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Masha Karp: The Case of Judge Kudeshkina

posted 13 Sep 2010, 08:21 by Rights in Russia
On 8th February the Bar Human Rights Committee and the EU-Russia Centre hosted a seminar in London: “The Russian Judiciary – Priorities for Change in a New Decade”. Masha Karp reports:

It was worth coming to the seminar organized by the Bar Human Rights Committee together with the EU-Russia Centre and chaired by Professor Bill Bowring just to see Olga Borisovna Kudeshkina, a former judge of Moscow City Court, who since 2003 has been fighting a battle for the independence of Russian judges (see Novaya gazeta, Pravo.ru, Radio Liberty, Sovershenno sekretno; see also Novye izvestiya). An ordinary Russian judge, she has found the courage to defend the dignity of her profession. Her story, like many stories of the kind, started by chance – she was not planning on becoming a dissident. After a distinguished career in Kemerovo (Siberia) in 2000 she was appointed a judge of Moscow City Court and in 2002 received the rank of First Qualification Class.

In 2003 she was appointed to preside over the trial of Pavel Zaitsev, an investigator with Moscow city police, who had investigated the notorious Three Whales case (see Wikipedia, Novaya gazeta, Radio Liberty), in which some very highly placed persons were implicated. In retrospect, Kudeshkina is sure that she would have never been allocated the case had the Chairperson of the Court, Olga Yegorova, been present at the time. But Yegorova was away and the decision was taken by her deputy. This is how Kudeshkina found herself in circumstances she had not expected.

Even before the trial she received a hint from the Prosecutor Dmitrii Shokhin, that she should render a guilty verdict, to which she replied that she was hoping to listen to the arguments first. The trial started in late May 2003 and, by the end of the first week, Shokhin, who a year later became prosecutor in the case against Khodorkovsky and Lebedev, protested Judge Kudeshkina’s line of questioning, accusing her of favouring the defendant. He also tried to make the two lay assessors (lay assessors have been members of Russian courts since Soviet times) vote to replace the judge, which they refused to do. Instead they withdrew from the case, but first filed written statements in which they complained of the prosecutor’s “disgusting behaviour”, which was damaging their health.

Kudeshkina was then summoned to the office of Olga Yegorova, Chairperson of the Moscow City Court, who shouted at her, indignant that the “wrong” questions were being asked. In the course of this meeting Yegorova spoke to the Deputy Prosecutor General over the phone, and reported to him that Judge Kudeshkina was with her and she, Yegorova, was giving her instructions how to proceed. One of the instructions was to remove the assessors’ statements from the file and any references to them from the transcript. The prosecutor’s behaviour also was not to be mentioned. Kudeshkina refused to falsify the Court’s records and was promptly removed from the case. Another judge found Pavel Zaitsev guilty and gave him a two-year suspended sentence in November 2003.

The story could have ended here, had Olga Kudeshkina, as many people have done before and after her, put up with the injustice and with the cynical attitude to her work.

The Fight

Instead she decided to stand for the Russian parliament to fight for the independence of judges and tell her story to the media. Her claims about the pressure exerted over judges in Moscow City Court by its Chairperson Yegorova were immediately supported by other judges who had come in contact with Yegorova. Some of them, encouraged by Kudeshkina’s example, even told their stories to the media. This was in November –December 2003. A little later a Moscow paper revealed that after Yegorova’s appointment to Moscow City Court at the very end of 2000, eighteen judges resigned and four were sacked only in the course of 2001-2002.

Kudeshkina approached the Higher Qualifying Board of Judges, trying to attract attention to Yegorova’s unprofessional, and even illegal, behaviour. But this only led in May 2004 to Kudeshkina’s own dismissal. Her appeal was rejected and then in March 2005 she wrote an open letter to President Putin. In July 2005 she lodged an application with the European Court of Human Rights.

It took nearly four years, but in February 2009 her complaint was upheld by the Strasbourg Court. In August 2009 the Russian government, in line with the Strasbourg ruling, paid Kudeshkina 10,000 euros. But, despite the Strasbourg ruling, the decision of the Higher Qualifying Board has not been reversed and Kudeshkina remains without work or a pension. On 18th December 2009 Moscow City Court refused to reconsider Kudeshkina’s case, effectively putting Russia in breach of international treaties. And then on 5th February 2010, Kudeshkina wrote a letter to President Medvedev.

Priorities for Change

In her talk at the London seminar Olga Kudeshkina often quoted President Medvedev, who has repeatedly admitted in his speeches that the Russian judiciary is not independent and many illegal decisions are taken under pressure of telephone calls from officials and sometimes bribes. She also quoted from a major research paper “The Russian Judicial System: Current State and Problems”, commissioned by the Institute of Contemporary Development (President Medvedev is head of its Board of Trustees), published in Russia on 30th October 2009.

The research paper claims that the main problem of the Russian judicial system is not corruption, but the dependence of judges on officials. Their research showed that the majority of cases which have nothing to do with the interests of the state or big business are judged objectively. However, whenever it comes to more sensitive issues, the court inevitably supports officials rather than those who are legally in the right.

A court decision made in conflict with the interests of high-ranking officials has a good chance of being overruled by a higher court, or returned for reconsideration. The more cancellations of the decisions of a judge, the more chances that judge has of being dismissed. Judges know these rules and decide which cases are worth judging fairly.

The report says that judges' activity is affected by fear and their dependence on court chairpersons, who have at their disposal a whole system of levers – the chairpersons distribute both cases and bonuses, they can support or hinder the careers of judges, discipline or dismiss them. Even judges’ housing comes under their jurisdiction.

In Russia, the share of acquittals, excluding jury trials, is less than 1%. Judges themselves admit that acquittal sentences are cancelled 30 times more often that guilty verdicts. Judges are just afraid of passing acquittal sentences.

The court chairpersons, in their turn, are appointed by the President, making them also dependent on the authorities.

It was clear that Olga Kudeshkina supported all these conclusions of the research report, stressing that her own case is a reflection of the problems mentioned there.

An Outsider’s View

Another participant in the seminar, Drew Holiner, the only barrister in England and Wales who is a qualified member of the Russian bar, also supported the conclusions of the research paper, with a minor reservation that he would not dismiss corruption in Russian courts as bravely as the paper does. Even with ten years’ experience working as a lawyer in Russia and other republics of the former Soviet Union, he is still shocked by the questions Russian clients tend to ask him when he starts a case: “Do you know the judge?” “Do you have access to the judge?” Many Russians, according to Holiner, just would not believe that there is practically no corruption in the English court system.

Drew Holiner sees one of the reasons for the general obedience and compliance of Russian judges in the way judges are recruited. Anyone who has reached 25 years of age, has not less than 5 years of relevant experience, is not incapacitated and has not suffered from drug-addiction or alcoholism can become a judge, while in England judges are drawn from the rows of barristers, which implies much more rigorous selection.

When asked about the relations between the Russian judiciary and the European Court, Holiner was unexpectedly optimistic, although he admitted that the refusal to carry out the ruling of the Strasbourg Court in Olga Kudeshkina’s case did not give much ground for optimism. Still he thought that despite all the negative statements by politicians about foreigners interfering with Russia’s internal affairs, a large part of Russian society on all levels believes in the need for an independent judiciary. Russian society is not a monolith, he stressed, and although it is not democratic, competing interests exist and to say that as a whole it rejects judgments from outside would be an oversimplification.

He was supported in this by Professor Bill Bowring, who was chairing the seminar. As founder and chair of EHRAC (European Human Rights Advocacy Centre), which together with the Russian NGO Memorial and the Bar Human Rights Committee has taken over a hundred cases against Russia to the European Court of Human Rights, Bill Bowring confirmed that Russia has paid compensation awarded by the European Court to the victims of injustice on every single occasion, and also engages in discussions around the decisions. There is much discussion of the case law of the European Court in Russia’s ccourts, even as high as the Constitutional Court, and textbooks for students are full of examples of Strasbourg’s decisions.

New President – New Hopes?

The greater part of the questions asked concerned President Medvedev. Many, like Richard Saqwa, Professor of Russian and European Politics at the University of Kent, wondered how it was possible that even the President of the Russian Federation, apparently aware of the problems of the judicial system, could not in any way improve it. Olga Kudeshkina’s suggestion that perhaps not everything depends on the President was met with a burst of laughter. She replied that one of the main difficulties of implementing changes was a strong resistance on the part of many members of the legal profession, because the majority of lawyers in higher positions, like court chairpersons, had been brought up in Soviet times, without any understanding of what a law-based society actually means. She stressed several times that only “new blood” in the judiciary can save the situation and ensure change.

However, when Jane Henderson, Senior Lecturer in the Law of Eastern Europe at King’s College, London, suggested that perhaps the abolition of life-long appointments for judges might be a step forward, Kudeshkina had to say that today, paradoxically, only a life-long appointment can make a judge truly independent. Otherwise the system of rotations, or the need to have one’s right to judge confirmed after a certain period of time, would make judges even more susceptible to pressure than they are now.

Another question by a practicing lawyer was disarmingly simple: if the President is even vaguely committed to judicial reform, he asked, could he not simply stop appointing court chairpersons? Would not it be a perfect first step to strengthen the independence of the judiciary? Olga Kudeshkina could not agree more. In fact, she said, the legal community in Russia had discussed the options of either a rotation of court chairpersons or their election by conferences or judges’ councils. Unfortunately, she said, there is no hope for that in today’s Russia. Just recently a legislative amendment was enacted whereby the Chairman of the Constitutional Court and his Deputy are no longer elected. From now on they will be appointed by the Federation Council. And this amendment was introduced on the initiative of the President, which could only mean that the executive branch is seeking to establish full control over the judiciary.

Kudeshkina’s letter to the President still remains unanswered.
 
10 February 2010
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