THE EVOLUTION OF JUDICIAL IMMUNITY OF A FOREIGN STATE IN CIVIL PROCEDURE OF RUSSIA

N.V. SAMSONOV,
Doctor of Legal Sciences, Associate Professor, Dean, Law Faculty, Rostov Branch of the Russian Customs Academy, Professor, Department of Procedural Law, South Russian Institute of Management – Branch of the Russian Presidential Academy of National Economy and Public Administration, Professor, Department of Civil Procedural Law, Rostov Branch of Russian State University of Justice

The article examines the process of replacing the absolute judicial immunity of a foreign state in Russian civil proceedings with a limited one. The subject of research in this article is the evolution of the rules on the judicial immunity of a foreign state in modern Russian civil proceedings, which led to the replacement of absolute immunity with a limited (functional) one. The following tasks are resolved in the work: a comparative analysis of the content of the concepts of jurisdictional immunity of a foreign state existing in the legal doctrine was carried out; the influence of international law (international conventions, international customs and acts of international courts) on this evolution was analyzed. The methodological basis of the study is the dialectical method of cognition. The method of system analysis, comparative research, formal-logical and historical-legal analysis, formal-legal, comparative-legal, as well as the method of legal positivism in its statist version were also used. The empirical basis of the work was: the United Nations Convention on Jurisdictional Immunities of States and Their Property, the norms of civil procedural law, international customs; acts of the Constitutional Court of the Russian Federation, the European Court of Human Rights and the Supreme Court of the Russian Federation; works of domestic legal scholars on the issues under study. The following conclusions are formulated in the work. The rules of limited (functional) immunity fully comply with the principles of legal (formal) equality of participants in civil relations (parties to the contract) and the good faith of the parties, while the rules of absolute immunity limit the right of national subjects to judicial protection in disputes with foreign states. Absolute judicial immunity was replaced in Russian civil proceedings with a functional one not as a result of the direct action of international law (the emergence of a custom not enshrined in an international treaty, the signing of the UN Convention on Jurisdictional Immunities of States and Their Property, the adoption of the ECtHR Resolution of 14 March 2013), but as a result of the sovereign recognition of the greater effectiveness of limited judicial immunity for the protection of entities entering into civil law relations with a foreign state as the subsequent change in civil procedural legislation. International custom cannot be used as a universally binding rule of conduct governing civil proceedings and act as a source (form) of Russian civil procedural law. The UN Convention and the Decree of the ECtHR of 14 March 2013 acted as a driving force that formed the main directions for the modernization of domestic procedural law and prompted the federal legislator to abandon the view of the theory of limited immunity of a foreign state as a theory harmful to our country.

Keywords: civil procedure; judicial immunity; immunity of a foreign state; ECtHR; international customs.

N.V. SAMSONOV