Threats of Judicial Counterreform in Putin's Russia

Abstract

In late September 2004, the Federation Council approved a draft law sponsored by its speaker, Sergei Mironov (allegedly written in the state legal administration of the president, which would change the composition and method of choosing members of the Judicial Qualification Collegia, the only bodies that can discipline or fire a judge for cause. As a result, would no longer constitute a majority, and even lhe judicial members would be confirmed by lhc Federation Council itself. is a big stupidity, said Yuri Sidorenko, head of the Council of Judges of the Russian Federation on the pages of a national newspaper, but unfortunately in the spirit of the times. It is clear that these actions are meant to limit the independence of courts and judges (Kornia and Romanicheva 2004; Proekt 2004).This initiative constitutes an example of the threat of judicial counterreform. It is just one of a number of such initiatives that appeared in public discourse in the Putin years.To understand and assess these threats requires remembering that Vladimir Putin's presidency has done much to improve the courts and advance judicial reform in Russia. Among other things it has (1) promoted hierarchy of laws and sought to reduce inconsistencies in the laws of different governments; (2) achieved the adoption and initial implementation of new procedural codes (criminal, civil and arbitrazh) that include many positive features; and (3) dramatically increased funding of the courts (a process that is continuing) to cover such initiatives as raising the salaries of (while reducing their perks); expanding the court system through the new justices of the peace, thereby reducing caseload for many judges; introducing jury trials throughout the Russian Federation; adding significantly to the staff of courts (especially clerks); repairing court buildings; and moving toward full computerization of the courts (Solomon 2003a, 2004a). All this came on top of the Yeltsin era achievements of security of tenure for (at least in theory), judicial self-government, and the successful empowerment of courts in the areas of constitutional and administrative justice (Trochev 2005; Solomon 2004a).Without progress in judicial reform one could not logically speak of counterreform (movement in an opposite direction), and unless the courts actually resolved some important issues impartially, people would not be tempted to seek leverage over them, lpso facto, the mounting of counterreform initiatives implies that reforms are making a difference, at least in the minds of some beholders.Moreover, successful judicial reform in postcommunist states is bound to be marked by zigs and zags, including initiatives that might be seen as steps backward. Even in countries not undergoing transitions, calls to restrict judicial power or to enhance the accountability of to the point of control are common, especially from losers in the courts. But it is important to recognize counterreform proposals for what they are and understand their dynamics and implications.As it happens, the term judicial counterreform was first used by Soviet scholars in the 1960s to describe developments in Tsarist Russia, where the Judicial Reform of 1864, designed to develop independent courts within an autocracy, produced courts that sometimes acted against the interests of the Tsar. From this tension came proposals in the 187Os, 188Os, and 189Os that threatened to undermine judicial independence (Vilensky 1969; Nemytina 1999).This article begins with discussion of the concept of judicial counterreform and its utility as an analytical tool, using events and proposals from late Tsarist Russia as an example. The core of the article explores a series of proposals and initiatives of the years 2001 to 2005, all of which may be understood as threats to judicial power or independence. These include the Mironov proposals and other suggestions relating to judicial self government and financing; an attempt to end life appointments for judges; a challenge to the power of the Constitutional Court to render laws invalid and order their rewriting; the plan to move the top courts from Moscow to St. …