Putin-Style “Rule of ” & the Prospects for Change

Maria Popova

Abstract: In Putin’s , the regime uses the law and legal institutions to fulfill political goals, to com- municate them to society, and to manage the authoritarian coalition that helps the president govern. As a result, the law is highly consequential and important, but its use tends to be arbitrary, expedient, and in- strumental, rather than predictable and principled. Can we expect any major shifts in the role of law and the courts over the next ten years? Russia’s legal regime is unlikely to undergo major evolutionary change and may outlive Putin’s tenure: both foreign and domestic pressures for change toward constitutionalism are limited. If a positive shift were to take place, Russia would inch toward authoritarian constitutional- ism. But negative change is also possible. If Putin’s regime weakens, the politicized use of the courts against both dissidents and political competitors within the authoritarian coalition will increase.

Listen, all our opponents clamor for the . What is the rule of law? It is compliance with existing legislation. What does existing legislation say about marches? You need to obtain authorization from the local authorities. You got one? Go ahead and demon- strate. If you didn’t–you don’t have the right to demon- strate. If you do anyway–you will get a baton to the noggin’ [poluchite po bashke dubinoi]. End of story! –V. V. Putin, August 30, 20101

Ever since his ascent to power in the late 1990s, Pu- tin has pledged his commitment to develop Russia into a law-based state (pravovoye gosudarstvo). Howev- MARIA POPOVA is Associate Pro- er, his liberal opposition at home and critics abroad fessor of Political Science at Mc- routinely decry Russia’s rule-of-law deficit. Why does Gill University. She is the author this gap exist and will it narrow or widen in the near of Politicized Justice in Emerging Democ- future? The gap could signal Putin’s disingenuous racies: A Study of Courts in Russia and Ukraine (2012) and has published appeal to pravovoye gosudarstvo or the loss of mean- articles in such journals as Compar- ing in translation between the term rule of law and its ative Political Studies, Europe-Asia Stud- potential Russian equivalents. But it is also the case ies, and Democratizatsiya. that both Putin and his critics are right even if they

© 2017 by the American Academy of Arts & Sciences doi:10.1162/DAED_ a_00435

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 are talking past each other. Putin’s Russia tice as well. Liberal constitutionalism also Maria is far from the liberal constitutionalism as- requires a set of substantive that pro- Popova sociated with the rule of law. Neither does vide for fundamental rights. A politically it have the authoritarian constitutionalism independent and impartial judiciary is cru- sometimes called rule by law. But the Pu- cial because independent courts can better tin regime does not pursue legal nihilism ensure that all litigants, regardless of their while trying to hoodwink domestic and for- political, material, or legal resources, are eign audiences into believing that law mat- equally bound by the law. ters. Law does matter, but it serves a differ- Putin’s Russia is far from the liberal con- ent purpose than it does in a constitutional- stitutional ideal. While its ist context. In Putin’s Russia, the sovereign does provide many fundamental rights– uses the law and legal institutions to fulfill freedom of speech, freedom of associa- political goals, to communicate them to so- tion and assembly, and freedom of move- ciety, and to manage the authoritarian coa- ment, to name a few–ordinary legislation lition that helps the president govern. As a has hollowed each of them out. The for- result, the law is highly consequential, but eign agents laws and antiextremism laws its use tends to be arbitrary, expedient, and undermine freedom of association; hate instrumental, rather than predictable and speech legislation and a 2014 amendment principled. Russia’s legal regime is unlike- to the Criminal Code, which outlaws public ly to undergo major evolutionary change calls for violation of Russia’s territorial in- and may outlive Putin’s tenure; both for- tegrity, limit freedom of speech; onerous eign and domestic pressures for change to- administrative provisions for registering ward constitutionalism are limited. If a pos- in one’s place of residence restrict freedom itive shift were to take place, Russia would of movement; and the 2016 Yarovaya anti- inch toward authoritarian constitutional- terrorism law stifles freedom of assembly ism (that is, rule by law), either because an and conscience by introducing harsh sen- increasingly professional judiciary starts to tences for organizers of unsanctioned pro- assert itself or because the current author- tests, requiring Internet service providers itarian coalition attempts to use the law to and phone companies to store customers’ entrench its interests and ensure the sur- communication data logs, and making it vival of the regime beyond Putin. But nega- a crime not to report information about tive change is also possible. If Putin’s regime other crimes. Whatever rights do exist de weakens, the instrumental and arbitrary use jure are undermined de facto by the Russian of the courts against both dissidents and po- courts, which do not uphold them consis- litical competitors within the authoritarian tently or predictably. coalition will increase. Russia’s authoritarianism does not com- pletely account for its weak constitutional- The liberal constitutionalism associated ism, since constitutionalism is not always with the rule of law rests upon two main incompatible with autocracy. Autocrats can principles: equal responsibility and pro- govern within a constitutional framework, tection under the law, and substantive and even if they are not fully constrained by it. procedural guarantees for fundamental in- In an ideal type authoritarian constitution- dividual rights. This means that everyone, al regime, the autocrat sets the substantive including high-ranking members of the law, often in negotiation with his govern- regime and its sovereign, is equally con- ing coalition. The opposition does not have strained by the constitution and ordinary the opportunity to shape substantive law, legislation, not just on paper, but in prac- either through the legislative process or

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 Putin-Style by appealing to the Constitutional Court. gime and its adherence to constitution- “Rule of Law” Many fundamental rights are not provided. alism. As any authoritarian government & the Prospects for Change Substantive law is biased against the op- does, the Singaporean regime went after position and imposes sanctions on it. For dissidents and did so effectively. When one example, it may limit its ability to contest route to detaining them failed, the author- elections or its right to criticize the govern- itarian sovereign pursued another and was ment.2 However, once in place, the law is ultimately successful in asserting the re- applied predictably rather than arbitrarily gime’s dominance. However, the regime to individual cases by functionally indepen- achieved its goals by respecting the con- dent courts.3 Oppositionists are sanctioned stitutional process, the ordinary legisla- in accordance with the laws that limit op- tion that it had put in place, and, to some position activity, rather than imprisoned on extent, the independence of the judiciary. other charges. The courts are sufficiently re- The highest court was sufficiently inde- moved from direct political influence and pendent to call out the government for the constitution serves as a coordinating failing to adhere to statutory procedure, institution between the autocrat and the and the government complied with the elites with whose help he governs. When court decision and made a better effort at the autocrat and his governing coalition respecting the law. While it prevented fur- reach agreements about how power is dis- ther encroachment by the independent ju- tributed and enshrine those agreements in diciary into its discretionary power, the re- the constitution or in ordinary legislation, gime did not discipline the judiciary either there is enough expectation that commit- formally or informally. Instead, using its ments are honored and enforced in good dominance over the legislature, the sover- faith by the judiciary.4 eign changed the constitution to empha- Currently Russia does not have author- size his unfettered power to make law. itarian constitutionalism. Consider the The Bolotnaya Square cases–in which contrast between the treatment of dissi- protestors were charged with counts of dents in Singapore, the prime example of mass riots and violence against police– authoritarian constitutionalism, and in illustrate Russia’s deviation from authori- Russia. In 1988, Singapore’s highest court tarian constitutionalism. Unlike in Singa- ordered the release of four dissidents ar- pore, Russian courts at all levels of the hi- rested under the Internal Security Act. The erarchy failed to stop the government from court found that the government had not violating defendants’ rights to liberty and followed the proper statutory procedures fair trial, despite the existence of reasonable and, in addition, argued that the govern- protection for those rights in the Russian ment’s excessive discretionary power un- Constitution. The courts actively partici- der the Internal Security Act was contrary pated in the rights violations by holding the to the rule of law. The government com- protesters in pretrial detention well beyond plied with the decision and released the the statutory provisions. They also failed to dissidents, but immediately charged them note violations of the right to freedom of as- again and rearrested them, this time scru- sembly, which resulted from police conduct pulously following the letter of the law. It during the authorized protest on May 6, then passed a constitutional amendment, 2012. Some Bolotnaya defendants won re- which forbade the judiciary from curtail- dress when they appealed to the European ing the sovereign’s power to make law.5 Court of Human Rights (echr), which af- This episode underscores both the au- firmed the violations and ordered Russia thoritarian nature of the Singaporean re- to pay compensation. To prevent further

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 encroachment on its ability to use the law Khodorkovsky’s case is a bit less straight- Maria against regime opponents, the Russian re- forward; legal analysts believe that the evi- Popova gime did not introduce any changes that dence of malfeasance against him and his oil would have made the behavior of police company, Yukos, was stronger than in Naval- and the prosecution strictly legal. Instead, ny’s case.8 However, even if Khodorkovsky in late 2015, the Duma passed a law that au- and Yukos engaged in large-scale tax eva- thorizes the Russian Constitutional Court sion, fraud, and embezzlement, as the to deem echr decisions “unenforceable.” echr concluded in 2013, Yukos’s business Given the Constitutional Court’s record of practices were more the norm than the ex- deference to the regime, this effectively al- ception in the murky 1990s. By singling out lows Russia to arbitrarily disregard individ- Khodorkovsky but turning a blind eye to sim- ual echr decisions. The proponents of the ilar activities pursued by oligarchs who toed law explicitly identified its purpose as the the Putin regime’s line, the Kremlin used the protection of Russia’s “legal sovereignty” law selectively and arbitrarily to achieve the (pravovoi suverenitet) vis-à-vis international politically expedient goal of sidelining a bud- institutions.6 ding political opponent. The prosecutions of opposition activist The case provides another ex- Aleksei Navalny and billionaire oil tycoon ample of the arbitrary and selective appli- demonstrate that cation of the law for political goals: that is, the Putin regime does not adhere to author- similar acts produced different outcomes itarian constitutionalism, but uses law ar- in court. The punk rockers’ performance in bitrarily to sideline potential political op- the Cathedral of Christ the Savior was con- ponents. Both Putin critics were indicted strued as a crime under Article 213 of the not for any opposition activities, but on un- Criminal Code, which punishes premedi- related fraud and embezzlement charges. tated hooliganism (a planned disturbance Navalny was accused of embezzling funds of public order). After a highly publicized from the state-run Kirovles timber com- trial, , Maria Al- pany, and the indictment of his brother yokhina, and Yekaterina Samutsevich re- Oleg, which further increased the person- ceived two-year effective sentences. But al stakes for the opposition leader, under- Pussy Riot’s performance was far from scores the instrumental use of criminal law the first example of an antiregime art per- by the sovereign. The timing of the case, formance. Tolokonnikova had long been a prior to ’s mayoral election, and member of the radical art collective , the decision to give Aleksei Navalny a sus- which from 2007 to 2011 engaged in about a pended sentence, but Oleg an effective one, dozen actions that similarly used the shock support the impression that the embezzle- value of obscenity to criticize Russia’s po- ment investigation was a tool used to sup- lice state and to challenge public morality. press Aleksei Navalny’s political activities. Voina’s main targets were Putin, Dmitrii In its ruling against Russia in the Kirovles Medvedev, the siloviki, and the Orthodox case, the echr explicitly argued that crim- Church. Most of Voina’s actions involved inal law was arbitrarily used against Naval- some kind of law violation–its members ny. In echr’s words: “Moreover, the Rus- shoplifted, drew graffiti, flipped over and sian courts had found the applicants guilty burned police cars, and disrupted court of acts indistinguishable from regular com- proceedings by releasing three thousand mercial activities. In other words, the crim- cockroaches in a courtroom. In February inal law had been arbitrarily construed to 2008, Voina (and Tolokonnikova) staged the applicants’ detriment.”7 their most notorious stunt: four couples

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 Putin-Style had sex in a public area of the Biological These high-profile cases suggest that “Rule of Law” Museum while other members of the group Russian legal outcomes, while unpredict- & the Prospects for Change held protest signs and filmed. The perfor- able if one goes by the content of the law, mance, called “Fuck for the Heir Puppy are entirely predictable if one knows the Bear”–a play on words in that Medvedev’s preferences of the political sovereign: the name derives from the Russian word med- Kremlin always wins. However, this pre- ved, or bear–drew significant media at- dictability is exaggerated. Outside a few tention and was widely condemned as very salient cases, the Kremlin either does extremely offensive. Several of Voina’s not reveal its preferences or simply has no performances resulted in criminal inves- preferences. When the Kremlin’s position tigations against individual members, in- is uncertain, lower-level political actors, cluding some indictments under the same the prosecution, and judges try to guess Article 213 of the Criminal Code. Howev- the politically correct outcome and this er, all cases were eventually dropped by the guessing game introduces significant un- prosecution or dismissed by the courts. Pri- predictability into the legal regime. In ad- or to the Pussy Riot convictions, the most dition, when political actors vie for relative serious legal consequence suffered by power within the regime, they often seek members of the art collective was a three- to demonstrate that power by influenc- month detention from November 2010 to ing court decisions in politically relevant February 2011 while the prosecution inves- cases. Consider the frequent conflicts be- tigated their involvement in a police car – tween mayors of major cities and regional flipping incident. That incident produced governors. These conflicts are often fought significant media coverage, both in Russia vicariously through court cases, with each and abroad, prompting to contrib- side attempting to mobilize enough politi- ute 4.5 million rubles to Voina’s legal de- cal resources up the power ladder to secure fense fund. Eventually, the court dismissed a victory in court. Judges face the tough the charges. task of interpreting the signals that come The contrast in outcomes suggests that from judicial superiors and the extrajudi- Pussy Riot’s punk performance resulted in cial actors to deliver a decision that would convictions not because it was more critical be acceptable to whoever represents power of the regime or Putin, more shocking to the (vlast’) in that concrete case. public, better publicized, or more clearly il- In legal areas with low political salience, legal than Voina’s performances. The dif- either because they are politically inconse- ference was timing. In 2012, the Putin re- quential or because there is broad politi- gime had decided to turn to “morality pol- cal consensus over how such cases should itics” and promote public commitment to be adjudicated, the Russian judiciary func- traditional values.9 Within this context, the tions reasonably well. Freed from direct Pussy Riot performance attracted the atten- external interference or from the burden tion of the regime, which used the case to of trying to guess the preferences of polit- publicize and sell its new morality politics ically powerful actors, judges decide cases to the Russian electorate. The prosecution in accordance with their bona fide interpre- and the courts acted in line with this goal tation of the law. Companies that use the and delivered convictions. Offering further arbitrazh courts to resolve disputes report evidence of the policy shift, in 2013, three of that they expect acceptable judicial deci- Voina’s leading members fled Russia with sions if vlast’ is not involved.11 Ordinary their families, reportedly to avoid impend- citizens who have experience with going ing criminal prosecution.10 to court report that the decision in their

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 case was fair and the judge professional, difference. This would be a decades-long Maria even against the backdrop of report- process, which could unfold only under Popova ed lack of trust in the Russian judiciary conditions of political and economic sta- overall.12 In the early 2000s, when Unit- bility and could take Russia closer to an au- ed Russia comfortably won elections and thoritarian constitutionalist legal regime. the regime had not yet moved toward sup- The prospects for short-term positive pression of political dissent, the courts ad- change, on the other hand, are low because judicated electoral registration cases with- the status quo serves the interests of Pu- out overwhelming bias toward progov- tin’s regime. In contrast to constitutional- ernment candidates.13 In the late 2000s, ism, which constrains the sovereign, Rus- Russians filed over half a million admin- sia’s current legal regime allows the Krem- istrative lawsuits against the state, de- lin to pursue political goals through the manding compensation for wrongful de- courts unfettered. As already discussed, cisions by federal agencies, and won most Russia’s politically pliable judiciary is an of them. Rather than a sign of the judicia- effective instrument for suppressing polit- ry effectively constraining state agencies ical opposition. The Kremlin has already through law, the high win rate in such cases used it to threaten, jail, or force into exile arguably reflects the regime’s policy goal numerous political opponents: from cred- of providing an outlet for popular discon- ible competitors to far-fetched ones, from tent with the bureaucracy.14 declared oppositionists to potential ones, from dissidents with high name recogni- How likely is it that, in the near future, tion to the regular citizen protester. Russia would transition away from the cur- The reliable dependence of Russia’s ju- rent legal regime, based on the politicized diciary also makes it a useful tool, through use of the law and a reliably dependent judi- which the regime can communicate politi- ciary, toward constitutionalism? Are those cal goals to society. In the 2000s, the crim- chances better if authoritarianism persists inal cases that drove businessman Boris or if a major democratic breakthrough took Berezovsky and media tycoon Vladimir place? If constitutionalism were to be estab- Gusinsky into self-imposed exile told the lished, would it happen through an evolu- public that the Yeltsin era of politically ac- tionary process or through a momentous tive oligarchs was over and the Putin re- act? Or should we expect further entrench- gime had set out to wrest control over the ment of politicized justice and its increased economy from them. The imprisonment arbitrary use against dissidents and within- of Khodorkovsky, believed to have been regime competitors? the richest man in Russia, and the destruc- In the best case scenario, sustained in- tion of his company emphasized the tri- vestment in the judiciary, which Putin’s umph of the state over private business. regime has pursued since the mid-2000s, In 2012, the Pussy Riot case ushered in the may lead to ever increasing professional- Kremlin’s “morality politics” and signaled ization. A more professional judiciary may to society that traditional values were back be less prone to petty judicial corruption, en vogue.15 The Bolotnaya Square cases in- which would increase popular trust in the dicated that individuals who take part in courts. As trust rises and judges develop political protests could pay a steep price, more pride in their profession, they may even if they are not visible leaders of the start pushing the boundaries of nonpoliti- opposition. And the terrorism conviction cized adjudication beyond the pockets that of Ukrainian filmmaker Oleg Sentsov and now exist only by virtue of the regime’s in- the murder conviction of Ukrainian poli-

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 Putin-Style tician Nadiya Savchenko helped make the from the international community are also “Rule of Law” Kremlin’s argument that Ukrainian ex- pressured to adopt and show & the Prospects for Change tremist nationalists were responsible for that they abide by the constraints in them. the conflict in Donbas and sought to sub- Civilian authoritarian regimes that lack the vert Russia’s newly acquired sovereignty brute force of military dictatorships or the over Crimea. A post-2012 anticorruption historically or religiously based legitimacy campaign has been used to neutralize one of monarchies are purportedly more likely of the main rallying points for the oppo- to adopt a constitutional legal regime.18 In sition: endemic bureaucratic and politi- the near future, Russia is unlikely to move cal corruption. toward constitutionalism as a result of ex- The frequent use of presidential pardon ternal pressure. Russia is a major recipi- or amnesty to release political prisoners ent of fdi (ranked fourth globally) and it underscores the information-delivering is hardly dependent on foreign aid.19 Even role of high-profile political trials. Mikhail though per capita fdi is low and could in- Khodorkovsky and Nadiya Savchenko were crease significantly if guarantees against ex- released directly by Putin and, in both cas- propriation were stronger, there is an ide- es, he cited mercy and compassion as the ational obstacle to domestic reforms in- drivers behind his decision. The pardons spired by external pressure. Russia’s return reiterate to the Russian public that, though to self-perceived great power status makes granted mercy, the prisoners deserved to be it reluctant to pander to the international prosecuted and convicted. It also emphasiz- community. Over Putin’s tenure, Russian es the power of the political sovereign over foreign policy has shifted gradually yet de- the legal process and, as a bonus, shows him cisively away from Yeltsin’s attempts to win as magnanimous. praise from the West. The “reset” with the But if all autocrats benefit from a depen- United States failed. The Crimean annex- dent judiciary and instrumental use of the ation triggered a standoff with Europe and law, why do some accept some constitu- the United States through reciprocal sanc- tional constraints? For some autocrats, tions. Interpretations of Putin’s motives in the balance tips toward constitutionalism the Ukrainian intervention vary. Some pre- through external pressure. Authoritarian dict that as a resurgent expansionist great regimes with economies heavily depen- power, Russia will continue trying to push dent on foreign direct investment (fdi) the West out of its former backyard. Others have an incentive to credibly constrain see the Kremlin pursuing “aggressive isola- themselves at least in the area of proper- tionism”: a policy aimed at isolating Russia ty rights in order to reassure investors that from Western influence to protect against they would not be expropriated arbitrarily. a meddling color revolution.20 Whether Singapore may owe its authoritarian consti- Putin’s reaction to the Euromaidan revo- tutionalism to this mechanism.16 Author- lution of 2014 was out of strength or weak- itarian regimes that need and expect sig- ness, both scenarios signal Russia’s rejec- nificant foreign aid from democracies that tion of Western conditionality. In this con- care about the rule of law also have an in- text, it is unlikely that Russia would accept centive to accept some of the constraints constitutional or judicial constraints in or- that come from having an independent der to placate the West or the broader in- judiciary. This is part of the story behind ternational community. Both the flaunt- the gradual empowerment of the judicia- ing of international law through the Crime- ry in Mubarak’s Egypt.17 Authoritarian re- an intervention and the 2015 law spelling gimes that seek legitimacy and recognition out Russia’s intention to disregard certain

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 echr decisions underscore the limits of ex- In November 2016, even an incumbent Maria ternal pressure. member of the government–economy Popova There could be domestic reasons for minister Aleksei Ulyukayev–was arrest- autocrats to choose to bind themselves ed, allegedly in the act of taking a $2 mil- through a credible constitution and an lion bribe. As the shock of Ulyukayev’s de- independent judiciary. They may use the tention reverberated through Russian so- constitution and the courts as tools to en- ciety, commentators focused on guessing hance legitimacy. Civilian and party-based why Ulyukayev lost political favor with the authoritarian regimes like Russia’s are pur- president, which faction pushed for his portedly more likely to choose this route downfall, and who could have protected toward power consolidation, because they him. The case underscores the widespread cannot rely on sheer force like military re- belief that, in Russia, legal repercussions gimes or on religion/tradition like monar- stem from loss of political status, rather chies.21 Autocrats may also use the consti- than vice versa. tution and an independent judiciary as a The problem with this form of manage- coordinating device. An independent ju- ment is that it creates significant uncertain- diciary can be used to keep the bureaucra- ty within the authoritarian coalition; it is cy in line. A credibly enforced constitution hard to know before a case plays out in the can clarify how power is allocated with- courts which faction has the upper hand. in the authoritarian governing coalition, High uncertainty makes the regime more which would reduce the potential for in- brittle. Factions are likely to pledge outward traelite conflict and political instability.22 allegiance to the autocrat, when in fact their Putin’s regime has used criminal law to support for his rule may be eroding. As suc- manage membership of the authoritarian cession time approaches, the lack of a cred- governing coalition. But since law is ap- ible coordination device is likely to lead to plied arbitrarily by a judiciary that lacks de significant political instability.23 facto independence, the legal process does As Putin’s age advances, the issue of au- not function as a coordination device, but thoritarian succession will loom ever larg- as a political instrument. The post-2012 er for Russia’s authoritarian elites. Some wave of criminal indictments of mayors, may try to pursue a policy toward the em- regional governors, and high-level federal powerment of the judiciary as an indepen- officials for malfeasance, corruption, and dent enforcer of the constitution in order abuse of office is a case in point. Members to pave the way for an orderly transition of the authoritarian elite who lose their of power. The inception of the rule of law political standing can expect to come un- and an independent judiciary is often at- der criminal investigation. They become tributed to an intertemporal bargain: cur- scapegoats in a public campaign orches- rent powerholders bind their own hands trated by the regime to gain public legiti- through an independent court in order macy. When different factions fight each to guarantee that their successors are other, each seeks to get the upper hand constrained as well.24 To be successful, by provoking a criminal case against the though, these elites will need either the opponent. Whoever does get indicted is indifference or the tacit support of the widely seen as having lost a political fight. Kremlin. The likelihood of the emancipa- Usually, the criminal investigation and the tion of the judiciary is closely linked to Pu- indictment follow, rather than precede, a tin’s (and his faction’s) view of the mode presidential decree dismissing the gover- of regime succession. If Putin intends to nor for loss of confidence utrata( doveriya). die in office or has a credibly loyal suc-

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 Putin-Style cessor up his sleeve, the Kremlin will re- only gradually, rather than through one or “Rule of Law” frain from ceding any discretionary pow- two major decisions. In the history of the & the Prospects for Change er to an independent judiciary. In theory, American judiciary’s emancipation from if Putin decides to retire without designat- political influence,Marbury v Madison is of- ing a successor and wants to guarantee im- ten seen as a momentous decision. How- munity from prosecution for himself and ever, its importance is clear only in hind- his faction, he may pursue judicial empow- sight. The U.S. Supreme Court was in a po- erment. In practice, however, such a sce- litically precarious position throughout nario is far-fetched. Yeltsin’s transfer of the nineteenth century.25 And in Ukraine, power to Putin and the former’s protec- Kyrgyzstan, and Georgia, what looked like tion from prosecution through personal, major breakthroughs when the supreme rather than institutional, guarantees is a courts ruled against political incumbents precedent that works against the institu- at the height of the color revolutions failed tionalization of an independent judiciary. to usher in eras of judicial independence. More broadly, Putin seems to favor per- What about the possibility of a demo- sonal, ad hoc, behind-the-scenes bargains cratic breakthrough ushering in constitu- over formal institutional solutions. Un- tionalism in Russia? If the Putin regime like Lee Kuan Yew, the Singaporean patri- fell amidst prodemocratic social mobili- arch who directed his country’s spectac- zation, rule of law and an independent ju- ular transformation in part by guarantee- diciary may crystalize as one of the dem- ing the security of property rights through ocratic revolution’s main goals. That does an impartial judiciary, Putin has overseen not mean this goal is easy to achieve, how- several rounds of property expropriation ever. Post-Euromaidan Ukraine offers a and redistribution. cautionary tale. As unlikely as it is, what would a policy Three years after former Ukrainian presi- aimed at moving Russia toward consti- dent Viktor Yanukovych’s ouster, the Euro- tutionalism look like? Russia has the ba- maidan’s objective of fundamental chang- sic formal institutions that are associated es to the judiciary remains elusive, despite with a constitutional regime and an inde- strong societal demand for it. The Ukrainian pendent judiciary, so no major institution- judiciary continues to be both de jure and al reforms are necessary. Still, some legis- de facto dependent on incumbent politi- lative initiatives that bolster the self-gov- cians. After a few months of struggle with ernance mechanisms for the judiciary and entrenched judicial elites, the new Porosh- remove formal channels for executive in- enko administration established control fluence over the courts may signal a com- over the courts by muscling in some new mitment to change. What is even more appointees and getting old elites to pledge necessary is a clear demonstration that allegiance. In early 2015, the parliamenta- the courts will not be used instrumental- ry assembly and its point man for the judi- ly and arbitrarily to achieve politically ex- ciary, Aleksei Filatov, outmaneuvered judi- pedient goals. This means, at a minimum, cial independence champions in the Rada– a moratorium on the use of criminal law led by the Samopomich-appointed deputy against leaders of the opposition. It also Rada speaker, Oksana Syroyid–and wa- means that the courts should be kept at tered down a bill that was going to increase arm’s length from major political contro- the formal independence of the judiciary.26 versies, so that they could start building The lower-levels of the judiciary have re- a track record of political impartiality. A frained from pushing for greater indepen- transition to constitutionalism can happen dence. Rank-and-file judges across Ukraine

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 demonstrated during the April 2014 judicial approach by politicians has put the judi- Maria chair elections that they were afraid to rock ciary in the precarious and humiliating Popova the boat: they overwhelmingly reelected position of being pressured and criticized their incumbent administrative superiors.27 from all sides. Judges have become scape- The outsiders who Poroshenko initially ap- goats for much of the pre- and post-Euro- pointed to clean up the prosecution were maidan dysfunction in the Ukrainian poli- pushed out by early 2016. David Sakvarelidze, ty. Their legitimacy has plunged below even a veteran of former Georgian president Yanukovych-era levels, as has their self-per- Mikheil Saakashvili’s judicial reform team, ception of autonomy. A 2015 survey by the was fired from his post as deputy prosecu- Center for Policy and Legal Reforms shows tor general for “grave violations of prosecu- that less than 10 percent of judges believe torial ethics.”28 Vitalii Kas’ko, another dep- that the Ukrainian judiciary is independent. uty prosecutor general, resigned and faced Even more damningly for the current gov- criminal charges for the alleged illegal pri- ernment, 46 percent of judges believe that vatization of a apartment. His support- political pressure on judges is now just as ers view his prosecution as political revenge strong as under Yanukovych and 29 percent by entrenched elites within the prosecution of judges believe that political pressure has who were threatened by his investigation increased under Poroshenko!30 into prosecutorial corruption.29 The first Ukrainian lesson for Russia is At the same time, civil society organiza- that a transition to constitutionalism and tions, including the Lustration Commit- judicial independence is harder to pull off tee, Maidan Self-Defense, and the Rean- than a transition to competitive politics, imation Package of Reforms (rpr), have free and fair elections, and a free press. been closely monitoring the performance The second Ukrainian lesson is that ju- of the judiciary. Some organizations, such dicial independence cannot be achieved as rpr, have engaged in advocacy and leg- through civil society pressure and moni- islative lobbying for changes to the institu- toring. Civil society activists become yet tional structure of the judiciary that would another source of extrajudicial interfer- increase its independence. Others, howev- ence in the judicial decision-making pro- er, have blurred the line between civil ac- cess. The result is an even more cowering tivism and vigilantism, especially through judiciary, rather than an emancipated one. “trashcan lustration” actions, in which ac- tivists physically attacked judges who were In short, it is unlikely that Russia will be- perceived as stooges of the Yanukovych re- come a rule-of-law or a rule-by-law state gime and forced them into trashcans. Ac- after Putin. Whether Putin plans to die in tivists who “monitored” judicial elections, office, loses power in a color revolution, in which rank-and-file judges voted for the or is replaced after the disintegration of chair of their court, often disrupted the his authoritarian coalition, the prospects election and tried to intimidate judges into for a transition to constitutionalism and voting for or against a certain candidate. an independent judiciary are slim. Both All this civic engagement happened against domestic and external pressures on Pu- the backdrop of numerous public opinion tin’s regime to abandon its instrumental polls that showed that an overwhelming use of the law are weak. Ironically, the po- majority of Ukrainians perceive radical ju- tential agents of change are Putin himself dicial reform as a top priority. and members of his authoritarian coali- The combination of societal demand for tion, rather than civil society. A gradual radical reforms and a business-as-usual move to authoritarian constitutionalism is

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 Putin-Style theoretically possible if Putin and his close is easier to imagine. If a credible challenge “Rule of Law” associates plan to leave politics and need to the Kremlin’s dominance emerges, & the Prospects for Change guarantees that the future political incum- the regime will reach for the courts as an bents would not use law and the pliable ju- instrument to suppress dissent. If the dan- diciary to prosecute them. Alternatively, ger rises through civil society mobiliza- a group of major business owners could tion, the regime will use administrative push for the rule of law as a way of protect- and criminal law to deal more harshly with ing their assets. In practice, however, Pu- ngos, social movement activists, and in- tin’s demonstrated preference for informal dividual protestors. The fines will get big- bargains over formal institutions as coor- ger, the verdicts longer, and the procedur- dination devices makes the first scenario al violations more blatant. If a charismat- unlikely. And the robber-barons-for-rule- ic politician with broad appeal emerges, of-law transformation has been expected either within or outside the authoritarian for the past two decades; but we have yet coalition, and harnesses ethnic Russian to see any indication that it will happen.31 nationalism, even show trials could make While positive change toward the rule a comeback. In that scenario, Russia could of law is unlikely, negative change toward veer into the legal nihilism characteristic even greater politicization of the judiciary of previous periods of its history.

endnotes 1 cited in “Vladimir Putin: dayu vam chestnoye partiinoye slovo,” Kommoer- sant.ru, August 30, 2010, http://kommersant.ru/doc/1495411. 2 For more on the concept of authoritarian constitutionalism, see Mark Tushnet, “Authoritar- ian Constitutionalism,” Cornell Law Review 100 (2) (2014): 391. 3 For more on judicial independence in authoritarian regimes, see Tom Ginsburg and Tamir Moustafa, eds., Rule by Law: The Politics of Courts in Authoritarian Regimes (New York: Cambridge University Press, 2008). 4 For more on the relationship between the autocrat and authoritarian elites, see Milan W. Svolik, The Politics of Authoritarian Rule (New York: Cambridge University Press, 2012). For more on con- stitutions and the courts as a coordinating institution, see Tom Ginsburg and Alberto Simpser, eds., Constitutions in Authoritarian Regimes (New York: Cambridge University Press, 2013). 5 Gordon Silverstein, “Singapore’s Constitutionalism: A Model, but of What Sort?” Cornell Law Review 100 (1) (2015): 15. 6 “Putin Has Allowed the Constitutional Court to Ignore the Decision of the echr,” bbc, De- cember 15, 2015, http://www.bbc.com/russian/news/2015/12/151215_putin_constitutional_ court_echr. 7 The echr decision is available at European Court of Human Rights, “Opposition Activist’s Conviction of Embezzlement: Result of Arbitrary Application of the Law,” press release, echr 071, February 23, 2016, http://hudoc.echr.coe.int/app/conversion/pdf?library=EC HR&id=003-5307101-6607285&filename=Judgment%20Navalnyy%20and%20Ofitserov%20 v.%20Russia%20-%20conviction%20of%20opposition%20activist%20.pdf. 8 See Jeffrey Kahn, “Report on the Verdict Against M. B. Khodorkovsky and P. L. Lebedev,” Jour- nal of Eurasian Law 4 (3) (2011): 321. 9 See Gulnaz Sharafutdinova, “The Pussy Riot Affair and Putin’s Démarche from Sovereign Democracy to Sovereign Morality,” Nationalities Papers 42 (4) (2014): 615–621.

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00435 by guest on 27 September 2021 10 5th Column, “The War (Art Group),” http://xn--80aa3aekaebe4a6lc.xn--p1ai/orgs/org32.html. Maria Popova 11 Timothy Frye, “The Two Faces of Russian Courts: Evidence from a Survey of Company Man- agers,” East European Constitutional Review 11 (2002): 125. 12 Kathryn Hendley, “Justice in Moscow?” Post-Soviet Affairs 32 (6) (2016). 13 See Maria Popova, “Watchdogs or Attack Dogs? The Role of the Russian Courts and the Cen- tral Election Commission in the Resolution of Electoral Disputes,” Europe-Asia Studies 58 (3) (2006): 391–414; and Maria Popova, Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine (New York: Cambridge University Press, 2012). 14 Alexei Trochev, “Suing Russia at Home,” Problems of Post-Communism 59 (5) (2012): 18–34. 15 Sharafutdinova, “The Pussy Riot Affair and Putin’s Démarche from Sovereign Democracy to Sovereign Morality.” 16 Gordon Silverstein, “Singapore: The Exception that Proves Rules Matter,” in Rule by Law: The Politics of Courts in Authoritarian Regimes, ed. Tom Ginsburg and Tamir Moustafa (New York: Cambridge University Press, 2008), 73–101. 17 Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (New York: Cambridge University Press, 2007). 18 David Law and Mila Versteeg, “Constitutional Variation among Strains of Authoritarianism,” in Constitutions in Authoritarian Regimes, ed. Tom Ginsburg and Alberto Simpser (New York: Cambridge University Press, 2013), 171. 19 Kalman Kalotay, “The Impact of the New Ruble Crisis on Russian fdi,” Baltic Rim Economies– Bimonthly Economic Review 1 (2015): 31–32. 20 Ivan Krastev and Stephen Holmes, “Russia’s Aggressive Isolationism,” The American Interest 10 (3) (2014). 21 Law and Versteeg, “Constitutional Variation among Strains of Authoritarianism,” 174. 22 Ginsburg and Simpser, eds., Constitutions in Authoritarian Regimes, 10. 23 Henry E. Hale, “Formal Constitutions in Informal Politics: Institutions and Democratization in Post-Soviet Eurasia,” World Politics 63 (4) (2011): 581–617. 24 Douglass C. North and Barry R. Weingast, “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England,” The Journal of Eco- nomic History 49 (4) (1989): 803–832. 25 For a discussion of the slow process of building an independent and powerful judiciary in the United States, see Justin Crowe, Building the Judiciary: Law, Courts, and the Politics of Institutional Development (Princeton, N.J.: Princeton University Press, 2012). 26 Maria Popova, “Ukraine’s Judiciary After Euromaidan: Continuity and Change,” Comparative Politics Newsletter 25 (2) (2015): 29–32. 27 Maria Popova, “Ukraine’s Judicial Reforms,” VoxUkraine, December 15, 2015. 28 “Ukraine’s Deputy Prosecutor General David Sakvarelidze Fired,” Ukraine Today, March 29, 2016, http://uatoday.tv/politics/ukraine-s-deputy-prosecutor-general-david-sakvarelidze -fired-620102.html. 29 “‘Housing Problem’: Why the gpu is Investigating the Case against Vitali Kaska,” Segodnya, April 14, 2016, http://www.segodnya.ua/politics/pnews/intervyu-s-vitaliem-kasko-707496.html. 30 “Judicial Reform: Public Opinion Poll, Judges and Experts Surveys,” Centre of Policy and Legal Reform, http://pravo.org.ua/en/news/20871053-judicial-reform-public-opinion-poll,-judges -and-experts-surveys. 31 In his contribution to this volume, Stanislav Markus discusses why Russian oligarchs have accepted the high-risk/high-reward environment of Russia’s current politicized legal regime.

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