The jury is still out in Russia
It is a cliche among foreign policy makers, but it perhaps has never been more true: To the Western observer, Russia is a paradox.
Consider the events of this month. Even as Russia celebrated the 10-year anniversary of its constitution, a document described as surprisingly progressive, the country held a parliamentary election that observers widely regarded as unfair and undemocratic.
Over the past decade, largely because of its enlightened legislation, Russia has become an advisory member of NATO, a member of the Council of Europe and the G-8. Indeed, President Bush now regards Russian President Putin as a personal friend and key ally in the war on terror.
Yet Russia has simultaneously waged a bloody and, many say, unjustified war against Chechnya, shut down independent media and harassed human rights workers serving its own people.
The degree to which Russia has truly become a more liberal, democratic nation is difficult to answer. But as Putin accelerates his war against the country's wealthiest men and tightens his grip on power, the question has become increasingly urgent, both for American policymakers and businessmen.
A close look at the history behind some of Russia's most celebrated legislation helps fill in part of the picture. In many cases, the laws have been passed despite the opposition of most legislators and regular Russians. Often they were enacted to please the West. The result: In practice, the state often does not respect the very laws it is supposed to carry out. Sometimes it openly works to undermine them.
Consider the country's new jury system. Russian apologists consistently cite Russia's implementation of this bastion of civic participation as an example of the country's reformist agenda.
Jury trials are available to those accused of serious criminal charges - like assault, fraud, and murder - in 84 of the nation's 89 territories. The other five regions are required to make jury trials available no later than 2007.
The jury format requires that Russian police perform a thorough investigation so that the prosecution can present legal evidence in court, and make a clear and thoughtful argument. Defendants are even allowed to question witnesses themselves.
On paper, the system looks fair. But like so many of Russia's new institutions, what's important is not what the law says, but whether anyone supports it. From the moment the jury system was first proposed, it has been opposed by a majority of Russian legal professionals and legislators.
A group of self-described radicals originally proposed the reform. Their primary argument was that the jury system existed briefly in Russia during czarist rule, and that it should be reinstated as an alternative to Soviet trials, in which judges decided cases with feeble input from a few citizen assessors. The legislature adopted their agenda for legal reform in October 1991 as a way of appeasing the growing democratic movement. But at the time, few people believed the jury system would ever be enacted. The institution was considered extreme, the radicals admit.
"The Communists thought it was an unrealistic idea," says Inga Mikhailovskaya, one of the eight radicals. Passage of the legislation foundered for two years, even after the Soviet Union collapsed. It might have sat for several more if not for President Yeltsin's decision to dissolve parliament, fire on his Communist enemies with tanks, and call for the Russian people to adopt a raft of liberal legislation in the form of a new constitution.
The referendum, which was essentially a judgment on Yeltsin's leadership, allowed the right for a jury trial to become law, despite strong opposition to the law itself. Fortunately for the reformers, the United States soon picked up the jury mantle. Aid from the U.S. government and private donors helped train judges and lawyers. They paid for junkets to Washington and New York and for instruction videos and handbooks. The assistance enabled Russia to implement juries in nine regions by 1994.
The initial results were groundbreaking. By 1997, more than 20 percent of jury trials ended in acquittal, up from 0.05 percent during the Soviet period. But the verdicts came as a shock to most Russian officials. Regions that had implemented the system argued that the juries were letting guilty people go free. Judges complained that jurors were vulnerable to emotionalism. Why the negative response? While the American legal community generally defines justice as a fair process, Russian officials more often believe that justice is served by a correct outcome. And because they rarely if ever question the guilt of the defendant, they almost always equate justice with conviction.
Because the jury system enabled a high number of acquittals, it ran afoul of most Russians' genuine sense of justice. The upshot: Judges and prosecutors began to undermine the system.
According to an American judge who works on jury education in Russia, several prosecutors have admitted undercharging those suspected of murder in order to circumvent a jury trial.
Perhaps a more serious problem: The Supreme Court, which reviews all jury verdicts, overrules a surprising number of acquittals. Their decisions often are based on minor technicalities. In 1998, the court reversed 50 of 86 acquittals that prosecutors appealed. They often cited reasons not even mentioned by the appellant party.
But even as it seemed Russia's jury system was showing clear signs of falling apart, political expedience intervened. When Putin came into office, he began pushing for Russia's entrance into the Council of Europe, a sort of mini-United Nations.
The council, according to several observers, said that Russia would have to make jury trials available across the entire country in order to win membership.
Included in Russia's 2002 Criminal Procedure Code, therefore, was the requirement that the jury system expand throughout Russia.
It is doubtful whether Russia's leadership supports the reform.
"Does (Putin) believe in democratic procedure? Maybe," says Stephen Thaman, a law professor at St. Louis University. "But he's probably doing it more to show as democratic window dressing."
Juries exist in Russia because of political expedience and Western support, not because the system is supported by the Russian people and their leaders.
As with many laws and institutions in Russia, the elites who run the government do what they believe is right and reasonable, despite the letter of the law. Overall, many of Russia's laws represent a liberal mindset that Russians, both citizens and elites, have yet to adopt.
"In Russia, the law is very good, some better than in the U.S.," says Ivan Pavlov, an attorney in St. Petersburg. "But nobody respects the law. The state doesn't respect the law."