Reports & Papers
from
Lawrence Livermore National Laboratory
Judicial Reform and Human Rights in Russia
Sergei Pashin and Lev Ponomarev
June 1, 2001
Transcribers note: The following is a partial transcript of the event, focusing mainly on the prepared text and comments by Sergei Pashin. Some of the question and answer period is also included. It is not an official transcript as portions of the event are missing and the document has been edited for clarity.
MELISSA CARR: Welcome everyone. We are very fortunate to have a number of guests with us today to lead us in a discussion about judicial reform in Russia, the general situation of human rights, and the interaction between the human rights community and judicial reform in Russia. As many of you know, an independent judiciary and the rule of law are often cited as key institutions in a developing democracy. People often draw attention to the current situation of the judicial situation in Russia and point to judicial reform as an important step along Russia''s road toward democracy.
President Putin has identified judicial reform as one of his administration''s priorities. Many have welcomed these statements as a sign of Russia''s transition toward the rule of law. In recent weeks, Kremlin aides have been preparing an ambitious legislative package to revise Russia''s Soviet-era criminal system and civil and commercial legal codes, and to set procedures to investigate wrongdoing by lawyers and judges. People in the human rights and judicial communities in Russia have different opinions about it, and that will be part of our discussion today. We look forward to hearing from experts from the region.
I will introduce all of our speakers, then each speaker will share some thoughts, and then we will open the floor for questions and answers.
Our first speaker will be Sergei Pashin, who is an honored lawyer of the Russian Federation. He is a former Moscow City court judge, and an associate professor at the Institute of Youth. Currently he is on sabbatical and has been at the McCormick Institute at UMass Boston. He will be there until the middle of June. We are fortunate to have him with us today.
Sergei is one of the main authors of the Conception of Legal Reform that was adopted by the Russian Parliament in 1991. He is also the author of the first law on the Constitutional Court in Russia. From 1992-1995, he was an official of the Yeltsin Administration. As such, he was responsible for the elaboration of legislation and for the implementation of a system of jury trials and of habeas corpus procedure, and other new legal institutes in Russia. As you can see, he has practical experience in judicial reform and will have many valuable insights into things that have happened in the past, what is going on now, and thoughts about what will be happening in the future.
Our second speaker is Lev Ponomarev, whose background education is actually in physics. He was born in Tomsk and graduated from the Moscow Institute of Physics and Technology. He has a PhD in physics, but has devoted much of his life to the protection of human rights and to advocating for human rights in Russia. In 1988, he became one of the founders of the All Russian Society in Memory of the Victims of Political Repression, a society many of you are familiar with, called MEMORIAL. He worked closely with Andrei Sakharov, who subsequently became the honorary chairman of MEMORIAL. He has a long history, and I won''t read every detail of his actions within the human rights community because we would be here for a long time due to his prestigious background. Currently he is working to unite the human rights community in Russia under one umbrella. He has also done some interesting new things since the time when many of you met him a few months ago when he was here in Cambridge for a seminar. We are very happy that he has returned. He will share with you some of the updates of the situation since he was last here.
We also have with us Olga Soloveva. Olga is an associate professor at the psychology department of Moscow State University. She has her PhD in psychology, and she specializes in social psychology, specifically the psychology of law. She works on the psychological aspects of the jury trial system. Though she will not be making a formal presentation, she will be happy to answer any questions that people might have.
The last person I would like to introduce is Elena, Olga and Sergei''s daughter, who is joining us today. We are very glad that all of you have come. We would also like to thank in advance Leo Galperin, for what I know will be an excellent translation and interpretation during the seminar.
Without further ado, I would like to turn the floor over to Sergei.
SERGEI PASHIN: First, I will talk about the history of the judicial reforms of 1991 -- 1995. In 1990 a new body of People''s Deputies was elected and came into power in Russia. The Russian Federation declared its independence and sovereignty and set a direction toward reforms.
Upon the initiative of President 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 on October 24, 1991. Since that time, the most important achievements of the judicial reform were the following:
- In December 1991, capital punishment for non-violent crimes was abolished.
In the sphere of civil law, the parliament issued many new acts in order to protect property and civil relationships between 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 Russian history was founded.
In 1992 courts of arbitration (business courts) were founded.
In 1992 the Law on Judges'' Status was adopted. Since that time the judges in Russia, except the justices of the peace, are appointed for a life term. Real guarantees of independence of judges were declared.
In 1993 international law and provisions of treaties with the participation of Russia and the 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 an investigator received the right to appeal to a judge. Approximately two million Russians are arrested per year; simultaneously 250,000 suspected and accused are waiting for trial in jam-packed prisons. The judges examine 70,000 arrest complaints per year, and they release one-fifth of defendants.
In 1993 the law ordering judges to exclude illegally obtained evidence was adopted. In 1997 prisons, pre-trial jails and correction camps became part of the Ministry of Justice.
In 1998 we had approximately 1.5 million people deprived of freedom. After the amnesty of May 2000, only 970,000 prisoners remained in custody. It is worth noting that the number of prisoners fell below one million for the first time in Soviet and post-Soviet history.
In 1993 the Supreme Soviet of the Russian Federation approved the Law on Jury Trials despite the furious resistance of the 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, and crimes against justice. The jury trial was implemented in nine regions of the Russian Federation.
Since that time, courts with the participation of the jurors have considered approximately 400 cases concerning 850 defendants annually. It is necessary to note that the jury trial acquits every fifth defendant (in 2000 16% of the defendants pled not guilty). In traditional court, the share of defendants found innocent comprises less than 0.5%. Statistics about the Russian judiciary
Today the Russian judiciary consists of three branches: the Constitutional Court; courts of arbitration; and courts of general jurisdiction. The last branch includes: the Supreme Court of the Russian Federation; 89 regional courts; approximately 2000 district courts; and justices of the peace, who have already been appointed 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. Eight percent of judges'' benches are vacant. More than one-third of judges previously served as investigators, public prosecutors, or officers of the militia. Another source for recruiting new judges is the former secretaries (court clerks), who prepared 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 five million civil cases, two million other cases, and 450,000 appeals. The burden of cases falling on the judges became heavier than in 1991, when the judicial reform started.
The consequences of halting judicial reform
The results of judicial reform in Russia are impressive in comparison to 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, and effective trials accessible to citizens. The reforms were stopped in 1996, and then replaced by counter reforms.
First, the law enforcement agencies and institutions, such as militia, investigators, and public prosecutors were not seriously touched by the reforms. Russians are not free from torture by the militia, because violence is one of the techniques used to make a suspect confess.
Then, because of the lack of financing and the judges'' low salaries (approximately $150 per month), the judiciary is not really independent. In 2001 the budget for the judiciary was cut in half. And this was progress, because in previous years Russian courts had obtained only one-third of necessary resources.
The highest courts are provided for by the president''s administration. As a result, many decisions of the Supreme Court of the Russian Federation contradict each other. The decisions of the Constitutional Court are often written in a democratic manner, but they aggravate the real situation. After the February 2, 1999 decision of the Constitutional Court, the defendant''s constitutional right to appear before a jury has been treated as a provision, which would not act directly.
Other courts have to solicit and take gifts and money from local governors. This practice is forbidden by the constitution, but the courts have no choice; they would have to cease their activities due to debts and lack of electricity, paper, stamps and chairs. 700 court buildings are dangerous for people: they are too old, haven''t been repaired for years and are ready to fall to the ground. Moscow and St. Petersburg regional courts are the leaders in receiving illegal aid from local governors. So, the Moscow mayor won all of his libel cases in capital courts.
Courts work very slowly. In 2000, one-fifth of criminal and civil cases had unlawful delays. Sometimes those who have been arrested wait for trial for two or three years and die from starvation or disease in jail.
The judges'' siding with the prosecution has not changed. During the years of Stalin''s dictatorship, 10% of defendants were found innocent. Now 99.6% of defendants are convicted. Then, the courts of appeal canceled 42% percent of the "not guilty" verdicts but only 0.05% of "guilty" verdicts. So every year in Russia, 1,100,000 accused are found guilty according to the judgments. Only 5,000 people are acquitted. Then, the superior courts cancel 42% of the acquittals. So in reality, not more than 3,000 people are acquitted per year.
About 700,000 people per year, which is half of all those convicted, are convicted for petty theft. For instance in Kaluga, a fifteen-year old boy was sentenced to 3.5 years imprisonment for stealing two hamsters from a pet shop. The mother of three children was sentenced to four years in prison for stealing 12 cabbages.
There are many informal mechanisms for considering the cases. In order to protect themselves from having their decisions cancelled, trial judges have conversations with the public prosecutor, the chairmen of the court, and the judges of the superior courts, who will examine their judgments, and adjust the judgments with them.
It is interesting to note that the number of professional misconduct complaints against judges has increased from 4,000 in 1995 to 18,000 in 2000. There are three main kinds of complaints: first -- delays in proceedings; second -- serious violations of law and human rights; and third -- rudeness of judges sitting on the bench. It''s typical for the hearing record to be falsified by the judge. In 1999, 20 judges were dismissed for this offence, but of course this is only the tip of the iceberg.
The greatest problem of the judiciary is connected with chairmen of regional courts. They have enormous power. Many judges were dismissed as victims of their capricious chairmen. Acquittals in criminal cases can undermine the judge''s career, which is closely connected with the will of the chairman of the court.
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, such as Mr. Ponomarev''s, must protect the human rights of judges. One of those NGOs under the leadership of Mr. Ponomarev attempts to prepare class actions against the unlawful practice of dismissal of Russian judges.
Very often the Ministry of Internal Affairs intimidates judges and shows its contempt for court procedure and decisions. Examples of this occurred in 1998 in St. Petersburg and Moscow. When judges announced their decisions to release defendants, men dressed in camouflage and carrying machine-guns burst into the courtrooms, ordered everyone to the floor, captured the defendants and dragged them out.
Officers of law enforcement agencies commit many grave offences. Every Russian businessman knows the meaning of the expression "the red roof." It means that the militia has threatened to suppress someone''s business. The businessman must promise to pay the chief of the militia a share of his income, usually 10 or 12%.
Unlawful technologies and illegal mentality
Before beginning to speak about the Russian President''s solution to the negative phenomena I mentioned, I would like to sum up the main reasons for the slow development of real reforms and the great resistance to them. Broadly speaking, they are the following: overcoming fixed, unlawful customs and techniques, and the illegal mentality.
First of all, in Russia, laws govern the real world only as the last resort. The activity of law enforcement agencies and courts are determined more by traditions than by formal rules. A system of customs works in parallel to the laws and very often instead of them. The abuse of power by militia, torture after detention, falsification of court records, pre-trial private conversations between judges and public prosecutors, and overturning acquittals are some of the real techniques used by the Russian judiciary.
My next point is dedicated to the judges'' mentality. It is banal to say that the main goal of judicial reform is the creation of an independent judiciary. But independence is closely connected with personal responsibility. Are Russian judges eager to be independent and faithful to society? Here is one example from my experience. I used be to a judge in the Moscow City Court, it is the high court -- federal court -- and we report directly to the Supreme Court of the Russian Federation. Once, in the cafeteria of the court, I met a colleague, who had retired to deliberation the previous day. I was very astonished to see her outside of the deliberation room. She explained that the day before, the public prosecutor had refused to accuse the defendant of a series of cruel murders. So, according to the Constitutional Court, the trial court must write a very short judgment and acquit the defendant. "It is impossible for me to sign such judgment," said my colleague, drinking her tea. "I have been a judge for 17 years and have never acquitted anybody. Somebody must be punished for such a crime. I have called the Supreme Court, and they showed me the way out. I''ll find a reason for restarting the trial and will ask the Moscow prosecuting office to replace this foolish prosecutor." She did this. She restarted the trial and asked the Moscow public prosecutor to send a new assistant. The defendant was convicted and sentenced to 13 years in prison.
The psychology of Russian judges seems to be like the psychology of a minor clerk. If you want to make a career in the judiciary, you must ask the superior judge for advice and then follow his opinion; it is dangerous to acquit a defendant in a criminal case and to let the plaintiff win in litigation when local authorities are the 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," - only if you don''t know how to decide it.
The revival of judicial reform
The Russian President proclaimed that judicial reform would be one of the national priorities. The State Duma and the Supreme Court of the Russian Federation each undertook some activities as well.
Everybody agrees that our Civil Procedure and Criminal Procedure Codes are out of date. Therefore, 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 on behalf of private persons who themselves prefer to avoid litigation.
But prominent Russian lawyers and representatives of NGOs have characterized the draft Criminal Procedure Code prepared under the leadership of Deputy [Yelena] Mizulina from Yabloko as a document with 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 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 public prosecutor.
Deputy Mizulina, working with and in favor of the prosecutor general, the Federal Security Service and the Ministry of Internal Affairs, tries to restrict the competence of the jury, to prevent judges from issuing warrants, from interrogating the witnesses and examining the whole file. She tries to protect all the privileges of public prosecutors under the guise of new terminology; thus, the prosecutor''s "protest" against the judgment will be renamed a "complaint."
The Supreme Court of the Russian Federation has already prepared the Draft Bill on Administrative Courts. The idea is to create 21 such courts which will be well supplied and equipped, and have well-paid specialized judges to deal with the cases most important to federal authorities such as those concerning electoral laws, taxes, and disputes between federal and local authorities. Those courts will be endowed with the power to liquidate an NGO. Mr. Kovalev, who is a well-known supporter of human rights, and many scholars consider this bill to be a way to open kangaroo courts which are ready to obey the president''s administration.
The reform proposals of Kozak''s team
In the last part of my speech, I would like to say a few 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 at a conference which took place in the Institute of State and Law. They were discussed with court officials, law enforcement agencies, some governors and factions in the State Duma.
The reform proposals can be structured in the following way:
The first group touches upon the questions of financing and supplying 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 is estimated at around 4 billion rubles ($138 million).
Kozak''s second suggestion would guarantee that federal laws take precedence throughout the country. The Constitutional Court has the right to declare that a law of the subject of Russian Federation violates a particular provision of the federal Constitution. Local legislative bodies and governors have frequently ignored such judgments. 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 in no more than four months; local dumas are obliged to adopt such bills in the shortest possible time. Officials can be dismissed for procrastination by presidential decree. The Justice Ministry would be given the authority to oversee the efforts to bring regional legislation in accordance with federal laws.
The third list of proposals concerns the proceedings. The goal is to expand the rights of the defense in criminal trials and almost exclude prosecutors from civil cases. Proposals call for establishing jury trials throughout the country, and, at the same time, for restricting their competence. The idea is to leave in the competence of the jury trial only the cases of murder with capital punishment. According to the decision of the Constitutional Court on February 2, 1991, capital punishment in Russia is sustained. But after implementation of jury trials throughout the country, judges will have their right to use capital punishment returned. It is an interesting point for the Kremlin; they are interested in reviving capital punishment. The judges will be granted the right to sign warrants.
The largest number of proposals relate to the status of judges. The powers of judges appointed to 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 of Collegiums, the body 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 would lose the right to prevent law enforcement agencies from accusing and prosecuting the judges.
The plan faced strong opposition from the prosecutor general. However, during a meeting with the President, he did not dare to object to the president and maintained 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 correcting the bureaucratic perversions of reforms declared in 1991. But the main content of the reforms, I believe, follows the main presidential goal: "to strengthen the administrative vertical line."
After the fulfillment of the whole package of reform proposals, the judiciary will be closer to the federal government and better influenced by the president''s administration. The influence will be exercised with the help of levers: financing, appointing non-judiciary members of Qualification Collegiums, appointing the chairmen of courts to the next term, and bringing them down to the unattractive level of ordinary judges - not having personal cars, dachas and having to work hard to earn a living. The elected governors will find themselves under the strict control of bureaucracy in the Ministry of Justice and president''s administration.
From the position of real reforms these proposals look palliative. But common people are sick and tired of the arbitrariness of local authorities and the judiciary, and of permanent abuse of judges'' power. They will be glad to buy protection of their elementary rights and patronage of the president at any cost. In this context they would not worry about the dangerous independence of non-respected judges.
Thank you for your attention and patience.
CARR: Lev Ponomarev will add a comment on the situation of judicial reform, and particularly the intersection of human rights. Then, we will have time for general questions.
PONOMAREV: (Paraphrased translation from Russian) Thank you to everyone who has come to our meeting. As Sergei correctly noted, the court system in Russia works incorrectly and unprofessionally. There are deep-rooted reasons for this, and therefore there is practically no point in complaining to the court. All judges were educated in Soviet times and, to a certain extent, they do not understand what is taking place today.
But on a positive angle, people like Sergei and the community of human rights organizations that I represent are trying to compensate for these shortcomings. Real people suffer from these shortcomings-this is not an abstract problem. Thousands of people are pointlessly wasting away in prisons, receive incorrect sentences, and often the lives of people are dependent on unjust decisions.
Human rights organizations not only work with jurists, but also fulfill very important functions of a (inaudible) character. I will give you several examples of what human rights organizations, such as the organization that brought me here, do. As of late we have begun to receive many complaints that law enforcement organs, such as the police, are working on orders to discredit different business competitors. The most severe measure is a contract killing. Most contract killings are not properly disclosed. Another tactic for abusing police power is to plant drugs on someone. The police are paid a large amount of money to do this-they arrest individuals without any motivation, handcuff them, and can base their accusations on simply the smell on a person. We are involved in dozens of cases like this.
So, what do we do? An example: there is a business-owner who has a lawyer, but his lawyer cannot help him out of the problem, so he comes to us. How do we help? We begin to correspond with the prosecutor''s office to investigate in to the matter. Our first letter to the Moscow prosecutor''s office was handed down the chain of command, and we finally received an answer from the district (raion-level) prosecutor''s office with a statement that everything is being done by the law. But it is important to point out that this response from the district prosecutor gives us the right to once again appeal to the city prosecutor.
CARR: Thank you very much. At this point, we would like to open it up to questions.
QUESTION: My question is slightly long. Please bear with me. I am very interested in your talk, and I have a question about legal culture. You talked mostly about the legal culture of the state. My interest is in the legal culture of the population. It is something that was touched on very briefly at the end. There are a number of legal scholars in the United States who are analysts of Russian legal culture who argue that Russian citizens do not seek redress in the courts because of the problems that you have suggested. And that this is the one serious issue in the development of the court system. There have been some anecdotes today suggesting that that is not true. I have also seen some evidence to suggest that is not true. In the pension area, which is what I study mainly, there have been numerous court cases in which pensioners have sued different government agencies to obtain recalculations of their benefits when they were arbitrarily reduced by the state.
I have two questions, one specific and one rather general. First, can you give us a sense of the extent to which people are resisting in various ways, not only in the human rights areas, but in a lot of different areas? Human rights organizations are one, but in the pension area, my understanding is that it was actually the Communist Party that is organizing legal centers to encourage pensioners to sue state institutions for greater pension rights. My question is to see if you can give me a sense of how great this trend that you suggest exists is.
More generally, and this is for the whole panel, what is the extent to which there is a legal culture on the part of average citizens about using the courts to redress injustice?
PASHIN: First, a few words about the legal culture of the Russian people. I had five years experience of working with two lay assessors - people''s assessors. Olga had the great experience of investigating and examining the problems of the culture of jurors. In my opinion, we can be proud of the highest standards of legal culture. In jury trials, we had a lot of situations where jurists nullified the state law and decided the case according to their legal culture. Of course the legal culture of our population is not similar to the legal culture of the state. But it is not so bad, in my opinion.
Jurists nullified a lot of cruel criminal laws. For instance, a person had 50 rubles in counterfeit bills, and he tried to use them to pay for something in the market. He was arrested and spent a year and half in prison during the preliminary investigation. He appeared before the court with tuberculosis. The public prosecutor asked to sentence him to eight years in prison. It was a very mild sentence because according to the law, he must be sentenced to prison for a period of eight to fifteen years. The jurors decided that he was not guilty. They said, "Yes, he tried to use counterfeit bills, but he is not guilty." That is the difference between the legal culture of the population and the cruel ideas of our lawyers and professors of law.
I had a very interesting experience in a terrorism case. A colonel in the FSB died in a terrorist explosion. The accused person appeared before the trial under my precedence. We summoned the witness, who was a friend of this man. According the habits of our militia, this person was arrested without any evidence, and he spent three days at the FSB. After three days, the guys from the FSB understood that they must do something. They were interested in keeping him for ten days, so they went to the court and they falsified the record to indicate that this person behaved as a hooligan. Then, this person appeared before the court, and the judge was very clever and very polite. The judge said to the FSB men, "Why did you falsify this record? He spent three days in your chamber, so he had no opportunity to behave as a hooligan." The judge sentenced him to four days in prison. This witness said, "the judge was very good; he had the right to sentence me to 15 days, but because I am innocent, he decided to sentence me only for four days." This is a typical example of Russian legal culture.
We have five million civil cases per year. Most of them are labor cases pertaining to illegal dismissal.
PASHIN: (Responding to a question posed in Russian) To commit offenses is the typical behavior of Russian people. If they did not commit offenses, they would die from starvation. In the militia you see torture to get confessions. In the bar, you see tax offenses. In villages you see a lot of theft because the people have to take, for instance, corpses in order to feed their cows. But we have, I think two tendencies. In arbitration courts, the judges try to return to the state, property from private enterprises. They try to do it. I think that during the previous three or five years, more than 2,000 enterprises were taken from private hands [and given] to the hands of the government. It was not done by declaration, but rather in silence. And the next tendency is that public prosecutors have to prosecute people selectively. That means that nobody will be deprived of their property. But someone will be punished. And of course, their way of selecting people for punishment and prosecution is political.
QUESTION: I have a question about the role of international law as a mechanism for defending human rights in Russia. Mr. Pashin, you mentioned the 1995 signing by Russia of the European Convention on Human Rights. I understand that when Russia entered the Council of Europe, many laws were formally changed to be in accordance with the regulations of the Council of Europe, but that it was understood that nothing would actually change for some time, because it was impossible to change things that quickly. Will things in fact change at some point later on?
A related question, you also mentioned that now in the proposed reform, only murder cases which take into consideration capital punishment would be tried by juries. But I thought that one of the requirements for joining the Council of Europe was abolishing the death penalty. So how do those two facts coexist?
PASHIN: Formally, international law is part of national law, as in the United States. But in reality, judges are not well informed about the decisions of the European Council or about international law. Many of them are opposed to international law being a part of national law. The Supreme Court of the Russian Federation in 1998 had a special examination on using the norms and provisions of international law in real judgments. For instance, in Moscow they found only three cases where international law was used. And two of them were mine. International law is not popular in criminal trials, and it is very typical that it is used in courts of arbitration.
I hope that after the European Court''s decisions against Russia -- two or three decisions with good fights -- we will have to use international law in criminal cases and in civil cases. And our Constitutional Court very often uses the norms of international law. But the Constitutional Court has the opportunity to decide, I think, fewer than 20 cases per year. So it is very slow work.
About capital punishment - when our Constitutional Court suspended capital punishment on February 2, nine judges in the Russian Federation sentenced real people to real capital punishment. It was a protest against the decision of the Constitutional Court. The judges wrote in their decisions that "The Court is informed about the decision of the Constitutional Court. But according to the constitution, the judge must obey only the law. The Criminal Code has the provision for capital punishment, so we will obey the Criminal Code, not the decision of the Constitutional Court." I think that 70% of Russians are in favor of capital punishment, and I think that more than 90% of judges support it.
So we try to ignore our promises to the Council of Europe. And the idea of implementing jury trials all over the country is a way to revive capital punishment.
QUESTION: My question was about the judges. What percentage of judges in Russia may be reeducated so that they will begin to act like normal civilized judges by international standards?
PASHIN: Nowadays in Russia, we have nineteen judges in the Constitutional Court and 16,700 judges in the courts of general jurisdiction. But 8% of benches are vacant. And we have 2,500 judges in courts of arbitration. The judges from the courts of arbitration are previous state arbiters. So they have the very typical socialist point of view about state interests and so on. In courts of general jurisdiction, many judges, I think more than 40%, are judges who are between 25-45 years old. It is very typical that they are former secretaries of judges. So during the five years of their work, they have prepared records, and they have falsified records according to judges'' orders. And they have been educated with distance learning. I think that 5-6% of Russian judges in the courts of general jurisdiction are judges from the countries of the Commonwealth of Independent States. For instance, if a judge in Kazakhstan did not know the Kazakh language, they were fired and had to go to Russia in order to work as a judge.
We have 700 military judges. A typical and serious problem with them is that they like to obey the military forces. I am personally acquainted with 1,500 judges, because being an official of the presidential administration, I traveled all over Russia to visit and speak with judges. I had the experience of teaching judges in the Russian Legal Academy about jury trials, laws of evidence and so on.
I would like to say that judges who had the experience of working with jury trials have become real judges. This experience can be translated to other judges. I think that 80% of Russian judges can be trained. And they need to be trained. When they worked with jurors, they said, "Now I have become a real judge. I am not obliged to work as a public prosecutor. Now I can acquit people, and it is not dangerous to acquit, because I can say to my chairman ''the jurors acquitted him.'' I would like to decide the questions of admissibility of evidence and other real legal questions."
It is very typical that about 5- 10% are bad guys. But they become the chairman of the courts, the members of qualification collegiums. Most, 80% of judges, are so-so. They are ready to obey the dictatorship.
SOLOVEVA: They are being trained in such a way that they are concerned about losing control in the courtroom and what happens during the jury trial. They fear that the situation is unpredictable, and therefore unfavorable to them. This is rather disappointing.
QUESTION: Can you briefly describe the process of selecting a jury according to Russian procedures? I know how it happens in the U.S. They should be selected randomly after fulfilling a lot of procedures. Everybody probably remembers the case of O.J. Simpson. But how does it happen in Russia?
PASHIN: The selection of jurors in Russia looks like the selection of jurors in the federal system of the United States. We have a random selection from a list of voters. Local governors are responsible for this. This list of jurors is prepared. The clerks of the court, according to the order of the judge, must send not less than 20 jurors to the courtroom. Then, the judge has the right to ask them questions. Both the counsel for the defense and the prosecutor have the right for peremptory challenge of two jurors. But if the public prosecutor does not challenge, then the counsel for the defense has the right of peremptory challenge of four jurors. Then we have a jury consisting of 12 jurors and two alternates.
QUESTION: I want to get back to the issue of the jury. As I understand— and I only have limited knowledge— but the procuracy is actively lobbying against spreading the practice of jury trials in the country. I was wondering what you thought about the prospects of the jury trial in Russia, and what are the main obstacles for spreading it?
PASHIN: The jury was implemented in Russia in nine regions in 1993. I was responsible for this process of implementing jury trials. I tried not only to push the draft bill through the parliament, but also to prepare the population and the professionals in those regions. Jury trials were implemented in nine regions.
In 1995, another twelve regions asked for the implementation of jury trials. It was Moscow -- we had jury trials in Moscow Region, but not in the city of Moscow -- St. Petersburg, Chelyabinsk, and nine other regions. We prepared everything for the implementation: we trained judges, and we prepared the necessary court buildings. But this draft bill about the implementation of jury trials in twelve regions was buried in the Duma.
I am afraid that the idea of implementation of jury trials all over the country is not a good idea, because for instance Alexander II tried to implement jury trials in Russia for 35 years. And he did not succeed. In Siberia, in Polsha -- Poland was part of Russia -- he did not do it. It was impossible. I am afraid that jury trials will never be implemented in Bashkortostan. They will never be implemented in Chechnya, or in Muslim regions. I think that jury trials will be implemented in no more than 20 or 30 regions. Then, they will have to stop.
QUESTION: You have been here some months. What is your view on the mess with the McVeigh trial?
PASHIN: I am against capital punishment. I think that capital punishment is a type of murder with aggravated circumstances. But I think that Mr. McVeigh has a good lawyer, because they are fighting for suspending his execution for a lot of money. Maybe he can beat it. The president can use his right to be lenient.
QUESTION: My question concerns the implementation of jury trials. You said that they would not be implemented in Muslim countries. Why not?
PASHIN: I think that it is necessary to implement jury trials where people seem to be free citizens. In the Muslim subjects of the federation, I think that a lot of people seem not to be citizens of Russia. They seem to be members of their neighborhood. There are many corrupted officials, so a jury trial in those places may be the way to implement kangaroo courts, where members of one group will sentence the members of another group. For instance in Stavropol, where we have jury trials, we have this situation (Stavropol is near Chechnya). The people of Stavropol are very frightened of terrorism. So very often, the juries in Stavropol have no real opportunity to return a fair verdict. We have to send the cases from Stavropol to another region of the Russian Federation where jury trials have been implemented.
In Chechnya, they did not implement jury trials, but rather they implemented Shariat, Muslim law. They have a special criminal code with corporal punishment. They have special Shariat courts. They traded their supreme court for the highest Shariat Court. They use capital punishment— against the law of the Russian Federation. They use their corporal punishment, and they cut off hands. I am afraid that a jury trial in this situation is dangerous and impossible.
QUESTION: I would like to ask a question about the overall effect of this pending judicial reform on Russia. Russia has a history of implementing judicial reforms - partly successful, and partly unsuccessful. That gives us a good experience to project what kind of effect this reform will have, taking into account both the fact that the laws will be passed, and the position of the power itself. For instance, referring to your speech, you obviously implied that the fact that certain laws have been introduced is a positive sign. On the other hand, even the positive laws may not have very positive circumstances due to such things as influencing certain people in the system. Could you, as an expert in this area, evaluate the pros and cons, taking into account previous experience, your impression of the intentions of the present power, and current developments? What is the magnitude of the event? Is it going to be a major step forward, or is it going to be a little step forward? Is it a symbolic thing, meaning there will be laws, but like the constitution, there will be many good provisions that are not implemented?
PASHIN: Generally speaking, I think that the goal of the presidential administration is to strengthen federal power; and to have influence over judges, the whole judicial system, and of course the public prosecutor. So President Putin has his own targets. Implementation of jury trials and teaching the judges to behave in another environment will have not only a political, but a real legal effect. Sometimes, the idea of strengthening the vertical of power can be transferred to another idea. The judges, after being independent, can show the legal behavior. President Yeltsin was not very interested in judicial reform. But he signed each decree, including the conception of judicial reform. The effect was very serious because in some regions we had real independence until 1995-1996. Then after the second election of Mr. Yeltsin, things changed. I had to retire from this position, of course, because I had nothing to do in this situation.
While writing the draft, you must take into consideration the real techniques and real mentality. If you do it, your draft bill can be implemented. If you don''t do it, your draft bill can be adopted by the parliament, but the judges, public prosecutors and investigators will behave in the traditional way.
QUESTION: That was part of my question. I was asking for the overall effect, and all the challenges that the implementation will entail. If I could ask another question about this federal investigation service that is also part of the reform, and that is a somewhat more protracted part of it, as I understand. Do you think it will be implemented? What is the timeline of this reform? And is it doomed mostly to failure, or will it have some positive aspects?
PASHIN: I am afraid that it will never be done. The home office is very powerful. And the public prosecutor''s office is very powerful. The FSB is very powerful. And the tax police gained their own investigational department. So these four agencies will never give up their investigational apparatus, because to have an investigational apparatus means to have real power.