The judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’”

                                                                  Alexander Hamilton, “Federalist No. 78”.

Exactly ten years ago, I wrote an article for the Institute of Modern Russia dedicated to the 20th anniversary of the Concept of Judicial Reform, originally published on October 24, 1991. Even then, back in 2011, this “celebration” of the foundational act of the Russian judicial reform did not feel as such: all successes and achievements faded against the backdrop of a number of obvious failures and emerging signs of counter-reform. The past decade did not bring much improvement—on the contrary, everything became tangibly worse. 

2011 was a time before Crimea, before the adoption of amendments and additions to the federal laws “On non-commercial organizations” and “On public associations,” which later became infamous as the law “On foreign agents.” It was even before the concept of a “non-desirable organization” (defined as a foreign or international non-governmental organization that poses a threat to the constitutional foundations of the Russian Federation, its defense capabilities or state security) was entrenched in the Russian legislation, before Article 284.1 (which states that participation in the activities of a non-desirable organization is punishable by up to four years in prison; and six for managing the activities of such an organization on the territory of Russia) was included in the Criminal Code of the Russian Federation, when court practice on such cases did not even exist. It was before the adoption of a number of resolutions of the Constitutional Court of the Russian Federation, in which the highest instance of the country’s constitutional justice diligently explains that black is white, and that the infamous “Dadin article” of the Criminal Code (Art. 212.1, “repeated violation of the established order of organizing or holding gatherings, rallies, demonstrations, marches, or pickets”), which was harshly criticized by a number of prominent Russian lawyers as unconstitutional, does not contradict the Basic Law of the land in the eyes of the Constitutional Court (mind that this opinion is the Court’s universally binding legal stance on the issue, and we have to deal with that). It was before the Court stated that the “foreign agent” term carries absolutely no negative connotations, that it does not suggest a negative evaluation of such an organization on the state’s part, and does not promote a negative view of its political activities. Before Russia’s Supreme Arbitration Court was dissolved under the rather unconvincing premise of providing for a unity of approaches in the administration of justice with regard to citizens and legal entities, as well as uniformity of judicial practice. It was before the Russian courts issued a number of outrageously harsh and unfounded sentences, which violate the principle of proportionality of punishment to the committed offense. Before punishment in Russian law enforcement attained the character of pure intimidation, just like in the Middle Ages.

The three decades of Russian judicial reform differ from each other greatly. The first proved to be the most successful and, without a doubt, constructive. Even before the Supreme Soviet of the RSFSR certified the Concept of Judicial Reform, two of its crucial legislative acts came into effect: the law “On the Constitutional Court” (May 1991) and the law “On the Arbitration Court” (July 1991). The first half of the “wild 1990s,” which lately have become the state propaganda’s favorite tool of diligent intimidation, was the best stage of the Russian judicial reform, a period of huge achievements and victories. A number of legislative acts crucial for the transformation of the Russian judicial system were adopted, the courts became an independent branch of power, and the recently created institutions were successfully operating—first and foremost the arbitration courts, created specifically for handling economic disputes in the new economic circumstances. As noted by legal scholar and professor of the Higher School of Economics Mikhail Krasnov, “the state and departmental arbitrages, which were in place prior to this change, were purely administrative organs, which did not so much resolve economical disputes between enterprises, as enforce the state’s planning discipline.” Courts of general jurisdiction had no experience in handling economic disputes, and therefore independent arbitration courts were created on the basis of the state arbitrage system for the procurement of rights and interests of entrepreneurs. [1] 

The creation of the Constitutional Court was an unprecedented occurrence for Russia, since, for the first time, an organ was created that could provide a legal evaluation for acts issued by top-level officials, including the president. “Developed in accordance with European standards, the law on the Constitutional Court was the first piece of legislation that, even before the adoption of the 1992 law “On the status of judges in the Russian Federation,” provided for the irremovabilityand non-accountability of judges, and a ban on their political activity and working other part-time jobs. In this law, it was also stated for the first time that judges must be guided only by the Constitution. [2]

During the same period, the first decade of the Russian judicial reform, the institute of jury trials, which had existed before the Russian Revolution, was brought back to life; justices of the peace emerged, the system of private notaries was created, and the remuneration of judges consequentially began to improve.

The new millennium opened a new decade of judicial reform. The financing of judicial activity and judges’ salaries kept growing, but the dependence of the judicial power on the president and the state organs under his control kept growing as well. The Kremlin’s demand for independent courts was left behind in the “terrifying” 1990s. The new leadership was looking for judges who “understand,” who could smell political will in the air, and would be ready to collaborate. Criminal proceedings initiated against YUKOS top managers Mikhail Khodorkovsky and Vasily Aleksanyan, as well as MENATEP Group CEO Platon Lebedev vividly demonstrated which qualities of judges were held in the highest regard at this new turn of the reform.

The third decade of judicial reform in Russia became the most destructive—so much so that one has to wonder whether this term can be applied to the transformations of the last decade anymore. 2014 marked the end of Russia’s Supreme Arbitration Court, the only Russian court that had managed to fully shake off the Soviet mentality and possessed unique academic potential. The result of this was a gradual degradation of the entire arbitration court system, including “permanent malicious activity in the procedural sphere, and the dragging of some insane, moldy decisions from the Civil Procedural Code into our modern Arbitration Procedural Code.” [3]

With the start of the new era marked by witch-hunts against oppositionists, “foreign agents,” and employees of “undesirable organizations,” the worst qualities of the Soviet revolutionary law enforcement were reborn: unlimited judicial discretion in regard to what counts as evidence and what doesn’t, the personification of punishment (when the penalty depends not on the nature of the offense, but on the character of the offender), the issuing of unfoundedly harsh sentences. The priority of protecting the state’s interests did not just reemerge—it solidified in the minds of many judges even more powerfully than before. As if yet another evil troll had broken yet another magic mirror, and the shattered pieces of the glass had flown across Russia and into the eyes of many judges, who now saw attempts to interfere in the state’s business where there were none.

One such piece flew all the way to Krasnodar, where, in January 2021, a judge of the Leninsky city court, Roman Zhmetkin, equated rendering legal assistance to participants of an unsanctioned public event to organizing such an event. Several of the metaphorical pieces ended up in the Moscow Tverskoy court, where judges Ekaterina Korotova and Maria Moskalenko issued decisions equating challenging, in court, the activities of state organs and their officials directly subordinated to the president to direct or indirect interference in the activities of the president, and additionally ruled that attempts to issue legal complaints against such organs or sue them in court are impermissible and repugnant to Russia’s constitutional foundations, as well as to the principle of separation of powers.

The amendments to the Russian Constitution adopted in 2020 represented the pinnacle of constitutional counter-reform, and judicial counter-reform in particular. The president’s right to initiate the termination on of the powers of chief justices, their deputies and judges of the country’s highest instance, cassation and appellate courts upon “the committing of an act detrimental to the honor and dignity of a judge, as well as in other cases provisioned by the federal constitutional law as testifying to the impossibility of the judge fulfilling their powers,” [4] as established by the new amendments, violates the key principles of the status of judges, and liquidates the principle of judicial irremovability and the pitiful remains of judicial independence, since the basis of a judge’s status is their independence from the other branches of power. 

The president already has the final word when it comes to judicial appointments. If the head of state attains the power to initiate the termination of judicial office, judges will end up fully dependent on his will. Practice shows that “act[s] detrimental to the honor and dignity of a judge” can include refusal to comply with improper orders of the court chairperson, critique of judicial power, refusal to mindlessly comply with the internal rules of the closed-off judicial corporation, and any other attempts on the part of the judge to be a truly independent arbiter, rather than a state official duly following orders from above. The vagueness of the “act detrimental to the honor and dignity” phrasing will allow the president to remove judges from office without the proper rationale to do so. This amendment will become the most powerful tool of influence on the entire judicial branch, and on the judges of the Constitutional Court in particular. 

It is quite disheartening to ponder what the creators of the Concept of the Judicial Reform, brilliant Russian scholars and legal practitioners, must feel when they see what the judicial reform has morphed into during the last decade. All its accomplishments have either been destroyed, made insipid, or changed beyond the point of recognition. As Professor Tamara Morshchakova, former Deputy Chief Justice of the Russian Constitutional Court, argued back in 2007: “In the modern world, the universal goal of judicial power is to ensure protection of human rights and freedoms and, in the first place, to secure them from unlawful activities and decisions by the authorities. If such activities and decisions cannot be challenged in an independent court, it will pave the way to arbitrariness.” 

The Russian judicial power never quite reached this universal goal, since the Russian state does not believe it should limit itself in regard to anything. In conclusion, I would like to cite what another great woman, Justice Sandra Day O’Connor(served 1981-2006), once pointed out: “Judicial independence doesn’t happen all by itself. It’s tremendously hard to create, and easier than most people imagine to destroy.”

Text translation: Elizaveta Agarkova. 

Sources:

[1] Gorbuz A.K., Krasnov M.A., Mishina E.A., Satarov G.A. The transformation of the Russian judicial power. Experience of a complex analysis. St. Petersburg: Norma, 210. P. 46.

[2] Ibid, p. 47.

[3] Bevzenko R. “On the ‘new’ chief justice of the Supreme Court// Zakon.ru. September 30th, 2019. URL: https://zakon.ru/blog/2019/9/30/o_novom_predsedatele_verhovnogo_suda

[4] New item “e-3,” Article 83 of the Constitution of the Russian Federation.