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