Russia and the Rule of Law

EU Russia Centre
by Anthony Brenton, a former UK ambassador to Russia

The inadequacies of Russia’s legal and judicial systems have recently been very much on display. The second trial of fallen oligarch Mikhail Khodorkovsky, which looks no less politically motivated than the first, is approaching its close. We have just marked the first anniversary of the death in custody of Russian lawyer, Sergei Magnitsky, imprisoned for a year without charge for exposing deep corruption in the Russian Interior Ministry. Yet another respected investigative journalist has been beaten up, and another opposition oligarch found himself subject to the aggressive attention of the Tax Police. Russia has fallen to 154th place (out of 178) in Transparency International’s ranking of countries in terms of the perceived corruption of their public officials (including police and judges), placing Russia well below eg Ukraine, Kazakhstan and Nigeria. Close to 30% of the cases currently awaiting attention by the European court of Human Rights now concern Russia, far more than for any other country.

The Russian authorities are undoubtedly aware of the problem. President Medvdev, himself a lawyer, has famously criticised Russia’s “legal nihilism” and regularly, if so far with little visible effect, demands full investigation of outrages as they come to light. At an earlier stage President (as he was then) Putin also called for “dictatorship of the law”. In a thoughtful commentary in 2004, Valerii Zorkin, President of the Russian Constitutional Court, noted that “true legal awareness and respect for the law has not yet become integrated into a generally accepted system of values even among many public offices who frequently believe that the interests of the state and of state owned enterprises should by definition prevail over the interests of ordinary citizens”.

Nor is there much serious dissent about what is wrong. First, there is a historical problem. The Russian judicial system has traditionally been entirely subject to the will of the state (and not only under Communism: one suspects that Tsar Nicholas I’s police chief, Count Benkendorff, spoke for many in authority in Russia when he said “laws are written for subjects, not governments”). This was the system and set of attitudes which prevailed when many of today’s judges learnt their trade. And, because the system was driven by politics and clientage rather than justice, most Russian people and organisations developed elaborate informal mechanisms to stay out of its clutches.

Second, there is a sociological problem. Russia, its Government, its legal profession, its people, is still some way short of assimilating the concept of the legal system as an independently standing set of rules, binding on all. In particular, as Zorkin implied, it is extremely difficult to get legal norms taken seriously when so much of the state apparatus is ready, for public and private reasons, itself to ride roughshod over them. Some of this impatience with legal nicety has Western analogues; Russia faces serious security challenges flowing from the North Caucasus, and is not the only state which in such circumstances has been ready to cut corners. But that is by no means a full explanation (let alone justification) for the fact that parts of the Russian administration – not only the police but also for example the tax authorities – seem able on occasion to operate with little regard for normal legal constraints. And it is remarkable how little the law has been used to pursue alleged (and often well documented) electoral irregularities. Such arbitrariness inevitably reinforces scepticism both in the legal profession and in the wider population about equal application of the law in today’s Russia (in a survey conducted in the late 1990s, 72% of the population saw the court system as corrupt, and only 6% did not believe the authorities used it for political purposes).

Third, and more remediably, there have been a cluster of practical impediments to the full development in Russia of an effective and independent judiciary. Following the headlong transition from Communism, much Russian law was hastily, often incoherently, drafted, so that it was difficult and often impossible for the ordinary citizen not to be in breach one way or another. The Russian legal profession, a low status area under Communism, was insufficiently trained and resourced. It lacked the professional standards and corporate spirit which bolster judicial independence in the EU and the US. Russian judges were underpaid, with corruption the unsurprising result. They were also very dependent on the local authorities in their region for resource and other support, and were (and remain) part of a rigid hierarchical system where professional standing and progress are at least as dependent on the approval of the political authorities as on judicial competence. The criminal justice system itself, again reflecting its Communist roots, tended to be opaque, summary, and to operate hand in glove with the police and prosecutors. Thus, before juries were introduced, the acquittal rate in criminal trials was less than 1%.

As part of the general process of Russian reform, serious progress has been made in dealing with some of these issues. Russian law itself has been substantially rewritten to make it more functional and internally consistent (although the lack of professional legal drafting advice in the State Duma remains a problem). Fundamental steps forward were the introduction in 2002 of a new Criminal Procedure Code, which substantially strengthened defendants’ rights, and, between 1995 and 2006, of a new Civil Code which draws heavily on western models to provide a legal framework for Russia’s emerging market economy. In addition, between 2000 and 2003, President Putin (explicitly comparing himself to Russia’s last great legal liberaliser; Tsar Alexander II) brought in extensive institutional reforms; a system of Justices of the Peace was introduced, jury trial was extended throughout Russia (except Chechnya), judicial status was enhanced and pay raised, resources for the judicial system were significantly expanded, and the role of the prosecutor in criminal and civil trials was cut back.

These reforms have made a real difference to the capacity of the Russian system to deal effectively and fairly with commercial cases with no significant political implications. The commercial “arbitrazh” court system has become significantly more transparent and predictable. The law is now a higher prestige profession, with many bright young Russians seeking to enter it. Russian companies are staffing up legal departments and are increasingly ready to go to law (rather than relying on more informal methods) to settle their disputes (although it is also the case that the really big players continue to make heavy use of foreign jurisdictions). Judicial corruption remains a problem, but there is growing confidence among both lawyers and litigants that, after a few appeals if necessary, a fair result can now usually be obtained. British businessmen tell me, with diminishing astonishment, that they are winning their cases against the Russian tax authorities.

But if things have substantially improved on the civil side, that is much less true on the criminal side, particularly in cases with political overtones. Low international confidence in Russia’s legal processes is underlined both by the number of cases Russia loses in the European Court of Human Rights, and the number of foreign jurisdictions which, almost routinely, turn down Russian extradition requests because of doubts about the quality of justice the extraditee would face. Valerii Zorkin (quoted above) has described Russia as “something of a rogue state” in the international legal community. While the introduction of jury trials has undoubtedly done much to diminish the overwhelming influence of the prosecution and the police in criminal trials (acquittal rates with juries are about 20%, compared with 1% previously) there is a rising tide of successful appeals (to panels of judges) against jury acquittals, and moves to exclude juries from trials for terrorism, treason, violations of state security and (extremely widely defined) extremism. There are well documented cases of police harassment and pressure on defence lawyers. Above all, as the examples of Magnitsky and Khodorkovsky glaringly underline, so called “telephone” justice (where the verdict is dictated down the line by the authorities) is not yet dead, and criminal activity in the Interior Ministry (and, no doubt, elsewhere in the Russian machine) remains untouchable, even by Russia’s highest political authorities.

In summary, parts of the Russian justice system (notably the Arbitrazh courts) now function relatively well, but there are still some very black spots. Experts widely agree that “although it is ridiculous to suggest that every court case 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”. There are reasons to hope that things will improve. The political subservience and prosecutorial dominance bred under Communism should erode over time. A few brave judges have already stood up to official pressure for the “right” verdict. There are signs of a popular and press backlash (with Medvedev carefully associated with it) against ubiquitous corruption and police impunity. The growing demands of an increasingly complex market economy for a decent and predictable system of civil justice will push things in the right direction. And Russia’s continued acceptance of the jurisdiction of the European Court of Human Rights (and recent agreement to making that body still more effective) is striking testimony to the determination of at least some in the Russian system to bring Russian legal standards up to international norms (and the stream of adverse European Court judgements is slowly beginning to have some effect on Russian police and judicial practice). But there are countercurrents too. Russia’s drift over the past few years in an authoritarian direction limits the scope for popular resentment at corruption and police criminality actually to make any difference. The benefits of the introduction of juries are increasingly being pushed back by appeals and legislative changes. And, as the case of Khodorkovsky most strikingly underlines, today’s Russia, when confronted with serious political opposition, is no less ready than yesterday’s to deploy the Russian justice system as a political tool, and thereby undermine its credibility across the board.

Europe has a real stake in the progress of the rule of law in Russia. As the links between our governments, businesses and people grow stronger, so it will become more and more important that doubts about the quality of Russian justice do not get in the way. It would be much more comfortable to live in a world where we could safely extradite criminals to Russia, settle business disputes in Russian courts, and where ministers on visits did not routinely have to raise concerns about Russia’s breaches of international human rights standards. One important step towards that is to raise the prestige, independence and (in Zorkin’s words) “corporate spirit” of the Russian legal and judicial professions. Anything that European governments and (in particular) legal professions can do to strengthen contacts, training, and mutual sharing of experience would undoubtedly contribute to that end. unshaven girls микрозаймы онлайн https://zp-pdl.com/apply-for-payday-loan-online.php https://zp-pdl.com/get-quick-online-payday-loan-now.php unshaven girl