Peter H. Solomon Jr., Reform without End: Can Incremental Change Transform Russian Courts?

Talk to Workshop “Judicial Practice in Russia: Sociological Analysis”  Paris, 10 May 2012

This Workshop features a series of reports of fresh research into the nature of judges in Russia, their mindsets, their behaviour and the factors that shape it, especially in the administration of criminal justice. The research, conducted in Russia by young Russian scholars, is socio legal in nature and something all too rare in the post-Soviet world.

 In my presentation I aim to provide background and a framework for appreciating and assessing the meaning of this research. I will focus on judicial and criminal procedural reform over the past 20 years, on what it has achieved and not, and why.

 In the last decades of Soviet power, judges were dependent on both outside political figures and  their immediate superiors within the judiciary (chairs of courts and judges on higher courts). Rank and file judges needed the good will of both to continue in their jobs, to receive perks and benefits, and of course to be promoted. Judges were expected to respond positively to occasional requests about case outcomes and to fulfil general expectations about the processing of cases. This meant above all achieving the required results on quantitative indicators of efficiency and  the quality of judgments, most importantly having a low rate of reversal by higher courts (stabilnost prigovorov). In criminal matters judges were expected to avoid acquittals, a serious black mark since the late 1940s, which meant resorting to a number of substitutes. Avoiding acquittals was one dimension of what came to be known as “prosecutorial bias” (obvinitelnyi uklon).

Eliminating the dependency of individual judges and reducing accusatorial bias in the handling of suspects and accused were the most important goals of the reformers who wrote the Conception of Judicial Reform in 1991. But, sad to say,  twenty Years of Judicial Reform in the Russian Federation, including changes to the status of judges, the organization of the judicial community, and the criminal process itself, have failed to accomplish either goal.

The important question is why. As we shall see, there were at least three proximate causes:

1 Some of the reforms served different (though worthy) purposes, such as accommodating rising caseloads, modernizing the operations of courts, making them more accessible, and improving the accountability of judges.

 2 Reforms that might have helped make judges independent or the criminal process more fair were often undermined by informal practices.  This applies especially to the matters of security of tenure of judges and the adversarial trial.

 3 There was a failure in the reform process to deal with crucial obstacles to impartial conduct by judges, including the excessive power of chairmen of courts, the system of evaluating judges, and the relationship of judges to law enforcement officials.

  I will start by reviewing some highlights of the judicial and criminal procedural reform in post Soviet Russia. Then, I will consider how key reforms were undermined in practice (and attempts to respond to this problem). Finally, I will address core problems that need to be addressed so that Russian can move toward having independent judges and less bias in criminal procedure.

I.Post Soviet Judicial Reform falls into four main phases. The first phase, 1992-1996, saw a serious attempt to put into law key components of judicial independence and to empower the courts—and has been designated by one of the main players of the time Sergei Pashin in his new book Stanovlenie pravosudiia as “the romantic phase”. Security of tenure for judges was a key element in the effort to develop judicial independence, and it was to be provided the legislation of life appointments for federal judges (after a three year probationary term), with removal only for cause and by decision of their peers on the regional JQCs. The reformers also gained approval of the introduction on an experimental basis of trial by jury; and the extension of the jurisdiction of courts to include review of pretrial detention decisions by procurators (as well as of administrative acts).

The second phase of judicial reform, 1996-2000, helped the leaders of the judiciary to establish their collective autonomy (through the creation of the Judicial Department outside the Ministry of Justice) and to add to their capacity through the decision to create a whole new layer of the court system, the Justices of the Peace. As courts of the subjects of the Federation the JPs also gave the regions a piece of the court system, for which they had pushed for years.

The third phase, 2000-2003, was marked above all by a concern with the accountability of judges, leading to dilution of the JQCs (so that one third of their membership became non judges) and the weakening of the protection of judges from criminal and administrative responsibility. It also witnessed the start of a major infusion of funds into the courts, used during the past decade to pay justices of the peace, raise salaries of all judges, pay for computers, and support the addition of clerks or judicial assistants to the staff of courts (producing a new judicial reserve and a way to socialize prospective judges).

Also, in 2001 a new criminal procedure code was adopted aimed at making the system more adversarial and to a degree levelling the playing field between prosecution and defence. Building on earlier decisions of the Constitutional Court, the new Code eliminated a major substitute for acquittals, return to supplementary investigation at the end of the trial, and gave courts full responsibility for approving pretrial detention. Jury trials were also expanded to all parts of the country, and a form of plea bargaining given legislative authorization.

The fourth phase, 2004 to the present, added concern with transparency and accessibility of courts to their ongoing modernization and was marked by the development of court websites and the hiring of press secretaries at many courts. I would be pleased to talk about any of these reform initiatives later on, some of which I was involved with personally.

II.Among the reforms that looked fine on paper but that did not achieve their goals in practice were the mechanisms for ensuring security of tenure of judges and  for levelling the playing field between prosecution and defence in criminal procedure.

From 1993 new judges were appointed to a three year probationary term and then given life appointments. Removal from office remained possible as a form of discipline, but only after the Regional Judicial Qualification Commission decided that a judge had made a serious misstep. However, it turned out that in practice the commissions were under the control of the chair of the regional court, who in turn usually supported the requests of chairs of district courts to remove judges who displeased them (say by giving too many acquittals or having too many decisions changed in cassation or not following instructions). It was all too easy to find a pretext to use as grounds for removal, as was done in the cases of Pashin, Kudeshkina, and Melikov. To be sure, the decisions of the JQCs were subject to review by the Higher Qualification Commission and the Supreme Court, and they sometimes changed the outcome (e.g. Gudkova in 2008), but rank and file judges did and do not have a sense of security. In response to this problem a new Disciplinary tribunal was established in 2010 as the place of last resort for removal of judges, a body composed of three judges each from Supreme and High Arbitrazh courts, elected by their peers. In its first year it reversed one third of the decisions from the regional QCs. The Constitutional Court also ruled it unconstitutional to discipline judges for mere procedural errors, as had been done so often in the past. Moreover, in February 2012 the President endorsed the creation of judicial disciplinary colleges at the circuit level (above the regions) in the hope of attaining impartial reviews at the first hearings in cases of judicial discipline. In short, informed observers have given up on the regional qualifications commissions as hopelessly biased (despite the presence of one third non judges) and have rejected having the same bodies handling the selection and disciplining of judges.

The Criminal Procedure Code of 2001 was meant to reduce the prosecutorial bias that characterized late Soviet and early post Soviet criminal justice in Russia by making the trial adversarial and improving the situation of the accused. Thus, prosecutors would have to establish their cases through the oral examination of witnesses, and could not simply confirm evidence from the case file. Moreover, if the prosecution failed to make its case, the judge could no longer return the case for supplementary investigation, as had been possible from the early 1930s until a CC decision of 1999. Sad to say, these (and other seeming gains for the defense side) did not materialize in practice. One of the first changes introduced on behalf of the police involved situations where witnesses failed to deliver evidence at trial that they had given during the pretrial phase. Instead of requiring the consent of both sides in the case, the modified law required only one side, effectively giving the prosecution the chance to introduce such evidence. While return to supplementary investigation at the end of trials was eliminated, it remained possible for the judge to return a case to the procurator for a short time to fill in gaps in the evidence (and give the state a second chance), but only at the preliminary hearing, not at the end of the trial. In practice, this option was abused, and some cases came back to trial after months rather than a week or two as originally envisaged. Most striking was the fact that the elimination of dosledovanie, one the principal substitute for acquittals, did not led to a significant rise in rates of acquittal, which in cases prosecuted by the state remained well under 1%. (and even these acquittals were often reversed). There was a rise in cases stopped for rehabilitative reasons, a measure close to acquittal, but not by a lot. There was also, it appears, a rise in compromise decisions, a matter that Asmik will address later on.

Of course, trial by jury, used in a small number of serious cases, did produce a high rate of acquittal, causing special distress to investigators from the security police. However, in December 2008 serious crimes against state (terrorism spying, treason) were removed from the purview of juries.

III.The biggest shortcoming of judicial reform in the Russian Federation has been the failure to deal with the main obstacles to impartial and fair adjudication. The first of these is the excessive power of chairs of courts and the way that they are encouraged to exercise that power. The chairmen of courts in Russia are the bosses of their domains, responsible for managing their courts (including all of their support staff) and for ensuring that the judges meet expectations of superiors. The chairs are the key links in a hierarchical chain, and they are also part of informal horizontal networks in the districts and regions where their courts are located. Anyone seeking to influence a decision goes first and foremost to the chair of the court. For individual judges it is the chairs of their courts who control their destiny, not just on major matters like promotion or discipline but also the receipt of bonuses, ranks, vacations, apartments, and access to day care.

Part of the problem with chairs was that their appointments were without time limit, so other judges on the court had to come to terms with their biases and interests. In 2002 it was decided to limit chairs of courts to two six year terms, and with a grandfathering for time left in the current term, no chairs of courts have yet to be removed on rotation. At any event, even 12 years as a chair is way too long for its occupant to act merely as primus inter pares, and the anticipation of reappointment can lead to extra deference to powerful figures (like the chair of the next higher court). It would be better if chairs served for one term of three or four years, so that there could be frequent rotation and some judges on the court who had served as chair in the past.

A second obstacle to fair adjudication is the way judges are evaluated. The system of evaluating judges through formal statistical indicators of performance crystallized in the late 1930s with the centralization of the management of the courts, and it has lasted unchanged and unchallenged to the present day. In addition to encouraging efficiency and rapid processing of cases, the indicators emphasize the content of court decisions and privilege above all the rate of reversal (stabilnost prigovorov). Evaluation of the performance of trial court judges  on the basis of reversals encourages conformity to the needs and expectations of higher court judges rather than creativity, and even constrains judges from giving acquittals when appropriate (because acquittals are reversed by the higher instance nearly half of the time).

There is also the problem of incentives of judges on cassation panels, who are ready to reverse acquittals but loathe to change most convictions, if only because they or their courts may be held responsibility for the conduct of judges on the courts below (the practice of kuratorstvo). A particular challenge is posed by the coming shift in 2013 from cassation as the main form of review of sentences from trial courts to an appeals process in which there will be trial de novo and a new decision by the second instance court. If policy makers cared about a fair and unbiased appellate process, they would design it so that the judges on the appellate panels were in no way constrained from both reversing convictions and supporting acquittals from the courts below.

It is not necessary to use statistical indicators of performance to evaluate judges. AND it is not appropriate to base pay, bonuses, promotion or discipline upon formal evaluations. It is possible to follow the German and Austrian approaches and have judges on higher courts observe trials and read decisions of judges at lower courts as a basis for evaluation. Indeed, in Western Europe judges are expected to demonstrate their skills rather than decide cases as authorities require. As I have argued elsewhere, Russia needs to move away from the counterproductive model of bureaucratic accountability to a skills based model of professional accountability—something that happened in most of Western Europe decades ago. Russia needs to inculcate in its judges through judicial training a set of values about the purpose and craft of judging. It needs to reinforce and apply these values through critical discussions of published decisions of judges and through the activities of independent associations of judges or jurists more broadly.

Another third obstacle to impartial judging is the deference that judges pay to procurators and investigators. For the most part judges seem to regard themselves as contributors to the struggle against crime (as they were officially in Soviet times, when they were members of the same party cells are procurators) and at trial trust and value what procurators say more than the words of advocates. Formally procurators are no longer responsible for supervising legality in the courtroom, but no doubt some of them still feel that they can complain about a judge whom they see as giving any advantage to the accused. Judges may well have reason to be afraid of procurators. Of course, most judges who hear criminal cases spent a few years working in the procuracy or MVD, and this may predispose some of them toward law enforcement interests. Broadening the base of judicial recruitment to include more advocates has been supported even by former President Medvedev, but this has not happened, if only because the chairs of courts are the ultimate decision makers in the hiring of new judges, and those chairs prefer candidates whose conduct is predictable, including those who have already worked at the court..

There is also the matter of the incentives and motivations of investigators and procurators. Are investigators able to stop cases that they have already opened, without harming their indicators? Not easily. What can procurators do to stop weak cases from going to court? Not much anymore (as I understand it), because they have lost the power and responsibility for screening cases that are heading to court. And, according to Asmik and Olga, investigators are still deemed to have failed in their jobs each time an acquittal occurs, notwithstanding the evident decline in their qualifications and skills.

All of our discussion so far has related to factors that continue to produce an accusatorial bias and constrain judges from examining evidence critically and acquitting accused when standards for proving guilt have not been met. But if one cares about adversarialism and fairness in Russian criminal justice, one could not omit consideration of the real revolution in criminal procedure over the past decade, the embracing by advocates, investigators, procurators and judges alike of a form of plea bargaining, what is known as “special procedure of court hearings”.  Any person accused of a crime that brings less than ten years imprisonment (all but the most serious 5 percent) has the option of accepting the charges and agreeing to waive review of the evidence at trial in exchange for the exclusion of the top one third of the sentencing range. This election must be done with legal advice, the victim (if any) must accept the choice, and the judge must agree that the case file includes sufficient evidence to convict before he or she renders a verdict based upon a calculation of all relevant factors. As of 2010 more than sixty percent of accused chose special procedure! And if one adds a share of the nearly 18% of accused whose cases are resolved through reconciliation with the victim (and officially stopped for non rehabilitative reasons), then only one in four accused has a full trial that ends in a sentence. (There some overlap between use of special procedure and reconciliation).

Since hardly any of the accused would receive a sentence in the upper third, they must believe that they receive other benefits, such as early release from pretrial detention or a more lenient punishment than had they gone to trial. A brand new study by Kirill Titaev and colleagues argues that most accused do not get a more lenient sentence than had they gone to trial, especially one that controls for recidivism and the presence of pretrial detention, both of which turn out to be strong predictors of sentence. A minority of accused do seem to benefit, especially those who use special procedure for more serious crimes and those who reach an actual agreement with the investigator or procurator.

What matters to us the fairness of the implementation of special procedure of court hearings in practice. Is undue pressure placed on the accused by counsel and/or the investigators? Are accused persons frightened into waiving the full trial? Another question is how thorough is the review of the file by the judge; would a judge raise a red flag if the evidence looked weak? Another problem on the horizon lies in a proposed change to the Criminal Procedure Code that would allow investigators to simplify their work (put less material in the dossier) when special procedure is invoked. If this happens, will it make the review by the judge perfunctory?

Finally, there is the crucial matter of the mindsets of judges, the deeper answer to the question posted in Griboedov’s play Gore ot uma:  A sud’i kto?  Kirill and Olga will tell us more about the backgrounds and orientations of judges, but some of the basics are well known. As a group judges in Russia are not the most talented jurists; they tend not to be graduates of the best daytime law faculties. Nor, happily, are they products of the many new private law schools of dubious repute, but rather of traditional night and correspondence faculties and institutes. Through this education they tend to learn the letter of the law, but not necessarily about its spirit and not enough about legal reasoning and how to make good legal arguments. Even or especially young judges in Russia are attached to a formalistic and positivistic style of legal reasoning, and the majority do not have a broad understanding of law that includes rights and calls for judges to apply and interpret laws creatively. Do enough of them follow carefully the decisions of high appellate courts (for example the Constitutional Court) and appreciate the relevance of these decisions for their own caseload?

Were the Academy of Justice ever to fulfil its mandate and offer serious training to candidate (or newly appointed) judges, the design of its curriculum would represent a special opportunity to create a different kind of judge for Russia. But for such a judge to survive requires changes in the way judges are held accountable, including the desertion of much of traditional bureaucratic accountability and its replacement by the professional kind.

In short, while Russian courts are more modern, more efficient, and more accessible than twenty years ago, the administration of criminal justice retains its accusatorial bias and judges in criminal matters remain heavily constrained. Moreover, as we shall learn in the reports to come, the younger generation of judges shows no signs of improvement over the older one. Perhaps, even the reverse, as younger judges may be more attached to formal processing of papers and less concerned with justice in the moral sense of the word.

 I wonder whether this is as much the situation at the Justice of the Peace courts as in the district and regional ones. In theory, JPs are supposed to be accessible and to encourage reconciliation among the parties. On the other hand, they face much higher caseloads than their counterparts at the district courts. In addition, more of the JPs have backgrounds from outside the courts, such as work in government agencies or the advokatura. It would be interesting to compare these two sets of judges, in both mindset and behavior.


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