Five myths about Russian judicial reform
Vladimir Novikov, RAPSI
Last June President Vladimir Putin suggested merging the Supreme Court and the Supreme Commercial Court and amending the Constitution to match. Since then the State Duma has received many draft laws relating to the merger and the court’s impending relocation to Saint Petersburg. However, some lawyers are vigorously speaking out against any such reform. This is easy to understand because it will soon turn the lifestyle they’ve come to know on its head. However, many such arguments are beyond criticism, and if you look closely at the reasoning advanced, it is clear that these opponents are not just deluded, but actually aimed at subverting the president’s proposal.
The two courts that presently exist serve as the head honchos of the general jurisdiction and commercial court structures respectively. In Russia, courts of general jurisdiction deal with all criminal matters that don’t fall within a special category, such as the jurisdiction of the military courts. The courts of general jurisdiction also deal with civil claims arising from actions implicated in criminal proceedings. On the other hand, the commercial courts deal exclusively in commercial disputes.
Myth Number One: Russia’s system of commercial courts will be gutted
This theory was advanced almost immediately after Putin made his proposal. Some hypersensitive lawyers decided that the Supreme Commercial Court would essentially perish.
Presidential Legal Aide and former Chairman of the Supreme Commercial Court Veniamin Yakovlev attempted to persuade them by emphasizing that the draft submitted to the Duma was designed to unite the two courts, not to allow for the consumption of the smaller court by the larger one. The reform’s critics refused to believe him, despite the fact that even the most radical among them knows perfectly well that nobody is trying to destroy Russia’s system of commercial courts.
There is one more counterargument – a financial one. On October 26, Head of the Presidential Administrative Directorate Vladimir Kozhin announced that the construction of the court buildings in Saint Petersburg would be funded primarily by the federal treasury. “I don’t rule out that other sources will be also used,” he said, adding that some funds may come from the sale of the Supreme Commercial Court’s property in Moscow.
If this court were no longer of use, the funds from the sale of its expensive assets (its building in downtown Moscow has a market value of tens of millions of dollars) would be spent on something other than such logistics.
Myth Number Two: Judges will quit
This myth was also born shortly after Putin made the announcement at the economic forum in Saint Petersburg. Several days later, its perpetuators claimed that judges of the Supreme Commercial Court would have to confirm their eligibility by taking exams before being admitted to the united Supreme Court.
The advocates of this idea were not the least bit concerned with the fact that under Russian law, all judges have the same status, and that the leveling of this system would be contrary to the Constitution. And we’re just skimming the surface here.
Various media outlets reported that about a dozen judges were preparing to quit, and that many of their colleagues were ready to follow suit. It was soon revealed that not a single pending resignation was directly linked with the move.
Later Vladimir Pligin, chairman of the State Duma Committee on Constitutional Legislation and Statehood, said that none of the current judges working with either of the courts would have to take any qualification exams after the merge.
The forthcoming move to Saint Petersburg caused an uproar as well. Similar rumors were abound when the Constitutional Court planned to move to Saint Petersburg five years ago, but in fact none of its 19 judges resigned as a result. According to unofficial estimates, the staff turnover rate was about 25% after the court moved to Saint Petersburg. In a case involving the merger of a couple of courts, even a 50% turnover rate would fairly unsurprising.
Myth Number Three: Nobody needs the Commercial Court’s experience
Skeptics are primarily lamenting the loss of the electronic system that was developed and introduced by the Commercial Court. They claim that after the merger this court will be very similar to courts of general jurisdiction that shut their doors to technical progress despite the adoption of Federal Law No. 262 on the Transparency of the Judiciary.
On the one hand, the skeptics were right. Electronic initiatives and innovative technology are being introduced in the courts of general jurisdiction with moans and groans – sometimes due to red tape, and sometimes because old habits just die hard. Furthermore, all courts are short of technical experts for work on judicial acts prior to their publication.
The courts have been slow to introduce videoconferencing to allow judges to hold some procedures remotely. This technology is nothing new for big cities, but it’s in the Science Fiction/Fantasy section as far as hundreds of regional courts are concerned.
On the other hand, after the merge, this technology may encourage more than 3,000 courts of general jurisdiction to improve.
At the end of the day, no reforms or mergers are necessary toward the aim of sending Russia’s courts back to the 1930s. It is enough to criticize everything and do nothing.
Myth Number Four: Management problem
Skeptics are confident that the proposed court will be headed by a person without the proper experience or knowledge, someone who lacks a proper understanding of the nuances and subtleties of justice.
Unequivocal predictions – whether positive or negative – are hardly appropriate here. There are no reforms without difficulties. Why blow them out of all proportion?
Skeptics should recall examples from our recent history - for instance the biography of Anton Ivanov, whom they tend to hold in high esteem. What positions did he occupy before being appointed as chairman of the Supreme Commercial Court in January 2005? During his first two or three years in this position every lawyer and every other journalist were happy to reproach him for his “unprofessional” past, taking into account that before assuming his responsibilities as the chairman of the Supreme Commercial Court, Ivanov served as deputy to the general director for one of the Gazprom affiliates.
Myth Number Five: Black and white
The last myth is linked to the objectivity of court’s judgments and its professional integrity as a whole. Courts of general jurisdiction are blamed, above all, for low numbers of not-guilty verdicts. Maximum transparency is presented as the commercial courts’ central achievement. Some experts see it as a guarantee of democratic values, such as fairness, the adversarial principle, and a lack of bias.
In criticizing what they refer to as the retrograde, stagnate and dull courts of general jurisdiction the reform’s critics most often recall the YUKOS case. They claim that Mikhail Khodorkovsky and Platon Lebedev were sent to prison on far-fetched bases, and that reform is impossible because these courts are beyond repair.
But Russian commercial courts are not so innocent themselves. It is worth bearing in mind that the property and assets of the Khodorkovsky empire were divided up by a commercial court.
Finally, the black and white pattern falls to pieces if we take a look at the media reports on bribe takers and problem solvers in judiciary. Finally, whom did Putin have in mind when he called for tougher anti-corruption measures in courts and the judiciary? Any practicing lawyer knows the answer to this question.