25 Jul 2010
On the heels of last week’s post about the new FSB law, I’d like to explore a couple of alternate theories on the reasons for and consequences of this piece of legislation. While Dmitri Medvedev infamously took full credit for this initiative, he’s had it on his desk from parliament for over a week now — and for some reason the Kremlin has yet to announce his signing it. This will likely prompt Medvedev’s die-hard liberal fans to theorize that he’s either considering vetoing the law or feels ashamed to publicize his endorsement. There’s a third option that he might аbstain from signing it altogether, which would automatically pass the bill by constitutional law: “В силу ч. 2 ст. 107 Конституции РФ Президент РФ обязан подписать принятый федеральный закон, если в течение четырнадцати дней с момента поступления не отклонит его.” If Medvedev does this, drunken celebrations among liberals worldwide will likely produce drowning casualties that rival the number of people who have died swimming to escape Russia’s current heatwave. Guns of August would be forgotten and it would become a summer of love.
But until something as unlikely as all that actually happens, we’re left with the slightly uglier reality that this law is poised to go into effect. The general consensus in the West has been to unremittingly criticize the legislation, and maybe to slip in some hopeful ambiguity about the degree to which Dima Medvedev actually supported the whole idea.
In a comment on my last post on this subject, Mark Chapman of The Kremlin Stooge shared a link to a very interesting article by Mark Galeotti, published on his blog, In Moscow’s Shadows. Galeotti’s piece argues that Medvedev sought this law in order to codify inevitable and already-occurring police practices. In his own words: “This is essential, as laws provide limits to executive power, embody the notion that even the secret police and its subjects and can in due course be changed and liberalized.” This is what I would call a very sophisticated liberal interpretation. Galeotti is clearly driven by the hope and desire that Medvedev seeks “limits on executive power,” but he frames his analysis in enough gradualism and realistic calculation (for example: “[Medvedev] seems keen to emphasise his own personal commitment to this, although perhaps in part also to woo or at least not alienate the siloviki of the security community”) to pull off an intriguing dissection of the president’s possible motives.
This being the game of tea-leaf-reading, otherwise known as Kremlinology, I wondered what some other soothsayers of ‘Russia observation’ might have prognosticated on the Medvedev-FSB controversy. Enter Leonid Nikitinskii of Novaya Gazeta. Four days ago, on July 21st, he too published an op-ed quixotically defending Medvedev’s commitment to legal justice. It was titled “The Cop Isn’t Always Right.” I’ve gone ahead and translated the piece in full, not because I know it embodies the desperate wishfulness of the president’s liberal suitors, but because I think it demonstrates the metaphorical nuances required for such mental gymnastics.
Nikitinskii dismisses the significance of the FSB law in the same way as Galeotti, arguing that it is essentially symbolic. While he apparently puts more stock in the softening of the law thanks to the 2nd round revisions, the consensus between these two pundits seems to be that the cops didn’t really gain any powers they didn’t already have. Having dispensed with this symbolism, Nikitinskii next explores Medvedev’s often-admired odes to legalism, particularly a few of his recent proposals to boost the electronic sharing of information about trials and verdicts. From this conference-room banter, Nikitinskii salivates that perhaps Khodorkovsky’s trial might soon have a live-streaming Internet audio feed. Deciding for some reason that publicity would be “unusual” for this trial, he floats the idea that public scrutiny might prompt a not-guilty verdict.
It’s pretty wide-eyed stuff. Read it for yourself below:
The Cop Isn’t Always Right
By Leonid Nikitinskii, Novaya Gazeta
Medvedev isn’t just dividing the ‘courts and law enforcement;’ he seems to have a plan to dismantle their anti-constitutional symbiosis.
In what we might already call his preferred manner, President Medvedev, it seemed at first glance, added equal weights to both scales, with ‘the rule of law’ on one side and ‘the dictatorship of the law’ (which is really just the dictatorship of the cops) on the other.
After losing important sanctions in its final version, the law granting new powers to the FSB to “warn” any troublemakers allegedly preparing acts of extremism — this new bludgeon — took on a more symbolic character. But in a police state (really a state ruled by the cops, since neither the police force nor the FSB obey any kind of external discipline or external authorities), a symbol like this will be perceived by cops as a signal: “wipe [them] out!” (in the Medvedevian translation, perhaps it’s a softer “harrass!”).
Medvedev was also trading in symbolism in Saint Petersburg the other day, where he attended a conference devoted to the judicial system. It’s perhaps here that the difference between Medvedevian and Putinist legal regimes is slowly gaining credibility: for Medvedev, the courts and intelligence agencies don’t constitute a fused instrument of repression: they have different functions. He carries on two different conversations with judges and with cops.
For example, the president suddenly said at the conference that the number of acquittals should be a criterion of the court system’s “modernity,” and asked how many such verdicts the courts had rendered. Here the Chairman of the Supreme Court, [Vyacheslav] Lebedev, claimed the figure was 2.4 percent, exaggerating the number by six times. His count included jury trials — the very meaning of which the Supreme Court invalidated by illegally cancelling their acquittals en mass on the pretext of procedural technicalities. In the statistics, one needs to factor in magistrate courts [mirovye sudy], where it’s not that the chances of acquittals are higher, but that the odds of [meddling] cops, who are powerless at this level, are lower. Regular courts’ acquittal rate is less than one percent — a figure lower than the margin of error. That is to say, the success rate of consecutive convictions in [regular] courts is basically 100 percent.
But the point isn’t the statistics, it’s the fact that the Chairman of the Supreme Court actually seemed to be making excuses to the president for the small number of acquittals. In translation — adjusted for the monstrously [low] levels of observance of the law among the police (including the FSB), among investigators, and among public prosecutors — it means this: Lebedev publicly confessed that what used to be called “accusatory bias” is what a harsher, more modern perspective would describe as a judicial presumption that the police are always right.
Medvedev-the-lawyer isn’t just dividing the courts and law enforcement; he seems to have a plan to dismantle their anti-constitutional symbiosis. In Saint Petersburg, the president spoke about the merits of jury trials (from whose arbitration, six months ago, he removed all crimes in the jurisdiction of the FSB in order to please the intelligence agencies) and, in the same context, discussed expanding civil society controls over the courts (which until now have answered only to the police).
While they appear to balance out on the scales, these “weights” form an arrow that determines the either democratic or totalitarian vector of [Russia's] development. Comparing the two, one needs to take into account not only current dynamics, but also their potential to gain weight. The bogeyman of FSB “warnings” has little chance of seriously becoming some terrifying weapon in the fight against civil society, as (see above) the police forces are ruled by anarchy and no one controls anything in reality. [Social] organizations and civil society have been shut out, but something is still developing — perhaps chaotically for the time being — in another direction.
How did this mosaic come about — [where] everything depends on the future of the courts? After all, one view of the legal system’s anatomy is that it’s only a police bludgeon (that is, it’s merely the private recourse of cops who don’t have enough [evidence] to even make an arrest). Another perspective is that the courts embody the protection of human rights and the interests of civil society, and are even a necessary prerequisite. On July 15, Elena Abramova, Justice of the Peace of court district no. 367 in Moscow’s Tverskii Raion, dismissed an administrative case against Constantine Pod’iapol’skii and Olga Mazur. They were accused of interfering with traffic on Triumfal’naia Square on May 31st. The judge found no evidence of their guilt, and moreover concluded that traffic had been closed off by the police.
In Saint Petersburg, Medvedev drew attention to the coming-into-effect federal law ‘on the access to information about the activities of the courts’ (Federal Law no. 262), and to the online government system ‘Justice,’ and finally to the fact that “the openness of the legal system” is neither a divine gift nor fortunate weather, but something that depends on the active involvement of civil society.
The president also proposed broadcasting all open court hearings online — a technologically very possible idea. The mechanics of this process (broadcasting via the online government system “Justice”) are hardly enough to render the project the unruly beast that a few detractors make it out to be. These naysayers are easily dismissed. Internet sleuths (okhotniki) will [be able to] follow everything online — and, while they will find most of it to be painfully boring, it’s also important because judges will realize this potentiality: their actions are always public. I would say that this [broadcasting] initiative by Medvedev is worth four times [the value of] Federal Law no. 262.
It seems that this process isn’t limited to a merely make-believe openness, which by itself would satisfy court officials. Incidentally, it’s entirely realistic to begin broadcasting from the halls of the Khamovnicheskii courtroom well before the verdict of the Khodorkovsky and Lebedev trial. In that event, their site, if it doesn’t crash immediately, would likely land in the ‘Top-100.’ Who knows, maybe in such unusual conditions of [public] visibility, Judge Danilkin would do his part to change the statistics on acquittals.