The Russian legal system’s split personality
Attorneys of dead anti-corruption lawyer Sergei Magnitsky sit in front of an empty defendants cage during a court session in Moscow, March 22, 2013. Â REUTERS/Mikhail Voskresensky
In Vladimir Putinâ€™s Russia, the rule of law is most often seen as the law of rulers.
Russiaâ€™s judicial system is perceived as a means to curb the influence of figures who pose a threat to the Kremlin. In 2005, Yukos Oil CEOÂ Mikhail KhodorkovskyÂ was imprisoned on trumped-up charges of fraud in one of Russiaâ€™s most controversial cases. In 2009 Sergei Magnitsky, a lawyer who accused police officials of stealing $230 million from the government in a tax fraud scheme, died in prison after being held for a year without charge. And in April of this year, Russian prosecutors suspended a leftist opposition group for three months, barring the Left Front from organizing or accessing their bank account until July 19.
It is not surprising, then, that Russians donâ€™t trust the objectivity of their courts. Â Daniel Rothstein, a commercial lawyer who has practiced in Russia, said in a phone interview that during the 1990s, â€śpeople didnâ€™t trust the courts at all.â€ť And yet, despite the perception of high courts as malleable to Putinâ€™s influence and the fear of unjust arrest and conviction without trial, Russiaâ€™s lower courts are flooded with disputants and generally well reviewed.
It is difficult, from a Western perspective, to understand the discrepancy between a lack of faith in the courts and a willing endorsement of their functionality. But Russian legal expert William Butler, a law professor at Penn State,Â says that Russians attitude toward the court is a paradox – despite their suspicion, â€śRussians go to court a lot. Theyâ€™re very litigious.â€ť According to Kathryn Hendley, a professor of law and political science at the University of Wisconsin Law SchoolÂ who has spent time in Russian Justice-of-the-Peace (JP) courts observing civil suits,Â cases such as Khordokovsky’s andÂ Magnitsky’sÂ â€śdonâ€™t get much traction in Russia,â€ť where the press is controlled by the state. â€śThere is the Internet and people could get more information if they wanted, but people arenâ€™t really interested in these kinds of political cases.â€ť
According to her research, â€ślitigants are generally satisfied with their experiences at the JP courts.â€ť Civil court proceedings are relatively quick and inexpensive, she explains. Judges feel pressure to turn cases around swiftly, preventing small claims cases from being held up. In a 2009 survey asking citizens in three regions about their encounters with JP courts, only 10 percent of respondents said their judges were biased. Over 70 percent said they believe the JP courts largely rule in favor of the side that presents a stronger legal case.
What emerges is a system that functions fairly well on a civil level, where judges are formally appointed by governors or regional legislators rather than the president, butÂ falters in criminal and other cases, when judicial incentives are often subject to political influence. In these cases, Russians appear to employ an extra-judicial common sense in deciding whether to bring a case to court. According to commercial attorney Rothstein, â€śalmost every large [commercial] deal involving foreigners and also many large deals just involving Russians provide for arbitration or litigation of disputes outside of Russia, because nobody wants to be at the mercy of the unpredictable Russian courts.â€ť He added, though, that some Russian clients were more willing to go to trial because they â€śknow how to influence the court.â€ť ProfessorÂ Hendley adds, â€śif youâ€™re mad at your neighbor, go to court. If youâ€™re against someone whoâ€™s more powerful than you – then a greater reluctance sets in.â€ť
If Russian courts run the gamut on a legitimacy spectrum, Russians appear to have a fairly keen understanding of how to navigate the system. In an interview posted on the Hermitage Capital Management (HCM) website, William Browder,Â the investment fundâ€™s founder – and the man who employed Magnitsky to conduct the investigation that lead to his death – argued that Khodorkovsky would have avoided punishment if heâ€™d played by Putinâ€™s rules:
I suspect that Khodorkovsky could bargain his release from prison from the very beginning. After all, Gusinsky had done so and was spared further harassment. He gave his TV channel to the state and left the country. Khodorkovsky could follow suit. He could give YukosÂ to the state. Instead, he launched a PR campaign against Putin… The events took a stiff turn as soon as it became clear that Khodorkovsky would not compromise with Putin.
But unwritten law is easily broken, and when Magnitsky died of heart failure and toxic shock, allegedly due to untreated pancreatitis but also following a prison beating and with no autopsy to confirm a ruling, Browder called Russia a â€ścriminal state,â€ť and said that Magnitsky had been â€śheld hostage and [the state] killed their hostage.â€ť
Magnitskyâ€™s legacy weighs heavily today. Russia officially closed the investigation into his death days before the beginning of aÂ posthumous trial, seen largely as a way to repair an internationally damaged image by finding the dead man guilty of tax fraud. President Obama recently named 18 alleged human rights abusers who would be denied access to the U.S. if they attempted to enter from Russia, 16 of whom were implicated in the lawyerâ€™s death. The Sergei Magnitsky Act prompted Putin to name 18 Americans who would not be admitted to Russia, straining ties between the two countries.
An optimist might view the Magnitsky case as a tipping point in Russiaâ€™s judicial dealings. The posthumous trial may not succeed in changing the publicâ€™s view of Magnitsky as a casualty of corruption, a reputation aided by the United Stateâ€™s Sergei Magnitsky Act. According to Rothstein, the Russian â€śpeople are becoming more and more sophisticated as to what to expect, what things should be like in a normal country, and therefore more and more aware of whatâ€™s not normal in Russia.â€ť A confluence of internal attitude and international censure may be a step, however small, toward a system that works in both its highest and lowest iterations.