"I give a faint-hearted endorsement to the effect of Putin's past eight years on the rule of law in Russia," said Jeffrey D. Kahn, assistant professor of law, Southern Methodist University at a 17 April 2008 Kennan Institute seminar. There are plenty of good laws on the books in Russia, according to Kahn, and Putin deserves credit for implementing important reforms and adhering to international legal obligations. "But there is not enough law with a capital L in Russia. There is not, for the most part, a legal culture."
Kahn focused on three "windows" of law under the Putin administration: the Second Chechen War, Russian membership in the Council of Europe, and Putin's efforts at legal codification—especially the new criminal procedure code. These three windows present different views of the state of Russian law. The first is bleak, the second hopeful, and the third ambivalent. In considering these themes, Kahn stressed that "although our standards for Russian law should be high, and our measures for whether the Russian government and society meets them rather inflexible, our expectations in the short run should be rather low."
When Vladimir Putin became prime minister, he was immediately confronted by renewed rebel activity in Chechnya as well as a series of bombings in Moscow and other Russian cities. Putin, with tremendous popular support, launched an immediate military campaign in Chechnya. Characterizing the war as a campaign on terrorism, Putin used the war to justify the centralization of executive power, according to Kahn. Putin's war substantially retarded the growth of a rule of law state. As the Russian military campaign in Chechnya continued, Kahn observed, "a certain callousness toward law spread north from the Caucasus as everything was covered in the sticky patina of fighting terrorism."
Yet as Putin expanded his power, Russia's membership in the Council of Europe proved to be a positive influence on the rule of law in Russia. Turning to this second "window" on Russia, Kahn stated: "I think that history will show the Council of Europe to have done more to advance the rule of law in Russia than any other single institution, political circumstance, or individual actor." In allowing Russia to join its club, the Council of Europe undertook the risk that Russian noncompliance with Council norms would undermine the institution's credibility. Another source of strain proved to be the caseload from Russia for the European Court of Human Rights—Russia accounts today for more than 20 percent of the Court's docket.
Yet Russia's acceptance of the jurisdiction of the Court has been so important to the rule of law that the risks are worthwhile, Kahn argued. Because the Court undertakes a close examination of Russian domestic law for compliance with the European Convention on Human Rights, which Russia has ratified, Kahn believes that "every judgment is a recipe for further reform." Kahn noted that while Russia loses case after case in the Court, the Court "commands the respect of the present Russian leadership." Russia's representatives to the Court abide by its rules, and the Russian state has paid every judgment against it, without exception.
Kahn's third "window" on legal reform was the adoption of a new criminal procedure code. "I think the most constructive reform of the Putin years…is the reform of the criminal justice system," Kahn declared. The reform was largely catalyzed by Russia's quest to join the Council of Europe, and resulted in important changes in Russia's criminal procedure. On paper, some aspects are an improvement on procedure in the United States, according to Kahn. For example, unlike in the United States, Russian police are not permitted to arrest individuals for offenses where incarceration is not a potential penalty. The power to detain individuals has shifted from prosecutors to judges, as well as the power to issue warrants to search homes or seize property. Greater protections for defendants and witnesses are written into the code, as well as the right to jury trials.
Kahn stressed that his description of the remarkable reforms in the Code reflect what is written rather than what is in practice on the ground. "There are still generations of police, prosecutors, judges, and defense lawyers trained under the old regime," Kahn cautioned. Yet while the older generations have resisted reforms, they are increasingly being displaced by a new cadre of younger professionals.
"How do we reconcile the positive effects of reforms in regular cases with the destructive effects of transparently political machinations in high-profile cases?" The short answer, Kahn answered, is we cannot. The state destroys respect for the rule of law by using law as a political tool to oppress its opponents. "But a more balanced answer takes into account that the new criminal procedure code makes it harder, although clearly not impossible, to conduct political trials," Kahn argued.