Putin Courts Reform

East European Constitutional Review,
Vol. 11, Nos. 1/2, Winter/Spring 2002, New York

For nearly three years, politicians, scholars, and journalists have been monitoring Russian President Vladimir Putin, trying to assess where the former spy is leading his country: toward democracy or back to the Soviet past, with its repression of civil liberties, suffocating bureaucracy, and herdlike citizenry.

The authors of "Reforming Russia’s Courts," a six-article feature in a recent issue of the quarterly East European Constitutional Review (EECR) published by New York University and Central European University, shed light on this question by exploring key aspects of the Russian judicial system and President Putin’s drive to reform it.

"The peculiarity of the current situation," as contributors Irina Dline and Olga Schwartz convincingly argue, "lies in the coexistence and mutual influence of two entirely different systems of justice, old and new." Last year’s Kremlin-sponsored judicial reform package has made some progress in addressing this duality. The new Criminal Procedural Code, for example, extends jury trials — now practiced in nine of 89 regions — to the entire country, raises standards for prosecutors and investigators, and couples greater powers for judges with the increased accountability stipulated by other new laws.

Most of the authors agree that the reform effort is a step in the right direction, but they pepper their pieces with caveats about what will be required to make it work — primarily, the political will of the country’s leaders and the education and empowerment of its citizens. As EECR editor Stephen Holmes argues in his eloquent introduction, "the main obstacle to liberal transformation… remains Russia’s socially disconnected and politically unaccountable elite." The glaring inequalities between this elite and average citizens threaten to create a system "where a privileged few can obtain a degree of legal certainty and predictability, while the vast majority continue to suffer erratic encounters" with the law.

The criminal justice arena provides the most poignant illustrations of the system’s failings. Several authors point to the pernicious, unwritten non-acquittals policy to which most judges adhere. Despite the low quality of police and investigative work, the percentage of acquittals in 1990 was less than 1 percent and hasn’t risen much since. These stupefying statistics reflect the courts’ pro-prosecution bias and pressure from investigators and prosecutors, whose performance evaluations are linked to the number of convictions they secure.

Perhaps the most comprehensive and persuasive article is the examination of the jury trial system by Dline (formerly a U.S. legal trainer in Moscow) and Schwartz (project coordinator for the Russian Foundation of Judicial Reform and, previously, a criminal justice consultant for the Soviet Supreme Court). They argue that jury trials, held for certain grave crimes, have had a positive effect on the larger legal system by introducing more demanding standards of proof and making the court process more adversarial. But the system faces formidable obstacles, the worst of which is a lack of adequate funding.

This article is complemented by an illuminating case study by Rutgers University law professor Stanislaw Pomorski, who spent five weeks in 1999-2000 observing a Siberian criminal court. Pomorski demonstrates that the pressures judges face to convict and to process a large caseload quickly have created conditions in which legal rules are "often treated as obstacles to be surmounted rather than applied." Pomorski paints a sadly realistic picture of the disregard for defendants’ rights, the low standards applied to prosecutors and investigators, and the traps that keep judges dependent on their higher-ups and on local officials.

University of Toronto professor Peter H. Solomon Jr. details the tense balancing act between judges’ independence and their accountability. He takes a historical approach to Putin’s reform, tracking the complicated haggling between the Kremlin and the judicial community in shaping the courts’ new role. Similarly, Alexei Trochev, a doctoral candidate at the University of Toronto, places the reform in a broader political context in his piece on the Constitutional Court, describing the battle over the court as part of Putin’s effort to exert more control over Russia’s regional rulers.

In his introduction, Holmes offers a crucial distinction between two types of legal systems: rule by law and rule of law. Under the former, a small elite uses laws "to protect and consolidate its privileges and power"; under the latter, power in society is sufficiently dispersed to allow many groups and people "to use law to pursue their goals and safeguard their assets to some extent."

Today, Russia is governed by the rule-by-law model. The success of Putin’s judicial reform will be judged by how much closer it brings the country to a rule-of-law system.