The prosecutor and the judge – the key figures in legal proceedings – often strike an informal alliance in Russia, leaving the defendant no chance of an acquittal. However, the relationship is very hard to prove in a real-life situation, as few quantitative indicators are available to demonstrate how informal alliances work in a bureaucracy.
Alexander Libman (Frankfurt School of Finance and Management and the Russian Academy of Sciences), André Schulz (Frankfurt School of Finance and Management), and Vladimir Kozlov (the HSE) have analyzed the impact of informal judge-prosecutor alliances on criminal justice in Russia. They presented their findings in a report 'Judicial Alliances and Criminal Justice: Evidence from Russian Courts' at the HSE's international conference 'Studies of the Relationship between Institutions and Development in Russia: New Data and Approaches'.
The authors sought to determine how important informal alliances are in criminal proceedings and what circumstances contribute to their occurrence. The study focused in particular on the roles of the regional court chairperson and the regional prosecutor. Both are given broad powers: the court chairperson plays a major role in the appointment of new judges, and the prosecutor has direct control over his or her subordinates.
What prerequisites foster the development of informal alliances between judges and prosecutors?
The authors note that prosecutors, in contrast to court chairpersons, are more likely to relocate as part of the rotation process. Besides, a prosecutor's performance is judged by his or her conviction rate. ‘A distinctive feature of the Russian bureaucracy is that officials are expected to meet their performance targets, or even better, exceed them. Most developed countries do not use quantitative performance indicators in this setting’, they note.
A prosecutor seeking a conviction will use all means available. ‘A prosecutor has ample opportunity to appeal if dissatisfied with the sentence,’ the researchers explain. In contrast, a judge's career suffers each time his or her ruling is overturned on appeal. The authors argue that in cases where the prosecutor is likely to appeal, the judge may be inclined to coordinate his or her decision with the prosecutor's expectations. ‘An informal alliance is a good way of avoiding bureaucratic problems,’ the authors say. The Russian criminal law facilitates the indictment bias. As an example, the authors refer to Penal Code Article 159 on fraudwhich is often used for sentencing. ‘This article, due to vague phrasing, gives the judge a lot of discretion,’ the authors argue.
The authors also found that the degree of judicial repression in Russia varies across provinces and over time. ‘Once a prosecutor and a judge meet in the same city, they strike an alliance which can last for years,’ the authors say.
The conviction bias, however, varies over time. The authors examined available sentencing data from 2006 and 2010 in 79 Russian regions, and found sentences to be more repressive in 2006. ‘The chances of going to jail were higher than those of probation,’ the authors explain. In contrast, their findings from the 2010 data were different, suggesting a less repressive approach. ‘Judicial alignment was still significant, but it made less impact on sentencing – a shift observed between 2009 and 2010’, the report says.
Libman, Schulz, and Kozlov attribute this phenomenon to new personnel policies in the prosecutor's office. The high turnover of prosecutors observed between 2005 and 2007 began to slow down after 2007. The authors recall that in 2006 Yuri Chaika replaced Vladimir Ustinov as General Prosecutor. ‘Ustinov had introduced a rotation system whereby prosecutors spent less time in the same place. In addition, in the 1990s prosecutors were used in high-profile cases to facilitate the federal government's pressure on businesses and regional governors,’ note the authors. Under Chaika, governors were no longer elected but were appointed by the federal government, reducing the need for prosecutorial pressure and thus making it less important for prosecutors to move from place to place. ‘The late 2000s brought more stability to prosecutorial careers, and the judicial machinery was less repressive’, the authors conclude.
The authors admit that their conclusions may appear speculative, but their analysis of the available data reveals that repressive sentencing is associated with aggressive prosecution when prosecutors feelthat being lenient may undermine their career. The authors emphasize that informal relations play a big role in Russia's judiciary, but alliances may work in different ways, depending on career risks and bureaucratic incentives for prosecutors.
‘The findings are plausible. Medvedev's presidency also influenced the judicial system, making it less repressive against economic crime,’ commented Timothy Frye, Academic Supervisor of the HSE's International Center for the Study of Institutions and Development. Alliances between judges and prosecutors are a central problem in the Russian criminal justice system, according to Ella Paneyakh from the Institute for the Rule of Law at the European University in St. Petersburg.