The suspended sentence handed down to the anticorruption crusader Alexei Navalny has once again placed an unflattering spotlight on Russia’s legal system. Navalny himself recognized that the verdict was not a result of the judge’s private deliberations but a gesture of lenience mandated from above.
Not surprisingly, most critiques of the rule of law in Russia today invariably start off with the need to strengthen the independence of the judiciary. Pockets of judicial autonomy can still be found if one digs deep enough into the judicial record. With a strategy of gradualism, not confrontation, however, the Russian judiciary continues to try to balance its authority against that of an over-reaching Russian state. Yet even such a measured approach may be too much for President Vladimir Putin, who is busy creating a judicial vertical to go along with his power vertical.
The Constitutional Court Has its Say
The search for judicial independence begins with Russia’s most prominent tribunal, the Constitutional Court. Its recent decision, overturning the total ban on ex-convicts from seeking political office, demonstrated a streak of independence that is noticeably lacking in most Russian state institutions today. This sanction was only introduced a year ago, primarily to prevent such luminaries as Navalny and Mikhail Khodorkovksy from participating in future elections. The Constitutional Court found, however, that such a ban could only apply to prisoners serving life sentences. In all other instances, it was unconstitutional to impose a lifetime prohibition on a citizen’s right to participate in politics.
Notably, the prisoner’s rights decision marks the third Constitutional Court determination over the past year that has gone against the Kremlin and its attempts to crack down on the political opposition. In April 2013, the Constitutional Court ruled that individual citizens had the right to appeal the counting of the votes in their specific precinct. Prior to this decision, Russian courts only granted political parties the right to protest the tabulation of votes, in the belief that a citizen’s right to participate in elections essentially ended at the time a ballot was cast.
In June 2013, the Constitutional Court determined that several recent amendments to the law on demonstrations were unconstitutional, including the excessive administrative fines and the increased legal responsibility for protest organizers for any public harm that resulted from a meeting. Three Constitutional Court judges filed dissenting special opinions, objecting not only to the law itself but also the legislative process that approved the amendments.
The Constitutional Court remains a very pragmatic institution, one that generally seeks a middle ground and avoids direct confrontations with executive power and President Putin. Thus, while the above decisions went against the Russian state, they did not necessarily impinge on Putin’s overall authority. Moreover, on a practical level, Navalny and Khodorkovsky still face major legal obstacles if they actually want to pursue political careers as former convicted felons, and the Duma is working on new restrictions in light of the Constitutional Court’s decision.
Nevertheless, while working within certain political parameters (as all courts do), the Constitutional Court has not shied away from interpreting certain fundamental civil and social rights to the disadvantage of the Russian state. Russian scholars also have begun to monitor the direct application of these constitutional norms throughout the legal system. Although the struggle to implement these rights remains ongoing (and undoubtedly requires a new political mindset), they are not dead letters, as was the case during the Soviet period.
Creating a Judicial Vertical
Yet every advance in the rule of law in Russia invariably seems to be accompanied by some retreat, and the issue of judicial independence is no exception. Like other civil law countries, Russia’s judicial branch consists of several specialized courts: a constitutional court, the courts of general jurisdiction for criminal and civil actions, and a commercial court that deals with business-related controversies and disputes between enterprises and the state. In a carefully calculated remark in June 2013, President Putin proposed to merge the general and commercial courts under a single supreme court, in essence abolishing the independent corporate structures of the commercial courts.
The consequences of such a union cannot be underestimated. The Russian commercial courts have spearheaded several critical legal innovations over the past twenty years. The commercial courts publish all their decisions—and ex parte communications—online in order to promote greater transparency in judicial decision making. Moreover, the commercial courts have asserted the right of judicial precedent as a means to promote greater consistency in the interpretation of Russian law.
But perhaps most importantly, commercial court judges have proven to be much more willing to rule against the Russian government than their counterparts in the courts of general jurisdiction. For example, the Ministry of Internal Affairs loses approximately 20 percent of the cases that it initiates in the commercial courts. Russian authorities also have less than a 50/50 chance of winning tax-arrears cases and other tax-related matters in the commercial courts.
By contrast, the courts of general jurisdiction still have a 99 percent conviction rate in Russian criminal cases. And when a sympathetic judge needs to be found in any “politicized” case (Pussy Riot, Navalny, Bolotnaia Square), that judge can be found within the courts of general jurisdiction.
While many legal scholars and practitioners openly oppose the unification of these two courts, there is little chance of reversing this decision. President Putin has now submitted draft legislation that undoubtedly will be approved by the Duma and implemented through a constitutional amendment.
The Russian government provided minimum justification, however, for such a fundamental transformation of the Russian judiciary, arguing only that the need for uniformity of practice outweighed all other considerations. Speculation further abounds the Prime Minister Medvedev may find himself as head of this unified court, the anticipated soft landing to ease him out of day-to-day politics.
Yet the negative ramifications of such an action—on faith in the legal system and judicial independence—will be felt immediately by this pending merger. Seven high court commercial judges already have tendered their resignations—jurists who have devoted their careers to raising the standards of Russian business law—and major additional turnover is expected in the coming months in the ranks of commercial court judges.
Without this cadre of experienced justices—and minus the ability to defend its internal procedures and institutional structures—the reputation of the commercial courts inevitably will suffer. The most immediate victim will be Russian business community, which is already subject to excessive prosecution and now will lose one of its most important allies in reforming Russia’s judicial system.
Russia is fast approaching an important milestone—the twentieth anniversary of the Russian Constitution. Undoubtedly, the concept of judicial independence has changed over the past two decades. For all its problems, Russia has enjoyed a taste of judicial autonomy, where the courts have ruled against the state on constitutional and other legal grounds. Such a development was impossible to even contemplate during the Soviet Union, since no court was empowered to rule on the constitutionality of a given statute.
The commercial courts have represented the most progressive segment of the present-day Russian judiciary, and it was quietly hoped that the legal values advanced by the commercial courts—impartiality, transparency, autonomy—would eventually seep into the courts of general jurisdiction. That possibility now has been squashed. Instead, the least reformed and politically most compliant part of the Russian judiciary will assume complete administrative control over judicial practice—with the noted exception of constitutional law. The search for an independent judiciary will no doubt continue, but without one of its loudest, and most important voices.
Will Pomeranz is the acting director of the Kennan Institute for Advanced Russian Studies at the Wilson Center in Washington D.C.