A Picture of Judicial Reforms in the Transition Era

LIBERAL MISSION FOUNDATION Ekaterina Mishina THE LONG SHADOWS OF THE SOVIET PAST: A PICTURE OF JUDICIAL REFORMS IN THE TRANSITION ERA Moscow 2020 UDC 347.97/.99(47+57) Mishina E. The Long Shadows Of The Soviet Past: A Picture Of Judicial Reforms In The Transition Era / E. Mishina. — Moscow : Liberal Mission Foundation, 2020. — 196 p. ISBN 978-5-903135-74-5 The book addresses the specifics of the Soviet Constitutions and Soviet law (including early Soviet criminal law and family law). Special attention has been given to Soviet courts and the phenomenon of Soviet judicial mentality. The author depicts the priorities of post-Soviet transformation and comments on judicial reforms in Russia, Estonia, Latvia, Lithuania, Georgia, Ukraine, Kyrgyzstan and Kazakhstan. The scope of analysis includes constitutional transformation, lustration efforts, police reform and certain legislative developments (mainly criminal law and criminal procedure). The focal point of the analysis is the impact of the path dependence factor on the post-Soviet transition of the countries of study. Commenting on the current situation in the Russian Federation, the author discusses the signs of re-birth of certain traditions and approaches of Soviet criminal law in modern Russia. The book also provides analysis of Vladimir Putin’s constitutional amendments that came into force in July of 2020. Ekaterina Mishina has asserted her right under Chapter 70 of the Civil Code of the RF, 2006, to be identified as Author of this work. UDC 347.97/.99(47+57) ISBN 978-5-903135-74-5 © Liberal Mission Foundation, 2020 © E. Mishina, 2020 TABLE OF CONTENTS PREFACE ________________________________________________________ 4 INTRODUCTION __________________________________________________ 7 PART I. THE DIAGNOSIS __________________________________________ 10 Chapter 1. Main Features of the Soviet constitutional system ________ 10 Chapter 2. Main features of Soviet law and Soviet courts ____________ 23 Chapter 3. Signs of re-birth of certain traditions of Soviet criminal law in modern Russia __________________________ 45 PART 2. DIFFERENT REFORM PATTERNS ___________________________ 62 Chapter 1. History matters: priority areas in the reform of the former Soviet republics ___________________________________ 62 Chapter 2. Reforms in Russia. Putin’s Constitutional Amendments – 2020 ___________________________________________ 67 Chapter 3. The Baltics _________________________________________ 100 3.1. Reforms in Estonia ____________________________________________106 3.2. Reforms in Latvia _____________________________________________118 3.3. Reforms in Lithuania ___________________________________________125 Chapter 4. Reforms in Georgia __________________________________ 133 Chapter 5. Reforms in Ukraine __________________________________ 145 Chapter 6. Reforms in Kyrgyzstan _______________________________ 164 Chapter 7. Reforms in Kazakhstan _______________________________178 CONCLUSION __________________________________________________ 189 PREFACE We know too little about the legal systems of former Soviet bloc countries. Eka- terina Mishina has been working actively to remedy this problem. This book is a primer on the efforts by a cross-section of formerly Communist countries to build truly independent courts. It is a worthy follow-up to Transformatsiia rossi- iskoi sudebnoi vlasti: Opyt kompleksnogo analiza, the 2010 book that summarized the findings from a comprehensive study on which she collaborated with several colleagues at INDEM, a Moscow public policy institute. In the interim she has pe- riodically opined on the prospects for judicial reform in Russia on the website of the Institute for Modern Russia. This book draws together her arguments and brings them to the attention of English-language readers. Mishina focuses on eight of the former republics of the Soviet Union (Russia, Estonia, Latvia, Lithuania, Georgia, Kazakhstan, Kyrgystan, and Ukraine). The broad geographic sweep of her research is welcome. To date, most of the scholar- ly literature on the judicial systems of the countries of the former Soviet Union has dwelled on Russia. Given the size and geopolitical influence of Russia, this empha- sis is understandable, but unfortunate. To her credit, Mishina does not use Russia as a yardstick, either for progress or backsliding. Although she devotes more space to the analysis of Russia, she treats it as one her many cases. Mishina recognizes that the declarations of independence from Communist pasts by the leadership of the countries she is studying did not create an institutional tabula rasa. Instead, each had to grapple with the legacy left behind. In Mishina’s capable hands, the danger of taking a deterministic approach to the af- termath of Soviet experience is avoided. Although she does a superb job of setting the historical stage, with a magisterial recounting of the twists and turns in the legal system during the early decades of Communist control, she recognizes that, despite the seeming similarity of the experiences of her case study countries with Soviet power, this legacy has played out in very different ways. Hers is a so- phisticated version of path dependence that recognizes the relevance of many factors other than the overarching institutional structure of the Soviet-era constitutions and codes. She reminds us that there can be many routes to the shared goal of independent courts and that success is not guaranteed by any route. She does, however, agree with Alexander Hamilton that without a clear and genuine separation of the judiciary from the other branches of government, independence is destined to be elusive. The analysis of the experience of these eight countries confirms the impor- tance of integrating a focus on the "law in action" with a rigorous investigation in- 4 PREFACE to the law on the books. Over and over again, Mishina documents the contrast between the constitutional language that, on its face, guarantees the inviolability of the courts to encroachments from extra-legal forces, and the sad reality of courts that are vulnerable to outside interests. In many countries, efforts have been made to affirm this constitutional guarantee through legislation and regulations, to little avail. In the Soviet era, judges danced to the tune of the Communist Par- ty. More recently, judges have sometimes been found to pay more attention to the wishes of influential actors than to the letter of the law. The common theme over time is the ability of power (both economic and political) to corrupt the judicial process. Mishina lays out the many efforts to stem this tide, none of which have been entirely successful. In her view, the persistence of judicial dependence has its roots in the Soviet era, but she also assigns blame to more contemporary factors, including the cravenness of judges themselves and the unwillingness of those with power to live within the law. Without question, Mishina’s meticulous descriptions of the reform efforts of each country are the book’s most important contribution to our knowledge. For readers who are unfamiliar with the post-Soviet history of courts, the book provides a pithy summary. For those who may be familiar with several but not all of her cases, it allows for an extension of their knowledge. She has mined the prima- ry sources with aplomb. Particularly notable is her attention to constitutional development across the region. After setting the stage with a thorough analysis of the multiple Soviet constitutions, she digs into the constitutional history of each country, explaining their initial post-independence choices and the subsequent changes. In each case, she demonstrates how the Soviet past influenced, but did not dictate, the paths taken. The reader comes away with a better understanding of why constitutions thrive in some, but not all, of these countries. It reminds us that merely having a constitution does not ensure that its guarantees will be re- spected. Closely related is the analysis of judicial reform. Mishina assiduously works through the wide variety of institutional frameworks adopted by the case study countries. Most have broken up with the Soviet past by introducing judicial re- view in some form. Many have followed the German example of having a stand- alone constitutional court. But, as Mishina details, the meaningfulness of such courts has waxed and waned, both within individual countries and across the region. She also explores the variation in the institutional structure of ordinary courts, as well as in the underlying procedural codes. She notes that taking the time to prepare a blueprint, which is surely the advice given to all these countries by experts from development agencies, has not proven to be particularly helpful. Two of her cases with such documents, Russia and Ukraine, turned out to be among the least successful reform efforts. Once again, the gap between the law on the books and the law in action emerges as a potent theme, particularly as to criminal procedure. Efforts to rein in the police by making them answer to judges 5 THE LONG SHADOWS OF THE SOVIET PAST: A PICTURE OF JUDICIAL REFORMS IN THE TRANSITION ERA have had only mixed success. Along similar lines, the informal alliance between the bench and the officials of the criminal justice system that was a hallmark of the Soviet Union has been remarkably resilient, leading to very low acquittal rates within the region. Unsurprisingly, public opinion polls find that many ordinary cit- izens are distrustful of

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