Immediately following the emancipation of the Russian serfs in 1861, a series of liberal governmental and societal reforms were introduced. One of these, the Great Judicial Reform, introduced trial by jury to Russia. Twenty years later, it became conceivable that a former serf could sit on the same jury with his former master. Indeed, this jury system became one of the more notable democratic reforms of the Russian empire. It demonstrates that democratic change is possible in Russia, even in the judiciary, a fact perhaps more important now than ever. Despite a host of current judicial reforms, Russians continue to view their legal system with contempt. They have no faith in its institutions and believe it “…ineffective, unjust or downright corrupt.” Russia is in a period of “legal failure,” unable to adequately perform basic legal functions because the population has no faith in the rule of law and views laws as illegitimate. Although the challenge seems daunting, Russia can make progress by focusing on smaller, compartmentalized reforms to restore faith. Given the success of jury trials in imperial Russia, encouraging the growth of trial by jury offers a real possibility to emerge from legal failure.
I. The Russian Legal Tradition
To truly understand current and past developments in the Russian legal system, it is important to first understand the Russian legal tradition. Peter H. Solomon accurately identifies two key aspects by which to analyze the Russian legal tradition: power and culture. Power in the Russian tradition refers to the legal system being run by one strong man, and for much of history that has been an autocratic ruler. Thomas C. Owen contends that Russia has rarely seen the rule of law, but rather “rule through law.” Whether it was the tsar or the Communist Party, the ruling elite were not subject to the same rules as the rest of the populace; the law was often a means of imposing imperial or Soviet will on the nation. Culture refers to meaningful experiences or prevailing attitudes that shape the population’s view towards the law. Russia’s current cultural crisis stems from the apathy and mistrust inherited from the Soviet legal culture. It is important, however, to analyze the Russian legal tradition with one additional factor, manipulability. Manipulability refers to the ability of individuals to influence the outcome of a judicial or legal decision. For example, prior to the Great Reforms, a nobleman’s reputation may have weighed heavily in determining a final verdict. Centralized power, a dysfunctional legal culture, and high levels of manipulability were present in both past systems and exist in Russia today. Historically, however, jury trials existed in only one system, the tsarist. Why? The answer lies in the differences between the authoritarian tsarist and totalitarian Soviet systems.
Trial by Jury in Tsarist Russia
There are striking differences between the Russian legal tradition and the Western. The two paths diverged centuries ago. Russia had minimal if any contact with Roman law, while Western Europe received its basis from it. Additionally, the remoteness of Russia insulated the country from much of the Renaissance, during which philosophical and theoretical dialogue on a wide range of subjects including law started to emerge. Much of Western European history was defined by the struggle between church and state. Conversely, the Orthodox Church was clearly subordinate to the state, so that this conflict never appeared.
Catherine the Great instituted the first system of courts into Russia in 1775. Although Catherine’s system actually established both a uniform civil procedure and a court administration, it had certain limitations. The courts were organized along class lines. There were courts exclusively for nobility, exclusively for merchants, and exclusively for the peasantry. Serfs, however, had no standing and received their justice from the nobility. Little was done to the Russian legal system until the period of the Great Reforms in the 1860s. The lack of development was not unique in Russia; it was decidedly marked by stagnation. As clearly seen during the Crimean War; Russia was inept at mobilizing and fighting a war on its own soil. In the wake of this disaster and subsequent international embarrassment, the new tsar, Alexander II, pragmatically set about reforming Russia to make his empire more competitive with Europe. It soon became apparent that if the first step would have to be emancipation. As the empire grappled with this, other systemic problems glared ever more brightly. Corruption and inefficiency had become endemic throughout the Russian judicial system. Alexander II’s response was to introduce the Great Judicial Reform of 1864.
The Great Reforms greatly impacted the Russian legal system in several key areas. First, they separated the courts from the imperial and provincial administration, which allowed the courts to operate as an independent sphere within the government rather than as a tool of the government. Additionally, they introduced important concepts into the Russian judiciary, including: the ability to utilize competent and competing counsel, criminal and civil procedure, and trial by jury. Although all of the reforms contributed to a functioning legal system, trial by jury would have the greatest long-term impact as it introduced adversarialism, a western court procedure, to Russia. The pre-1864 system was based on an antiquated inquisitorial procedure that stressed: “…presumption of guilt, predominantly written proceedings, and the centrality of ‘confession’ as proof of guilt.” Conversely, the adversarial procedure stressed “…the presumption of innocence, the overriding importance of orality in adjudication, and an official adherence to rigorous standards of proof in evaluating testimony and material evidence.” Jury trials naturally embodied the characteristics of the adversarial procedure. Ironically, the new adversarial Russian legal system never fully escaped the legacy of inquisitorial procedure and instead morphed into a “consensual design” that stressed dialogue and interaction by all parties.
Jury trials initially started in St. Petersburg and Moscow and then spread across Russia. Although the system was designed to be rather exclusive, it became one of the more democratic institutions in imperial Russia. The jury system relied on a pool of potential jurors that were local government officials, peasant elders, or landowners, which cut the majority from the ranks of the eligible. However, the well-to-do landowners and government officials viewed jury service as distasteful and burdensome. Consequently, the peasants on juries, except in Moscow and St. Petersburg where there was less peasant population, outnumbered the other members. The peasants numbered over 90% of the population but their social class had rarely been involved or represented in any political institutions. With peasants being a majority of the jurors, the system was hardly what the imperial government had envisioned but was certainly a sign of progress. Regardless, it is estimated that from its inception, this system tried three quarters of all criminal cases in imperial Russia.
In addition, jury trials and the judicial reforms fostered a legal environment that encouraged liberal thinking and freedom of speech within the courtroom. As
…the most democratic of all the institutions created by the Great Reforms…. The jury courts had the right to grant pardons, previously the exclusive domain of the state government; their verdicts influenced the changing of legal statutes; and their activities provided an example of majority rule in judicial matters….
Following the assassination of Tsar Alexander II, the forces of reaction started attacking jury trials because courts comprised of peasants would often reach the “wrong” verdicts and could not be trusted to administer justice “correctly.” Indeed, in several exceptional cases, juries set free blatantly guilty political criminals. Critics contended that the backward Russian people were “not yet ripe” for this much civic responsibility and democracy. Regardless, criticism remained superficial. Opponents to jury trials were primarily concerned with securing the rights of the imperial government, or autocracy, over the increasingly radical elements in Russian society.
Another key area that the Great Judicial Reform addressed was the concept of equality before the law regardless of class. Ultimately it was this concept that became incompatible with the imperial government and doomed trial by jury, because, certainly, the Russian autocrat was not equal to any other Russian citizen. The legal system was seen as a means for enforcing the tsar’s laws. Jury trials often became platforms for open public and political dissent. Unfortunately, as the forces of change fomented in Russia, the legal system became a tool for keeping radical sentiments in check. Indeed, the imperial administration shifted the responsibility of hearing political crimes from trial courts to provincial administration or local “emergency regimes.” The tsarist government continued to take steps throughout the latter part of the nineteenth-century to counter-reform the legal system and bring it under the firm control of the autocracy. Despite these efforts, the Great Reforms left imperial Russia with a respectable functioning judicial system, the likes of which post-Soviet Russia has yet to match.
Trial by jury remained an intricate part of the imperial legal system. Moreover, it was possible to adopt judicial reform because “…formal legality is the one feature of the liberal state that an authoritarian regime can adopt without necessarily subverting itself.” Tsarist Russia faced crises in all three aspects of the Russian legal tradition but was able to avoid legal failure by allowing a degree of freedom for its citizens.
The Impact of Totalitarianism on the Soviet Legal System
By the October Revolution, Russia was in a legal crisis but still possessed meaningful reforms inherited from the ancient regime. As the political climate became increasingly radical,
The meager base of public and private rule of law that was created in Russia by the early years of the twentieth century – a Duma, semi-independent courts, partially reformed company law, a gold standard as an underpinning of foreign investment – was thoroughly destroyed by the Bolshevik Revolution. All constitutional limitations were cast aside under the Dictatorship of the Proletariat led by the Communist Party.
The Bolsheviks dismissed the concept of rule of law as a petty bourgeois construction. Moreover, liberal institutions like jury systems were disbanded and eventually discredited by the communist intelligentsia. The revolutionaries did not only distrust the ruling class and government authorities, they distrusted the entire system regardless of its liberal veneer.
Lenin and other Soviet leaders soon recognized the true implications of the legal system in Russia and impressed laws on Russia as a means of controlling the populace. Although the legal system initially proclaimed all citizens equal, in practice this was rare. The unitary court system soon divided into regional, territorial, supreme, and extra-judicial courts (tribunals often associated with internal security forces), all with varying levels of influence and abilities. Additionally, fairly early in the Soviet experience the courts ceased to be objective, often giving special considerations to the nomenklatura. Moreover, in an ironic switch, the courts reverted back to inquisitorial procedure, much like the system that existed prior to the Great Reforms.
A typical attribute “…of the Bolshevik administration of justice was the preference for cadres who were loyal over those who were expert.” As Stalin consolidated power, loyalty became even more important within the legal system. The beginnings of the political purges required politically loyal judges and jurists. Stalin soon, however, added an additional characteristic to administering “justice:” terror. This regime of terror was underpinned by the population’s knowledge that it was not justice that determined the outcome of a legal decision but rather the whims of Communist Party bosses. The combination of terror and nearly uncontrollable extra-judicial bodies with no judicial oversight resulted in the Great Purges and some 8 million people died. By the end of the Stalin era and during de-Stalinization, the Soviet population learned two important things. First, any alternative to a regime that purges and incarcerates a large percentage of its population, even if totalitarian, is acceptable. Second, law and the judiciary are tools of the state and not in place to protect individuals from the state.
Once Khrushchev had assumed power, he set out to improve the Soviet Union with ambitious reforms. Within the legal system, these reforms were genuinely aimed at bolstering equality before the law and fostering a fairly independent judiciary. Ironically, Khrushchev not only relied on the local Communist Party members to intervene and enforce his reforms, he encouraged them to intervene. The result was not equality before the law and an independent judiciary, but rather a system that exalted a few party members above the population and subjected the courts to the politically expedient wishes of the party. The Brezhnev era, often referred to as a period of zastoi (stagnation), saw the continued rise of political interventions in the legal system. By the time of Gorbachev’s ascension to power, the Soviet legal system had undergone minimal reforms and largely resembled the same system that had existed at the end of Khrushchev’s rule. As Gorbachev introduced perestroika and glasnost, he understood that
Restructuring has revealed with special clarity the conservatism of our country’s present legal system, which in large part is still oriented not toward democratic or economic but toward command-administrative methods of management, with their numerous prohibitions and petty regulations. Therefore, many legal acts now in effect have become a brake on social development.
Gorbachev recognized that a reformed legal system could aid in the implementation of and adherence to his political and economic reforms. The legal reforms focused primarily on broadening the courts’ jurisdiction, encouraging judicial independence, and strengthening the defense in criminal cases. Even with these reforms, there remained little faith in the system. Indeed, two thirds of law students at Tbilisi University “…consider[ed] the defense lawyer’s participation in a trial to be purely a formality … [saying] it has practically no effect on the outcome of the case.” Ultimately, the Gorbachev reforms amounted to very little; the Soviet Union ceased to exist three years later. The years immediately following Gorbachev’s 1988 legal reforms saw the political environment become increasingly radical. The legal reform debate followed suit and became radical as well. Debate ceased to focus on reforming the legal system but instead suggested with the “Conception of Judicial Reform” that the system be overhauled completely allowing for greater judicial independence, increased judicial powers of judicial review and pre-trial investigations, and a radically changed criminal procedure including jury trials, an institution that had been extinct since tsarist times.
Certainly the Bolsheviks’ initial rejection of trial by jury was ideological. They wished to sever any ties with the old regime and start afresh. Moreover, the dictatorship of the proletariat and the centralization of the Bolshevik vanguard made it hard to envision a liberal legal system predicated on the rule of law. By the time Stalin had consolidated power and forged a totalitarian state, jury trials and an independent legal system were impossibility. Worth considering, however, is whether the Soviet Union faced a type of internal legal failure; the Communist Party held all power, Soviet legal culture pervaded the legal system, and the nomenklatura was able to manipulate many legal outcomes. Throughout the existence of the Soviet Union, the populace had little respect for the law, but rather respected the coercive nature of the law enforcement mechanisms. Coercion from the totalitarian state was the only substance able to hold the Soviet legal system together.
Understanding Legal Failure in Russia
As the Soviet Union drew its last breath, catastrophic economic and political changes gripped the country. Government institutions started to break down and law and order began to vanish. From 1989 to 1990, the number of unsolved crimes rose 39%. Thefts skyrocketed 62% that same year. It is clear that during the twilight of the Soviet Union and during the immediate post-Soviet period, the apparatuses for maintaining state discipline were incapable of enforcing law and order. These realities discredited the rule of law and contributed to what Denis Galligan termed “Legal Failure.” To understand legal failure in Russia, one must view it in wide context.
Generally, legal failure can arise from a variety of causes ranging from unclear laws with large loopholes to judicial or legal institutions incapable of fulfilling their mission. Although there may be many contributing factors, Russia’s legal failure primarily stems from the legacy of Soviet totalitarian rule and the subsequent “illegitimacy of [Russian] law.” Russians tend to be rather cynical when it comes to the legitimacy of law. It is not that they believe that living under a legal framework is pointless or that they despise the law, but rather, the average Russian believes everyone else disregards the law and therefore they should follow suit. The roots of this cynicism and the feeling that law is illegitimate are found in Russia’s Soviet legacy, where law was a tool of the government. Following the collapse of the Soviet Union, “…law was in many respects regarded by the people as alien and coercive, [but] it could not be ignored. That did not mean [the law] had to be obeyed; it meant only that, for life to go on, law had to be avoided and circumvented; it had to be exploited, manipulated, and negotiated.” Essentially, the Soviet legacy fostered an environment that has led to legal failure.
Despite cynicism and legal failure in Russia, liberal western legal practices do not seem to be discredited among the majority of Russians. Indeed, in a series of well-documented surveys from 1992-2000, the majority of Russians held the concept of rule of law in high esteem and the Russian disposition towards the rule of law seemed to improve during this period. Even more encouraging was the correlation that existed between favoring the rule of law and favoring the advancement of democratic institutions. In short, despite the legal and political environment that many Russians live in, most of those surveyed favored the rule of law and democracy. “What people prefer, however, does not always perfectly predict how they behave;” Russians remain hostage to a system that has been slow to change and tends to reward those operating outside the law. How can this contradiction be reconciled? Reforming Russia’s jury system may start relegitimizing the law and help end legal failure.
A Legal System in Transition and Crisis
The transition from the Soviet legal system to a democratic legal system began with the document “Conception of Judicial Reform,” introduced in 1991. The Conception document was a “blueprint” for judicial reform that was formulated by well-known Russian scholars in criminal law. This blueprint outlined many judicial reforms including trial by jury. Despite jury trials also being guaranteed in the new Russian Constitution, trial by jury came under an increasing number of attacks. Critics believed that jury trials represented an importation of Anglo-American legal traditions into a Russian legal environment that did not require them. Certainly, at face value, the remnants of the Soviet legal system were incongruent with western jury trials, but that was the entire point of Conception, to reform the Russian legal system and distance that system from its Soviet legacy. Although opponents were initially successful at stalling the introduction of jury trials into Russia, by October of 1993 trial by jury had been successfully incorporated into the Russian Legal Code. The opposition was successful, however, in leaving the jury system with little funding and undermining the objective nature of jury selection.
Regardless, by the beginning of 1995, after only one year of existence in nine areas within Russia, jury trials were met with a high degree of success. With a rate of acquittal ten times higher than the standard criminal courts (18.5% acquittal rate compared to 1.7% acquittal rate), Russian juries willingly threw out illegally obtained evidence and actively participated in court proceedings. Additionally, jury trials ran quite efficiently and were generally concluded within a few days. So successful was the “experiment” in its first year that officials began proposing the introduction of jury trials in additional areas within Russia.
Despite the successes of jury trials, there are still challenges to be met. Realistically, jury trials occur in one-half of one percent of cases. One reason for this is their restricted jurisdiction. A defendant may only request a trial by jury in murder, treason, or particularly violent rape cases. This has meant that many high profile cases have not had the opportunity to use juries, which would have generated publicity for them and the rule of law. High acquittal rates have, however, remained constant over the past ten years, ranging from 15% to 20% in jury trials compared to .8% to 1.5% in standard trials. Inquisitorial procedure, a legacy of the Soviet Union, has often led to a type of unofficial cooperation between the judges and the state procurators, creating an environment of collusion and corruption and giving the state advantages. Juries, however, have held the courts to established legal standards, which has limited unofficial cooperation and has manifested itself in higher acquittal rates.
Despite the successes that jury trials have seen and the relatively tiny number that actually take place, jury trials are extremely expensive. During the 1990s, jury trials consumed around 25% of the budget of the regional courts. Jury trials are generally expensive undertakings, and when devising jury reforms in the Conception, there was a concerted effort to provide adequate payments for jurors. The writers of the Conception understood the troubles that tsarist Russia had when requesting that the nobility appear for jury duty. The result is a three-dollar daily wage. Although not much by American standards, this relatively high wage seems to have helped retain jury members once they have been called for duty. Regardless, it has also drained courts’ budgets and hindered the further spread of jury trials.
In early 2004, a Vladimir Putin endorsed bill established jury trials throughout Russia. With results similar to years past, the enlarged scope of jury trials resulted in 17% of suspects being acquitted. Yet, implemented judicial reforms have not yet resulted in meaningful long-term reforms. Indeed, the challenges facing the jury system are only exacerbated by the judiciary’s systemic problems including its lack of judicial independence. President Putin has recently indicated that “the judiciary branch’s independence is not an honorable privilege but the necessary condition [for] it [to] perform its constitutional duty in the system of divided powers.” However, there remains little independence in Russia’s judiciary. Recent years have been marked by efforts from the Kremlin to solidify its hold on the court system and influence court decisions. In many of the superior and district courts, the courts’ chairmen as well as the majority of all judges are appointed for terms of varying length by presidential decree. When a judge’s term has been completed, the Kremlin reviews the judge’s performance and decides whether to reappoint him. This system inherently pressures judges who value job security to be sympathetic to Kremlin policies. Recognizing the importance of judicial independence, Russia introduced the concept of lifetime appointments into the judiciary. The progress of this reform has been painfully slow. By 1998, only 23.6% of Russian judges had received lifetime appointments. Unfortunately, a lifetime appointment does not necessarily indicate that the judge is removed from outside influence. For example, if a judge has career ambitions to move to a higher court, they must first pass a new evaluation by the executive branch for promotion.
Another problem facing Russia’s judiciary is its increasing workload and low salaries. The number of cases brought to Russia’s courts has steadily increased, but the courts’ budgets and staff have not been able to keep up. The danger of this situation is clear: in 2000 President Putin indicated that these problems were “…a cause of miscarriages of justice and of superficial, inattentive hearing of cases.” The combination of large workloads and low salaries has bred apathy and bitterness, which has inevitably led to widespread corruption. Indeed, Valery Zorkin, Chairman of the Russian Constitutional Court, has indicated that studies show that businesses are certainly able to corrupt members of the judiciary. Zorkin contends that, “bribery in the courts has become one of the biggest marketplaces of corruption in Russia.”
Courses of Action
Much like the period in tsarist Russia preceding the Great Reforms, Russia is now threatened by institutionalized legal and judicial problems. However, it is encouraging that there was success in the Great Judicial Reform when Russia seemed hopelessly backward. Keeping this in mind, there is hope for Russia. The first step in reform must be to secure a larger financial commitment from the government. To properly implement all needed judicial reforms, the current budget would likely have to be tripled. Jury trials are expensive, but if Russia hopes to expand this vital aspect of the needed reforms, these funds are crucial. Russia must also consider expanding the jurisdiction of jury trials. The narrow jurisdiction in murder, treason, and violent rape cases inherently limits the number of jury cases to just a fraction of the cases heard by the courts. Expanding the jurisdiction would likely lead to more high profile cases that would reflect well on the judiciary and demonstrate that Russian citizens are a vital part of the legal process. The impact of increasing the role of jury trials in Russia could be substantial. Juries have helped produce transparency in Russian courts. As juries consistently reject inappropriately obtained evidence and question the defense and procurators alike, the courts become more accountable. Jury trials have often resulted in placing a higher burden of proof on the prosecution. Although officially the defendant is considered innocent until proven guilty, inquisitorial procedure often seems to place the judge on the prosecution’s side. Juries check this abuse by forcing law enforcement officials to follow proper procedures in order to have admissible evidence.
Once when I was speaking with a Russian lawyer, she said the problem with jury trials is that Russia has never had them before. She stated that the people are not ready for them, and they are highly manipulable. Once again, she articulated the inherent belief that the Russian people are not ready for reform; they are not worthy of democratic institutions! Not surprisingly, many Russians do not realize the extent of jury trials in imperial Russia prior to the revolution. Certainly there were problems in the implementation and administration of jury trials during this era, but for the most part they were highly successful and democratic. At the same time, there are problems with the current system of jury trials in post-Soviet Russia. The question is, at the present time are the obstacles to successful implementation of jury trials any more difficult to overcome than the obstacles faced when abolishing serfdom and autocracy? The answer to this question remains to be seen, but what is apparent is that Russia, through bolstering the trial by jury system, has the opportunity to combat legal failure.
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