Bill Bowring is Professor of Law at Birkbeck College, and his new book, Law, Rights and Ideology in Russia, has recently been published by Routledge. He is also a practicing barrister with wide-ranging experience of taking cases to the European Court of Human Rights. In part one of a two-part interview, Josh Black and P. Hansbury sought his opinions on the state of the Russian legal system, Russia’s relations with Europe, and his experiences defending human rights and minorities in the former Soviet Union.
Professor Bowring, you’ve written quite extensively about the connection between law and ideology. Is ‘Sovereign Democracy’ more than democracy without rights?
In my latest book I make a case for the focus of Putin and the people around him on sovereignty as being derived partly from the influence of the German legal theorist, the “Nazi crown jurist”, Carl Schmitt. I think that has a direct influence on what is going on in the Constitutional Court and the relationship between Russia and the European Court of Human Rights (ECtHR).
I think Sovereign Democracy is very closely linked with Schmitt’s decisionism and also to Russian messianism (exceptionalism) and spiritual opposition to the West on religious grounds.
Medvedev and Putin talk differently about the law and politics, although they may not act wholly differently. Do terms like ‘dictatorship of the law’ and ‘legal nihilism’ betray a meaningful difference between the two?
Putin has not talked about the dictatorship of the law since 2003. In that period between 1999 and 2003, there was a real process of legal reform. I was involved in the drafting of the new Criminal Procedural Code and there were real attempts to bring Russian into line with Council of Europe standards.
Putin not only talked about the dictatorship of the law, he also referred to people like the nineteenth century legal reformer, A.F. Koni – to whom he most certainly does not refer now. That period of legal reform came to a grinding halt with the arrest of Khodorkovsky in October 2003, I would say.
What Medvedev was referring to as ‘legal nihilism’ is vast corruption, not just financial, but the undue pressure which is brought to bear on the legal system. Under his aegis, a very powerful report was published on what that meant. What’s shocking now is that there is a third Yukos case, and that many of the people who worked on the report are having to leave the country. These are top people.
Has Medvedev had a significant or discernible impact?
I think that figures show that every significant reform he proposed was blocked. Many of his decrees were not carried out and the decriminalisation of libel is being reversed. The reforms in the Supreme Commercial Court were a flagship of the Medvedev period and it looks as though they will also go.
Russia has a very high conviction rate. Does that speak to a lack of judicial independence?
Well, it’s slightly more complicated than that. The USA also has a very high conviction rate, as do various other countries. In Russia, the acquittal rate for jury trials is around twenty per cent, which is about normal. The problem in Russia is the form of the inquisitorial system and the lack of an adversarial system. By the time a case gets to court the indictment is not one page setting out the nature of the offence, it is potentially hundreds of pages of all of the evidence. The judge in most cases will take the view that everything has been looked at. Frequently, the judge will refuse all defence requests for witnesses or cross-examinations and may read out the indictment rather than writing their own judgement, as was shown to be the case in the third Khodorkovsky trial.
What do you make of the Navalny trial?
The most convincing speculation is that Navalny was unexpectedly set free pending his appeal, specifically so that he can add legitimacy to the Mayoral elections in Moscow – and having lost, can be sent back to prison. Mr Peskov, Putin’s spokesman, says that anyone who thinks his boss had anything to do with Navalny’s release understands nothing about Russia… in my view they understand everything.
How far have the ex-Soviet states gone in incorporating European-style protections for minority groups?
That’s quite a complicated question. The five Central Asian states have not and will not join the Council of Europe (but are members of the OSCE). One can say that all the states that have joined the Council of Europe are very much engaged in all sorts of ways. Part of the paradox is that these states put up with very intrusive investigations under the Strasbourg system, plus the ECtHR and the European Convention for the Prevention of Torture. This latter Treaty gives the European Committee for the Prevention of Torture the right to vist the relevant state unannounced, and to have access rights to all places of detention without warning.
On the other hand, there are very serious shortcomings in interpretations and many of these have to do with holdovers from the Soviet period, in particular the penitentiary system.
Are there parallels between the hostile attitude to the Council of Europe legal system shown by Britain and Russia?
Britain is very hostile to written bills of rights and is still the only country to defy a ECtHR judgement. Britain refuses to countenance social and economic rights, but these are written into the Russian constitution, as they are in many European countries.
There are strong parallels in that both countries were empires – Britain is just coming to terms with what was done in Kenya. There are parallels between Northern Ireland and Chechnya, in my view.
Russia is constantly worrying about what it is for, its mission or destiny, and also that it might break up even further. I am regularly visiting the Mari people, who live by the Volga and have just had a very hostile executive imposed on them. A lot of the research I have done is on cultural autonomy in Russia. Russia is, of course, much bigger than Britain and therefore more complicated. There are different histories, but similar stresses and strains.
Is Russia wholly a difficult partner of Europe?
Russia always pays the compensation ordered when it loses cases at Strasbourg and there have been substantial changes in many areas. You buy any textbook, student textbook, or practitioner law book, and it will be absolutely full of European human rights case law. And, of course, Russia is part of Europe, whereas Britain pretends that it’s not and talks of Europe as if it’s the other side world, but Russians are very conscious that they are in both Europe and Asia.