Reports & Papers
from
Lawrence Livermore National Laboratory
"Judicial Reform and Human Rights in Russia"
Lev Ponomarev, Doctor of Physics, Executive Director of the All-Russian movement "For Human Rights," Editor-in-Chief of the newspaper For Human Rights and
Sergei Pashin, Honored Lawyer of the Russian Federation, Former Moscow City Court Judge, and Associate Professor at the Institute of Youth
Strengthening Democratic Institutions Project, Harvard University
June 1, 2001
At the June 1, 2001 Strengthening Democratic Institutions Project seminar on "Judicial Reform and Human Rights in Russia," Sergei Pashin discussed Russia''s judicial system, past and current debates on judicial reform, and his thoughts on the likelihood of the Putin government implementing any significant judicial reform. Pashin began by talking about the history and results of the 1991-1995 judicial reform in Russia. As the main achievements of this period Pashin identified the following:
1. Ratification of the European Convention on Human Rights and acknowledgement of the jurisdiction of the European Court located in Strasbourg
2. Adoption of a number of bills expanding and strengthening citizens'' civil and criminal procedure rights
3. Adoption of the law on jury trials
4. Abolition of capital punishment for non-violent crimes
5. Adoption of a law on judges'' status in which real guarantees of independence of judges were declared
6. Establishment of the first Constitutional Court in Russian history
7. Establishment of a system of arbitration courts
Pashin then continued by saying that the results of the judicial reforms of the early 1990s, although impressive in comparison with the conditions that existed during the Soviet times, are by no means complete and that the overall situation in the judiciary remains bad. Most importantly, there is still no fair and efficient trial system in Russia.
Among the main reasons for the current state of affairs, Pashin mentioned suspension of the judicial reforms in 1996 and their replacement by counter-reforms. As a result, the law enforcement institutions were not affected by the reforms, and militiamen, investigators, and prosecutors continued committing large-scale human rights abuses. The police use of violence to coerce confessions out of suspects is an example of abuse of power that occurs on a regular basis.
Another problem that was not addressed by the reforms is the lack of financing of the judiciary and inadequate salaries for judges, which consequently makes the Russian judiciary susceptible to corruption. Furthermore, as the number of cases that judges must review increased five times since 1991 while the number of judges did not significantly increase, the pace of work of Russian courts became extremely slow. According to statistical data, just in the year 2000, as many as 20 percent of the criminal and civil cases were considered by the courts after their pretrial terms had already expired. Sometimes suspects spend two-three years in custody awaiting trial, in some cases suffering from diseases and even dying of starvation while incarcerated. Concluding the discussion of the main reasons for the slow development of judicial reform, Pashin said that although political and financial constraints form significant obstacles to renovating the judicial system, they cannot be identified as the major barriers to the reform. In Pashin''s view, customary rules of behavior and an unlawful mentality ingrained in Russian society represent the major and perhaps insurmountable challenge to reforming the Russian judiciary, at least in the foreseeable future. Traditions have more influence over law enforcement bodies and courts than do laws or formal ethics. Various forms of abuse by the police, such as torturing suspects and falsifying court records, are typical examples of this kind of traditional behavior. Also, in order to protect themselves from having their decisions cancelled, judges of the first instance (trial judges) engage in private consultations with public prosecutors, chairmen of courts, and judges of superior courts, and then adjust their judgement to the viewpoint of their more influential colleagues. Pashin made an observation that a Russian judge''s position is very similar to that of a junior clerk: if you want to make a career in judiciary, you must ask a higher judge for advice and follow his instructions; it is dangerous to acquit the defendant in a criminal case and let the plaintiff win in litigation where the local authorities are defendants. In the last part of his presentation Pashin spoke about the judicial reform proposals drafted by the presidential administration''s working group headed by Putin aide Dmitri Kozak. The new judicial reform consists of four sets of bills, each set aimed at improving the situation in a certain area of the Russian judicial system. The first group of proposals is aimed at financing the judicial system. The Kremlin plans to raise the notoriously low salaries of judges and carry out reconstruction of court buildings. The second set of reform bills is aimed at bringing regional legislation in line with federal laws. The third packet of laws transfers the right to issue arrest and search warrants from the prosecutor''s office to the courts, introduces a jury system to all regions of Russia (today only a handful of regions conduct jury trials), expands the list of criminal cases to be considered by juries and strengthens procedural rights of suspects. The last group of proposals relates to the status of judges. Pashin criticized this set of bills saying that these laws limit the powers that judges currently have and expand opportunity for the law enforcement agencies to accuse and prosecute judges. Assessing the meaning and the likely results of the new reform initiatives, Sergei Pashin said that they focus on solving some of the most urgent problems of the judiciary and are aimed at correcting mistakes made during the period of reform from 1991-1995. However, Pashin is convinced that despite the liberal character of the reform plan, the covert and apparently main goal of the Putin government is to implement it in a way that would further strengthen the administrative vertical line by subjecting judiciary to the strong influence of the presidential administration and other executive bodies of power. So, according to Pashin, both because of the ill intentions of the authorities and the weak legal mentality of society, the Russian judiciary will not become independent any real sense.Lev Ponomarev provided commentary on current judicial reform efforts and their impact on human rights policy in Russia from his perspective as a leading human rights activist. Ponamarev pointed out that all judges were educated during Soviet times and therefore do not fully understand what is currently taking place in Russia. He asserted that human rights organizations try to compensate for the shortcomings of the judicial system. Ponamarev explained that human rights organizations frequently receive complaints against law enforcement organs and assist in filing complaints at the appropriate level.
Question and Answer
During the question and answer session, the panelists discussed the level of legal culture among Russians. Pashin claimed that committing offenses is a typical behavior of Russian people, but identified two specific tendencies that relate to this aspect of Russian culture: 1) in arbitration courts, the judges try to return property from private enterprises to the state and 2) that public prosecutors have to prosecute people in such a manner that property is not taken away, but that someone is punished.
In response to a question about the predominance of international law and revisions in Russian law to comply with the Council of Europe''s standards, particularly in regards to the abolition of the death penalty, Pashin explained that several Russian judges have opposed the Constitutional Court''s decision to suspend capital punishment. According to the constitution, the judge must obey only the law and the Russian Criminal Code provides for capital punishment. Pashin noted that 70 percent of Russians are in favor of capital punishment and suspects that more than 90 percent of judges support it.
Pashin described the process for jury selection in Russia, commenting that it resembles the selection of jurors in the United State federal courts. Local governors are responsible for drawing up a list of voters, from which a random selection is made. The clerks send jurors into the courtroom at which time the judge may ask them questions. Both the counsel for the defense and the prosecutor have the right for peremptory challenge of two jurors. The resulting jury consists of twelve jurors and two alternates.