The Practical Logic of Judicial Decision Making

Abstract

Russian judges operate under high pressure resulting from structural limitations imposed by internal bureaucracy of the judicial system, combined with institutionalized interdependence with procuracy and law enforcement agencies, where the former have upper hand over the judiciary. In the absence of transparency and mechanisms for public or professional accountability, judges engage into opportunistic behavior seeking satisfactory performance indicators, avoiding conflicts with law enforcement bodies, and economizing their own effort and time. This results in an accusatorial bias in Russian courts: they acquit not more than 1 out of 500 defendants. Within these structural limitations, though, the judges look for the opportunities to exercise some degree of judicial discretion to avoid unnecessary harm to the defendants who might be prosecuted unfairly, or investigated negligently. Where possible, they use termination of the cases on grounds of active repentance or reconciliation with the victim, and suspended sentences (probation) as substitutes for acquittals.

Keywords::

• judges, criminal justice system
• Russia
• unrule of law, bureaucracy, accusatorial bias

Notes

English translation © 2016 Taylor & Francis Group, LLC, from the Russian text, “Prakticheskiaia logika priniatiia sudebnykh reshenii: diskretsiia pod davleniem i kompromissy za schet podsudimogo,” in Kak sud'ii prinimaiut resheniia: empiricheskie issledovaniia prava (Moscow: Statut, 2012), pp. 107–27.Ella Paneyakh is a docent in the Department of Sociology in Higher School of Economics – St. Petersburg. Previously she worked as a professor in the Department of Political Science and Sociology at the European University at St. Petersburg, and as a Director and Senior researcher in the Institute for the Rule of Law in the same university. She defended her Ph.D. (kandidatskaya) in 2015 at Pacific National University. Previously, she studied as a doctoral candidate in the Sociology Department of the University of Michigan (2002–2009), and received an M.A. from the Department of Political Science and Sociology at the European University at St. Petersburg (2001). In 1996, she received a specialist diploma in Economics in the St. Petersburg University of Economics and Finance. Her publications include a book and about 30 articles. Translated by Stephen D. Shenfield.Color versions of one or more of the figures in the article can be found online at www.tandfonline.com/mrup.

^{* Cases that are only to be opened on the victim's claim; also, it is mandatory to dismiss the investigation, if the victim revokes the complaints. At the same time, unlike private prosecution cases that are not required to (although can) be investigated by law enforcement at all and can be filed by a victim in court directly, these cases are investigated by law-enforcement agencies and presented in courts by state prosecutors.}

^1. A confidence interval of three standard deviations (“sigmas”) encompasses 99.7 percent of the values of a normally distributed random variable. Measuring instruments often have a precision of “up to three sigmas”; measurement error in the social sciences is usually much greater.

^2. E. Paneyakh, The Trajectory of a Criminal Case and Accusatorial Bias of Russian Courts [Traektoriia ugolovnogo dela i obvinitel'nyi uklon rossiiskikh sudov], in Pravo i pravoprimenenie v Rossii: mezhdistsiplinarnye issledovaniia, ed. V. Volkov (Moscow: Statut, 2011).

^3. According to the results of a survey of judges conducted by the Institute for the Rule of Law, judges recruited from the procuracy are 14 percent less likely to specialize in civil cases and 5 percent more likely to specialize in criminal cases than judges who were previously members of the bureaucracies attached to the courts.

^{* Pursuant to a 2013 law verdicts rendered in district courts as of 2016 were reviewed by oblast courts through appeal rather than cassation.}

^4. For a partial description of the situation, see E.L. Paneyakh, K.D. Titaev, V.V. Volkov, and D.Ia. Primakov, Accusatorial Bias in Criminal justice: Procuracy Factor [Obvinitel'nyi uklon v ugolovnom protsesse: faktor prokurora] (St. Peterburg: IPP EU SPb, 2010).

^5. A single article wholly accounts for the loss of the 1.54 percent of cases terminated on rehabilitating grounds—Part 1 of Article 158 “Theft” without aggravating circumstances, with an unusually high (over 3 percent) proportion of cases terminated because there was no event or no corpus of a crime; this is due to the special characteristics of this corpus rather than to any special attitude on the part of judges.

^6. An alternative explanation of this phenomenon that suggests itself—a high level of corruption in the courts—not only contradicts the information obtained from the interviews but also does not withstand the test of reality, at least insofar as criminal trials are concerned: in light of the social status of defendants, who mainly belong to the lowest income groups, the proportion of criminal cases that at least theoretically might be of interest to a corrupt federal judge can hardly exceed 10 percent.

^7. See the article by M. Pozdniakov—“Meaning and Ambiguity of the Accusatorial Bias” [Smysl i dvusmyslennost’ obvinitel'nogo uklona]. in Kak sud'ii prinimaiut resheniia: empiricheskie issledovaniia prava (Moscow: Statut, 2012).

^8. See the article by V. Volkov and A. Dmitrieva—“Russian Judges as a Professional Group: Norms and Values” [Rossiiskie sud'i kak professional'naia gruppa: normy i tsennosti] in Kak sud'ii prinimaiut resheniia: empiricheskie issledovaniia prava (Moscow: Statut, 2012).

^9. R. Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984).