Outgoing President Dmitry Medvedev has ordered Russia’s Prosecutor General to verify the legality of the conviction of Mikhail Khodorkovsky, the former head of the oil company Yukos. Cases relating to co-accused Platon Lebedev and 30 others would also be assessed. Though the deadline set for the review is strikingly short, the initiative may create an opening for a long-awaited discussion about politicised trials.
Khodorkovsky would now have been eligible for parole on an initial conviction from 2005 on charges of tax evasion. However, he was tried again in 2010 on new charges and sentenced to another six-year prison term. Serious questions were raised in human rights circles - in Russia and abroad - about the length of the sentence as well as the fairness of the trial itself: whether guilt was proven and whether this was not another trial on the same substance.
Further questions were raised by the fact that the Prime Minister at the time, Vladimir Putin, made no secret of his negative opinions about Khodorkovsky while the trial process was ongoing. He publicly stated that “a thief should sit in jail” in an obvious reference to the case against the former Yukos chairman.
This and other political interventions are not unique. In a recent report on the justice system in Ukraine, I had to conclude that judges in that country are still not shielded from outside pressure, including of a political nature. The report urged the authorities to look into any allegations of improper political or other influence or interference in the work of the judicial institutions and to ensure effective remedies.
The detention and trials of former government officials in Ukraine, including Yulia Tymoshenko, Valeriy Ivashchenko and Yuriy Lutsenko, have raised serious concerns about the fairness and impartiality of the proceedings.
Widespread problem of undue political pressure
In other cases, pressure on judges has been more discreet. I have received information on so-called “telephone justice” in a number of instances - that judges have been secretly approached by the offices of government leaders and told how they should decide in sensitive cases.
Sometimes there is no need for direct instructions; the judges know already how they are expected to act. They have been made aware of the consequences for their own careers if they choose to ignore such expectations.
These practices are not easy to pin down in ordinary human rights reporting. My own awareness of these phenomena has developed through confidential conversations, not least with active or retired judges in several countries. I have become convinced that this is a serious and fairly widespread problem.
Undue political influence and lack of independence of judges tend to be particularly acute in the “transition” countries in Central and Eastern Europe, where judges under the communist system were supposed to serve the interests of the political regime - and these habits are more persistent than one would hope. However, I have also noticed that the principle of the independence of the judiciary is not fully protected even in other European countries.
Independence of the judiciary must be protected
The independence of judges should be enshrined in the constitution or at the highest possible legal level. The structural arrangements foreseen by those fundamental laws should demonstrate a clear division of authority between the executive, the legislature and the judiciary. Of course governmental and parliamentary authorities have a responsibility to set up an effective justice system - itself ruled by law - but they should abstain from meddling in individual cases which are in the hands of the judiciary.
Indeed, there is a need for governments to take pro-active measures to safeguard the judiciary from undue interference. I made this recommendation to the authorities in Georgia in a report issued last year. Steps are needed in this country to effectively protect the individual independence of judges. One problem there, as in several other countries, is the dominant position of the prosecutor in the criminal justice system.
Problems relating to the independence and impartiality of the judiciary have also undermined the credibility of the justice system in Turkey. The ongoing reform there needs to be thorough and tackle the state-centred attitudes among some judges and prosecutors.
Judges should not have to fear
We have learned that the procedures for appointing and promoting judges are key in the protection of the independence of the judiciary. A retrogressive step taken recently in Hungary is therefore of particular concern: the parliament adopted a procedure leaving such decisions to be taken by a single, politically appointed individual.
Appointments and promotions of judges should rest with an independent and impartial structure – and should be seen to do so. Decisions should be based on objective criteria focused on professional merits and qualifications.
Another essential principle is that judges should have security of tenure until a mandatory retirement age - and even more crucially – that they should not have to fear dismissal for rulings which may not please those who are in power.
Political leaders must accept that the court room is not a political arena.
Thomas Hammarberg