Russian Reporter's main piece in the first week of September is the article ‘Judge for yourself; who makes the court decisions in Russia‘ written by Lyudmila Nazdracheva. The article consists of three interviews with former judges. Together these three interviews provide a deep and comprehensive view of the current state of Russia’s court system and most importantly the stumbling blocks to reform.
This translation is an excellent example of almost anthropological, thick description journalism, that magazines like Russian Reporter provide. It's not difficult to condemn Russia's Court system or to come up with a list of its deficiencies, but only articles like these help us understand how the system actually works and why it is so hard to reform it.
Russian Reporter is a sibling of the Expert magazines, which cover politics, economic and business topics for the growing middle class. Russian Reporter targets a broader audience, focusing more on human interest stories from Russia and around the globe. It’s weekly auditorium is 235.900 readers, which makes it slightly better read than Russkii Newsweek, but not as well read as the somewhat cheaper Kommersant Vlast‘ and Itogi.
Judge for yourself
The court system reform started by the Russian authorities is clearly grinding to a halt. The dependence of judges from the authorities and business has not been ended. So pervasive is the bias towards ‘guilty’ verdicts, that a ‘not guilty’ verdict is considered a miracle.
Russian Reporter talked to three former judges – from a common district judge to a chairman of the regional court – and asked them who makes the decisions in the courts, how the so-called telephone justice works and why judges do fear the procurators, but do not fear unjust sentences.
A brawl takes place in front of the rostrum. The defendant’s fist strikes the main witness on the jaw, after which they are separated by bailiffs and lawyers. The former vice chairman of the Samara district court, Andrey Morgunov, has his eyes glued to the television, trying to guess the sentence that the accused will receive. He gets it wrong as the defendant is unexpectedly acquitted. Morgunov turns off the television. He didn’t stand much of a chance to predict the right outcome. Legal television shows operate by very different laws than our real courts.
Morgunov tells us that it’s difficult to imagine that this could happen in a real court. Why do they show us such a court? Do they want us to believe that in our country every defendant is acquitted? In our courts, even when in the course of the process it becomes evident that a case is fabricated, a ‘guilty’ verdict will still be delivered.
Do you mean that it is often clear that a case is fabricated?
Of course. You always sense it when a case is processed without leaving the office and for the statistics only. They are even called like that, ‘office cases’. Such is often the practice in drug related cases. The police detective sits down – He may have colluded with the prosecution or not – and ‘collects’ the evidence. Supposedly, drugs were found on someone on the street. Some other drug addict, who has been in pretrial detention for a long time and has been broken to the point that he is prepared to sign anything, testifies that he was stopped and searched on the street and that a drugs were found on him. So here the detectives get their witnesses, as well as the act of confiscation. The documents are copied and the right name is inserted. The witnesses are often the same and the detectives often work in the same precinct. As a judge you immediately recognize the familiar names and it’s obvious what kind of case you’re dealing with.
And what? You can’t acquit that person?
Drug addicts? No. I don’t like them. I can only influence the article under which the accused is tried. I can for example change ‘sale and manufacturing’ into ‘illegal purchase’ or ‘possession’. These types of crime are subjected to milder articles. Suddenly the future of accused doesn’t look that gloomy anymore. However, while he may not go to prison and receive a suspended sentence, he will in any case be convicted.
One and half year ago Andrey Morgunov changed his gown for a business suit. Now he openly speaks about the secrets of judicial practice. Morgunov is skeptical about the campaign to liberalize the Code of Criminal Procedure for economic crimes. And having stood on both sides, that must mean something.
It’s almost impossible to oppose attacks on businesspeople. No one is ready to take on the procurators. They would raise so much trouble! There is often considerate pressure to approve of an arrest. If you set bail, there will be immediate reaction through the regional court. Your superiors will be mobilized against you. In the regional court the arrest will be approved and a telephone call will come down from the regional court to the district court. Even when it is evident that the case is unfounded.
But what about the amendments to the law that forbid the arrest of suspects of economic crimes?
Let me say it like this. Corporate raiding was not put to an end. In most cases it still works like before, by means of the criminal persecution of the victims. These amendments to the law didn’t change much, because there are many more economic articles in the criminal code. The investigators simply amend the description of the crime, so that the arrest of businessman can be pursued. Sometimes the description of the crime is even amended during court procedures. And even when the entrepreneur is acquitted, he still spent so much time in pre-trial arrest that the damage has been done. His business is already taken away from him or his problems have only risen.
The entrepreneur Morgunov does not believe that this could happen to him. The status of a former judge, even when fallen from grace, functions as some sort of protection.
Nowadays it is the executive branch that orders the music, Morgunov continues. Using the courts, the administration oversees the re-division of property. After one mayor sold a plot of land, the next mayor employs the help of the courts to get it back. And if a judge tries to make a decision that does not suit the bureaucrats ….
I did and after that I left. There was this case. A person hired a plot of land on the riverbank and built a coffee-house. Later on he decided to try and buy the plot. He is entitled to do that by law. He wrote the administration once, a second time, but received no reaction at all. Then he went to court.
How did you decide?
I only obliged the bureaucrats to look into his request, but that clearly made their blood boil. The press was called in and they made it look as if I almost gave the parcel to the entrepreneur. Up to the last moment I did not believe that the board of qualification would be so obedient as to unquestioningly follow the chairman of the regional court. Nowadays, however a chairman often does not even have to say a word or call to ‘pass’ the necessary decision onto the board or more often to the district court. They will already have sensed themselves what verdict is needed.
You speak as if it was a different situation not so long ago.
Of course, it takes time to develop your intuition. In Samara in the course of one year about 20 judges were discharged; judges who failed to master the right intuition. That was a demonstration for – so to say – internal use. It was clear that the other judges were deeply frightened. Before, when a case involving the interests of influential people was examined, the judge would also receive hints, but tactfully, without imposing a particular decision. Back then people were still careful. A judge could also refuse to oblige by the recommendation. But now when concerned people organize a call form the regional court, no judge will refuse. The necessary decision is accepted, even when it’s understood that it is unjust.
Even when the evidence does not allow it? Yes. Even when a judge simply points at shortcomings in the investigation, he is immediately asked: Who do you think you are, acquitting a criminal? Are you somehow involved? Did you perhaps take a bribe?
Were you ever offered a bribe?
I would lie, if I said no. It was common practice in the nineties. They would park a new car under your window and disappear. I confess that it was difficult to resist. But you need to realize that it doesn’t work like that anymore, already not for a long time. You don’t want to be connected to the accused party. Soon, they will start to come to you more often, behaving as if your office is their home.
It is most often not the judges but the lawyers that are suspected of bribery. Some lawyers are even referred to as ‘messengers’. A few years ago in Samara the unwritten rule was established that within families of judges there should be no lawyers. Many judges were forced to choose between their profession and their family. Some got divorced on paper, so they were able to stay on as a judge. Experienced judges know that it is better to not be seen with lawyers at all. But what can you do? Lawyers will come to your office anyway. A lawyer takes on the case. A lawyer will file an appeal. There has to be contact anyway.
Do defendants often use a lawyer to try to decide a case in their favor?
We may as well confess. That happens. Sometimes even without a judge knowing it. It’s for example possible that there is a case and a familiar lawyer will say: What a bad luck this young lad has. It is his first time. He is a fool, of course, but straight to prison? Wouldn’t that be too harsh? As judge you decide to be forthcoming and without hidden meaning you reply ‘Well yes, of course, for such he may be given three or five years of suspended sentence. He should not go to prison.’ You may have only expressed your opinion, but the lawyer will go to the client and say ‘the problem can be solved, but we need this amount of money.’
Have you been tricked like this? It has happened. I only found out later though. For some reason I found myself in the company of the parents of a formerly accused. A bit drunk, the father tells me. ‘ I always thought you were a stern judge. Then I understood that the lawyer solved the problem according to the scheme I just described. From that time on, I no longer speak with lawyers in concrete terms. I no longer give hope.
Moscow City Stamp explained
Judges are seldom offered bribes, but that doesn’t mean that they are not on the take, explains my second contact, Aleksander Melikov, a former judge at the Dorogomilovsk district court in Moscow.
If you want to get to a judge you try it through a lawyer or the procurators, although there are of course the completely frost-bitten that simply knock on your door. I had it particularly hard. I have primarily Russian roots – I am a native muscovite – but my surname is Turkish. Because of that the Azeri take me for a fellow countryman. It happened a lot. The door swings open and a man wearing a cap comes in shouting he needs to see Melikov.
Did they bring you bribes?
For sure. Azeris are used to straightforward negotiations. But seeing me, their faces changed. I may be going bald now, but back then my hair was blond. They must have thought they had mistaken me for someone else and disappeared. The most persistent however I had to talk out of my office.
So, I have not taken even one bribe, Melikov reassures us. My career and reputation were always more important. Those of his colleagues that have sinned, however, he judges kindly.
These judges often propose the bribe themselves. Depending on the article a bribe could be 30, 50, 100 or 200 thousand dollars.
But we don’t often hear of cases in which judges take bribes.
That’s because it is common practice to solve such problems behind closed doors. The public may hear of it, but only when it is an important case, when the implications of an illegal decision concern too many people.
Did your colleagues ever ask for bribes?
Once two judges were arrested at the Dorogomilovsk court. These judges signed antedated verdicts for a fraud ring that privatized apartments from deceased owners using fake family members. The two judges were originally from Murom and didn’t end up at a Moscow district court just like that. Someone at the Moscow City Court had recommended them. That’s how they earned their money.
Are there others to replace such judges?
There are plenty of people who wish to become a judge. There are also plenty vacant positions. In Moscow about thirty percent of the positions are not filled. And even though the workload of the other judges increases, nobody complains, because that would mean that the salaries would go down immediately.
How does that work?
A large part of a judge his salary consists of payments out of the so-called economy fund, which is made up from unpaid wages. In some cases these payments can be three times higher than the standard salary. Of course, because of the underemployment the workload only increases. Over the course of a year I examined about 800 cases. This workload is the main reason why judges no longer examine their cases very carefully. Their verdicts are often stamped after having been agreed upon with the investigation.
When I had just started as a judge, there was a day when the elder judges came into my office. I was reading case files. ‘Read, read’, they told me with irony. How long have you been working here? A month, I replied. ‘That means you must have about 15 cases. When your cases pile up, let us see, whether you still have the time to read them’, they said.
Is this the reason why our judges pass so few acquittals?
Precisely. There was one judge working with me, who had not acquitted even one person in ten years. I confronted her: ‘It’s impossible that they all have been guilty. There must have been a mistake here, a mix up there.‘ She answers that: ‘It’s easier for me to work like that. When I would start to acquit, I would be fired immediately.’ She has little reason to fear that an unjust verdict will be repealed, because the cassation cases are referred to Moscow City Court and there they will be turned down. That’s why it’s also called Moscow City Stamp. In general, when a case is unclear, a judge may find himself between two fires: On the one hand, a judge has make certain not to offend the procuracy, and on the other, a judge needs to ensure that a higher court will not repeal the verdict, when it is being reviewed.
Supporting the accusing party is complicated because of the low quality of the investigations. Evidence is often collected in violation of the law and one must often look the other way. As a result, the dealing starts. A judge says: ‘Weak evidence’. The procurator: ‘Yes, we could agree to a suspended sentence’. The defense nods and the accused is sentenced to six years on probation. The procurator is pleased because he has his verdict of ‘guilty’. The lawyer is happy because his client will not go to prison and the judge is content because he has managed to please all. Everybody wins. But actually it’s an absurdity.
Was the position of a judge in Moscow always as you describe it to be?
No. I became a judge in 1997 and honestly up until 2001 I really didn’t know what a ‘call’ was. I never received any recommendations from the chairman of the court. I remember how the case of the ‘three whales’ was heard at our court. We acquitted customs general Volkov (custom officers Aleksandr Volkov and Marat Faizullin were accused of exceeding their authority, but were completely acquitted by the Dorogomilovsk Court – RR) Afterwards Moscow City Court kept us on a short leash for a long time, because they had received orders for a different decision.
And who had been instructing the Moscow City Court?
There was a war between departments going on. On one side the Procuracy and the FSB, on the other side the Ministry of Internal Affairs and Customs. On that level the decisions were dictated. As a result the judge that made the decision, Ol’ga Kudeshkina’ was fired, for not listening. And that happens with each important case.
Aleksander Melikov was discharged in 2005. It didn’t even help that he had been elevated to the position of federal judge not even long ago. In the course of a set of reforms the inter-municipal courts were liquidated. The judges of these courts formally lost their positions, but were later reappointed to newly created district courts. Thirty people were not reappointed. Melikov also did not fit the bill.
At first they proposed to me that I would resign myself, citing health reasons. That’s a good article. I would kind of admit that I had gone crazy and that, because of my health condition, I could not work any longer. They would say that it is not my fault that I had gone crazy. That would mean that I would get an honorable discharge, including the preservation of all privileges; a good pension, medical care and immunity.
I didn’t agree to these terms after which they persecuted me on the usual pretext of repealed sentences. In general repealed sentences are accepted as part of the job. At least when a judge has presided over few such cases. The norm is that a judge may have 10 to 15 cases repealed in one year. When the total hits 25 an investigation will start. All cases will be reexamined, analyzed and searched for corruption or a lack of professionalism. I only presided over 7 such cases in the entire year. They should have given me a medal, instead of persecuting me.
In your opinion, what were the real motives?
Because of me and my colleagues, our Dorogomilovsk Court was ahead of the planet when it comes to turning down appeals to keep suspects in pretrial detention. At an annual meeting at Moscow City Court, our case was presented as if we were using this practice to enrich ourselves. I indeed often refused arrests, but … well, there are these truly absurd situations.
The procurators would demand an arrest and I would say: ‘Have you any idea what you are doing? Why do you want to keep this person in pretrial detention?’ For example, there was once a girl who had cut her roommate a bit. It was still unclear who was right, who was guilty, who hit first and so on. Then she ran away and the police even stopped looking for her. One and half year later she reported herself with the police. She had made peace with her roommate. They even planned to get married and decided to solve their legal problem first, but he was still arrested. I told the procurator: ‘Have you no conscience at all? She solved your case. She confessed. You need to let her go.’ In the end she was given two years of suspended sentence. There were many such cases.
Okay, another one: I often managed to close cases by means of reconciliation. That was not appreciated too. Calls would come from Moscow City Court: ‘What is Melikov doing, closing that case. Tell him to get on with it.’ But what should I get on with? Article 25 of the criminal codex: does mention ‘suspension due to reconciliation’. Both sides had reconciled. What should I do? Sent someone to prison?
I always argued with Egorov (chairman of Moscow City Court – RR) about this point during our meetings, until one day a girl in our office told me: ‘Listen, wouldn’t it be better if you called in sick and don’t go to these meetings no more?’
For four years Aleksandr Melikov has tried to get reinstated, but without success.
Tomatoes of happiness
Imagine that you are a member of the jury and the evidence has been presented to you. Nevertheless you are not completely convinced of the guilt of the defendant. What would you decide? Guilty or not guilty? The former chairman of the Saratov regional court Aleksander Galkin looks at me, taking his time, anticipating my answer.
Not guilty, of course.
That’s what all the juries do. But juries are presented only with that part of the evidence, that has been gathered without violations of the law. A judge, however, will examine all the evidence and he will see that the accused is guilty. That’s why judges have more ‘guilty’ verdicts than juries, Galkin says, trying to explain the enormous percentage of ‘guilty’ verdicts in Russian courts.
True, police detectives may slip in some falsified evidence, Galkin says, perhaps more to himself than to me. For example, once in Saratov, before the moratorium on the death penalty, a person was found guilty of murder in the first degree. However while the preparations were made to execute him, in a prison another person confessed to the same crime. As it turned out, the detectives had offered a cigarette to the original suspect in pretrial detention. Later they had placed the butt in the house, where the crime was committed. The experts had found the butt and that was it.
So in this case the judge hadn’t noticed a thing. But still you find it normal that a judge will also examine evidence, collected with evident violations.
A skilled judge would have noticed. That’s why everything hinges on the selection of personnel. I for example would always talk to an aspirant judge, before recommending him to the regional parliament. Sometimes, I intuitively sense that it is too early for a person to judge other people. Not long before my discharge I advised an aspirant judge to wait. He had already completed the exam before the Board of Qualification, but I still decided not to write my recommendation for the regional parliament.
Was it often needed to strip a judge of his powers? For taking bribes, for example?
It has happened. When the information is received that a judge has been taking bribes, we investigate and reexamine the old cases. When the allegations are true, we ask that person to leave in good fashion, so we do not have to take the case to the procurators. That would start a very complicated process. A case would have to be opened with the general procurator’s office, which would mean that the entire Board of Qualifaction would be purged too. At the procurator’s office such cases aren’t popular either. That’s why for us and for the procuracy is better that such a judge would leave voluntary.
Can a common judge operate independently from a chairman of the district court or the chairman of the regional court?
No, that is a myth. Such dependence has always existed, but before it was simply not misused. A chairman has two levers of influence: the whip and the cookie. Who do you think determines the size of the bonuses given to the judges? The chairman does.
When an unethical chairman orders a verdict and its not followed upon, he will find a way to take disciplinary measures. That’s why nowadays even a simple call from the chairman, in which nothing is asked and just an interest in the case is expressed, will still confuse a judge. A judge will immediately puzzle over the reasons for the call. What could the chairman want? At night the judge will not sleep, continuously thinking about the kind of decision the chairman would expect from him.
Did you ever pass an order to another judge? We often hear that it is especially the head of the regional court, who functions as the intermediate point in the system of telephone justice.
When I would have passed such orders, I would still have a job, Galkin smiles. I left, because I got tired of fighting for my independence.
Where you ever put under pressure?
That would depend on your definition of pressure. A call, for example. I will not say that there have been no calls.
And how did you react to them?
Very simple. My rule was to listen to the entire conversation, but say nothing. I also didn’t tell the person on the other end of the line that he was acting inappropriately. These people are no idiots. They understand themselves that they are trying to break the law. Why would I waste my time to explain that to them again and again?
Those callers are very often people from high ranks; deputies from municipal or regional parliaments or from other government structures. They called and they called, but their recommendations weren’t followed upon. Their irritation must have grown and grown, up until the point that it reached critical mass.
Two years ago a wave of publications appeared in the Saratov press about the connections between Aleksander Galkin and a local businessman called Leonid Feitlikher, who at the time was involved in a libel case and most importantly did not hide his opposition to the regional authorities.
Galkin remembers how there was strong pressure on the court to influence the verdict, by means of telephone calls as well as these publications in press. ‘Even though from the start I had openly stated that I would do nothing, that the [district] court would be left decide for themselves, but that when the district court would make a mistake, we would correct it in the regional court.
By whom were you called?
I could mention names, but it is a delicate matter. I do not have the proof in my hands, because I didn’t record these calls. When I would tell you everything and you would publish it, then they would go to court to protect their honor and dignity – which existence I doubt – and I would have to prove my case. After the publications I also received information that when the calls and publications wouldn’t influence me, it would be necessary to look into my private life; to follow me, to see where I am going, with whom I am meeting, what I do and so on. I am not sure if they did follow me. The people who do such things are probably professionals. You will not notice them.
In the end Aleksandr Galkin could no longer cope with the pressure and resigned. Before his resignation he did try one last time and sent an inquiry to the the Supreme Court, asking to look into the publications, but the board didn’t find any breaches.
‘Sometimes I ask myself whether I should have continued the fight. But then I realize that another political case would have come onto my desk and that it would have started all over again. They just could not let me work normally. I left and got myself full independence now. I grow tomatoes on my dacha and I am completely happy.