Comparative Politics

The following guest post is from McGill University political scientist Maria Popova, the author of Politicized Justice in Emerging Democracies: a Study of Courts in Russia and Ukraine (Cambridge University Press, 2012).

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On July 18th, Russia’s best known oppositionist, anti-corruption blogger Aleksei Navalny was convicted of embezzlement and sentenced to 5 years in prison. His co-defendant, Pyotr Ofitserov received 4 years. After Judge Blinov from Kirov’s Leninskii District Court finished reading the verdicts, the convicted were taken into custody and sent to jail, where they would await the results of their appeals. Few were surprised by the guilty verdicts, but many had expected the sentences to be suspended, rather than effective. Certainly, no one expected what happened next. On July 19th, the prosecutor asked the court to release Navalny and Ofitserov on bail. The prosecutor argued that Navalny had a constitutional right to contest the September 2013 Moscow mayoral election, for which he had been registered as an official candidate only a couple of days earlier. Judge Blinov immediately granted the prosecution’s request and by the end of the day Navalny and Ofitserov were back in Moscow, where they addressed a crowd of jubilant supporters. The unprecedented nature of what happened in the provincial Russian courtroom cannot be overstated. Releasing a convicted person on bail, although possible under the Russian Criminal Procedural Code, is an exceedingly rare occurrence. Rare, as in there may have been a handful of cases in recent memory. A request for bail from the prosecution, rather than from the defense, experienced Russian jurists claim, is a first!

The convictions and the swift bail release are perceived in Russia and abroad as an indication of the subordination of the judiciary to political incumbents, rather than as a reflection of the vagaries of the legal process. The bail release is not an unequivocal victory for the defendants, but, at best, a short respite. Russian acquittal rates are below 1% and appellate courts usually decrease, rather than increase, this percentage. At worst, as a prominent Russian lawyer, Genri Reznik, put it, by convicting and then releasing Navalny, the regime showed who was boss. With the convictions the regime turned the court from an adjudicative organ into a punitive one and with the bail release it turned the prosecution from an accusatory organ into one employed by the defense (text in Russian available here).

What comes next for Navalny? He has re-stated his intention to contest the Moscow mayoral election and his determination to win the race. However, he may not be able to finish the campaign and stand in the election due to the conviction that is now hanging over him. Russian municipal election law prohibits persons with convictions “that have entered into legal force” from standing in an election. If and when Navalny’s conviction “enters into legal force”, the Moscow election commission will be legally obligated to take down his registration and remove him from the ballot. The question is when the conviction can or will enter into force. According to the Russian Criminal Procedural Code, first-instance court convictions enter into force 10 days after they have been issued, if there is no appeal filed. We can assume that Navalny will appeal. Then the conviction enters into force on the day the appellate court upholds it. If the appellate court in Kirov upholds his conviction before election day (September 8th), Navalny will be out of the race and will not be allowed to continue campaigning. The prosecution and the Kirov court moved very quickly with the bail hearing, so it appears possible that the appellate court could rule on the appeal soon.

Generalizing from the Navalny trial about the functioning of the entire Russian judiciary is problematic, not only because this is only one case, but also because of the very high salience of the Navalny prosecution. Research that goes beyond the high-profile cases has painted a more mixed picture of the performance of the Russian judiciary. Yes, there is evidence that Russian judicial independence is circumscribed by strong discipline within the judicial hierarchy, court financing by the regional authorities, practices of ex parte communication, and other structural conditions (Solomon Jr and Foglesong, 2000; Baird and Javeline, 2010; Ledeneva, 2008; Popova 2012). But Russian courts at all levels are also routinely used by comparatively high and ever increasing numbers of Russian citizens to settle civil and business disputes and to seek redress for the unlawful behavior of state representatives (Solomon Jr. 2004, Hendley, 2002, 2004, Trochev 2012, etc.). Moreover, a comparison of Russian and Ukrainian judicial output in the late 1990s-early 2000s suggests that in two important legal issue areas (electoral registration disputes and defamation lawsuits against media outlets), the Russian courts were less politicized than the Ukrainian courts (Popova, 2010; Popova 2012). In Russia, politically powerful plaintiffs had less advantage over other plaintiffs when they went to court.

Still the timing and outcome of the Navalny case have important implications for the scholarly literature on the sources of independent courts and the rule of law. Navalny’s business activities in Kirov go back to 2009-2010, but a criminal investigation against him was launched only in May 2011. By then Navalny’s popularity as the creator of the anti-corruption project RosPil was on the rise and his description of Putin’s United Russia party as the “party of swindlers and thieves” had struck a chord on Russian social media and in the Western press. In March 2012, the Kirov investigators closed the inquiry due to insufficient evidence, only to reopen it in July, at the explicit urging of the chief of the Investigation Committee in Moscow, Alexandr Bastrykin. The trial opened in April 2013. By then Navalny had stated his presidential ambitions and had been officially elected as the leader of an opposition movement that was drawing hundreds of thousands of protestors to the streets for the first time in Putin’s era. Thus, Navalny’s conviction suggests that weakening incumbents in hybrid regimes and developing democracies intensify their use of the courts to achieve political objectives. Thus, as political competition intensifies in these regimes, the level of judicial independence declines (Popova, 2010, 2012 and Aydin, 2013).

Finally, the Navalny case provides some fodder for the long-standing debate about the best way to allocate property rights after the communist collapse. After Navalny’s conviction, former Russian finance minister, Alexei Kudrin commented that each Russian enterprise manager could be convicted on similar charges (read Kudrin’s comments in Russian here). This comment belies the stubbornly durable negative impact of the crooked privatization of the 1990s on the security of property rights in Russia to this day. Scholars have already argued that the corrupt privatization of the 1990s reduced the demand for the rule of law, because it reinforced existing corrupt networks (Hoff and Stiglitz, 2004) and because the new property owners invested in private protection, rather than in public institutions (Sonin, 2003). The Navalny prosecution, like the Khodorkovsky trials before it, also raises the possibility that the pervasive practice of asset stripping through non-transparent tenders makes any prosecution for related economic crimes at least minimally plausible. If large sections of the public believe that asset stripping is ubiquitous, selective and politicized prosecution on such charges perhaps becomes easier to pull off.