A statement issued by the Council of Judges on the impermissibility of public expert evaluations in high-profile court cases throws into bold relief the condition of our court system and the phase of the crisis into which the second verdict in the Khodorkovsky-Lebedev case plunged it, but at the same time it unexpectedly reveals a natural path for reforming our warped judicial system - just in case Russian society at some point suddenly feels the need for an effective judicial system.
The first impression from the Council’s statement is a comic one: the Council failed to react to the fact that on the very eve of the verdict announcement, the Prime Minister publicly and unequivocally stated that the accused was guilty. Instead, the Council let forth an angry rebuke at the proposal to conduct a public expert evaluation of judicial decisions. In other words, the Council of Judges came out not for the independence of courts, but for their dependence, or rather, for dependence on the executive branch and independence from society. Or even thus: for the public immunity of courts’ dependence on the executive branch.
The second impression (after carefully reading the Council’s statement) ranges from amazement to shock. The statement reads as followss: “In accordance with Article 118 of the Constitution of the Russian Federation and Article 1 of the Federal Constitutional Law “On the Judicial System…” no bodies other than judicial bodies shall be competent to evaluate the lawfulness of a judicial act, including the correct application of material and procedural law.” Multiple readings of these articles again and again lead to an unexpected discovery: nothing of the kind is said there! The sentence from Article 1 of the judicial system law, which one can remotely position alongside the inference of the Council of Judges, reads thus: “No other bodies or persons (besides judges – K. R.) shall have the right to undertake the administration of justice.”
And are these people prohibiting us from picking our noses?!
In fact, the Council used the method of two-stage substitution in this case. Based on the fact that no one other than courts shall be authorised to administer justice, the conclusion is made that court decisions cannot be evaluated. The word “lawfulness” is inserted (“evaluate the lawfulness of the court decision”). Indeed, it is stupid to evaluate the lawfulness of a court decision: it is lawful because a court is a court. And yet, the retired judge Tamara Morshchakova, a highly qualified lawyer unlike those who wrote the statement, could not speak of “evaluating the lawfulness of a judicial act” even in her sleep, she spoke of the “legal analysis,” a legal expert evaluation of judicial decisions.
Any dictionary will tell us that jurisprudence is a science that studies the essential properties of the state and the law, the totality of legal knowledge and the results of legal regulation. In other words, the legal analysis of judicial decisions is an integral part of this science. Prohibiting the legal analysis of judicial decisions would be like physicians whose patient died prohibiting medical schools from further studying the disease that the patient suffered from. Prohibiting the public evaluation of court decisions is equivalent to prohibiting people from seeing with their own eyes. And indeed, this seems to be something the Council of Judges dreams about. On the façade of the Russian Supreme Court, Themis is portrayed with unbound eyes. The composition only needs to be augmented by the figure of a blindfolded person waiting to be judged by her in order to fully relay the image of contemporary Russian justice.
However, in and of itself the Council of Judges' statement is not worth a lengthy discussion. Its context and subtext are much more interesting. The things is that Tamara Morshchakova's proposal and the Council of Judges' response statement were made at the moment when the Khodorkovsky – Lebedev verdict arrived at the superior court instance. Judge Danilkin has ascended to his Golgotha. Now superior courts must also take responsibility for the verdict.
At this point, we suddenly realise that the judicial system also has a vertical structure, but not in the sense that the lower courts must comply with higher courts (this is not the case) but in the sense that every judicial judgment may be appealed in such courts. Suddenly we understand that if higher courts perform their functions (which have been delegated to them by the Constitution and the judicial system law), then corruption in courts of first instance is pointless: unjust judgments and sentences will be reversed by higher courts.
In fact, the mechanism of judicial injustice, as well as the natural, main and only method for fighting, becomes evident when we remember that in the country of Singapore, for example, the supreme judicial court is the High Court of London. Because this one entry – one short and simple sentence – is enough to gradually and almost automatically perfect the judicial system. There is no point in issuing an unjust judgment in the trial court if it is known precisely or even if there is a high probability that it will be reversed. Moreover, such a mechanism shows clearly how each court of first instance operates and what it is motivated by.
Having grasped this idea, simple as an animal's roar, we suddenly also realise that over the past ten years of discussions on the judicial system reform we have just been pulled by the nose. Presidents, prime ministers and other bosses lamented about the weakness and corruption of the judicial system. They told us about this measure and that, they reduced powers here and added them there. And we poor things hoped that maybe it will work this way. Maybe we should try it this way? But this was only to distract us from the simplest truth: it is the superior court that is responsible for the quality of judgments and judicial practices, and in the end, responsibility lies with the Supreme Court. This is its main function. Or rather: it is the specific panel of the Supreme Court judges that is responsible. But, amazingly, our presidents and prime ministers were always unhappy with Russian courts in general while they were absolutely happy with the Supreme Court. Has anyone noticed this paradox?
It is simple to start the judicial reform in Russia. If we don't have the courage to make the Court of London the highest court, then we will have to replace the panel of judges at the Supreme Court. And they must be replaced in their entirety. There may be many worthy people there, but this is not important to the society. It is important to the society that the institution should work properly. Moreover, we will most likely need to replace the Supreme Court judges once again later – and again in their entirety, so that the judges are conscious of the collective responsibility for the trend that they form or do not form. And we need to change it until we see first a barrage of reversed cases, then a massive replacement of judges in the regional courts of second instance, and then a clear improvement of judicial practices in the courts of first instance.
This will not be that simple. There will be strife, failures and mistakes. But this isn't rocket science, it is an absolutely instrumental thing. Very soon it will become visible if there are results and what they are.
So please no longer listen to those talking of yet another stage of judicial reform, of new amendments to laws, added or reduced powers. Turn off the television, lay aside the newspaper, turn the page. These are all empty trifles. An apple falls from a branch to the earth. The Volga flows into the Caspian Sea. A fish rots...
Box: Prohibiting the public evaluation of court decisions is equivalent to prohibiting people from seeing with their own eyes.