Izbrannoye, 4 September 2008

Professor Yelena Lukyanova discusses the bias and corruption within the Russian judicial system and how to begin reforming it. The internet newspaper Izbrannoye talks to Professor Yelena Lukyanova, a legal specialist at Moscow University

Prosecutor General Yury Chaika recently visited the pre-trial remand centre in Noginsk and concluded that our judges are clearly overdoing things, putting one and all behind bars. In his words, this is clear bias towards a repressive approach.

It’s amazing that Chaika has only now caught on. How many years has he been Prosecutor General? Was it really only yesterday he learned that Russian prisons are full to overflowing? Where was he when Vasily Aleksanyan was left to rot in prison? How can he help but know that convictions are handed down ten times more often today than during Stalin’s time?

Why is this happening?

Because the entire system of law enforcement in Russia has been wrecked. The investigators do not carry out their functions. They do not investigate crimes and have forgotten entirely what constitute a crime. They need re-training or, better still, to be sacked and replaced by new professional investigators. I recently asked an investigator, Are you going to establish the truth? His reply: Who me? Why should I establish the truth, I’m on the side of the prosecution. Indeed, in the current Criminal Procedural Code the article concerning investigators is to be found in the chapter listing participants in a criminal case from the side of the prosecution. But this does not mean that the investigator is part of the prosecution team: his task is to carry out a thorough and objective investigation into the circumstances of the case.

Why do juries acquit people? Not because they’re good or kind. It’s because they get to the heart of the matter and can see there is no evidence. Half of the criminal cases in our country are fabricated.

If I remember rightly, a court could earlier return a case for further investigation.

Earlier it could do so, but under the current Code it cannot. If the court sees that the evidence is weak it must carry out a judicial investigation. This results in the courts being over-burdened. Most important of all, it is impossible to correct the shortcomings of the investigative agencies in court.

However, the court does have a choice. It can issue a conditional sentence, for example.

What about collusion between officials then? Just recall the case of the administrative fines imposed on Garry Kasparov. Ten witnesses confirm that things did not take place in the manner described in court, and that Kasparov was not detained where it was said. Against them stood only the testimony of Police Sergeant Ivanov. Whom did the judge believe? Ten Russian citizens or one state official?

And what does the court do in more complex cases? It does not even grapple with the issues but simply rewrites the charge it was given by the prosecutor’s office. Then everyone is amazed that the court in Strasbourg is full of complaints from Russia.

Is it a lack of professionalism? Or a lack of independence?

Both. The judges have also forgotten what constitutes a crime. One cannot always talk about a lack of independence because far from all cases affect someone’s political or bureaucratic interests. In those instances when officialdom does bring its weight to bear then the judges, undoubtedly, can be influenced.

They also lack independence, and very strongly so, because of the system under which they are appointed. It is the president of the Russian Federation who appoints them. So they depend on the court chairman who writes a testimonial about them when they are to be reappointed. The judge [in Chita] who overruled the penal colony punishment imposed on Khodorkovsky simply failed to be reappointed although she acted in strict accordance with the law. Where is the case of Judge Olga Kudeshkina? At the European Court of Human Rights in Strasbourg. Why was she deprived of her powers as a judge? For criticising the judicial system when she announced in public that the chairman of the court had put pressure on her.

It’s not an enviable job, being a judge.

I wouldn’t necessarily say that. There is yet another kind of dependence. Today judges are very well paid and in material terms they are quite well off. So they don’t want to lose their job: appointment as a judge has become a matter for doing deals, in effect, the object of corruption. Just look what’s going on outside the capital! In the regions entire families have taken over the courts — grandmothers, grandfathers, daughters and granddaughters ... We need a very profound reform of our judicial system.

What specifically needs changing first of all? And how can it be done?

That’s a long discussion. Since the new Criminal Code and Criminal Procedural Codes were adopted [1996 and 2001, respectively] a considerable, negative experience has accumulated. It demands correction. We must change both the legislation and the practice. However, first of all we must make our judges truly independent.

How? Should they be elected?

Not necessarily. They could be appointed but in quite a different way. There was a time when judges were appointed by the Soviet of People’s Deputies for the wider area: this was to ensure that there would not be collusion within one and the same territory. Today this could be the job of some collegial body. Next, we should re-examine the status of the standards board of judges. Finally, it is quite essential to reconsider how judges can be made independent of the chairman of the court.

The judge who presides over the panel of judges should be chosen by his or her fellow judges. He should not come from the administration or give orders to his fellow judges: he or she should be one among equals, and deal with the general judicial issues facing each court. He must also be deprived of the right to distribute cases, giving “good” cases to one judge and the difficult cases to another. Because that also is a form of pressure.

What are the prospects for judicial reform?

I have my hopes. What we need is political will. Do you think Chaika simply went to Noginsk of his own accord? He would have carried on just the same for a hundred years. However, the president said A: and declared judicial reform a priority. Now Chaika must say B, and not restrict himself to tribune oratory but start making changes and ensure things are brought back under control.

In other words, everything again depends on a single individual?

I wouldn’t put it like that. However, it can’t be denied that real political willpower is needed, from the top.

Professor Lukyanova was interviewed by Tatyana Yakhlakova