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glasnost in reverse?

Michael Newcity and Peter Maggs debate.

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In September, following a spate of terrorist attacks, Russian President Vladimir Putin announced a series of measures designed to protect his country. Chief among these changes, future regional governors will be appointed by the president, not elected by citizens. Putin's move drew criticism worldwide, as one more example of Russia's government corruption and weak commitment to civil rights.

Still, in the 15 years since the fall of the USSR (and the five that Putin has held the presidency), life in Russia has improved rapidly compared to in its neighbors. More homes have running water and telephones than ever before and the country has held several national elections with numerous political parties registered to participate. Legal institutions at the local level have also been improved, with legitimate courts and juries trying cases that would have been left to government apparatchiks two decades ago.

Are the achievements enough to indicate that the rule of law in Russia is not in peril, as many have said?

Michael Newcity Michael Newcity is deputy director of the Center for Slavic, Eurasian, and East European Studies at Duke University. He is the author of numerous books and articles on various aspects of the Russian legal system. Peter Maggs is Professor of Law and holds the Carney Chair in Law at the University of Illiniois. He is the author of numerous books and articles on Soviet, and more recently, Russian law.

Newcity: 10/4/04, 10:54 AM
Since the days of perestroika, there has been considerable hope that Russia was in the process of overcoming its autocratic traditions and building a democratic, constitutional state based on the rule of law. When the Russia of today is compared with the Soviet Union prior to 1985, much progress has unquestionably been made. A Constitutional Court has been established, for example, and Russia has joined the Council of Europe, which subjects it to the jurisdiction of the European Court of Human Rights.

However, since Vladimir Putin became president of Russia on New Year's Eve 1999, the cause of establishing the rule of law in Russia has not been advanced; just the opposite. Putin has sought to consolidate and re-centralize power in the executive branch and the struggle to establish a constitutional democracy including an independent judiciary has suffered as a result.

In the aftermath of the terrorist carnage at Beslan, Putin announced plans to restructure Russian regional and national governments. He proposed changing the method of selecting governors of the 89 regions in the Russian Federation. These officials are currently selected by direct popular election. Putin has proposed that they be nominated by the Russian president and elected by the regional legislatures. He has also proposed a change to the structure of the State Duma, the lower house of the national legislature. Half of the 450 members of the State Duma are now selected from party lists on the basis of proportional representation; the other half are selected from single-member legislative districts. Putin has proposed that all 450 members be selected on the basis of proportional representation.

Putin has justified these changes as necessary to "unite the country against terrorism." Their effect will be to significantly increase the power of the Russian president and erode Russia's fragile democracy. Granting the president power to select regional governors will reduce independent and opposition influence in the regions and, by selecting all members of the State Duma on the basis of party affiliation, the number of independent and opposition members of the legislature will be further reduced.

Since taking office Putin has consistently sought to strengthen his power at the expense of other power centers. One of his first initiatives after he became president was to reassert federal authority over the regional governments; replacing elected governors with appointed ones has been under discussion since 1999. Putin has also intimidated the independent media, forcing the closure or governmental take-over of some of the most outspoken independent media outlets. His prosecution of politically obstreperous business "oligarchs" like Gusinsky, Berezovsky, and Khodorkovsky reflects Putin's policy of cowing those businessmen who fall out of step with the government's policies and plans.

Most recently, the government has sponsored legislation, already approved by the upper house of the national legislature, which would further compromise the Russian judiciary by granting the government greater authority over the hiring and firing of judges. Russian courts, which already show undue deference to government policies, would be brought further under the thumb of Putin's government.

Whether these changes will help Russia fight terrorism is unclear. What is clear is that their net effect will be to strengthen the centralized power of the president at the expense of constitutional, democratic institutions.

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Maggs: 10/5/04, 07:29 AM
When President Vladimir Putin took office at the end of 1999, he faced a number of serious problems inherited from the Yeltsin administration. Corruption was rampant from the villages to the Kremlin palaces (remodeling funds for which were reportedly diverted to Swiss banks). Some regional governors rigged elections and consorted with organized crime. Violence was flaring in Chechnya. Law reform was incomplete.

During his administration, Putin has signed an impressive amount of reform legislation. New laws for the transition to a market economy included a labor code, a revised tax code replacing poorly enforced high taxes with better enforced much lower taxes, new civil procedure codes furthering the adversary system, a new land code legalizing private land ownership, and
important additions to the civil code. In the area of civil rights, he signed a new Criminal Procedure Code that put the defense on a more even footing with the prosecution and guaranteed a jury trial in serious criminal cases. He vetoed legislation that would have restricted freedom of the press. Russia took with good grace its loss of the first case brought against in in the European Court of Human Rights and complied with the
Court's ruling.

At the same time there have been negative developments. Putin did not protest when businesses controlled by or friendly to the government took over the major television networks nor when these networks cancelled the programs that had taken the most independent views of the political scene. But he did not attempt to impose controls on the print media or the
Internet. The result is that the elite have access to a variety of viewpoints while the masses see only the government line. His troops have been unable to protect the inhabitants of Chechnya against the rebels and corrupt local officials and the troops themselves have engaged in massive human rights violations. Putin has not objected to the selective prosecution of the Russian oligarchs, the robber barons who stole much of the country's wealth in the 1990s. Those oligarchs who were active in politics against Putin have fled the country or found themselves facing criminal charges. The others have, so far, managed to keep their ill-gotten gains.

Last month Putin proposed that governors of the Russian regions be appointed and that the lower house of the Russian Parliament be elected entirely on party slates. These are proposals, not yet law. A country can be democratic, yet have governors appointed by the President. Article 155 of the Constitution of India provides, "The Governor of a State shall be appointedby the President . . ." However, such a country is only democratic if the President is democratically elected. Thus, in my opinion, the threat to democracy is not the proposed appointment of governors, but rather the fact that the person who would be appointing them was reelected without the possibility for vigorous television debate during the campaign.

Newcity: 10/5/04, 11:04 AM
Any discussion of reform in Russia inevitably becomes a consideration of whether the glass is half full or half empty. Russia has made some impressive strides in reforming its legal system since the fall of the Soviet Union, but under Putin this particular glass seems less full now than it did before he became president.

The problem of corruption in Russia is endemic and corrosive. It may be the most important issue facing the Russian government. In his speech to the nation following the Beslan attack, President Putin stated that "[w]e allowed corruption to affect the judiciary and law enforcement systems." Many of the recent terrorist attacks in Russia have been facilitated by corrupt officials: bribed airline workers permitting terrorists to board flights, bribed officials looking the other way when armed terrorists are on the move. Putin's answer to the problems of terrorism and corruption is to tighten centralized political authority.

On some level, it is hard to be especially critical of Putin. After 9/11 the U.S. government reacted in much the same way. It is interesting to note that much of the rhetoric and substance coming out of the Kremlin since Beslan has paralleled Bush Administration rhetoric and policies after 9/11. Also, Putin did inherit a chaotic economic system dominated by freebooting oligarchs and regional governments that were often treated as personal satrapies by their governors. Replacing governors selected in corrupt elections with governors appointed by the president may not be an awful change.

My greatest fear, however, is that the changes that Putin makes (i.e., that his government proposes and his dominant parliamentary majority adopts) will further diminish the chances of introducing the rule of law in Russia. To date, Putin has shown himself to be no friend of constitutional government and the rule of law. He became president pursuant to a backroom deal with Boris Yeltsin, which while strictly speaking was in accordance with the Russian constitution could hardly be considered a normal constitutional transition. Yeltsin resigned on New Year's Eve and Putin succeeded as acting president in return for a promise not to prosecute Yeltsin or his family for corruption. Since then, Putin and his government have shown no compunctions about interfering in judicial matters, undermining property rights, and muzzling the media when it suits the government's purposes and policies. So when Putin complains about judicial corruption in the aftermath of Beslan, I have the sneaking suspicion that his concern is less that judges can be influenced than that they can be influenced by forces other than his government.

Maggs: 10/5/04, 03:54 PM
President Putin indeed took office through a deal that freed Yeltsin and his family from prosecution for corruption. But we should remember that it is not that long since Richard Nixon gave the presidency to Gerald Ford and then received a pardon from Ford. Putin then took advantage of biased media coverage to win two presidential elections that he could have won anyway, though with lower margins, even if the candidates could have campaigned on equal terms. Clearly Russia has not completely escaped from the Soviet tradition of rigged "elections."

Putin suggested, in the aftermath of the Beslan massacre, "that regional leaders should be elected by regional parliaments on the basis of nominees provided by the head of the federal government, in the interest of unifying state power and further developing federalism." However, the idea of radically changing the Federal system was not new. Throughout Russian and Soviet history and during the early Yeltsin years, heads of regions were appointed. Putin had already tried (ineffectively!) to control the regions by grouping the regions in seven larger districts, each under a Federal envoy. Threatening criminal prosecution against regional governors who were simultaneously corrupt and politically uncooperative has brought some results. Sophisticated Russian commentators have made it clear that that the proposed change to centrally-nominated governors was already in the air before Beslan. Nobody in Russia believes it is an anti-terrorism measure. While polls show the public is against the proposal, only a handful of governors have complained. The proposal would end present term limits and would free governors from having to earn re-election. As one Russian observer said, "it is much easier to lick one boot than to clean 400,000."

A key test of the checks and balances that reformers have attempted to build into the post-Communist system will come when the Russian Constitutional Court is asked to consider the difficult Constitutional question of the legality of any new law changing the system of selecting regional governors. Will the Court approve the change? Will it disapprove the change? Will there be dissents? If Putin loses, will his reaction be like that of Yeltsin, who first suspended the Court and then increased its size so as to pack it with his own people?

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Newcity: 10/6/04, 12:00 PM
As I have argued and Peter has acknowledged, Vladimir Putin's track record on furthering democratic, constitutional government in Russia is spotty. The reason why it was so disappointing that he and Boris Yeltsin struck their back room deal for Putin to take office is that this was an opportunity for Russia to accomplish something that in a thousand years it has never previously accomplished­: a normal, constitutional transition of power.

Peter has also acknowledged that Putin has been attempting to bring the regional governments to heel under central (viz., his) authority since he first took office, which puts the lie to the notion that his most recent proposed change to eliminate direct election of governors is motivated by the war on terrorism. And the reason why few of the governors oppose the change is that they want to keep their jobs, which means currying favor with Putin.

Since Peter and I seem to be in substantial agreement on the anti-democratic and anti-constitutional tone and substance of Putin's changes, perhaps we should consider another important related issue: the failure of the Putin administration to respect the rule of law. While in the aftermath of Beslan, Putin complained about judicial corruption, interference in the decision making of the courts has been a regular occurrence under Putin. Peter cites the new criminal code and the widespread use of jury trials as evidence of successful legal reform. However, Russian law permits prosecutors to appeal acquittals and they have done so frequently. Media reports suggest that the Russian Supreme Court overturns approximately half of the jury acquittals it hears on appeal. The most notorious such case involved V. V. Danilov, a physicist charged and acquitted of espionage for selling unclassified information, who will now undergo a new trial.

Recently, a judge in the Moscow City Court stated publicly that governmental interference in Russian, especially Moscow, courts indicates a return to the "telephone justice"?when a judge receives a phone call from a government official dictating the outcome of the case?familiar from the Soviet era.

Governmental interference in the operation of courts is not very subtle. Peter and I are both involved as expert witnesses on opposite sides of a case in which a U.S. federal district court judge refused to follow a decision of the highest Russian court because, in his view, it was "animated by coordinated efforts on the part of the Russian government...[to recapture] for the state property rights that were acquired nearly a decade earlier by an American investor."

These developments in Russia certainly bring to mind the old Beatles song "Back in the USSR."

Maggs: 10/6/04, 10:18 PM
A major flaw in Soviet justice in the 1970s and 1980s was the virtual absence of acquittals. Now, juries frequently acquit. And prosecutors, fearing acquittals, refrain from bringing weak cases in situations where defendants have a right to jury trial. It is true that appeals from acquittals are possible more broadly under Russian procedure. This is to some extent because the prosecution lacks the possibility for various interlocutory appeals available under United States law. 18 U.S.C. § 3731 provides:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment.

States are also free to allow appeals in criminal cases within the limits provided by the Constitution, as in Arizona v. Manypenny (1981). Thus a state, for instance, could allow interlocutory appeal of a decision to admit evidence favorable to defendant, which was the basis for the reversal in the Danilov case. Incidentally, with respect to the Danilov case, the definition of espionage in Russian criminal law (as in United State criminal law) is not limited to revealing classified information.

This forum is not the place to argue the case in which Michael and I are expert witnesses. I might note, however, that Putin's procedural reforms have limited the prior procedural rules under which ex parte in camera personal approaches by parties to judges were not only permitted but were the normal way of seeking higher court review.

Attempts by local officials to influence courts are indeed a problem. Failure of the courts to rein in local officials is one of the reasons that has led Putin to seek other methods to compel such officials to obey the law.

Debate continues in Russia over Putin's proposal to nominate governors. Yesterday, the Speaker of the Russian Duma indicated that the Duma would modify the proposal to increase the power of regional legislatures, while the head of the Federal Election Commission argued that any move away from popular elections should be only for a limited time.

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Newcity: 10/7/04, 11:39 AM
In his previous posting, Peter sought to excuse the willingness of the Russian appellate courts to reverse jury acquittals of criminal defendants and remand them for retrial. He argued that this may occur in part because Russian prosecutors are not able to file interlocutory appeals as readily as their American counterparts. I, on the other hand, and many Russian commentators believe it occurs simply because the prosecutors are dissatisfied with the results. They are used to the previous system under which prosecutors were able to prosecute and re-prosecute defendants until they got the verdict they wanted. Moreover, in the Danilov case it is especially significant that it was an espionage prosecution brought by the Federal Security Service, the successor to the KGB.

The reason why the Anglo-American system of jurisprudence prohibits double jeopardy-prosecuting someone for the same offense for which they have already been acquitted-is the deeply held notion, expressed by the U.S. Supreme Court, "that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.''

The Russian criminal law system had been roundly criticized for its failure to limit double jeopardy. A provision of the Russian Criminal Procedure Code that went into effect in 2002 attempted to impose such a limit by permitting retrying an acquitted defendant only in limited circumstances when the trial court had committed serious procedural mistakes. The Russian appellate courts have been willing to interpret these circumstances very broadly and have overturned approximately half of the acquittals that have been appealed since the new Criminal Procedure Code took effect.

Both Peter and I would agree that the Russian government has taken important steps in attempting to reform its legal system and make it more acceptable to the Council of Europe and other international organizations and trading partners. Where we disagree most strongly, I suspect, is in our assessment of how successful the Russian government has been in introducing the rule of law. I look at the evidence and it convinces me that corruption in the Russian courts is a significant problem. In particular, in cases where the government has an interest at stake (espionage prosecution, dispute over privatized property, etc.), it is more than willing to pressure or manipulate the courts to produce the desired result.

All of this reflects a desire on the part of the Putin government to make sure that all government organs, including independently-elected governors and courts that are supposed to be independent, pursue the policies he lays down. (I came close to saying "follow the Party line.")

Maggs: 10/7/04, 05:14 PM
Consider the issue of double jeopardy. One of the most difficult challenges in evaluating the Russian legal system to distinguish what is peculiarly Russian from what is typical of the Western European legal family to which Russia belongs. The European Convention on Human Rights has only an optional provision against double jeopardy. Even this provision is worded so as to permit prosecution appeals and, like Russia, most European countries allow these appeals. The United Kingdom (which is not even a party to the optional provision) passed legislation in 2003 broadening the possibilities for prosecution appeals and allowing a new prosecution on the basis of "new and compelling" evidence even after a final acquittal. This is not to say that I think that prosecution appeals of acquittals are a good idea. But, given the great strides Russia has made in improving criminal procedure, it is harsh to hold it to a standard that European democracies fail to meet.

By allowing jury trials, however imperfect, Russia has moved ahead of the many European democracies that do not allow such trials at all. Particularly given the sad history in the Communist period of the prosecution pressuring judges to convict and of criminals bribing of judges to be lenient, jury trials offer protection both for the defendants (against pressure to convict) and for the public (against criminals who would bribe their way free). Russia has recently adopted a witness protection statute to prevent organized crime from intimidating witnesses.

Following in the footsteps of many European countries, a Russian Constitutional Court decision several years ago barred the death penalty. At that time jury trials were available in only a few regions of Russia. The Court held that allowing some defendants in capital cases to have juries and denying juries to others violated equal protection. Now that juries are available throughout Russia, this decision would seem irrelevant, but so far Putin has refrained from introducing legislation that would reinstate the death penalties, despite polls that show the public overwhelmingly in favor of capital punishment for criminals like those who seized the school in Beslan. It is encouraging that he is willing accept some unpopularity in Russia in return for respect in Europe.

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Newcity: 10/8/04, 11:17 AM
This debate has confirmed my comment in Tuesday's posting that discussions of reform in Russia will always become an argument about whether the glass is half full or half empty.

Peter has focused on the institutional changes that have been introduced and argues that what Russia permits in areas like double jeopardy, jury trial, and capital punishmentis consistent with (even typical of) Western European legal systems. But he concentrates on the features of these institutions as they appear on paper and glosses over how they operate in reality.

The concern I have expressed throughout this debate is that Vladimir Putin and his government have shown a consistent and disturbing desire to re-centralize power (executive, legislative, and judicial) in Russia. Thus, he has proposed changes to the way in which regional governors and national legislators are elected that will further concentrate power in his hands. His government has prosecuted disagreeable oligarchs and taken over the independent media.

With respect to the judiciary, there has been a disquieting tendency for the government to exert improper influence on the decisions of Russian judges. Saying that the double jeopardy rules and procedures in Russia are similar to those in Western European countries is not the same as saying that those procedures are actually followed similarly. As I believe the Danilov case and other similar cases indicate, the Russian government and courts are willing to manipulate the procedures to secure the result that the Russian government desires. If this means overturning a jury acquittal on relatively minor procedural grounds, so be it.

Putin and his government have criticized judicial corruption, but time and time again, have shown disdain for the independence of the judiciary from governmental interference. I'm afraid that the demonstrated belief in the Putin government is that the courts are an agency of the government and are expected to follow and implement government policy.

The Russians have made great progress in introducing the institutions of constitutional democracy and the rule of law. But until Russia's leaders act as if they are subject to the law, those institutions will not achieve their potential.

To end on a hopeful note: Peter mentions the abolition of capital punishment in Russia. This occurred only because Russia joined the Council of Europe, which insists on the abolition of capital punishment as a condition of membership. Perhaps as Russia becomes more fully integrated into Europe, the deeper changes necessary to embed the rule of law in Russia will also occur.

Maggs: 10/8/04, 11:45 AM
I believe that Michael agrees that Russia's reforms have brought its laws concerning criminal procedure and individual rights on paper up to the level of the advanced democracies of Eastern Europe. As he points out, the key question now is the extent to which these laws will be applied in practice. By and large, the answer to this question is one of institution-building. Changing a criminal procedure code to correspond to European standards is a complex technical task, but one that can be accomplished in a relatively quick and straightforward manner. Creation of strong institutions that can enforce the laws as written is a much more difficult and perplexing task.

Russia has taken a number of steps to improve enforcement of the law. The production of lawyers has increased very substantially; public law schools have boosted enrollment and numerous private law schools have emerged. The pay of judges has been upped significantly and is due to be raised further. Steps have been taken to insulate lower court judges from influence by often-corrupt local officials. High-quality lawyers have been found to take seats on the Constitutional Court.

There are still two serious problems in the enforcement of court decisions. Despite reforms, the civil servants that enforce ordinary judicial decisions still have inadequate resources to do their work. Legislation has been passed that attempts to strengthen the enforcement of Constitutional Court decisions, but the Court at times appears powerless against strong local politicians, such as the Mayor of Moscow, who continues to defy Court decisions against his policy of restricting freedom of outsiders to exercise their constitutional right to move to Moscow.

Second are the allegations of corruption in the judiciary Michael discusses . Procedural code rules that made ex parte contacts with judges an integral part of the judicial process created, to American eyes, an appearance of potential corruption. I was always shocked, when visiting Russian courthouses, to see
signs proclaiming judges' office hours for ex parte contact with litigants. Luckily procedural reforms are moving away from this system. The Soviet history of Communist Party influence on the courts also created lingering public doubt. Thus it is not surprising that there have been numerous accusations of corruption of the judicial system. Unfortunately, Russian authorities (in line with the European aversion to "sting" operations) have failed to organize anything like the famous "Operation Greylord" of the 1980s, which made clear the nature and extent of corruption among judges in Chicago. Thus it is very hard to know the extent to which charges of corruption and influence are true.

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