Striving for Judicial
Independence:
A Report into Proposed
Changes to the Judiciary in
Russia
June 2005
An International Bar Association
Human Rights Institute Report
Supported by the
Foundation Open Society Institute
© International Bar Association, 2005.
Material contained in this report may be freely
quoted or reprinted, provided credit is given
to the International Bar Association.
International Bar Association
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London W1T 1AT
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www.ibanet.org
Report of the IBA Mission to Russia
CONTENTS
Page
Executive Summary ..................................................................................................... 5
Chapter 1: Introduction ................................................................................................................ 11
Chapter 2: Political and Legislative Background
General Political Background ......................................................................................... 15
The Tsarist Era: 1864 – 1917 ......................................................................................... 16
The Soviet Era: 1917 – 1991 ......................................................................................... 16
The Yeltsin Era: 1991 – 1999 ......................................................................................... 17
The Putin Era: 2000 Onwards ........................................................................................ 18
Chapter 3: The Structure and Powers of Courts in the Russian Federation
Courts of General Jurisdiction and the Supreme Court .................................................. 21
Arbitrazh Courts and the Supreme Court of Arbitrazh ................................................... 22
The Constitutional Court ............................................................................................... 22
International Law in Russian Courts ............................................................................... 23
Chapter 4: The Judicial Qualification Collegia: Proposed Legislative Changes
Introduction .................................................................................................................. 27
The Mironov Proposals .................................................................................................. 28
The Powers of the Collegia ........................................................................................... 29
The Operation of Qualification Collegia in Practice ........................................................ 30
Chapter 5: Reforms Affecting Judicial Independence
Introduction .................................................................................................................. 33
Powers and Status of Judges ......................................................................................... 33
Administration of the Courts and Judicial Salaries ......................................................... 34
Court Chairpersons ....................................................................................................... 35
Justices of the Peace ..................................................................................................... 37
Trial by Jury ................................................................................................................... 37
Resistance to Reform .................................................................................................... 38
Chapter 6: Conclusion and Recommendations
Findings ........................................................................................................................ 41
Recommendations ........................................................................................................ 43
Russia – Striving for Judicial Independence
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Appendix I: Individual Cases ......................................................................................................... 47
Appendix II: Relevant Obligations on Russia relating to the Judiciary ....................................... 55
Appendix III: Members of the IBA Delegation .............................................................................. 65
Appendix IV: About the IBA ........................................................................................................... 67
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Russia – Striving for Judicial Independence
Executive Summary
The IBA’s decision to send a delegation to Russia stemmed from proposals put before the
Federation Council (the Upper House of the Parliament) in September 2004, known as the
‘Mironov’ proposals. These proposals and their legislative history are described in detail in Chapter
4. In essence, the proposals are directed to changing the composition of the Judicial Qualification
Collegia. This is significant as the Qualification Collegia are important bodies of judicial selfgovernance which control appointments, promotions and dismissals of judges. The proposals were
introduced at a time of great concern for national security, after the September 2004 school attack
on a Beslan school by Chechen rebels.
The delegation found that there was strong opposition to the Mironov proposals from those
judges, lawyers and representatives of non-governmental organisations with whom it met. The main
cause for concern was a proposed change that would reduce the number of judges represented on
Qualification Collegia to less than half of the total, in contravention of European norms. In
addition, election of non-judicial members of the Collegia would be subject to increased executive
control. The creation of the Collegia in 1989 presaged the judicial reform process, which has been
pursued by both President Yeltsin and President Putin, and had as its stated aim the strengthening
of judicial independence vis-à-vis the Executive and Legislative branches. Introduction of the
proposals created serious concerns of an attack on judicial independence, despite the fact that it was
generally reported to the delegation that they are not expected to pass into law as drafted.
The delegation strongly recommends the rejection of the Mironov proposals in their current
form and urges the government to abide by international principles on judicial independence when
considering making changes to the functioning or composition of the Judicial Collegia.
Significant progress has been made in Russia over the last fifteen years in introducing new
legislation as part of a comprehensive judicial reform programme. The introduction of jury trials
has been widely seen as a positive step, increasing the participation of the public in the justice
system. However, increased acquittal rates in jury, as opposed to bench, trials have brought
resistance to juries hearing politically sensitive cases. In addition, the system allows for appeals
against conviction by the prosecution and it seems this mechanism is open to abuse.
The establishment of a Judicial Training Academy and efforts to inform judges of the provisions
and applicability of international law, particularly by the Arbitrazh Courts, demonstrate further
constructive progress. Substantive powers of judges have been increased, particularly under the new
Code of Criminal Procedure, with increased judicial control over pre-trial detention, arrest warrants,
searches and seizures and the requirement that a suspect must be brought before a judge within 48
hours of arrest.
In the wider judicial field political commitments have been made by the Presidential Programme
for Financing the Courts (2002-2006), and by President Putin’s 2004 speech to the All Russia
Congress of Judges. Other positive developments include increasing judges’ salaries, provision of
Russia – Striving for Judicial Independence
5
additional protection for judges, transferring the administration of the justice system from the
Ministry of Justice to a separate administrative department attached to the Supreme Court and
establishing a separate budget line for courts less vulnerable to economic fluctuations. The
introduction of a system of Justices of the Peace (JPs), and its expansion to all but one of the
regions, has substantially reduced the overall court caseload, and governments appear to have put
some effort into ensuring adequate financing, training, court premises and equipment for the new
system of JPs.
However, it was noted by the delegation that there are significant areas where judicial
independence remains vulnerable and that there have been attempts to undermine the positive
impact of new legislation. The attention of the delegation was drawn to problem areas which have a
negative impact on judicial independence. In particular, political pressure, often manifested as
pressure from court ‘chairmen’ for judges to deliver particular verdicts, the still unacceptably low
rate of judicial salaries, a continued perception by judges of their role as defender of State interests
which is evidenced by excessively low bench acquittal rates, and a public perception of the judiciary
as corrupt which in turn undermines the status of the judiciary.
It was reported to the delegation in some individual cases, particularly in the Moscow City Court,
that judges have been pressured to make certain decisions and when they have failed to comply have
been dismissed by Qualification Collegia on spurious grounds following the recommendation of the
Court Chairperson. These concerns have been recently reiterated in an extradition case heard in
London in the Bow Street Magistrates Court (Government of the Russian Federation v Dmitry Maruyev
and Natalya Chernysheva, 18 March 2005).
There is also a body of cases well-documented by respected international human rights groups
where improper influence appears to have been exerted on the judiciary. These cases are generally
those where major economic or political interests are at stake. The highly publicised case of Mr
Khodorkovsky and various Yukos employees and lawyers is one well-known example. Other examples
can be found in Appendix I.
The report recommends that particular attention be given to creating mechanisms to counteract
the threat of political, economic or personally motivated attempts to influence the impartiality of
judges. In addition, the momentum of judicial reform needs to be sustained and financial
commitments to further increase court funding and judicial salaries, and fill judicial vacancies
should be implemented as a matter of priority.
Recommendations
The principles of judicial independence and accountability, already obligations for Russia under
international, regional and domestic law, must be strictly observed. To make this a practical reality,
the following recommendations are made:
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Russia – Striving for Judicial Independence
Qualification Collegia
(1) The Mironov proposals should be rejected and no changes made to the composition of the
Judicial Qualification Collegia which would result in there no longer being a judicial majority
on the Collegia. To dispel any doubt on this question, and to assure the judiciary of its ongoing
commitment to judicial independence, the government should publicly state its commitment
to maintaining a judicial majority.
(2) To ensure transparency in the work of the Judicial Qualification Collegia, consideration should
be given to diversifying the representation of non-judicial members of the Collegia to include,
for example, representatives of the private bar, non-governmental organisations, the Human
Rights Commission, and the Ombudsman’s office. However, in no case should the proportion
of judges in the Collegia be lower than two-thirds.
(3) Consideration should be given to introducing more regularised and formal procedures for
hearings before the Collegia and to making their decisions publicly available.
Court Chairpersons
(4) In view of the widespread concerns expressed regarding the abuse of power by Court
Chairpersons, a more transparent system should be adopted for their appointment.
Consideration should be given to increasing the role of the judiciary in this process and the
introduction of more objective criteria for appointment to this position, such as seniority of
judges. In addition, consideration could be given to appointing Chairpersons for fixed terms
of 4-7 years.
(5) The decisions and influence of Court Chairpersons with regard to the discipline and removal
of judges in their courts need to be subject to regular objective review. Appeals from the
decisions of Qualification Collegia currently proceed before courts presided over by the Court
Chairperson who initiated the discipline proceeding. This is unacceptable. Final decisions
taken to discipline or remove a judge should also be subject to independent and objective
review.
(6) The allocation of cases in individual courts by Chairpersons must be done according to
objective criteria. Consideration should be given to developing such criteria in the light of the
rules relating to judicial independence which are binding on Russia. Cases should not be
transferred from individual judges except in accordance with clearly established procedures
and for reasons established by law such as conflict of interest, ill-health, etc.
Russia – Striving for Judicial Independence
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Promotion of Judicial Independence
(7) Immediate steps should be taken to ensure that undue pressure is not exerted on the judiciary
in high profile economic and political cases. As such cases attract wide media coverage and are
significant in affecting public perceptions of the judiciary, they must also be seen to be decided
in an impartial and transparent manner.
(8) An investigative commission should be established composed of independent judicial and
other legal experts to review individual cases of dismissals of judges. The practice of the
Moscow City Court in particular needs to be subject to an independent investigation with
regard to allegations made by former judges against the Chairperson of the Court. The
commission could also examine well-documented political/economic cases where there is
convincing evidence of undue influence and corruption.
(9) The government should consider implementing a public awareness campaign to improve
knowledge of the role of the judiciary in a democracy, including provision of information
regarding the legislative changes which have taken place affecting the powers of the judiciary.
(10) Consideration should be given to expanding the system of electronic publishing of decisions as
introduced by the Arbitrazh Courts to other courts.
Financial Support for the Judiciary/Courts
(11) While noting the progress made by the executive in raising salaries and increasing funding for
courts, and commitments made to implement further increases, the delegation recommends
that this issue be acted on as a matter of urgency. The government should ensure that the level
of salaries and the conditions of service for the judiciary in all courts are adequate to allow
suitably qualified and experienced legal professionals to be appointed and to reduce their
vulnerability to corruption.
Appointments and Training
(12) In view of the fact that Russia’s judiciary is in a transitional phase, and the difficulties inherent
in interpreting and applying new legislation and procedures, options should be actively
canvassed to ensure that more of the best trained jurists are appointed to the judiciary. This
may entail a reconsideration of the minimum training and experience needed for
appointment. Lateral modes of entry to the judiciary, such as the expansion of the movement
into the courts from the position of judicial assistant, should be considered.
(13) The decision to establish an Academy of Justice is commended. More systematic and
formalised training for all newly appointed judges should be institutionalised. In addition,
continuing legal education for all judges, including training in relevant international law,
should be introduced.
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Russia – Striving for Judicial Independence
(14) The decision to appoint a judge on a permanent basis following a three-year probation period
should be taken by an independent authority, according to a fair and transparent procedure of
confirmation based on a formal assessment procedure. A decision not to appoint must be
subject to appeal and an independent review.
Russia – Striving for Judicial Independence
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Russia – Striving for Judicial Independence
Chapter 1:
Introduction
This report is the result of a fact-finding mission to the Russian Federation (Russia)1 undertaken by
the International Bar Association’s Human Rights Institute between 3-9 April 2005. The mission was
prompted by concerns that proposed legislative changes would have a negative impact upon judicial
independence. Of particular concern were the proposed alterations to the composition of the
Supreme and Judicial Qualification Collegia, the bodies which appoint, promote, discipline and
dismiss members of the judiciary.
The Terms of Reference of the mission were:
• to examine the proposed changes to the Supreme Qualification Board of Judges in the
Russian Federation;
• to determine whether these proposed changes are likely to interfere with the personal and
institutional independence of the judiciary in the Russian Federation;
• in relation to this, to consider any other factors which might impact upon judicial
independence; and
• to indicate the potential impact threats to judicial independence could have on
fundamental human rights in the Russian Federation.
In order properly to assess the specific impact upon judicial independence of the suggested
Qualification Board reforms, this report evaluates current issues concerning judicial independence,
in the broader context of judicial reforms that have been undertaken in Russia since the early 1990s.
Organisation of the Mission
The mission was organised by the Human Rights Institute (HRI) of the International Bar
Association (IBA). The IBA is the world’s largest lawyers’ organisation with 16,000 members in 195
countries. The HRI works to promote, protect and enforce human rights under a just rule of law,
and to preserve the independence of the judiciary and legal profession worldwide. It is an
independent, non-political organisation that was formed in 1995 under the honorary presidency of
former South African President, Nelson Mandela. It is directed by Officers and a Council of
members from 21 different countries.
The HRI has undertaken similar missions in different parts of the world. Its practice has been to
send delegations of experienced lawyers and judges who are required to exercise independence and
impartiality in conducting their enquiries. Delegations take account of relevant international,
regional and national law.
1
Under Article 1 of the Russian Constitution, ‘the names “Russia” and “the Russian Federation” shall be equal’.
Russia – Striving for Judicial Independence
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Delegation Members
The HRI is grateful to the delegation members who accepted the invitation to take part in this
mission. The delegation members were:
• Justice Robert Sharpe, Court of Appeal for Ontario, Canada.
• Judge William Birtles, United Kingdom.
• Anne McMillan, Barrister, United Kingdom.
• Dr Phillip Tahmindjis, IBA Programme Lawyer, United Kingdom.
Short biographies of the mission members can be found at Appendix III.
Interviews and Consultation
During the course of the mission, the delegation met with representatives of the Federal Chamber of
Lawyers, the Moscow City Bar, the Commonwealth Union of Advocates, Professor Sergei Vitsin
(Deputy Chairman of the Committee on Justice Improvement), Human Rights Watch,
Commissioner Vladimir Lukin and members of the Commission for Human Rights, State Duma
Committee on Constitutional Legislation, Mr Sergei Popov, Vice-Chairman of the Supreme
Arbitrazh Court Alexander Arifulin, Ms Mara Poliakova and the Independent Council for Legal
Expertise, Judge Vladimir Jaroslavtsev of the Constitutional Court, Judge Alexander Melikov, and
Judge Morschokova. Regrettably, the delegation was unable to meet with representatives of the
President’s Office, members of the Supreme Qualification Collegium or of the Federation Council
of the Russian Federation, despite several attempts before and during the mission to arrange
meetings. During meetings, those interviewed were given copies of the Terms of Reference in
English and Russian, were invited to give their opinions with respect to these, and were then asked
specific questions by members of the delegation in order both to draw out the detail of their views
and to compare these views to those give by other people interviewed. The delegation had the
services of an interpreter during all the meetings. In the report, observations are drawn from the
balance of the evidence heard by the delegation: direct attribution of comments is not made unless
a person is relating his or her personal experience, and this is only done with the prior approval of
that person.
All delegation members had input into the report, but special appreciation is extended to Anne
McMillan who acted as Rapporteur.
The HRI and the delegation members wish to express their gratitude and appreciation to those
they interviewed and also to those who assisted them, in so many ways, during their visit. In
particular, the delegation is grateful to IBA interns Patrick Callaghan and Divine Afuba for their
research assistance; Professor Peter Solomon, Director of the Centre for Russian and East European
Studies, University of Toronto; Professor William Butler, Professor of Comparative Law, University
College London; Peter Barenboim, Attorney, Moscow; Corker Binning Solicitors, London; Ms Kara
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Russia – Striving for Judicial Independence
Irwin, Director of Pro Bono Programs, BPP Law School, London, and her team of volunteer
translators Rupert Gordon, Ivan Gordienko, Darya Sobornova, Denis Voock and Richard Low; and
to our excellent interpreter in Moscow, Nailya Kurmasheva.
The HRI gratefully acknowledges the financial support of the Foundation Open Society Institute.
Russia – Striving for Judicial Independence
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Russia – Striving for Judicial Independence
Chapter 2:
Political and Legislative Background
General Political Background
The Russian Federation is the world’s largest country, spanning 11 time zones, bordering 14 nations
and comprising 88 regions of which 21 are ethnically based republics. In all, Russia covers some
17,075,400 square kilometres and has a population of 145,000,000.1 It is recognised in international
law as continuing the legal personality of the former Soviet Union (USSR) which was dissolved on 31
December 1991.2 The most recent Duma (Parliamentary) elections took place on 7 December 2003
and saw an unprecedented win by the pro-Putin party United Russia. The elections to the State
Duma, the lower house of the bicameral parliament of the Russian Federation, were conducted to
elect 450 deputies for a term of four years. Half the deputies were elected from single mandate
district constituencies on a one-round, ‘first-past-the-post’ basis. The other 225 seats were allocated
on a proportional basis to closed lists submitted by political parties or blocs who gained more than 5
per cent of the valid votes cast (including the votes ‘against all’) in a single federal constituency
ballot.3 The Organisation for Security and Cooperation in Europe (OSCE) considered the elections
to be ‘well organized but failed to meet many international standards’ as the lack of media
independence prevented voters from making an informed choice based upon balanced media
coverage.4
Vladimir Putin was formally elected President on 26 March 2000 and won a second term in office
on 14 March 2004 with a landslide majority. The OSCE International Election Observation Mission
(comprising 340 observers from 39 countries) noted the positive turnout of voters, calm voting
atmosphere and the previous consistently high public approval rating of the incumbent president.
Nevertheless, the OSCE still considered the election ‘lacked elements of a genuine democratic
contest.’5 In particular the state-controlled media were perceived to be clearly biased in favour of
the incumbent President in news presentation and coverage of the campaign. The failure of the
authorities to take adequate remedial action towards this bias and the lack of secrecy of the ballot
was also criticised.6 Christian Strohal, the Director of the OSCE, reiterated calls by the Council of
Europe to transform state-controlled media into independent public media.7
1
www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/
ShowPage&c=Page&cid=1007029394365&a=KCountryProfile&aid=1019744935436 UK Foreign & Commonwealth Office.
2 Ibid.
3 www.osce.org/item/8051.html OSCE Final Report on the Elections to the State Duma of Russia.
4 www.osce.org/item/7974.html OSCE Press Release 8th December 2003.
5 www.osce.org/item/8144.html OSCE Press Release 15th March 2004.
6 Ibid.
7 Ibid.
Russia – Striving for Judicial Independence
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The Tsarist Era: 1864 – 1917
The period 1864 – 1917 culminated in the collapse of the Tsarist Empire and is of relevance as a
historical forerunner to modern judicial reforms in Russia. The restructuring that occurred has led
commentators to extol the virtues of this ‘Golden Age’ of Russian law.8 The Judicial Reforms of 1864
led to the emergence of a court system featuring open trials with oral (as opposed to written)
pleadings, rights of appeal, the right to professional representation, judicial independence and
security of tenure (subject to non-malfeasance), and the introduction of Justices of the Peace (JPs)
for minor offences and of jury trials for serious criminal offences. With the exception of the volost
courts for peasants, ‘class courts’ were abolished and two courts of cassation, sitting above the courts
of appeal, were created for civil and criminal reviews. Although the Tsarist autocracy later attempted
to reassert control over judicial independence and backtrack on some of these concessions, their
force as historical precedent remains undiminished.9
The Soviet Era: 1917 – 1991
Following the abdication of Tsar Nicholas II in March 1917, the October Revolution saw the
Bolshevik party (soon to become the Communist Party) overthrow the Provisional Government of
Alexander Kerensky, thereby crushing the latter’s hopes of free elections and a Constituent
Assembly for Russia. Under the dictatorships of Lenin and Stalin the legal system was systematically
undermined during a period of autocratic rule, with potential dissidence being suppressed by
summary executions, a gulag system of forced labour camps and widespread purges.10 The judiciary
was expected by the government to function as a lapdog of the State rather than a watchdog for the
public. Jury trials were eradicated along with Justices of the Peace. Many rights the defendant may
have been permitted could be subject to arbitrary application under the comprehensive control
necessitated by the Soviet system. This perversion of justice is illustrated by the ‘show trials’ of the
late 1930s, and also in secret trials for political offences held in special collegia of regional and
republican courts in which tens of thousands of defendants were tried, found guilty and swiftly
executed without appeal on the basis of confessions, often extracted through torture and threats to
their families.11 Defendants were only represented by counsel either at trial (not in the pre-trial
phase) or after they were convicted, to plead mitigation of their case.
8 S Kucherov, Courts, Lawyers and Trials Under the Last Three Tsars (1953) as cited in W Butler, Russian Law (2nd edn, 2003), p 31.
9 See more generally, P Solomon, ‘Threats of Judicial Counterreform in Putin’s Russia’, (Paper prepared for the International Conference ‘Commercial Law Reform in Russia and Eurasia’, Washington DC, April 2005).
Available at www.reec.uiuc.edu/events/ Conference/lawconf_paper/solomon.pdf
10 Studies estimate the number of deaths to be greater than the six million Jews who died in the Holocaust, see inter alia, W Laquer,
Stalin, the Glasnost Revelations, (Macmillan, 1990), pp 123-7.
11 See G Robertson, Crimes Against Humanity: The Struggle for Global Justice, (Penguin 2002) pp 18-21.
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Russia – Striving for Judicial Independence
The subsequent regimes of Khrushchev, Brezhnev and Andropov ‘made some efforts to address
the worst excesses of Stalin’s rule, while preserving the key elements of Communism.’12 Thus the
‘inferior’ courts continued to be dominated by the Communist Party which was itself constitutionally
supreme vis-à-vis the State.13 Consequently the Party could control state bodies and lawfully ensure
that the judiciary remained ‘nothing more than a machine to process and express, in legal form,
decisions which had been taken within the Party.’14 Under Gorbachev the independence of the
judiciary and significance of individual rights entered the rhetoric of government,15 but little
concrete progress was made towards these goals and a cynicism towards the judiciary prevailed.16
The Yeltsin Era: 1991 – 1999
The policies of openness and liberal restructuring of the economy and political system pursued
under Gorbachev aimed to increase state power at the expense of the Party but brought destabilising
effects, most demonstrably shown by declarations of independence by the Baltic States and
Lithuania in 1989-90. An unsuccessful coup attempt followed in August 1991. It was diffused in large
part due to its depiction as ‘unconstitutional’ by President Yeltsin, Gorbachev’s chief liberal
opponent and Russia’s first democratically elected President. In the aftermath the political initiative
shifted to Yeltsin and the reformers. In November, Yeltsin banned the Communist Party. The
Republics within the USSR voted for independence and the Soviet Union was dissolved on 31
December 1991.
As part of the dismantling of communism, key judicial reforms were proposed. In October 1991
the Supreme Soviet of the Russian Federation – the highest legislative body at that time – issued a
Decree drafted by independent experts on The Concept of Judicial Reform in the Russian
Federation. The Concept laid down a blueprint for reform, announcing that one of the primary
goals of the Russian Federation was to establish ‘judicial power in the state mechanism as an
influential power independent from legislative and executive ones.’
In 1992 a Law on the Status of Judges was introduced, providing judges with increased
protections, including life tenure after a three-year probation period and establishing the role of the
Judicial Qualification Collegia. Judicial power was increased by establishing judicial review of
procuratorial decisions on pre-trial detention and a form of judicial review of administrative acts.17
This was followed by a Law on Jury Trials in 1993 leading to the implementation of trial by jury in
nine of the 89 regions of the Russian Federation by 1995. By 2003, jury trials had been implemented
nationwide (except for Chechnya). In 1998 the decision was taken to resurrect the JPs as full scale
12 FCO, supra, note 2.
13 See the Soviet Constitutions of 1936 and 1977 respectively.
14 F Feldbrugge, Russian Law: The End of the Soviet System and the Role of Law, (Martinus Nijhoff, 1993) p 29.
15 See for example the address of President Gorbachev to the 27th Party Congress, 1986.
16 G Smith, Reforming the Russian Legal System, (CUP, 1996) p 68.
17 See P Solomon & T Foglesong, Courts and transition in Russia (Westview, 2000), Chap 1.
Russia – Striving for Judicial Independence
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primary courts for ‘everyday incidents’ such as low grade civil disputes and certain criminal
offences. As noted above, JPs possess the same functions, duties and were bound by the same
considerations, as other judges.
In September 1993, President Yeltsin dissolved the Russian parliament and called for new
national elections and a new constitution. The standoff between the executive branch and
opponents in the legislature turned violent in October after hard-line Communists and right-wing
nationalists attempted a coup but Russian army units loyal to Yeltsin recaptured parliament and
arrested the main leaders. In December, voters elected a new parliament and approved a new
constitution that had been drafted by the Yeltsin government after a great deal of political
wrangling.
An overview of developments during this period would not be complete without a brief
examination of events in the turbulent Southern Russian region of Chechnya. On 11 December
1994 President Yeltsin ordered Russian troops into Chechnya with a mandate to restore
constitutional order. The conflict had been brewing since the collapse of the USSR when the
Chechen-elected President, Dzhokhar Dudayev, declared independence in defiance of Russian
claims. Moscow withdrew its forces under a 1996 peace agreement which granted Chechnya
substantial autonomy but not full independence. Three years later, however, troops returned.
Military forces remain in the region following the attribution of terrorist activity against Russia to
Chechen rebels.
The Putin Era: 2000 Onwards
With the election of President Vladimir Putin in 2000 came a public announcement of commitment
to further reform of the judicial system, with the aim of creating an independent, but accountable
judiciary. President Putin stated that ‘[A]n independent and impartial court is the legal
protectedness [sic] of citizens. It is a fundamental condition of the development of a sound,
competitive economy. Finally, it is respect for the state itself, faith in the power of the law and in the
power of justice.’18 President Putin also spoke of ensuring ‘that the principle of judicial
independence is implemented in its fullest’, adding that it ‘is not some kind of honorary privilege,
but is a prerequisite for the judicial system to be able to carry out its constitutional functions within
the system of division of powers.’19
A number of new measures affecting the judiciary and operation of the courts have been
introduced during his Presidency. Among the substantive changes were the expansion of jury trials
and the system of Justices of the Peace, new Civil, Arbitrazh and Criminal Procedure Codes (the
latter increasing judicial powers), and a Presidential Programme for the Support of the Courts
18 Speech by President Putin at Meeting with the World Bank President Wolfensohn and the Participants of Global Justice Conference,
9 July 2001.
Available at www.ln.mid.ru/bl.nsf/0/77628302b16249ee43256a86002b3d89?OpenDocument
19 President Putin’s Introductory Remarks at the VIth National Congress of Judges, 30 November 2004. Available at www.cdi.org/russia/
johnson/8476-15.cfm
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Russia – Striving for Judicial Independence
(2002-2006). There was a general trend towards promoting judicial independence, but there were
also some changes which reduced powers given to the judiciary during the 1990s.
It has been argued by some that these changes were necessary as in the initial reform period too
much power was granted to the judiciary, leading to a lack of transparency and potential corruption.
On the other hand, it was also reported to the delegation that various cliques sought to control the
judiciary, particularly where powerful political or economic interests were at stake. The
developments which took place in this period, and their impact on the independence of the
judiciary, will be examined further in Chapters 4 and 5.
Although events in Chechnya are outside the scope of this report, they are mentioned to provide
context to the legislative and policy developments of this period. Government actions in Chechnya
reflected the shift in the balance between the protection of civil liberties and maintenance of state
security in several countries after September 2001.
In the wake of the Chechen rebel attack on a school in Beslan in September 2004, which resulted
in numerous deaths and injuries, President Putin introduced legislation that would allow the
Kremlin to influence the election of regional governors. In the same period, the proposals were put
forward concerning Qualification Boards that were the subject of the IBA mission. It appears that
domestic security is one factor that has provided an impetus towards more control of the judiciary.
Russia – Striving for Judicial Independence
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Russia – Striving for Judicial Independence
Chapter 3:
The Structure and Power of Courts in the
Russian Federation
The court structure of Russia operates within the framework of a civil law system. The judiciary is
divided into three branches: federal courts of general jurisdiction (including military tribunals)
which are subordinate to the Supreme Court; the federal arbitrazh (commercial) court system
under the Supreme Court of Arbitrazh; and the Constitutional Court. The system of general
jurisdiction also comprises Justices of the Peace, who attract the same protections and guarantees as
other judges and may issue binding decrees on specific individuals.1 The Russian legal system is
presently regulated by the 1993 Constitution (as amended on 9 January 1996, 10 February 1996, and
9 June 2001), the 1996 Federal Constitutional Law on the Judicial System of the Russian Federation
(as amended on 15 December 2001) and the 2002 Federal Law on Organs of the Judicial
Community in the Russian Federation.2
Courts of General Jurisdiction and the Supreme Court
Civil and criminal cases are tried in courts of primary jurisdiction, courts of appeals, and higher
courts. On the first rung of the court system ladder are the district courts, which serve each city or
rural district and hear more than 90 per cent of all civil and criminal cases. They operate as courts
of first instance and also hear appeals from Justices of the Peace. Regional courts occupy the next
rung and have both trial and appellate functions, separate judicial collegiums hear civil and criminal
cases respectively. At the highest level, above these courts of general jurisdiction, stands the Supreme
Court. Composed of at least 115 members, the Supreme Court is the ‘supreme judicial body for civil,
criminal, administrative and other cases under the jurisdiction of common courts … [it carries out]
judicial supervision over their activities according to federal law-envisaged procedural forms and
provides explanations on the issues of court proceedings.’3 It consists of the Plenum of the Supreme
Court, the Presidium of the Supreme Court and Judicial Chambers for Civil, Criminal and Military
cases. The Supreme Court has the right of the legislative initiative4 and acts as a court of first
instance for cases of special importance or special public interest. Judges are appointed to the
Supreme Court by the Soviet of the Federation upon the recommendation of the President of the
Russian Federation, which in turn is based upon a recommendation of the Chairman of the
Supreme Court and the opinion of the Qualifications Collegium of the Court.5
1 W Butler, supra, Chap 2, note 8, pp 165-6.
2 Ibid, p 152.
3 Article 126 of the Russian Constitution.
4 Ibid, Art 104(1).
5 W Butler, supra, Chap 2, note 8, p 160.
Russia – Striving for Judicial Independence
21
Arbitrazh Courts and the Supreme Court of Arbitrazh
The arbitrazh court system consists of regional courts as well as appellate circuit courts subordinated
to the Supreme Court of Arbitrazh. They were introduced in their current form by the Law on the
Arbitrazh Court of 1991 and the Federal Constitutional Law on Arbitrazh Courts in the Russian
Federation 1995. The arbitrazh courts are specialised courts for settling property and commercial
disputes between legal entities and between legal entities and the state arising from administrative,
financial and other legal relations. They additionally consider calls from the business sector to
declare null and void acts of state bodies which infringe their rights and violate their lawful
interests.6 Article 127 of the Constitution of the Russian Federation dictates that the Supreme
Arbitrazh Court of the Russian Federation is the ‘supreme judicial body for settling economic
disputes and other cases examined by courts of arbitrazh [and] shall carry out judicial supervision
over their activities according to federal law-envisaged procedural forms and provide explanations
on the issues of court proceedings.’
The Supreme Court of Arbitrazh aims to ensure the uniform understanding and implementation
of the legislation in the sphere of economic relations by all arbitrazh courts.7 The Supreme
Arbitrazh Court acts as court of first instance where specific categories of cases are concerned,
including the claims of invalidity of non-normative acts endorsed by the President of the Russian
Federation, the Federation Council and the State Duma of the Federal Assembly of the Russian
Federation and the Government of the Russian Federation. Furthermore the Court has jurisdiction
to hear economic disputes between the Russian Federation and its constituent parts or between
constituent parts of the Russian Federation.8
The Constitutional Court
Founded in 1991, the Constitutional Court is composed of 19 judges who are irremovable, although
their powers may be terminated or suspended in accordance with Federal law.9 The court may sit in
plenary session or as two chambers of nine and ten judges, although issues such as the
interpretation of the Constitution can only be addressed whilst sitting in its former capacity. The
judges are appointed by the Federation Council upon nomination by the President. Its mode of
operation is governed by the Russian Constitution and the 1994 Federal Constitutional Law on the
Constitutional Court of the Russian Federation (as amended on 8 February 2001 and 15 December
2001). The Court is freestanding and therefore does not operate as a court of cassation, court of
appeal, or court of review in relation to the civil courts.
The Constitutional Court may review inter alia, the constitutionality of certain laws, normative acts
of the executive and legislature, treaties, and also international agreements which have not come
6
Ibid.
7 www.arbitr.ru/eng/ Supreme Court of Arbitrazh of the Russian Federation.
8 Ibid.
9 Russian Constitution 1993 (as amended), Arts 125(1), 121(1), and 121(2) respectively.
22
Russia – Striving for Judicial Independence
into force;10 interpret the Russian Constitution;11 check the constitutionality of a law applied or
subject to be applied in a concrete case;12 and resolve disputes on jurisdiction matters.13
The Constitutional Court refrains from examination of the facts whenever such activity falls
within the competence of another court or another authority.
Its decisions cannot be appealed; consequently any laws determined to be unconstitutional are in
principle rendered invalid, without the necessity of recourse to another body. 14
International Law in Russian Courts
Relevant constitutional provisions
Russian domestic law contains clear provisions which ensure the applicability of international law
and even its supremacy in certain circumstances. Judicial independence represents a fundamental
tenet of international law; consequently, any domestic reform proposals in this area need to be
compatible with normative standards at international level.
Article 15 of the Russian Constitution declares that ‘[T]he universally-recognized norms of
international law and international treaties and agreements of the Russian Federation shall be a
component part of its legal system’. Article 15 continues, ‘[I]f an international treaty or agreement
of the Russian Federation fixes other rules than those envisaged by law, the rules of the
international agreement shall be applied’. Thus treaties are a source of international law to be
expressly granted a higher normative status than conflicting domestic law. Norms of less than treaty
status may also have similar domestic status if they can be regarded as ‘international agreements’ of
the Russian Federation (for example, norms expressed in declarations or which are customary
international law accepted by Russia). As a result, Russian-ratified international agreements
containing provisions on judicial independence can be used as a yardstick, which domestic law
provisions in that area must meet or else be bypassed.
Access to international bodies is also provided for. Article 46 (3) maintains that ‘[E]veryone shall
have the right to appeal, according to international treaties of the Russian Federation, to
international bodies for the protection of human rights and freedoms, if all the existing internal
10 Ibid, Art 125(2), which states that the Court ‘shall consider cases on the correspondence to the Constitution of the Russian
Federation…upon requests of the President of the Russian Federation, the Council of the Federation, the State Duma, one fifth of the
members of the Council of the Federation or of the deputies of the State Duma, the Government of the Russian Federation, the
Supreme Court of the Russian Federation and the Higher Arbitrazh Court of the Russian Federation, the bodies of legislative and
executive power of the subjects of the Russian Federation’.
11 Ibid, Art 125(5) declares that this will be done upon the requests of the President of the Russian Federation, the Council of the
Federation, the State Duma, the Government of the Russian Federation, the bodies of the legislative power of the subjects of the
Russian Federation.
12 Ibid, Art 125(4). Such a move could only occur ‘upon complaints about violations of constitutional rights and freedoms of citizens and
upon court requests’.
13 Ibid, Art 125(3). The Court can resolve disputes between federal bodies, between a federal body and a subject of the Federation, and
between the highest bodies of state power of the subjects of the Federation.
14 Constitutional Law on the Constitutional Court 1994, Art 79; and Russian Constitution 1993 (as amended), Art 125(6) respectively.
Russia – Striving for Judicial Independence
23
state means of legal protection have been exhausted’. Accordingly, Russian law provides avenues for
a challenge on human rights grounds at international level, assuming all relevant admissibility
criteria are satisfied.
International Obligations
Russia has ratified the International Covenant on Civil and Political Rights,15 the Convention on the
Rights of the Child,16 and is a party to the European Convention for the Protection of Human
Rights and Fundamental Freedoms.17 Russia has not lodged a reservation to any of the provisions on
the independence of the judiciary contained within these treaties. Relevant provisions of these
instruments are found in Appendix II. These instruments all require the provision of independent
judicial tribunals, and the UN Human Rights Committee, the body charged with monitoring
compliance with the International Covenant on Civil and Political Rights, has stated that the right to
independent and impartial tribunals is ‘an absolute right that may suffer no exception.’18 Also, the
Human Rights Committee in its General Comment No 13 (13 April, 1984) has stated that particular
consideration should be given to the manner in which judges are appointed, the conditions
governing their work, and the independence of the judiciary from the executive branch and the
legislature. Moreover, the UN has issued its Basic Principles on the Independence of the Judiciary
198519 providing detailed guidance to States regarding the content of the standards of judicial
independence expressed in the treaties. This includes freedom of expression and association,
qualifications, selection and training, conditions of service and tenure, professional secrecy and
immunity, discipline, suspension and removal. In particular, interference with or threats made
against members of the judiciary when carrying out their duties is prohibited.20
On 28 February 1996, Russia became a member of the Council of Europe. The Council has
issued numerous Recommendations, Principles and Guidelines on the subject of judicial
independence, including in the context of terrorism.21 Given the Council’s aim of promoting
human rights and the rule of law so as to standardise members’ legal practices there is an added
political onus for states to adhere to these standards. In particular, the European Charter on the
Statute for Judges22 also provides for the competence, independence and impartiality of every judge
15 Ratified by Russia on 16 October 1973. Russia ratified the First Optional Protocol to the ICCPR on 1 January 1992. Thus individuals
who meet the admissibility requirements, and claim to be victims of Russian violations of the Covenant, may petition the Human
Rights Committee.
16 Ratified by Russia on 16 August 1990.
17 Russia recognised the right of individual petition before the European Court of Human Rights on 5 May 1998.
18 Communication No. 263/1987, M. Gonzalez del Rio v Peru (views adopted on 28 October 1992), UN Doc. CCPR/C/46/D/263/1987,
para 5.2.
19 Adopted, without vote, by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at
Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of
13 December 1985.
20 Principles 2 and 4.
21 See for example, the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight Against
Terrorism (adopted on 15 July 2002), Section IX on Legal Proceedings:
(1) A person accused of terrorist activities has the right to a fair hearing, within a reasonable time, by an independent, impartial
tribunal established by law.
22 10 July 1998, DAJ/DOC (98).
24
Russia – Striving for Judicial Independence
which can be legitimately expected by everyone. It contains guidelines on selection, recruitment
and training of judges, appointment and termination of powers, and remuneration. In particular it
provides that there should be a independent body to which any judge may go if he/she feels that
judicial rights or independence are ‘threatened or ignored in any way whatsoever’.23
Finally, although the former USSR abstained during voting for the Universal Declaration of
Human Rights24 in 1948, this instrument constitutes at the very least, a declaratory norm of
immense importance. Indeed, its provision on independent judiciary is a fundamental principle of
international law: it appears to have obtained the status of customary international law and is
echoed in conventions and constitutions worldwide, including that of Russia, as well as in the human
rights treaties to which Russia is expressly a party.
There are therefore obligations in international, regional and domestic law binding on Russia to
guarantee judicial independence, and the meaning of these has been extensively elaborated upon.
23 At para 1.4. See Appendix II.
24 Adopted by General Assembly Resolution 217 A (III), 10 December 1948.
Russia – Striving for Judicial Independence
25
26
Russia – Striving for Judicial Independence
Chapter 4:
The Judicial Qualification Collegia:
Proposed Legislative Changes
Introduction
The IBA’s decision to send a rapid response mission stemmed from the proposals of September
2004 to alter the composition of the Qualification Collegia. The Qualification Collegia are bodies of
judicial self-regulation that were established at the regional (Judicial Qualification Collegia) and
national (Supreme Qualification Collegium) level in 1989. They play a key role in the appointment,
promotion and dismissal of judges. When the Collegia were first introduced all of their members
were judges.1 In that era, increasing the power and independence of judges was a stated aim of the
ongoing judicial reform progress:
‘To consider the carrying out of judicial reform a necessary condition for the functioning of the
RFSFR as a democratic state, and one of the priorities of legislative activity ... was to establish judicial
power as an autonomous and influential force within the machinery of state, independent in its
activity from the legislative and the executive.’2
The 1996 Federal Constitutional Law on the Judicial System of the Russian Federation clarified
the legal status of the Collegia. The members of the Supreme Qualification Collegia were to be
elected by the Congress of Judges of the Russian Federation, and other Qualification Collegia were
to be chosen by judges from within the different court systems.3 It is important to note that the
introduction of the Collegia enshrined the principle of a judiciary subject to regulation by its peers.
In late 2001, partly in response to concerns that judges had been given too much power of selfregulation under earlier reforms, the law was amended so that judges would only compose two
thirds of the membership. Of the 29 members of the Supreme Qualification Collegium, 18 would be
judges elected by secret ballot every four years by the Congress of Judges. The remaining ten
members would be selected from among members of the public and appointed by the Federation
Council, but would be legal scholars. A further change was that each Collegia would have one
representative of the President, although in reality such representatives were often not appointed.4
(The delegation notes that some Western European systems include a representative of the
executive in similar bodies).
1 The composition and activities of the Collegia are governed by the Regulation on the Qualification Collegia of Judges. See
Verdomosty RF, No 24, item 856, 1993.
2 Resolution of the Supreme Council of the FSFSR on the Concept of Judicial Reform, 24 October 1991.
3 G Danilenko, Law and Legal System of the Russian Federation (Parker School of Foreign and Comparative Law Columbia University
2000), p 122.
4 P Solomon, supra, Chap 2, note 9, p 8.
Russia – Striving for Judicial Independence
27
The Mironov Proposals
The proposals to change the composition of the Collegia were put forward by the speaker of the
Federation Council, Sergei Mironov, and are hereinafter referred to as the ‘Mironov Proposals’.
Their main effect would be to reduce the number of judicial representatives on the Collegia so that
they represented less than half the members. Taking into account the President’s representative,
judges would no longer have a majority in the Collegia. The IBA shared the concern of other
international human rights organisations that these proposals contradicted the principles of the
European Charter on the Statute for Judges that requires membership on bodies exercising these
powers to be comprised of at least one half judges elected by their peers.5 The proposals received
substantial media coverage in Russia where the judicial community, lawyers associations and human
rights organisations expressed their opposition to the changes.6
Under Mironov’s proposals, the overall membership of the Supreme Qualification Collegium
would be reduced from 29 to 21, 10 of whom would be judges nominated by the President and
confirmed by the Federation Council, 10 members of the public nominated by the speaker of the
Federation Council and approved by the chamber, and, as previously, there would be one
representative of the President. Under proposed amendments to the Law on Bodies of the Judicial
Community in the Russian Federation 2002, Regional Collegia would consist of 17 members in total,
comprising eight judges elected by fellow judges, eight representatives of the public appointed by a
legislative body of state power, and one representative of the President.7
An additional proposal was that the quorum for meetings of Qualification Collegia, including the
Supreme Collegium, be reduced from two-thirds to a simple majority, meaning a judge could be
fired without a single one of his peers being present.8 A further Mironov proposal was that the
Russian President, rather than the Chair of the Supreme Court, should appoint the Director of the
Judicial Department (the head of the body providing administrative support to the courts of general
jurisdiction.)9 This seemed to be an attempt to undermine the more progressive legislation of the
1990s which had transferred administration of the courts from the Ministry of Justice to the
judiciary itself.
It is important to be aware of the wider context in which the Mironov Proposals were made. They
were presented shortly after the Beslan terrorist attack of September 2004. In the President’s speech
which was televised shortly after the attack, there was a direct reference to judicial corruption.10
5 General Principles of the European Charter on the Statute for Judges 1998, para 1.3: ‘In respect of every decision affecting the
selection, recruitment, appointment, career progress or termination of office of a judge the law envisages the intervention of an
authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their
peers...’
6 Decision no 69 of 26 October 2004 of the Presidium of the Council of Judges of the Russian Federation, stated that the proposals were
in contravention of ‘the constitutional principle of the independence of judicial authority, bearing in mind that the qualification
boards of judges are also the bodies of the judicial community which form the framework of judicial authority.’
7 Proposed amendments to the Law on Bodies of the Judicial Community in the Russian Federation, 2002.
8 P Solomon, supra, Chap 2, note 9.
9 Ibid.
10 The President stated in his speech ‘...we have allowed corruption to affect the judiciary and law enforcement systems’.
28
Russia – Striving for Judicial Independence
During the same period President Putin introduced legislation which in effect meant that he and
the Kremlin would nominate the regional governors who may stand for election. The Mironov
Proposals have been almost universally unpopular among the judiciary and the heads of the three
superior courts in Russia registered their objections directly with the President. The delegation
found that in some circles the Mironov Proposals were perceived as part of a general initiative to
centralise power and reduce the influence of the judiciary.
The proposals were overwhelmingly approved by the Federation Council on 29 September 2004
and a draft law was submitted to the State Duma. The delegation found that by the time of their
mission in April 2005 these proposals had not been considered further, although the proposals were
classified as ‘priority’ by Duma staff. As part of its investigations, the delegation sought to discover
the reason for the introduction of the proposals by the Federal Council, why the proposals had not
advanced in the legislative process and finally, what its interlocutors thought would be the fate of the
proposed legislation.
With regard to the introduction of the proposals, the authors of the draft law stated that ‘the
problem of the responsibility of judges to society for fulfilment of their duty has not been solved...’11
They also stated that the current law was vague, that changes would enhance the quality of judicial
candidates, ‘expand public monitoring’ of the judiciary and reduce its dependence on ‘corporate
interests.’12
In the course of its enquiries, the delegation was provided with a number of other possible
motivations for the submission of the proposals, among them the following: it was suggested that the
public perceived the judiciary as corrupt and that the reforms would thus be seen as tackling this
issue; that they were put forward as the first step in a negotiating process in which some changes
would be made to the Qualification Collegia; that they constituted a warning to the judiciary to tow
the official line in political cases; or simply that they were a personal initiative of the Speaker. The
delegation noted that the majority of its interlocutors felt the proposals would not pass in their
present form. Several expressed this conviction in strong terms. Of those interviewed, only one
person held a different view and was unclear as to the likely fate of the proposals.
The Powers of the Collegia
Judicial Appointments
Most judges are appointed by the President of Russia, based on the conclusions of the Collegia
relative to the court in question.13 The 1992 law requires that a candidate take a qualifying
examination in order to be nominated as a judge. Federal judges are subject to a three-year
11 Translation provided to the delegation by the Federal Chamber of Lawyers in Materials for the Meeting with the Delegation of the
Institute of Human Rights of the International Bar Association’, April 2005, p 8.
12 Ibid, pp 8-9.
13 Law on the Status of Judges 1992, Art 5, and the Federal Constitutional Law on the Judicial System of the Russian Federation 1996,
Chap 2, Art 13.
Russia – Striving for Judicial Independence
29
probationary period before final appointment. 14 A judge must be at least 25 years of age, having
experience in the legal profession of not less than five years in order to be appointed to the lower
courts.15 Justices of the Peace are elected locally for a five-year term renewable for a further five
years according to laws adopted at the regional level. The minimum age for appointment to the
Supreme Court or Highest Court of Arbitrazh is 30 years with ten years’ experience. The President
also has the power to refuse a candidate submitted by the Collegia in which case the Collegia can
consider the applicant again and re-submit the application if they so wish.16
The Collegia also have a role in appointing the Chairperson of the court (this is the judge with
the administrative responsibility in the court, for example allocating judges to cases and making
recommendations on suitability). Chairpersons are appointed by the President using a similar
procedure for appointing judges themselves. They are, necessarily, very influential positions.
Judicial Dismissals
Constitutional and legislative provisions state that the discipline or removal of judges is an internal
function of the judiciary.17 The reasons for the removal of a judge are specified in the 1992 Law on
the Status of Judges and include reasons of health, activities incompatible with judicial office, and
actions bringing disgrace to the conscience and dignity of a judge.18 Dismissal decisions of the
Supreme Qualification Collegium can be appealed to the Supreme Court and decisions of
Qualification Collegia of judges of Russian Federation subjects may be appealed to ‘relevant
supreme courts of the republics, to krai and oblast courts, to federal city courts, to the autonomous
oblast court and to the courts of autonomous okrugs.’19 The role of the Court Chairperson is
significant with regard to dismissals. The Court Chairperson has the power to present the case for a
particular judge’s dismissal to the relevant Qualification Collegia for consideration.
The Operation of Qualification Collegia in Practice
In principle, the Russian Government is to be commended for introducing bodies of judicial selfregulation to deal with appointments, promotions and dismissals. Commentators have found that
the Qualification Collegia generally operate fairly with respect to appointments and promotions
although it is less clear that they always act objectively regarding dismissals.20 The delegation was
informed by some sources that the procedures described above are not always applied in practice. In
particular, one judge provided us with documentary support for his claim that he was dismissed for
reasons other than those specified in the law. The delegation also heard of other similar cases in the
14 Law on the Status of Judges 1992, Arts 11 (3) and 4 (1) respectively.
15 Ibid, Art 11 (2).
16 Ibid, Art 6 (7).
17 Federal Constitutional Law on the Judicial System of the Russian Federation 1996, Chap 2, Art 15: ‘Authorities of a judge can be
postponed or ceased only according to the decision of the Qualifying Collegium of judges’.
18 Law on the Status of Judges 1992, Art 14.
19 Federal Law on Bodies of the Judicial Community in the Russian Federation 2002, Art 26 (2).
20 P Solomon & T Foglesong Courts and Transition in Russia (2000, Boulder, CO and Oxford: Westview), p 55.
30
Russia – Striving for Judicial Independence
course of its investigations. On the other hand, it was also reported to the delegation that
Qualification Collegia sometimes acted to prevent judges from being unfairly dismissed in the face
of executive or other pressure. Conversely it was reported that there were concerns that
Qualification Collegia may be inclined to protect judges where a dismissal is justified.
Thus there are clearly conflicting views as to how the Qualification Collegia operate in practice.
The delegation was informed by the Vice-Chair of the Supreme Court of Arbitrazh that ten judges
had been dismissed from Arbitrazh courts over the last five years – some of which involved
corruption or a conflict of interest. According to the Supreme Court, Qualification Collegia
dismissed 68 judges and disciplined 220 during 2002.
The Dismissal of Judge Alexander Melikov
In the course of its mission, the delegation interviewed Judge Alexander Melikov, who was dismissed
by a Qualification Collegium in December 2004. Judge Melikov contends that he was dismissed for
refusing to follow the directives of the Chairperson of the Moscow City Court to impose stricter
sentences and to refuse to release certain accused persons pending their trials. He also stated that
he was accused of acquitting too many defendants and resorting too frequently to settlement and
reconciliation procedures. The delegation was impressed with Judge Melikov’s credibility and has
examined the papers in his case in detail. (See Appendix I). These include an expert opinion from
the Moscow State Law Academy, which scrutinised the legal basis for his decisions and found them
in accordance with the law (except for one minor exception). As Judge Melikov argued (and as is
supported by the expert opinion), under Russian law faulty judicial decisions per se cannot be used as
a basis for dismissal.21 The delegation’s view is that it would undermine the purpose of the
immunity provided by Article 16 of the Law on the Status of Judges if a judge could be dismissed
solely on the basis of his or her alleged legal errors in decisions. In any event, the expert opinion
suggests that Judge Melikov did not misapply the law.
Other Judicial Dismissals
The summaries of two other cases of judges who claim to have been dismissed for refusing to rule as
directed (in one of these cases the judge was eventually re-instated) can be found at Appendix I.
These cases have been well-documented by human rights groups who felt the judges’ claims to be
credible.
Concern was expressed to the delegation about the influence of the Court Chairperson over
individual judges, particularly with regard to dismissals. The delegation notes that there appears to
be a conflict of interest when the Chairperson who recommends to a Collegium that a judge be
dismissed will also be presiding over the court where any appeal the judge may make against his or
her dismissal by a Collegium would be heard (see the case of Judge Kudeshinka in Appendix I).
21 Law on the Status of Judges 1992, Art 16: ‘A judge shall not be brought to any liability for expressing his opinion in the course of a
judgment or for a verdict unless the court establishes the judge’s guilt in a criminal abuse of power.’
Russia – Striving for Judicial Independence
31
Reform of the Collegia
It was noted by the delegation that a number of members of the legal profession described the
judiciary as a ‘closed’ body, not subject to sufficient outside scrutiny. However, in this context it was
also mentioned to the delegation that this may be partly a problem of perception rather than reality,
and that criticism of the judiciary may be exaggerated. The Federal Chamber of Lawyers, in a report
prepared for the IBA mission specifically referred to this issue, stating:
‘Unfortunately, the attitude of Russian society towards its judicial system remains rather
indifferent and sceptical, if not blatantly negative. The media actively publish various materials
on the subject of corruption...and inefficiency of judicial functioning. The idea is being forced
on society that the judicial community is demonstrating a closed and corporate attitude when
deciding questions connected with purging of the judiciary of persons who are unworthy of
this elevated position.’22
This issue must be considered in the light of the democratic reforms of the 1990s when the courts
were given a new role of being an independent arbiter between the citizen and the state. It has been
argued23 that during the period of ‘wild democracy’ judicial authorities were subject to corruption
along with other government agencies. The issue of judicial corruption was not part of the mandate
of the IBA mission. The delegation was presented with no direct evidence of corruption, and
statistics indicate that it exists but is far from being endemic.24 However, the delegation heard some
anecdotal evidence of bribery and gleaned the impression that many elements of society, and
government, still considered that corruption was widespread in the judiciary. This perception,
together with the transition from ‘wild’ to ‘controlled’ democracy, has created a climate sufficiently
receptive to changes in the Collegia which might not amount to a legitimate regulation of the
judiciary but actually impinge on judicial independence.
The delegation also discussed with interviewees the general issue of reform of the composition or
functions of the Collegia. It was suggested that some changes to the composition of the Collegia
could be useful in order to improve transparency and thus increase public confidence, although
there was a consensus that judiciary should maintain an overall majority. Among the suggestions
made were for the public representatives to the Collegia to be selected from the following groups:
NGOs, the Human Rights Commission, the Human Rights Ombudsman, the media or lawyers,
rather than simply those with a general legal background. In addition it was suggested that it may
increase the transparency and fairness of Collegia proceedings if they were to be more formal and
their findings made publicly available.
22 ‘Materials for the Meeting with the Delegation of the Institute of Human Rights of the International Bar Association’, April 2005, p 10.
23 See Russian Axis: The Judicial System of the Russian Federation: A System-Crisis of Independence (London, 2004).
24 Country Reports on Human Rights Practices – 2004: Russia (US Department of State, 2005), www.state.gov/g/drl/rls/hrrpt/2004/
41704.htm reports that of 18,749 complaints brought against judges in 2003, 118 judges received warnings and 36 were fired.
Supreme Court figures for 2003 are quoted in the text above. The delegation was told that there are over 30,000 judges in Russia.
32
Russia – Striving for Judicial Independence
Chapter 5:
Reforms Affecting Judicial Independence
Introduction
As mentioned in Chapter 2 a number of reforms have been instituted since the early 1990s which
have affected the operation of the courts in Russia. The Conception of Judicial Reform of 1991
emphasised a fundamental principle of an adversarial system, with a criminal justice process based
on equality of arms and the judge assuming the role of neutral arbitrator. Among other proposals, it
introduced the concepts of judicial supervision of pre-trial investigations, trial by jury and a system
of Justices of the Peace. Under the 1992 Law on the Status of Judges, judges were given the power to
review prosecution decisions on pre-trial detention.
This report is not intended to be an exhaustive examination of legislative reforms affecting the
judiciary in Russia since that time. However, in the context of examining the current state of judicial
independence in Russia, it is necessary to consider the impact of such reforms on such
independence. The reforms discussed below have been categorised broadly but are interconnected.
Powers and Status of Judges
The 1993 Constitution established that in principle only judges could approve pre-trial detention.
From 1993 to 2002 detainees could challenge in court the legality of a procuratorial decision to
institute pre-trial detention as a means of restraint. The new Criminal Procedure Code of 2001 went
further and specified that detainees must be brought before the court in person within 48 hours.
The Code required judicial approval of arrest warrants, searches and seizures. In addition, the Soviet
relic of ‘returns to supplementary investigation’ – a process which permitted judges to grant
investigators a second attempt to gain a conviction rather than grant an acquittal – was abolished.1
The 1993 Constitution established the principle of separation of powers.2 The Constitution also
contains guarantees specific to the judiciary, namely in Article 120: ‘Judges shall be independent
and submit only to the Constitution and the Federal law.’ The reforms of the early 1990s affected
judicial tenure. Judges were guaranteed life appointments (subject to a three-year probation period
for Federal judges3 and were guaranteed irremovability.4 There was initially no upper age limit,
although judges of the Constitutional Court could only serve a maximum of 15 years. In late 2001,
the retirement age was fixed at 65 for all judges, with the exception of Constitutional Court judges,
1 P Solomon, ‘Putin’s Judicial Reform: Making Judges Accountable as well as Independent’, p 8. Available at www.law.nyu.edu/eecr/
vol11num1_2/features/solomon.html
2 Russian Constitution 1993 (as amended), Art 10: ‘The State power in the Russian Federation shall be exercised on the basis of its
division into legislative, executive and judicial power. The bodies of legislative, executive and judicial power shall be independent.’
3 Law on the Status of Judges 1992, Art 11 (3).
4 Ibid, Art 11 ; and Russian Constitution 1993 (as amended), Art 121.
Russia – Striving for Judicial Independence
33
for whom it was 70. President Putin has suggested raising the retirement age for all judges to 70
more recently.5
The 1992 law brought in additional protective measures for judges, including the right to carry a
weapon.6 Judges were given increased legal protection including blanket immunity for
administrative offences and immunity from criminal prosecution.7 The latter immunity could only
be lifted at the request of the Prosecutor General with the important provision that the Qualification
Collegia had to agree. Reforms introduced in 2001, however, reflected the mood of the time which
was to limit some of the broad powers given to the judiciary in the 1990s. For example, the
procedure for lifting judicial immunity from criminal charges was partially altered so that a panel of
three judges could now recommend that immunity be lifted. After some negotiation, the
Qualification Collegia continued in principle to play a role in approving removal of immunity but in
practice their function became more of a formality in approving the decision of the judicial panel.
Administration of the Courts and Judicial Salaries
One of the major changes introduced in 19968 was the transferral of the control over financing and
organisation of the courts from the Ministry of Justice to a Judicial Department attached to the
Supreme Court. The head of the Department is appointed, and can be removed, by the Chairman
of the Supreme Court with the consent of the Head of the Council of Judges. This change can be
seen as positive in distancing the judiciary from the executive branch and increasing its selfregulation, thus diminishing the possibility of external interference in judicial affairs. Closely linked
to this issue is the financing of the courts.
Several theoretical changes have been introduced which have gone some way to improving the
stability of courts finances: both the Constitution and the Law on the Court System of 1996 stated
that financing of federal courts should come from the federal budget, with the effect of reducing
potential abuse of government influence at the regional level. In addition, the law provided for
direct involvement of the judiciary itself in the budgetary process: the chairman of the
Constitutional, Supreme and Supreme Arbitrazh Courts were to be consulted in the process of
drawing up a draft federal budget for the courts.9 However, despite legislative guarantees, the
stability of court financing has been shown to be vulnerable to external events such as fluctuations in
the economic situation. In 1995 and 1996 the government reneged on budgetary commitments and
failed to deliver a sizeable amount of money allocated to the courts.10 The result being that some
courts faced a serious financial crisis in the mid 1990s and in certain instances were forced to
depend upon regional government for basic material support.
5 President V Putin, supra, Chap 2, note 19.
6 Law on the Status of Judges 1992, Art 9 (2).
7 Ibid, Art 16; and Russian Constitution 1993 (as amended), Art 122.
8 Federal Constitutional Law on the Judicial System of the Russian Federation 1996, s 38 (2).
9 Ibid.
10 P Solomon & T Foglesong, supra, Chap 4, note 20, p 38.
34
Russia – Striving for Judicial Independence
Furthermore, an attempt was made by the Ministry of Finance to cut the court budget by 26 per
cent in 1998.11 The Chairs of the Supreme and High Arbitrazh Courts complained to the
Constitutional Court and the Court ruled in 1998 that the proposed budget cuts were
unconstitutional and that the principles of judicial independence and separation of powers required
that the court funds be provided as allocated. As a result of the Constitutional Court decision, a
federal law was introduced in 1999,12 which stated that courts should receive financing only from
the federal budget and that payment must be received by the 10th of the month. However, despite
these safeguards, as recently as 2004 the Government tried to challenge the legal ruling that budget
cuts could be made only with the agreement of the judicial community.13 The delegation was
informed by the Office of the Federal Ombudsman that budget cuts to the 2005 budget for the
courts were prevented by intervention of the President and other senior officials.
President Putin’s administration committed itself to a significant increase in spending on courts
by the introduction of a five-year plan, the Presidential Programme for Support of the Courts 20022006: the budget for the court system in 2000 was 8.1 billion roubles and for 2001 was 11.9 billion;14
the overall expenditure for the five-year plan is budgeted at 45 billion roubles (more than US$ 1.5
billion). This increase in funding was to cover a wide range of areas from expansion of the Justice of
Peace system to raising judges’ salaries, increasing court staff (including providing court clerks to
judges), improving court infrastructure and computerisation of courts. A Code of Judicial Ethics was
introduced in 2004.
Judicial salaries have been raised several times and President Putin specifically addressed this
issue at the last All Russia Congress of Judges.15 Nevertheless, salaries remain low in comparison to
lawyers in private practice: at the same Congress it was estimated that the average monthly salary of
judges at different levels was between US$430 and US$1,100 per month.16 The delegation gained
the impression that rates of remuneration and benefits, and the manner in which these were
determined in individual cases, was having a negative effect on judges’ morale and was also affecting
the recruitment of suitable candidates into the judiciary. (The delegation was told that there are
approximately 6,000 vacancies for judicial positions).
Court Chairpersons
As with judges, all Court Chairpersons are appointed by the President after review by the
appropriate Qualification Collegia (depending upon the level in the court hierarchy), by the
Supreme Court itself (for a court of general jurisdiction) and two departments within the
presidential administration. From 1996 to 2001 the regional legislatures also had input into the
11 Ministry of Finance Letter, 02-02-14, April 1998.
12 Law on the Financing of the Courts of the Russian Federation, 1999.
13 P Solomon, supra, Chap 2, note 9, p 26.
14 Ibid, p 10.
15 President V Putin, supra, note 20.
16 US State Department, Country Report on Human Rights Practices, Russia, 2004, according to local media coverage of the VIth All
Russia Congress of Judges 2004. By way of comparison, anecdotal evidence given to the delegation estimated that the average income
in Moscow was US$500 per month, and that Personal Assistants in private companies can earn US$1,000-1,500 per month.
Russia – Striving for Judicial Independence
35
procedure and from 2002 the Presidential Envoy for the federal district in question has to approve
the nomination.The judicial reforms introduced in 2001 limited their term to six years, renewable
for a further six-year period, although they had previously been granted their position without any
time limits.
Chairpersons wield considerable power over the judges attached to their court, particularly with
regard to appointment, promotion and dismissal. It is the Chairperson who writes appraisals and
recommends judges either for appointment after the three-year probationary period, or for
promotion. The delegation was told of instances where probationary judges seeking formal
appointment had allegedly been intimidated by the Chairperson under the threat of an
appointment not being recommended. While the delegation was presented with no direct evidence
of this, it would appear at least that a system which could allow Chairpersons to cow or eliminate
independent-minded judges is in practice the antithesis of recognised international standards for
the judiciary.
It is also the Chairperson who makes the initial recommendation to a Qualification Collegium
that a judge should be dismissed. They can be influential in assisting judges in securing various nonmonetary benefits such as apartments. Although in theory a judge is entitled to be provided with an
apartment within six months of taking up an appointment, it was reported to the delegation that in
practice this often does not occur and delays can be substantial, particularly without the
intervention of the Chairperson at the local level.17
Finally, Court Chairpersons control the allocation of cases within the court. The delegation heard
anecdotal evidence that this power has on occasion been abused to ensure, for example, that a
particular case was allocated to judge more likely to deliver the ‘desired’ verdict, or that a case was
transferred in the middle of proceedings because a judge refused to be influenced.
The delegation notes that there does not seem to be any system for ensuring that cases are
allocated according to objective criteria. The Independent Council for Legal Expertise reported that
a judge who does not follow the directions of his Chair will be ousted. These allegations are
supported by some individual cases documented by human rights organisations (see Appendix I). It
was generally reported to the delegation that amount of power held by court chairs was undesirable.
More specific allegations were made with regard to the abuse of power by the Chairperson of the
Moscow City Court. There is a widely held view that the powers of the Chairperson have been
abused and should be curtailed. This was also clearly the view of Senior District Judge Workman of
the Bow Street Magistrates’ Court in London where he denied an application from the Russian
Government for extradition of two former Yukos executives to Russia, saying: ‘I have heard a
substantial amount of evidence about the concerns over the independence of the judiciary,
particularly in Moscow City … [I]n respect of this particular case I am satisfied that it is so politically
17 P Solomon & T Foglesong, supra, Chap 4, note 20, p 48.
36
Russia – Striving for Judicial Independence
motivated that there is a substantial risk that the judges of Moscow City Court would succumb to
political interference in a way which would call into question their independence.’18
It was also suggested to us that the method of appointing the Chairperson should be changed.
One proposal was that the most senior judge at the court in question should automatically be
appointed Chairperson. Another was that the Chairperson should be elected to a limited term by
the judges of that court.
Justices of the Peace
The institution of Justices of the Peace (JPs), which had not existed since pre-revolutionary Russia,
was re-introduced formally by the 1996 Constitutional Law on the Judicial System. Their role and
powers were further defined in the 1998 Federal Law on Justices of the Peace in the Russian
Federation. A JP must be a minimum of 25 years of age, have at least five years’ experience as a
lawyer and a higher legal education. They must pass a qualifying examination and are elected for a
period of five years, renewable for a further five years.
Initially, JPs were introduced on a trial basis in five regions but now exist in all regions, the
exception being Chechnya. They handle a substantial number of cases previously heard by other
courts: during the year 2000, for example, JPs considered 4,878 criminal cases and 91,762 civil cases.
They have jurisdiction in less serious civil, administrative and criminal cases. The jurisdiction of JPs
was extended by the Criminal Procedure Code of 2001 to allow them to consider criminal cases with
a maximum sentence of three years imprisonment. The judicial system as a whole, however,
continues to be plagued with lengthy delays partly owing to a shortage of judges. According to the
Chairman of Russia’s Supreme Court there are 5,000 judicial vacancies.19 The JP system has assisted
in reducing the caseload and thus improving the efficiency of the courts. According to the US State
Department Report 2003 there was a total of 5576 JPs in 2002 and in some regions JPs heard up to
65 per cent of Federal Judges’ civil cases and up to 25 per cent of criminal cases.
Trial by Jury
Jury trials were introduced on an experimental basis in 1993, in nine out of 89 regions. Ultimately
the possibility of trial by jury was extended to all regions in Russia except Chechnya, following the
introduction of the 2001 Code and the above-mentioned Presidential Programme, which provided
the financial resources. The jury option is not available in district or JP courts and, jury trials
account for a relatively small number of the overall cases, about 1per cent of the total. Thus,
although it was a welcome innovation which helped to promote justice, its overall significance is still
largely symbolic.
18 Government of the Russian Federation v Dmitry Maruyev and Natalya Chernysheva 18 March, 2005, Bow Street Magistrates’ Court (unreported, at p 5 of the transcript).
19 Understaffing the Judiciary: a Barrier to Effective Justice, 28 June 2004. Available at www.legislationline.org/
index.php?country=34&org=0&eu=0&topic=7
Russia – Striving for Judicial Independence
37
Even so, when a jury trial does take place, the likelihood of acquittal rises. For example, the
percentage of acquittals in jury trials in 2002 was 15 per cent compared with 0.8 per cent bench
acquittals.20 However, one-third of acquittals the next year were reversed on appeal to the Supreme
Court and remanded for a new trial. Overall, acquittal rates in Russian courts, which were extremely
low in Soviet times, have remained so during the period beginning in the early 1990s. Indeed,
conviction rates in criminal cases remain extremely high, at 99 per cent for the entire country (in
some courts acquittals were almost non-existent).21 This suggests that, despite recent reforms, an
accusatorial, rather than adversarial, system persists to some extent in the thinking of the judiciary.
It was reported to the delegation that jury trials are seen as significant as they involve citizens in
the legal process. Measures attempting to reign in the scope of trial by jury were also mooted in
February 2004, following a series of high profile acquittals in cases of alleged violations of national
security interests. Valentin Danilov was acquitted of spying for China by a jury. His acquittal was
however overturned on appeal in December 2003 and he was sentenced to 14 years hard labour in
November 2004 (see Appendix I). Professor Solomon documents manoeuvres by the security police
(FSB) to cease jury trials for crimes against the state, influence selection of jurors and even the
allocation of judges to particular trials.22
Resistance to Reform
The establishment of an Academy of Justice founded on the basis of a Presidential Edict of 11 May
1998, which now has ten branches in the regions of Russia, is indicative of a manifestation of the
desire for development and improvement of the judicial system, including its personnel. The
Academy undertakes judicial training and also undertakes fundamental and applied research on the
organisation and activities of the courts. However, within the context of the ongoing reforms, it can
be seen that there has also been resistance to the principle of an independent judiciary, able to
exercise power in a manner which, according to historical notions, would be seen as contrary to
State interests. Among the 2001 reform proposals was an abortive attempt to replace lifetime
security of tenure for judges with 15-year non-renewable terms in office. Such a proposal would be
anomalous among European legal systems.
In a worrying development in late 2002, a Duma Committee accepted proposals which would
have rescinded the Constitutional Court’s binding powers over other branches of government.23 If
the proposals had they not been withdrawn due to fierce opposition they would have considerably
weakened judicial authority in safeguarding the constitution and holding governmental bodies to
account. These measures, particularly when viewed in conjunction with the political and economic
20 US State Department, Country Report on Human Rights Practices, Russia, 2003, as reported in the domestic press.
21 Washington Post, 26 February 2005, P Finn. From the end of 2003 into the first nine months of 2004 in two district courts in Moscow,
total of 4,428 criminal cases were heard. According to court records there were no acquittals. Likewise there have been no acquittals
for cases heard by judges in the last ten years in the regional court in Krasnodar although juries returned not guilty verdicts in 20 per
cent of cases heard in the same court.
22 P Solomon, supra, Chap 2, note 9, p 13.
23 Ibid, p 13.
38
Russia – Striving for Judicial Independence
influence over the courts evidenced by a small group of sensitive but high profile cases, send a
negative signal both to the judiciary and the public with regard to the development of judicial
functions and independence.
Moreover, the delegation received anecdotal evidence (which it was not able to verify
conclusively) of prosecutors being able to appeal acquittals, seemingly ad infinitum, until a
conviction was secured. This in itself would be a breach of the human rights of the accused. It also
impugns the independence of the judges and the courts.
Russia – Striving for Judicial Independence
39
40
Russia – Striving for Judicial Independence
Chapter 6:
Conclusion and Recommendations
An independent and competent judiciary is essential to the separation of powers and the delivery of
human rights. It is also essential in the Russian context where the public has had in the past no
confidence in the ability of the courts to settle disputes independently of the government. However,
judicial independence does not imply lack of accountability. The legislative changes described in
this report have the commendable aim of strengthening and reorganising the judiciary and
providing for both responsibilities and immunities, while making the courts more responsible for
their own financial administration. However, the question that arises is whether the quality of the
legislation is being matched by the quality of the processes through which it is implemented, or
whether the goal of breaking old habits and creating a system of independent judges has stalled.
This is particularly so when allegations of corruption, political influence and manipulation of
appointment and dismissal procedures are regularly made.
The Committee on Legal Affairs and Human Rights of the Parliamentary Committee of the
Council of Europe (which visited Russia to investigate circumstances surrounding the arrest and
prosecution of leading Yukos executives) emphasised the symbolic importance of such cases, both
for the public and the judiciary, in a draft resolution in November 2004:
‘The Assembly stresses the importance of the independence of the judiciary, and of the
independent status of judges in particular, and regrets that legislative reforms introduced in
the Russian Federation in December 2001 and March 2002 have not protected judges better
from undue influence from the executive.’1
More transparency of the processes is needed, so that Russia does not revert to the use of the
judiciary as an arm of the executive, with terrorism used as an excuse for control of the courts.
Indeed, what is needed is judicial independence together with transparency, so that independence
cannot be used as a shield for corruption of, or by, the judiciary.
The delegation is able to make the following findings and recommendations.
Findings
Commitment to Judicial Reform
•
Since the early 1990s, successive governments have committed themselves to the principles of
judicial reform, both formally and by the introduction of legislation containing measures to
enhance judicial independence.
1 Draft Doc November 2004, ‘The Circumstances Surrounding the Arrest and Prosecution of leading Yukos Executives’, Committee on
Legal Affairs and Human Rights, para 6.
Russia – Striving for Judicial Independence
41
•
A programme of legislative reform, with the stated aim of increasing the independence and
power of the judiciary and separating it from the executive and legislative branches, has been
operating in Russia since the early 1990s.
•
The current government can be commended for the creation of formal structures and
introduction of legislation designed to increase the independence of the judiciary during a
difficult transition phase.
Achievements
•
The following substantive changes have contributed to a more independent and transparent
system of justice in Russia:
-
the creation of a system of Justices of the Peace;
-
the introduction of a new Code of Criminal Procedure based on the adversarial principle,
the presumption of innocence and increased judicial control of detention and proceedings
at the pre-trial stage; and
•
the introduction of jury trials.
The following administrative changes have assisted in the development of an independent
judiciary:
-
increases to the salaries of judges;
-
the transfer of judicial administration from the Ministry of Justice to a department of the
Supreme Court;
-
additional protective measures for judges; and
-
judicial supervision of court budgets.
Judicial Qualification Collegia
•
The Qualification Collegia have made a valuable contribution to judicial self-government and
to the development of judicial independence in Russia.
•
The current composition and role of the Qualification Collegia is in conformity with the
European Charter on the status of judges and other democratic systems.
•
As there is a perception in some quarters that the judiciary is an insular body, which lacks, to
some degree, transparency in its internal affairs, changes to the composition and functioning
of the Qualification Collegia are not undesirable per se if such developments contribute to the
creation of a more transparent body.
-
42
However, the changes to the composition of Qualification Collegia suggested in the
Russia – Striving for Judicial Independence
Mironov Proposals, reducing the proportion of judges to less than 50 per cent, would
contravene the European Charter and threaten the independence of the judiciary if
passed into legislation.
Court Chairpersons
•
Sources interviewed and materials examined by the delegation provide support for the
widespread perception of abuse of power by Court Chairpersons in such matters as dismissals,
termination of probationary judges, assistance in obtaining apartments and other nonmonetary privileges, and allocation of cases.
•
The delegation is particularly concerned by a number of cases of judicial dismissals where
undue influence appears to have been wielded by Court Chairpersons or other parties.
Corruption and Political Interference
•
There appears to be a widespread public perception of judicial corruption and political
interference in the judicial process, based partly on a historical view of the judiciary during
Soviet times, but also on several well-publicised recent cases.
•
The delegation did not have the time or the resources to investigate specific instances of
judicial corruption or political interference and its enquiries on these issues were limited.
However, it is apparent that a number of high profile cases have given rise to a widespread
public perception of political and or economic influence over the judiciary. These cases have
the unfortunate effect of reducing public confidence in the judiciary and eroding the
confidence of the judiciary itself to withstand pressure, particularly with politically sensitive
cases.
•
The unusually high rate of convictions in some Russian courts, together with anecdotal
evidence of pressure put on judges to reduce their acquittal rates and impose more severe
sentences, is cited by many respected observers as evidence that there persists the pre-reform
concept of the role of judge as supporter of the interests of the State rather than as an
independent arbiter between the citizen and the State.
Recommendations
While there has been an espoused commitment to judicial reform, the delegation recommends that
a number of steps be taken to ensure the realisation in practical terms of the commitment to judicial
reform and to ensure the development of a truly independent judiciary.
Qualification Collegia
(1) The Mironov proposals should be rejected and no changes made to the composition of the
Judicial Qualification Collegia which would result in there no longer being a judicial majority
Russia – Striving for Judicial Independence
43
on the Collegia. To dispel any doubt on this question, and to assure the judiciary of its ongoing
commitment to judicial independence, the government should publicly state its commitment
to maintaining a judicial majority.
(2) To ensure transparency in the work of the Judicial Qualification Collegia, consideration should
be given to diversifying the representation of non-judicial members of the Collegia to include,
for example, representatives of the private bar, non-governmental organisations, the Human
Rights Commission, and the Ombudsman’s office. However, in no case should the proportion
of judges in the Collegia be lower than two-thirds.
(3) Consideration should be given to introducing more regularised and formal procedures for
hearings before the Collegia and to making their decisions publicly available.
Court Chairpersons
(4) In view of the widespread concerns expressed regarding the abuse of power by Court
Chairpersons, a more transparent system should be adopted for their appointment.
Consideration should be given to increasing the role of the judiciary in this process and the
introduction of more objective criteria for appointment to this position, such as seniority of
judges. In addition, consideration could be given to appointing Chairpersons for fixed terms
of 4-7 years.
(5) The decisions and influence of Court Chairpersons with regard to the discipline and removal
of judges in their courts need to be subject to regular objective review. Appeals from the
decisions of Qualification Collegia currently proceed before courts presided over by the Court
Chairperson who initiated the discipline proceeding. This is unacceptable. Final decisions
taken to discipline or remove a judge should also be subject to independent and objective
review.
(6) The allocation of cases in individual courts by Chairpersons must be done according to
objective criteria. Consideration should be given to developing such criteria in the light of the
rules relating to judicial independence which are binding on Russia. Cases should not be
transferred from individual judges except in accordance with clearly established procedures
and for reasons established by law such as conflict of interest, ill-health, etc.
Promotion of Judicial Independence
(7) Immediate steps should be taken to ensure that undue pressure is not exerted on the judiciary
in high profile economic and political cases. As such cases attract wide media coverage and are
significant in affecting public perceptions of the judiciary, they must also be seen to be decided
in an impartial and transparent manner.
(8) An investigative commission should be established composed of independent judicial and
other legal experts to review individual cases of dismissals of judges. The practice of the
44
Russia – Striving for Judicial Independence
Moscow City Court in particular needs to be subject to an independent investigation with
regard to allegations made by former judges against the Chairperson of the Court. The
commission could also examine well-documented political/economic cases where there is
convincing evidence of undue influence and corruption.
(9) The government should consider implementing a public awareness campaign to improve
knowledge of the role of the judiciary in a democracy, including provision of information
regarding the legislative changes which have taken place affecting the powers of the judiciary.
(10) Consideration should be given to expanding the system of electronic publishing of decisions as
introduced by the Arbitrazh Courts to other courts.
Financial Support for the Judiciary/Courts
(11) While noting the progress made by the executive in raising salaries and increasing funding for
courts, and commitments made to implement further increases, the delegation recommends
that this issue be acted on as a matter of urgency. The government should ensure that the level
of salaries and the conditions of service for the judiciary in all courts are adequate to allow
suitably qualified and experienced legal professionals to be appointed and to reduce their
vulnerability to corruption.
Appointments and Training
(12) In view of the fact that Russia’s judiciary is in a transitionary phase, and the difficulties
inherent in interpreting and applying new legislation and procedures, options should be
actively canvassed to ensure that more of the best trained jurists are appointed to the judiciary.
This may entail a reconsideration of the minimum training and experience needed for
appointment. Lateral modes of entry to the judiciary, such as the expansion of the movement
into the courts from the position of judicial assistant, should be considered.
(13) The decision to establish an Academy of Justice is commended. More systematic and
formalised training for all newly-appointed judges should be institutionalised. In addition,
continuing legal education for all judges, including training in relevant international law,
should be introduced.
(14) The decision to appoint a judge on a permanent basis following a three-year probation period
should be taken by an independent authority, according to a fair and transparent procedure of
confirmation based on a formal assessment procedure. A decision not to appoint must be
subject to appeal and an independent review.
Russia – Striving for Judicial Independence
45
46
Russia – Striving for Judicial Independence
Appendix I
Individual Cases
With the exception of the case of Judge Melikov, the IBA delegation did not personally investigate
the individual cases documented below. However, information regarding some of the cases, all of
which have been extensively documented by respected international human rights organisations,
was given to the delegation during its mission.
Judges Dismissed by Qualification Collegia (following a recommendation of court
chairpersons)
Judge Sergei Pashin
On 11 October 2000, former Judge Sergei A Pashin was dismissed by a 9-4 vote of the Moscow
Qualification Collegium of Judges, ostensibly for revealing his office phone number on a radio
programme and for writing a critical analysis of a court case in a nearby jurisdiction. However, Mr
Pashin claimed his dismissal was a consequence of his independence and refusal to follow the
direction of prosecutors with regard to rulings he should make. For example, Pashin considers his
refusal to rule against a conscript who asked for his constitutional right to do alternative service
instead of joining the military was a motivating factor. Additionally, Mr Pashin had acquitted
defendants in roughly one of every ten cases before him, whereas the national acquittal rate for
criminal cases was closer to one in 200. Human Rights Watch and Memorial, a Russian human
rights organisation, claimed Pashin’s removal reflected a growing reluctance by officials to
permit dissent from judicial and media spheres. In 1998, he was accused of violating an obscure
legal procedure and was suspended. Human rights groups protested, and the Supreme Court
reinstated him.1
Pashin appealed the October 2000 decision to the Civil Board of the Supreme Court and was
successful. However, he later claimed that ‘Moscow City Court officials made the situation so
unbearable… [that he] had to resign’.2
Judge Kudeshkina
In a case that attracted international media coverage, former Judge Kudeshkina of the Moscow City
Court claimed to have been pressured by the Public Prosecutor and the Chairperson of Moscow City
Court, to decide in the prosecution’s favour during the trial of an Interior Ministry investigator. She
states that, when she refused to rule as requested, the Chairperson of the Moscow City Court, Judge
Yegorova, transferred the case to another judge. Mrs Kudeshkina was dismissed in May 2003 for
1 www.hrw.org/wr2k1/europe/russian.html Human Rights Watch, World Report 2001.
2 www.cdi.org/russia/johnson/8396-9.cfm Moscow Times, 6 October 2004.
Russia – Striving for Judicial Independence
47
violating the rules of courtroom conduct and discrediting the judiciary after her public criticisms of
Judge Yegorova, which the latter strongly refutes. Mrs Kudeshkina claims that the Chair of the
Collegium, who decided her case, was a judge of the Moscow City Court, and was therefore under
the authority of Judge Yegorova. Mrs Kudeshinka’s appeal from the decision of the Qualification
Collegium was to the Moscow City Court, thus she was denied an independent review of the decision
of the Collegium to dismiss her. Mrs Kudeshkina has written an open letter to President Putin
accusing the government of making judicial authorities dependent on executive power, and
estimating that more than 80 judges have stepped down under Yegorova since 2000.3
Judge Alexander Melikov
Judge Alexander Melikov was appointed a judge in 1997 and was dismissed by a Qualification
Collegium in December 2004. When the court to which he had been appointed was re-structured,
the majority of judges who had been previously appointed to inter-municipal courts were
automatically reappointed to corresponding regional courts. According to Judge Melikov, the court
reorganisation was largely a formality and transfer of judges from the old to the new courts
(particularly in the case of judges whose appointments had been confirmed like Melikov), should
have been automatic. However, he and 12 other judges were omitted from the list for
reappointment signed by President Putin. No reasons were given for the failure to reappoint these
judges. Pressure was brought to bear on them to take early retirement and all but three did so. Judge
Melikov was also offered early retirement but declined. Cases were not allocated to him and he
presented at his chambers every day and did paperwork.
At a hearing called by an administrative department which normally arranges human resources
matters such as salaries, he and the other judges were ‘dismissed’ on the ground of poor health.
This was later revoked on the basis of improper procedure. Judge Melikov was eventually charged
under Articles 1 and 2 of the Code of Honour of Judges, Articles 1-4 of the Judicial Code of Ethics
and Articles 3 and 8 of the 1992 Law on the Status of Judges, with 22 counts of ‘neglecting the
interests of justice, belittling the reputation of judicial power, and undermining the people’s trust in
the judicial system.’ Specifically, he was criticised for suspending sentences inappropriately and
dropping charges when the parties reconciled. One example considered by the Collegium
concerned a charge of ‘hooliganism,’ where the victim had forgiven the offender, who had no
previous criminal record, and asked Judge Melikov to be lenient. The judge gave the offender a
four-year suspended sentence with three years of probation. The prosecution did not appeal this
decision. The Qualification Collegium dismissed Judge Melikov for ‘... degrading the authority of
judicial power, irreparably damaging the image of the judicial profession and undermining public
confidence in judicial power.’ They made this conclusion based on an examination of his decisions
finding his sentences ‘clearly doubtful and strangely mild.’
Judge Melikov argued that between 2001 and May 2004, he considered 460 criminal cases
involving 544 individuals, of which only four of his verdicts were overturned by higher courts.
3 www.mosnews.com/news/2005/03/11/oustedjudge.html Moscow News, 11 March 2005.
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Russia – Striving for Judicial Independence
A detailed review of Judge Melikov’s work by three experts commissioned by the Russian-based
Independent Council of Legal Experts and provided to the delegation found that his rulings, with
one minor exception from a case in 1998, followed Russian law.4 ‘The decisions of Alexander
Melikov . . . are in line with the criminal and criminal-procedure law,’ wrote Polina Lupinskaya,
head of the Criminal Procedure Department at Moscow State Law Academy. She added that the
charges against him were ‘groundless.’5
The Moscow Judicial Qualification Collegium stripped Judge Melikov of his judgeship in
December 2004 after another hearing and (according to Judge Melikov) deliberation lasting less
than three minutes. Judge Melikov was at pains to stress to the delegation that nothing in the
indictment related to issues such as dishonesty or corruption: the basis related more to the outcome
of cases.
Judge Melikov appealed to the Moscow City Court, the Chairperson of which is the judge who has
allegedly been instrumental in the proceedings against him. After two postponements this appeal
commenced on 22 February 2005. A motion by Judge Melikov to move the proceedings to another
court was rejected on 6 April 2005. At the present time, the case is continuing. Judge Melikov
indicated to the delegation that, if unsuccessful, he could further appeal to the Supreme Court and
the Presidium of the Supreme Court. He also alleged that pages had been added to the accusation
case file and that records of the meetings with the Qualification Board had been falsified. (Despite
attempts to interview members of Qualifications Boards, the delegation was unable to secure an
interview).
Judge Melikov cannot be regarded as officially dismissed until the outcome of the appeals is
determined. However, he is not being paid and is not entitled to the benefits attaching to
resignation, which he described as ‘attractive’. He is supporting himself through part-time
consultancy work. He told the delegation that his cases were not of a political nature nor did they
involve controversial economic matters. He considers that he is regarded as being ‘dangerous’
because he has demonstrated that he will not be manipulated (and might have to deal with political
cases in the future). He told the delegation that he feels he is being used as an example to other
judges.
Political/Economic Cases
Mikhail Khodorkovsky
Mikhail Khodorkovsky made vast profits from the cut-price privatisation of Russia’s second biggest
oil company, Yukos, in the mid 1990s. It has been suggested that these gains came with an implied
agreement to ‘tow the government line’ and remain outside politics.6 However, Khodorkovsky
4 www.washingtonpost.com/wp-dyn/articles/A56441-2005Feb26.html Washington Post, 27 February 2005.
5 Ibid.
6 http://news.bbc.co.uk/1/hi/business/4482203.stm BBC News, 27 April 2005.
Russia – Striving for Judicial Independence
49
began to fund political parties, including the Communists, acquired the rights to publish the
Moskovskiye Novosti newspaper, and hired a well-known investigative journalist critical of President
Vladimir Putin, increasing suspicions that he might have political ambitions of his own.
Mr Khodorkovsky’s supporters and some commentators insist that the trial is an attempt by
President Putin’s administration to silence a potential rival. The Kremlin strongly denies the
accusation – although Economy Minister German Gref admitted to the BBC in June 2004 that the
trial had ‘a certain political element’.7 This view was shared by Amnesty International, who
expressed concern at the fairness of the trials and perceived governmental interference.8
Khodorkovsky is standing trial alongside former colleague Platon Lebedev, on multiple charges of
theft, fraud, embezzlement and tax evasion. Both men protest their innocence. The presiding judge
postponed her verdict without further explanation until 16 May 2005.
Following an investigation, the Council of Europe Parliamentary Assembly (PACE) adopted
Resolution 14189 in January 2005, which suggested that the prosecutions of Mikhail Khodorkovsky
and two other former Yukos executives formed a coordinated attack, and ‘that the interest of the
state’s action in these cases goes beyond the mere pursuit of criminal justice, and includes elements
such as the weakening of an outspoken political opponent, the intimidation of other wealthy
individuals and the regaining of control of strategic economic assets.’10 It added that Yukos appears
to have been arbitrarily singled out by the Russian authorities in violation of the principle of equality
before the law, as other oil and natural resource companies with similar backgrounds were not
investigated. The Resolution questioned ‘the fairness, impartiality and objectivity of the authorities,
which appear to have acted excessively in disregard of fundamental rights of the defence guaranteed
by the Russian Criminal Procedure Code and by the ECHR.’11
The Council of Europe Legal Affairs and Human Rights Committee reported in November 2004
that lawyers for the Yukos officials were prevented contact with clients, denied access to courtroom
during hearings, had their offices searched and documents seized. Russian human rights groups
have noted a chilling effect on freedom of expression and political pluralism in Russia as a result of
the prosecution of these individuals.
On 31 May 2005, Khodorkovsky was found guilty of six of the seven charges of tax evasion, fraud
and embezzlement, and sentenced to nine years’ jail. His business partner Platon Lebedev was also
jailed for nine years. The sentences are one year lower than the maximum that might be imposed
under Russian law. Both have also been ordered to pay 17 billion roubles (US$600 million) to tax
bodies involved in civil suits against them. They have ten days to appeal.
7 Ibid.
8 www.amnestyusa.org/news/document.do?id=80256DD400782B8480256FE000340CE4 Amnesty International, 11 April 2005.
9 http://assembly.coe.int/Main.asp?link=http://assembly.coe.int/Documents/AdoptedText/ta05/ERES1418.htm
10 Ibid, para 14.
11 Ibid.
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Yukos Employees
Alexei Pichugin, former security chief of Yukos, was sentenced to 20 years’ imprisonment in March
2005 for two murders committed in 2002, as well as an attack on the head of the Moscow Mayor’s
communication service. His lawyers are appealing the decision.
On 18 March 2005, a UK magistrates court refused an extradition request by the Russian
government in relation to Dmitri Maruev and Natalia Chernisheva, former Yukos officials with links
to Khodorkovsky and Lebedev. The court found that a fair trial for charges of conspiring to commit
fraud would be likely to be prejudiced by their political opinions and the opinions of those
associated with them, and that moreover the charges against them were politically motivated.
Svetlana Bakhmina, the deputy general counsel of Yukos, was accused of helping Yukos evade
taxes and is charged with embezzlement. She was arrested in December 2004, after her superiors at
Yukos fled Russia. She was questioned for over 13 hours and denied access to an attorney. She has a
heart condition and twice passed out during interrogation, but was denied hospitalisation. She is in
detention and has complained of her separation from her two young children, and the refusal to
grant her telephone access to them based upon a procedural error in filing in the form authorising
such access.12
More generally, the International Commission of Jurists has complained of government
harassment of Yukos’ lawyers in violation of domestic and international legal principles.
Espionage Cases
Igor Sutiagin
Igor Sutiagin, a researcher in Military-Technical and Military-Economic Policy, was arrested on 29
October 1999 and charged with high treason through espionage. He was charged with having
collated information on Russia’s weapons system and passing this on to US military officers in 38
cases. He maintains that he gathered the information only from publicly available sources. In 2001
a regional court in Kaluga found itself unable to ascertain what concrete information he had passed
on, electing instead to send the case back for further investigation. In September 2003 the case was
transferred to the Moscow City Court, which sentenced him to 15 years’ imprisonment with hard
labour – a verdict upheld by the Supreme Court in August 2004. Amnesty International argues that
violations of international fair trial standards have marred proceedings, raising serious concerns that
the prosecution is politically motivated. Amnesty International, Human Rights Watch, the
International Helsinki Federation for Human Rights, the Moscow Helsinki Group and the Public
Committee for the Protection of Scientists issued a joint statement in June 2004, outlining their
concerns in this case, calling as well for a retrial and release from prison pending retrial.13 These
concerns were also cited in the US State Department Report of 2004: ‘Some observers agreed that
12 http://mosnews.com/news/2005/03/10yukoslawyer.shtml Moscow News, 10 March 2005.
13 http://web.amnesty.org/library/Index/ENGEUR460472004?open&of=ENG-2U4 Amnesty International, 17 August 2004.
Russia – Striving for Judicial Independence
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he had no access to classified information and regarded the severe sentence as an effort to
discourage information sharing by citizens with professional colleagues from other countries.’
Valentin Danilov
In December 2003, over two years after his initial arrest in February 2001, Valentin Danilov, a
physicist at Krasnoyarsk State Technical University in Siberia, was acquitted by a jury on charges of
spying for China. The allegations against Danilov stemmed from an open commercial contract he
entered into with a Chinese company, on behalf of his university. In June 2004, however, the
Supreme Court overturned the verdict, ordering a retrial. At the retrial in November 2004, a
Siberian court convicted and sentenced Danilov to 14 years in a maximum security labour camp.
Danilov has always maintained that information he sold to China was already publicly available. A
number of Danilov’s colleagues supported this claim in an open letter written shortly after his arrest.
In it they maintained that the information to be sold was declassified in 1992 and had been available
in the open scientific press for years. Amnesty International considers this case to be ‘among the
most worrying cases’, viewing it as part of a wider pattern of dubious espionage cases against
environmentalists, scientists and journalists.14 Ernst Chorny, Head of the Moscow office of Ecology
and Human Rights, believes such defendants ‘have been chosen not on the basis of their guilt, but
to send a particular message to a certain social group.’15
Mikhail Trepashkin
Mikhail Trepashkin, a former Lieutenant Colonel in the Federal Security Service (FSB) and lawyer,
had been a consultant to a parliamentary commission investigating evidence of putative government
complicity in the killing of more than a hundred civilians during a 1999 bomb blast in a Moscow
apartment building. On 24 October 2003, one week before he was due to present this evidence in
court, he was arrested by members of the FSB, who allegedly threw a firearm into his car and
charged with ‘possession and transportation of an unlicensed firearm.’16 Trepashkin was therefore
unable to represent his clients (daughters of a woman killed in the 1999 bombing), nor was he able
to present the evidence gathered against the Russian government. Immediately thereafter, he was
charged with ‘disclosure of classified information’. Mr Trepashkin was indicted, but the Office of the
Prosecutor did not appear to advance his case until Mr Trepashkin’s findings were quoted in a book
suggesting Russian officials, not Chechen insurgents, were behind the bombings.17
On 19 May 2004, Mikhail Trepashkin was convicted on charges of divulging state secrets, abuse of
authority and unlawful weapons storage. The conviction and a four-year labour camp sentence were
upheld by the Military Board of the Russian Supreme Court, despite Trepashkin’s civilian status. The
14 http://www.amnestyusa.org/magazine/whistleblowers.html
15 Ibid.
16 www.icj.org/news/php3?id_article=3205&lang=eng International Commission of Jurists, 17 December 2003,
17 Ibid.
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International Commission of Jurists has lamented this violation of international fair trial standards
and called on the Russian government to adhere to Resolution 2002/37 of the UN Commission on
Human Rights, which it sponsored. Resolution 2002/37 declares inter alia that ‘[E]veryone has the
right to be tried by ordinary courts or tribunals’.
Freedom of Expression and Information Cases
Yuri Samodurov
In March 2005, prominent human rights activist Yuri Samodurov, was charged with inciting religious
hatred, for sponsoring an exhibition about religion in Russia. Among the exhibits was an icon
portraying Jesus Christ on the background of a Coca-Cola advertisement featuring the words ‘this is
my blood’, and a picture of a saint without a head, enabling visitors to place their head atop the
saint’s body. The Orthodox Church found the exhibition so offensive that it used its prominent
position to insist on prosecution under Article 282 of the Russian Criminal Code. The Moscow
Criminal Court fined Samodurov, as well as the exhibition curator, Lyudmila Vasilovskaia, and
painter Anna Mikhailchuk 100,000 roubles each (approximately US$3,600) for ‘inciting religious
emnity’. Charges of vandalism against Russian Orthodox believers, who attacked the works, had
previously been dropped amid strong political pressure to investigate the allegedly blasphemous
nature of the artworks on display. Rachel Denber, acting executive director of Human Rights
Watch’s Europe and Central Asia division decried the convictions as ‘an unacceptable restriction on
freedom of expression, [setting] a dangerous precedent for state censorship of art and public
discussion’.18
Aleksandr Nikitin
In February 1996, Aleksandr Nikitin, an internationally acclaimed environmentalist, was arrested
and charged by Federal Security Service (FSB), with treason, espionage and divulging state secrets to
the Norwegian environmental organisation, Bellona, in a report he co-authored. The report used
unclassified material in the public domain to illustrate the threat of widespread radioactive
contamination and environmental damage posed by sloppy nuclear disposal practices by Russia’s
Northern Fleet. In December 1996, in response to public outcry, the Procurator General’s Office in
Moscow intervened to release Nikitin from pre-trial detention. The case was returned to the FSB for
further investigation. He was denied the right to leave St Petersburg except with permission from
prosecutors. On 2 March 1997 the Council of Europe Special Rapporteur for the case expressed
concern about the use of secret decrees, flawed expert assessments and slanted reporting in the
media. A picture of personal harassment allegedly stemming from the FSB was also painted. The
European Union, ICJ and the OSCE had also articulated concerns about the trial of Mr Nikitin.19
Whilst incarcerated he was named a prisoner of conscience by Amnesty International.
18 http://hrw.org/english/docs/2005/03/28/russia10375.htm Human Rights Watch, 28 March 2005.
19 www.icj.org/news.php3?id_article=2589&lang=en&print=true International Commission of Jurists, 13 August 2001.
Russia – Striving for Judicial Independence
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In June 1998, Nikitin’s case was finally referred to the St Petersburg City Court, and he was tried
in October. In the absence of sufficient evidence, the judge referred the case for additional
investigation. Lawyers for both the defence and the prosecution appealed against the decision, but
in February 1999 the Supreme Court upheld the ruling. He was acquitted on 29 December 1999.
The prosecution appealed, however, on 13 September 2000. In a final decision almost five years
after the first charges, the Presidium of the Supreme Court dismissed the appeal. An application
before the European Court of Human Rights alleging violations of ECHR Articles 6 (1) and 13 (the
rights to have criminal charges determined ‘within a reasonable time’, and an ‘effective remedy’),
was ruled admissible.20 The European Court of Human Rights depicted the Russian Prosecutor
General’s actions against Nikitin as ‘arbitrary and abusive’, but ultimately found no violations of his
rights under the Convention as included in the initial application, as he was acquitted of those
specific charges.21
20 www.bellona.no/en/international/russia/envirorights/nitikin/index.html Bellona, 23 November 2003.
21 www.bellona.no/en/international/russia/envirorights/nitikin/34855.html Bellona, 26 July 200.
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Appendix II
Relevant Obligations on Russia
relating to the Judiciary
1.
The International Covenant on Civil and Political Rights, 1966
Ratified by Russia on 16 October 1973.
Article 14
1.
All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law.
On 13 April 1984 the Human Rights Committee issued General Comment No 13, further clarifying
the obligations entailed by Article 14: State reports should address judicial independence ‘in
particular with regard to the manner in which judges are appointed, the qualifications for
appointment, and the duration of their terms of office; the condition governing promotion, transfer
and cessation of their functions and the actual independence of the judiciary from the executive
branch and the legislative’.
2.
The Convention on the Rights of the Child, 1989
Ratified by Russia on 16 August 1990.
Article 37
States Parties shall ensure that:
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and
other appropriate assistance, as well as the right to challenge the legality of the deprivation
of his or her liberty before a court or other competent, independent and impartial
authority, and to a prompt decision on any such action.
Russia – Striving for Judicial Independence
55
3.
European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950
Ratified by Russia on 5 May 1998.
Article 6
1.
In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.
4.
Universal Declaration of Human Rights, 1948
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.
5.
UN Basic Principles on the Independence of the Judiciary 1985
The following basic principles, formulated to assist Member States in their task of securing and
promoting the independence of the judiciary should be taken into account and respected by
Governments within the framework of their national legislation and practice and be brought to the
attention of judges, lawyers, members of the executive and the legislature and the public in general.
The principles have been formulated principally with professional judges in mind, but they apply
equally, as appropriate, to lay judges, where they exist.
Independence of the judiciary
1.
The independence of the judiciary shall be guaranteed by the State and enshrined in the
Constitution or the law of the country. It is the duty of all governmental and other
institutions to respect and observe the independence of the judiciary.
2.
The judiciary shall decide matters before them impartially, on the basis of facts and in
accordance with the law, without any restrictions, improper influences, inducements,
pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3.
The judiciary shall have jurisdiction over all issues of a judicial nature and shall have
exclusive authority to decide whether an issue submitted for its decision is within its
competence as defined by law.
4.
There shall not be any inappropriate or unwarranted interference with the judicial
process, nor shall judicial decisions by the courts be subject to revision. This principle is
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without prejudice to judicial review or to mitigation or commutation by competent
authorities of sentences imposed by the judiciary, in accordance with the law.
5.
Everyone shall have the right to be tried by ordinary courts or tribunals using established
legal procedures. Tribunals that do not use the duly established procedures of the legal
process shall not be created to displace the jurisdiction belonging to the ordinary courts or
judicial tribunals.
6.
The principle of the independence of the judiciary entitles and requires the judiciary to
ensure that judicial proceedings are conducted fairly and that the rights of the parties are
respected.
7.
It is the duty of each Member State to provide adequate resources to enable the judiciary
to properly perform its functions.
Freedom of expression and association
8.
In accordance with the Universal Declaration of Human Rights, members of the judiciary
are like other citizens entitled to freedom of expression, belief, association and assembly;
provided, however, that in exercising such rights, judges shall always conduct themselves
in such a manner as to preserve the dignity of their office and the impartiality and
independence of the judiciary.
9.
Judges shall be free to form and join associations of judges or other organizations to
represent their interests, to promote their professional training and to protect their
judicial independence.
Qualifications, selection and training
10. Persons selected for judicial office shall be individuals of integrity and ability with
appropriate training or qualifications in law. Any method of judicial selection shall
safeguard against judicial appointments for improper motives. In the selection of judges,
there shall be no discrimination against a person on the grounds of race, color, sex,
religion, political or other opinion, national or social origin, property, birth or status,
except that a requirement, that a candidate for judicial office must be a national of the
country concerned, shall not be considered discriminatory.
Conditions of service and tenure
11. The term of office of judges, their independence, security, adequate remuneration,
conditions of service, pensions and the age of retirement shall be adequately secured by
law.
Russia – Striving for Judicial Independence
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12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory
retirement age or the expiry of their term of office, where such exists.
13. Promotion of judges, wherever such a system exists, should be based on objective factors,
in particular ability, integrity and experience.
14. The assignment of cases to judges within the court to which they belong is an internal
matter of judicial administration. Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy with regard to their deliberations and
to confidential information acquired in the course of their duties other than in public
proceedings, and shall not be compelled to testify on such matters.
16. Without prejudice to any disciplinary procedure or to any right of appeal or to
compensation from the State, in accordance with national law, judges should enjoy
personal immunity from civil suits for monetary damages for improper acts or omissions in
the exercise of their judicial functions.
Discipline, suspension and removal
17. A charge or complaint made against a judge in his/her judicial and professional capacity
shall be processed expeditiously and fairly under an appropriate procedure.
The judge shall have the right to a fair hearing. The examination of the matter at its initial
stage shall be kept confidential, unless otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behavior
that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance
with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an
independent review. This principle may not apply to the decisions of the highest court and
those of the legislature in impeachment or similar proceedings.
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6.
European Charter on the Statute for Judges, 1998
1.
General Principles
1.1. The statute for judges aims at ensuring the competence, independence and impartiality
which every individual legitimately expects from the courts of law and from every judge to
whom is entrusted the protection of his or her rights. It excludes every provision and
every procedure liable to impair confidence in such competence, such independence and
such impartiality. The present Charter is composed hereafter of the provisions which are
best able to guarantee the achievement of those objectives. Its provisions aim at raising the
level of guarantees in the various European States. Amendments which are intended to
reduce the level of guarantees already achieved in the relevant countries may not be
introduced to national laws.
1.2. In each European State, the fundamental principles of the law on the status of judges are
set out in internal norms of the highest level, and its rules in norms at least at the national
level.
1.3. In respect of every decision connected with the selection, recruitment, appointment,
career progress or termination of office of a judge, the law envisages the intervention of a
body independent of executive and legislative authorities within which at least one half of
those taking part in the meeting are judges elected by their peers in accordance with a
procedure which guarantees the widest representation of the judiciary.
1.4. The law gives to every judge who considers that his rights under the law, or more generally
his or her independence, or that of the legal process, are threatened or ignored in any way
whatsoever, the possibility of consulting such an independent body, with effective means
available to it of exerting legal pressure or capable of proposing such means.
1.5. Judges must show, in discharging their duties, availability, respect for individuals who apply
to them, and vigilance in maintaining the high level of competence which the decision of
cases requires on each specific occasion - decisions on which depend the guarantee of
individual rights - and in preserving the secrecy of information which is entrusted to them
in the course of proceedings.
1.6. The State has the duty of providing judges with the means necessary to accomplish their
tasks properly, and in particular to deal with cases within a reasonable period.
1.7. Professional organisations set up by judges, and entrance to which is freely available to all
judges, shall play a major role in the defence of those rights, which are conferred on
judges by their Law, and in particular in relation to authorities and bodies which are
involved in the adoption of decisions relating to judges.
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1.8. Judges are associated through their representatives and their professional organizations in
decisions relating to the administration of the courts and as to the determination of their
means, and their allocation at a national and local level. They are consulted in the same
manner over plans to modify their Law, and over the determination of the terms of their
remuneration and of their social welfare.
2. Selection, recruitment and initial training
2.1. The norms of the Law relating to the selection and recruitment of judges by an
independent body or panel, base the choice of candidates on their ability to assess freely
and impartially the legal matters which will be referred to them, and to apply the law to
them with respect for individual dignity. The Law excludes any candidate being ruled out
by reason only of their sex, or ethnic or social origin, or by reason of their philosophical
and political opinions or religious convictions.
2.2. The Law prescribes conditions which guarantee, by means of presenting candidates with
requirements linked to educational qualifications or previous experience, the ability
specifically to discharge judicial duties.
2.3. The Law ensures by means of appropriate training at the expense of the State, the
preparation of the chosen candidates for the effective exercise of judicial duties. The
authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training
programmes and of the organization which implements them, in the light of the
requirements of open-mindedness, competence and impartiality which are bound up with
the exercise of judicial duties.
3. Appointment and irremovability
3.1. The decision to appoint a selected candidate as a judge, and to assign him or her to a
tribunal, are taken by the independent authority referred to at paragraph 1.3 of the
present Charter or at its proposal or its recommendation, or with its agreement or on the
basis of its opinion.
3.2. The Law establishes the circumstances in which a candidate’s previous activities, or those
engaged in by his or her close relations, may, by reason of the legitimate and objective
doubts to which they give rise as to the impartiality and independence of the candidate
concerned, constitute an impediment to his or her appointment to a court.
3.3. Where the recruitment procedure provides for a trial period, necessarily short, after
nomination to the position of judge but before confirmation on a permanent basis, or
where recruitment is made for a limited period capable of renewal, the decision not to
make a permanent appointment or not to renew, may only be taken by the independent
body referred to at paragraph 1.3 of this Charter, or at its proposal or its recommendation,
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or with its agreement or on the basis of its opinion. The provisions of paragraph 1.4 of this
Charter are also applicable to an individual subject to a trial period.
3.4. A judge holding office at a court may not in principle be appointed to another judicial
office or assigned elsewhere, even by way of promotion, without having freely consented
thereto. An exception to this principle is permitted only in the case where transfer is
provided for and has been pronounce by way of a disciplinary sanction, in the case of a
lawful alteration of the court system, and in the case of a temporary assignment to
reinforce a neighbouring court, the maximum duration of such assignment being strictly
limited by the Law, without prejudice to the application of the provisions of paragraph 1.4
hereof.
4.
Career development
4.1. When it is not based on seniority, a system of promotion is based exclusively on the
qualities and merits observed in the performance of duties entrusted to the judge, by
means of objective appraisals performed by one or several judges and discussed with the
judge concerned. Decisions as to promotion are then pronounced by the authority
referred to at paragraph 1.3 hereof or at its proposal, or with its agreement. Judges who
are not promoted have a right to lodge a complaint with this body.
4.2. Judges shall freely carry out activities outside their judicial mandate including those which
are the embodiment of their rights as citizens. This freedom may not be limited except in
so far as such outside activities are incompatible with confidence in, or the impartiality or
the independence of a judge, or his or her required availability to deal attentively and
within a reasonable period with the matters put before him or her. The exercise of an
outside activity, other than literary or artistic, giving rise to remuneration, must be the
subject of a prior authorization on conditions prescribed by Law.
4.3. Judges must refrain from any deeds, actions or expressions which are capable of affecting
confidence in their impartiality and their independence.
4.4. The Law guarantees to judges the maintenance and broadening of their knowledge,
technical as well as social and cultural, needed to perform their duties, through periodic
access to retraining at the expense of the State, and shall ensure its organisation while
respecting the conditions set out at paragraph 2.3 hereof.
5. Liability
5.1. The dereliction by a judge of one of the duties directly enshrined in the Law may only give
rise to a sanction upon the decision, following on the ground of a proposal,
recommendation, or consent of a board or body composed at least as to one half of elected
judges, within the framework of proceedings involving the full hearing of the parties, in
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61
which the judge proceeded against must be entitled to representation. The scale of
sanctions which may be imposed is set out in the Law, and their imposition is subject to the
principle of proportionality. The decision of n executive body, of a board, or of a body
pronouncing a sanction, as envisaged herein, may be appealed to a higher judicial
authority.
5.2. Compensation for harm wrongfully suffered as a result of the decision or the behaviour of
a judge in the exercise of his or her duties is guaranteed by the State. The Law may
provide that the State has the possibility of applying, within a fixed limit, for
reimbursement from the judge by way of legal proceedings in the case of a gross and
inexcusable breach of the rules governing the performance of judicial duties. The
submission of a claim to the relevant court shall be permissible by prior agreement with
the body referred to at paragraph 1.3 hereof.
5.3. Each person must have the possibility of submitting without specific formality a complaint
relating to the miscarriage of justice in a given case to an independent body. Such a body
must be authorised, if as a result of careful investigation it is indisputably proven that the
judge was guilty of dereliction of duty, such as envisaged at paragraph 5.1 hereof, to refer
the matter to the disciplinary authority, or at the very least to recommend such referral to
an authority normally competent in accordance with the Law, to make such a reference.
6. Remuneration and social security
6.1. Judges exercising judicial functions in a professional capacity are entitled to remuneration,
the level of which is fixed so as to shield them from pressures aimed at influencing their
decisions and more generally their behaviour within their jurisdiction, thereby impairing
their independence and impartiality.
6.2. Remuneration may vary depending on length of service, the nature of the duties which
judges are assigned to discharge in a professional capacity, and the importance of the tasks
which are imposed on them, assessed under transparent conditions.
6.3. The Law provides a guarantee for judges acting in a professional capacity against social
risks linked with illness, pregnancy, invalidity, old age and death.
6.4. In particular the Law ensures that judges who have reached the legal age of judicial
retirement, having performed their judicial duties for a fixed period, are paid a retirement
pension, the level of which must be as close as possible to the level of their final salary as a
judge.
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7. Termination of the powers of a judge
7.1. The powers of a judge shall be terminated on the following grounds: written resignation,
medical certification of physical unfitness, reaching the age limit, the expiry of a fixed
legal term or dismissal in accordance with the procedure prescribed in paragraph 5.1
hereof.
7.2. The occurrence of one of the grounds prescribed in paragraph 7.1 hereof, other than
reaching the age limit or the expiry of a fixed term of office, must be verified by the body
referred to in paragraph 1.3 hereof.
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Appendix III
Members of the IBA Delegation
Justice Robert Sharpe
Robert Sharpe has been a judge of the Court of Appeal for Ontario since 1999. After graduating
with a BA from the University of Western Ontario in 1966 and an LL.B. from University of Toronto
in 1970, he attended Oxford University where he graduated in 1974 with a D.Phil. Robert Sharpe
was called to the Bar of Ontario in 1974 and practised with MacKinnon McTaggart (later McTaggart
Potts) in the area of civil litigation. He taught at the Faculty of Law, University of Toronto from 1976
to 1988 and served under Chief Justice Brian Dickson as Executive Legal Officer at the Supreme
Court Canada from 1988 to 1990. Robert Sharpe was appointed Dean of the Faculty of Law,
University of Toronto in 1990 and served in that capacity until his appointment as member of the
Ontario Court of Justice (General Division) (now the Superior Court of Justice), in 1995. He was
elected a Fellow of the Royal Society of Canada, 1991. Robert Sharpe has written several books
including The Law of Habeas Corpus (2nd edn 1989); The Last Day, the Last Hour: The Currie Libel Trial,
(1988); Injunctions and Specific Performance (3rd edn 2000); The Charter of Rights and Freedoms (with
Katherine Swinton and Kent Roach) (2nd edn 2002), Brian Dickson: A Judge’s Journey (with Kent
Roach) (2003). Justice Sharpe has also published many scholarly articles. He is a frequent lecturer
at academic conferences and professional development seminars. He has made a previous trip to
Russia in a legal capacity.
Judge William Birtles
William Birtles has degrees from King’s College, London and Harvard Law School. He was called to
the Bar in 1970 and has lectured in law at King’s College, University College London, the London
School of Economics and Oxford University. He is a Circuit Judge sitting at Snaresbrook Crown
Court and the Employment Appeal Tribunal. His publications include Planning and Environment
Law (Longman, 1994); Local Government Finance Law (Butterworths, 2000); Liability for Environmental
Harm (Butterworths, 2004), and various articles, chapters in books and case notes. Judge Birtles has
visited Russia on two previous occasions in a legal capacity. In March 2000 he was a Visiting Lecturer
at the University of Tomsck. He is a Senior Associate Member of St Antony’s College, Oxford.
Anne E McMillan
Anne McMillan was called to the English Bar in 1984, and is a specialist in international human
rights and humanitarian law. She has designed and managed programmes for the development of
legal institutions and the promotion of human rights in several conflict and post-conflict countries.
Her missions with the United Nations include Cambodia, the Former Yugoslavia, Iraq, the Gaza
Strip and the West Bank, her most recent appointment being as Legal Adviser to the UN Special
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Coordinator for the Middle East Peace Process. She was seconded by the UK Foreign Office to the
Organisation for Security and Cooperation in Europe, to participate in missions to Croatia and
Kazakhstan as Human Rights Adviser with responsibility for assisting the respective governments in
legal and human rights reform. She has also worked in Africa with the International Committee of
the Red Cross. Ms McMillan has been Co-Chair of Committee 6 of the IBA Human Rights Institute
since December 1995, editor of HRI News and a Member of the IBA Rule of Law Advisory Panel. She
has written various articles for IBA publications and the Encyclopaedia Britannica on human rights
and rule of law.
Dr Phillip Tahmindjis
Phillip Tahmindjis is Programme Lawyer for the International Bar Association. His recent
responsibilities have included missions to Swaziland and Nepal; running capacity building
programmes in Swaziland and Afghanistan; administering Humanitarian Law training in Serbia and
Montenegro; compiling a Human Rights Manual in conjunction with the UN High Commission for
Human Rights; participating in human rights training for Iraqi lawyers and judges; and
administering a human rights fact-finding project in conjunction with the Raoul Wallenberg
Institute. Dr Tahmindjis has degrees from the Universities of Sydney, London and Dalhousie. He is
a specialist on the domestic implementation of international human rights norms. He is admitted
as a Barrister of the Supreme Court of New South Wales and was for over 20 years an academic
teaching law in Australia, North America and Hong Kong. He has also been a consultant to the
Queensland Government, the Australian Human Rights Commission, the Queensland AntiDiscrimination Commission, and to private industry on discrimination and human rights issues. He
was a member of the Queensland Anti-Discrimination Tribunal, making determinations on
unconciliated cases, and a delegate for AusAid to South Africa with respect to the implementation of
the South African Equality Act.
Phillip has been a member of many organisations in an executive capacity, including President of
the Queensland branch of Amnesty International and Trustee of the Queensland AIDS Council. He
is the author of numerous papers and articles on human rights and discrimination law and was the
editor of the Australian and New Zealand Equal Opportunity Law Reporter. His most recent
publications are Human Rights and Sexuality (Haworth Press, 2005) and the forthcoming special
edition of the International Journal of Discrimination and Law devoted to a comparative analysis of
sexual harassment laws. He is also a trained mediator.
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Russia – Striving for Judicial Independence
Appendix IV
About the IBA
the global voice of the legal profession
In its role as a dual membership organisation, comprising 16,000 individual lawyers and 190 Bar
Associations and Law Societies, the International Bar Association (IBA) influences the development
of international law reform and shapes the future of the legal profession. Its Member Organisations
cover all continents and include the American Bar Association, the German Federal Bar, the Japan
Federation of Bar Associations, the Law Society of Zimbabwe and the Mexican Bar Association.
Grouped into two Divisions – the Legal Practice Division and the Public and Professional Interest
Division – the Association covers all practice areas and professional interests. It provides members
with access to leading experts and up-to-date information as well as top-level professional
development and network-building opportunities through high quality publications and world-class
Conferences.
The IBA’s Human Rights Institute works across the Association, helping to promote, protect and
enforce human rights under a just rule of law, and to preserve the independence of the judiciary
and the legal profession worldwide.
International Bar Association
10th Floor
1 Stephen Street
London WT 1AT
United Kingdom
Tel: +44 (0)20 7691 6868
Fax: +44 (0)20 7691 6544
E-mail: [email protected]
Website: www.ibanet.org
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