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The Current Situation with the Judicial Reform in Russia
Sergey A. Pashin
The following is the text of a presentation read by Sergey A. Pashin at the Kennedy School during the event, "Judicial Reform and Human Rights in Russia," at which Lev Ponomarev, Executive Director of the All-Russian movement "For Human Rights," also spoke. Sergey Pashin is an Honored lawyer of the Russian Federation, Former Moscow City Court Judge, and Associate Professor at the Institute of Youth. The seminar, sponsored by the Strengthening Democratic Institutions Project, was held on June 1, 2001.
The history of the judicial reform (1991 -- 1995)
In 1990 a new corpus of People''s deputies was elected in Russia and came into power. Independence and sovereignty of the Russian Federation and the direction towards reforms were declared.
On October the 24-th, 1991 by the initiative of the President of the Russian Federation Boris Yeltsin, the Supreme Soviet of the Russian Federation -- the highest legislative body of the country at that time, approved the Conception of the Judicial Reform for the Russian Federation. Since that time the most important achievements of the judicial reform were the following.
In December 1991 the capital punishment for non-violent crimes was abolished.
In the sphere of civil law a lot of new acts were issued by the Parliament in order to protect the property and civil relationship between the citizens. Russian citizens were given the right to complain to the court against the decisions and illegal behavior of officials.
In 1991 the first Constitutional Court in the Russian history was founded.
In 1992 the courts of arbitration (business courts) were founded in order to deal with economic conflicts between judicial persons and between them and the state bodies.
In 1992 the Law on Judges'' Status was adopted. Since that time the judges in Russia, except the judges of the peace, are appointed for the life term. The real guarantees of independence of judges were declared.
In 1993 the international law and provisions of treaties with the participation of Russia and former Soviet Union were recognized as an essential part of national legislation. Two years later Russia ratified the European Convention on Human Rights and acknowledged the jurisdiction of the European Court located in Strasbourg.
In 1992 every person detained by militia or arrested by the investigator received the right to appeal to the judge. Approximately 2 mln of Russians are arrested per year; simultaneously 250,000 suspected and accused are waiting for the trial in jam-packed prisons. The judges examine 70,000 complaints on arrest per year, and 1/5 of defendants are released by the judges.
In 1993 the law, ordering the judge to exclude illegally obtained evidence, was adopted.
In 1997 the prisons, pre-trial jails and correction camps become the parts of the Ministry of Justice. In 1998 we have approximately 1,5 mln of people, deprived of the freedom. After the amnesty of May, 2000 only 970,000 prisoners remained in custody. It is worth noticing, that the quantity of prisoners become less than a million for the first time in the Soviet and post-Soviet history.
In 1993 the Supreme Soviet of the Russian Federation approved the Law on Jury Trial in spite of the furious resistance of Prosecutor General. All cases that the regional courts are authorized to consider fall within jurisdiction of the jury trials: murders, terrorism, corruption, bribes, abuse of power, treason, crimes against justice. The jury trial was implemented in 9 regions of the Russian Federation.
Since that time annually courts with the participation of the jurors considered approximately 400 cases concerning 850 defendants. It is necessary to note, that the jury trial acquit everyone 5-th defendant (in 2000 16% of the defendants were pleaded not guilty). In traditional court the share of defendants, founded innocent, comprises less than 0,5%.
The statistics about the Russian judiciary
Today the Russian judiciary consists of 3 branches: the Constitutional Court; courts of arbitration; courts of general jurisdiction. The last branch includes: the Supreme Court of the Russian Federation; 89 regional courts; approximately 2000 district courts; judges of the peace, who have been appointed already in 33 regions. There are 19 judges in the Constitutional Court; there are 2,500 judges in the courts of arbitration and 16,700 judges in the courts of general jurisdiction. 8% of judges'' benches are vacant. More than 1/3 of judges used to be investigators, public prosecutors, officers of militia. Another source for recruiting of new judges is the former secretaries (court clerks), who had prepared the records for five years and simultaneously studied at law schools in the evenings or had distance learning.
In 2000 judges considered approximately 900,000 criminal cases with 1,300,000 defendants, more than 5 mln civil cases, 2 mln other cases, 450,000 appeals. The burden of cases, lying on the judge, become heavier than in 1991, when the judicial reform started, on 500%.
The consequences of the breaking off the judicial reform
The results of judicial reform in Russia can impress one in comparison with the situation during the Soviet period. But, frankly speaking, we cannot be proud of the conditions of the Russian justice and judiciary.
We have no fair, quick, effective and mercy trial, accessible for the citizens. The reforms were stopped in 1996, not developed and then replaced by contra-reforms.
First of all, the law enforcement bodies and institutions, such as militia, investigation, public prosecutors were not seriously touched with reforms. Russians are not free of tortures in militia, because violence is a part of the technology to make the suspect to confess.
Then, because of the lack of financing and small salaries of judges (approximately $150 per month) judiciary is not really independent. In 2001 the budget application of judiciary was cut down on a half. And it was a progress, because in the previous years Russian courts had obtained only 1/3 of necessary resources.
Highest courts are provided by the President''s Administration. As a result, there are a lot of decisions of the Supreme Court of the Russian Federation, which are contrary to each other. The decisions of the Constitutional Court are very often written in democratic manner, but they can aggravate the real situation. After the decision of the Constitutional Court from the 2 of February 1999, the constitutional right of defendant to appear before the jury has been treated as the provision, which would not act directly.
Other courts have to solicit and take gifts and money from local governors. This is forbidden by the Constitution, but the courts have no choice, or else they will have to stop their activity because of debts and lack of electricity, paper, stamps, chairs. 700 court buildings are dangerous for people: they are too old, not being repaired for years and are ready to ruin to the ground. Moscow and Saint-Petersburg regional courts are the leaders in involving the illegal aid from local governors. So, Moscow mayor won in capital courts all libel cases.
Courts work very slowly. 1/5 of criminal and civil cases were considered in 2000 with unlawful delays. Sometimes arrested persons have to wait for trial during 2 or 3 years and die from starvation and diseases in jail.
The deviation of judges to the side of accusation was not changed. During the years of Stalin''s dictatorship 10% of defendants were found innocent. Now 99,6% of defendants are convicted. 42% of passed judgments of "not guilty" and only 0,05% of judgments of "guilty" were cancelled by the courts of appeal.
About 700,000 people per year (half of the whole amount of convicted persons) are convicted for small theft. 15 years old boy was sentenced in Kaluga to 3,5 years imprisonment for stealing of 2 hamsters from the pet shop. The mother of 3 children was sentenced to 4 years in prison for stealing of 12 cabbages.
There are a lot of informal mechanisms of considering the cases. In order to protect themselves from cancellation of their decisions, judges of the first instance (trial judges) have the conversations with the public prosecutor, chairmen of the court, the judges of the superior courts, who will examine their judgments, and adjust the judgment with them.
It is interesting to know, that the quantity of complaints on the professional misconduct of judges has increased from 4,000 in 1995 to 18,000 in 2000. There are 3 main grounds of complaints: first -- delays in proceedings; second - serious violation of law and human rights; third -- rudeness of judges, sitting on the bench. It''s typical, that the record of hearings will be falsified by the judge. 20 judges were dismissed in 1999 for this offence, but of course this is only a top of an iceberg.
The greatest problem of the judiciary is connected with chairmen of regional courts. They have concentrated in their hands enormous power. Many judges were dismissed as victims of their capricious chairmen. The acquittals in criminal cases can undermine the judge''s career, which is closely connected with the will of the chairman of the court.
The judges have their own non-governmental bodies to protect their rights, but those Councils of judges are bringing into life the position of the heads of judiciary. So, public organizations, not belonging to the judicial society, have to protect the human rights of judges. One of those NGO under the leadership of Mr. Ponomarev attempts to prepare the class actions against unlawful practice of dismissal of Russian judges.
Very often the Ministry of Internal Affairs intimidates judges and shows its contempt to court procedure and decisions. In 1998 in Saint Petersburg and Moscow the same events happened. When the judges announced their decisions to release the defendants, camouflaged strong guys with machine-guns in their hands burst into the court halls, ordered everybody to lie on the floor, captured the defendants and dragged them out.
A lot of grave offences are committed by the officers of the law enforcement bodies. Every Russian businessman knows the meaning of expression "the red roof". It means, that this businessman was threatened by the militia to suppress his business and promised to pay the chief of department a share from his incomes (usually 10%).
Unlawful technologies and illegal mentality
Before beginning to speak about the answer, prepared by the Russian President to overcome negative phenomena mentioned formerly, I''d like to sum up the main reasons of the slow development of real reforms and great resistance to them. Broadly speaking, they are the following: becoming fixed unlawful customs and technologies and illegal mentality.
First of all, in Russia real technologies of work are formed by laws only in the last turn. The traditions determine the activity of law enforcement bodies and courts more effectively than formal rules. The system of customs works in parallel to the laws and very often instead of them. The abuse of power by militia, tortures after detention, falsification of court records, pre-trial private conversations between judges and public prosecutors, avoiding the acquittals are the parts of real technology of Russian judiciary.
And the next point, dedicated to the judge''s mentality. It is banal remark to say, that the main goal of judicial reform is creation of independent judiciary. But independence is closely connected with personal responsibility. Are Russian judges eager to be independent and faithful to the society? One example from my practice. Once I met in the cafeteria of the court my college, who had retired to deliberation in the previous day. I was very astonished to see her outside the deliberative room. She gave me her explanations. It occurred, that the day before the public prosecutor refused to accuse defendant in the series of cruel murders. So, according to the decision of the Constitutional Court, the trial court must write very shot judgment and acquit the defendant. "It is impossible for me to sign such judgment, - said my college, drinking her tea, - I am the judge for 17 years, and never acquitted anybody. Somebody must be punished for such a dangerous crime. I have called to the Supreme Court, and they showed me the way out. I''ll find the reason for the re-beginning of trial and will ask Moscow prosecuting office to change this foolish prosecutor".
The psychology of Russian judge seams to be alike the psychology of a small clerk. If you want to make a career in judiciary, you must ask for the advice of superior judge and follow his opinion; it is dangerous to acquit the defendant in criminal case and to let the plaintiff win in litigation, where the local authorities are defendants.
It is worth noticing, that in Russia there are no proverbs in favor of the judges and no proverbs against the tsar. The mentality of the chiefs of the Supreme Court can be exposed with their specific proverbs and sayings: "The third court decision will never been canceled", "If you don''t like the unfair judgment, the fair will be worse", "If you don''t know how to decide the case, decide it according to the law".
The revival of the judicial reform
The Russian President proclaimed the judicial reform to be one of the national priorities. Some activities were undertaken by the State Duma and by the Supreme Court of the Russian Federation as well.
Everybody agrees, that our Civil Procedure and Criminal Procedure Codes are out of date. So, the draft of a new Civil Procedure Code was prepared. According to this bill the civil procedure will be simplified, and it will become more adversarial. The prosecutors will be almost excluded from civil cases, because they will lose their power to sue anybody in the interests of private persons, who themselves prefer to avoid litigation.
But the draft Criminal Procedure Code prepared under the leadership of deputy Mizulina from faction named "Apple" is characterized by prominent Russian lawyers and representatives of NGO as a document with the features of the inquisitorial Soviet proceedings. The provisions concerning the rules of evidence are the weakest point of the draft; for example, the defense attorney is limited in his right to interview the witnesses, he will not be able to find and collect evidence and to put the documents into the file without the permission of the opposite side -- the investigator or prosecutor. Deputy Mizulina, working with and in favor of Procuratura, Federal Security Service and Ministry of Internal Affairs, tries to restrict the competence of jury; to prevent judges, giving warrants, from interrogation the witnesses and examine the whole file. She tries to save all privileges of public prosecutors under the coverage of new terminology; thus, the prosecutor''s "protest" against the judgment will be named "complaint".
The Supreme Court of Russian Federation has already prepared the draft bill on Administrative Courts. The idea is to found 21 such courts, well supplied and equipped, with well paid specialized judges to deal with most important for federal authorities cases such as: concerning electoral laws, taxes, disputes between federal and local authorities; those courts will be endowed with power to liquidate the NGO. Mr. Kovalev, well known in Russia supporter of human rights, and many scholars consider this bill to be a way to open kangaroo courts, ready to obey to the President''s Administration.
The reform proposals of Kozak''s team
In the last part of my speech I''d like to say some words about the reform proposals, drafted by a working group formed last December within the Presidential Administration and headed by the administration''s deputy head Dmitry Kozak. Those proposals were introduced to the public in the conference, which took place in the Institute of State and Law, they were discussed with officials of courts, law enforcement agencies, some governors and factions in State Duma.
The reform proposals can be structured in the following way.
The first group of them touches upon the questions of financing and supplying of courts. The Kremlin plans to raise the notoriously low salaries of judges and carry out a major reconstruction of decrepit buildings housing the courts throughout the country. The cost of it is estimated at around 4 billion rubles ($138 million).
The second type of Kozak''s suggestions is directed at the guarantees of the predominance of the federal laws all over the country. The Constitutional court has the right to announce, that the law of the subject of Russian Federation violates the particular provision of the federal Constitution. Very often such judgments were ignored by the local legislative bodies and governors. According to the plan, the Federal Government, President''s Administration and governors must follow the decisions of the Constitutional court and prepare the necessary draft bills not later than in 4 months; the local Dumas are obliged to adopt such bills in the shortest possible time. The officials can be dismissed for procrastination by the presidential decree. The Justice Ministry would be given the authority to oversee the efforts to bring regional legislation in line with federal laws.
The third list of proposals concerns the proceedings. The goal is to enlarge the rights of the defense in criminal trials and almost exclude prosecutors from civil cases. Proposal calls for establishing jury trials throughout the country, and, at the same time, for restriction of its competence. After it the capital punishment, suspended by the decision of the Constitutional Court, can be revived. The judges will get the right to sign warrants.
And the largest amount of proposals relates to the status of judges. The powers of judges, appointed on the position of chairmen of the courts, will be confined to the term of 5 or 10 years. The changing of the makeup of the Qualification Collegiums, the bodies that selects and dismisses judges, is planned. Currently, it is composed only of judges, but Kozak''s team wants to open it up by introducing representatives of the professional legal community. The Collegiums will loose the right to prevent law enforcement bodies from accusing and prosecuting the judges.
The Plan faced the strong opposition from the Prosecutor General, but during the meeting with the President he didn''t dare to object to the President and kept silence; the Council of Judges is against the plan as well. In his annual State of the nation President Putin in general words emphasized the necessity of judicial reform and said that more efficiency was needed to enable the economy to run more smoothly. The evaluation of the reform drafts
Of course, the reform plan is focused on solving some of the disturbing problems of the judiciary and on correction of the bureaucratic perversions of reforms, declared in 1991. But the main contents of the reforms, as I think, follows the lead of the main Presidential goal: "to strengthen the administrative vertical line".
The judiciary will be more close to the federal Government and better influenced by the President''s Administration after fulfillment of the whole package of reform proposals. The influence will be exercised with the help of 3 levers: financing, appointing non-judiciary members of Qualification Collegiums, appointing the chairmen of courts on the next term or bringing them down on the unattractive level of ordinary judge, not having personal car, dacha and having to work hard to earn his living. The elected governors will find themselves under strict control of bureaucracy: the Ministry of Justice and President''s Administration.
From the position of real reforms these proposals look like palliative. But common people are sick and tired of arbitrariness of local authorities and judiciary, of permanent abuse of judges'' power and will be glad to buy protection of their elementary rights and patronage of the President at any cost. In this context they wouldn''t worry about the dangerous independence of non-respected judges.
Thank you for your attention and patience.