Vera Vasilieva, 12/03/12

Source: HRO.org

· The Courts  · Human rights defenders  · Moscow and Moscow Oblast

A round table event was held at the offices of Memorial in Moscow entitled: "Independent courts or the ‘Basmannoe’ system of justice? [Footnote 1) Prospects for creating a state governed by the rule of law in Russia". The event was held within the framework of the "Democracy in Russia" project organised by the Levada Analytical Centre and Memorial.

Questions discussed included: "What does the concept of an ‘independent court’ mean in practice?", "Does public demand for such courts exist in Russia and which groups might be capable of articulating such a demand?", "What are the main problems that Russian citizens encounter in the courts?", "What forms of public control over the judicial authorities are there?"

Amongst the specialists speaking at the round table were Tamara Morschakova, lawyer and former Judge at the Constitutional Court of the Russian Federation and Lev Gudkov, sociologist and Director of the Levada Centre. Chairing the meeting was Natalya Zorkaya - sociologist, Chief Research Fellow at the Levada Centre and the coordinator of the "Support for Judicial Reform" programme.

After talking about how the modern Russian judicial system came into being and its current most pressing problems, Tamara Morshchakova posed the question: "What should be the fundamental signal to society that demonstrates that a country has an independent system of justice?"

In the opinion of this former judge, this signal should be the predictability of the courts' decisions. Or to be more precise - the predictability of the legal resolution of conflicts in the courts:

"The courts are used to defend the rights and freedoms of any person from any walk of life. What the court does should be addressed to society and not to the authorities and in accordance with the fact that the right of every individual to justice and a fair trial is enshrined in the statutes of Russian and international law. Everybody has this right and what's more under no condition should this right be restricted. Nothing can justify the restriction of a person's rights to defend themselves in court. From the point of view of the Russian Constitution this right is absolute.

A person goes to court in order to defend his or her rights there. We all proceed from the premise that: if I am right, if I have well qualified grounds to act in one way or another, then I can expect a just decision.

Nobody would ever go to defend themselves in court if they were unable to assume that the court's decision would uphold the law, assuming that they were aware that their actions were grounded in the law.

Therefore, I would suggest that this signal acts like a litmus test providing the answer to the question: do we have an independent justice system or not. If we can say that the courts' decisions are predictable, then we can assume there is an independent justice system. If we cannot say that that the court's decisions are predictable then there is no independent justice system and there is no reason for us to use it. After all, one could hardly assume that the majority of people applying to the courts are seeking to justify their illegal actions with the aid of the courts.

And so, proceeding from this thesis and that now we practically don't expect any court decisions to be predictable, I would assert that there is no independent justice system in our country. This means that the courts do not occupy the place prescribed for them and are not carrying out the role that they should".

"The very expression 'independent court’ - is a colossal paradox because a court which is dependent is not a court at all," stressed Tamara Morschakova.

In addition, Morschakova recalled the history of the implementation of judicial reform in Russia and revealed on whom Russian judges are dependent and why.

Judicial reform began in Russia in 1991-1992. Provisions on the independence, irremovability and immunity of judges were fixed in law. In addition, judges' administrative and disciplinary liability were deleted from the law.

"When they were granted this they decided that this was serious. And in the initial stages this produced very good results," noted Tamara Morschakova.

However, according to her reckoning these advances began to be rolled back from around the year 2000.

"The first step, which demonstrated to the courts that they were hoping in vain for a great deal of independence, was a very simple one. The provision in the law that judges are appointed for life suddenly ceased to have that meaning. A clause was introduced that judges are initially appointed to their post for a period of three years and that after three years they can be removed from the judicial establishment."

Moreover, Tamara Morshchakova noted that "the legislator had been very shrewd" – by law no one was obliged to justify the termination of a judge's powers. "And it became very easy to justify such an action: a judge would cease to be a judge simply because his or her three year term of authority had come to an end."

"Against the backdrop of the principle of the irremovability, of judges these sorts of details turn the very essence of such principles and institutions on their head. If every person who has just been appointed to the post of judge has to stand in front of some body or other in three years’ time who will decide whether or not to strip this judge of his authority, then what does the judge need to do in order to remain in his or her post? It is clear that over these three years they have to become used to being obedient."

Likewise, the subjection of judges to administrative and disciplinary liability was also introduced.

Various bodies in the judiciary that had been designed to defend judges began to be used as levers against them:

"These bodies have now become a weapon in the hands of the heads of the courts to decide any personnel issues regarding judges. These bodies are made up of heads of courts," Tamara Morshchakova noted.

According to her, from 2000 many of these sorts of details that distort the principle of the judiciary's independence began to emerge.

In his turn, Lev Gudkov talked about the results of research into how the courts are perceived by our fellow Russian citizens.

According to data gathered by the Levada Centre, there is a layer of Russian society, which is demanding a new, independent judiciary. This primarily includes young educated people, the most active part of the population who are engaged in business.

However, the overwhelming majority, 70 percent, would definitely not want to go to the courts and perceive them as a part of the repressive state system.

"We have a society in which there has practically been no legal culture in the modern sense of the concept. A society, which emerged out of a repressive state," he noted.

The Levada Centre's research shows that Russian citizens apply to the courts mostly for "family" issues such as divorce and inheritance but also for the resolution of employment disputes.

In these cases, "when the opposing party is the state, the majority of people believe in advance that the case will be lost and that it's not worth getting involved or that they will have to find an alternative way round the problem."

Respondents stated that the main fault with the courts was their dependence primarily on the executive authorities and the rich.

In addition to Tamara Morshchakova and Lev Gudkov, taking part in the discussion were Leonid Nikitinsky - lawyer, journalist, columnist for Novaya gazeta, founder and former President of the Guild of Court Reporters and founder of the "Leonid Nikitinsky Centre for Legal Programmes" - and Vladimir Rimsky - sociologist and Head of the Sociology Department of the INDEM Foundation.
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1 Translator's note: The expression ‘Basmannoe system of justice’ was first coined in the early 2000s but has come into common parlance ever since. It refers to the Basmanny District Court in Moscow, where a number of high profile and questionable cases were tried and which brought the independence of the Russian judicial system into question. The most famous of these was the case of Mikhail Khodorkovsky.