It’s no secret that Russia has a rule of law problem. But what’s surprising is that it seems to keep getting worse.

According to a number of recent reports and observations by experts in the media, Russia’s judiciary is increasingly struggling to exist as a nominally “independent” institution.

In mid-January, the U.S. rights watchdog Freedom House issued its annual report on Russia remarking on the steady decline of basic due process and access to justice for Russian citizens.

“The judiciary lacks independence from the executive branch, and career advancement is effectively tied to compliance with Kremlin preferences,” the authors write, “Since 2003, the criminal procedure code allows jury trials for serious cases, though they occur rarely in practice. While juries are more likely than judges to acquit defendants, such verdicts are frequently overturned by higher courts, which can order retrials until the desired outcome is achieved.”

Hugh Williamson of Human Rights Watch, which published a similarly dark prognosis of the Russian legal system in its annual report, recently commented, “The Kremlin cynically conflates legitimate expressions of concern about human rights and the rule of law with undermining Russia’s sovereignty, but Russia’s international partners should not be bullied into silence.”

Meanwhile the World Justice Project has ranked Russia’s judiciary down near the very bottom of its global list, while several other monitors have also passed out failing grades.  Such a dire situation has contributed to a 99% conviction rate – leaving the accused with practically zero chance of acquittal before whatever flimsy argument is presented by the state prosecutor.

For as much as the political system is to blame for the condition of the judiciary, the behaviour of numerous Russian judges and prosecutors is beginning to raise alarm.

The depth of this problem couldn’t be more clearly illustrated than a recent incident when a judge actually fell asleep on the stand during a murder trial.  While the judge was taking his nap, the defendant was convicted of fraud and sentenced to 5 years hard labour (99% conviction rate in action).  However once an amateur video of the sleeping judge surfaced, there was a full blown media scandal leading to his resignation and re-trial for the defendant.

Before all this, we of course had Judge Marina Syrova’s remarkably nonchalant handling of the Pussy Riot trial, when she openly refused to hear defence witnesses and rejected the introduction of evidence by the defence. During a subsequent hearing for Pussy Riot member Maria Alyokhina, the judge openly ridiculed the defendant, who was made to connect to the courtroom via video feed and couldn’t even hear the words spoken by prosecutors.

These kind of sham trials were perfected as an art form during the second trial of Mikhail Khodorkovsky and Platon Lebedev.  The Presidential Human Rights Council found “fundamental violations” of their rights by both prosecutors and the judge, while defence lawyer Vadim Klyuvgant has referred to the whole affair as “shizophrenic” and “a lynching.”

In a fascinating new interview by Transitions Online with Vadim Volkov, vice rector for international affairs at the European University in St. Petersburg and head of its Research Institute for the Rule of Law, the topic of misbehaving judges is examined more closely.  Speaking about the “Trial of 12” in St. Petersburg, when activists from Other Russia and the NatsBols spent 8 months on trial before finally being convicted of “extremism” for a 2010 rally, Volkov shares some interesting perspectives to explain why individual judges make the decision to violate rights of the defendants:

If we talk about how to influence judges and about their behavior, I think the strongest influence is a kind of self-censorship. They basically socialize in the system, they work in this court among other colleagues, and they basically know how the Russian judicial system works. If they don’t want to work like the system works, they can go and find another job. But if they become judges, they will have to do their work in a certain way: avoiding acquittals, avoiding going against the prosecution, being sensitive to the requests of state prosecutors. They know what is required of them.

There are cases of direct pressure, and this direct pressure usually comes from the chairman of the court of the [city or region]. This is where the center of control of the judicial system is situated, so all the orders are translated through this relatively small number of judges. These are old judges, and they can communicate directly with district judges. You don’t need to harass an individual judge, but you have to send a signal or a command through the institution of chairmen. The chairman will basically prompt what kind of policy to stick to. But again, now is a different time; the judges tend to avoid severe sentences, as you mentioned. They have a lot of opportunities to free a person, to avoid sending him to prison, yet avoid acquittal. So we can say the art of judging in Russia consists of trying to compromise between justice and the institutional pressures of the administration.

While there are certainly some interesting arguments to be made about the social dimension that drives misconduct within Russia’s judiciary, the more convincing argument relates to the recent political history in Russia whereby the law has been instrumentalised as a crucial tool to arbitrate disputes among the elite.

According to an article published by William Partlett of Brookings Institution and the Columbia University School of Law, the seeds for this transformation were planted in the mid-1990s under Boris Yeltsin and have matured into a vertical system under President Vladimir Putin.

“Putin never intended his legal and judicial reforms to stamp out corruption or replace informal, personalized rule,” Partlett writes.  “His plan was to use reformed formal legal institutions to complement his personalized rule. In fact, strong legal institutions were a means to an end—a tool for ensuring that he could punish those who did not comply with his informal rules of the game through selective prosecution.”

The “lawfare state,” as Partlett describes, is going to be around for a while.  In many respects, it has filled in for the absence of functioning representative institutions in Russia, creating a kind of horizontal accountability underscored by one’s participation in state corruption and the alternative of the gulag.  The system is quite resistent to reform as President Dmitry Medvedev discovered, and there are many interests invested in its continued dysfunction.  So it seems, for the moment, that we had better get used to these judges behaving badly.