An excerpt from “Putin: the Reckoning” (2008). The report was written jointly by politician Boris Nemtsov, deputy PM in the late 1990s, and economist Vladimir Milov who left the government in 2002 to head the Moscow Institute of Energy Policy.

Justice Basmanny-style

The Putin period in recent Russian history has led to a drastic collapse of confidence in the courts and wrecked any belief that the law was and should be paramount. “We insist on one form of dictatorship, and one alone — the dictatorship of law,” said Vladimir Putin in 2000, during his first address as President to the Federal Assembly. The results of his time in office might instead be described as a “dictatorship of arbitrary and lawless rule”. Russia has distinguished itself in the world as a country where the law is selectively applied to suit the interests of those in power. Judges have proved to be totally subordinate to the executive branch, and their examination of cases has become one long, extensive infringement of citizens’ rights.

In Europe Russia gained a dubious accolade. More of its citizens made applications to the European Court of Human Rights in Strasbourg than any other member-country of the Council of Europe. Over one in five of all applications to the Court were from Russia. Of the Russian cases considered there the authorities lost over 90%. Unfortunately, the European Court cannot force our judges to re-examine their decisions, it can only oblige the Russian authorities to pay the plaintiff compensation. Our judicial system therefore continues to feel invulnerable.

The Yukos Affair was the triumphant pinnacle of such disregard for the law in Russia. Courts were used as a means to redistribute property to the advantage of the group around Putin. During the course of the investigations and trials that make up the Yukos Affair a particular type of justice evolved that became known as “Basmanny-style justice”, after the court in Moscow where Mikhail Khodorkovsky and Platon Lebedev were put on trial. Over nine months the court hearings demonstrated wonders of arbitrary procedure and decision-making and a supine attitude to the executive. The final result, at the end of May 2005, was a guilty verdict.

Reprivatisation, velvet and otherwise

As soon as Yukos assets passed into other hands the courts began to reconsider some of their previous decisions, concerning claims for the company’s tax debts. Once the principal Yukos asset, Yuganskneftegaz, had been taken over by Rosneft, the tax claims against that enterprise began to evaporate. The courts quickly set in motion a miraculous reversal, withdrawing their claims formerly made against the giant west Siberian oil producer.

In February 2005 the Federal Arbitration Court of the Moscow district revoked its previous decision to claim 9 billion roubles in back taxes from Yuganskneftegaz for 1999. When the oil producer was still a Yukos subsidiary it twice lost the battle in court. In October 2005, however, the Moscow Arbitration Court adjudged the demands of the Federal Tax Service, for 5.6 billion roubles in unpaid taxes for the period 1999 to 2001, to be unlawful. And so on.

The Yukos Affair unleashed a campaign of “tax terror” in which enterprises found themselves arbitrarily awarded penalties for taxes unpaid, depending on the whim of the tax inspectors. They now had to pay the State not the sums defined by law but as much as the authorities decided, according to unwritten understandings and private deals. In the overwhelming majority of cases, the courts took the side of the taxmen. The presumption that the tax-payer is innocent until proven guilty is inscribed in the Tax Code.

Henceforward it was replaced by a presumption of guilt. To run an ordinary business in Russia without paying illegal tax levies became almost impossible. This tax terrorism was used everywhere as a cudgel with which to seize the property of “opponents” and place it in “friendly” hands, whether at the federal, the regional or the local level.

Such a system began to strangle business and, first and foremost, the small and medium-sized businesses that could not afford to buy off officials and judges. Today it is paving the way for the triumph of a monopolism in which criminal business is allied with corrupt officials. The functioning of such “State racketeering”, the seizure of property from businessmen and entrepreneurs and its transfer to structures linked with State officials, has very recently been was described. In an interview with Kommersant Daily in November 2007 businessman Oleg Shvartsman, himself a participant in such Kremlin projects, gave a highly accurate portrait of this abuse of the legal system for the sake of “re-privatisation”, meaning the re-allocation of property that has become universal in Putin’s Russia. The Putin system, in actual fact, is that described by Shvartsman.

Among the assets that have experienced pressure, as part of the system of State racketeering, from officialdom and the courts, Yukos does not stand alone. It applies equally to a variety of oil and gas projects (Sakhalin-2, Russneft, Nortgaz, Tambeineftegaz, the Kovyktinskoe gas field), to the United Machine Engineering enterprises and the Domodedovo airport near Moscow — the list could be continued.

The collapse of judicial reform

The reform of the judiciary to ensure that articles of the Constitution guaranteeing the independence of judges in Russia become a reality has totally collapsed. The independent judiciary are now dependent. Putin re-appointed the majority of judges and in 2000 secured the introduction of qualifications collegia, bodies that monitor and discipline the profession.

Each collegium was given full powers to deprive judges of their status: those responsible for the collegia, the representatives of the President, in many Regions today double as the head of the regional FSB departments. Laws adopted under Putin “On the status of judges in the Russian Federation” and “Concerning the organs of the judicial profession in the RF” fail to establish precise criteria for defining the “disciplinary misdemeanours” for which those members of the profession may be dismissed. This has allowed the authorities to remove many judges who would not kowtow, and to intimidate those that remain. One former judge of the Novosibirsk Region Court was sacked by the qualifications collegium for “repeatedly appealing to State bodies to defend her rights and interests”.

It is hardly surprising, then, that judges try to reach decisions that suit the authorities. The dependence of judges on the powers that be is yet another reason why the citizens of Russia have no defence. A corporative solidarity with the authorities (as represented by investigators and prosecutors) inclines the courts to convict and, in many cases, to simply rubber stamp the charges brought by the prosecutor’s office. This tendency does have one exception, it is true: it does not extend to officials who are busy re-distributing the property of others. Those bureaucrats who have built up fortunes worth billions, thanks to their links with the Russian president, feel quite at their ease.

Ordinary Russian citizens, on the other hand, may find themselves in prison for stealing a bit of salami. In early 2008 a great stir was caused in Russia by the complaint that reached Strasbourg from Olga Gavrilova, a shop assistant in Nizhny Novgorod. She is disabled but, without having been found guilty, Gavrilova has already spent several months in the remand centre, despite her chronic health problems, having been accused of just such a theft.

What is to be done

For the citizens of the Russian Federation to be assured of their right to a defence and a fair trial our country’s judicial system must undergo a fundamental change. It is essential to ensure that the independent judiciary, guaranteed by the Constitution, becomes a reality. And for that we need not only political will on behalf of the executive but an independent legislature, public oversight of officialdom, and the freedom of the media and of political activity that we have constantly referred to elsewhere in this text.

Together with guarantees of the independence of our judges we need a more precise legislative definition of those misdemeanours for which they may be disciplined and deprived of their status by the qualifications collegium. Judges, on the one hand, must be defended from unfair dismissal and, on the other, be subject to legal grounds for removal from their post if they commit serious misdemeanours — above all for corruption and indulging the interests of the executive. In appointing judges it is important to create a new generation that has no experience of working for the military, the police or the security services, and is not bound by corporative solidarity with the authorities.

Only in this way shall we overcome the evident inclination of the present Russian judicial system to convict. Until these conditions are met we cannot expect the system of justice in Russia to be impartial.

This excerpt was published on 8 February in Grani.ru, the internet magazine.