Legal Nihilism in Russia

About the author
Professor of Law in the School of Law, Birkbeck, University of London. He is a practising barrister at Field Court Chambers, Gray's Inn. Professor Bowring has extensive professional practice representing applicants and appearing in the European Court of Human Rights.
It is notorious that "telephone justice" was the norm in the Soviet Union. Judges, except at the highest levels, had low prestige. While most public prosecutors were men, most judges - like doctors and teachers - were women. All judges without exception were Communist Party members, and required to report back regularly on their activities to the local Party bodies. In any event, the role of the courts was seen to be primarily educational, instructing citizens in the importance of public order and respect for socialist property. Non-controversial cases, for example crime without political connotation, or cases concerning inheritance or custody of children, would be dealt with impartially and according to normal procedures. Indeed, there was strict adherence to procedural formality. But if the interest of the State or Party were concerned, then the judge would either know what needed to be done without being told, or, if necessary, would receive a telephone call so as to know what was expected.

 

“… the traditionally subservient attitude among many judges and prosecutors inherited from the past has not yet been fully overcome; on the contrary, after an encouraging new beginning in the early 1990s, judges are subjected to an increasing level of pressure aimed at ensuring convictions in almost all cases brought to court by the prosecutor’s office.”

Rapporteur Sabine Leutheusser-Schnarrenberger's PACE report of 23 June 2009 on politically motivated abuses of the criminal justice system in Council of Europe member states.

There is strong evidence, especially that gathered by Professor Alena Ledeneva of University College London, that the practice continues to the present day. In her words (2008): "Experts largely agree on the following formula: although it is ridiculous to suggest that every court case in Russia is decided according to directives from above or on the basis of alternative incentives, it is perfectly possible to imagine that a way to influence a particular case can be found if necessary."

But that does not mean that Russia has no history of judicial reform. Indeed, the first full professor of law in Russia, S E Desnitsky, obtained his Doctorate in Civil Law from the University of Glasgow in 1767, studying under Adam Smith and others. He took the ideals of the Scottish Enlightenment back to Russia, proposed the abolition of serfdom and a constitutional monarchy to Catherine the Great, and died in his bed in 1789, the year of the French revolution and the Declaration of Rights of Man and of the Citizen..

But genuine attempts at judicial reform have occurred twice in Russia's history, on each occasion following terrible defeats.

Twice in its recent history Russia has considered itself to be invincible, only to find itself humiliated. Most recently, the Soviet Union, effectively Russia, perceived itself to be the victor of World War II, at the head of an unstoppable worldwide movement, triumphant in space exploration. Within only a few decades the USSR was defeated in Afghanistan and could not compete with the USA in weapons development. Its economy was based largely then as now on oil export. The USSR collapsed and Russia, on its own, relapsed into a new "time of troubles", and became an international basket-case, a condition from which Putin seeks to rescue it.

Russia felt itself similarly invincible after its defeat of Napoleon in 1812. Tchaikovsky, Tolstoy and many others represented the world class culture of a world power. Defeat in the Crimean War (1853-1856) was a rude awakening. It was plain that the old order could not continue.

The great reforming Tsar Aleksandr II saw this clearly. He was born in 1818, a few years after the defeat in 1812 of Napoleon in Russia's Patriotic War, and was assassinated in 1881 by a member of Narodnaya Volya, the "Peoples Will". He came to the throne in 1855, and was forced to negotiate humiliating peace terms for the Russian Empire, which gave up pre-eminence in the Black Sea following the Crimean War.

Then Aleksandr turned his attention to domestic reform. On 3 March 1861 he signed the law emancipating the serfs. It should be noted that Russia was ahead: slavery in the USA was not abolished until the passage of the Thirteenth amendment to the US Constitution in 1865. In 1864 he carried through a series of radical legal and judicial reforms. These included a unified courts system, based on the French model; a radical reduction in the importance of the Prokuror, whose function henceforth was to present the state's case in court, rather than act as the "eye of the Tsar" for all aspects of life as previously; a system of justices of the peace to hear less important cases; an independent judiciary; and finally trial by jury, with 12 jurors.

The acid test came in 1878, when a St Petersburg jury acquitted the revolutionary Vera Zasulich of attempted murder, despite the fact that she had shot the governor of St Petersburg, Fyodor Trepov, in front of witnesses, intending to kill him. The judge was the great Russian jurist A F Koni (1844-1927), who refused to respond to state pressure, and conducted a fair trial. He directed the jury that Zasulich had no defence in law; but they acquitted her anyway. The acquittal was respected. She later took part in the Bolshevik revolution. Koni made a splendid career, and continued to lecture and write following the revolution. The jury members were not punished.

Despite the reaction which set in after Aleksandr's assassination, these reforms were respected until the Bolsheviks came to power in 1917. For a short time in the 1890s Lenin practised law, unsuccessfully, and his enemy Aleksandr Kerensky, leader of the Provisional Government in 1917, was the defence lawyer in a number of political trials of enemies of the Tsar,

In December 1917 the Bolsheviks abolished jury trial and the justices of the peace, and restored the Prokuratura to its pre-revolutionary status and power. Only the Bar (Advokatura) retained formal independence from the Soviet state and, despite constant interference, a number of fearless lawyers continued to represent the "enemies of the people". Some, outstanding advocates like Karinna Moskalenko,Yuri Schmidt and Semyon Ariya, continue even now to fight on behalf of enemies of the Kremlin.

The collapse of the Soviet Union in December 1991 opened the way to a renewal of legal and judicial reform. On 22 November 1991 a Declaration of the Rights and Freedoms of the Person and Citizen was enacted. An unprecedented Constitutional Court, created as the USSR reached its death-throes, started work in January 1992, followed by enactment of a law on the status of judges, and a law giving citizens the right to challenge activities and decisions which violate their rights. On 16 July 1993 a great experiment began with the introduction of jury trial, in nine Russian regions. And in 1996 Russia consented to interference in its internal affairs and joined the Council of Europe, ratifying the European Convention of Human Rights in 1998.

But the full restoration of the reforms of Aleksandr II, at least on paper, did not take place until after Russia's humiliation during the Yeltsin period. This ended on the stroke of midnight 2000, with the appointment of Vladimir Putin as Acting President. Putin's project is to restore Russia's status as a Great Power. For example, the Second Chechen War; and the "Five Day War" with Georgia in August 2008. This policy has continued "in tandem" with his appointee as successor President following the end of his own two terms, the maximum possible: Dmitrii Medvedev,

From 2000 to 2003 President Putin expressly referred to himself as following in the footsteps of the great reforming Tsar, Alexander II, and his law reforms of 1864. Putin too presided over creation of a system of justices of the peace; installation of jury trial throughout Russia with the exception of Chechnya; enhanced judicial status and a greatly enhanced budget for the judicial system; and a much reduced role for the prosecutor in criminal and civil trials. He even cited Judge Koni.

However, the initial phase of legal reform from 2000, which included enactment of new procedural codes for the courts, came to an abrupt end in late 2003, with the arrest of Mikhail Khodorkovsky and the destruction of his YUKOS oil company. Putin began to talk about "sovereign democracy"; by which he actually meant a highly authoritarian and capricious regime.

The judicial system remains in the state described in my first paragraphs above. In her recently published Report, the Rapporteur of the Council of Europe's Parliamentary Assembly, a former Minister of Justice of Germany, has said: "... the traditionally subservient attitude among many judges and prosecutors inherited from the past has not yet been fully overcome; on the contrary, after an encouraging new beginning in the early 1990s, judges are subjected to an increasing level of pressure aimed at ensuring convictions in almost all cases brought to court by the prosecutor's office."

In May 2008 the new President of the Russian Federation, Dmitrii Medvedev, a former law professor, acknowledged that the Russian criminal justice system, and the Prokuratura in particular, still had structural defects that lead to the accusation and conviction of many innocent persons. He used the evocative term "legal nihilism". He promised bring about real reform.

However, in March 2009 this term came to the Rapporteur's mind when she attended a hearing at the second trial of Mikhail Khodorkovsky and his colleague Platon Lebedev. Mr Khodorkovsky was sentenced to 9 years imprisonment, reduced to 8 on appeal, in 2005, and this conviction is now the subject of a case at the European Court of Human Rights. Fresh investigations were launched against him as his first trial proceeded. The Rapporteur tried to understand the reasoning behind the accusations. As she pointed out "As a matter of fair trial, any accusation must fulfil minimum standards of logic in order for a meaningful defence to be at all possible." She was struck by the following: "... the new charges apparently amount to attaching a different legal qualification to the same facts rather than prosecuting the accused for a different set of facts." She analysed the new allegations and her conclusion was that "In essence, Yukos, in effect its senior executives, is ... accused of stealing its own oil and of committing the crime of money laundering by selling it on the world market and using the proceeds for normal company purposes." The mind boggles.

The Rapporteur documents a large number of cases in which defence lawyers are subjected to intimidation and reprisals. More worrying still, jury trial is under threat. It should be noted that the acquittal rate in ordinary criminal cases is less than 1%, whereas in jury trials some 20% of accused are acquitted. But recent legislative proposals seek to exclude jury trial in cases involving terrorism, treason, violations of state security and secrecy, and "extremism". A very wide range of activities is now characterized as "extremist" in Russia. At the same time, murders such as those of the investigating journalist Anna Politkovskaya in October 2006, and of the lawyer Stanislav Markelov and the journalist Anastasia Baburina on 19 January 2009 go unpunished, and indeed there are no signs of prompt or effective investigation.

The sad fact is that where the subject matter of a trial, criminal or civil, is of importance to the Russian state, then a fair trial is unlikely. This has been recognized by the British courts in a series of cases, most recently in December 2008, in which they have rejected Russia's requests for extradition of Russian citizens charged with criminal offences in Russia. In the eyes of the British judges, these requests are politically motivated; and there is a high risk that the persons whose extradition is requested will not get a fair trial in Russia.

There are honest and independent judges in Russia. In December 1999 the St Petersburg judge Sergey Golets stood up to intense pressure from the authorities and acquitted the former nuclear submarine commander Aleksandr Nikitin of charges of espionage and treason, for environmental activities. In my own case in 2006 for judicial review of deportation the previous year, a woman judge in the Khimki City Court refused to accept the authorities lack of evidence against me, and I have since returned to Russia.

But the system as a whole has not yet been reformed. If anything, sadly, it has regressed.