After Boris Nemtsov’s brazen assassination a stone’s throw from the Kremlin, Secretary of State John Kerry called on the Russian authorities to “to act expeditiously to investigate and bring to justice those responsible.” Act expeditiously they did. The same day, President Vladimir Putin’s spokesman announced that the president was taking the investigation under his “personal control.” But will there be a “full, rapid, and transparent investigation and justice,” as E.U. Council President Donald Tusk aptly tweeted?
Don’t bet on it. Whether the investigation quickly produces suspects or not, it is unlikely to be thorough and transparent. Russia lacks politically independent criminal justice institutions, which could carry out a credibly impartial and objective investigation into a potential political assassination.
When it comes to routine civil disputes, commercial litigation or low-stakes administrative cases in which citizens sue the state, the Russian judiciary (much like its Soviet predecessor, actually) functions fairly well. Research on civil, business and commercial disputes has indicated that when the state has no stake, litigants can reasonably expect a predictable legal process. Russian citizens sue the state in huge numbers, secure court victories in an overwhelming majority of the cases, and even receive compensation for being wronged by the state. In electoral disputes adjudicated in the early 2000s, the Russian judiciary performed reasonably equitably—plaintiffs associated with Putin’s ruling party had a similar probability of winning in court as plaintiffs associated with the opposition.
However, research has also shown that judicial independence and impartiality exist in Russia only when powerful political actors have no interest in the outcome of the cases. In cases where powerful political or state actors have a clear stake, the Russian courts are acutely aware of their traditional position as a low rung of the bureaucratic hierarchy. There is little separation of power in Russia and the judiciary rarely checks the other branches. Both the prosecution and the judiciary are highly hierarchical institutions, whose top echelons are closely connected to the executive through the Presidential Administration and thus are conduits for executive influence over the judiciary.
The lack of independence is especially pronounced in criminal cases. At best, the Russian courts have a strong accusatorial bias. At worst, they are informally subordinated to the public prosecution. Like their counterparts in other civil law countries, Russian judges rarely acquit. They defer to the prosecution 99 percent of the time and acquit less than 1 percent of defendants. Moreover, judges who deliver what is perceived as too many acquittals (i.e. over 2 percent of the entire caseload) are routinely chided by their superiors, disciplined, and even fired. The Russian judiciary also has a very strong internal hierarchy. Individual judges are dependent on the chair of their court, who can determine their caseloads and controls their salary bonuses. Lower court judges are highly dependent on superior court judges, who can discipline and even fire them for having too many overturned verdicts.
The end result is that Russian judges are prone to seeking guidance from above or from outside the judiciary when they decide “important” cases. Research has identified “telephone justice” as either a reality or a specter that Russian judges fear or expect. “Telephone justice” refers to direct phone calls from the executive or from the higher court to a presiding judge, instructing him or her how to adjudicate the sensitive case. But the powerful do not even need to pick up the phone. Often their preferences are divined by judges and then scrupulously taken into consideration in the adjudication of the case. Among the most powerful extra-judicial actors who wield power in the courts are the siloviki, the representatives of the power ministries, such as the Ministry of Interior, Ministry of Defense or the Federal Security Service (FSB—the Russian successor to the KGB).
There are many examples that illustrate that important political cases are not impartially adjudicated. Several oligarchs’ self-imposed exiles started with the opening of a criminal investigation against them. Despite their enormous financial resources and ability to pay for the best legal representation money could buy, few oligarchs stuck around to have their day in court. Mikhail Kodorkovsky, who stubbornly chose this route, suffered one defeat after the other in the Russian courts. His business empire, Yukos, was destroyed through a barrage of tax, fraud, and business litigation. He was convicted twice on fraud charges and spent 10 years in prison, before he was released early through Putin’s presidential pardon, rather than through a court decision in December 2014. Scores of his employees were also criminally prosecuted. Khodorkovsky amassed his fortunes during the “lawless 1990s,” so it is plausible that an independent judiciary could have handed him a conviction as well. But like his fellow oligarchs Berezovsky and Gusinsky, Khodorkovsky’s legal problems started only after political fallout with the Kremlin, which suggested that he was selectively prosecuted. Morever, Khodorkovsky and several other defendants in Yukos-related cases successfully sued Russia for multiple human rights violations in the European Court for Human Rights.
Since the anti-government protests in 2011-2012, hundreds of opposition activists have been prosecuted to (and perhaps beyond) the full extent of the law for protest-related infractions. Research suggests that criminal law has been used as an instrument for suppressing civil society. Nemtsov’s fellow Putin-critic and opposition leader, anti-corruption blogger Alexei Navalny, has faced several criminal charges and is currently under house arrest on a suspended sentence. His brother is soon to begin serving a prison sentence.
Putin has already stated loud and clear that he cares deeply about the outcome of the Nemtsov murder investigation. If research on the Russian judiciary is our guide, investigators, prosecutors, and judges will be scrambling to figure out exactly how the president wants to see the case solved.