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. ¬†REUTERS/Mikhail Voskresensky
In Vladimir Putin‚Äôs Russia, the rule of law is most often seen as the law of rulers.
Russia‚Äôs judicial system is perceived as a means to curb the influence of figures who pose a threat to the Kremlin. In 2005, Yukos Oil CEO¬†Mikhail Khodorkovsky¬†was imprisoned on trumped-up charges of fraud in one of Russia‚Äôs 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 don‚Äôt trust the objectivity of their courts. ¬†Daniel Rothstein, a commercial lawyer who has practiced in Russia, said in a phone interview that during the 1990s, ‚Äúpeople didn‚Äôt trust the courts at all.‚ÄĚ And yet, despite the perception of high courts as malleable to Putin‚Äôs influence and the fear of unjust arrest and conviction without trial, Russia‚Äôs 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,¬†says that Russians attitude toward the court is a paradox – despite their suspicion, ‚ÄúRussians go to court a lot. They‚Äôre very litigious.‚ÄĚ According to Kathryn Hendley, a professor of law and political science at the University of Wisconsin Law School¬†who has spent time in Russian Justice-of-the-Peace (JP) courts observing civil suits,¬†cases such as Khordokovsky’s and¬†Magnitsky’s¬†‚Äúdon‚Äôt get much traction in Russia,‚ÄĚ where the press is controlled by the state. ‚ÄúThere is the Internet and people could get more information if they wanted, but people aren‚Äôt really interested in these kinds of political cases.‚ÄĚ
According to her research, ‚Äúlitigants are generally satisfied with their experiences at the JP courts.‚ÄĚ 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, but¬†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, ‚Äúalmost 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.‚ÄĚ He added, though, that some Russian clients were more willing to go to trial because they ‚Äúknow how to influence the court.‚ÄĚ Professor¬†Hendley adds, ‚Äúif you‚Äôre mad at your neighbor, go to court. If you‚Äôre against someone who‚Äôs more powerful than you – then a greater reluctance sets in.‚ÄĚ
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,¬†the investment fund‚Äôs founder – and the man who employed Magnitsky to conduct the investigation that lead to his death – argued that Khodorkovsky would have avoided punishment if he‚Äôd played by Putin‚Äôs 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 Yukos¬†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 ‚Äúcriminal state,‚ÄĚ and said that Magnitsky had been ‚Äúheld hostage and [the state] killed their hostage.‚ÄĚ
Magnitsky‚Äôs legacy weighs heavily today. Russia officially closed the investigation into his death days before the beginning of a¬†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 lawyer‚Äôs 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 Russia‚Äôs judicial dealings. The posthumous trial may not succeed in changing the public‚Äôs view of Magnitsky as a casualty of corruption, a reputation aided by the United State‚Äôs Sergei Magnitsky Act. According to Rothstein, the Russian ‚Äúpeople 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 what‚Äôs not normal in Russia.‚ÄĚ 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.