Russia’s Criminal Justice System – from Tsar Alexander II to President Putin

SCRSS Digest, Spring 2019

A typical recent criticism of Russia reads as follows: “Although the equality of arms and the right to adversarial trial are guarantees of the Russian Constitution, many cases show deep flaws within the criminal justice system and gross misconduct of the judiciary and prosecution. This includes using fabricated evidence, forced confessions and impunity for perpetrators of crimes.”[1] There is truth in this, especially in politically high profile cases. But is it the whole story?

What follows is a summary of the lecture I gave at SCRSS on 19 October 2018, and draws on some of the material in my 2013 book Law, Rights and Ideology in Russia: Landmarks in the destiny of a great power (Routledge). I previewed the book in an article in the SCRSS Digest in the Spring 2012 issue, pages 5-7.

I start in the early 19^th century. In March 1814 the Russian Army entered Paris, having defeated Napoleon – and returned to Russia having achieved its objectives. Russia appeared to be invincible. Ten years later, the Decembrist revolt of 26 December 1825, led by progressive aristocrats who wanted to prevent the accession of Nicholas I, to abolish serfdom and to establish a constitutional order in Russia, was crushed. Nicholas, a political conservative, ruled from 1825 to 1855.

Criminal justice under Nicholas was aptly summed up as follows: “The secret inquisitional procedure, with its soulless records, with its formal evidence evaluated in advance and prescribing to the judge his decision, could be nothing else but a source of cruelty and inequity. The judge was deprived of liberty of decision, and bound by the rule of formal evidence. He could not acquit or condemn according to his conviction, but only act in conformity with the scale of value of evidence set forth by law. His sentence, though formally correct, was very often nothing but a flagrant injustice.”[2] And “the best evidence in the whole world” was considered by the law to be the confession of the accused.”

However, the Russian Empire lost the Crimean War, which lasted from October 1853 to February 1856, to an alliance of the Ottoman Empire, France, Britain and Sardinia. Nicholas I died on 2 March 1855, succeeded by his eldest son, Alexander II. Alexander was not a liberal, but could see that survival of the Empire and of Tsarism dependent on radical reform. On 3 March 1861 in the Emancipation Manifesto, serfdom was abolished. Abolition of slavery in the USA came a few years later.  Abraham Lincoln issued the Emancipation Proclamation on 1 January 1863, and the passage of the Thirteenth Amendment (ratified in December 1865) abolished slavery in the United States. Russia had led the way.

Abolition of serfdom was followed by the Great Legal Reforms of Alexander II. On 20 November 1864 he signed the decree which enforced four Regulations including Regulations of Criminal Proceedings, and Regulations of Punishments Imposed by Justices of the Peace – in Russian Мировой суд, a direct translation from the English institution established by Edward II in 1361).

Alexander established a unified judicial system, and fundamental innovations in criminal trials. These included the principle of equality of the parties, the introduction of public hearings, trial by jury (again, modelled on English practice), and a professional Bar. Previously there was no legal representation in criminal cases. The powers of the Procurator were substantially reduced, and mainly concerned prosecution in the criminal courts.

The most famous case of jury trial was the acquittal in 1878 of the social revolutionary Vera Zasulich (1851-1919). Her comrade, Alexei Bogolyubov, refused to remove his cap in the presence of Colonel Trepov, the notorious governor of St. Petersburg. Trepov ordered him to be flogged. A group of six revolutionaries decided to assassinate Trepov. On 24 January 1878 Zasulich, shot and seriously wounded Trepov in front of witnesses. She was tried by jury, and the judge was the famous legal reformer Anatoly Koni. The sympathetic jury found Zasulich not guilty. She went on to become a Marxist, and, famously, corresponded with Karl Marx as to whether Russia could achieve socialism through the peasant commune. Judge Koni was a great legal reformer until the 1917 Revolution, became a leading law lecturer in Soviet Russia, and died in 1927.

The Bolsheviks abolished trial by jury and justices of the peace, but the Bar continued during the Soviet period as an independent profession, remunerated by fees, and defending the accused in cases of economic and political crimes. Fearless advocates, often Jewish, in the Soviet period included my colleagues Yuriy Shmidt (1937-2013) in Leningrad and Semeon Ariya (1923-2013 in Moscow). I have a book of Ariya’s defence speeches in Soviet courts. They continued, with their colleagues, in representing defendants persecuted by the post-Soviet regime. However, the Public Prosecutors regained their full Tsarist powers, and as Vladimir Terebilov – Minister of Justice and Chairman of the USSR Supreme Court – wrote in his book The Soviet Court, published in Russian and English in 1973 and 1986, a prime function of the Soviet court was to educate the public in intolerance of crimes, respect for the law, and the rules of socialist community life.

The collapse of the USSR in 1991 has meant the restoration of many of the great reforms of Alexander II. An experiment in trial by jury in 9 regions started in 1993, and covered the whole of Russia from 2003. Justice of the Peace courts were restored from 1998.

This restoration of 1864 took place against the backdrop of a revolutionary transformation in Russia’s attitude to international law. In the USSR, there were two key principles of international law: state sovereignty, and non-interference in internal affairs of states. So the USSR ratified UN human rights treaties, but did not permit external scrutiny of domestic legality.

Under the first president of the Russian Federation, Boris Yeltsin, Russia adopted a new Constitution in 1993, with guarantees for the whole range of human rights and civil liberties, and a provision establishing the supremacy in Russian legal system of international law. This has been explained by the Supreme Court in Resolutions of 2003 and 2013.

In 1996 the Russian Federation joined the Council of Europe (CoE) and in 1998 ratified the European Convention on Human Rights (ECHR), which immediately became part of Russian law. For the first time every person under Russian jurisdiction could complain of violations of the ECHR to the European Court of Human Rights, and thousands have done so. As a result legal textbooks and court judgments are now full of references to European human rights, and there have been substantial changes to Russian law and procedure.

In 2000 I had the honour of being nominated by the Council of Europe to serve as one of three CoE experts working with Dmitry Kozak (now Deputy Prime Minister), Yelena Mizulina of the State Duma, Judge Radchenko of the Supreme Court, and Vladimir Shults, Deputy Director of the FSB. We drafted the new Criminal Procedural Code, which introduced the principle of adversariality into the Russian criminal process, transferred the power to remand on bail or in custody pre-trial, with a presumption for bail, from prosecutors to judges, and many other changes. These reforms have been strengthened by judgments of the Constitutional Court of the Russian Federation, referring to Strasbourg principles and judicial decisions.

Indeed, in the period from 2000 to 2003, President Putin encouraged these and other reforms, spoke often of the “dictatorship of law”, cited Judge Koni, and referred to himself as following in the footsteps of Alexander II. The arrest of Mikhail Khodorkovsky in late 2003, the expropriation of his oil company Yukos, his two criminal trials, and imprisonment in Chita, where Decembrists had been sent to serve their sentences after 1825, marked the end of this reform period.

Today, less than 1% of criminal trials in Courts of General Jurisdiction end in acquittals (15-20% in jury trials), lower than the acquittal rate in the USSR; and the judges are not, as in the UK, former advocates, but are drawn almost entirely from law enforcement and court administration. Members of the Russian Bar fight hard for their clients, but judges frequently read out the indictment prepared by the prosecutor by way of a judgment. All too often criminal proceedings are abused for the purpose of “criminal corporate raiding”, illegal takeovers and political vendettas. The further reform of criminal justice in Russia will require a new generation of genuinely independent judges.

[1]Stefanie Lemke (Maastricht University) “Who Holds Russia’s Judges and Public Prosecutors to Account? How the International Community Fails to Effectively Address Judicial Harassment of Human Rights Defenders in the Russian Federation” 29 January 2018 at  https://voelkerrechtsblog.org/who-holds-russias-judges-and-public-prosecutors-to-account/

[2] Samuel Kutscheroff “Administration of Justice Under Nicholas I of Russia” The American Slavic and East European Review, Vol. 7, No. 2 (Apr., 1948), pp. 125-138, at p.138