Volume 9 Number 4

Fall 2000

Feature

The Procuracy and the Courts in Russia: A New Relationship?
     Peter H. Solomon, Jr., and Todd S. Foglesong

The decisions by three different courts in the Nikitin case—each time supporting an acquittal in a political trial (and one prepared by federal security service [FSB] investigators)—may surprise observers familiar with the administration of justice in the former Soviet Union. How was it possible that judges in Russia of the year 2000 no longer took their cues from the prosecuting attorneys (known as procurators), not to mention signals from outside political authorities, when dealing with a political prosecution? Did the Nikitin case represent an exception to the usual practice of the courts in Russia at the turn of the millennium, or did it reflect a significant new judicial independence likely to be manifested in other political cases, and possibly even in ordinary criminal prosecutions?

This essay does not attempt definite answers to these questions; it does supply information and analysis that can help readers address them. Specifically, we will review the changing relationship between the procuracy and the courts in the first decade of post-Soviet Russia, highlighting the shifts, however subtle and incomplete, in the balance of power between these institutions and between procurators and judges in the courtroom. We would suggest that the Soviet tradition of an unequal relationship favoring procurators has been partially, but not wholly, overcome. There have been important changes in the institutional framework of the relationship but not sufficient, thus far, to dismantle the cultural legacy of an excess of deference by judges toward procurators. Those changes have, however, opened up the possibility of judges acting in a more impartial way, even in political cases like Nikitin’s.

We begin by examining the sources and consequences of procurators’ leverage over judges in the Soviet period and then analyze changes in the powers and situation of both the procuracy and the courts to see what difference these can make to judicial behavior.

The Soviet pattern
The superior position of the procuracy in the Soviet system of justice, fully in place by World War Two and lasting to the end of the USSR, derived from the many significant functions of the procuracy and the high status and power of the institution in a political context.

The prosecution of criminal cases in court represented only one aspect of the procuracy’s work, matched in significance throughout much of Soviet history by a set of supervisory functions. In a nutshell, the procuracy bore responsibility for supervising the legality of public administration. Through the power of what was known as "general supervision," it became the duty of the procuracy to monitor the production of laws and instructions by lower levels of government; to investigate illegal actions by any governmental body or official (and issue protests); and to receive and process complaints from citizens about such actions. In addition, the procuracy supervised the work of the police and prisons and the pretrial phase of criminal cases, and, in particular, making decisions on such crucial matters as pretrial detention, search and seizure, and eavesdropping. Finally, the procuracy was expected to exercise scrutiny over the legality of court proceedings. Supervision of trials gave the procurators at various levels of the hierarchy the right to review the legality of any verdict, sentence, or decision that had already gone into effect (after cassation review) and, through a protest, to initiate yet another review by a court. Even more troubling, the duty to supervise the legality of trials meant that an assistant procurator, who was conducting a prosecution in a criminal case, had an added responsibility of monitoring the conduct of the judge and making protests. This power placed the procurator in the courtroom above both the defense counsel and the judge, in theory if not also in practice.

At the same time, for much of the Soviet period, the procuracy and procurators held higher status and had more political clout than did courts and judges. The heads of the procuracy in cities and regions belonged to the political elite and usually were members of the appropriate Communist Party committee, if not also in its bureau (for example, gorkombiuro or obkombiuro). The political leaders of cities and regions needed the cooperation of their procurators and, in turn, supported the latters’ needs, especially in matters relating to the common cause of the fight against crime. For their part, the local judges had no such elevated status and, furthermore, depended on those same party bosses for the financial support of the courts, including perks, and for the continuation of their careers—local politicians had a say in the renomination of judges for periodic elections and in their possible recall.

The combination of the procuracy’s impressive functions and its power as an institution led inexorably to the pattern of judicial subordination to the interests and needs of procurators in the courtroom. This deference by judges was manifested, first, in the extremely low level of acquittals rendered by Soviet judges, a phenomenon that originated in the late 1940s (when rates of acquittal dropped from 10 percent to between 2 and 3 percent) and reached its logical conclusion in the 1960s (when the rate of acquittal fell to a fraction of 1 percent of verdicts, its level at the demise of the USSR). A second sign of judicial deference to procurators (and the political interests that they represented) was the cooperation displayed by judges in politically sensitive cases. In dealing with party-vetted prosecutions of important, nomenklatura figures or with political prosecutions—cases prepared by the KGB—judges not only came up with the appropriate verdicts and sentences but tended to use their discretion during the trial in biased ways, such as failing to respond to defense requests to call particular witnesses or other motions. Of course, these problems did not arise too often, as the defense counsel at political trials had received special permission to participate (dopusk k politicheskim delam) and tended to cooperate with the judge and procurator.

The post-Soviet situation
From the late 1980s on, progressive jurists in Russia sought to right the balance between the procuracy and the courts as part of a deep and broad judicial reform. The perspective of the radical reformers, who sought both to eliminate the "accusatory bias" in Soviet criminal procedure and to develop the independence and power of courts, was encapsulated in a document known as "The Conception of Judicial Reform in the Russian Federation." Written during 1991 by nine jurists, mainly legal scholars and predominantly specialists in criminal procedure, the essay included many proposals for strengthening the courts directly. But one of the central theses advanced by the authors was that to overcome the courts’ tradition of weakness and dependence a corresponding diminution of the procuracy—both of its functions and its power—was required. In fact, the paper provided a root-and-branch attack on the procuracy and asked Russian lawmakers to eliminate virtually all of that agency’s supervisory functions, which were—it argued—incompatible with a democratic polity. No more would the procuracy serve as the "eye of the Tsar," or of the party bosses, but must confine itself to the mere conduct of criminal prosecutions.

Such a negative view of procuratorial supervision was not shared by most jurists, let alone politicians, and in 1992, and later, the leaders of the procuracy succeeded in defending their agency’s prerogatives, preserving most of them. All the same, a number of changes in the functions of the procuracy, and in those of the courts in areas previously dominated by the procurators, significantly modified the breadth of procuratorial supervision and the role of procurators in criminal cases.

The power of supervision (no longer called "general") continues and includes a new emphasis on procuratorial review of "the rights and freedoms of the person and the citizen," as well as of the implementation of laws. But the supervisory powers of the procuracy also have some new limitations. For one, supervision has been limited to state agencies and officials, and as more and more of the economic enterprises are privatized, they fall outside the domain of the procuracy’s supervision. (Arguably, this loss has been offset by increased procuratorial responsibility for uncovering regional and local laws and normative acts that contradict federal legislation, a matter of great consequence to President Putin.) For another, the courts have been entrusted with a broadly construed power to review the legality of actions by state officials, and this has reduced somewhat the previous dominance of the procuracy in this domain. Most important for the courts, however, was the elimination of the procuracy’s specific power to supervise legality during trial proceedings.

The 1992 Law on the Procuracy and its amended version of 1995 make no mention of responsibility for supervising the implementation of the law at court. This omission represented a victory for the reformers, who objected strenuously to the placement of the prosecution above the defense and the judge. The practical meaning of this symbolic victory is far from clear. For while the procurator has lost his position of superiority in the courtroom, he is still expected (by his superiors at least) to use every legal means possible to ensure observance of the law. Thus, in Order No. 44 of 1994, the procurator general warned his subordinates that removal from the law of the duty to supervise legality in trials "in no way means that the procurator show indifference to actual violations of the law." Instead, he has an obligation to watch for any violations and to use all the powers granted by the Criminal Procedure Code to react to them, including petitions to the judge and, later on, cassation protests. Needless to say, the procuracy retained the power to review any verdict already in effect and start a supervisory review.

The dominant position of the procurator in the pretrial phase of criminal cases has also been challenged. The 1993 Constitution calls for judicial supervision of the pretrial investigation, and, in particular, the approval by judges of every use of pretrial detention, searches and seizures, and eavesdropping. Since this requirement will go into full effect only when a new Criminal Procedure Code has been promulgated, the shift in decision-making power from procurators to judges is not yet fully realized. However, through decisions of the Constitutional Court, judges must now approve warrants for searches and wiretapping; in addition, a law of 1992 established the practice of judicial review of appeals to procuratorial decisions on pretrial detention, an option exercised by nearly 20 percent of detainees.

Not only have the supervisory powers of the procuracy, in criminal procedures, been reduced in law (if not yet in practice) and the related powers of the courts expanded, but the basis of judges’ dependence upon regional and local politicians (and indirectly upon procurators) has been drastically curtailed. No longer must judges curry favor with politicians to ensure continuation in office. Most judges in the Russian Federation now have life appointments (to the retirement age) and face a recall only after a decision by a committee of fellow judges (the qualification commissions) and only for cause. In theory, courts no longer depend on local and regional governments for funding, as court budgets come exclusively from the federal government and are distributed and managed by the bureaucratic hierarchy of Court Departments (wholly separate from the Ministry of Justice). In practice, underfunding from the center has forced the chairmen of regional and local courts to find supplementary allocations from the corresponding governments and from private sponsors. All the same, in 1998, Russian judges reported that they felt more independent than they did in 1991.

At the start of the new millennium, what difference did these changes in the relative positions of the procuracy and the courts make to the administration of justice in criminal trials? One phenomenon worth noting is that over the course of the 1990s there was a modest increase in the percentage of cases lost by the state. This was reflected not in an increase in acquittals (which continued to fluctuate at a rate well under 1 percent of trials) but rather in the frequency of cases returned for supplementary investigation (which often ended in the squashing of the case) and in trials stopped by judges on various grounds. No doubt the increased failure of prosecutions was a reflection of weakly prepared cases, itself the result of the decline in the qualifications of investigators. But this trend also required that judges act more boldly than in the past.

At the same time, in the late 1990s, there was an increasing possibility (though not a probability) of unbiased adjudication in political cases, resulting in acquittals on occasion. The Nikitin case stands as a prime example, but there will be others.

Not always will the accused receive a fair shake at trial. There seem to have been special reasons why Nikitin achieved success at an early stage. As a rule, the accused are likely to have a better chance of a fair and unbiased hearing, and of a positive ending, when their cases reach the appellate level (for example, cassation review at the Supreme Court). Despite their new-found independence, many trial-court judges may still feel pressure to cooperate in politically sensitive cases, a pressure most often deriving from the chairmen of their courts in response to either cues from the outside or simple, political logic. In addition, many of the judges share the traditional view of the courts as partners with the police and procuracy in the fight against crime; they share, too, the habit of demonstrating loyalty to political authorities. In contrast, Supreme Court judges are more secure personally (they do not face further review of their records for promotion), work in a relatively well-funded court, and stay in close touch with the political struggles of the leaders of the judicial community as they develop and protect its autonomy.

In short, the relationship between procurators and judges in the Russian Federation is still evolving. It is unclear how soon judges will gain the financial security needed to break the continuing (though lesser) ties to local power, assuming such security is finally realized. It is uncertain to what degree criminal procedures in the Russian Federation will be reoriented in the direction of adversarialism and away from the traditional Russian forms of inquisitorial procedure. As long as judges continue, in some cases, to direct the inquiries at trial (the situation in about half of the criminal cases where no procurator is present), they will have trouble learning how to function as neutral referees in the adversarial style. Arguably, even a refined version of inquisitorial procedure aligns the judge excessively with the prosecution.

Still and all, the decisions by three different sets of judges in the Nikitin case stand as testimony to the reality of change in the administration of justice in Russia. How deep and lasting that change will prove remains to be seen.

Peter H. Solomon, Jr., is professor of political science, criminology, and law at the University of Toronto and is the coauthor, with Todd S. Foglesong, of Courts and Transition in Russia: The Challenge of Judicial Reform (Westview Press, 2000). Todd Foglesong is currently in Moscow directing a project on pretrial detention for the Vera Institute of Justice (New York). In July 2001, he will return to the University of Utah as visiting assistant professor of political science.

Further Reading
Two good overviews of the history of the procuracy in Russia and recent changes in its status are: Gordon B. Smith, "The Struggle over the Procuracy," in Reforming Justice in Russia, 1864–1994: Power, Culture, and the Limits of Legal Order, ed. Peter H. Solomon, Jr. (Armonk: M. E. Sharpe, 1997), pp. 348–73, and Inga Mikhailovskaya’s contribution to "The Procuracy and its Problems," a survey in East European Constitutional Review 8, nos. 1/2 (winter/spring 1999), pp. 98–104. On the history of the procuracy in the USSR as an institution and its prosecutorial role, see Peter H. Solomon, Jr., Soviet Criminal Justice under Stalin (Cambridge: Cambridge University Press, 1996). For the 1992 Law on the Procuracy with revisions from 1995, full commentary, and a selection of related instructions, see Kommentarii k Federalnomu zakonu "O prokurature Rossiiskoi Federatsii." S prilozheniem vedomstvennykh normativnykh aktov (Moscow, 1996). Peter H. Solomon, Jr., and Todd S. Foglesong’s Courts and Transition in Russia: The Challenge of Judicial Reform (Boulder: Westview, 2000) offers a comprehensive analysis of the development and implementation of judicial reform in post-Soviet Russia.

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