Legal reforms
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Joera Mulders
April 25, 2011
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Now the elections are coming closer and the public is weary of ever more promises and declarations, Medvedev and his circle need to show what they have accomplished over the past years. Containing the financial crisis isn’t sexy. Double digit real income growth isn’t coming back and the fight against corruption will be a long one. Medvedev’s perhaps greatest accomplishments are to be found in the reforms of the criminal law and the penitentiary system. During the last week interviews appeared with Minister of Justice, Alexander Konovalov and the chairman of the Supreme Court Vyatcheslav Lebedev, both communicating the successes in their fields. Foreign officials and experts, who base their views of the state of Russia’s judicial system on the Khodorkovsky and Hermitage cases, may take note too. Much is changing.

This post is constructed on the basis of 4 articles which appeared over the past two weeks. “Freedom as a policy”, which appeared in Russkii Reporter and was written by Viktor Dyatlikovich, is a summary of the reforms of criminal law and the penitentiary system. The same magazine featured an interview with the Minister of Justice, Aleksandr Konovalov with the title ‘No reasons to accuse us of excessive liberalism’. For Kommersant Maksim Baryvdin, the head of the newspapers crime department, interviewed the chairman of the Supreme Court, Vyacheslav Lebedev. Finally, I will refer also to a column written by Alexander Privalov for Expert Magazine. Privalov was recently awarded with the Russian ‘power no. 4’ award for socio-political journalism.

The reforms to the penitentiary system and criminal law can be divided into  four elements.  First, there is the reform of the penitentiary system. Second there is the reform of the criminal law which is designed to give judges more options to make individualized decisions by reducing the minimum sentence for a wide range of light and average crimes. Third, there is the reform of the economic crimes chapter aimed at freeing entrepreneurs from the threat of being locked up in pre-trial detention as part of blackmail or a corporate raid. Fourth there is a new batch of amendments to the criminal law brought into parliament which specifically targets the power the economic security department of the FSB has over ordinary customs proceedings.

It should be no surprise that these so called ‘liberal’ reforms are met by many with suspicion. When vengeance meets justice and the desire for a simple solution, populations of countries all around the world, even the most ‘civilized’, are easily convinced that harsher penalties are what is needed to combat crime. Russia is no different. Also not specifically Russian, but nonetheless very post-soviet are the efforts made by the organs of law enforcement or in the broader sense Russia’s infamous ‘power organs’ , which whip up fear for an ensuing crime wave among the population to frustrate reforms that would take away much of their jobs and influence.

“We are preparing the ground for a new criminal revolution”, Vladimir Ovchinsky, an advisor to the chairman of the Constitutional Court, said. When asked to comment on Ovchinksy’s quote, the Minister of Justice, Alexander Konovalov replied:

“It is interesting that he mentions a criminal revolution. In my opinion that is exactly what we have been doing all these past years, perpetually regenerating a criminal culture. Each year 300.000 people leave our prisons and penal colonies. Among them there are recidivists. Among them there are also many who were placed behind bars for the first time. And these latter group does not only leave the walls of the prison with a clear conscience, but also with a completely deformed psyche full of hate against the state, against society and against the law. That is not the human capital needed for the innovative development of the country or any other form of modernization. It’s a threat to all normal law abiding citizens.”

Later in the interview Konovalov even speaks of  ‘a threat to state security’ would the prison system and criminal law not be subjected to reform. No less serious he also notes that “the British have such a saying: ‘Prison is a very expensive way to make a bad person even worse.’ You may laugh, but this is in fact true. Prison has never really corrected a person and we should always remember that it is a forced measure, which should be applied when society has no other means to bring a person to reason.”

Ovchinsky, by the way, has been fired.

Historical context

Russia is not bound by its history as those many quasi-academic references to the writings of the Marquis de Custine tend to suggest. On the other hand it will be difficult if not impossible to understand Russia without knowing at least a bit about its history. We often tend to forget that much of what Russia is trying to achieve in several decades took our western nations more than a century to accomplish. Let us therefore refresh our memory with the historical views as presented by chairman of the Supreme Court Vyacheslav Lebedev and Ministry of Justice, Alexander Konovalov.

Lebedev about the Soviet past: “There was a time when we thought that harsher sentences would show us the path to the eradication of criminality. In those days, the functions and tasks of the judges were different. Judges were counted among law enforcement organs such as the police, the procurators office and the KGB. Judges were considered one of the organs fighting crime. At the time we thought that harsh punishment was the method to construct a society, where there would be no criminality . Life however showed us, that this was not true. Fighting crime is foremost about the elimination of the causes and conditions which may lead to criminal behavior. This is first of all the settlement of social problems of our citizens. This is prevention of crime. This is the education of law abiding citizens. It is about the formation of ideology in society. That’s why we can’t solve the problem of criminality with harsh sentences alone.”

“Two decades ago, we moved away from the previous system and all these years we have methodically been building a court system, which is based on ‘the principle of individualization of responsibility for concrete actions’. Individualization of sentences depends on the personality of the accused, on concrete circumstances of the committed crime, on its motives. To not take into account all of this, to apply the same template all the time, that is the path to judicial mistakes.”

Konovalov about the past two decades: “During the last 15 to 20 years, judges had to decide between two kind of sentences: imprisonment or conditional sentences. We have to admit that over this period an enormous shift has taken place from a so called inquisitorial system to an adversarial system. Yes, it it still far from perfect, but the adversarial principle has entered our court system.  We have the right understanding of how the court reforms will have to proceed: in the direction of independent judges, their integrity, extra guarantees for all participants in the process, the optimization of the judicial process and specifically the reduction of the duration of the processes. A different question however is how fast we can achieve this.”

Penitentiary reform

Let us now turn to the first element of the recent reforms. Let us call them Medvedev’s reforms. Why not? Russkii Reporter summarizes: “The purges in the Federal Prison System (ФСИН) started – unfortunately after the death of Sergey Magnitsky – when by one presidential decree 20 generals were sacked in July 2010. In addition several criminal cases were initiated against the heads of penal colonies and regional subdivisions of the Federal Prison System. In St. Petersburg for example 10 employees of the Federal Prison System were accused of extorting family members of prisoners, who were bullied, raped and taped on video.”

The Minister of Justice, Alexander Konovalov

The Minister of Justice speaks of the most concrete changes to date, the physical separation of the first time offenders from the recidivists. Konovalov: “We began with the strict compliance of the long time existing norms of the criminal-executive codex, which demand that persons who are imprisoned for the first time should be held separate from the recidivists. And when over the past year we ensured this for 30 regions, today we may say that this task has been completed. We had to move approximately 150.000 prisoners. And now people who enter the Federal Prison system will be sent there, where the law requires them to. The ‘sitters’ with the ‘sitters’ and the newcomers with the newcomers.”

“We also try to eradicate some other patterns, which clearly outlived their times and have discredited themselves as a burden and source of widespread violations, abuse and other problems. I refer in particular to the unfortunate ‘Sections of Discipline and Enforcement’ [СДП – instituting a formal hierarchy among prisoners, basically letting some of the inmates run part of the prison. JM]. More than a year ago we have abolished them.  I have no illusions and I do not think that all phenomena connected to the existence of that institute have been eliminated.”

“It is clear that in some penal colonies the administrations like before try to isolate groups of inmates,to  give them powers over other prisoners and use them for their purposes. But now these practices have been taken outside of the legal context. Now everything that is created to replace a SDP is a personal and moreover illegal initiative of a prison administration. We can easily find out and we will not hesitate to take action.”

“We are aware that with a salary of between the 15.000 and 30.000 rubles as well as monstrous workloads and unbelievable difficult work, there is little hope that we can eradicate corruption completely. That would be an illusion. We understand that the corrupted environment is our main headache.”

Even though it is denied by Konovalov, it is clear that one of the aims of reform is to decrease the burden on the prisons and the penal colonies. If you want to improve the conditions, you either increase funding and personnel or you decrease the number of inmates.  

Konovalov: “We don’t fool ourselves. We understand that if the organs of law enforcement would work as they should; catch and imprison everyone who deserves to be caught and imprisoned, then the number of people in prison would not diminish but rise. We’re prepared for that.

Criminal law – Reducing the minimum sentences

Looking at the statistics of the length of the prison terms in Russia, we see that 61.8% of the inmates serves a sentence of 3 to 10 years. Only 2.2% is sentenced to a term that is less than one year. Konovalov: “To immediately imprison a first time offender – even when he is guilty – for 6, 8 or 10 years isn’t right. In all civilized judicial systems the average prison term is 2 till 7 months. That is the reality.“

The upper graph shows the dispersion of prison sentences. 37.5% of the inmates serves a sentence of 5 to 10 years.

The reduction of the minimum sentences in March 2011 for a wide range of crimes, including many of the so called economic crimes, but also grave bodily harm, theft, robbery and burglary is intended to give judges the option to hand out lower sentences. The aim seems to be. First, it will reduce the prison population, making the prison administrations better manageable and therefore likely less corrupt. Second, there is the hope that first time offenders will not be completely criminalized by sending them for several years to overcrowded prisons. You may call it humane. I would also call it realistic.

Russkii Reporter summarizes: “The current reforms can be considered bold in the sense that it questions the absoluteness of the thesis that ‘a thief belongs in prison’. A recidivist of course does belong behind bars, but should someone who steals a bag of potatoes for the first time be sentenced to five years in prison?”

Providing more room to judges to make their own decision is however a controversial issue. If one considers Russia’s judges to be one of the nodes of a corrupt system, providing more freedom to judges would be like setting the fox to watch the geese.
Konovalov disagrees. First, in a reasoning similar to the ‘presumption of honesty’ argument in the debate about government procurement and the corruption among bureaucrats, the minister points out that it would be a mistake to create an even more rigid system in order to fight corruption, when one of the catalyzers for that corruption is that same rigidity already present in the system itself. Second, in order to break the alleged ‘corporatism between the judges and the procurer’s office’, judges need get more freedom to make their own decisions, not less.

The Minister of Justice: ”A narrower choice of sentences has never stopped and will never stop judges from handing out unjust verdicts. And really, why should we design our policies on corrupted judges in particular and why should we proceed on the assumption that they will remain corrupt forever? Why don’t we target our policies on those uncorrupted and adequate judges, which there certainly are and whose number I hope will grow.  The judicial system should be developed into the direction of an increased role of the judge in the process. And for that, they need to have room to maneuver.

There is more. The articles I have read point out that judges will also receive the power to change the category of the crime to one of a lesser gravity. What’s more alternative sentences such as forced labor will be introduced. The number of house arrests quadrupled from 146 in 2009 to 687 in 2010. This number is still very small, because as Lebedev explains, no organ has yet been made responsible for the execution of house arrests. Will it be the Federal Prison System (Ministry of Justice) or the police (Ministry of Internal Affairs)?  The president has ordered to resolve the question.

The batch of amendments which includes field of customs, about which we will come to speak shortly, will also exclude offenses such as slander and insult from articles in the criminal codex that could lead to prison sentences. Bloggers will rejoice.

Economic crimes

A large part of the crimes for which judges have been given the option of lighter penalties are the so-called economic crimes. For about half of these economic crimes prison terms have been be replaced by large fines. The pro business element of these reform is however not as much related to the softening of the final verdicts as to the removal of the threat of pre trial detention. The possibility that an entrepreneur would be imprisoned for say ‘failure to properly register his business’ was previously enough for a judge to approve the investigation’s request for pre trial detention. Now that such offenses will be punished by fines, the argument in favor of pretrial detention has largely disappeared.

Russkii Reporter introduces Petr Skoblikov, a professor at the Academy of the Ministry of Internal Affairs, who points out that  “In 2009 51 people were sent to prison for illegal entrepreneurship, half of which received sentences shorter than one year. For the willful evasion of debt repayment 207 people were convicted. Only 4 of them received prison terms.” In other words, these ‘economic crimes’ hardly ever resulted in actual prison terms.  Many of the accused, however, did spent time in pre trial detention awaiting the outcome of the process. Skoblikov again:  ”In 2007 out of 211.000 criminal cases involving economic crimes only 16% was brought to court. It is obvious. These cases were used as a means of blackmail.”

The Minister of Justice has similar views: “It is well know that over the past years, the threat of a prison sentence in particular has become a widespread source of corruption. … Cases for those types of crimes hardly ever go to court, but are actively used as a means to pressure businessmen.”

Russkii Reporter has more interesting statistics. “In 2010 the economic crime rates in Russia dropped by an unbelievable 33.5%. Of course entrepreneurs didn’t suddenly become more conscientious. It was simply so that during the entire year reforms were conducted in both police and investigation. Officers of both organs clearly played save by not openly starting cases that ‘were made on order’.”

It is therefore clear in which corner the opposition to the reforms can be found. Parliamentarian Andrey Makarov told Ruskkii Reporter that “during the night before the vote in the parliament the General Procurators Office and the Ministry of Internal Affairs tried to ‘torpedo’ the amendments to the law forbidding the pre trial detention of suspects of an economic crime. And note that this was done with regard to a law which the president called a necessity in his annual address, a law which has the support of Putin and was brought in for vote by United Russia.”

Lebedev points out that the number of arrests has already been steadily declining for years. “In 2001, the last year in which arrests were sanctioned by the procurators office, that form of restraint was applied to 366.000 people. In 2010 judges sanctioned the arrest of 153.000 people. That is 213.000 people less. Over the last year the number of arrests dropped by 35.000.”

The chairman of the Supreme Court, Vyacheslav Lebedev

Another mechanism to decrease the practice of pre trial detention is the judge setting bail. According to Lebedev in 2010 bail was set in the 1400 cases. “But in thousands of cases bail must have been refused”, the Kommersant reporter asks. Lebedev: “Thousands? No, in the entire year 2010 bail was only refused in 134 cases. A widespread use of such a form of restraint is hampered by objective causes.  According to law, the minimum amount of bail for light or average crimes cannot be set at less than 100.000 rubles. For grave crimes the minimum amount is 500.000 rubles. More than 60% of the accused doesn’t have a steady source of income at all.” 

I suspect it isn’t as rosy as Lebedev presents it to be. Requests for bail can after all be conveniently ignored in court proceedings that aren’t up to the highest standards of transparency. Still, the gradual introduction of bail as form of restraint seems positive.

Customs

A new batch of amendments coming up shortly intends amongst others to break the power the economic security department of the FSB has over regular custom transactions. Currently the trafficking of goods which is also illegal within the borders of the country itself such as drugs and weapons and the violation of custom regulations, such as the evasion of custom duties, will be dealt with by the same article in criminal law, which effectively means that a judge will have a hard time distinguishing between the two, even of he or she would want to. The new amendments therefore propose to separate the two.

Alexander Konovalov:  “We should learn to call things by their right names. Smuggling is one thing. Evasion of custom duties another.” … “Prison sentences for smuggling will of course remain, but only for the trafficking of drugs, weapons and all those things that are also illegal to transport within the borders of the country. The rest will be subjected to fines.” … “And besides, the amendments still allow for imprisonment in case of repetition or in the case of involvement in other more grave crimes.”

“This is a Mafiosi dream come through”, Ovchinsky complains. “In fact something very different is happening”, Russkii Reporter writes: “ This is a nightmare for the FSB.” … “Even in a best case scenario thousands of jobs will have to be reorganized.”

Conclusions and epilogue

It will be difficult to deny that progress is underway. There have already been concrete results. The separation of first time offenders and recidivists in the penitentiary system is one of them. It is also clear that there is the political will to dismantle the power law enforcement organs have over private businesses and cross border trade. Moreover, despite all the talk of the enormous influence these institutions acquired during the second presidency of Putin, it doesn’t seem much of a fight. For now at least.

The other reforms are foremost legal. They are the type of reforms that could characterize the presidency of Medvedev. First, improving legislation, followed by a few surgical purges. Then it is waiting for the system to heal itself. Konovalov admits “the system is very inert. Lower courts react quite slowly to decisions made by the Supreme Court. The system will not re-orient itself immediately. The wheels are too big to simply stop or turn around.” I guess we will have to wait for the statistics in the coming years. Will the courts learn to diversify their verdicts with lighter penalties for minor crimes and harsher penalties for those who truly deserve so? Will society as a result of that come to see the courts as more honest. Will it start to trust in the objectivity of the courts? Only time will tell.

It won’t be easy. For several reasons. First, corruption has a way of finding new mazes when others are closed. Second, choices are hardly ever black and white. The Khodorkovsky case shows that to us year in year out. What is justice? A crook in prison or transparent legal proceedings?

To illustrate this predicament,  I will close off with a few paragraphs from the column Alexander Privalov which wrote for Expert. It’s about the former director of the Bank of Moscow, in my words ‘the cash register of Luzhkjov’s corrupt clique’. Borodin, the director in question, hardly deserves our sympathy. Still, the manner in which he was removed from his position by a court order, is reason for concern. Privalov explains it better:

“In no way I wish the suggest that Borodin is pure as white; that he is the genuinely honest president of an impeccable bank, that he was treated beastly when he was not allowed to sell his shares for the $1.5 billion that he wanted, but only a meagre $1.1 billion, etcetera, etcetera. The 13 billion ruble credit issued by the Bank of Moscow to the company Premier Estate ( funds that were only recently transfered to the bank by the Moscow city government and by means of that company specially created for the transaction, ended up at the accounts of Mrs. Baturina) reeks so badly, that I do think that a criminal investigation is more than warranted. I agree that a bank that since times has played a visible role in the affairs of the Moscow city government, should not be left in the hands of a trusted member of Luzhkov-Baturina team. Still, however, I do not think that these reasons should allow us to forget about elementary decencies.”

“I have to admit that some of the digressions from the high ideal, which occurred during the de-luzhkovization of the Bank of Moscow, have been inevitable. True, for the sake of the fight against corruption it would be much more appropriate not to give Mr. Borodin a billion greenbacks in compensation, but ask him in more detail how he became the owner of these shares? And whether in fact he really is the true owner? Aren’t there amidst the real beneficiaries of these shares some or more officials, for example from the former occupants of the city hall?”

“In a city full of glass houses nobody will dare to throw such a big stone and it was decided to buy Borodin out. The procedure of the buy out was most inelegant.  Almost the last large transaction to be approved by Borodin as head of the Bank of Moscow was the $1.1 billion credit given to the company of Mr. Yusufova Junior (the son of the former Minister of Energy), half of which on the security of shares belonging to the borrower himself, valued at about ten times higher than the price that Yusufov paid for the company only a year ago. You see this is the kind of money that was used to pay for the shares. Of course this is not all too proper, but there’s nothing to turn up your nose up for. Who – do you think would have paid for a more credible form of buy out?

Thereafter the case turned completely awry. In the framework of the criminal investigation into  embezzlement at the Bank of Moscow the investigators requested the temporary dismissal of the bank’s president – and the judge of the Tversk Court of Moscow, Alisov, approved the request. After the board of directors of the Bank of Moscow received the court decision, it was immediately executed with the appointment of a new president. (or to be more precise an acting president

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