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Excerpt
East European Constitutional Review
A Quarterly Published by New York University Law School and Central European
University
Volume 11 Numbers 1/2 Winter/Spring 2002
[full text available at: http://www.law.nyu.edu/eecr/vol11num1_2/index.html]
Feature
Reforming Russia’s Courts
Introduction-- Stephen Holmes
Is the “Concept of Judicial Reform” Timely?-- Mikhail Krasnov
Implementing Russian Constitutional Court Decisions--Alexei Trochev
The Jury is Still Out on the Future of Jury Trials in Russia--Irina Dline and
Olga Schwartz
In a Siberian Criminal Court-- Stanislaw Pomorski
Putin’s Judicial Reform-- Peter H. Solomon, Jr.
The Two Faces of Russian Courts-- Timothy Frye
Introduction
Stephen Holmes
The following symposium provides an interim report on the current state of judicial reform in the Russian Federation. Despite their diversity of approaches and perspectives, the contributors all combine hopes for the future with doubts about proclaimed accomplishments thus far. While examining specific issues—such as the fiscal, institutional, and ideological impediments to organizing jury trials throughout the country—the authors also address more-basic questions, for instance: How will reforming the courts contribute to the overall process of making Russia a more just, democratic, and decent society? The main obstacle to liberal transformation, as several contributors suggest, remains Russia’s socially disconnected and politically unaccountable elite. The privileged and the powerful behave more like a semiautonomous corporation than like an integral part of the population. And the public, in turn, views them as inhabiting a gilded sphere where they operate according to special rules, enjoying exemptions, immunities, and other insider advantages. One worry, in this glaringly inegalitarian context, is that Russian legal reform, in the medium term, will yield a kind of Doppelstaat (Ernst Fränkel), where a privileged few can obtain a degree of legal certainty and predictability, while the vast majority continue to suffer erratic encounters with law-making, law-interpreting, and law-enforcing authorities. That such a development is at least possible is suggested by an eye-catching contrast between the professionalism of lawyering and adjudication in the arbitrazh courts and the lack of professionalism of both in courts of general jurisdiction.
Could impartial and predictable enforcement of rules, in postcommunist Russia, end up being reserved for the wealthy and well connected? Already today, ordinary citizens hesitate to go court to seek remedies, in part because they view courts as pliant instruments of a social elite, cut off from the rest of society and preoccupied exclusively with its own well being. Ordinary citizens have little hope of using legal instruments reliably to protect their own interests, especially against the powerful.
In his stimulating contribution below, Timothy Frye provides further evidence of the degree to which, still today, “might makes right” in the Russian legal system. Appellant confidence in the ability of the court to deliver justice, he observes, depends less on trust in the impartiality and integrity of judges than on perceptions of the relative political clout of the parties to the suit. The poorly connected doubt that they can prevail against the well connected; though well-connected litigants may possibly prevail against parties who are equally well connected. Courts can sometimes resolve disputes with a degree of autonomy and impartiality, but only between parties with roughly equal capacities to manipulate the system. Similarly, Alexei Trochev argues that the sway of the Constitutional Court hinges not on the triumph of some noble rule-of-law ideology, or on the persuasive power of higher legal and constitutional norms, but rather on calculations by the federal executive branch (where real power lies) that a strong Constitutional Court will help whip regional authorities into line.
Further evidence of the unabated influence of might over right, haunting Russian legal reform, is provided by Stanislaw Pomorski as well as by Irina Dline and Olga Schwartz. Read together, their contributions show that the shocking no-acquittals policy of the Russian criminal justice system is due partly to bad habits inherited from Soviet times and partly to the continuing proficiency of Russian investigators and prosecutors at eliciting “cooperative” behavior from Russian judges. Providing judges with organizational and budgetary “independence” will not radically change this pattern, however, because what sustains it is not only the clout of procurators and the prosecutorial bias of judges but also the political disorganization and voicelessness of the social strata that directly suffer from the scandalous noacquittals policy. The problem is not only pressure on deferential judges from above; the problem is also a lack of mobilized public indignation, that is, countervailing pressure from below.
Law is a tool of power. This sounds cynical but is not. The instrumental theory of law does not necessarily prevent us from distinguishing between two ideal types: rule by law and the rule of law. Law is an instrument in both cases. The difference lies not in law but in the way power happens to be distributed in the society in question. In a rule-by-law system, power is tightly held by a small social elite that uses the legal system to protect and consolidate its privileges and power. The voiceless majority has no tools to challenge this monopoly on the self-interested use of law. In a rule-of law system, by contrast, power is fragmented and dispersed among rival social groups and organized interests, none being powerful enough to work its will by intimidation or force. In such a system, a majority of citizens belong to groups with some political leverage. Most citizens will, on a predictable basis, be able to use law to pursue their goals and safeguard their assets to some extent. They will, for instance, be able to count on the police to protect them from private predators. And they will also be able to deploy law in a variety of other ways against each other. Tenants will be able to use law against landlords, employees against employers, wives against husbands, debtors against creditors, consumers against producers, not to mention, criminal suspects against the police. This pluralistic theory of the rule of law explains why the goal of "justice,” articulated clearly by Mikhail Krasnov below, can never be achieved by top-down court reform alone. Training judges and court administrators, hiring bailiffs and increasing court budgets, will not suffice. Indeed, judicial reform in Russia will remain decorative or palliative so long as Russian society remains split between a small, self-serving elite and a large, discarded majority. Justice cannot be delivered on a platter to politically inert citizens even by the most professional judiciary. However much “political will” is exhibited by the Kremlin, Russia’s legal reforms will succeed only to the extent that the country as a whole develops in a liberal, pluralistic, and democratic direction.
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