A couple of decades ago, one would have written something along the lines of, “On October 24, 2011 all progressive people will celebrate the 20th anniversary of the establishment of judicial reform in Russia, a fundamental document symbolizing the start of considerable modifications in the judiciary, especially targeting the transformation of Soviet courts into an independent branch of power.” Yes, the Soviet courts precisely, as the reform was initiated during Soviet rule, when the courts were Soviet both de facto and de jure.
The main tasks of the new reforms included:
• modernization of the existing Soviet judicial system and transformation of the Soviet courts into an influential branch of power, one independent from the legislature and the executive branch;
• adjustment of courts and judges to the new social and economic reality;
• protection and observance of the human and constitutional rights of individuals in all proceedings;
• incorporation of democratic principles of organization and operation of law enforcement agencies into Russian legislation;
• securement of the proper level of material support for courts, judicial authorities, prosecutors, police, and investigative agencies ;
• proper material support and social services for the employees of courts and law enforcement agencies;
• securement of the reliability and increased availability of information on the operation of courts and law enforcement agencies.
The aforementioned tasks were to be completed while taking into account the strong influence of the Soviet past. Russian lawyers have only very recently begun to recognize the tremendous importance of path dependence (the dependence of institutions on their previous decisions), a phenomenon that was first studied by physicists and mathematicians and then by economists. Path dependence is now a common term in both economics and law. Path dependence can mean just that: where we are today is a result of what has happened in the past, i.e. “history matters.”
Factors from the Soviet past that still affect Russian courts today due to path dependence can be divided into three groups:
External Factors:
• Under Soviet rule, courts didn't constitute an independent branch of power. This isn’t surprising, since the principle of the separation of powers was not compatible with the totalitarian regime that existed in the USSR. Soviet state power was based on the principle of “democratic centralism” that implied total control.
• Strong dependence upon the Communist Party. For judges-to-be, membership in the Communist Party of the Soviet Union (CPSU) was a condition sine qua non. Directives of the CPSU bodies were mandatory for judges and had to be executed immediately and to the fullest extent.
• Dependence upon administrative agencies, primarily related to financial and social issues. In the USSR, judges were one of the most poorly paid in the legal profession, so material support, social services, and social benefits for judges had great importance.
• In certain periods under Soviet rule (especially under Joseph Stalin), the courts were nothing but an element of an enormous repressive machine used for the destruction of life and destiny for millions of people.
• The courts, both de jure and de facto, were a part of a unified law enforcement system, which ensured that judges depended upon the CPSU bodies, administrative agencies, the USSR Ministry of Justice (to which the courts were subordinated), and the prosecutors.
Internal Factors:
• Dependence upon chairpersons of the courts, who played and still play the main role in exercising influence on judges, since court chairpersons enjoy a remarkably wide scope of powers.
• The existing system of the administration of courts and the judicial community (i.e. Judicial Councils, Qualification Commissions and Self-Governing Bodies) is used to exercise influence on the content of judgments and the procedures for decision making;
• Dependence upon higher courts, especially the highest supreme courts.
Subjective Reasons:
1. Many Russian judges still do not feel like independent arbitrators of justice. On the contrary, they identify as government officials who must protect the interests of the state in any situation, even when the position of the state is shaky or when the state doesn't need such protection.
2. Specific features of the Russian judicial mentality:
• Accusatory or prosecutorial bias, left over from Soviet times when a “not guilty” verdict was an extraordinary situation, one in which the judge in question had to come up with two explanatory notes,one for the chairperson of the court and the other to the local body of the CPSU.
• Impact of previous career. Many Russian judges are former law enforcement officers (prosecutors, investigators, policemen, etc.). It's very hard to find a former attorney-at-law in the judicial community, and such judges are unique. The point is that former prosecutors, investigators and policemen who became judges need special professional and psychological retraining in order to minimize the impact of their previous careers and to adjust them to the functions of the administration of justice. This is an important issue not only for Russia, as is evident from European Court of Human Rights rulings. These rulings emphasize the necessity of special retraining for former policemen and prosecutors in order to prevent them from cloning their previous modus operandi in the course of the administration of justice.
• Professional deformation of judges. After joining the judicial community, new judges must promptly start following rules that require unconditional subordination to court chairpersons, directives of the higher courts, officials of the administrative agencies, and other external actors. Since they feel like government officials, judges are often guided by regulations from government agencies instead of by actual legislation when rendering a judgment, not to say anything of the notorious concept of “telephone justice (the Soviet practice requiring judges to ring up their Communist Party bosses to determine how to decide a case). The judges who possess real decisional independence and feel like representatives of an independent judiciary are rare, and their careers involve considerable risks.
Several years ago, professor Mikhail A. Krasnov, one of the most prominent contemporary Russian lawyers, produced tremendous research, which he called an “audit of Russian judicial reform”. In this work he stated that in the very beginning, Russian judicial reform walked the walk, and was generally done in accordance with the provisions of the basic founding document, the 1991 Concept of Judicial Reform. Plus, in 1993 new impetus came from the passing of the Russian Constitution, which outlined the separation of powers and an independent judiciary. Despite this bright start, it is impossible to say that the establishment of an independent judiciary was high on the political agenda, and quite soon the movement for reform became sluggish. In the mid-1990s, the relative unimportance of judicial reform became even more obvious. A new burst of attention to the judiciary came in the beginning of the 2000s. But, as Krasnov put it, judicial reform would have been better off without this attention, since coupled with the increased financial support for the courts and the improvement of their material circumstances, the attention effectively established a strict dependence of the judiciary upon the political powers that be.
Assessing the results of Russian judicial reform, we must underline a number of considerable achievements:
• outlining the principle of the separation of powers in the Russian Constitution, whereby the courts obtained the status of an independent branch of state power;
• adoption of a considerable number of new laws and procedural codes regulating the status of courts, judges, and the implementation of different types of judicial proceedings;
• establishing constitutional justice through the federal Constitutional Court and the constitutional (charter) courts of the subjects of the Russian federation;
• establishment of justices of the peace;
• revival of jury trials that existed in Russia before 1917;
• an increase in the salaries of judges, to the point where Russian judges are actually well-paid;
• considerable progress in the enforcement of verdicts.
The main failures of Russian judicial reform include:
• The Russian judiciary has not become independent de facto; it still depends strongly upon the executive branch;
• Many recent examples of improper law enforcement leading to the perversion of the initial intent of lawmakers. The inadequate application of Russian legislation has brought unexpected and negative results;
• The Constitutional Court of Russia initially operated as an independent body, but today, the Constitutional Court is under strong political pressure;
• The operation of jury trials in Russia faces numerous problems. People don’t wan't to be jurors, jurors experience strong external pressure and feel unsafe. The competence of jury trials gets more and more narrow;
• Despite 20 years of judicial reform, many judges still possess accusatory bias and lack decisional independence;
• There is still no proper system of training for incoming judges sufficient enough to meet the standards and requirements of a democracy and market economy .
Moreover, certain experts (including former insiders of the judicial community) think that there are obvious signs of judicial counter-reform in Russia. Here are the prime examples :
• Further politicization of the judiciary. There are more and more examples that Russian courts are being made into political tools;
• further limitation of the competence of jury trials;
• lifetime appointment of judges was changed to appointment until 70 years of age;
• a further increase in the power and role of court chairpersons.
In conclusion, it should be noted that one of the most obvious results of Russian judicial reform has been the transformation of the Russian judicial community into a close corporation with high levels of resistance. Not only that, but this corporation keeps on growing and opposes change. The judges who risk openly discussing the flaws of the existing judicial system or who dare to resist external pressure either are stripped of their titles or experience numerous other problems. Olga Koudeshkina, a judge of the Moscow City Court, stood up to the pressure exercised by the court chair Olga Yegorova and refused to obey Yegorova’s illegal demands. Koudeshkina filed an appeal to the Supreme Qualification Collegia of Judges and in return, the Moscow City Qualification Collegia of Judges terminated Koudeshkina’s position on the following basis: “Judge Koudeshkina knowingly circulated false and offensive information about judges and the judicial system of the Russian Federation, thereby diminishing the authority and undermining the prestige of the Russian judiciary.”
In 2004, after exhausting all legal measures, ex-judge Koudeshkina filed an appeal to the European Court for Human Rights, which on February 26, 2009, ruled in favor of Koudeshkina and ordered the Russian Federation to pay 10 thousand Euros to her. The European Court recognized that in Koudeshkina's case, article 10 of the Convention for Human Rights that guarantees freedom of expression was violated. The ousting of Vladimir Yaroslavtzev and Anatoly Cononov (both were Justices of the Russian Federation’s Constitutional Court) is also instructive.
On January 1, 2010, Cononov was forced to resign, and shortly before that, Yaroslavtzev was expelled from the Council of Judges of the Russian Federation. The formal cause of Yaroslavtzev's removal was an interview in the Spanish newspaper El Pais in the fall of 2009 in which he offered sharp criticism of the Russian political system. In Cononov's case, the reason was an interview in the Russian newspaper Sobesednik, where he expressed support for Yaroslavtzev. Both resignations became a hot topic in the Russian political agenda, and on December 11, 2009, Valery Zorkin, the Chairman of the Constitutional Court of the Russian Federation, commented on the situation in a sharp article entitled “Brushup” published in the official Rossiyskaya gazeta. Usually very cautious, Zorkin explained the situation as an information war against the Constitutional Court, where Justices Yaroslavtzev and Cononov played the key roles. Zorkin insisted that the strategic goal of the two disobedient Justices was the dissolution of Russia and that Cononov and Yaroslavtzev were liars who deliberately misrepresented reality. It was perfectly clear that the removal of Cononov and Yaroslavtzev came as the result of their criticism and numerous dissenting opinions.
The stories of Olga Koudeshkina, Vladimir Yaroslavtzev, Anatoly Cononov and other judges demonstrate that there are sacerdotes of Russian Themis who are willing to risk becoming the black sheep of the Russian judicial community. The point is that today in Russia judicial independence is in low demand. And it's demand that breeds supply.
