Why Do Russian Judges Act That Way?

An expert on the Russian judiciary explains why the country’s judges can’t – or won’t – exercise their independence.

by Sergey Chernov

In the past 12 months Russia has seen a number of highly politicized trials – cases based on debatable evidence, conducted with questionable procedures, and invariably resulting in guilty verdicts.

The Pussy Riot trial, arising from the feminist punk collective’s performance of an anti-Putin protest song at a Moscow cathedral, sent two members of the group to a prison colony for two years on charges of “hooliganism motivated by religious hatred.” The judge, Marina Syrova, refused to hear defense witnesses and ignored defense evidence, and a lawyer for the defendants said they were denied adequate food and sleep during the course of the trial.

Judge Marina Syrova presides over the Pussy Riot trial. Photo courtesy of freepussyriot.org.

In another notable case, 12 activists from the opposition Other Russia party, most former members of the banned National Bolshevik Party, were on trial for nearly eight months for allegedly continuing the “extremist activities of a banned organization” in connection with a 2010 rally. Judge Sergei Yakovlev sentenced the activists to heavy fines but lifted the punishments due to the expiration of the two-year statute of limitations for minor offenses.

Vadim Volkov, vice rector for international affairs at the European University in St. Petersburg and head of its Research Institute for the Rule of Law, has written extensively on the Russian judiciary. He believes that no matter who rules Russia, and how, reform of a bench tightly connected to police and prosecutors is a long way off, unless there is a quick and complete overhaul of the system. Transitions Online talked to Volkov about the conduct and motivation of judges in Russia. This is an edited version of that conversation, which was conducted in English.

TOL: Russian Prime Minister Dmitry Medvedev, a lawyer by education, attributed the high conviction rate in Russia to judges feeling awkward about investigations. “Judges are ashamed to acquit a person and thus question the work done by the investigation bodies,” he told German newspaper Neue Zurcher Zeitung. What do you say to this?

Vadim Volkov: Medvedev means that the judges don’t want to go against the investigation and the prosecution, because if they acquit someone it means that system worked in vain. Basically, they held in custody and interrogated an innocent person, and they just do not want to go against it, so they are ashamed.

Medvedev’s main idea is right: the judges are weak. The judiciary has a weak position vis-à-vis the prosecution and the investigation. He said also that this is the Soviet legacy, which is also correct. Criminal courts in Russia were officially part of the so-called pravookhranitelnaya sistema [the law-enforcement system]. Now, according to the constitution, they are separate and independent. They are not part of the pravookhranitelniye organy [the law-enforcement organs], so to speak. In the Soviet Union, they were. They were part of the same machine – the last instance of checking on the work of preceding instances in the criminal process, meaning the militia, the investigation, the prosecution. This wasn’t an independent system.

Now in Russia, the judiciary has become an independent institution and its independence is guaranteed by the constitution and a number of other laws, but in fact, in practice, it doesn’t work as independent. It remains the last element of the law-enforcement system, in practice.

But Medvedev didn’t say anything about how we can change this situation. There’s a very hard dilemma: it’s not in the interests of political authorities to increase the independence of the judiciary, because the judges can make the work of the police, the investigation, and the prosecutor very hard. They may give them a hard time. The political powers don’t want this conflict. On the other hand, this is a matter of the international prestige of Russia, and the investment climate, to have independent judges and independent courts. So Medvedev, as usual, stopped halfway. He said more or less about how things are, but he said nothing about how we can make things better, because a radical decision is needed here.

Was there any period in modern Russian history when courts were more independent?

The judicial system in Russia maybe was more independent in the 1990s, but it was much weaker in [the sense] that it was under-financed. Salaries were low and the criminals could put pressure on judges. They could scare them, they could blackmail them. I know there were many cases when so-called mafia members would basically threaten judges, and they were not properly protected. So they could have been independent, but the institution itself was very weak. Now the institution is stronger in terms of finance. [Judges] receive high salaries, they are much better protected, much better equipped, but there was no increase in their institutional independence. So dependence upon the prosecution and investigation continued.

[It is] not that judges are so internally ashamed to make acquittal decisions; they are under pressure from the prosecution and from the investigation because there’s the institution of reversal of judicial decisions by a higher court, and acquittals are reversed by higher courts five times as often as guilty sentences. If they get several reversals, they will face disciplinary charges themselves and they risk their careers. So it’s rational in the system of control within the court bureaucracy to avoid acquittal. You can give them a suspended sentence, for example, but not acquittal, because acquittal will definitely lead to the prosecutor appealing to the higher courts.

Also, you don’t want to estrange and make a prosecutor into your enemy, because the prosecution is still a very powerful institution in Russia. Add to this the fact that about 16 percent of judges have a background in the prosecution, and another 14 percent have a background in investigation and the police. We can assume some kind of corporate loyalty. They simply don’t think of themselves as far apart from prosecution and investigation. That’s also a problem, the recruitment of judges.

In the “Trial of 12” in St. Petersburg, the Other Russia activists were found guilty, but they were not punished. Does this seemingly unlikely ruling fit with general judicial practice?

This is so-called policy. You can do many things but you have to avoid acquittals, especially in resonant cases, because they create precedents.

If we talk about how to influence judges and about their behavior, I think the strongest influence is a kind of self-censorship. They basically socialize in the system, they work in this court among other colleagues, and they basically know how the Russian judicial system works. If they don’t want to work like the system works, they can go and find another job. But if they become judges, they will have to do their work in a certain way: avoiding acquittals, avoiding going against the prosecution, being sensitive to the requests of state prosecutors. They know what is required of them.

There are cases of direct pressure, and this direct pressure usually comes from the chairman of the court of the [city or region]. This is where the center of control of the judicial system is situated, so all the orders are translated through this relatively small number of judges. These are old judges, and they can communicate directly with district judges. You don’t need to harass an individual judge, but you have to send a signal or a command through the institution of chairmen. The chairman will basically prompt what kind of policy to stick to. But again, now is a different time; the judges tend to avoid severe sentences, as you mentioned. They have a lot of opportunities to free a person, to avoid sending him to prison, yet avoid acquittal. So we can say the art of judging in Russia consists of trying to compromise between justice and the institutional pressures of the administration.

Could it be said that in the Trial of 12 the judge acted independently, rather than on orders from the authorities?

Let me put it this way: it’s like in the media. I am sure that a large number of journalists of [Russian television channel] NTV, they don’t need to be instructed what to say in every concrete instance. They will do it on their own. The main thing is to select the right people, motivate them, and that’s all. It’s the same thing with judges, they basically know it themselves.

I am desperately looking for judicial dissent, for judges who will go against the system and will create a model for independent judicial behavior. On one hand, if we talk about judicial independence, we have to look at organizational patterns, institutions, how the system is administered – the policy of a higher court, for example. But on the other hand, nothing will happen without some strong personalities. Now, I think, they basically avoid recruiting strong personalities to the courts. The recruitment system is such that it favors the former secretaries of the court, the former minor clerks of the court, who are very good at administration but who lack independence – internal independence, leadership, and the sense of creating justice. But still we can assume that there are judges who have some kind of professional ethics, and at some point we expect them to step forward, we expect some conflicts to emerge. Maybe this conflict will create patterns of independent behavior. We desperately lack role models of independent judges.

Writing about the Pussy Riot trial for [Russian daily] Vedomosti, you singled out this case. Did Judge Syrova act by orders from the authorities, in your opinion?

We cannot say for sure, because the communication between the chairman of the court and a rank-and-file judge is always secretive. We will never know whether this communication occurred and what was its content. For a scholar, a researcher, this is not a basis of judgment. But we can look at some other things. We can assume that the judge has some ideas himself.

The judge can stick to formal rules, or the judge can step over the formal rules and understand that the case he is handling is something more important than an ordinary case, because of publicity or political overtones. The Pussy Riot case was definitely a political case, and the defense also openly claimed that [Pussy Riot’s] act was political. The judge had no way out but to accept that she was handling a political case. It’s absolutely true that the judge ignored many formal procedural aspects, and from a procedural standpoint this case is very low-quality. They ignored evidence, they refused to listen to the witnesses from the defense side, and so forth. But the judge understood her political role.

My reading was that the judge understood that she had a mission, and my idea in that article was that yes, the judge was part of the game, and this game was aimed at increasing the solidarity of the conservative part of Russian society, because looking for enemies and punishing the enemies, that’s the objective social dynamic. Every sociologist knows that public punishment is not just an act of punishment; it relates to the society that punishes. This is an act of solidarity. The solidarity increases because they all are part of this practice of punishment. That’s why they made this case. They brought and [pursued] criminal charges against [the Pussy Riot members] instead of administrative charges. They could have pardoned them or punished them in other ways without this public trial, but they consistently went through this public trial, made it very visible. My idea was that the court in this case played a very unusual role – not just crime prevention or conflict resolution or creating justice, but the judge played a symbolic role. She was an instrument of increasing social solidarity and driving up the sentiments and emotions of the conservative part of society, which could then be used politically by the current authorities. That was my sociological reading of the whole thing.

Former judge Yulia Sazonova sentenced former world chess champion and opposition activist Garry Kasparov to five days in custody when he was detained during a rally in Moscow in 2007, declining to watch the video of the detention or to hear defense witnesses. In an interview last year in Bolshoi Gorod magazine she revealed her motivation: “When you’re within this system ... you do believe that that there are enemies around, while you’re for justice. … I did think that the police, the prosecution were with me and I could trust them.”

This is a very frank statement. It corresponds to their worldview. It’s very hard to think differently, being within the system. The fundamental thing is that this system has no separate professional culture, separate from the police and the prosecution. They share many aspects of the same professional culture. We are continuing research in this direction. We have some initial findings, but we’ll continue to try to track down the features of this culture.

Would the judges act differently and rule based on the law and conscience if the political system changed?

It would take a very long time. The judicial system is conservative by nature. Only if there was any kind of lustration – that is, a total overhaul, the total change of judges – could we expect changes. Changes can happen, but these changes may be incremental. If the political system changes, we know the measures that have to be taken in the first place to at least give judges the space for independence and freedom. They will not necessarily claim this independence for themselves, but we can create much more independence for them, less administrative control for them, and then the system will evolve in the direction of independence. But it will take years. It won’t happen overnight.

Would the judges act differently and rule based on the law and conscience if the political system changed?

Sergey Chernov is a staff writer for The St. Petersburg Times

Источник: Transitions Online