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Preliminary observations on the official visit to the Russian Federation by the Special Rapporteur on the independence of judges and lawyers

Moscow, 25 April 2013

Members of the press, ladies and gentlemen,

I am very happy to be here with you today and share my preliminary observations at the end of the 11-day official visit I carried out in my capacity as UN Special Rapporteur on the independence of judges and lawyers.

The purpose of my visit was to assess, in a spirit of co-operation and constructive dialogue, both the achievements and challenges of the Russian Federation in ensuring the independence and impartiality of the judiciary and prosecutions services, as well as the free exercise of the legal profession. I have also focused on three key-issues: safeguards for and protection of the independence of the actors of the justice system, including judges, lawyers and prosecutors; the fair and proper administration of justice; and access to justice.

Today I will confine myself to a few preliminary remarks and considerations. I will further develop my considerations and assessment in a written report, in which I will also formulate recommendations. I will present this report at the 26th session of the United Nations Human Rights Council in June 2014 in Geneva.

Let me begin by thanking the Government of the Russian Federation for inviting me to conduct this official mission and for their extensive work in facilitating a comprehensive and interesting programme of meetings and visits in Moscow, Saint-Petersburg, Rostov-on-Don, Azov, and Nizhny Novgorod, with full respect for the independence of my mandate.

I would also like to use this opportunity to underline that I am an independent expert who reports to, and advises, the UN Human Rights Council and the UN General Assembly. Although appointed by the Human Rights Council, I am not employed by the United Nations and the position I hold is honorary. My independent status is crucial in order to be able to fulfil my functions in all impartiality.

During my visit, I had the opportunity to hold meetings with a number of senior Government officials, including the Deputy Minister of Justice, the Deputy Minister of Internal Affairs, the Governors of Saint-Petersburg and the Rostov region; the Chair of the Constitutional Court; the Chief Justice of the Supreme Court; the Deputy Chair of the Supreme Court of Arbitration; judges and justices of the peace of different courts; the Chair and members of the High Qualifications Board of Judges; the Deputy Prosecutor General, as well as members of prosecution services in the regions; the Chair and members of the President’s Council for Civil Society and Human Rights; the Chair of the Civic Chamber Committee on Citizens’ Security and Interaction with Law Enforcement and Judicial Bodies; the Russian Federation Commissioner for Human Rights; the Commissioner for Human Rights of Saint-Petersburg; the Commissioner for Human Rights of the Rostov region; the Commissioner for Human Rights of the Nizhny Novgorod region; the Rector of the Russian Academy of Justice; lawyers and members of bar associations; non-governmental organizations; and United Nations agencies. I would like to seize this opportunity to thank all the persons and institutions I met for their time, warm hospitality, and, above all, the wealth of information they shared with me.

First of all, I would like to welcome the various legislative, administrative, institutional and practical measures taken to improve the promotion and protection of human rights in the Russian Federation, and in particular the independence of the judiciary and the administration of justice. The judicial reform in the context of the 2007-2011 Federal Special-Purpose Programme for the Development of the Judicial System in the Russian Federation, the establishment of the National Working Group on Judicial Reform and the adoption in 2009 of the Law “On the securing of access to information on the activities of the courts of the Russian Federation”, inter alia, constituted welcome developments.

The establishment of the Investigative Committee in charge of investigations, separate from the Prosecution services, giving effect to a recommendation from the United Nations Committee against Torture, was also a positive step. So was the adoption, on 30 April 2010, of the Federal Act on Compensation for Infringement of the Rights to Access to Legal Proceedings or Enforcement of a Judicial Act within a Reasonable Period.

At the same time, and after having substantially raised judges’ salaries, the Russian authorities have undertaken significant efforts, and spent important amounts of resources, to improve the working conditions of judges and modernize the administration of justice, including court premises and technical equipment. The use of technology, including internet, databases, and videoconferencing, are welcome developments and should be streamlined throughout the country at both federal and regional levels.

Despite these positive developments aimed at ensuring the separation of powers and the independence and impartiality of the judiciary, several concerns remain.

Judicial independence and separation of powers

The judiciary serves as an essential check on the other branches of the State. It serves as a safeguard against breaches to the law committed by the executive and the legislative powers. Similarly, the judiciary plays an important role in ensuring that the law applies equally to everyone, in controlling the constitutionality of laws and their compliance with human rights and fundamental freedoms.

Judicial independence and the rule of law in a democratic society

Judicial independence is a prerequisite to the rule of law, which requires that everyone from the individual to the government be accountable to the law. The rule of law requires that laws are publicly promulgated, equally enforced and independently adjudicated. In this sense, an independent judiciary is essential if the courts are to fulfil their role as guardians of the rule of law and to ensure that everyone, including State officials, is accountable. As Special Rapporteur I have continuously underlined the importance of the independence of the judiciary and the legal profession for achieving respect for the rule of law and democracy.

It is also important to remember that the requirement of independence and impartiality does not aim at benefitting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial. Integrity and accountability are therefore essential elements of judicial independence and are intrinsically linked to the implementation of the rule of law.

During my visit, I have heard several reports of direct or indirect threats and improper interferences and pressures on the judiciary, which adversely affect its independence and impartiality. The Russian Federation should take specific measures to guarantee the independence of the judicial system, protecting judges from any form of political influence in their decision-making. One important way this could and should be done is through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them.

The notion of an independent tribunal requires that the judiciary be free from any sort of control from the executive. It is therefore necessary to protect judges against conflicts of interest and intimidation.

In Russia, the mind-sets of judges themselves play an important role in defining their individual independence. It seems that some judges are still under the influence of the old Soviet system and keep ties with the executive and prosecutorial authorities that have become so strong that the lines separating the different powers of the State have blurred.

The lack of adequate training and professional knowledge means that judges are more easily influenced. The lack of appropriate capacity-building initiatives thus has a direct impact on judges’ capacity to render justice independently and impartially. As a strong supporter of training and continuing education for the actors of the justice system, including judges, prosecutors and lawyers, I cannot overemphasize the importance of trainings in human rights law, international norms and jurisprudence not only in the Russian Federation but also abroad.

Conditions of service

As mentioned earlier, in order to safeguard judges’ independence, their status, including their term of office, independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

In the Russian Federation, the material conditions of service of judges of the federal jurisdiction have improved dramatically in the past years. However, at the level of the regional jurisdiction, and in particular that of justices of the peace, the introduction and implementation of measures aimed at improving the conditions of service seem to have taken more time and appear to be less advanced.

The workload of judges also remains a matter of concern and can greatly vary depending on the region where they work and the courts in which they sit. It was reported to me that in most instances judges are overworked and this can have a significant impact on the quality and impartiality of their rulings. Judges’ work is very demanding but the prestige of their position has been declining.

Security of tenure

Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exist. In this context, the abolishment of the three-year probation period at the beginning of a judge’s career was an important step to ensure their independence. Yet, fixed-term mandates still exist for the justices of the peace at the regional jurisdiction level.

Judicial appointment

Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In this context, I am concerned that the current appointment mechanism for judges may expose them to political and undue pressure. Indeed, with the exception of justices of the peace, all judges are appointed by the President of the Russian Federation after recommendation by a Qualifications Board (federal or regional depending on the level of the vacancy). Such method of appointment can have a strong influence on judges’ attitudes and behaviour, in particular vis-à-vis representatives of the executive.

The Qualifications Boards could benefit from the presence of a member of the legal profession and a representative of the civil society in their composition. Any representation from the executive, and to the extent possible the legislative, should be avoided. Reforming the composition of the Qualifications Boards could enhance the transparency and impartiality of the appointment process for judges, and thereby the independence of the judges and the authority of the courts.

Discipline, suspension and removal

Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair and transparent procedures ensuring objectivity and impartiality set out in the constitution or the law. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. Judges have the right to a fair hearing and due process and shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. Decisions in disciplinary proceedings should be subject to an independent review.

In this light, I am concerned about the lack of an independent disciplinary mechanism for the judiciary, particularly in cases of corruption. Any violation committed by a judge has a higher impact because of the importance of judges’ position. At the same time, any disciplinary measure taken against a judge for reasons other than his or her incapacity or unfit behaviour violates the judge’s individual right to independence while it also constitutes an attack against the institutional independence of the judiciary.

I was informed that only the President of the court can decide to launch complaint proceedings against a judge. This provides him or her with a powerful tool to influence judges in his or her court. The President of the court also has a strong influence on the administration of justice in the court. This influence may prove problematic, especially when the President of the court maintains strong ties with other State authorities.

Assignment of cases

The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration. Nevertheless, I have heard concerns about the apparent lack of transparency in such procedures. In the general jurisdiction courts, it seems that there is no set and transparent system of allocation of cases, which is left in the hands of the President of the court. When cases are assigned in a subjective manner, the system becomes much more vulnerable to manipulation, corruption, external and internal pressure and interference. Thus, information and criteria on the assignment of cases should be clearly available to the public in order to counter suspicions of malpractice and corruption. In the arbitration courts, a sophisticated computer-based system for the administration and allocation of cases has been put in place. Such a system could be replicated at the level of the general jurisdiction courts.

Compliance with decisions of judicial authorities

As enshrined in international principles, it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. Decisions of judicial authorities must be respected and complied with. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to external revision.

Even though the Constitutional Court clearly stated in a decision that the non-execution of judicial sentences constitutes a violation of constitutional rights, the enforcement of some judicial decisions remains an issue in many instances. Execution services seem to lack the discipline required for discharging their functions effectively. In addition to a certain negligent attitude or carelessness, I was told that corruption could be important in those services.

Tailored measures are urgently needed to improve the effectiveness and transparency of the work of bailiffs and other actors in charge of enforcing judicial decisions. Specific measures also need to be implemented to properly enforce judgments of the European Court of Human Rights.

Lawyers

I would like to note that while lawyers are not expected to be impartial in the same way as judges, they must be as free from external pressures and interferences as judges are. When guarantees are not in place to enable lawyers to discharge their duties in an independent manner, the door is open to all sorts of pressure and interference, whether from public or private actors, including judges, who seek to have an impact on or control over judicial proceedings.

I was surprised to hear that on some occasions, lawyers only have a “cosmetic” role to play during trials, no matter how convincing their arguments are. Sometimes, it was reported to me, lawyers have to face the refusal of the authorities to provide them with meaningful answers to their questions, unimpeded private access to their client, access to transcriptions of court hearings and copies of material of the case, in some extreme cases, lawyers were not allowed on court premises.

The right to equality before the courts and tribunals, enshrined in article 14 of the International Covenant on Civil and Political Rights, guarantees the principles of equal access and equality of arms, and ensures that the parties to the proceedings in question are treated without any discrimination. Equality of arms means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant. This principle also applies to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.

In some regions of the Federation, lawyers are unlawfully targeted for discharging their professional functions. Such actions takes various forms, including threats, intimidation, attacks, groundless prosecutions, and in the gravest cases murder. Impunity of such acts of persecution has had, in some regions of the country, a “chilling effect” on other lawyers, negatively influencing the quality of their work, forcing them to renounce to certain kinds of cases, and working in the fear that they or their families may be at risk because of their work.

The basic principle of confidentiality of the lawyer-client relationship is also too often ignored. Although prohibited by domestic legislation, it seems that a practice that is developing in some regions is that of interrogating lawyers as witnesses, in order to prohibit their participation as part of the legal defence of an accused. Overall there seem to be a lot of obstacles placed in the way of lawyers.

Legal aid

Legal aid is an essential element of a fair, human and efficient system of administration of justice that is based on the rule of law. It is a foundation for the enjoyment of other rights, including the right to a fair trial and the right to an effective remedy, a pre-condition to exercising such rights and an important safeguard that ensures fundamental fairness and public trust in the administration of the justice system.

Legislation on free legal aid exists at the federal level in Russia. Yet, the scope of such legislation excludes non-criminal matters, as well as victims. The sum paid to a defence lawyer, which is provided by the State, is also too low compared to the work that has to be provided. As a result, appointed defence lawyers sometimes have a negative attitude or do not properly serve the interests of their clients. Those who accept to be State appointed lawyers are also usually less experienced and uncertain to be able to make a living on their own.

Non-governmental organizations often provide some level of legal aid for persons who are not covered under the federal law. The work they do is invaluable. In this context, I am concerned to hear about the so-called NGO law on “foreign agents” and the consequent searches and inspections that have started recently upon order of the Prosecutor General, seemingly without information on or suspicions of a violation having been committed.

I wish to encourage Russia to recognise and support the contribution of non-State actors in providing legal aid, and I recommend that the Government adopts all appropriate measures to ensure that non-State legal aid providers are able to carry out their work effectively, freely, autonomously and independently, and without any intimidation, harassment or improper interference.

Access to information

While progress in modernizing the administration of courts has been certain and the use of internet is widespread, I am still concerned that in some cases it is still difficult for the public to access the decisions taken. Yet, to gain public confidence, justice must not merely be done but must also be seen to be done and judges must not only be actually impartial they have to appear impartial to the public.

Rulings of the European Court of Human Rights concerning Russia should be officially translated and available on a State database, in order to allow their review and easy access. Reference to international and regional jurisprudence and norms is to be strongly encouraged.

I am grateful to the Government of the Russian Federation for inviting me to visit, enabling me to deepen my understanding of the issues related to my mandate. The Government’s invitation – and much of what I have learnt on my visit – confirms how seriously the issue of independence of judiciary is taken in Russia. While it is doing much, much more must be done.

Thank you for your attention.