The Rule of Law and the Inviolability of Rights in Russia

October 29, 2013
The Supreme Court of Russia. Photo by Andrey Tarasov | ITAR-TASS

To many commenters and analysts, the concept of the inviolability of law and individual rights in Russia is almost assuredly viewed as a fanciful or abstract idea that has yet to reach its shores. One need only to look at the trials of dissidents, from Oligarchs and investors to punk rockers, political opponents and business challengers, to see the arbitrary and capricious use of the legal system in Russia by the political elite.

The poor state of jurisprudence and the lack of respect for individual rights goes back to the Soviet era and the anarchy of the 1990’s, where there was no functioning independent legal system to speak of (one might go as far to say that Russia has never truly had an independent legal system). However, over the last decade the legal institutions and ideas that permeate the western understanding of a modern society had started to emerge in Russia, but were controlled and manipulated to serve the powers that be. But with Dmitry Medvedev’s appointment to the Presidency in 2008, there was hope, however incipient, that he would institute and help construct the modern, stable legal system that both investors and many Russians had been hoping for (Medvedev is quoted as saying that Russian society needs “to rid [themselves] of the contempt for law and justice, which […] has lamentably become a tradition in this country”). Yet it was soon clear that Medvedev’s initiatives and programs for modernization were soon to be rolled back as Putin regained the presidency in 2012. Putin blamed Medvedev and the civiliki (legal reformers associated with his presidency) along with their liberalization efforts, for the rise in popular discontent and political resistance. Soon Putin halted the momentum of Medvedev’s reforms and returned to strengthening and consolidating the systems of control in the country as a remedy to the dangers of societal unrest awakened by attempts at liberalization. Since that time, and especially as a result of the widespread protests against his rule, Putin has set about to undo some of the liberalizing reforms of Medvedev, and to reinforce the mechanisms of control in stifling dissent, while maintaining a thin veil of legal legitimacy.

In recent weeks there have been two striking examples indicating that the trend away from liberalization has continued unabated. The announcements that Russia’s Supreme Arbitration (Arbitrazhniy) Court would be merged with the Supreme Court (requiring the Constitution to be amended), and the revelations that the FSB is attempting to gain new powers requiring internet and telecom service providers to store information for 12 hours, indicate the increasing attempts to ensure control against dissent.

There are three main courts in Russia overseeing the legal system: The Constitutional Court, the Supreme Court, and the Supreme Arbitration Court. As each name implies, Constitutional deals with questions regarding the constitution, Supreme with other general issues, and the Arbitration court with mainly economic matters. However, the Arbitration court was seen as the most independent and professional of the three. It was headed by a law school classmate of Medvedev, Anton Ivanov, and was respected for its impartiality and transparency. The logic behind this impartiality was to reduce, at least publicly,  the redundancy and conflicting verdicts that have arisen between the Supreme and Supreme Arbitration Courts—often times both courts would issue verdicts on the same cases, effectively cancelling each other out. As a response, a new super Supreme Court consisting of 170 judges would be created to streamline judicial oversight. In addition, Putin sought the ability to appoint prosecutors in the regions (currently the Prosecutor-General has this role) further solidifying the loyalty of the elites across the country to the President.

Since Putin’s proposal to merge the two courts, there has been significant skepticism regarding both the validity and practicality of such a move. Many legal observers say that it will simply exacerbate the judiciary’s problems, with Anton Ivanov commenting: “There is not a single country where an entire federal system would link to one court – not with such a large number of disputes and regions.” And in apparent protest, seven Arbitration judges have resigned rather than re-locate to St. Petersburg—where the new court will be located—and go through an “accreditation” process. And while many would think that streamlining the three courts would be beneficial, it is actually meant to increase the ability of the regime to control outcomes.

The significance of this merger is due to the fact that Putin uses formal legal institutions to enforce violations of the informal agreements among the elite and to quell any dissent. William Partlett, a Columbia and Brookings Fellow and expert on the Russian legal system, comments on Putin’s attempts to be portrayed as an adherent to modern legal jurisprudence, “He promptly promised to fulfill the dreams of this disillusioned elite by restoring top-down legality to Russia. Most have dismissed this pledge as Soviet-style subterfuge, a veneer of legality to paper over Putin’s personalized system of authoritarian rule.” But this “veneer” is threatened with the existence of a liberalizing and relatively corruption-free court. By merging—and purging—the two courts, Putin can ensure the ability of the legal institutions in the country to uphold the ruling regime. That is why Putin is supporting the pliant Supreme Court which oversees a criminal court system where less than one percent of defendants are found not-guilty (The judge who oversaw Alexei Navalny’s recent trial had not given one acquittal in over 130 cases over two and a half years). This is also the same court that upheld a life sentence for a former Yukos employee, despite the fact that the European Court of Human Rights found that his rights to liberty, security and a fair trial had been violated. William Partlett recently explained the ramifications of the merger to me saying, “…it increases the Kremlin’s control over the direction of legal reform — and particularly the additional levers of power over economic crime, which as we have seen with Navalny is where the action is when it comes to controlling the opposition.  The Kremlin will have increased appointment power over prosecutors (in the regions) and this will help ensure that courts remain transmission belts of policy.”

Putin is ensuring that the veneer of legality is intact and is able to defend the regime from dissent and political opponents, both inside and outside the elite. As the International Commission of Jurists (an NGO based in Geneva devoted to promoting the respect of Human Rights and the Rule of Law) noted, “In modern Russia, as in Soviet times, judges are often not seen as arbiters, but rather as defenders of the interests of the state.”

Yet, in this age of technology and modernity, successful repression cannot occur only in the courtroom, it has to be pre-emptive and adapt to the changing sphere of political debate. As such, Russia’s security services have created some of the most wide-ranging and technologically advanced surveillance systems to monitor all forms of electronic communication.

Currently, Russia has one of the most extensive and advanced electronic surveillance systems available; a system called by some as “PRISM on steroids” (PRISM being the NSA program revealed by whistleblower Edward Snowden, who is currently in asylum in Russia, ironically enough). The System of Operative-Investigative Measures, SORM, is a system used by Russia’s various security services, from the FSB to the drug control service FSKN, to monitor electronic communications; composed of three branches examining Internet traffic (including services like Skype), telecommunications, and all other types of communication media. And where the NSA has to acquire a court order and go through service providers, Russian law dictates that all providers have to have SORM equipment installed and connected directly to FSB control centers. This allows the security services direct access to all systems, bypassing the service providers themselves.

SORM is so encompassing that the U.S. State Department has even advised travelers on their communications activity during the upcoming Sochi Olympics, where an extensive (and expensive) surveillance system has been installed that will allow security services “free rein to intercept any telephony or data traffic and even track the use of sensitive words or phrases mentioned in emails, webchats and on social media.” This level of effort put into the surveillance efforts show how seriously the Kremlin treats any potential protests against the country’s egregious anti-gay laws or political repression, alongside the potential terrorism threat (especially because Putin has essentially staked his reputation on disruption free Games).

And while the security services have direct access, they are required to have a warrant to conduct surveillance. However, the court order required to eavesdrop does not have to be shown to the service providers or anyone outside of their superiors. In essence, there are only supposed internal checks on the use of SORM and little to no external oversight.

Yet, as extensive as SORM is, a bill in the Duma would increase its power even further. The proposed bill would require service providers to collect and hold all internet information for 12 hours, to be used exclusively by the FSB and other security services; including phone numbers, IP addresses, account names, social network activity and e-mail addresses. The bill serves to further increase the ability of the Kremlin to add to their already impressive library of kompromat without any regard to privacy or constitutional protections.

The protests and perceived unrest after Medvedev’s reforms have convinced Putin and much of the ruling elite that liberalizing reforms are not what is needed, and in fact strengthening the mechanisms of control and stifling dissent are required. Today, the ability to use force is only one aspect of stifling dissent. The regime has to be able to undercut opponents’ legitimacy through the court system and to watch the activities of dissenters in this new age of technology. The proposed merger of the courts and new powers for SORM are monuments to this belief.