The majority of Russians do not trust the courts, according to the polls—and rightly so. A number of factors contribute to the country’s legal troubles, including a low ethical and professional level of judges, dependence on the executive power, inquisitorial practices in criminal proceedings. The already poor state of affairs has worsened in recent years, as judges turned to forging facts and creating their own reality that defies logic and common sense.
Creating their own reality is very convenient for the Russian courts, as its allows them to make the “right” decisions for no extra effort, as showcased by the sentencing decision against Alexei Navalny (second to right) and his brother, Oleg (right), in the 2014 Yves Rocher case. Photo: YouTube.
Russia and the United States are at opposite poles regarding citizens’ trust in the judicial system. Polls by Levada Center, Russia’s leading independent sociological research agency, show that only 31 percent of Russians trust the courts, while 54 percent do not. Simultaneously, the State of the State Courts survey conducted by GBA Strategies in the United States shows the opposite picture: 65 percent of Americans trust the federal and state courts.
At first glance, legal proceedings in both countries look the same: a formalized process carried out by persons endowed by the Constitution. But the similarities end there. The rule of law has become an integral part of the U.S. culture, and Americans highly respect court decisions; in Russia, the rule of law has become practically obsolete, and outcomes of trials increasingly do not reflect justice. Beyond the differences in history, politics, and culture, Russia’s legal troubles are also determined by specific factors inherent to its court system.
The most common malady is the extremely low ethical and professional level of Russian judges. Two thirds of judges in Russia are former court secretaries and judicial assistants of judges. Although these people have a law degree, most conduct their studies remotely or part-time, which often means a lower quality of education. Their training generally invokes the experience of the Middle Ages, when an apprentice mechanically repeated the master’s actions often without thinking about their meaning or purpose. As Russian lawyers quip, there are two types of lawyers: those who care only about the form and need to know that the words “It is so ordered” are written at the end of an opinion, and those who care about the content and need to study Roman law. Unfortunately, the absolute majority of Russian judges, including Supreme Court Justices, are of the first type.
Other pools of judges for the criminal courts include the prosecutor’s offices and the police. Candidates outside the government have almost zero chance of becoming a judge in Russia. As a result, the vast majority of judges have never worked in the private sector and have no idea how it operates.
The second reason is that, under these conditions, judges perceive themselves as an appendage of the executive power. The executive power knows this very well. For example, about five years ago, the Moscow government ordered many buildings to be demolished despite any documents and without any compensation. The owners went to court, most of them lost, but some won their case. Nevertheless, the government destroyed the buildings, and Moscow Mayor Sergei Sobyanin called these few court decisions against the Mayor’s Office “fraudulent papers” and refused to follow them with no consequences for himself whatsoever.
Russian criminal courts have a long-standing habit of making judgments in favor of the government, which has eroded the entire justice system. Russian criminal proceedings have always been inquisitorial: the rate of acquittals in Russia for non-jury courts (99 percent of all cases) has been less than one percent for many years and is still declining. The public perception is that this is done to protect people from criminals, but this argument barely holds water: for instance, the level of acquittals in the U.S. federal courts in the US is about 9 percent. This “protect public interests” approach in criminal proceedings has had a spill-over effect and now become common in civil courts as well.
But how can the Russian judicial system circumvent all laws and regulations to make decisions in favor of a party that violated the law? The answer is easy: the Russian judicial system has become quasi-judicial. While maintaining some external attributes of justice, the system completely neglects the idea that “the law is the art of goodness and equity,” according to the Roman maxim.
The most common law violation in Russia has been the courts’ unwillingness to justify a court opinion, whereas the U.S. courts do exactly the opposite. Russian courts mindlessly “copy-and-paste” entire paragraphs from legal codes without justifying why and how these laws should be applied in a particular situation—Russian lawyers even call this practice “procedural masturbation.” Citations of laws are given by Russian courts only to enlarge judicial opinions, very often without any legal reasoning. It is common for a court not to mention the parties’ reasoning at all. If it is mentioned, the court simply dismisses it with the short statement: “The arguments are unfounded.”
The story behind the Russian Constitutional Court’s Determination No. 42-O of January 25, 2005, on the constitutionality of several provisions of the Criminal Procedure Code showcases this approach. An appeal in this case was denied, and the decision was justified by the court’s simply stating that “the defense’s claims are unfounded” without mentioning its arguments or specifying why they were unfounded. The legal counsel filed a petition to the Constitutional Court (the highest court in Russia), and the latter confirmed that it was unconstitutional for any judge to deny any complaint without legal reasoning. The lawyer went back to the appeal court and asked it to reconsider its previous decision. The complaint was denied again with a short note that it was “unfounded.”
Another example of the way the Russian court system serves the executive power is the ease of obtaining authorization to conduct a search. The 4th Amendment to the U.S. Constitution stipulates the “probable cause” requirement to obtain a search warrant, meaning that there must be a fair probability that the search will result in finding evidence of a crime. Article 182 of the Russian Criminal Procedure Code echoes it, requiring “sufficient data to believe” that the place of search will have something connected with the crime in question. In practice, the Russian courts authorize law enforcement officers to search defendants’ or even witnesses’ offices or homes on the flimsiest of pretexts.
In recent years, the Russian court system has been deteriorating. The courts have moved from providing no justification of their opinions and baseless denials of parties’ reasoning to essentially forging facts and creating their own reality that defies logic and common sense. It is very convenient for the courts, as this new approach allows them to make the “right” decisions for no extra effort. The sentencing decision against Alexei Navalny and his brother, Oleg, in the Yves Rocher case is a good example. The court declared that Yves Rocher had suffered damages from the alleged fraud by the Navalnys, ignoring the company’s own evidence of the opposite.
This practice is by no means limited to high-profile political criminal cases, like the one involving Alexei Navalny. It is also widely used in the administrative process. In many cases against peaceful protesters, the courts found citizens guilty of actions clearly refuted by video recordings. In a stunning St. Petersburg case, a court fined protestor Yevgeny Agafonov for 5,000 rubles ($66) for yelling slogans during an unsanctioned protest, whereas the court knew that Mr. Agafonov was speech-impaired. Fortunately, the appellate court tossed away this ridiculous decision, but in Russia this is more accidental luck than the rule of law.
This parallel reality extends to ordinary civil cases. The most common way for a court to disregard unwanted evidence is to feign unawareness of it. The next step is to deny the very existence of any evidence. I saw it many times in my own legal practice in Russia. In one case, for example, I presented 1,200 pages of evidence, but the court explicitly indicated that none had been submitted.
The vicious cycle of the fake legal reality based on misapplying the law, ignoring evidence, and contradicting facts by the lower court judges, is further sustained by the higher courts, which evaluate and leave the original decisions unchanged. Russian courts’ deficient judgment is partially rooted in the lack of justification for court opinions and the parallel reality in which judgments are made, which affects the quality of legal proceedings and trust in courts. To this list I can add the legalization of lying in court, absence of deposition proceedings, highly selective enforcement of the law, courts’ unwillingness to consider doctrine and even Supreme Court precedents, and judges’ disgusting behavior.
Thus, the Russian court system is broken. As a result, the average Russian citizen does not see a court as an institution that can protect, and does not trust Russian courts and the government in general. This is a part of Russians’ learned helplessness: they cannot change anything at the ballot box or in court, which leaves only two courses of action: revolution or endless waiting for luck.
* Igor Slabykh is a lawyer and manager with eighteen years of experience in Russia and the U.S.; he holds a law degree from the Moscow State Open University and an LLM from the George Washington University Law School.
