As of July 1 of this year, it will be impossible to place Russian citizens in jail for more than two full days without first obtaining an official court order. Russia´s Constitutional Court on March 14 asserted its superiority in this matter relative to the power of prosecutors, who previously had the ability to jail persons suspected of crimes without the permission of a judicial body. The court recognized as unconstitutional all clauses in the Code of Criminal Procedure that confer the authority to make arrests on the Prosecutor´s Office, and ordered that authority removed. In doing this, they are implementing one of the most central of the reforms planned for Russia´s judicial system several years ahead of the scheduled date.
The decision was brought about as a result of complaints lodged by three people who had been placed under arrest without any court authorization. Somehow, their complaints found their way, Kafka-like, through the country´s Byzantine bureaucratic system and precipitated the court´s decision. The ruling puts into effect Article 22-2 of the Constitution of the Russian Federation, which originally was not planned to be implemented for several more years, pending the approval of the new Code of Criminal Procedure.
The newspaper Kommersant called the decision a "revolution," and its use of this term was not simple hyperbole. This is an even bigger deal than it sounds, especially in the context of broader reforms, such as the push on the part of President Vladimir Putin to establish trial by jury throughout Russia. Russia´s experience with liberal judicial models like those prevalent in various forms in Western countries has not been an extensive one, to say the least. The Russian state has always been characterized by top-down, authoritarian decision-making, and this goes for the judicial system as much as for any other aspect of the governmental apparatus. Under the tsars - who possessed, after all, the largest secret-police apparatus in the Europe of their day - ultimately the will of the absolute autocrat was law. This of course is something that reached its apex under the aegis of the all-powerful Stalinist Soviet state, in which, as was the case in most things, authority for arresting and/or convicting people ultimately devolved onto the state apparatus. The arbitrariness and political and/or ideological motivation for such arrests and the corresponding punishments were notorious; a kind of judicial version of the command economy.
As liberals at home and abroad are fond of pointing out, Russia´s current legal system reflects the legacy of centuries of authoritarian heavy-handedness. Targeting certain people as criminals for political reasons on legal grounds that are dubious at best, as seems to be the case in such high-profile events as the Grigory Pasko trial. This goes along with a general inefficiency and a peculiar blend of arbitrariness and inflexibility - as when, for instance, it is widely seen as possible to bribe your way out of almost everything short of capital murder in Moscow, but a poor kholhoz worker can go to jail for stealing a goose, as has famously happened.
The reforms come at a time in which Russia is suffering from a very high crime rate. Though Russia is no longer the world leader in per-capita incarceration (that dubious distinction having been snatched up by the United States in the 1990s), it still occupies the No. 2 slot. It is no secret that the problems of Russia´s criminal-justice system need to be addressed in all sorts of ways.
The new reforms are intended to foster a greater role for the citizenry in general in the judicial process and reduce the powers of judges and prosecutors. Hopefully, this will lead to a situation in which law-enforcement is more a matter of actually enforcing laws and less of arbitrary, willful application of force.
The decision was greeted enthusiastically by many legal professionals, including a lawyer, Boris Kuznetsov, who the newspaper Mir Novosti cited as saying he would like to "smother" the members of the Constitutional Court with kisses for having made the decision. While Kuznetsov´s choice of words might have expressed a trifle more intimacy than many of his colleagues would probably be willing to express, the new legislation was greeted by many with applause.
On the other hand, prosecutors and other representatives of the law-enforcement establishment were less than happy. The Prosecutor General´s Office has reasons beyond just protection of its own powers and vested interests for objecting to the new legislation. Russia´s judicial problems extend beyond the simply ideological and organizational to the material; like so many other state organizations, the legal and law-enforcement system are chronically short of both cash and trained professionals, leading to fears that there simply will not be enough professionals around to handle the additional work that requiring a court order for each and every arrestee will require.
If the pro-Kremlin Website strana.ru is to be believed, the Prosecutor General´s Office is most concerned about the logistical effects adoption of the court´s order may bring about.The new legislation, which was originally planned for January 2004, will now be enacted in only a few months. This leaves law-enforcement agencies with little time in which to implement the necessary changes. The task they face is a major one; the plans originally called for raising the number of judges by 3,000 in a step-by-step manner from 2003-2006. Now, of course, the time frame will have to be shortened drastically. And this does not even factor in the estimated 700 million rubles needed to pay these people.
Some responses to the new legislation have been negative. in the extreme. For instance, the newspaper Izvestia reported that the prosecutor general´s advisor, Vladimir Kolesnikov, a man certainly no stranger to the subject, had warned that adopting the new measure would cripple the country´s law-enforcement bodies. Izvestia also reported that Prosecutor General Vladimir Ustinov himself threatened to resign over the code.
However, the Prosecutor General´s Office´s official position was more moderate, claiming that, appearances to the contrary, the new ruling does not diminish the power of prosecutors, as their sanction will still be required to initiate criminal proceedings, and prosecutorial approval will be necessary for making arrests.
There is a lot of talk at present, from the upper echelons of the Kremlin on down, of building a civil society and decentralizing various social and state functions (when that is, doing so would not contradict the doctrine of strengthening the "vertical of power"). As is so often the case, it is difficult to ascertain how genuine these comments are. Politicians are perennially fond of saying one thing before the cameras and quite another when tucked away in a back room with their partners in crime. In addition, even if such things are meant in all earnestness, it is sometimes questionable to what extent they are workable or even well-thought-out. A memorable case in point is the Kremlin´s claim that it wishes to use the state to help build civil society - a slightly odd-sounding statement at least, since it is a distinguishing characteristic of civil society that it take form and operate independently of government auspices.
Given this, it is a good sign that such a ruling was decreed by the court. Assuming that it was not done simply as part of one of the complicated games that are so much a part of Russian political life, it shows that at least some elements of the Russian political class - who at least say that they are interested in reforming the courts, increasing accountability, mitigating the power of judges by moving over to a jury system and so forth - are actually interested in moving in the direction that say they favor.
Of course, the bulk of the new criminal-code legislation is not to go into effect for years yet. It remains to be seen to what extent it is actually implemented - and, of course, to what extent it really turns out to be feasible. In any case, this new judicial activism on the part of the Constitutional Court is certainly a most welcome sign.