, Poland, Hungary, the Netherlands and other countries» (ITAR-TASS, March 19, 1997).
        Strangely, a correct statement of the President that the Law in that form, as it was adopted by the Federal Assembly in February-March 1997, «would hinder efforts to retrieve artworks seized from the Soviet Union during the war» was accepted by Western media as an «apparent bid to somewhat appease the nationalists» 24*.
        Although, as it was revealed in an opinion poll conducted by the Public Opinion fund in late May 1997, the law was supported by 53 percent and disapproved by only 23 percent of respondents 25*, Western observers have been persistently demonizing the supporters of the Trophy Art Law and associating the bill exclusively with «Nationalists and Communists» in Russia and its parliament 26*.  In reality, the Trophy Art Law is quite consistent with the views and feelings of most Russians who never forgot that in the days of what we call Great Patriotic War (1941-1945) German Nazis and their allies destroyed 1,710 Soviet cities and towns, more than 70,000 villages, 32,000 plants and factories, about 100,000 collective and state farms, approximately 65,000 kilometers of railroads (one-and-a-half the length of equator). The country’s national wealth diminished by 30 percent 27*.
        Just like during a previous European invasion to Russia in the 19th Century, when Napoleon’s soldiers were making stables in Russian churches, Hitler’s soldiers looted and destroyed 427 museums, 1,670 Russian Orthodox churches, 237 Catholic churches, 532 synagogues, 43,000 libraries, 6,000 hospitals, 82,000 schools. According to incomplete data, in the 73 richest museums of the USSR 564,723 exhibits were destroyed or looted by Nazis; the 15 richest museums lost 269,515 exhibits 28*.  As Lynn H. Nicholas wrote in her remarkable book: «Everywhere in the USSR special attention was given to the trashing of the houses and museums of great cultural figures: Pushkin’s house was ransacked, as was Tolstoy’s Yasnaya Polyana, where manuscripts were burned in the stoves and German war dead were buried all around Tolstoy’s solitary grave. The museums honoring Chekhov, Rimsky-Korsakov, and Tchaikovsky received similar attentions, the composer of the 1812 Overture being particularly honored by having a motorcycle garage installed in his former dwelling» 29*.
        After liberation of the occupied territory, the Soviet Army, as a rule, could find «nothing of value left in the museums of its recaptured cities. They found instead burned and defaced buildings, ruined laboratories, books reduced to pulp» 30*.  Whereabouts of most art objects that were looted and taken away by Nazi aggressors (like an invaluable historical Smolensk archive or the Amber Room) are still not known. An American prosecutor at the Nuremberg trial called Nazi policy on the occupied Soviet territory a «deliberate destruction of Russian culture».
        Ultimately, 26,5 million of Soviet people (or 11,5 percent of the USSR population in 1941), most of them civilians, were killed by Nazis, exterminated in German concentration camps, or died as a result of wounds. A combined number of Soviet citizens who were killed or crippled during the Great Patriotic War was equal to over forty million 31*.
        As a form of reparations for the damage which had been done by Nazi Germany to the Soviet Union, if one can speak about any possible reparation that could compensate loss of millions of lives, the USSR, among other things, evacuated from Germany approximately 2,2 million artworks, and about 3 million archival files.
        Between 1955 and 1969, as a manifestation of its goodwill, the Soviet Union handed back to the German Democratic Republic the lion’s share of art objects, which had been taken away after the Second World War: more than 1,922,000 pieces of art (or 87,4 percent of what had been originally evacuated) and almost all three million archival files. Among the art treasures returned were Dresden Art Gallery with its Raphael’s Sistine Madonna, a collection of art works from the Berlin National Gallery, the famous Pergam Altar, masterpieces by Titian and Botticelli, a collection of antique sculpture from the Albertinium Museum, etc. Naturally, after 1990, all those artifacts belong to the unified Germany.
        In 1994, Doris Hertramf, counsellor for cultural affairs of the German Embassy in Russia, estimated that between 30,000 and 100,000 artifacts were still in Russian museums 32*. By 1997, the German side had risen the question of a return of some 200,000 to 300,000 pieces of art from German state-run and private-owned collections. Most of them are the monuments of numismatics (175,000 coins and medals) and archaeology, as well as about 55,000 paintings including works of French Impressionists and Postimpressionists (Monet, Matisse, Van Gogh), masterpieces of Goya, Rembrandt, Rubens and Delacroix, a 15th Century Gutenberg Bible and the 5,000-year-old Trojan gold collection discovered by German archaeologist Heinrich Schliemann 33*.
        Insisting that the law does not rule out the possibility of «cooperation» with third countries (looted by Nazis) on a bilateral basis, the State Duma disagreed with Yeltsin and already in three weeks, on April 7, 1997 with 308 against 15 votes effectively overrode the presidential veto.
        The April 16-17 session of the Federation Council coincided with President’s Yeltsin visit to Germany during which Russian President was to hold talks with Chancellor Helmut Kohl and receive an award from a German media organization. Although, prior to the visit President’s aide enlisted at list seven major matters on the agenda (the draft Accord on Russia-NATO relations, problems of European security and cooperation, Russia’s «full membership» in the Group of Seven, World Trade Organization and the Paris Club of Creditors, economic cooperation with Germany and the restitution of World War II «trophy art») (ITAR-TASS, April 16, 1997), in reality about 80 percent of the summit time was given to just two questions: Russia-NATO relations and the issue of art objects moved to the USSR at the close of World War II.  When meeting with his German counterpart, Yeltsin in a «gesture of friendship and openness» handed him microfilmed archives of the Central Committee of the former GDR ruling party (Socialist United Party of Germany), 11 files from the Rathenau Archive 34*, an inventory of art works and other materials taken to the USSR at the end of the war as well as a letter from Patriarch Aleksy II of Moscow and All Russia with a list of property the Russian Orthodox Church wants Germany to return (ITAR-TASS, April 17, 1997).
        Quite illustrative is the detail that although in an interview with Stern (published a day before the beginning of Yeltsin’s visit to Germany) Yeltsin said he would bring «some pieces» of the cultural treasures seized during World War II (ITAR-TASS, April 15, 1997), a Russian Foreign Ministry spokesman told ITAR-TASS that the «ministry knows nothing about Yeltsin’s plans to take cultural valuables to Germany.» 35*
        Hardly by coincidence, in the midst of the argument over «trophy art» in Russia, and that very day (April 16, 1997) when the Federation Council overrode the President’s veto, two items apparently belonging to the Amber Room (a fragment of mosaic and a lacquered wooden cabinet) were «unexpectedly» found in Germany 36*. German Government used those «discoveries» as a chance to reciprocate President Yeltsin’s veto by pressing the search for the Amber Room remains.
        Composition of the Federation Council is different from the U.S. Senate or Rajya Sabha in India: it is composed of the heads of Administration and Legislature of each of the eighty-nine constituent subjects of the Russian Federation, convenes not more than twice a month for 2-3 days each time, and, unlike the State Duma, can hardly be considered a permanently working legislative body. Long Russian distances and urgent regional matters often prevent «Senators» from attending sessions of the Federation Council. In an attempt to provide even missing deputies with an opportunity to cast their vote (negative or positive) regarding the President’s veto, the Federation Council decided to follow a rare voting procedure and to use written ballots («questionnaires») which were mailed to deputies who couldn’t attend the current session.
        By May 14, the Federation Council received ballots back and announced that it obtained votes of more than two thirds of the total number of its members necessary to override the veto.
        On May 22, Yeltsin again returned the trophy art law to the parliament without signature claiming in his statement that the Law had been adopted «with violations of the constitutional procedure.»  Russian Prime Minister Chernomyrdin was also critical of the Federation Council’s voting, called it «an emotional approach» and reminded that «Russia owes but is also owed seized art objects, and more at that» (ITAR-TASS, May 16, 1997).
        On June 10, the Federation Council de facto for the second time overrode President’s veto and by 121 votes to nine with four abstentions voted to return the trophy art law to President Yeltsin for signing. In its resolution sent to the president, Council deputies correctly argued that only the Constitutional Court can determine whether parliamentary voting procedures violate the constitution and stated that «the President of the Russian Federation has evaded the fulfillment of responsibilities within his competence to sign and publish the law» (ITAR-TASS, June 10, 1997.)  Three days later the State Duma by 351 votes to one with one abstention approved a similar appeal to Yeltsin stating that he was exceeding his constitutional authority by not signing a properly adopted by the Federal Assembly act.
        Indeed, superpresidential Constitution of Russia of 1993 gives the president great powers but does allot to parliament certain countervailing prerogatives.
        Article 107 of the Russian Constitution (Chapter 5. The Federal Assembly) unambiguously and in explicit terms determines the veto procedure of the President. According to the Constitution, an adopted law shall be sent to the President for signing and publication within five days (1). The President has two options: within fourteen days, to sign a law and publish it (2) or veto it and send back to the Federal Assembly. In that case, the State Duma and the Federation Council may either take into account the President’s comments and criticism and work out a new draft or, with two thirds of the total number of deputies of both chambers, to override the veto and approve the law in its original version. After that the law shall be signed by the President within seven days and published (3).
        The Constitution is silent, however, as to whether the legislation becomes law in the event the President refuses to sign the previously vetoed bill. In this respect, the Russian Constitutional Law does not contain any provision similar to the principle of the U.S. Constitutional Law saying that the President may not use executive powers to thwart the expressed will of Congress (see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).
        Although back in March Yeltsin’s representative in the Duma Kotenkov warned the Federation Council that if the President’s veto is overriden by the upper chamber, Yeltsin would have to appeal to the Constitutional Court to block the law, it didn’t happen. On June 30, 1997, President Yeltsin, in violation of his own Constitution - but «courageously», in the eyes of The New York Times, 37* - imposed his second veto on the same law, arguing that both houses of the parliament used unconstitutional procedures to override his first veto: proxy voting in the State Duma and mailed ballots in the Federation Council. The argument was particularly disingenuous since Yeltsin had signed numerous other laws passed with exactly the same voting procedure in the Duma. It was the Federation Council which on July 4 in an unanimous voting filed with the Constitutional Court an inquiry against Yeltsin’s actions arguing that the president lacks the authority to declare parliamentary voting procedures unconstitutional.
        The legal collision was particularly unusual, because, proxy voting is a common procedure in the Duma and because it was not the first time as the chambers of the Federal Assembly were overriding President’s veto. That had happened at least three times before. On October 25, 1994, eleven months after the adoption of the new Constitution, the Federation Council (following a similar procedure in the Duma) overrode Yeltsin’s veto of the Russian budget bill. On November 15, 1995, the upper chamber of the Russian Federal Assembly overrode President’s veto of the Law on the Subsistence Minimum. And on August 7, 1996, the Federation Council overrode Yeltsin’s veto of a law defining budgetary classifications.
After several postponements for procedural reasons caused by an illness of co-reporter Judge Vladimir Strekozov, the problem was finally decided in the Constitutional Court. The Court did not address the issue of trophy art itself, but considered legal processes and the question of President’s «obligation» to sign into effect a law after his veto had been overriden by both chambers of the Federal Assembly. On April 6, 1998 the Court supported the Parliament’s claim that Yeltsin had failed to meet his constitutional responsibilities by refusing to sign the law. In its decision the Constitutional Court ruled that President could not simply ignore a parliamentary vote to override his veto of a bill and ordered him to sign the Trophy Art Bill into law immediately.
        The decision was assessed by observers as «unusually independent» 38*.  Indeed, it was a rare case in which the Court, suspended by Yeltsin in October 1993 and restored in March 1995 with limited powers, disagreed with the President and «put their rubber stamps away.»  In a characteristic manner, Yeltsin considered such disagreement reflected in the Court’s decision «a good slap in the face» and in a subsequent meeting with the Constitutional Court Chairman Marat Baglai scolded him for the fact that «something is not quite right with our Constitutional Court» (Interfax, June 2, 1998.)
        President signed the bill, and appealed to the Constitutional Court to consider constitutionality of the Law itself.
        More than a year later, on July 20, 1999, the Constitutional Court struck down as unconstitutional several provisions of the Trophy Art Law, but not the act in its entirety. The Court upheld Russia’s right to keep cultural valuables seized from Nazi Germany which are not to be returned to former «aggressor-countries» (like Germany, Italy, Hungary, etc.) These artworks are rightly regarded as the federal property of Russia, the court said.
        Significantly, even in that case, some artwork can be transferred to Germany - within the framework of cultural exchange programs between the two countries as a goodwill gesture on behalf of Russia.
At the same time, according to the Court, the Law improperly lumped all trophy art into one category and didn’t allow for claims by individuals whose art had been stolen from them by the Nazis, or by the Soviet Union’s wartime Allies such as France - from which the Nazis looted many objects and brought them to Germany where they were in turn taken by Soviet troops. Thus, the Constitutional Court confirmed the right of the Nazis’ victims and citizens of the countries of anti-Hitler coalition to get their property back.
Another provision saying that trophy art of an unknown origin cannot be reclaimed was pronounced as violating the Constitution. The court ruled treasures of unknown origin can be reclaimed within 18 months if an owner comes forward.
        The court also considered Yeltsin’s objection about the voting procedure in which some lawmakers in the Duma voted for absent colleagues. Proxy voting is allowed by the State Duma regulations; it has been used when adopting most Russian laws, and the President has never had a problem to sign those laws into effect.
        The court agreed the procedure was improper, but decided to refrain from voiding the vote and said that incorrect vote procedure may become a reason to reject laws in the future.
        The law was sent back to parliament for a revision, and on April 26, 2000, the Duma passed the law in its third reading. A new consideration of the Trophy Art Law in the Duma became just another corroboration that the statute is supported by the whole spectrum of political forces represented in the parliament. The vote was truly unanimous: with 355 deputies in favor with zero opposed.
As expected, adoption of the law does not preclude the Russian authorities from holding consultations with the German government regarding exchanges of cultural values. On April 28-29, 2000, Russian Minister of Culture, Mikhail Shvidkoi, returned to Germany 101 paintings from the Bremen Art Museum. His German counterpart, Michael Naumann, handed over to Shvidkoi a fragment of the Amber Room (an amber chest) 39*.

        Apart from the particular provisions of the Trophy Art Law itself, the whole legislative process in which the Law was drafted, rejected by the Federation Council, redrafted, adopted, vetoed by the President, readopted, etc., and especially two Constitutional Court decisions regarding the Law, can be considered a test case for the whole constitutional mechanism of checks and balances and separation of powers in the Russian Federation. Trophy Art Law as an illustration of the current legislative process in the country indicates that the process has acquired features of legal and civilized character. The Constitutional Court has revealed a hidden democratic potential of the Russian legal system, even within the limits of the «superpresidential» Constitution, which is definitely a sign of hope for Russia standing on the edge of post-Yeltsin era.
 

        For Further Reading:
        The Spoils of War: World War II and Its Aftermath: The Loss, Reappearance, and Recovery of Cultural Property (New York: Harry N. Abrams, Inc., Publishers in Association with The Bard Graduate Center for     Studies in the Decorative Arts, 1997. Elizabeth Simpson, ed.).
        Robert V. Daniels, Russia’s Transformation. Snapshot of a Crumbling System (Lanham, Boulder, New York, Oxford: Rowman & Littlefield, 1998).
        Nicolai N. Petro, The Rebirth of Russian Democracy. An Interpretation of Political Culture (Cambridge, MA, London: Harvard University Press, 1995).
        William Butler, Russian Law (Oxford: Oxford University Press, 1999).
        Molly Warner Lien, «Red Star Trek: Seeking a Role for Constitutional Law in Soviet Disunion», 30 Stanford Journal of International Law (1994).
        Robert Sharlet, «Transitional Constitutionalism: Politics and Law in the Second Russian Republic», 14 Wisconsin International Law Journal 3 (1996).
 

       NOTES

        1* James H. Billington, The Icon and the Axe (New York: Alfred A. Knopf, 1966). George F. Kennan, Memoirs, 1925-1950 (Boston-Toronto: Little, Brown, and Co., 1967), p. 528-9. And if contradictions are not just an isolated phenomenon, but «essence of Russia», attempts to eradicate them (to «civilize» Russia) are not possible without fundamental changes of Russia and, as a rule, doomed to fail from the start. The problem, therefore, is not how to «cure» Russia of her contradictions but how to use them for Russia’s development.
        2* See The Russian Civilization and Sobornost (Moscow: The Russian Sobornost Fund, 1994), p. 30. Cited in: Nikolay Zlobin, «Will Russia Be Crushed by Its History?», 159 World Affairs 2 (Fall 1996). Richard Pipes, Russia under the Old Regime (London: Weidenfeld and Nicolson, 1974. Series: History of Civilization).
        3* Harold J. Berman, Justice in the USSR (2d ed. 1963), p.5.
        4* «Russia does not differ essentially from Europe but Russia is not yet essentially one with Europe», wrote Thomas Garrigue Masaryk, Czech historian and first president of Czecho-Slovak republic, in his remarkable study of Russian history (Thomas G. Masaryk, The Spirit of Russia (London: George Allen and Unwin Ltd., New York: The Macmillan Co., 1919. Volume 1), p. 6.)
        5* «Anyone imagining the course of Russian pre-modern history to have been particularly barbarous or bloodstained should remember the near-absence, in comparison with Western lands, of witch-hunting, crusading, institutionalized capital punishment (abolished under Elizabeth in the mid-eighteenth century). The brutal episodes in the reigns of Ivan the Terrible and Peter the Great were traumatic because uncharacteristic» (Robin Milner-Gulland, The Russians (Malden, MA: Blackwell Publishers, 1997), p.228.)
       6* The First Russian Republic ended with the violent dissolution of the first democratically elected Russian parliament and suspension of the Constitutional Court of Russia in September-October 1993; the Second Republic was initiated by an adoption of the new Constitution in December 1993.
        7* The only other law that can probably belong to the same category is the Law on Freedom of Conscience and Religious Associations.
        8* Mark Boguslavsky, «Legal Aspects of the Russian Position in Regards to the Return of Cultural Property», The Spoils of War: World War II and Its Aftermath: The Loss, Reappearance, and Recovery of Cultural Property (New York: Harry N. Abrams, Inc., Publishers in Association with The Bard Graduate Center for Studies in the Decorative Arts, 1997. Elizabeth Simpson, ed.), p.186-190.
        9* See, for instance: Elissa S. Myerowitz, «Protecting Cultural Property During a Time of War: Why Russia Should Return Nazi-Looted Art», 20 Fordham International Law Journal (June 1997); S. Shawn Stephens, «The Hermitage and Pushkin Exhibits: An Analysis of the Ownership Rights to Cultural Properties Removed from Occupied Germany», 18 Houston Journal of International Law (Fall 1995); Steven Costello, «Must Russia Return the Artwork Stolen from Germany during World War II?», 4 ILSA Journal of International & Comparative Law (Fall 1997); Sylvia L. Depta, «Twice Saved or Twice Stolen? The Trophy Art Tug-of-War Between Russia and Germany», 10 Temple International and Comparative Law Journal (Fall 1996); Amy L. Click, «German Pillage and Russian Revenge, Stolen Degas, Fifty Years Later – Who’s Art Is It Anyway?», 5 Tulsa Journal of Comparative & International Law (Fall 1997); Alexander Blankenagel, «Eyes Wide Shut: Displaced Cultural Objects in Russian Law and Adjudication», 8 East European Constitutional Review 4 (Fall 1999).
        10*  See, e.g., Central and East European Law Initiative, American Bar Association (ABA CEELI), Analysis of the Constitution of the Russian Federation (New York, 1995), p.38. An American scholar correctly concludes that the presidential provisions of the Russian Constitution contain «all the brittleness of the U.S. Constitution but lack its balanced division of powers» (Edward W. Walker, «Politics of Blame and Presidential Powers in Russia’s New Constitution», East European Constitutional Review, Fall 1993/Winter 1994, at 116.) Another observer argues that the Russian Constitution is «plagued by contradictions that undermine the separation of powers in the new Russian government, and the aggrandized position of the president in the Constitution is all but frankly anti-democratic» (Jeffrey Waggoner, «Valor at the Russian Constitutional Court: Adjudicating the Russian Constitutions in the Civil-Law Tradition», 8 Indiana International & Comparative Law Review 1997, at 193.)
        11* ABA CEELI, Analysis of the Constitution of the Russian Federation at 40.
        12* In September 1993, «with a stroke of the pen, Yeltsin had wiped out Russia’s embryonic and uneasy separation of powers. Mao had bested Montesquieu», concluded an unbiased American scholar (Robert Sharlet, «Russian Constitutional Crisis: Law and Politics Under Yeltsin», 9 Post-Soviet Politics, no. 4, October-December 1993, p. 327). «It was a highly risky decision, since it was plainly illegal», wrote The Guardian (Jonathan Steele, «Inside Story: Chaos Theory», The Guardian, November 13, 1993). «Rarely in history there has been a coup prepared so ineptly and so openly. Yeltsin violated the constitution so flagrantly that there could be no talk of his having ‘made a mistake’ or ‘exceeding his powers’», commented a deputy of the Moscow City Council (Boris Kagarlitsky, Square Wheels: How Russian Democracy Got Derailed (New York: Monthly Review Press, 1994), p.197).
        13* In May 1991, the main provisions of the Law were included into the text of the Russian Constitution.
        14* Justice Delayed. The Russian Constitutional Court and Human Rights (New York: Lawyers Committee for Human Rights, 1995), p. 6.
        15* Although the original Decree «On the Gradual Constitutional Reform in the Russian Federation» contained a provision saying that representative bodies in the Russian regions continued functioning (art.8), it was a deceptive maneuver aimed at guaranteeing neutrality of the regional legislatures in President Yeltsin’s conflict with the Russian Supreme Soviet. As a result of issuance of Decree No. 1723 of October 22, and Decree No. 1760 of October 26, the regional legislatures were dissolved too.
        16* Yeltsin’s attempt to block any public discussion of the draft was characterized by British scholars as «hardly a sound precedent of democratic practice» (see Stephen White and Ronald J. Hill, «Russia, Former Soviet Union, and Eastern Europe», in The Referendum Experience in Europe (London: Macmillan Press Ltd, 1996. Michael Gallagher and Pie Vincenzo Uleri, eds.), p. 163. More on the interregnum period of September-December 1993 in Russia see, e.g., Tanya Smith, «The Violation of Basic Rights in the Russian Federation», East European Constitutional Review (Summer / Fall 1994).
        17* See, e.g., A Modern Day Czar? Presidential Power and Human Rights in the Russian Federation (New York: Lawyers Committee for Human Rights, 1995), p. iii; Stephen Holmes, «Superpresidentialism and its Problems», East European Constitutional Review, Fall 1993 / Winter 1994, p.123; John Kohan, «What Would Lenin Say?», Time, December 20, 1993, p.44. «Superpresidentialism» of the new Russian constitution was quite a logical step in the Russian «reforms»: «If you are determined to impose capitalism by any means, to pour the medicine down people’s throats against their will, you can’t achieve your objective with genuine consent. So you opt for some kind of iron fist, for a czar, even if you choose to call him - as did Izvestia’s Washington correspondent, unaware of the contradiction - a ‘democratic dictator’» (Daniel Singer, «Putsch in Moscow», The Nation, October 25, 1993, p.449).
        18*  Robert Sharlet, «Citizen and State under Gorbachev and Yeltsin», in Developments in Russian and Post-Soviet Politics (White, Pravda & Gitelman, eds. 1994), p. 109, 128.
        19* In an alarming conclusion of another objective American scholar, Yeltsin «demonstrates how attempts to copy the American system are likely to end up in dictatorship, as they have so often in Latin America» (Robert V. Daniels, «Yeltsin’s No Jefferson. More Like Pinochet», The New York Times, October 2, 1993, p.23).
        20* See Amy J. Weisman, «Separation of Powers in Post Communist Government: A Constitutional Case Study of the Russian Federation», 10 The American University Journal of International Law & Policy (Summer, 1995), p.1397.
        21* The process of lawmaking in the Federal Assembly is determined by Article 105 of the Russian Constitution. Federal laws are adopted by a majority votes of the total number of State Duma deputies (art. 105.1.) These laws are submitted to the Federation Council within five days of their passage in the Duma (art. 105.3.) If a majority of the total number of deputies of the Federation Council vote for the law, or if the Council fails to consider the legislation within 14 days, it will be deemed adopted (art. 105.4.) If the Federation Council rejects the legislation, both houses may convene a reconciliatory commission to settle their differences, and then resubmit the legislation for consideration by the Duma (art. 105.4.) If the Federation Council again rejects the bill, the Duma may still enact the legislation if two-thirds of its membership vote in favor of it (art. 105.5.)
        22*  Elections of the last appointed Governor, in Karachaevo-Cherkessia, happened only in 1999.
        23*  By 1998, Germany has reportedly provided the USSR and Russia with over 100 billion mark credits (ITAR-TASS, July 20, 1998.). Since disintegration of the USSR, over 50 billion Deutschmarks in aid have been given to Russia only.
        24*  Jan Cleave, «Russia: Parliament Rejects Yeltsin’s Veto Of Trophy Art Law», Radio Free Europe / Radio Liberty, May 16, 1997).
        25*  The poll involved 1,500 urban and rural residents. Backers of the law included both people with a scarce educational background and with higher education. (ITAR-TASS, June 16, 1997.)
        26*  See, for instance: «Nationalists and Communists contend that the art is merely compensation for the enormous losses of Russian cultural treasures» («An Amber Light on Wartime Loot» (Editorial), The New York Times, July 19, 1997); «The negotiations between Russia and Germany have stalled with Russian nationalists seizing upon the issue with particular fervor /.../ As early as 1993, however, the Russian position began to harden and nationalist voices became louder» (Stephan Wilske, «International Law and Spoils of War: To the Victor the Right of Spoils? The Claims for Repatriation of Art Removed from Germany by the Soviet Army During or as a Result of World War II», 3 UCLA Journal of International Law and Foreign Affairs (Spring/Summer 1998), at 226, 280); «The 308-15 vote could help Russia to hang on to priceless cultural treasures /.../. The ballot reflected an upsurge of nationalist feeling throughout Russia» (Chrystina Freeland, «Looted German art: Duma snubs Yeltsin», The Financial Times, April 5, 1997); «The trophy art has become a key part of a power struggle between Russia’s nationalist Parliament, which has attempted to nationalize the art treasures, and President Boris Yeltsin» (Victoria A. Birov, «Prize or Plunder?: The Pillage of Works of Art and the International Law of War», 30 New York University School of Law Journal of International Law and Politics (Fall 1997 / Winter 1998) at 213).
        27* Great Patriotic War of the Soviet Union. 1941-1945. A General Outline (Moscow: Progress Publishers, 1974), p.434.
        28* See Mikhail Shvidkoi, «Russian Cultural Losses During World War II», The Spoils of War: World War II and Its Aftermath: The Loss, Reappearance, and Recovery of Cultural Property, p.67-71.
        29* Lynn H. Nicholas, The Rape of Europa: The Fate of Europe’s Treasures in the Third Reich and the Second World War (New York: Alfred A. Knopf, 1994), p.193-4. Indeed, what else could be expected from Nazi invaders whose attitude to the Soviet people was expressed by Heinrich Himmler (in his speech of July 13, 1941, just three weeks after the beginning of German aggression against the USSR) in the following terms: «A population of 180 million, a mixture of races, whose very names are unpronounceable, and whose physique is such that one can shoot them down without pity and compassion... welded by the Jews into one religion, one ideology...» (R. Breitman, Architect of Genocide: Himmler and the Final Solution (New York: Alfred A. Knopf, 1991), p.177.)
        30* Lynn H. Nicholas, op.cite, p.200. That’s how an American military correspondent Marcus Hindus described destruction by Nazis of Peterhof, Peter the Great’s lavish palace on the Gulf of Finland: «I had neither seen nor heard anything like it in France after the World War. Only windblown tall reeds rising out of deep snow give one a feeling of some life within nature itself... all Peterhof is gone. It isn’t even a ghost town like Kiev, Kharkov, Poltava, Orel or Kursk... it is a desert strewn with wreckages from which, perhaps, has been blown away some of the most exquisite and most joyful art man has created» (New York Herald Tribune, February 17, 1944. Cited in Lynn H. Nicholas, op.cite, p.200-201.) Overall, 34,000 precious objects were taken from Peterhof to Germany (Michail Shvidkoi, op.cite, p.69.)
        31* For comparison, in Great Britain loss of its citizens during World War Two was equal to 375,000 (or 0,9 % of the British population), in the U.S. - 405,000 (or 0,3 % of the U.S. population), even in Japan human toll, including victims of atomic bombings of Hiroshima and Nagasaki, was equal to 2,6 million (or 3,4 % of its population) (Great Patriotic War of the Soviet Union. 1941-1945. A General Outline, p.434.)
        32*  Ellen Barry, «Total War to Trophy War: Berlin’s Lost Art», The Moscow Times, November 16, 1994.
        33* In the 1990s, the most significant of those cultural objects were exposed in a series of «stunning exhibitions», as they were called by Western press (Richard Beeston, «Yeltsin Shrugs off Duma to Give Kohl Looted Work of Art», The Times, April 16, 1997), at Moscow’s Pushkin Museum of Fine Arts and the Hermitage in St. Petersburg.
        34* The archive of the Weimar Republic Foreign Minister Walther Rathenau, who in April 1922 signed the treaty establishing diplomatic relations with the USSR.
        35* RFE/RL Newsline, Vol. 1, No. 12, Part I, April 16, 1997.
        36* In the first case, a lawyer from Bremen tried to sell a fragment of the Amber Room mosaic for $2.5 million. A second object turned up when a reader in Berlin recognized in a news picture a cabinet she had bought in the 1970’s in East Germany. Both of those «discoveries» indicate that the Amber Room could survive and is still located somewhere in Germany.
        37* «An Amber Light on Wartime Loot» (Editorial), The New York Times, July 19, 1997.
        38* See, for instance, Dmitry Zaks, «President Hits Back At Court», The Moscow Times, April 8, 1998.
        39* In an apparent attempt to stress his special relations with Germany, President-elect Putin welcomed the return to St. Petersburg of the remains of the Amber Room and thanked «our German friends» for the return home of «one of our national sacred objects». According to Putin, that exchange is an indication that «people in Russia understand, value and treasure Russian-German relations» (Interfax, April 29, 2000.)



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