Following the recent terror atrocities in Beslan, Russia will come under more pressure to iron out the uncertainties of its justice system. Jonathan Ames gains privileged access to the courts as the country attempts to arm itself with a more western-style rule of law.
As the Russian authorities begin the long process recovering from the horrific terrorist attack on a school in the Caucuses town of Beslan a fortnight ago, one thing is clear – they will have to bring to trial at least one of the alleged captured terrorists.
And that – in conjunction with the rumbling trial of oil magnates Mikhail Khodorkovsky and Platon Lebedev – will cast an even brighter spotlight on the justice system in Vladimir Putin’s new Russia.
Everyone has an image of the Russian state. Whether it be the opulence of the late 19th century Romanovs, the post-revolutionary communist triumvirate of Lenin, Trotsky and Stalin, or the benign reforming face of early 1990s Gorbachev, the concept of the state in Russia is one of all-encompassing power. The rule of law existed, but was enforced with an iron fist by party officials, bolstered by jack-booted security services.
But what of the rule – and practice – of law in early 21st century? Not only has the country experienced huge economic upheaval since the demise of the Soviet Union in the early 1990s, but it is also facing internal sectarian strife of an almost unprecedented nature. Fallout from the cataclysmic events of the hostage siege at Beslan only highlights the pressure Russia faces as it attempts to convince the world that it has adopted a modern Western approach to the rule of law.
Terrorism is not the only challenge facing the Putin government. For many in the UK, the modern image of Russia is of privatisation-rich oligarchs hoovering up glamorous London football clubs or availing them-selves of the London libel courts. Back in Moscow, Mr Khodorkovsky and Mr Lebedev are two oil moguls technically being tried for what amounts to tax evasion. But the perception in both Russia and the West is that of a political game in which President Putin attempts to roll back the excesses of what he perceives as the freewheeling privatisation bunfight sanctioned by his predecessor, Boris Yeltsin.
Whatever the rights and wrongs of the privatisation debate, the Khodorkovsky-Lebedev trial has put the Russian justice system squarely in the dock, something of which the Russian authorities themselves are acutely aware. Far removed from the oligarchs, at street level, there is also the image of Moscow as a city that now represents the wild, wild east; a place where leather jacketed, gun-toting gangsters have been the main beneficiaries of capitalism and the post-1993 economic reforms.
So, indeed, what of the rule of law in modern Russia? The scale of the justice system itself is impressive. Last year, there were 11 million cases in the general civil and criminal courts – two million more than in 2002. There are some 22,500 judges in general jurisdiction, 6,500 justices of the peace and 54,000 non-legally qualified staff working in the court system.
The Gazette was recently invited to tour the Russian legal institutions to assess the progress made and the challenges that lie ahead. We were provided unique access to senior judges, lawyers, legal academics, and criminal and civil trials to see how justice is dispensed in a country that, until 14 years ago, was the communist cold war superpower.
The Constitutional Court
Perhaps the most vivid example of the reforms of the past decade in the Russian legal system is Valery Zorkin’s Constitutional Court. The court was founded in 1991 – with a main objective of ‘strengthening the rule of law in Russia’ – and the 61-year-old judge was there for its inception, sitting then, and now, as the court’s chairman.
But it has not been an easy ride for Mr Zorkin. Two years after the court was created, he resigned from the top slot following a bust-up with then-President Yeltsin, who soon after suspended the entire court. But by the beginning of 1995, relations between the judges and the president had improved, and Mr Zorkin was appointed as a member of the commission set up to improve the court’s structure.
In the following year’s presidential elections, a popular movement nominated Mr Zorkin to challenge Mr Yeltsin, but the judge demurred, opting instead to retain his place on the court. That strategy paid dividends, as in February 2003, he was again elected as chairman of the Constitutional Court.
Years of dealing with pre- and post-Soviet Union bureaucracy have not dimmed Mr Zorkin’s desire to speak frankly. ‘Russians don’t live in ideal conditions – we are in a state of economic transition and 14 years ago we lived in a totalitarian state. Now we have established a market economy and a new judicial system. But there are still many inconsistencies in our justice system and our goal is to put that right,’ he says.
For Mr Zorkin, the principal advance in the Russian justice system over the past 15 years has been the enhanced ability of individuals to exercise their legal rights through the courts, and the reinstatement of jury trials for criminal cases.
‘Individuals can contact the Constitutional Court,’ he says proudly. ‘You can have a case of an individual v the Russian Federation. That was unthinkable under the old Soviet regime. There were approximately 15,000 claims against the government last year from individuals.’ In 1992, just 1% of litigation in Russia involved disputes between entrepreneurs and the government; that figure is now 50%.
The jurisdiction of the Constitutional Court focuses on the interpretation of the 1993 Russian constitution, which effectively sounded the death knell for the politburo and the communist state. Its 19 judges ensure that legislation conforms with the new constitution.
Mr Zorkin goes on to describe jury trials – which have only been reintroduced in Russia within the past two years – as ‘the most prominent achievement of western judicial culture’. But he acknowledges that there are difficulties in reacclimatising Russian society to the process. He himself also belies an old Soviet distrust of the system, saying: ‘The Constitutional Court can’t solve this issue on its own. One of the problems with jury trials is that juries acquit defendants who are clearly guilty. Juries are often under pressure from criminal groups.’
Nonetheless, he is adamant that the Russian judicial establishment is keen to see jury trials operating in criminal cases in all of the nation’s 89 regions – including Chechnya – by the end of 2007. Mr Zorkin also points out that while Russia still imposes the death penalty, it has advanced to the stage where any defendant facing a possible death sentence is now automatically entitled to a jury trial.
Indeed, Mr Zorkin maintains that while there is still much work to be done in relation to human rights issues in Russia, many positive moves have been made since 1993.
‘We’ve made a lot of progress. [Dissident Andrei] Sakharov in 1990 said there was no such thing as human rights in the Soviet Union. Now I can say that we have human rights in our country. The outdated Soviet criminal code was eliminated by the Constitutional Court. The irony of the Soviet Union was that its constitution protected human rights but they were not respected in reality.’
The Supreme Court
More established on the Russian legal scene is the Supreme Court, which is the final instance jurisdiction for civil (non-commercial) and criminal matters. Its current chairman is Vyacheslav Lebedev, a 61-year-old Muscovite who has worked his way up the judicial ladder, starting as a judge at the Leningradsky district people’s court in Moscow in 1970.
Mr Lebedev became chairman of the Supreme Court in 1989 and, therefore, is ideally placed to comment on judicial life pre- and post-Soviet Union. Says Mr Lebedev: ‘Fifteen years ago, citizens could not defend their rights in the courtroom – they could not enjoy the full protection of the law.’
Alexander Gusev is the director-general of the Supreme Court’s judicial department, which is responsible for court infrastructure across Russia. He points to a major court building programme in the past year as evidence of the government’s commitment to the justice system.
During that time, Mr Gusev’s department has been focusing on the establishment of jury courtrooms, and last year it built 150 courthouses where jury trials can take place. ‘So far we’ve built jury courtrooms in all regions of Russia apart from Chechnya, and we hope to rectify that within a year and a half or so.’
The Russians have also recently restored the justice of the peace system, which was abandoned by the communists after 1917. There are now 6,500 full-time magistrates, who are required to have a legal training and background.
But in common with his judicial counterparts in the UK, Mr Lebedev is not entirely satisfied with the amount of funding for the programme of court reform coming from the Kremlin. ‘We are still not happy with the financing levels,’ he says. ‘The more you eat, the more you have an appetite.’
The judges
‘The face of justice in Russia is female,’ says Olga Yegorova, chairwoman of the Moscow City Court.
Ms Yegorova should know, having been appointed as a judge 20 years ago at the age of 25. She was appointed as the head judge in Moscow in 2000. It is the largest court in the Russian Federation, with 190 judges dealing with both criminal and civil law appeals. Rulings handed down in her court can only be overturned by the Russian Supreme Court.
Some 70% of the judges at the Moscow City Court are women – as are 80% of the judges in the Russian district courts. The main reason for the gender imbalance is cultural and economic – under the Soviet Union, the party did not pay judges well and male lawyers considered the salaries to be derisory. But within the past few years, judges’ pay has been increasing by as much as 20% annually, triggering a significant rise in the number of male applicants to the bench.
When Judge Yegorova first became a judge, she was elected to the bench. In one of the many ironies that surrounds the old Soviet Union, the communists insisted on judges being elected by local populations. Judicial campaigns – equivalent to those still run in many states in the US – were standard, complete with posters and banners in the streets.
‘In those days you would end up with judges who didn’t have degrees in jurisprudence,’ recalls Judge Yegorova. ‘Now judges are appointed by the federation president’s office, so you have a much more professional bench. Under the Soviet Union we had solid legislation. Now it is much more interesting because we have living legislation and a new approach. Judges act as independent arbiters. In the Soviet Union the situation was different – acquittals were rare, as the government took them personally. Now they are not so rare – if you can prove your innocence then you are not convicted.’
Clearly, the concept of the prosecution having to prove guilt is still some distance in the Russian future, if it arrives at all. Interestingly, Judge Margarita Pamfiorova of the Zamoskvoretsky District Court has spent most of her career on the bench in the post-communist era. Nonetheless, she happily states that in 12 years as a judge she has overseen no more than ten criminal acquittals.
The courts
The most striking feature of a Russian criminal trial is just how ordinary it looks.
The courtroom at the Moscow City Court is small and sparse. Jury trials only started there a year ago, and the 14 jurors (12 main members and two potential alternates) all look vaguely bemused. They clutch notebooks and stare at the young man in the caged dock who has been charged with a double murder.
In front of the defendant sits his one defence lawyer – dressed in a suit without a gown and certainly no wig – who leans back to take instructions. Opposite them is a desk at which three women sit. The one in uniform is the state prosecution advocate. Next to her are non-lawyer representatives of each of the victims.
A stern, robed, but unwigged judge, who appears to be in his mid-30s, questions each witness first. He is followed by the prosecution advocate, who is in turn followed by the victims’ representatives. The defence advocate is then given an opportunity to cross-examine, before, finally, the defendant himself is allowed to cross-examine the witness directly from the dock. Jurors, too, are allowed to pass written questions to the judge that they would like put to witnesses.
Civil courtrooms are no more grand – the one at Zamoskvoretsky District Court exudes a relaxed atmosphere, epitomised by the ‘Venice Beach’-inscribed T-shirt worn by the court clerk.
Judge Maria Lipovenko appears to be on the right side of 30 years old, and yet she has been on the bench since 1999. She says she hears on average 20 cases or applications a day, and at times it looks as though boredom has set in.
During a trial involving a claim over a disputed package holiday, the advocates engaged in a lively debate with each other to the near exclusion of Judge Lipovenko. Indeed, at one point, so animated and adamant became the defence advocate, that he crossed the floor of the small courtroom to thrust a document under the nose of the indignant claimant’s lawyer.
The academic
Oleg Kutafin is the long-standing rector of the Moscow State Academy of Law, which was founded in 1931 and is one of the elite legal education institutions in Russia.
Law is the most popular degree course in Russia – it is a legitimate escape from military conscription – and competition for places at the best law schools is high. There are many law schools in Russia turning out a large number of graduates, most of whom are women. But many have trouble finding jobs.
A few students receive grants from the government after sitting an entrance exam. But as law schools are starved of funding, ‘commercial students’ are becoming increasingly attractive. They pay annual fees of about $4,000, but they do not have to sit an entrance exam.
‘Without lawyers, the reforms in this country can’t work,’ says Mr Kutafin, who helped draft the new Russian constitution, before he too fell out with President Yeltsin. ‘Putin is a lawyer by training and it is much easier to reach an agreement with Putin on legal matters than it was with Yeltsin.’
Ultimately, Mr Kutafin provides the wryest analysis of the reforms in Russia over the past 14 years: ‘The vast majority – 99% – of our people are not interested in freedom of speech. They are interested in consumer goods.’
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