The Kremlin's eye: the 21st century Prokuratura in the Russian authoritarian tradition.

• Author: Greenberg, Jonathan D.

Russia is a country of legal nihilism. No European country can boast such a universal disregard for the rule of law.

Dmitri Medvedev, President of the Russian Federation, 2008 (1)

1. INTRODUCTION

   Founded by Tsar Peter the Great in 1722, the Russian Prokuratura has persisted in institutional structure and function until the present day (with the sole exception of the first four years of the Bolshevik revolution). According to current federal law, the Prokuratura is "a unified federal centralized system of agencies effectuating in the name of the Russian Federation supervision over compliance with the Constitution and the execution of laws operating on the territory of the Russian Federation." (2) The Prokuratura holds a monopoly over prosecutorial functions in the Russian legal system, but it differs fundamentally from modern prosecutorial institutions in countries with Anglo-American or Continental civil law systems. In addition to its exclusive responsibility for the investigation of crimes and the prosecution of criminals, the Prokuratura also assumes the legal system's highest "supervisory powers"--i.e., Russia's core administrative and legal oversight role, similar to that of administrative tribunals in the West, and an ombudsman-like function that permits individuals to appeal directly to the Prokuratura for redress of mistreatment by government officials. Harold Berman, a respected scholar of Soviet law, in 1950 described the Prokuratura as "the most important institution of the whole [Soviet legal] system," and so it remains today. (3) "The Soviet Procuracy combines in one office functions of the United States Attorney General's Office, Congressional investigating committees, grand jury and public prosecutor." (4) There have been some important reforms in recent years, especially regarding the power of the Procurator General to impose pretrial detention and to review judicial decisions. Yet notwithstanding the dismantling of nearly all other Soviet institutions following the establishment of the Russian Federation, today's Prokuratura retains essentially the same legal mandate, the same organizational structure and the same combination of prosecutorial, investigative, supervisory and administrative functions as the Brezhnev-era agency.

   During each historical period until the present day, the great majority of the Prokuratura's activities have related to the investigation and prosecution of ordinary crimes and the oversight of low or medium level bureaucratic legality and corruption in regional and local government and industry. Arguably, in cases of ordinary crimes (i.e., crimes against persons and property without a significant political or ideological component) even during the Soviet period, procurators conducted investigations and prosecutions in a manner roughly comparable to their counterparts in the contemporaneous prosecutorial agencies of European civil law jurisdictions. (5) Regarding the agency's legal oversight functions, the Prokuratura in each relevant period enabled citizens to lodge complaints about legal violations by state agencies and officials, particularly in local and regional departments (and in the Soviet era, factories and offices of state enterprises), and it initiated protests to rectify violations and irregularities it confirmed by internal investigations. (6) At least in comparison to the exercise of authority by other state actors (e.g. party officials, police and security agents), often conducted in secret and without regard to law, the Prokuratura's oversight and administrative protest services furthered public accountability, procedural regularity, and adherence to legal rules. (7)

   But the agency's overlapping mandates, Kremlin-based authority, and military-style chain of command have always created problematic tensions. In sensitive cases related to political decision-making and cases involving the Prokuratura's obligation to supervise the legality of its own officers, these tensions continue to present serious conflicts of interest. The historical supremacy of the Prokuratura relative to the judiciary continues to inform relationships between prosecutors and judges throughout the Russian Federation. Leading to deference in court and ex parte contacts out of court, these relationships violate the principle of "equality of arms" between prosecution and defense that is fundamental to the protection of due process in modern criminal law systems.

   With an exclusive mandate to objectively investigate and independently prosecute illegal activities by government and security officials, regardless of rank or position, and to oversee adherence to legality by government agencies and officers at every level, the Prokuratura of the Russian Federation provides the only institutional mechanism for ensuring legal accountability by the system's most powerful actors. But the agency's legal obligations conflict with political reality. In each regime, when push comes to shove, the Prokuratura has served as "enforcer" of the Executive's political will, from which no true separation of power has ever existed. Consistent with the Prokuratura's Imperial and Soviet legacy, the actions and omissions of the Procurator General of the Russian Federation (and his subordinate officers throughout the agency's chain of command) have continued to ensure that crimes perpetrated by the highest Kremlin officials--security officers affiliated with Kremlin-based security agencies, regional politicians, or officials favored by the Kremlin leadership--are committed with impunity.

   This Article argues that the political instrumentality of the Prokuratura of the Russian Federation today is a direct result of an organizational and legal structure inherited from the agency's Soviet and Imperial history. Tracing the path dependence of the Prokuratura as an authoritarian institution has value as a study in legal sociology, but it is not an academic exercise. On the contrary, what is most troubling and urgent about this analysis is the fact that Western governments and legal institutions are enmeshed in a web of collaborative relations with Russian counterparts, and especially the Prokuratura, to an extent unmatched by any previous historical period. Indeed, bilateral and regional treaties in operation today commit the United States and European Union member countries to cooperate with the Russian Federation--and specifically with the Prokuratura and its officers--on cross-border criminal investigations and prosecutions. (8)

   The continuous history of the Prokuratura and its authoritarian legacy in the post-Soviet era are not well known, even among Western legal authorities and policy makers called upon to collaborate with the Procurator General and his agents. As a result, they may incorrectly assume that the Prokuratura maintains a threshold of legality, legitimacy, and procedural regularity akin to prosecutorial institutions in modern Anglo-Saxon/common law and Western European/civil law traditions. But such an assumption is unwarranted, particularly in important cases affecting the Kremlin's political and economic interests. On the contrary, the Prokuratura's legal, sociological, and military structure, inherited from Tsarist origins and Soviet legacy, inherently undermines prosecutorial independence, objectivity, and impartiality in politically-related cases, subverts the rights of the accused, and violates fundamental, internationally-recognized principles of due process, fairness, and equality before the law. As a result, U.S. and European officials risk making legally and ethically improper decisions in response to requests made by the Procurator General for assistance on politically motivated criminal investigations. In the most egregious cases, these officials risk inadvertently facilitating gross violations of justice.

   Because today's Prokuratura is a direct product of its Tsarist and Soviet inheritance, Part I of this Article examines the agency's integrated history from its founding in 1722 through the Soviet period. Part II analyzes the Prokuratura of the Russian Federation from the initial years of post-communist transition through the institutional reorganization initiated by President Vladimir Putin in September 2007. Part III documents abuse of fundamental due process rights and subversion of justice by the Prokuratura today in violation of the Russian Constitution, Russian federal law and the European Convention on Human Rights (ECHR). In conclusion, this Article supports calls by Russian citizens, the Council of Europe, and the European Commission for Democracy Through Law (The Venice Commission) for institutional reforms necessary to ensure prosecutorial integrity, independence, and legality in the Russian Federation today.

2. TSARIST AND SOVIET HERITAGE

   By an edict on January 12, 1722, Tsar Peter the Great established the Prokuratura to oversee and enforce legality by government agencies and officials, prosecute crimes, and purge political enemies throughout Russia's imperial system. Peter founded the Prokuratura to assume the highest governmental powers of supervision, control and inspection over all state agencies and imperial subjects on behalf of the Tsar and his regime and "to annihilate or enfeeble evil emanating from disorder in state affairs, injustice, bribery and lawlessness." (9) By Imperial Edict on the Post of the Procurator General, Peter declared that "this official shall be Our eye and agent in all state matters, and shall act faithfully because he shall be the first to be called to account." (10) In the late eighteenth century, Tsarina Catherine the Great further extended the agency's supervisory powers in the regions "where procurators served as the 'eyes of the tsar' in monitoring the activity of provincial governors [guberniia] and other officials." (11)

   The Prokuratura was reorganized pursuant to the legal reforms of 1864. From that time on, however, the agency...