20 years under Putin: a timeline

Prof. Ekaterina Mishina continues her analysis of difficult relationship between the Russian courts and the country's media.

A new relations era between Russian courts and the media started with each of these institutions becoming independent, at least de jure.

The media increasingly enjoyed its taste of freedom, and soon it became obvious that the media had obtained independence both de jure and de facto. As for the Russian judiciary, an event in the fall of 1993 serves as evidence of the former’s brief existence.

 

 

On September 21, 1993, during a time of severe conflict between the Russian Parliament and President Yeltsin, the latter issued the famous Presidential Decree 1400 “On Gradual Constitutional Reform in the Russian Federation.” The same night, the Constitutional Court – independently and in accordance with legislation in place – proclaimed the Decree unconstitutional. While the politics of this event can be interpreted differently, it’s clear that the Constitutional Court acted appropriately: independently and within the confines of its jurisdiction. But the move backfired: the Constitutional Court’s activity was immediately suspended and its jurisdiction was modified. Still, there remains no doubt that on the night of September 21, 1993 the Constitutional Court acted as a truly independent institution.

The Constitutional Court also turned out to be a leader in terms of improving court-media relations. Anna Malysheva, the press secretary of the Court, was very efficient in creating a pool of journalists and newspapers, including the notorious “Moskovsky Komsomolets,” that very quickly started to publish positive articles about the activity of the Court. Given that the overwhelming majority of journalists saw the Constitutional Court as boring and hardly newsworthy, Malysheva’s achievements in convincing the Justices of the Constitutional Court to become more open to journalists were outstanding. Remarkably, Justice Vladimir Toumanov, elected Chairman of the Constitutional Court in February 1995, became a leader in this area and even enjoyed being in contact with journalists.

Establishing the Guild of Court Reporters can be considered another serious achievement towards the improvement of court-media relations. The Guild was founded in May 1997 by a group of famous Russian journalists (some of them also held law degrees) who developed and then signed the charter “On the Principles of Honest Work in the Genres of Legal Essay, Reportage, and Journalistic Investigation.”  In this charter, the founders indicated that their main concern was the prestige of their profession, and they protested against “yellow journalism” and the biased coverage of both pre-trial and courtroom events. The founders promised highly professional publications targeting the basic principles of the administration of justice and analyzing the social and other causes of crime. Insisting upon maintaining high standards for their profession, the Guild also proclaimed the following fundamental principles for all court reporters:

•    All persons mentioned are recognized as acting in good faith. All accusations shall be reasonable and based on sufficient grounds.
•    The presumption of innocence doesn't forbid journalistic investigation, but journalists may bring up accusations only if they have sufficient grounds to do so.
•    Journalists can use media leaks, obtained through personal contacts in investigative agencies, or from the defense.
•    Journalists are allowed to criticize governmental officials and top management in the private sector, but such criticism shall refrain from using rude and humiliating terminology.
•    Any person who has become an object of journalistic criticism may defend his or her own point of view before the article has been published or before a TV program has been aired.
•    Members of the Guild shall never avoid reasonable disputes with the objects of our criticism, moreover, they are welcome to change our point of view and to come up with apologies in the event of a mistake on their part.
•    While covering a criminal case, journalists are allowed to expose mistakes or omissions of investigative agencies, but only in reference to legislative acts.
•    Journalists may come up with well-reasoned criticisms of the vices of our judiciary and the mistakes or behaviors of judges, but all this has nothing to do with justice in general. Journalists fully recognize that only courts are in charge of the administration of justice.

In retrospect, it is clear that members of the Guild acted according to their principles, thereby contributing greatly to the improvement of court-media relations, but unfortunately that was the last big achievement. The “independence storm” demonstrated by the Constitutional Court in September of 1993 was soon over, and in the mid-2000s, the Court adopted the necessary levels of servility and political reliability. It is remarkable, then, that today – just as he was in 1993 and in the mid-2000s – the Constitutional Court is still headed by Valery Zor’kyn. His magical transformation from a symbol of judicial independence into a symbol of political reliability took less than 15 years.

While avoiding contact with the press, judges usually refer to the strict prohibitions contained in current legislation. The basic principles of court-media relations are outlined by laws and regulations “On the Access to Information on Court Activity in the Russian Federation” and the latest 2006 version of “On Mass Media.” These acts have established the media’s rights and limitations as well as the rights and responsibilities of the courts in providing information. The Code of Judicial Ethics (12/2004) is another important source, especially article 6 on “The Rules of Judicial Behavior in Relation to the Media,” stating that the judges cannot make public statements, comment on judgments and pending cases, question the rulings made by other courts and criticize the professional activities of other judges. Judges cannot impede the media in covering the activity of the courts and must render necessary assistance to the media, unless such activity impedes the trial or is used to exert pressure on the court in question. When judges want to refrain from contact with the media, they refer to these provisions and interpret them broadly and arbitrarily.

The norms of judicial ethics are good shields for judges – both those in Russia and those abroad – who want to conceal their strong desire to avoid contact with the press. Canadian legal scholar Peter Solomon emphasizes that many judges worldwide remain reluctant to meet with journalists because some of them fear that they will violate ethical rules forbidding them from discussing current and future cases, while others simply use or misuse those rules in part because of a low regard for journalists.1

But how restrictive are the rules? While the U.S. federal government and each U.S. state has its own particular regulations, most of them are based on or consistent with Canon 3 (B)(9) of the American Bar Association’s Model Code of Judicial Conduct (which was used as an example for the Russian Code of Judicial Ethics). The Canon states:

“A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any non public comment that might substantially interfere with a fair trial or hearing.2 The judges shall require similar abstention on the part of court personnel subject tot the judge’s direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.”

Many judges focus on the first part of the rule, and interpret it to mean that they cannot talk to a reporter when a case is pending. But that is not what the rule says. It does not say that a judge cannot talk at all, only that she must avoid statements that might affect the fairness of the trial. Moreover, the rule states explicitly that judges may make public statements in fulfillment of their duties and explain the procedures of the court to interested persons. Clearly, a judge may not speak publicly about a case in progress or tell a journalist in private what he thinks about it. The judge may, however, answer generic procedural questions that help journalists and the public understand what is going on. And if judges do this (whether in press conferences or interviews), they help journalists report accurately on what is happening in a trial. By doing this, judges would be killing two birds with one stone, since rendering assistance to the media in covering court activity also improves public awareness of courts and increases people's trust of the judiciary. Journalists play the key role here as the mediators of information between the courts and the general public.

Public attitude towards courts depends on the information available. According to data obtained by the Russian Center for Study of Public Opinion (VZIOM), 53% of Russians respondents relied on information obtained from the media and 33% on information obtained from friends and relatives. Polls conducted by the Levada Center in 2010 showed that 85% of Russians knew nothing about the judicial system and its operation, 2% saw their knowledge in this area as very good, and 12% saw their knowledge of this subject as average. 70% of the respondents thought that information about the judiciary was not available or was limited, while 3% thought that such information was completely available and 20% thought it was sufficiently available.

The main sources of information about Russian courts are TV news programs (49.1% of INDEM respondents and 63% of Levada Center respondents) and TV shows about courts (59.6% according to INDEM and 57% according to the Levada Center). The percentage of those who obtain information from print media is 37.8% according to INDEM and 32% according to the Levada Center. The 2010 INDEM data shows very low interest in court information (2% of ordinary people and 10% of businessmen). General trust in the courts has been demonstrated by 53% of respondents (Levada Center) or by 45.6% of respondents (INDEM). 7% of the Levada Center respondents and 5% of INDEM respondents saw the the Russian judiciary as fully independent. At the same time, during the last decade Russians increasingly sought legal remedy, but did so because it was compulsory. Levada Center data indicated that 14% of respondents distrusted all kinds of Russian authority.

25% of respondents said that their reason for distrusting courts was their personal experience or the experiences of friends, relatives, or others obtained from the media. Even if respondents had no particular interest in court information, the huge amount of news on high-profile cases affected people's attitude towards the judiciary.

The key role of the media in providing court information to the public and the increased demand for such information requires a sufficient number of capable journalists willing to provide professional coverage of judicial activities. But this is a tough job in the absence of highly qualified and cooperative court press secretaries who provide the necessary information to the media. This is a hot issue, and one that requires further examination. From 2010-2011, as part of the World Bank’s project on “Surveying and Evaluating Efficiency of Interaction between Courts and Mass Media ” a comprehensive analysis of court-media relations took place in Russia, the U.S. and several other countries. The results from polls conducted in a number of Russian regions showed that most regional media outlets had journalists specializing in court activities. In media outlets without such specialists, court activities were covered by journalists specializing in politics and social issues. Only in 13% of the regional print media outlets were courts treated as newsmakers in themselves.

In order to find out what journalists think about the level of transparency of the Russian judiciary, respondents were asked to evaluate the level of transparency of various other state authorities, using a scale where 100% meant complete transparency. The data obtained showed that from the viewpoint of journalists, the commercial courts are the most transparent, general courts and local authorities have the same level of transparency, and law enforcement bodies have the lowest amount of transparency.

Half of the respondents failed to answer the question about the decision-making  decisional  independence of Russian judges. 37% thought that judges are independent, while 12% thought that judges experienced certain pressures. 75% of those who said that judges were not independent indicated court leadership as the main source of pressure.

Whatever court-media relations may be, journalists always prefer negative coverage of the judiciary to positive coverage. 70% of journalists thought their readers were most interested in negative information about courts and other state authorities, and both journalists and the general public were interested in criminal cases. It is a real challenge to get readers hooked with positive descriptions of court activities instead of with the bloody details of criminal cases, but it is still possible. For proper coverage, journalists need timely information. But first, both judges and journalists must make efforts to overcome their mutual dislike and prejudices and develop efficient cooperation. Court press secretaries will play an important role as mediators between judges and journalists.

Today, court-media relations in Russia are characterized by:

•    a traditionally low public opinion of the judiciary;
•    limited access to information for media and the general public;
•    mutual suspicion and bias (with the main accusations being insufficient qualifications and corruption, even though judges are often simply afraid of journalists and thus try to block their access to information);
•    while impeding media coverage of courtroom events, judges refer to legislative prohibitions and interpret these prohibitions broadly and arbitrarily;
•    a negative bias in the coverage of court events;
•    an insufficient number of good press secretaries who know how to deal with journalists.

To summarize, I must reiterate that mutual bias and distrust are still the key problems in court-media relations. An efficient solutionwill only be found in the case of a joint effort by courts and the media and, most importantly, in the presence of political will. The way courts treat the media mirrors the state’s attitude towards independent media and freedom of press, where media outlets are subject to numerous limitations and political suppression for unbiased coverage of governmental agencies' activities. And wasn’t it Gogol who strongly recommended not blaming the mirror?

 


1 Hengstler (2007).
2 Model Code of Judicial Conduct, 2000. – ABA Book Publishing, American Bar Association. Chicago, Illinois.

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