COMMENTARY
By Gordon M. Hahn
The Russian court’s guilty verdict in the embezzlement case against Mikhail Khodorkovskii and Platon Lebedev has received the undivided attention of the U.S. mainstream media and is held up as the rule when it comes to Russia’s albeit less than independent or impartial judicial system. But the media’s singular focus on this case is a smokescreen that allows them to suppress news about the long-term, potentially democratizing thaw that emerged under President Dmitrii Medvedev, as we predicted 38 months ago.
The trial and conviction of Khodorkovskii and Lebedev is unfortunately a long-standing process that predates the new liberalization process, and therefore it cannot constitute evidence that nothing has changed. It is the continuation of an old policy; one, moreover, that also may change, should Medvedev decide to grant one or both of them amnesty. The prosecution of Khodorkovskii, therefore, is neither dispositive of, nor even pertinent to the question as to whether there has been any progress in liberalizing Russia’s judicial system. What is relevant to, and dispositive of this question would be signs of greater degrees of judicial independence, more decisions that find in favor of average citizens filing against the state or the authorities, and decisions that expand the scope of citizens’ rights and reduce that of the state’s arbitrariness and the authorities’ impunity. In the past, we have detailed some of Medvedev’s earlier steps in reforming the judicial system (Gordon M. Hahn, “Medvedev’s Judicial Reforms – Don’t Pre-Judge,” Russia – Other Points of View, 18 May 2009).
Signs of progress in judicial independence have been ubiquitous, persistent and unprecedented this year, with more cases going against the interests of officials and in favor of human rights activists and citizens. Thus in mid-June, the Chechen President Ramzan Kadyrov’s libel suit against Oleg Orlov, the head of the human rights center ‘Memorial’, ended in Orlov’s acquittal. Orlov told Ekho Moskvy radio: “It feels like a miracle and miracles do not happen often” (“Text of report by Gazprom-owned, editorially independent Russian radio station Ekho Moskvy on 15 June,” BBC Monitoring, 15 June 2011). Tatyana Lokshina, deputy head of the Moscow office of Human Rights Watch, called the court’s decision “wonderful,” noting: “This acquittal is very important from the point of view of the Russian justice system. It really gives hope for serious improvement of the situation in the judicial sphere and faith in justice.” (“Human Rights Watch: Orlov's Acquittal Gives Hope For Serious Improvements in Russian Judicial System,” Interfax, 15 June 2011). This decision appeared to be a prelude to the adoption of a new bill submitted to the Duma by President Medvedev that includes amendments decriminalizing libel cases.
Russia’s Constitutional Court took a step to protect whistleblowers and freedom of speech in a June 30th decision that upheld the right of civil servants and bureaucrats to publicly criticize the state and its structures. Although the court refused to reject any and all bans on public officials’ statements, it established a free speech right for civil servants by striking down the present law on such public statements. It supported the right to speak out in two most fundamental ways: the right to speak publicly about illegal actions or actions harmful to the public taken by state bodies, and the right to speak out on any issue if it serves the public interest to do so. Moreover, any decision to deem a public statement as coming under any ban must be made by a court or a body established to settle such disputes and not by the statebody’s leadership. The ruling was in response to a suit filed in the court by two former state officials who claimed their release from work for criticizing their departments violated Russia’s constitution: a former chief tax inspector in Russia's Federal Tax Service, Lyubov Kondratyeva, who was fired after she criticized the service's system of repaying travel allowances in an interview on Moscow's City TV channel, and a former policeman from the city of Tolyatti, Alexey Mumolin, who was fired after he posted a video on the internet criticizing the management of his department (Yan Gordeev, “Gossluzhashchikh ostavili pri sobstvennom mnenii,” Nezavisimaya gazeta, 1 July 2011 and “Russian court allows police, officials to criticize state institutions,” RIA Novosti, 30 June 2011).
In a measure designed to prevent political pressure being exerted on the courts and put an end to the ‘telephone rule,’ Russia’s judidicial culture inherited from the communist era, Medvedev recommended that courts publish all such appeals as is done in other countries. Medvedev warned that those who request courts "to ensure a full, complete and an objective case review, to look closer, and take the case under personal control" are violating all norms ethical, legal, and constitutional because these cases are handled by a narrow circle of people. He singled out “governors, representatives of government agencies, leaders and members of the parliament” for engaging in this practice and thus compromising the principles of equality of all citizens before the law and judicial independence. Initially, this transparency measure, which Medvedev noted is part of U.S. practice, will be introduced to Russia’s Higher Arbitration Court and then expanded to the other court systems (Yan Gordeev, “Perepiska, byurokratiya, glasnost’,” Nezavisimaya gazeta, 11 May 2011.)
Russian courts continue to deal out appropriately harsh sentences against Russian ultranationalist and skinhead groups in a sharp departure from a few short years ago. In the most recent case, two notorious neo-Nazis were given life sentences by a St. Petersburg court in June for hate killings and beatings that terrorized the city’s minorities. In addition to the life terms meted out to Alexei Voevodin and Artyom Prokhorenko, ten other accomplices received terms of up to 18 years (Irina Titova, “2 Russian neo-Nazi leaders get life in jail,” Associated Press, 14 June 2011). One of their victims was a nine-year old Tajik girl who was killed in 2004 when the present writer was living in the city. As I have written before, the number of hate crimes has been declining since 2008 when Medvedev assumed the presidency and Russian courts began giving out serious sentences for such crimes. Part of the explanation may be the serious approach to such crimes now taken by the political and judicial authorities.
At the same time, the courts are putting some new limits on the anti-extremism legislation that has been used to prosecute these crimes, so that this is used more judiciously and not to undermine freedom of speech. In a recent resolution or finding by Russia’s Supreme Court, a first step was taken to protect several types of personal speech from being categorized as extremist under the controversial law. A follow-up decision must be issued to finalize this interpretation, and other problems with the law and its implementation remain. The resolution, unless rolled back by a subsequent decision, distinguishes between criticism and incitement and is sufficient to exclude criticism of political organizations, religious associations, beliefs and practices from the category of incitement to hatred and whipping up inter-communal antagonism under the anti-extremism law. Maria Rozalskaya, an expert with Russia’s independent SOVA Center, which monitors extremism and hate crimes in Russia, stated the resolution is “a great step” (Viktor Khamraev, "Verkhovnyi sud polozhil granitsy ekstremizmu" Kommersant, 29 June 2011 and Andrew Roth, “Redefining Extremism,” Russia Profile, 29 June 2011). Russian activist Evgeny Ikhlos from the group ‘For Human Rights’ said the decision would “change the situation radically,” noting “It is the first decision of a Russian court which says that criticizing the authorities is not extremism and that the authorities do not constitute a social group because their interests are no different from that of the state” (Tom Washington, “High court lightens up on extremism cases,” Moscow News, 29 June 2011).
In late May Medvedev issued a presidential decree ordering the Justice Ministry to monitor law enforcement agencies and the execution of court decisions and issue annual progress reports on performance in these areas, promising to develop Russia’s legal system and improve its judicial system while acknowledging that “(p)roblems with enforcing laws, lack of respect for the courts, and corruption” were “affecting our public life,” “holding back our national wealth growth and putting a brake on our efforts to carry out economic decisions and social initiatives” (Khristina Narizhnaya, “Medvedev Takes Step Toward Reforming Legal System,” Moscow Times, 23 May 2011).
In a related issue, Medvedev promised in mid-May that Russia would honor its obligations to the European Court of Human Rights, even if Moscow sometimes regards the court’s decisions as politically driven. This promise was not made by Prime Minister Vladimir Putin during his presidency.
In sum, this year has seen significant progress in numerous metrics by which we may measure judidical independence and assess the quality of judicial decisions. Viewing the Khodorkovskii-Lebedev case as the be all and end all of Russia’s judicial system and as evidence that nothing has changed under Medvedev and the tandem, reflects a view constrained by blinders and short-sightedness. The case shows the present limits of, but it does not negate or demonstrate any absence of Medvedev’s expanding liberalization agenda in the judicial and political system as a whole.
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