MEDVEDEV'S JUDICIAL PROPOSALS: WORDS OR ACTIONS?

C O N F I D E N T I A L MOSCOW 003544 E.O. 12958: DECL: 12/04/2018 TAGS: PGOV PHUM KJUS RS SUBJECT: MEDVEDEV'S JUDICIAL PROPOSALS: WORDS OR ACTIONS? REF: MOSCOW 840 Classified By: Pol Minister Counselor Alice Wells; reasons 1.4 (b) and (d) ¶1. (C) Summary: At the seventh All-Russian Congress of Judges, from December 2-5 in Moscow, Medvedev proposed a series of measures to restore public trust in the legal system. His stated goal was to improve transparency and judicial professionalism and impartiality, which, he said, would have the added benefit of decreasing Russian citizens' perceived need to resort to the European Court of Human Rights. However, as Medvedev was giving this speech, two United Russia deputies introduced into the Duma legislation that would remove the right to trial by jury for defendants accused of terrorism, espionage, hostage taking and other serious crimes. The legislation passed a first reading on December 5. Human rights activists criticized the proposal as a major step backwards in the protection of civil liberties. Commentators also noted a series of indicators -- such as the recent re-appointment of controversial Moscow City Court Chief Judge Olga Yegorova -- that the GOR plans to maintain the widely corrupt status quo, despite Medvedev's encouraging rhetoric. End Summary. Medvedev's proposals -------------- ¶2. (C) At the seventh All-Russian Congress of Judges, from December 2-5 in Moscow, Medvedev proposed a series of measures to restore public trust in the legal system. These included: -- requiring courts to publish decisions and disclose information about their work, including via the Internet (Note: In 2007, the Supreme Court introduced in the State Duma a draft law providing for better public access to judicial decisions and materials, but the law has never been passed. End note); -- improved training for judges, whose overall "quality" Medvedev criticized, and reforming the disciplinary body which supervises judges; -- decriminalizing certain unspecified acts which allegedly do not present a social danger, with the goal of reducing the prison population; -- either simplifying the procedure for reappointing judges or assigning them indefinite terms of office. (Note: Judges are currently appointed for three year "probationary" terms before receiving lifetime tenure, a system which makes them susceptible to political pressure during the initial three-year period. Therefore, abolishing the probationary period would be a significant step towards judicial independence. End Note); -- improving enforcement of civil court judgments, a notorious problem which often makes winning a lawsuit a pyrrhic victory; and -- federalizing justices of the peace. (Note: Contacts at the Congress told us that this proposal is a "done deal" and might be implemented as early as next year. End Note.) Medvedev also referred to an experiment under which legal aid offices were created in ten regions and suggested more comprehensive measures are needed. In addition, he made some remarks critical of the work of judicial qualifying collegia (the judicial disciplinary bodies),but did not suggest overhauling their functions. ¶3. (SBU) Medvedev admitted that Russian judges "often" fail to be impartial, and that only about half of Russian court rulings are implemented. He said that his proposals were designed to enhance transparency and judicial independence, and added that one of his goals was also to decrease the large number of Russian applications to the European Court of Human Rights (ECHR) in Strasbourg, a source of embarrassment for the GOR. (Note: One-fifth of the ECHR's cases come from Russia; in 2008, the ECHR found Russia in violation on many counts dealing with trial procedures. Some violations included excessive pre-trial detention, providing no effective remedy for a complaint, non-enforcement of judgements, failure to take a case to trial in the appropriate amount of time, and failure to provide a defendent with a lawyer. End Note.) With an eye toward lessening such decisions, Supreme Court Chief Justice Vyacheslav Lebedev spoke at the Congress in favor of a draft law that the Supreme Court has introduced into the Duma, "On compensation by the government for harm caused by violation of the right to judgement within a reasonable time and of the right to enforcement within a reasonable time of judicial decisions that have entered into force." ¶4. (C) Though Medvedev appeared to be saying the right things, many in the legal community have called into question the government's commitment to implement and enforce reform proposals. When Medvedev's top legal advisor and Supreme Arbitrazh Court Chairman Anton Ivanov echoed Medvedev's calls for improved enforcement of judgments at a December 5 legal reform conference, academic Boris Karabelnikov used his follow-on address to call the reforms disingeuous. Karabelnikov produced research showing that the Arbitrazh Courts, under Ivanov's direction, frequently found legal loopholes to prevent enforcement of judgments against businesses owned in whole or in part by the state. Ivanov was left speechless by the attack and declined to respond, saying only that the response should stay "on Karabelnikov's conscience." Other contacts did not dispute Medvedev's intentions, but questioned his power to get anything done. For example, Duma Deputy Yelena Mizulina (Just Russia) said that she did not even read Medvedev's speech because she knew that what he said did not mean much. Lawyer Galina Yenutina, who heads a legal reform project designed to expand the scope of jury trials, told us, "I know the people who write Medvedev's speeches and they are very good. The only problem is that they have no power." Duma limiting jury trials? -------------- ¶5. (SBU) In contrast to Medvedev's seemingly well-intentioned rhetoric and proposals, on December 5 the Duma passed in first reading a draft law which would eliminate the right to trial by jury for certain serious offenses, including terrorism, espionage and hostage taking. The legislation's sponsors, United Russia Deputies Vasiliev and Grishenkov, claim that the legislation is a security measure designed to prevent acquittals of terrorism suspects by sympathetic juries (which often include relatives of the defendants) in the North Caucasus. ¶6. (C) Our legal community contacts rejected this justification and saw the proposal as a reactionary political attack on civil liberties, which will only lead to greater restrictions on individual liberties. Mizulina (one of the authors of the current law on jury trials) said that proposal was politically motivated in order to control a certain upcoming trial in Moscow (though she declined to name which one) and said that the discussion of security in the North Caucusas was just a smokescreen. She also said that legislation violates the Russian Constitution (which guarantees the right to trial by jury in cases carrying a potential death sentence) and said that if the legislation passes, she will challenge it in the Constitutional Court. Yenutina echoed these sentiments, saying that the draft law has nothing to do with the North Caucasus and everything to do with controlling political prosecutions brought ostensibly as espionage cases. Genri Reznick, a famous defense lawyer who is also the head of the Moscow City Bar Association and a member of the Public Chamber, attacked the proposal as only the beginning of a very dangerous counter-reform and lamented that "history is repeating itself" (in a reference to late Tsarist era laws restricting jury trials and other civil liberties also passed in the name of fighting terrorism). ¶7. (SBU) The human rights community has also attacked the legislation, publishing an open letter in Novaya Gazeta decrying the proposal. In the letter, respected human rights activist Lyudmila Alekseyeva wrote, "the point of jury trials is trust in citizens' ability to make decisions on the fate of fellow citizens, and to turn backwards on this indicates a lack of trust by authorities in the people." Lev Ponomarev of For Human Rights told us that "this proposal shows us where the government really stands on 'legal nihilism.'" The Russian public also apparently does not support the proposal. On December 4, the political talk show "To the Barrier" devoted an entire episode to the issue featuring Reznick and famed prosecutor Vladimir Kolesnikov, who spoke in support of the draft law. The program concluded with an SMS call-in vote by viewers who demonstrated overwhelming support for maintaining the current jurisdiction of jury trials. Political Pressure Driving Jury Legislation? -------------- ¶8. (C) Regarding the prospects for passage of the legislation, Mizulina expressed pessimism about her ability to stop it, saying that the fix was already in and noting that United Russia had even obtained the support of the Supreme Court. She said, however, that she might have better luck challenging it in the Constutitional Court, as it is not clear where Chairman Zorkin stands on the issue. Leonid Nikitinsky of Novaya Gazeta told us that Public Chamber member Anatoliy Kucharena (previously a great supporter of jury trials) also supports the legislation. Regarding Kucharena's unexpected stance, he said, "You can't imagine what political intrigues are going on around this." He added that Reznick was trying to turn the Public Chamber around on this issue, but that he was not hopeful. ¶9. (C) However, United Russia insider Andrei Silantyev told us on December 5 that he believed it was unlikely that the proposal would pass the Duma, and that even if it did, Medvedev would not have to sign it. He added that he saw this proposal as a challenge to Medvedev's authority regarding reform, and thus did not believe Medvedev would support it. (Note: Support for trial by jury continues to be at the center of Post's legal reform efforts. To help Mizulina in her Duma battles, we provided her with voluminous materials on jury trials and national security in the U.S., including articles on jury security, anonymous juries and procedures for changing venue in high-profile terrorism cases. We are also working closely with Nikitinsky and Alekseyeva to organize another high profile event featuring former jurors and high-profile political figures speaking out in favor of jury trials. End Note.) Business as usual in the courts? -------------- ¶10. (U) Commentators have also noted a number of recent GOR decisions that cast doubt on the sincerity of its intentions regarding judicial independence. In the December 1 issue of Russian Newsweek, Anna Mayetnaya concluded that Medvedev's "judicial project" would not be realized, citing Medvedev's re-appointment of Moscow City Court Judge Olga Yegorova as a signal to judges that the status quo would remain the same. Yegorova has been accused in the past of colluding with prosecutors and firing city judges for dissent and leniency. Elsewhere, the Moscow Post recently referred to Lebedev as the chief brake on judicial reform, and as a relic of the Soviet past, under whose watch the Supreme Court has remained non-transparent, judges have remained corrupt, and courts have interfered in business disputes. Other commentators have noted that despite the May testimony in court by Yelena Valyavina that an aide to Putin pressured her to follow his instructions in a business dispute when she was first deputy chair of the Supreme Arbitration Court, no charges have yet been brought in the case. Lastly, on November 25 unknown assailants shot Samara judge Lybov Drozdova, who according to Novaya Gazeta was investigating "judicial mafia" and "judges who decide cases based on 'understandings'," and is still in intensive care. Comment -------------- ¶11. (C) Although Medvedev's speech to the Congress addressed a number of substantive issues regarding rule of law, it lacked detail regarding resolution of specific problems. The vague nature of the proposals stands in contrast to the highly specific nature of the Duma proposal to limit jury trials, as well as the re-appointment of Olga Yegorova and the courts' refusal to enforce judgments against state owned entities. If the Duma proposal passes and Medvedev signs it into law, it will belie his encouraging rhetoric and could signal the beginning of a dangerous legal counter-reform. Post will accelerate technical assistance efforts to support trial by jury and will closely examine all major proposed legislation to determine its possible effects on protection of individual liberties. BEYRLE