Why did so many Russians join IS?

Russia

Caroline von Gall

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Dr. Caroline von Gall is junior professor at the Institute for Eastern Law at the University of Cologne. Her main research interests are constitutional law in Russia and the Ukraine, legal philosophy in Eastern Europe, legal transfer of ideas between Germany and Russia, and European human rights protection.

Worldwide, the Russian judiciary is considered to be less independent, and the Russians also have little confidence in their courts. What are these attitudes based on? Are the judges really dependent? And who can compensate for the deficits?

Russia's Constitutional Court in Saint Petersburg. (& copy dpa)

The Russian constitution of 1993 declares Russia a constitutional state and advocates the principle of the separation of powers and an independent judiciary. With this, the constitution wants to clearly express the new beginning of the Russian judiciary after 70 years of Soviet rule, in which the judiciary was solely obliged to the party. After the Russian Federation also acceded to the Council of Europe in 1996 and recognized the European Convention on Human Rights (ECHR), the country is also bound by Article 6 of the ECHR, which elevates the fair trial to citizenship.

In Russian legal reality, however, these rights and principles have so far remained largely unrealized. According to a classification by the non-governmental organization Freedom House, which measures the degree of independence of the judiciary in different countries, Russia ranks in the lower places. The World Bank also gives the Russian judiciary a bad report. In the trials against the former oil magnate Mikhail Khodorkovsky and the punk band Pussy Riot, which were followed with a great deal of attention worldwide, the deficits of the Russian judicial system became abundantly visible.

The trust of the citizens of Russia in their judges and courts has been correspondingly low for years. According to a 2017 survey conducted by the Levada Center in Russia, only 26 percent of respondents consider Russian dishes to be fully trustworthy.

Justice disrupts Putin's "vertical of power"

During his first term in office, President Putin countered the obvious problems of law enforcement with the demand for the "dictatorship of the law". However, this meant less a strong, independent judiciary than the unconditional obedience of the law of the administration. Putin's policy of the "vertical of power" stands for top-down control of the administration and not for control by the courts. Without explicitly denying the importance of an independent judiciary, Putin made it clear that strengthening and stabilizing Russia internally and externally had priority over all other problems. If necessary, he justified the poor constitution of the judiciary with general problems of transformation.

The political leadership also referred to the corruption within the judiciary as a reason for the non-functioning judiciary. With this, the Putin administration addressed a historically conditioned skepticism towards judges and courts in Russia (legal nihilism): over the centuries the law was used there primarily as an instrument to maintain the instruments of power. In fact, according to a survey from 2007, Russian citizens see the judges' lack of conscience and corruption as the greatest problem for the non-functioning judiciary in Russia.

No judicial reform in sight

After Dmitry Medvedev became president in 2008, political rhetoric changed. Unlike his predecessor in office, he sharply criticized legal nihilism in Russia and repeatedly called for the independence of the judiciary to be strengthened. But even during his term of office, the urgently needed reform measures were not tackled.

Since Putin's return as president, calls for judicial reforms to strengthen the independence of the judiciary have not been heard from the Kremlin. Only the President's Human Rights Council or a few people in public life, such as the former constitutional judge Tamara Morschakowa, regularly remind of the need for judicial reforms. The president, parliament and government currently see no benefit in strengthening an independent judiciary.

"Rule by law" instead of "rule by law"

Instead, the political elite openly uses the law again today as an instrument of repression through political trials against opposition members and artists. Criminal proceedings are also used to legitimize certain political decisions. The show trials against the Ukrainian pilot Nadia Savchenko, the head of the Moscow Library of Ukrainian Literature Natalja Scharina and the Ukrainian director Oleg Sentsov underscored the portrayal of the political elite, according to which Ukrainian fascists had overthrown the legitimate Ukrainian government and an extremist danger from the coup for the Russians in Ukraine and Russia itself. Instead of the "rule of law", experts speak of "rule by law". In Russian, the term "Basmannyj Justice" is used, which is reminiscent of the Moscow Basmannyj District Court, where numerous well-known political trials have taken place in recent years.

The influence of politics on the judges is no longer as strong today as it was in the Soviet Union, when the party tried to control the entire life of the citizens: The party leadership dictated the judges' judgments on the telephone - one spoke of "telephone justice". In contrast, there are now areas of jurisdiction that are free from state intervention. However, the numerous political proceedings leave no doubt that there is still a kind of telephone justice system today and that politicians can intervene if they deem it necessary.

In this respect, the independence of the judiciary from politics ends where the economic and political interests of the powerful are at stake. The other way round, freedom only exists where it does not endanger the mighty. As a result, the judiciary is not independent here either, but it is left to its own devices.

Independence of judges

While the independence of judges is basically laid down in the constitution, there are no simple regulations that put this principle into practice. Conversely, a number of regulations strengthen the judge's dependence on politics and the systematic loyalty. So the individual judge is heavily dependent on the president of his court. For example, the individual cases within a court are further distributed to the respective judge by the court president at his own discretion. The president of the court is also responsible for disciplinary action. This allows him to influence the judiciary by handing a case over to a specific judge. This violates the principle of the legal judge and jeopardizes the judge's independence. The indefinite rules of disciplinary law are another gateway.

The constitution requires judges to have a university degree in law and a legal professional experience of at least five years. In practice, judges are primarily recruited from court staff and members of the security organs such as the police and the public prosecutor's office. You know the system and have proven yourself in it. The judiciary is increasingly closed to legal scholars and lawyers.

Even if judges' salaries have risen, their reliance on bonuses and housing allocations, which are also made by the court president, remains. Meanwhile, the chief judges are personally closely linked to politics.

Public prosecutor

In the Soviet Union, the Prokuratura ("Public Prosecutor's Office") was a powerful authority. Its tasks not only included the defense of the interests of the state in criminal proceedings, it was rather a general control body for the legality of the activities of the administration and the courts. It was consequently much more powerful than the judges.

This strong position had to be overcome after reunification: the powers of the public prosecutor's office were curtailed, the rights of the accused in criminal proceedings were significantly strengthened. In fact, however, the Russian Prokuratura has remained a powerful institution with extensive powers. It is generally complained that the judges too often follow the prosecution's requests without comment. Acquittals after an indictment by the public prosecutor remain the exception. The number of acquittals only increased as a result of the introduction of jury courts.

From its traditional competencies, the public prosecutor's office has retained the right to bring civil proceedings if a person is unable to exercise his or her rights. In addition, the public prosecutor's office can still - albeit severely restricted - lodge a protest against a legally binding civil judgment and obtain a retrial. This has been criticized in the past by the European Court of Human Rights (ECHR) as a violation of the principle of legal certainty as an element of fair trial.

The investigative committee of the Russian Federation under Alexander Bastrykin, which was created in 2007 and was removed from the public prosecutor's office, also plays an important role in the political process. However, this formal weakening of the Prokuratura did not lead to a disentanglement of power. By "investigating" the alleged crimes of political opponents, the new investigative committee has developed into an additional pillar of power in recent years.

Legal profession

The legal profession in the Soviet Union was subordinate to the Ministry of Justice and subject to politics. A reform of the profession was long delayed after the fall of the Wall. A few years ago the legal system was fundamentally reformed and the self-administration of the legal profession was introduced.

Nonetheless, the case of the Russian lawyer Sergej Magnitsky shows that the legal profession in Russia today can be quite dangerous. Magnitsky had represented an international investment fund in Russia and in this capacity accused the Russian authorities of massive tax fraud in the course of the economic activities of state-owned companies. He was then accused himself and arrested. After an extremely long pre-trial detention of eleven months, he died in prison in the fall of 2009 because he had been refused medical treatment. The case has not yet been resolved.

The court system

The Russian judicial system has some peculiarities, such as the independent military jurisdiction adopted from the Soviet Union. She is responsible for all legal questions that affect soldiers. It was only recently that the rule that all judges there must be soldiers was lifted.

A Soviet tradition is also its own commercial jurisdiction, literally translated as "arbitrage jurisdiction". In the Soviet Union, disputes between two state-owned commercial enterprises were not heard in civil courts, but in independent arbitration tribunals. While the economic actors today have forms under private law, the economic courts remained under the new auspices. They soon worked in a comparatively transparent and effective manner and enjoyed the confidence of economic operators, even if corruption is strong here, as in the other branches of the judicial system.

This may have led to the fact that, in an urgent reform in 2014, the relatively highly respected Supreme Commercial Court was absorbed into the Supreme Court, which amounted to its dissolution.

Ultimately, the reduction in the competencies of the jury shows that the political leadership has no interest in an independent judiciary that is respected from the point of view of the rule of law. The jury was created after the turnaround for democratization and to strengthen confidence in the judiciary through the participation of citizens in the judiciary. In the meantime, this development has partially been reversed. This means that jurisdiction is again more in the hands of the state.

Constitutional Court

A novelty in the Russian judicial system at the beginning of the 1990s was the constitutional court. In the first years of Russia's independence, the court proved to be a powerful engine for the rule of law. In very remarkable judgments it settled with the Soviet rule and consolidated the newly won principles of the separation of powers and the rule of law.

In 1993 the Constitutional Court fell into crisis. In the battle between President Yeltsin and Parliament, the Constitutional Court took a stand against the President. From this struggle it emerged greatly weakened and lost confidence as an independent authority.

During Putin's reign, the court then proved to be the president's reliable backing. With a number of judgments, including to federalism as well as to the party system, it strengthened the vertical of power and the influence of the president. Constitutional Court President Sorkin justifies this approach by pointing to external and internal threat scenarios and the continuing danger of instability in the country. Freedom and democracy could only be guaranteed in the long term through a priority policy of stabilizing the state.

As a result, the Constitutional Court is now an institution that does not decide against those in power in cases of doubt, but is also recognized in the political process because of its influential court president and makes relevant decisions.

Russia and the European Court of Human Rights

The European Court of Human Rights (ECHR) is today creating the necessary compensation for the considerable deficits of the Russian judicial system. The rush to the court from Russia is therefore enormous. In January 2011, 41,000 Russian cases were pending before the court. A reform of the court reduced this number, but in October 2017 there are still 8,050 pending cases. In 2016, the Russian Federation was convicted of violating the European Convention on Human Rights (ECHR) in over 200 cases.

The violations of the Russian Convention on the grounds of inhuman or degrading treatment and of the right to life are unusually high. These mainly concern complaints about the warfare in Chechnya, but also the situation in Russian prisons. Violations of the right to liberty and security, the right to a fair trial and an effective complaint are also frequently criticized.

For a long time Russia has paid the damages imposed on it by the ECHR to those affected. After a corresponding ruling by the Russian Constitutional Court in 2015, however, a law was introduced according to which the Russian Constitutional Court has to review judgments of the ECHR for their constitutionality. If it comes to the conclusion that the constitution does not accept a violation of fundamental rights, the judgments of the ECHR may not be implemented. Since the Russian Constitutional Court has shown itself to be loyal to power over the past few years, it can be assumed that in future it will free the government from being bound by unpleasant judgments from Strasbourg. Of course, this only applies to domestic law. According to international law, Russia remains bound. And despite some setbacks, Russia's membership of the Council of Europe and ties to the ECHR remains one of the great hopes for the Russian judicial system.