Peter H. Solomon

Soviet criminal justice under Stalin

Introduction Part I. The First Phase: 1. The design of an experiment 2. Criminal justice under NEP Part II. The Years of Collectivization: 3. Campaign justice 4. The decline of legality Part III. The Conservative Shift: 5. The return to tradition: Vyshinsky and legal order 6. Stalins criminal policy: from tradition to excess 7. Criminal justice and the great terror 8. The reconstruction of criminal justice 9. Preparing for war: the criminalization of labour infractions Part IV. The Stalinist Synthesis: 10. Moulding legal officials for careers 11. The dynamics of Stalinist justice: bureaucratic and political pressures on legal officials 12. The distortion and limits of criminal policy Conclusion.

Assessing the Courts in Russia: Parameters of Progress under Putin

The Soviet legacy included courts that were dependent and weak, whose reform had only just begun. The Yeltsin era witnessed considerable progress in making judges more independent and powerful, but the efforts were seriously constrained by budgetary shortcomings and paralysis in the legislative approval of needed procedural changes. The Putin administration overcame both of these obstacles and at the same time began addressing the thorny question of how to make courts and judges accountable without undue harm to their independence. The administration also started to address the skepticism about the courts among a significant part of the public through efforts to improve media coverage, make information about courts more available, and make courts user-friendly. Although praiseworthy and bound to improve the reality and the perception of the administration of justice overall, these initiatives did not end attempts to exert influence on judges and case outcomes by powerful people (in the public and private sectors) or the mechanisms that facilitated their efforts.I begin by identifying criteria for assessing the quality of the administration of justice in any country, including in the post-Soviet world, and suggesting specific markers (usually qualitative) connected to each of the criteria developed above. Then, I provide an account of relevant policy initiatives in judicial reform undertaken first under Yeltsin and then in the Putin years. After that I provide an assessment of the state of the courts in the Russian Federation in 2007 in light of the criteria and markers supplied in the first section. I conclude with a look to the future and the identification of crucial markers of change for the post-Putin era.Criteria of Assessment and MarkersThe purpose of courts is to provide to members of the public the opportunity to obtain the impartial resolution of disputes (mainly through adjudication, but sometimes through mediation) in a timely manner. Courts must act fairly and expeditiously, and the design of judicial systems should contribute to these ends.I propose seven criteria for assessing a court system, some of which break down into a number of components, each of which can serve as markers.1 They are the independence of judges and courts; procedural law aimed at ensuring equality among the parties; the power of the courts; the system of judicial accountability; accessibility of the courts; efficiency of performance (and the factors that encourage it); and public attitudes toward the courts.By judicial independence I mean structural arrangements that improve the chances of impartial outcomes by reducing or eliminating potential lines of dependence of judges, both on external sources and on others within the judicial system. Three basic markers of an independent judiciary (necessary, but not necessarily sufficient to produce impartiality) are (1) a system of tenure that reduces a judges potential fear of reprisal for decisions (such as tenure to the age of retirement with dismissal only for serious cause at the hands of ones peers) and minimizes the impact of any disciplinary proceedings; (2) sufficient financing of the courts so that judges receive good salaries, have good staff support, and hold sway in buildings that enhance rather than detract from their authority; and (3) a reasonable degree of control by the judiciary over the provision of administrative support to the courts. In judicial systems of the civil law type, where judges pursue careers in the courts, biases are commonly introduced through systems of evaluation of their performance (often involving higher courts) and through the exercise of power by the chairs (presidents) of courts. In the post-Soviet world, chairs of courts are especially powerful, often controlling discretionary perks and benefits for their judges, and are in a position to help their judges get promotions or hurt them through disciplinary initiatives, including recommending dismissal. …

Law and Courts in Authoritarian States

Authoritarian rulers need law and courts as instruments of rule, to perform such functions as social control, legitimation, administrative accountability, and encouragement of investment and trade, but more than their democratic colleagues they find it difficult to sacrifice political power. Consequently, they fashion weak and dependent courts, opt for fragmented jurisdiction (with special tribunals for matters of regime interest), readily readjust the jurisdiction of courts and judicial discretion when they are provoked, or create formally independent courts that are undermined by informal practices. Authoritarian rulers prefer narrow positivist understandings of law to avoid constraints but may face pressures to meet international standards for the protection of business or human rights. Rule by law rather than any version of rule of law characterizes the role of law in authoritarian states.

The Accountability of Judges in Post Communist States: From Bureaucratic to Professional Accountability

Both the impartiality and the discretion of judges in the bulk of postcommunist states are limited by the system of bureaucratic accountability inherited from the Soviet era and left largely intact to this day. Bureaucratic accountability refers to the accountability of judges to their superiors in the judicial hierarchy (both court presidents and judges on higher courts) and is manifested in both the power of court presidents and the evaluation of judges.

Post-Soviet criminal justice: The persistence of distorted neo-inquisitorialism:

This article investigates the extent to which post-Soviet states have successfully reformed the system of criminal justice that they inherited from the USSR, and in particular reduced accusatorial bias and achieved procedural fairness. I argue that with the notable exception of Estonia, these countries have not eliminated the defining features of the Soviet criminal justice, what I call ‘distorted neo-inquisitorialism’—namely the excessive power of investigators and weakness of judges. The article examines in detail the reform of criminal justice in Russia, Estonia and Ukraine from 1992 to the present.

Understanding Russia’s Low Rate of Acquittal: Pretrial Screening and the Problem of Accusatorial Bias

The Soviet Union and post-Soviet Russia alike have had extremely low rates of acquittal in criminal cases, which conventional wisdom associates with an accusatorial bias. But other countries like Canada, Germany, The Netherlands, and France also have low rates of acquittal without the perception of bias. This article argues that the key difference lies in the presence or absence of pretrial screening—through the withdrawal of charges, diversion, and/or dispositions imposed by prosecutors. After a brief history of the low acquittal rate in Russia, the article documents the use of prosecutorial discretion to screen cases before trial in those four Western countries, especially through the exercise by prosecutors of quasi-judicial functions. The article goes on to demonstrate the absence of significant pretrial filtering of cases in Russia and to explore the implications for understanding the rate of acquittal.

Transparency in the Work of Judicial Councils: The Experience of (East) European Countries

In many countries of Europe, including especially its Eastern part, in the 21st century judicial councils have replaced ministries of justice as the bodies that manage judicial careers and govern the judiciary. This model may enhance the autonomy of the judicial branch but also weaken its accountability and lead to judicial corporatism. One way to counter the negative trends is to enhance public accountability of judicial councils, by making the work of councils is open and visible. Not surprisingly, judicial reformers have made transparency into a key criterion for a successful judicial council, leading many countries to promote transparency in their judicial councils. This article evaluates this trend−by (1) providing cases studies of four judicial councils, those of Italy, Poland, Moldova, and Latvia; and (2) comparing the work of empowered judicial councils throughout Europe with regard to the openness of judicial disciplinary hearings and public sessions of judicial councils themselves. On this basis I argue that while legal requirements for transparency are becoming the norm, they do not necessarily make the work of judicial councils open, let alone produce public accountability. This outcome requires as well a genuine commitment of council members and staff to transparency arrangements, the cessation of resistance to such arrangements, and the provision of money and staff to support them.