Tuesday, May 5, 2009

Window on Eurasia: Moscow No Longer Uses ‘Telephone Justice’ Because It Has Better Ways to Control the Courts, Retired Jurist Says

Paul Goble

Vienna, May 5 – Moscow no longer has to use the Soviet-era practice of “telephone justice” in which senior officials called judges to tell them what decisions to announce, according to a Russian jurist. Instead, the Kremlin has developed a far more effective “power vertical” in which the judges themselves can be counted on to return “correct” verdicts
Sergey Pashin, a retired federal judge who earlier helped to prepare the 1991 judicial reforms, argues that “the chief problem” is not ‘telephone justice’ but rather that judges themselves do not want to be independent” (www.specletter.com/independence-judgement/2009-04-22/sudebnaja-mantija-pljus-propusk-v-stolovuju-administratsii-prezidenta.html).
With the possible exception of a brief period during the early years of Boris Yeltsin’s presidency, Pashin writes, “Russia’s judges always were dependent.” Many people had hoped that they would become more so, but “then inertia took the upper hand and everything returned” to what it had been.
“When people say that judges have become part of the executive power,” the former jurist says, they are deceiving themselves because “in fact there is no division of power in Russia” and consequently “judges are not part of the executive power but instead an element of the power vertical.”
Like Russian journalists who in most cases know what they can write and what they should not, Pashin continues, Russia’s judges “without any nudging from above” know “what decisions they can take and which ones they should not.” And he uses his article to explain why that is so.
On the one hand, the judges are part and parcel of the same “nomenklatura,” people who come from the same background as the militia commanders and prosecutors, “for whom human fate has never meant anything.” And because of that, he says, “in the majority of cases, judges are convinced that they are during something useful” by always agreeing with the government.
But on the other, the Russian government has not left much to chance, not only creating a system to ensure that all judges know what the regime wants but also exploiting the economic, career, and status desires of those serving in the courtroom to guarantee that those sitting in judgment will do what is required.
Administratively, and despite laws against such arrangements, Pashin notes, chief judges in most jurisdictions supervise what more junior jurists do, requiring the latter to report on all cases and especially on those in which the regime has a particular interest. (For examples, see specletter.com/independence-judgement/2009-04-13/sudnyi-den-rossiiskogo-pravosudija.html.)
Such arrangements violate the Russian law on the status of judges, which as Pashin notes, he helped to prepared. That law, he points out, specifies that “all judges of the Russian Federation have a common status and are distinguished one from the other only by their plenipotentiary responsibilities.”
But in Russian life, the jurist says, “everything has turned out differently.” The presidents of the court have “in fact usurped power” over the judges, combining in their persons “procedural, administrative, cadre and God knows what other functions.” And other officials often have paid the judges supplements, in violation of the law.
These violations of the legal code, of course, are something few pay much attention to, Pashin says, but they point to even more serious problems in the administration of justice. First, “the chairman of the court can always say to a judge: if you don’t want to serve and do what they tell you, you will be driven out of the system.” Thus, the chairman controls a judge’s career.
Second, the chairmen of the courts are closely tied to the Kremlin itself, through its Directorate of Affairs of the Presidential Administration, which appoints them and is in a position to distribute housing, vacations, and other benefits to those judges who go along and to withhold those things from those who don’t.
In addition to this “financial side,” Pashin says, there are the issues of career advancement and status. While the Kremlin’s Commission on Cadre Assignments is nowhere mentioned in the Russian legal code, its members, who are drawn from the procuracy, the FSB, and the interior ministry, control the fate of judges as well as others.
Because this commission is neither independent nor balanced by people who have an interest different than the siloviki, any Russian jurist who wants to remain on or to have a career as a judge knows what decisions he must take. And because status with the Kremlin matters, few Russian judges want to ignore the wishes of the powers that be.
What should be done? Pashin asks. And he suggests three steps, although it is fairly clear that he does not expect any of them to be made by the current Russian leadership, even if the current Russian president and current prime minister are people who have degrees from law schools.
First, he says, Russia must carry out a new reform of the judiciary, one that would make it genuinely independent as the reforms of 1991 anticipated. Second, there needs to be an influx of “fresh blood” into the system. Too many of the current judges are products of the force structures and should give way to young legal specialists.
And third, Pashin argues, the Russian government needs to create “parallel structures. If we do not trust our [current] judges, then we must establish arbitration courts,” institutions set up by the parties to a dispute on a contractual basis. Such a system, he concludes, could have “a positive effect.”

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