The Case Behind Russia’s 99% Conviction RatePosted: October 23, 2012
It is not exactly impossible that the Russian judiciary is corrupt, heavily influenced by outside forces, and even incompetent – but when an article uses something like a high conviction rate and nothing else to back their claims up then more research (and context) is needed.
Talking broadly, the Russian constitution is more than adeqaute. However, implementation of it is less than perfect. Alongside good legislation you have a history of old regulation and barriers that have to be scrapped, as well as a not entirely coherent enforcement. The conviction rate could be a part of it, but it is disingenuous to say that without looking further.
Speaking more specifically about the high prosecution rate in the US, Justo Arenas (an American Chief Magistrate Judge) said that:
“Regarded with the same focal lens as an election result or employment statistics, margins of more than 97% invite skeptical analysis. One reason for a high criminal conviction rate may be a judiciary which is institutionally unfair, partial, and biased, and which reaches its motivated findings based upon fear of the prosecutor’s office or the office of the judiciary appointment authority.”
He also went on to say that a poorly trained defense coupled with a well-trained and funded prosecutor could skew the results, and that culture plays a very important role in the judicial process.
Sergei Nasonov (Moscow law professor) says that “a judge in Russia can lose his job for too many acquitals, … not incorrect acquitals, mind you – a suspicion arises that the judge may be corrupt, and reasons will be found to fire him. This creates fear among judges.” There is, some say, a Soviet legacy in the Russian system that everyone accused is guilty before proven innocent.
As Arenas stated though, “to consider that the high number of convictions is an absolute indicator of a judiciary that is not independent in its decision-making process lacks a sustainable basis in reality.”
Senior Russian officials, such as Dmitry Medvedev emphasised the need to improve the independence of the judiciary.
However, cases are not always as clear cut as people make them out to be. For instance, in the 2008 Boyev vs Solovyov libel case (Boyev being an allegedly corrupt official and Solovyov the one who made the accusations) it would be expected that Boyev (a government minister) would win against the broadcaster Vladimir Solovyov. The first deputy chair of the Supreme Arbitration Court, Yelena Valyavina, showed extraordinary support for Solovyev’s claims and the case was dropped by Boyev.
Krugovaya poruka, which is a sense of mutual accountability and control felt in the judicial setting, influences judicial committees which oversee the independence of the judiciary. Progressive reforms made in 2001 at the start of the Putin presidency fought against this contradiction, by appointing outsiders into judicial committees. This was by all accounts successful, but not implemented widely enough.
Former President Medvedev has admitted that the legislation that is supposed to guarantee independence of the courts does not, saying that “pressure, telephone calls and … outright bribery” are rife “practices and attitudes that stand in the way of building a new, powerful, and affluent Russia.” Whilst progress has been made, as the Boyev vs Solovyov case has shown as well as a weaker tolerance for interference from the oligarchy there are still many problems.
In Russia, there is a tendency to only appoint judges with clearance from more senior officials. This is not formalised, or transparent and usually ends up being no more than a series of informal communications to ‘gauge’ what kind of a person the judge is.
Judge Kudeshkina said that it is very difficult for certain people to be appointed as judges. However, there are huge numbers of vacancies in the Russian system since the 1990s. In 2000, as well as inheriting a seemingly all-powerful oligarch mafia and abysmal economy the incumbents inherited a vacancy of nearly 10% of judges due to a lack of foresight and qualifications. Benches ended up being filled by judicial clerks fast-tracked to tenure. Many of these appointments caused significant problems, and weak appointments can mean a lack of independence (due to a lack of experience in court proceedings). Alena Ledeneva says that giving inexperienced officials independence won’t work if they don’t know how to use it, as they would “be lost without a hint or tip-off from the court chairman”.
Trial by Jury
In 2003, trial by jury was first implemented. There is a lower conviction rate in these trials, and Nasonov says that “between 15 and 20 per cent of defendants are acquitted”.
However, a lower conviction rate could mean that the courts are actually less independent. In 2009 when a jury in Moscow found three defendants not guilty for the murder of journalist Anna Politkovskaya the decision was overturned by Russia’s supreme court. Given the recency of jury trials, it might just be a case of this system maturing before we know what will happen.
An International Comparison
Similarly high conviction rates in China, Japan, and the United States are recognized to be over 95% with Japan being higher than Russia’s. All four have fairly different systems in place, and demonstrate that a high conviction rate is not purely indicative of judicial independence. The UK, which is recognised to have an extremely mature and independent judiciary (ignoring the Privy Council) has a conviction rate of 83% – this does not mean the UK is 83% dictatorship.
The Russian judicial system is faced with a less formalised set of practices than previously imagined, with unwritten convention and loyalty to various governmental and outside factions playing a significant part. These influences are called ‘sistema’, and whilst outsider influence isn’t exactly pervasive it is still present because of this.
The high conviction rate, which is for some a result of corruption and a compromised judiciary is simply a result of circumstance. There isn’t any one factor determinative of Russia’s high conviction rate; a lower conviction rate could just as equally mean a lack of independence. Furthermore, international examples highlight how common high conviction rates are around the world – across many different countries.