Verdict in Russian Courts: Guilty Until Proven Guilty

On paper, Russia has a judicial system arguably as free and fair as those in Europe or the United States. Of course, the same was said about the Soviet Union. Even Stalin sought to give his paranoid purges the imprimatur of due process.

But the law is more than what appears on paper. It is also a set of practices and attitudes that reveal how a society balances justice, fairness and authority. And in recent weeks, several court cases have sown new doubts about whether Russia's written concepts of justice have, in practice, taken root in a legal framework still ossified by attitudes and practices left from Soviet times.

Only two years ago Russia adopted a new criminal code - parts of which were written by President Vladimir V. Putin, a lawyer by education. It introduced such legal fundamentals as the rights of habeas corpus and trial by jury, and the guarantee against double jeopardy. Inherent in those, however, is the primacy of the law over the state. Plenty of evidence has been emerging lately that in today's Russia the state is not yet prepared to cede control.

When juries began acquitting a few defendants - the rate was just 14 percent last year, but that was still a huge jump from nearly zero in cases that had been decided by judges - prosecutors simply began appealing the acquittals and winning. The Supreme Court has been overturning half of the jury acquittals it hears on appeal, lawyers say. The most recent case was that of Valentin V. Danilov, a physicist charged with espionage for selling information that was not classified. He was ordered to undergo a new trial, after a jury acquitted him. So much for banning double jeopardy.

Sergei Y. Vitsin, a professor of law and deputy chairman of Mr. Putin's advisory committee on the judiciary, said Russian justice has made enormous progress in amending its Soviet-era laws, but is still struggling to overcome deeply ingrained attitudes through all ranks of a society that expects the law to be subservient to politics.

"One can adopt new laws," he said. "One can build new courthouses. One can adopt legislation that changes judges' status. But it is impossible to change what has been called here and in other countries legal consciousness. Well, perhaps it can be done, but only gradually, not quickly."

Mr. Vitsin has worked on judicial reform almost since Russia emerged from the Soviet Union. He described the process as evolutionary, alternating between periods of progress and reversal, and he expressed disappointment that the promised judicial revolution has yet to materialize. "It is sad to admit," he said, "but sometimes we do not understand how deeply we are affected by the past."

The case of Yukos Oil and its founder, Mikhail B. Khodorkovsky, whose trial began last week, has been a case study in the relationship of law and politics.

Mr. Khodorkovsky is Russia's richest man, and Mr. Putin has come to see him and other oligarchs as something of a danger, a potentially independent power that needs reining in. A year ago, Mr. Khodorkovsky was charged with fraud and tax evasion. He may or may not be guilty, but virtually no one in Russia believes he has any chance of a fair trial on the merits. As a result, his lawyers have argued much of their case in the court of public opinion - especially that of the West. He is fortunate in that regard. He can afford a multinational team of lawyers to publicize every step in a judicial proceeding that they denounce as a political show trial.

Mr. Khodorkovsky's trial was not the only sensational proceeding that opened last week with overt signs of political influence and volumes of "evidence" with disputable legal relevance. In another courthouse in Moscow, less closely watched by the international media, two museum directors and an artist went on trial charged with inciting ethnic hatred by "conspiring" to organize an exhibition of art.

The charges were brought after the Russian Orthodox Church criticized the exhibition, held at the Sakharov Museum, as antireligious. (Indeed, the show's title was "Caution! Religion.") The parliament then passed a resolution demanding prosecution. The witnesses included six men who destroyed many of the artworks four days after the exhibition opened in January 2003 (and were later cleared of criminal charges stemming from the vandalism).

A lawyer, Yuri M. Schmidt, protested in court on Tuesday that the investigation had been so sloppy, the indictment so vague, that it was impossible even to mount a defense. The charges did not specify which of the artworks had incited hatred and against whom, he said. He added pointedly that in Soviet times, prosecutors at least knew how to build a case against dissenters, citing the famous 1965 trial of the writers and satirists Yuli M. Daniel and Andrei D. Sinyavsky.

"It was clearly stated which works, which lines of those works, were accused of having anti-Soviet content," Mr. Schmidt said of the Soviet-era case.

The next day, the judge appeared to agree that the case was weak. But rather than dismissing the charges outright, she gave the prosecutors more time to refine the charges - another practice the 2002 legal reforms were supposed to end.

Although the new criminal code was intended to create an adversarial process in court, prosecutors still wield tremendous control over criminal cases and even judges, who rarely overrule them. Without judicial independence, prosecutorial abuses have proliferated, they say. In less celebrated cases, justice in practice remains arbitrary, selective and, as before, subject to political influence, defense lawyers and human-rights campaigners say.

"Unabated and unpunished police torture, coerced confessions and convictions and trumped-up charges remain rampant across Russia," Anna Neistat, the director of the Moscow office of Human Rights Watch wrote in a statement on Friday arguing that the legal system reflects a broad rollback of rights under Mr. Putin.

Defense lawyers and others repeatedly cite cases in which judges take political guidance before making rulings. Such accusations are difficult to prove, but there are times when it is clear that decisions have been crafted in advance. The Supreme Court, for example, issued a written ruling in Mr. Danilov's case only minutes after hearing arguments.

At times judicial conduct can verge on the tragicomic. At a hearing on Wednesday to decide whether to uphold a ban on the Moscow chapter of the Jehovah's Witnesses, the cellphone of one of the three appellate judges went off. She did not answer the phone, but fiddled with it for a minute or so, indifferent to the arguments being made before her. After a four-hour session, the judges returned their verdict - upholding the ban - in five minutes.


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