Strong-arm Rule or Rule of Law? Prospects for Legal Reform in Russia

JURIST Guest Columnist Pamela A. Jordan, an associate professor of history at the University of Saskatchewan (Canada) who writes on politics and human rights developments in Russia, says that the recent murder of Chechnya human rights activist Natalia Estemirova may help jolt average Russians into demanding that their leaders finally get serious about legal reform....



Prospects for legal reform in Russia are closely linked to the country's wider political context, particularly the regime's threat perception and its concerns about economic development. In 2008, Russian liberals had some reason to invest their hopes in their newly elected president, Dmitry Medvedev, despite his being a protégé of his predecessor, Vladimir Putin. Unlike Putin, he has no KGB past and, born in 1965, came of age during Mikhail Gorbachev's perestroika. Before his election, Medvedev — a lawyer by training — publicly stated his intention to combat "legal nihilism," by ensuring judicial independence, fighting corruption, and educating average Russians about the law.

So far, though, it remains unclear whether Medvedev truly supports full governmental transparency and accountability or encourages reforms that would check the power of the Kremlin, two necessary ingredients for legal reform. In evaluating Russia's prospects for legal reform, we also need to distinguish between structural reform (the adoption and implementation of laws governing courts and the legal profession) on the one hand, and attitudinal changes on the other. The latter are far more difficult to foster among law-enforcement officials, judges, and even the public at large. Russians are now using the civil and arbitrazh (commercial) courts in higher numbers than before to resolve their conflicts. However, despite this promising trend, they still do not trust the courts to satisfy their claims against public officials, as shown by data published in a report on Russian public opinion (March 2008-March 2009) by the independent Levada Analytical Center.

Putin's Legal Legacy

What kind of legal system did Medvedev inherit from Putin, who, as prime minister, is still widely viewed as the dominant ruler of Russia? Putin, himself trained as a lawyer, famously proclaimed a "dictatorship of law" as a strategy for empowering the Russian state through a universal observance of federal legislation and government decrees. Despite his reputation in the West as an authoritarian ruler, there is some evidence that he actually strengthened the foundations for a future rule-of-law state during his eight-year presidency (2000-2008). He supported the adoption of new laws that—at least on paper—fostered an independent judiciary and built on earlier, although more modest, achievements made during Boris Yeltsin's presidency (1991-99).

These measures included liberal, reform-minded criminal procedure, civil, civil procedure, and land codes, as well as a new law on the advokatura (the Russian bar). For instance, the criminal procedure code injects adversarial elements into an existing inquisitorial process, while the civil code promotes a free market system. The new law on the advokatura was meant to protect advocates against prosecution and state intervention and to enable the bar's professional organs to maintain a minimum level of quality control for new entrants. Putin also supported a law creating new justice of the peace courts, in an attempt to alleviate judges' heavy caseloads. During his presidency, jury trials in more serious criminal cases were instituted in every region but Chechnya, and Russia ratified international conventions, including the UN Convention Against Corruption and the Criminal Law Convention on Corruption of the Council of Europe, which obligate it to meet certain standards of compliance. Thanks to increasing oil and gas revenues, Putin's federal budgets allocated more operating funds to Russia's 2,600 courts and significantly increased the salaries of its 37,000 judges. Even a June 2009 Council of Europe report about politically-motivated abuses of the Russian criminal justice system found that "strong improvements in the social status of judges and prosecutors in recent years have all but eliminated their dependence on executive bodies for housing and other basic needs and should help in reducing judicial corruption."

Russia's membership in the Council of Europe and participation in cases adjudicated by the European Court of Human Rights have resulted in some positive, though limited, effects on the Russian legal system. Russia joined the Council of Europe in 1996, and it ratified the European Convention on Human Rights and Fundamental Freedoms, which grants Russian citizens the right to file complaints against Russia in the ECtHR after exhausting their options for redress in domestic courts. Most complaints have centered on either the widespread failure to execute court decisions in civil cases or to honor the due process rights of defendants in criminal cases. The number of ECtHR judgments in which Russia was a defendant rose from two in 2002 to over 700 in May 2009. In the spring 2009 issue of Demokratizatsiya, Alexei Trochev found that "Russian judges increasingly refer to the jurisprudence of the ECtHR despite Russia's losses in the Strasbourg court, the insistence of Russia's leaders that ECtHR decisions are 'politicized', and the resistance among certain circles in the legal academy to recognizing the binding force of ECtHR judgments on Russia's courts."

In the end, however, Putin's commitment to legal reform was limited, and problems in the justice system remained widespread. He first and foremost served the interests of his fellow siloviki (officials in law-enforcement agencies and the military), and, predictably, did not reform conservative law-enforcement agencies. As a result, corruption became even more entrenched during his presidency, to a point where it was undermining further economic development and deterring many foreign businesspeople from investing in Russia. It should be no surprise, then, to learn that Transparency International ranked Russia 147th out of 180 countries in its 2008 Corruption Perception Index.

The conviction of Yukos Oil owner Mikhail Khodorkovsky in 2005 on charges of fraud and tax evasion signaled that the Putin regime was willing to use the justice system as an instrument for undermining its critics, especially potential political rivals like Khodorkovsky. Some Kremlin critics ended up dead, including journalists Anna Politkovskaya and Paul Khlebnikov, as well as former KGB officer Alexander Litvinenko. A select number of regime critics like Roman Nikolaichik were incarcerated in psychiatric wards, and law-enforcement officials regularly harassed and sometimes arrested defense attorneys and breached attorney-client confidentiality in high-profile criminal cases. While Putin waged a second war in Chechnya, Russian forces tortured and murdered Chechen civilians with impunity. Inside the courts, "telephone law" (whereby public officials lean on judges to rule in their favor in politically-sensitive cases) was still sometimes practiced, along with the arbitrary interference of court chairpersons in judicial decisions. In terms of civil cases, state agencies and courts often failed to execute rulings and to defend property rights.

Developments Under Medvedev

One year into Medvedev's presidency, the signs of a new push for legal reform are mixed. Some recent developments appear to signal change, particularly in light of the fact that Medvedev has publicly expressed his opposition to Putin's stance on certain policies (i.e., Russia's application for WTO membership). The signs of legal reform include the release on parole of former Yukos Oil attorney Svetlana Bakhmina, a Russian arbitrazh court's dismissal of the majority of claims filed by the Federal Tax Service against the British Council, and the dismissal of a corrupt judge. In terms of state-society relations, this July Medvedev approved amendments to a controversial 2006 law that had strengthened state regulation of nongovernmental organizations (NGOs). The amendments are meant to ease several restrictions and are generally viewed as a positive development for civil society.

Other developments are more ambiguous. For instance, Medvedev supports a change to the rules for selecting the chair of the Russian Constitutional Court that would allow him to nominate, and the Federation Council to appoint the chair — who is presently elected by the Court's justices themselves. The Federation Council is the upper house of Russia's parliament, and the president indirectly appoints half of its members. Critics of this move say that it is meant to strengthen the so-called executive power vertical, while supporters claim that the change will not compromise judicial independence.

In addition, several recent developments strongly call into question President Medvedev's professed commitment to end legal nihilism. These include incidents and trends outlined in the aforementioned Council of Europe report, including the murder of human-rights lawyer Stanislav Markelov and journalist Anastasia Baburova on a Moscow street in January. The report argues that "Court chairpersons have disproportionate power over individual judges, in particular because of their power to decide on the distribution of cases. Legal protection for judges resisting such pressures is very limited, as the judges' councils have not yet developed sufficient independence and standing." Similarly, an Amnesty International report about widespread human rights abuses in the North Caucasus, especially in Chechnya, finds that law enforcement officials "conduct counter-terrorism measures which, in many instances, entail serious human rights violations…There has been an almost total failure of political will to uphold the rule of law and address impunity for present and past abuses of human rights in the region." On July 15, Natalia Estemirova, an esteemed human-rights activist in Chechnya, was found murdered. To his credit, Medvedev quickly condemned her murder and praised Estemirova for her work with the NGO Memorial. But Russian human-rights activists insist that his words will not suffice and that Estemirova's killers will likely remain at large.

Other developments suggest the further politicizing of the legal system. For instance, as William Pomeranz argues in the spring 2009 issue of Demokratizatsiya, Medvedev appears to be looking for more legislative ways to bolster the power vertical, possibly by reinforcing the dominance of Putin's party of power, Unified Russia, in regional legislatures. In January, Medvedev approved legal amendments that ended jury trials in cases involving terrorism, treason, and other politically-sensitive charges. Also this year, the state launched a second criminal case against Khodorkovsky.

Even if Medvedev is sincere about promoting rule of law, he faces considerable barriers. Conservative factions in the Kremlin reportedly continue to dominate decision making and obstruct legal reform, which would involve transforming a corrupt system that has well served their political and economic interests. Besides conflicts among political clans, the chief obstacles are entrenched interests in the law-enforcement agencies and the powerful Procuracy, which supervises criminal investigations and prosecutes criminal cases. Even many judges are former law-enforcement officials and thus more prone to accusatory bias. In general, as Trochev's research shows, judges face a host of internal and external pressures that prevent them from applying measures in the European Human Rights Convention.

In addition, as demonstrated by widespread banditry in the North Caucasus, adherence to federal law is not universal. According to the 1993 Russian Constitution, federal law takes precedence over regional law, but in reality this measure is not yet observed in all 83 regions of the Russian Federation. It is also important to note that, while on the one hand, the Kremlin strives to centralize power in Moscow, it has, on the other, turned a blind eye to illegality in some regions. For example, human-rights activists have attributed Estemirova's murder to Chechen President Ramzan Kadyrov, a corrupt warlord whom President Putin appointed in 2007. Estemirova herself reported that the Kremlin "gave a green light to the special service and local militia to do as they please here, on the condition that they provide Chechnya's absolute loyalty to Russia."

Long-Term Prospects for Legal Reform

Medvedev and Putin are more likely to support legal reforms over which they have a semblance of vertical control, including as primary drafters of legislation and as the overseers of a new television channel called Law TV, than those proposed by, say, independent human rights NGOs with ties to Western groups. Russia's leaders tolerate autonomous NGO activity so long as they feel sure that it does not threaten the regime's legitimacy or the power bases of key political and economic elites.

Certain reforms may stand a better chance of being implemented if they correspond to Russia's obligations under international legal conventions, especially those embedded in intergovernmental organizations that are important to Russia's international prestige. Legal reforms may also be internalized if Russia's leaders perceive that doing so will result in more foreign direct investment, which is crucial to diversifying Russia's economy. According to Valery Zorkin, the chair of Russia's Constitutional Court, "Flagrant nihilism in regard to international legal values becomes too costly during the solution of any serious problem, be it privatization, or regulation of the securities market." Unfortunately, Russia's commitment to international law was severely compromised after its invasion of Georgia last August.

The good news is that Russia has a core group of dedicated legal reformers (academics and practicing lawyers), in addition to a dwindling number of courageous human-rights activists and investigative journalists who document the state's corrupt practices and human-rights abuses. Russian legal reformers already have strong blueprints for change that build on the Concept of Judicial Reform of 1991, the 1993 Russian Constitution, and other key documents. Take, for instance, the report "The World Rule of Law Movement and Russian Legal Reform," which was published in 2007 by the Moscow City Chamber of Advocates in cooperation with leaders of the International Bar Association and other foreign legal experts. It contains several articles outlining well-designed ways to promote legal reform. The authors stress that, for legal reform to take hold, Russian legal education must improve, especially in regards to training judges and lawyers, teaching legal ethics, and keeping abreast of Russia's obligations under international law and frequent revisions to its own domestic laws.

The major obstacles to legal reform can be chiefly attributed to attitudinal factors, specifically, a lack of political will among law-enforcement officials and the Kremlin itself, rather than a lack of viable blueprints for change. If Medvedev is attempting to break free of Putin's dominance and transform Russian society along more democratic lines, now is the time for him to capitalize on whatever good will is left among legal reformers and other liberals.

Recent accounts, including a piece in the New York Times, suggest that "there are signs of a growing demand for civic discourse," especially as Russians see that the regime has further limited their freedom of speech and assembly and has dealt irresponsibly with the economic recession and long-standing demographic problems in Russia. If any good can come from Estemirova's murder, it might very well be that it will jolt average Russians into demanding that their leaders finally get serious about legal reform.


Pamela A. Jordan is associate professor of history at the University of Saskatchewan, Saskatoon, Canada. She is the author of Defending Rights in Russia: Lawyers, the State, and Legal Reform in the Post-Soviet Era (University of British Columbia Press, 2005).
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