On March 17th, 2016, Professor Gordon Smith gave a REEEC New Directions lecture entitled “Plus ça change: Legacies of Soviet Legal Culture in Russia Today.” Smith is Professor Emeritus of Political Science at the University of South Carolina. He has written ten books and over fifty articles and book chapters on Russian politics and law. In his lecture, Smith discussed the historical and contemporary functions of the procuracy in the Russian legal system.
In the 25 years since the fall of the Soviet Union, the United States has spent billions of dollars in efforts to reform the Russian legal system. There have been several successes, including Boris Yeltsin’s 1996 suspension of death sentences and the modernization of legal education in Russia. According to Smith, however, “the core of the justice system” and most prominent legal institution in Russia—the procuracy (prokuratura)—“hasn’t changed that much.”
The office of procurator (which also means “prosecutor”) was originally established by Peter the Great in 1722: “the prosecutors were to be the eyes and ears of the tsar.” Although the procuracy was scaled back by reforms in 1860, it was resurrected in 1922 with essentially the same form, as a “control to monitor the implementation of the laws… a single, unified organization, independent of local and regional authorities.” In the Soviet era, it was tasked with the supervision of secret police and the courts, as well as that of the legal behavior of government bodies, enterprises, and individuals. The procuracy “survived the collapse of the Soviet Union virtually intact,” and has continued to exist as an institution with broad legal powers in most post-Soviet states.
In addition to the executive, legislative, and judicial branches, the Russian system also has the procuracy, which “in some senses supersedes all of [the others].” Smith noted that the procuracy today might be even more powerful than in Soviet times. In effect, it no longer has to answer to anyone but the president. The privatization of the economy also “opened a huge realm for Russian prosecutors to investigate corruption” in such areas as stock markets, fraud, and corporate governance. Finally, the newly established political institutions embedded in the 1993 constitution (the parliament and presidency) called for elections and some degree of public scrutiny, which the procuracy largely avoided. Smith also observed that the procuracy is “an incredibly insular institution”—it is made up of 15 prosecutors, who “have an average length of service in the procuracy of 33.7 years.”
Following Douglas North, Smith argued that “institutions aren’t just bureaucratic structures—embedded norms and practices can become institutions in themselves, and can become more resistant to change than bureaucratic structures.” He identified three such trends: political interference in the legal process, widespread accusatorial bias, and the exclusion of defense attorneys from the process of pretrial prosecutorial collection of evidence. These entrenched informal norms are legacies of the Soviet (or even tsarist) past that still exist today.
Smith noted that in modern-day Russia, it’s essentially “rule by law” rather than “rule of law.” Political interference in the legal process is endemic, giving rise to such terms as “Basmanny justice,” named for the Moscow district court where politically sensitive cases are heard. Such interference from the Kremlin “sends a message to all of Russia.” A recent public opinion poll found that over 50% of Russian citizens believe that the actions of prosecutors are directed from above (i.e. by Putin) or motivated by their own interests.
According to Smith, accusatorial bias is a systemic informal practice in Russian jurisprudence: 99.5-99.8% of criminal cases result in a conviction. In criminal law cases, the defense has a very weak role. Suspects are brought before judges within 48 hours of their apprehension, and in 90% of cases, the judge approves prosecutorial or police requests to hold them in pretrial detention. Although pretrial detention is supposed to last no more than a month, extensions can go on for up to a year and are approved at a 97% level. At this point, suspects have no right to a court-appointed attorney unless they are juveniles or mentally disabled. Smith noted that (according to a UN expert’s 1994 report) pretrial detention in Russia amounts to torture: “I’m convinced it’s brutal by design, because it’s intended to get a confession out of people.” The high conviction rate creates another incentive to confess (if you’re going to be convicted anyway, you might as well get it over with), as does the fact that labor camps have better conditions than pretrial detention.
While suspects remain in pretrial confinement, prosecutors gather evidence and build their cases. Defense attorneys can look at this information later, but they aren’t allowed to be there while this process occurs (let alone to check in on their clients and see if they’re being tortured). According to Smith, “even before the judges see the defendant in court for the first time, they’ve already read a mountain of information that does nothing but create a prejudicial picture of events.”
Smith said, “In every country that I work with prosecutors, and even in the US, prosecutors brag about their conviction rates… acquittals are not good things to them.” Russian prosecutors have told him that “a guilty person going free is much worse than an innocent person going to jail”—they don’t think they’re doing their job unless they get a conviction, and confessions make prosecutors’ jobs easy. According to Smith, at least 30% of all criminal suspects in Russia are submitted to torture, usually within the first two hours after being apprehended by police. Only 3.2% of cases of police misconduct lead to criminal investigation.
Matthew McWilliams is a REEES M.A. student and a FLAS Fellow for the 2015-16 academic year for the study of Russian.