Mikhail Khodorkovsky, “Harvard Busness [sic] Review Rossiya”, December issue (feature topic)

In the course of the last nine years I have been forced to study the situation in the Russia courts as an “embedded participant-observer”, and I have been able to personally experience just what its fundamental difference in principle is from the judicial systems that function in modern-day law-based states.

The system of civil (in the broad sense) and criminal judicial proceedings in Russia is “judicial” only in name and in its external attributes. The actual resolution of civil, criminal, and administrative cases is factually carried out by two “judicial ministries” (commercial and general-jurisdiction) subordinated to the president of the country.

These are not so much courts as some kind of medieval chancery, and the people who work there are not judges, but clerks — ordinary pen-pushers. The heads of these “ministries”, as well as the heads of their regional organizational units, are appointed by the president for six years; the rank-and-file workers — formally for life. True, any one of them can be dismissed in the blink of an eye through a not-complex procedure. Therefore, the only guarantee of irremovability the so-called judges have is to be loyal to the one on whom their appointment to the position depends.

The absolute loyalty of judges to their superiors is ensured already at the stage of their selection: today, the main body of those who become judges are either yesterday’s judges’ clerks (assistants, secretaries), or yesterday’s siloviki [from the enforcement agencies—Trans.]

Their submissive obedience is generously rewarded not only by high salaries, bonuses, and advancement in rank, but also by the opportunity to collect corruptional rent unimpeded in cases in which the executive power does not have any interest. Of course, there are certain limitations, but they are of a distinctive kind. For example, you can not acquit, even for a bribe — this is considered a “fault in the work”. for which there will be punishment not only for the judge — the pen-pusher —but also for the prosecutor and the investigator. But to “adjust” the article [the specific charge, e.g. from assault to disorderly conduct—Trans.] and the term — entirely possible.

Oversight of the activity of this system is vigilantly carried out by those same law-enforcers and special services that support the prosecution in many court cases and are the main propagator of legal nihilism.

Such a system, of course, has no protection from the ordinary and practically total bad faith of the entire chain of application of the law. Laziness, ineptitude in work, professional and moral degeneracy, callousness and indifference, combined with a desire to improve the statistical indicators, lead to mass conviction of the innocent, and this means — to impunity for the real criminals. Frankly, nobody is interested in them, and they know this.

I had the occasion to make the acquaintance of several professional criminals, who candidly admitted that they were not sitting in prison for “theirs” [what they had done—Trans.], or were there for only a tiny sliver of “theirs”, while the rest of it was “written off” to other people. One such specialist in home burglaries, by his own words, had shaken off more than 600 (!) episodes [charges—Trans.] in such a manner.

I believe their confessions, and have myself seen a multitude of people convicted without guilt. Not only that, but the investigators of the General Prosecutor’s Office have cheerfully told me how dozens of murders are “re-hung” on known maniacs who did not commit them.

What happens as a result is what specialists have already called the “breakdown of law”. Coming in to replace law and the legal order is a competition of “roofs” [protection/patronage—Trans.], corruption, and “manual control”. An archaicization of the economy and of public life takes place. And the ones who pay for all this are ordinary people — through economic costs and a growing risk of becoming hostages of arbitrariness at any moment and on any pretext.

It is natural that such a system is going to assiduously wring out everything from itself that is not organic to it. Even in that truncated form in which they have taken root in Russia, jury trials represent a serious threat to the normal functioning of the “ministry of crime and punishment”. Therefore, for the whole past decade we have been observing a tendency to limit jury trials, accompanied by the hounding of the very idea of such trials.

Unconditionally, a widely developed system of manipulation at the stage of jury selection, the use of all kinds of ploys and ruses, with the help of which jurors are led astray, outright pressure on jurors in high-profile cases, the overturning of up to 40% of their not-guilty verdicts under any contrived pretext whatsoever — all this makes this institution not as effective as it ought to be. But even with all this, the “rudiment” of the judicial reform of the ’90s frightens the power because under it is retained an element of unpredictability in the adoption of judicial decisions. The system needs total control, after all.

To change the situation, it is imperative to undertake several steps, which have been discussed for a long time and widely by the professional community.

1. To reduce pressure on court officials, it is imperative to radically reduce the powers and change the order for the appointment of the court chairmen, that is to revive elements of judicial self-administration.

2. The professional requirements need to be raised for claimants to the judge’s robe, the practice of forming the body of judges only from “our own people” needs to cease, representatives of the defense-lawyer community and scholarship need to be actively drawn into it.

3. The decisions of courts must be accessible and transparent. Any attempts at non-procedural contacts with judges with respect to concrete cases must be promptly made public by them and investigated, and must entail inescapable punishment for their initiators.

4. An open and honest professional discussion with respect to socially significant problems of the judges’ community and of the judicial system, as well as with respect to concrete court cases, is imperative.

5. The perverse bond between the courts and the siloviki must be liquidated. The current system for evaluating the work of judges —which deprives them of the right to their own opinion and their own position, and destroys the very idea of an independent judiciary — must be liquidated together with this. The sole demand of judges — to ensure justice, equal for all, to act in good faith and impartially in their decisions. A just court decision must turn from a heroic deed into work routine. Jury trials must be restored and strengthened, their powers — expanded substantially.

Unfortunately, for now the movement is going in the opposite direction. The dependence of judges on the executive power and on superiors is increasing. Legislative restrictions on the mandatory retirement age for court chairmen and the term of their tenure in their chair have been repealed, while the order of their appointment and reappointment “along the vertical” has been retained.

I shall cite the freshest and most flagrant examples of judicial arbitrariness by way of illustration.

1. In the trial in the Pussy Riot case, criminal law was knowingly applied incorrectly by the court. Only after the verdict was a special criminal-law norm adopted that prescribes punishment for such a kind of wrongdoing.

2. A massed and openly repressive application of the law on rallies and demonstrations against the opposition began immediately after its adoption “happened”.

3. Society had occasion to become witness not only to peculiar elections, but also to the openly mocking examination in courts of motions challenging obvious and proven violations.

Without the Court there is no counterweight to the arbitrariness, corruption, and omnipotence of the bureaucracy. Judicial arbitrariness has become the cornerstone, the buttress of the current regime, and it is difficult for me to imagine any kind of positive changes taking place here before a serious political crisis.

And for now, what is left for us, for Russian society, is to fight for essential transformations in the country and in the judicial system, to struggle for those who can be helped, and to rouse the power to execute its own laws.