Military Justice in Russia: Issues and Questions - by Peter H. Solomon, Jr., Professor of Political Science, Law and Criminology, University of Toronto
1Some years ago when I was conducting research for a book Soviet Criminal Justice under Stalin, I came to recognize the contradictory nature of military tribunals in the USSR, especially in the decade following World War II. On the one hand, from 1939 to 1956 these bodies served as the place of choice for handling cases of political repression (where the charges were usually unfounded or contrived). On the other hand, according to the oral testimony of émigré jurists of the time, Soviet military justice included some of the finest legal minds in the country, and in non political cases the chances of a fair trial were reportedly better than they were in the regular courts1.
2This particular contradiction represents merely an example of the broader dilemma associated with military justice. Even more than ordinary courts, military bodies embody a set of conflicting goals. Leaders in all types of political system need swift, effective, and reliable means of reaction to misdeeds on the part of soldiers and officers, whether specifically military or simply criminal in nature, all the more so at times of war. At the same time, they crave the legitimacy that flows from the assignment of punishments by a judicial body perceived to be fair. Striking a balance between reliability and fairness is not easy, and all too often military tribunals or courts fail to meet the standards expected of regular courts. The words of Clemenceau cited by William Fuller at the start of his article capture this pattern, as does the controversy over the military tribunals planned by the administration of George W. Bush for use in Guantanamo Bay.
3As a rule, military justice does involve different procedural rules than regular courts, and the balance of power between the sides favours the state. This is what makes the use of military justice attractive to authoritarian rulers seeking a forum where outcomes of hearings are for the most part preordained. Thus, during the tortuous implementation of the Russian judicial reform of 1864, a common response to trial outcomes that did not suit the regime was the transfer of jurisdictions (based on types of cases or unstable geographical regions) to the purview of military justice2. Similarly, when Stalin and Vyshinsky chose in late 1938 to end the use of police troika as an instrument of repression, they chose to make military tribunals the primary vehicle for political justice, which as a type of court seemed to confer an element of legitimacy.
4While military tribunals under Stalin played a subservient and predictable role in processing cases that were often contrived, military courts can operate on a fairer and less predictable basis, even in cases with political significance. The military courts of Tsarist Russia between 1881 and 1903, a period of expanded jurisdiction, convicted less than half of the accused person brought before them (according to data provided by Fuller). Military tribunals in Brazil in the fifteen years after the 1964 coup acquitted 55% of the alleged opponents of the regime brought before them. In Chile too decision to use military courts rather than simply apply force without judicial sanction tended to produce fairer outcomes3.
5During the post Stalin period military tribunals in the USSR stopped playing a major role in political repression, as most cases involving dissident challenges to the regime were handled in regular courts, and the tribunals achieved a new level of professionalism, reputation notwithstanding. As trusted bodies, the tribunals heard not only criminal cases involving soldiers and officers, but also cases involving members of the police of all kinds.
6With the collapse of the USSR, leaders of Russia (and other post Soviet states) recognized the association of the tribunals with Soviet power and in Russia at least chose to convert them into military courts. At the same time, judges on the military courts became subject to the same rules of selection, promotion and discipline as regular judges, and full members of the judicial community, with representation on the councils of judges and the judicial qualification commissions4. Administrative support for military courts remained in the hands of an agency within the Ministry of Justice, but their financing came from the Ministry of Defense. Judges on military courts pursued careers in the military while sitting on the bench. Most of these features of military justice remained controversial, and changed gradually over the course of the next decade, so that military justice became almost fully integrated into justice system within the courts of general jurisdiction.
7A key shift in both the reality and the reputation of the military tribunals came in 1993 with the revolutionary change in their functions. Whereas in Soviet times the military tribunals handled mainly criminal cases, along with some administrative violations, the courts acquired (through a resolution of the Supreme Court in November 1992 and legislation in April 1993) significant jurisdiction over civil cases, especially in the area of administrative justice, including challenges to the legality of both individual actions by officers and administrative orders of commanding officers5. Like the regular courts, which over the next few years faced an onslaught of complaints by citizens against the legality of actions of officials, so the military courts received similar complaints, usually by career officers against the decisions of superiors on social matters—the provision of moving costs, accommodation, pensions and so on. For the most part, going to military court with a complaint resulted in victory, as I have documented and explained elsewhere6. In this issue Leonid Golovko relays the official data for 2005, according to which the military tribunals heard 80 000 civil cases (mainly of this kind), as opposed to only 15 000 criminal cases. One should note as well that criminal cases included more ordinary crimes than offenses relating to military service7. In short, during the period 1993-2008, military courts in the Russian Federation came to handle a caseload that was remarkable similar to that of ordinary district courts.
8A second set of changes to the military courts came in 1999 with the passage (after a two year delay) of the new federal constitutional law on military courts. This law provided the basis for a substantial detachment of the military courts from the purview of the military, and their transfer in an administrative and financial sense to the judicial branch of power. This was possible only because in 1998 responsibility for administrative support of courts of general jurisdiction shifted from the Ministry of Justice and its subordinate administrations in the regions to the newly formed Judicial Department subordinated to the Chair of the Supreme Court and the head of the Council of Judges. The judicial department’s regional units reported to the chairs of the regional courts and heads of regional councils of judges. The new law also called for financing of military courts from the budget of the courts of general jurisdiction, and by budget year 2002 the arrangement had been achieved8.
9A further sign that military courts were understood to be normal courts rather than extraordinary tribunals was their inclusion in the extension of trial by jury to regional courts throughout the Russian Federation. As Nikolai Kovalev’s article makes clear, the legislation of 2001 expanding jury trials to the whole country (instead of nine regions) gave accused at the intermediate level “district” military courts the same right to opt for jury trial as their counterparts in the regional and republican supreme courts.
10There remained one important obstacle to the structural independence of military courts, and that was the fact that their judges remained military officers pursuing careers in the armed forces at the same time as they served on the bench. This issue arose during the discussions of the draft law on military courts in the late 1990s, and some commentators thought this a violation of European norms9. This issue was also identified by three of the commentators in this issue (Leonid Golovko, Shota Gorgadze, and Nikolai Kovalev) as one of the key shortcomings of military justice in the Russian Federation today, but this may soon be rectified. In March 2008 the Government submitted to the State Duma a package of draft laws, according to which judges and all employees of the military courts would lose their status as military personnel while they served in the judicial system. In other words, going to work for a court meant losing one’s status in military service and in the case of court staff a shift to the state civil service. The draft laws actually represent a decision taken by the Security Council in June 2005, and I do not know the cause of the delay in their production and release. The new laws will allow civilians to work both as judges and staff at military courts, although preference in hiring is supposed to be given to retired officers and officers in the reserve. All the same, many of the employees of military courts will have civilian backgrounds, and those from the military will no longer worry about the effect of their conduct at the court on the progress of their military careers10. In short, the new legislation has the potential to further strengthen the independence of military courts, at least from the military itself.
11Needless to say, separation from the military will not by itself make judges on military courts wholly independent. They will continue to face the same pressures as their colleagues on other courts to satisfy the expectations of their chairs, as well as higher courts. The familiar and longstanding problem of prosecutorial bias will also continue to matter for military court judges as much as their colleagues on other courts11. Other political factors, such as public opinion at home and abroad, may enter into the equation at trials in military courts, as demonstrated by Amandine Regamey‘s article on the Budanov case in this issue.
12In his account of recent history of military courts in Russia, Leonid Golovko questions the logic of classifying military courts as courts of general jurisdiction (article 1 of the law of 1999) and their continuing status as separate specialized courts (their having shed even in the Soviet times the status of extraordinary courts). For him the question arises from the intricate history of military courts, not only in Russia but in Europe as well, where some countries have chosen to dispense with them entirely. I do not see the presence of specialized courts within the courts of general jurisdiction of Russia as problematic, rather as the wave of the future! To begin, the term “general jurisdiction” is meant to distinguish these courts from the other types of specialized, separate courts that exist in Russia—the arbitrazh courts that handle disputes among private firms and conflicts between those firms and the state; and the constitutional courts (of the centre and regions). Furthermore, in practice specialization within larger courts of general jurisdiction is norm, as particular judges handle only civil or only criminal cases, and even within those categories there may be further specializations (even though this contradicts the soon to be introduce principle of random case assignment). Finally, and most important, there are plans afoot for the creation of at least two further specialized court structures within or under the rubric of courts of general jurisdiction. I have in mind “administrative courts”, the pet project of the Chair of the Supreme Court of the Russian Federation Viacheslav Lebedev, and “juvenile courts”, experimentation with which is expanding all the time, usually in the form of special panels of judges within district or regional courts, themselves assisted by social workers12. In short, courts of general jurisdiction need not handle uniformly broad jurisdiction that is neither commercial nor constitutional in nature but may themselves specialize, with or without separate structures.
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