On the Appearance v Reality Dualism


In 1923 McCarthy, a British motorcyclist, was involved in a road accident which resulted in his prosecution for reckless driving. It was a simple case and he was convicted. Yet, it turned out that the court’s clerk also worked for the firm of solicitors that represented the other driver, who sued McCarthy for damages. There was no reason to think that the clerk could influence the judges in any way. In fact, he didn’t. Still, the decision to convict McCarthy was quashed. ‘Not only must justice be done,’ said Lord Hewart, ‘It must also be seen to be done.’

What a remarkable twist of the judiciary’s mind: what the law appears to be may be more important than what it actually is.

In February last year, Natalia Vasilieva, then assistant to Judge Danilkin, said in an interview that the decision in the Khodorkovsky case was not made by the judge but sent over from a superior court. This week Igor Kravchenko, another clerk involved in the proceedings, followed the suit. ‘Vasileva’s interview is truthful,’ he told Novaya Gazeta, ‘She said nothing that others did not know, and many in the Khamovnicheskiy court can confirm her words.’

Whether Danilkin was the actual decision maker or a mere puppet is no longer a material point. The problem is deeper: too many people are convinced that the system is crippled, judges are corrupted and, as an old proverb says, every court of law smacks of injustice.

‘I don’t think it’s right that the vast majority of transactions in the Russian economy refer to British law and to foreign arbitration in Stockholm, Hague, London or somewhere else,’ said Minister of Justice Alexander Konovalov, ‘Ninety percent of the Russian legal market has been taken over by foreign law firms, mainly American ones’.

When negotiations between Chevron and Rosneft over the Black Sea oil exploration venture reached deadlock among the principal differences were where the project company should be domiciled and which court should resolve disputes. The thought that the oil leviathan operating in 180 countries, including many developing or unstable regimes, could walk away from a $32 billion deal but not face Russian justice seems preposterous and insulting.

The distrust of Russian law is beginning to shift from businessmen and general public to elites. The Supreme Court of Netherlands in the case Yukos SARL v Rosneft enforced an arbitral award that had been annulled by the Russian state court. The decision does not, strictly speaking, contradict international law but it is highly unusual and essentially based on the notion that there was no fair trial in Russia.

The decisions of the European Parliament on the Sergey Magnitsky case that threaten more than 60 Russian civil servants with sanctions – none of these people was found guilty of any offence by Russian authorities – seem to suggest that the Russian legal system is not capable of dealing with the above case.

The government shoud keep explaining what it is doing to make the system better.

It is unfair to say that there is no law in Russia and that all judges are dishonest. This is simply not true. Russian taxpayers, for instance, win two out of three cases against the treasury – a sign that the judiciary, at least in commercial courts, do not perceive themselves as mere executioners of the state’s will. The problem is that we have reached the stage when what the courts are is irrelevant as compared with what they appear to be.

This year the European Court of Human Rights is expected to deliver a decision on the Yukos case. Now, after Vasilieva and Kravchenko have spoken out, it seems even more likely that the ruling is going to be another blow to the reputation of the Russian justice system.

In a curious move of creativity the Public Chamber, a consultative body organised by the President Putin after the Beslan siege, decided to review the Khodorkovsky case. The Chamber members, mostly non-lawyers, will go through the court documents and hand down a verdict that will produce no legal effect but dubious publicity. Another group of activists close to the Kremlin wrote ‘the letter of 55’, a peculiar document suggesting that the reason why only one in five people in Russia trusts the justice system is a result of propaganda by Khodorkovsky’s allies.

It is very sad that reputation of Russian courts has fallen so low, almost implying that there is no justice at all. Problems are many but it is not as bad as it seems. What the government should do – instead of exposing itself to ridicule through extravagant PR campaigns - is to keep explaining, calmly and patiently, what it is doing to make the system better.

Sergey Matyunin
picture: charis101 - Fotolia.com