Russia in Search of an Independent Judiciary
The 150-year anniversary of Alexander II's 1864 initiative to establish an independent court system in the Russian Empire will take place in 2014. At a 3 December 2010 Kennan Institute discussion, panelists examined both the advancements and the continued struggles to establish an independent judicial system in the Russian Federation.
Peter Maggs, Professor of Law, Clifford M. and Bette A. Carnet Chair in Law, University of Illinois, Urbana-Champaign, provided contextual background with an overview of the Russia's current court system. Richard Sakwa, Professor of Russian and European Politics at the University of Kent, explained his understanding of the theoretical conception of the nature of the Russian legal system. Sakwa depicted Russia as a state torn between extant and "perfectly adequate" instruments of constitutionalism, and the "shadowy world" of the arbitrary state which undermines genuine constitutionalism. Sakwa bolstered his argument using the "ToAZ" and "Evroset'" cases as examples of decisions based on this duality, involving external political influence but also the ability of courts in certain circumstances to deliver impartial justice. Sakwa further noted that the government's general willingness to follow the decisions of the European Commission on Human Rights (ECtHR) served as a positive sign.
Maggs noted, however, that Sakwa's point of view was qualified by the possibility of the Kremlin's continued influence over the courts of general jurisdiction and the constitutional court. Maggs further suggested that there are limits to Russia's willingness to comply with the decisions of the ECtHR.
Vadim Klyuvgant, lead defense attorney for Mikhail Khodorkovsky, emphasized a common underlying theme: the Russian state's problem is not merely found in its judiciary, but rather in the state's legal context at large, and argued that the law has been "crushed." Further, Klyuvgant questioned the image of Russian President Dmitry Medvedev as a reformer, as the president appears to support a constitutional court chairman who is critical of the ECtHR. The corruption of the Russian system was exemplified through the trial of Mikhail Khodorkovsky, which Klyuvgant described not as a substantive legal case, but as a body of fiction, and stressed that the only possible legal outcome was Khodorkovsky's acquittal.
Building on the previous discussion, Susan Glasser, Editor in Chief, Foreign Policy, analyzed Khodorkovsky's trial from an international perspective, asserting that the political implications of the Khodorkovsky case are overgeneralized both by the media as well as by politicians. Due to economic and political interests, foreign political actors seem to avoid putting too much pressure on Russia on Khodorkovsky's behalf. Glasser extrapolated on the nature of Khodorkovsky as a businessman-turned-activist in terms of his ability to cultivate a public relations campaign around his trial to his advantage. She added that Khodorkovsky speaks more eloquently on topics of justice and corruption than the Russian politicians who oppose his cause.
The effects of Khodorkovsky's current and future political activism on the Russian state and its judiciary cannot yet be adequately estimated. The discussion concluded that, while Khodorkovsky does not plan to become a politician, it seemed likely that he expected to continue his work as an activist. Considering the circumstantial problems surrounding Khodorkovsky's trial, one participant questioned whether it was too simplistic to expect the development of a more independent judiciary in Russia; indeed, the problems of Russia's wider political context remain to be resolved.
By Patrick Lang
Blair Ruble, Director, Kennan Institute