_general_ci «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» .
 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) . 
 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» .
 The «Scythian complex» of Russia - the dialectical  dichotomy of being an inseparable part of the European civilization, and  historically being in confrontation with it ,  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)  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   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 .
 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 ,  predominantly from anti-Russian positions ),  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 . 
 Whether  the President and Parliament adhere to the Constitution depends largely on the  effectiveness of judicial enforcement . 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 .  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 and which later (in  May 1991) was included into the Constitution.
 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» . 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 , 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 .
 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 . As  a «victor’s Constitution» (Robert Sharlet) , the  new Russian Constitution introduced presidential supremacy and placed the  Executive above the other branches of government .  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» .
 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 . 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 .  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  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» .
 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 , 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 .  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 .
 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 .  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» .
 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» .  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 .
 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 .  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 .
 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 , 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.» 
 Hardly  by a 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 .  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,  - 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» .  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) .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.
 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).

   
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     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. 

     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). 

     Harold J. Berman, Justice  in the USSR (2d ed. 1963), p.5. 

     «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.) 

     «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.) 

     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. 

     The only other law that can probably belong to the  same category is the Law on Freedom of Conscience and Religious Associations. 

     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. 

     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 Tulsa Journal (Fall 1997);  Alexander Blankenagel, «Eyes Wide Shut: Displaced Cultural Objects in Russian  Law and Adjudication», 8 East European  Constitutional Review 4 (Fall 1999). 

     See, i.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.) 

     ABA CEELI, Analysis  of the Constitution of the Russian Federation at 40. 

     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, supra note 66*).  «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). 

     Justice Delayed. The  Russian Constitutional Court and Human Rights (New York: Lawyers Committee for Human Rights, 1995),  p. 6. 

     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. 

     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). 

     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). 

     Robert Sharlet, «Citizen and State under Gorbachev and  Yeltsin», in Developments in Russian and  Post-Soviet Politics (White, Pravda & Gitelman, eds. 1994), pp. 109,  128. 

     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). 

     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. 

     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.) 

     Elections of the last appointed Governor, in  Karachaevo-Cherkessia, happened only in 1999. 

     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. 

     Jan Cleave, «Russia: Parliament Rejects Yeltsin’s Veto  Of Trophy Art Law», Radio Free Europe /  Radio Liberty, May 16, 1997). 

     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.) 

     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). 

     Great Patriotic War of  the Soviet Union. 1941-1945.   A General Outline (Moscow: Progress Publishers, 1974), p.434. 

     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. 

     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), pp.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.) 

     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.) 

     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.) 

     Ellen Barry, «Total War to Trophy War: Berlin’s Lost  Art», The Moscow Times, November 16,  1994. 

     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. 

     The archive of the Weimar Republic Foreign Minister  Walther Rathenau, who in April 1922 signed the treaty establishing diplomatic  relations with the USSR. 

     RFE/RL Newsline, Vol. 1, No. 12, Part I, April 16,  1997. 

     In the first case, a lawyer from Bremen tried to sell  a fragment of the Amber Room mosaic for .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. 

     «An Amber Light on Wartime Loot» (Editorial), The New York Times, July 19, 1997. 

     See, for instance, Dmitry Zaks, «President Hits Back  At Court», The Moscow Times, April 8,  1998. 

     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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