At the beginning of 2002 one could properly speak of a “Putin judicial reform,” for the leadership exercised by the president and his aide Dimitri Kozak has resulted in dramatic achievements. By means of a set of new laws, adopted in December 2001, the Russian government has approved a massive increase in budgetary support for the courts; a new code of criminal procedure designed to give judges more power and improve the fairness of criminal justice; and measures to enhance the accountability of judges, through disciplinary, administrative, and criminal responsibility. Building on achievements in judicial reform from the early 1990s, Putin’s actions have made possible significant improvements in both the day-to-day working of the courts and the degree of public trust and respect they enjoy.

Until Putin, judicial reform in post-Soviet Russia had focused on overcoming the Soviet tradition of judicial dependence on outside political influences, on giving the courts new responsibilities for commercial, administrative, and constitutional adjudication, and on improving the efficiency of the administration of justice. While each of these challenges requires further attention, the designers of the judicial reforms of 2001 wanted, above all, to improve the reputation of the courts and judges, which had long suffered from a perception of widespread corruption and did not reflect the improvements in the courts produced by a decade of reform activity. Establishing clear lines of accountability for judges represented one response to this state of affairs.

It is hard to hold judges accountable for their conduct without compromising their independence, yet this is a universal dilemma faced by any country that empowers its courts to deal with matters of importance. Crucially, the new accountability measures facing Russian judges come not in a vacuum but along with other measures designed to promote their independence and increase their power. In short, the Putin judicial-reform package is broad-gauged and aimed at creating courts that are at the same time independent, effective, and respected.

This article has several purposes: to examine the state of the courts on the eve of Putin’s accession to power and the logic behind the Russian leadership’s concern with the accountability of judges; to explain the origins and highlights of the Putin judicial-reform program; to chart the resistance from the judicial community to the proposed new measures of accountability and the resulting compromise; and, finally, to consider what needs to be done to ensure the success of the reforms adopted in December. I start with observations seeking to show how the accountability of judges relates to the independence and power of the judiciary.

Balancing accountability and independence: A universal problem

Independence of the judiciary should be understood not as an end in itself but as a means of encouraging the appearance as well as the reality of impartial adjudication. Of course, bias may stem from the particular views or mind-sets of judges and, as we shall see, from pressures related to the internal organization of the judiciary (what we call “internal dependence”). But bias becomes particularly blatant and objectionable when it reflects influences originating from outside the courts. In its most basic meaning, judicial independence refers to the insulation of the judiciary from external pressures, from the rest of government, and from private sources. As such, judicial independence concerns relationships between potential sources of pressure and the judge and not any particular kind of behavior on the part of judges.1

Over the last two centuries, democratic governments have developed institutional mechanisms for insulating judges, almost all of which are used at least for high courts. These have included security of tenure (in the form of life appointments and removal only for cause); decent financing (of both the salaries of judges and the operations of the courts); and an appropriate degree of control by judges of the administration of the courts. While these institutional mechanisms go a long way toward shielding judges from external influences, they cannot make judges wholly autonomous or maximally independent. For as courts and judges acquire power—that is, jurisdiction over politically sensitive matters, the discretion to handle these matters, and the authority to produce compliance with their decisions—so officials in the rest of government have sought and indeed have found ways of keeping judges within the governing coalition, mostly through measures of accountability.

The acquisition of power by the judiciary, as Martin Shapiro has eloquently explained, led historically to a series of responses. Rulers could yield power to the courts, they could choose to move important areas of jurisdiction to other bodies, or they could develop ways of holding judges accountable. The most common approach to accountability in the world of civil law was the creation of judicial bureaucracies, “systems of judicial recruitment, training, organization and promotion that ensure that the judge (while remaining neutral between the parties) will remain the absolutely faithful servant of the regime on all matters touching its interests.”2 The American approach was to expose judges to popular scrutiny through elections, which in one form or another is still the case for judges on most state courts.

In a judicial bureaucracy, the advancement of a judge’s career depends on how higher judges and/or government officials regard his/her performance, and typically this results in the dependency of judges on their superiors—a kind of internal dependence.3 The disciplining of judges represents another dimension of accountability that can impinge on the autonomy of judges. Few object when judicial councils, composed mainly of judges, address matters relating to the personal rectitude of judges. But it is another matter when any such bodies, not to speak of administrators within the executive, hold judges accountable for the efficiency of their courtrooms, or even worse, for the quality or substance of adjudication.

The bottom line is that most ways of holding judges accountable for their actions do lead to infringements on their independence. The essential challenge everywhere is to strike a good balance between two competing values—keeping judges sufficiently free from inappropriate influences on adjudication and assuring that their exercise of power stays within the bounds of public consensus.4

Courts before Putin

Judicial-reform activity in the Russian Federation under Yeltsin focused on overcoming the Soviet legacy of dependent judges and weak courts, and this effort was partially successful.5 By the new millennium, judges were (and felt) more independent than was the case in Soviet times. Judges on most courts were appointed for unlimited terms (after a three-year probationary period), and they could be removed from office only for cause and only by a committee of their peers, a Judicial Qualification Commission (JQC). Apart from this ultimate sanction, they faced no formal disciplinary restraints, and judges had unqualified immunity from administrative responsibility (for example, traffic violations). They had immunity from criminal prosecution as well, though that could be lifted by a JQC when the procurator general requested it. At the same time, the administration of the courts had been removed from the Ministry of Justice and placed in court departments under the control of chief judges.

Nonetheless, the independence of judges in Russia was compromised by inadequate financing by the federal government, which led to the “sponsorship” of courts by regional and local governments and private firms and by compensation packages for individual judges that included bonuses and perks (such as apartments) arranged by the chairmen of courts and their friends in local government. As a result, local politicians and their wealthy friends could still exercise improper influence over judges, and the chairs of courts had too much leverage over their subordinates.

At the same time, the power of the courts increased during the 1990s through major gains in jurisdiction (including constitutional and commercial disputes, judicial review of administrative acts, and judicial review of pretrial detention orders). Yet the courts’ authority was weakened by the state’s uneven implementation of constitutional, commercial, and civil judgments.

The changes for the better were not reflected in the reputation of the courts among the public in Russia. Uncertain implementation of judgments hurt the courts’ reputation, but so did the popular view of courts as inefficient and of judges as dependent and corrupt. While there was some basis for the public’s mistrust, its dim view of the courts lagged behind improvements in the reality. A majority of the Russian public had no idea how good were the chances of winning should private individuals take a public official to court (nearly 80 percent). Nor did people appreciate that judges were coping remarkably well with the ever-increasing volume of cases, without the help of much-needed extra staff and additions to their ranks. (The wait before trial in civil and commercial cases, while longer than in Soviet times, remained short in North American terms.) Arguably, the frequency of corruption in courts was far less than imagined. According to the official estimates, no more than 1 percent of cases were improperly influenced.

To the Putin leadership, improving the reputation of courts was a crucial dimension of judicial reform, for one of the main underlying goals was to provide potential investors with reliable and trustworthy legal institutions. Improving the judiciary’s reputation called for many steps, including the provision of financial resources to repair dilapidated buildings and courtrooms, increase salaries of judges to attract talented recruits, and modernize court administration. But there was also good reason to address the conduct of the judges, if only to assure the public that instances of corrupt or arbitrary behavior were both being dealt with and discouraged. In this context, the system of accountability created in 1992, when maximizing the autonomy of the judicial community was the paramount goal, seemed inadequate. The question, now, was one of what kind of further changes to make.

Putin’s promise: Autonomy with accountability

Before Putin, the main impetus for reforming the courts came either from legal scholars (1991–93) or from the leaders of the courts (1994–99); Putin changed this pattern by personally taking charge. In the summer of 2000, he entrusted a team of economists under German Gref, minister of economic development, to prepare a plan for the future of the Russian economy that included a program for the courts. With input from creative jurists (like Mikhail Krasnov, former adviser to Yeltsin), the Gref plan proposed some measures that were popular with judges (doubling their number, increasing judicial salaries, eliminating the role of regional government in appointments), and others that proved controversial, such as fusing the arbitrazh courts with the courts of general jurisdiction.

The shocker, though, was the proposal to replace life appointments for judges with nonrenewable appointments for 15 years to “encourage professionalism and impartiality” and counteract the excessive independence of allegedly unaccountable judges.6 In Gref ’s words, “In Russia when we set out to do something, we do it well. The judicial system we have made so independent that its judges depend neither on the government nor on the justice system. All judges in the Russian Federation are appointed for life. We have thereby created a closed club of judges, closed off from public criticism, public supervision, from the needs of the economy.”7 To Gref, judges were so unaccountable that they could decide cases capriciously or in response to the needs of powerful persons. Gref exaggerated, but his views reflected a major segment of Russian public opinion.

Leaders of the judicial community condemned this proposal so vehemently (especially at a meeting of the Presidential Council on the Improvement of the Administration of Justice, at the end of October) that Putin decided to place the question of the courts in the hands of a presidential working group headed by deputy chief of the presidential administration, Dimitri Kozak. At the Fifth Congress of Judges in November 2000, Putin announced that the appointment of judges for unlimited terms would remain but that the matter of their accountability would be addressed.

Through the winter of 2001, the Kozak group on judicial reform, composed of 28 representatives of the courts, law enforcement agencies, and academia, met regularly and generated long lists of reform proposals on the status of judges, the organization of the courts, criminal and civil procedures, and the regulation of legal services. In early spring, with official reactions to the proposals from relevant government agencies in hand, Putin himself held discussions with the heads of the courts and decided which proposals he would support. By mid-May 2001, a package of draft laws on judges and courts had been submitted to the Duma and approved in the first reading in June. The new draft criminal-procedure code was also approved in second reading, and, in July, Putin unveiled a five-year plan for court finances.

As expected, the draft laws contained a set of measures aimed at making judges more accountable and seemingly less overprotected.8 To begin, the membership of the JQCs, the bodies that would screen appointments and promotions of judges and approve any removals from office, was to be broadened. Instead of only judges, one third of the members would consist of locally based lawyers and legal scholars, with one to represent the president. This broadening was meant to answer the critics of “judicial corporatism” and assure that, at least in appearance, judges were held accountable for their conduct to society and their peers. Second, while judges would still receive appointments without term, they would be forced to retire at fixed ages (65 on regular courts, 70 on the top courts), and the court chairmen would now hold their administrative positions for fixed periods. The purpose was to limit the excessive and unchecked power of court chairs, who had received their positions as fiefdoms for life. Not only would these chairs face periodic scrutiny from their administrative superiors (with reappointment after four or six year terms, depending on the court), but their rights and responsibilities would be set out in law, along with the grounds and procedures for removal during their term.

Third, the judges’ protection from prosecution for criminal and administrative offenses and the imposition of disciplinary measures was to be decreased significantly. Permission to prosecute a judge (that is, through removal of immunity) would no longer be granted by a judicial-qualification commission but by a panel of three judges from the next higher court, and this after a request from a deputy procurator general (not necessarily the procurator general himself). Once granted, the permission would end a judge’s privileges: all further decisions about detention or sending the case to court would be made by legal officials according to the rules of procedure. Responsibility of judges for administrative offenses (for example, traffic violations) would be restored—a return to Soviet practice—although prosecution would require the same procedure as for a crime. Moreover, a formal set of disciplinary measures was to be established (another revival of Soviet policy) and imposed by the qualification commissions at the instigation of the chairmen of the courts.

To Putin and Kozak the need to find an appropriate balance between the independence and the accountability of judges was the order of the day. As Kozak put it in a newspaper interview on November 1, “From 1991, we have been stressing above all creating judicial independence, and today this is still a key issue . . . . But we have been operating under the assumption that in and of itself independence would guarantee us everything; that independence would give us honest, uncorrupted, and principled judges. But this of course, is utopia! We must approach the character of the judge realistically. He or she is a citizen like you and me. He or she is subject to the same temptations and weaknesses as you and I are. And by itself independence will give us nothing. It simply gives the judge complete freedom of action—freedom to choose to whom he will fall into dependence, how to decide a concrete case, how to conduct himself in life and at work.”9

For all their visibility, the accountability measures represented only a part of the larger package of judicial reform. To these were added other steps designed to respond to many of the remaining obstacles to the realization of judicial independence and power, as well as to improving the courts’ reputation. Central to the achievement of all of these goals was the commitment of the Putin administration to a dramatic increase in spending on the courts, spelled out in a five-year program for the development of the courts. As approved by the government, the program called for annual new expenditures of seven to ten billion rubles ($230 to $330 million), totaling 43,962,200,000 rubles over five years, and composed mainly of new budget lines, to cover such initiatives as extending jury trials from eight regions to the rest of the country, adding new judges (and court staff) to handle the approval of pretrial detention, developing the new justice-of-the-peace courts, raising all judges’ salaries substantially (while cutting out most of their perks), adding new staff to the courts (including clerks for judges), repairing court buildings, computerizing the courts, and providing interest free and forgivable loans to new judges to buy homes. Note for comparison that the budget for the court system as a whole in 2000 stood at 8.1 billion rubles and for 2001 at 11.9 billion.10 The Putin program promised a revolution in court financing that could well improve the performance of the courts, reduce their dependence on local governments and private sponsors, and improve the reputation of the courts.

Measures to enhance the independence of judges (in addition to the increase in funding) included removal of the subjects’ legislatures from the process of appointing judges. Screening by regional legislatures had been incorporated into the 1996 Law on the Court System in order to win support from the Federation Council, and, since 1997, regional legislatures had to consent to appointments not only of new judges but also of judges for life terms, judgeships on higher courts, and new chairs of courts. In practice, consent had meant a veto power, and judges who were unpopular with politicians in their regions had difficulty moving ahead in their careers.

The reform package also extended the power of the judiciary in two important ways. As anticipated, the draft criminal-procedure code gave judges exclusive sway in deciding on 11 different procedural motions in the pretrial phase, including pretrial detention, search and seizure, and eavesdropping, along with enhanced power to exclude evidence illegally obtained. In addition, the president advanced new legislation to require governments at all levels to quickly bring their laws into conformity with decisions of the Constitutional Court. The new draft legislation recognized the inadequate enforcement of this court’s decisions (though it did open for debate the question of the nature of the powers of the Constitutional Court).11

In addition to promoting the accountability, independence, and power of the judiciary, the Putin package promised to improve its reputation for fairness. The new criminal-procedure code included the expansion of trial by jury to all regional courts, thereby assuring that the most serious charges, especially for murder, would be handled by courts applying high standards (rates of acquittal in jury trials far exceeded those in trials heard by judges, with or without lay assessors). Moreover, the new code eliminated the quintessential Soviet institution of the “return to supplementary investigation,” which had allowed judges to avoid acquittals and give investigators a second chance when they failed to provide enough evidence to convict.

Resistance from judges and compromise

There was much for judges to applaud in the work of the Kozak group, but the emphasis on accountability infuriated some of the top judges, especially the heads of the Supreme Court, Supreme Judicial Qualification Commission, and Council of Judges. Through spring and summer, they explained their positions in the press, and a series of regional councils of judges also submitted official statements to the president and the State Duma. Along the way, the Supreme Court adopted an official position on the accountability measures, rejecting the revival of disciplinary and administrative responsibility and the simplified method of removing judicial immunity from criminal prosecution. The Court’s leaders worried lest revived administrative responsibility of judges give the police the opportunity to return to the Soviet-era practice of contriving prosecutions against judges who displeased them. They feared, too, that disciplinary responsibility would add to the court chairs’ already excessive leverage over their subordinates and that the removal of the JQCs from decision making in criminal cases could leave judges exposed to machinations of hostile procurators. Particularly vexing was the prospect that procurators would be able to arrest and search judges without the permission of the qualification commissions.12

Underlying the specific objections lay the larger argument that the current system (developed in 1992 to protect judges) was working well and there was no reason to change it. After all, each year in the previous five the JQCs had removed from office, on various grounds, around one hundred judges, and they had lifted immunity from criminal prosecution in response to most of the requests from the procurator general (11 out of 14 times in 1998). Even within the judicial community, however, there was disagreement; the leaders of the Supreme Arbitrazh Court broke step and endorsed the revival of disciplinary and administrative responsibility.13

As the time approached for consideration in the Duma of the draft law relating to accountability, the Supreme Court’s campaign increased in intensity and the discussion in the press became more tense. At the end of October the Supreme Court succeeded in bringing over to its side Anatoly Lukianov, Chairman of the Duma Committee on State Building. In the course of screening the draft law before second reading, the committee decided to recommend rejection of the proposed new system of removing immunity from criminal prosecution, and to give the judicial qualification commissions rather than the courts the power to impose administrative sanctions.14

Although Putin and Kozak might have convinced the Duma’s political factions to reject Lukianov’s position, the president himself decided to undercut the resistance of the Supreme Court through a tactical compromise. At a meeting with the top judges at the Kremlin on the sixth of November he proposed and secured agreement to a two-stage procedure for removing immunity from criminal prosecution and starting criminal cases against judges. As planned, a three-judge panel at a higher (regional or supreme) court would decide whether the elements of a crime were present, but then the JQC would be asked for its consent before the procurator general (not a deputy procurator general) started a case against a judge. The restoration of the JQCs as part of the process reassured judges that there would be a way to discourage contrived or politically inspired prosecutions; and now that the JQCs included members who were not judges, the resistance of these bodies to particular prosecutions might avoid the appearance of judicial corporatism. At the same time, retention of the three-judge panels as the effective decision makers would still subject judges to normal legal standards and procedures while reducing the likelihood of judges on the JQCs giving their colleagues inappropriate protection. Kozak himself rationalized the compromise, stating that the role of the commissions would be “decorative,” and some judges agreed that the commissions will usually feel bound by the decisions of the three-judge panels. Note that the compromise did not extend to proceedings against judges for administrative violations, for which decisions by the three-judge panels would be sufficient for the procurator general to take action.15

Other specific changes to the law on the Status of Judges adopted in December reflected lobbying by the judiciary and political bargaining, but nothing fundamental in the Kozak group’s proposals was changed. The new principle of fixed terms for chairs of courts was retained, and the actual length set at six years for chairs of all courts (except the constitutional); chairs could be reappointed for a second term, but no more than two in a row; and, finally, they could be removed ahead of time for cause by the JQC. A fixed retirement age was also instituted, set at age 65 for all judges (except those on the Constitutional Court). Disciplinary responsibility was made less threatening with the elimination of the compulsory removal of a judge for a new infraction while under warning, and with the addition of an automatic termination of a warning after a year of good behavior.16

The meaning of the judicial reform of 2001

Taken as a whole, the Putin reforms of 2001 represent a remarkable vote of confidence from the political leadership in the courts and their future development. The financial commitments are extraordinary, and, if realized over the next five years, will enable the courts to attract more and better judges and improve staffing, not to mention making court buildings respectable and modernizing case management through computerization.

In addition, the combination of removing regional governments from the appointment and promotion process and reducing the need for supplementary funding from local government and private firms should cut down on instances of biased adjudication. Less often will powerful figures on the local scene gain success through a wink or a nod to the court chairman, who in turn assigns the case to a reliable or “politically mature” judge. At the same time, the revival of disciplinary procedures and the new method of screening prosecutions against judges could increase the dependency of rank-and-file judges on their chairs and on the judges of higher courts—making the situation of judges in Russia closer to that of their counterparts in France or Japan, where judges face little outside pressure but work within a bureaucratized judiciary that promotes conformity within the judicial corps.

All the same, it is important to pay heed to the objections of judicial critics to the new accountability measures, for their fears are not necessarily misplaced. In fact, the political fighting throughout the fall of 2001 over judicial accountability reflected two rival images of local politics and law enforcement in Russia. The position of the judges was based on the belief that police and procuracy officials still needed cooperative judges and were ready to exact revenge on those they disliked and that local politicians were still inclined to help law enforcement officials. In contrast, the supporters of the new accountability measures assumed that the local scene no longer reflected these aspects of the Soviet past and that neither politicians nor the police and procuracy were as likely to turn on judges.

In my view, both perspectives have validity. The overall reform package should reduce the dependence of judges on local power, and the courts’ new responsibility for decisions about detention and searches should make the police more deferential toward the judiciary. At the same time, in the absence of the reform of criminal investigation and prosecution, law enforcement personnel will still expect cooperation from judges and use every means to achieve it, including the persecution of nonconformist judges. For decades, investigators and procurators in Russia have been evaluated according to their rates of acquittals (expected to be minimal) and solutions to crimes (expected to be very high); without changes in the incentives facing investigators and procurators, they will retain an unhealthy interest in the conduct of judges.17 To be sure, many jurists in Russia seek the creation of a separate, freestanding investigatory agency, but by itself this will not prove sufficient. What is needed is a wholesale change in the expectations imposed on investigators and procurators.

Such a change should come sooner or later, if only in response to various provisions in the new criminalprocedure code. The end of the “return to supplementary investigation” and the spread of jury trials should produce a significant increase in acquittals and of cases stopped prior to trial (though many acquittals will be overturned on appeal and the use of “compromise” decisions to avoid acquittals will continue to grow).18 It would be counterproductive if expectations both for and by investigators and procurators were not adjusted accordingly. (There is provision in the criminal-procedure code for short trials and reduced sentences in exchange for a confession, but this version of a guiltyplea procedure applies only to offenses bringing terms of imprisonment up to five years.)

Looking ahead, it is clear that the fuller realization of the judicial reform of 2001 will require further changes in both law and practice. For one thing, the new civil-procedure code and a new law on the defense bar await adoption; for another, the five-year financial plan for the courts must be implemented not just in the state budget for 2002 and but also in the budgets of 2003, 2004, 2005, and 2006. (Note that there was an attempt, albeit unsuccessful, in the State Duma to have the budget line for the courts taken out of the “obligatory” category, where funds must be provided without regard to the level of revenue received by the government.) Then too, the actual spread of jury trials to large parts of the country and the establishment of judicial decision making on pretrial matters will take heroic efforts, as will completing the creation of courts of justices of the peace, a process that requires cooperation from regional governments.

The bottom line is that the efforts started in 2001 to deal with the inadequacies of the courts and to improve their reputation should bear fruit as long as political commitment to judicial reform remains strong.