Bar Journal - June 1, 2003
The NH-Vologda Rule of Law Partnership: Witnesses at a New Russian Revolution
By: Hon. Kathleen A. McGuire
You know what they say about turning an ocean liner - it takes miles and miles, not because it's going all that fast, but because it's just so big. In some ways, the American judicial/legal system is like an ocean liner; nearly every judicial decision is supported in one way or another by volumes of precedent and decades, if not centuries, of jurisprudence.
Imagine having the chance to learn first-hand about a legal system that serves 145 million people while being as maneuverable as a rowboat. That is precisely the opportunity created in April 1998 when the New Hampshire Supreme Court committed to establishing a relationship between the legal communities of New Hampshire and the Oblast of Vologda, in Russia, under the auspices of the Vermont-based Russian-American Rule of Law Consortium. The purpose of the partnership was - and is - to offer assistance in various forms to the people of Vologda as they attempt to implement the drastic changes necessary to transform the soviet political and economic system into a capitalistic economy with a democratic government and an independent judiciary.
The collapse of the Soviet Union in 1991 was sudden and dramatic. Equally dramatic was the quick adoption of a western-style constitution which created a democratic government, protected individual rights, and established an independent, co-equal judiciary. Among other things, the Russian government committed itself to transforming the economy from one in which the state, and presumably the Communist Party, controlled all the means of production, into a free market, under a capitalist model, in which real property would be returned to private ownership. To implement those goals, the Russian Duma (legislature) passed criminal and civil codes which have been revised several times since their recent introduction. It is the newness and rapid evolution of the Russian legal system that make it much more a rowboat than an ocean liner.1
Shortly after Perestroika, it became evident to people, both inside and outside Russia, that a commitment to political and economic restructuring, adoption of a constitution, and passage of statutes, would not be enough to guarantee the success of the Russian transformation. New laws had to be accompanied by cultural and institutional changes, in short, by new ways of thinking about and participating in the legal system. In the early 1990s, several judges and lawyers in Vermont established a relationship with the Russian region of Karelia, which eventually blossomed into the Russian-American Rule of Law Consortium ("RAROLC"), which is supported, in part, by the United States Agency for International Development.
In 1998, the New Hampshire Supreme Court decided to become involved with RAROLC, and agreed to explore the establishment of a relationship with the Oblast of Vologda. I was fortunate enough to be asked by Chief Justice David Brock to lead this effort. Other dedicated volunteers quickly joined me and, looking back over the last five years, I am proud and amazed by the time and effort that New Hampshire judges, lawyers, and others have given to the partnership. I am even prouder of the results of all those efforts.
Before discussing the history of the project, and its accomplishments, I should set the scene, by describing Vologda - a place I have now visited seven times. The Oblast of Vologda is one of eighty-nine regions, similar to American states, which make up the Russian Federation. The oblast is located about 400 miles north/northeast of Moscow, and is roughly the size of New England. Although Vologda is much larger than New Hampshire, its population is roughly the same, approximately 1.1 million. About half of the oblast's inhabitants live in two large cities, Vologda, the capital of the oblast, and Cherpovets, a large industrial city noted for its huge steel mill. The Oblast of Vologda is largely forested - the predominant birches are reminiscent of many places in New Hampshire - and forest products are a major industry in the region. Vologda is also famous for its fine lace and high-quality butter.
I first visited Vologda in May 1998, accompanied by Vermont Supreme Court Justice James L. Morse and Sophie Kolchmainen, administrator of the already-established Vermont-Karelia rule of law partnership. We were met in Vologda by Dennis Whelan, an attorney from New Hampshire who has lived and worked in Moscow for many years. The main purposes of the trip were to establish a link with the judiciary in Vologda, to determine whether the oblast's legal community was interested in a partnership with New Hampshire, and to see whether such a partnership was feasible.
The Vologdans were extremely hospitable and enthusiastic about our visit.2 On the first day, my hosts arranged a meeting with twenty judges, several lawyers, and the dean of the newly formed Vologda Law School. Through interpreters, we explained the purpose of our visit. Over the next three days, we visited the four courthouses in Vologda city,3 sat in on the corruption trial of the former governor of the region, answered questions from about a hundred law students for an hour and a half, and toured a women's prison. Interspersed among these official events were many vodka toasts, dancing, heavy eating, and general touring. By the time we left Vologda, I felt that we had made friends and had established a strong base for a future relationship. That feeling has been reconfirmed many times over, never more vividly than on September 11, 2001. I happened to be in Vologda that day, and will forever remember how well I was taken care of by my Russian hosts. A number of us involved with this project have developed lasting friendships with our Vologdan colleagues, and that personal warmth has contributed to strong bonds of trust running in both directions between Vologda and New Hampshire.
That first visit, in May 1998, led to a number of concrete developments, several of which I will discuss in detail, but the goals and results of those specific projects can only be fully understood in light of several general background principles that I started to appreciate early on.
On my first two visits to Vologda, judges repeatedly approached me and asked the same question: "Why do people obey your orders?" Coming from someone in a rowboat, that question makes perfect sense, but to me, with feet firmly planted on the deck of an ocean liner, I found the question surprising, and I found myself struggling to come up with an answer. Soon, however, I came to realize that the question, and my struggle to answer it, were both linked to the cultural and institutional changes that would have to occur in Russia before the rule of law would be established not just in theory, but also in practice.4
In answer to the question I was asked, people in the United States obey judicial orders precisely because the American judicial system is an ocean liner, or, to state it more plainly, in this country, the rule of law is institutionalized. The role of the judiciary is accepted and understood, at least, in part, because our judicial system was born two centuries ago, along with the nation itself. While there may be occasional disputes about whether the judicial branch has overstepped its bounds and performed a legislative function, and vice versa, there is never a question that a court order will be complied with until it is invalidated by a legal means.
Russians have a far different orientation to the law. Under the Soviet system, Marxism was the official state ideology. The state controlled all means of production and owned all property, except for some property necessary for personal use and consumption. Because the government was a dictatorship, it was not bound by any formal rules of law. The law was considered a product of the political process, a mere instrument of economic and social policy, and its operation was restricted to private law relationships between citizens such as marriage and inheritance. Because the state owned all the means of production, there was no need for contract law, bankruptcy law, intellectual property law, and the like.5
As well, because the concept of law was not taken very seriously, legal studies were neglected and the number of lawsuits was very small. The weakness of the legal system under the Communist Party and the lack of respect it garnered may still be seen in the makeup of the judiciary. The majority of judges, sixty to seventy percent, are women, many are relatively young, and all are shockingly underpaid, at least by American standards.
Against the backdrop I have just outlined, the first New Hampshire delegation to Vologda began making plans for our joint work. Initially, we proposed to fund a regionwide judicial education conference in the fall of 1998. We asked our counterparts in Vologda to give us a list of topics they would like to have addressed, and a list of available dates. They did so, and the topics they proposed were both realistic and within our ability to provide programming.
One problem, immediately apparent, was our inability to communicate with people in Vologda once we returned to New Hampshire. The communication problem consisted of both a language barrier and a technology barrier. As for language, very few Vologdans speak English. In fact, none
of the judges or court personnel speak any English at all. As for technology, in 1998, the chief justice of the Vologda Oblast Court had not heard of e-mail, which was, and is, the most effective way of communicating with Vologdans, given the poor reliability of regular mail and the inefficiency of using the telephone.
It seemed that the best solution to the communication problem was to establish an e-mail link with the law school, which was already relatively computerized and which was planning to install e-mail in a matter of months. Dennis Whelan looked into what would have to be done to set up e-mail at the law school, and reported that it would cost $300 to install, and about $72 per month, for thirteen hours of access. Subsequently, we arranged for installation of e-mail at the law school. The law school also had a number of students who spoke very good English, and we hired two of them to translate our e-mail messages, deliver them to their recipients, translate responses, and transmit them to us. We paid the law students five dollars per hour, which was a good wage, given that the average judge's salary was about $200 per month at the time.
It took some time, but we finally got our e-mail system up and running by the end of our second trip to Vologda. Because of the unsophisticated commercial system in Russia generally, we had to get $500 in cash to Dennis, in Moscow, to pay for the phone line installation.6 Dennis then had to get the money to the dean of the law school, who arranged for the actual installation. Even something so simple as pre-paying for a year's worth of internet access was difficult, given the Russians' lack of experience with commerce and contracts, but eventually we were able to accomplish that task, and as you might imagine, direct instant communication has greatly helped us in our work.
And it is that work that I want to turn to now. Since the project's humble beginnings, we have made technical strides, such as our e-mail breakthrough - a small enough thing from a New Hampshire perspective, but a big deal, given what it took to get the job done - and we have also made some real substantive progress. In the sections that follow, I discuss some of our accomplishments in the areas of judicial education, real property, decision retrieval, jury trials, advocate training, and technology.
One of our primary goals at the start of our partnership with Vologda was to help with the establishment of an annual, professionally run, judicial conference. We began planning the first such conference in May 1998, and returned in November to help put it on. On that trip, my second to Vologda, I was accompanied by New Hampshire Supreme Court Justice Sherman Horton, Attorney Elizabeth (Libby) Hodges, Deputy General Counsel to the New Hampshire Supreme Court, Franklin Pierce Law Center Professor Richard Hesse, and Hampton Attorney Robert Mittelholtzer. The centerpiece of our visit was to be a conference attended by the judiciary of the Oblast of Vologda.
To plan the conference, we had been in contact with the dean of the law school, indirectly, through Dennis Whelan. The dean had taken responsibility for getting experts from Moscow to make presentations on the topics the judges had suggested the previous May. However, when we arrived in Vologda on a Sunday morning, we learned that the dean had not arranged for any expert presenters, later explaining that he had been afraid that we would cancel our trip because of the recent crash of the ruble and resulting economic problems in Russia. And there was another surprise in store. Shortly after we arrived, less than a day before start of the conference, we were given an agenda for a two-day conference in which we were all scheduled to give presentations on topics selected by the dean.
The conference got underway at nine on Monday morning. It began with reports from the chief judges of each of the oblast's courts, in which they discussed their caseloads. The members of the New Hampshire delegation then gave their presentations, using law students as interpreters. Although their English was very good, especially in comparison to our Russian, the students were not trained interpreters. The low point came when Justice Horton's translator got cold feet and simply left his seat next to Justice Horton and walked off the stage. Although our first joint conference may not have been an academic success, it did accomplish the goals of formalizing our relations with Vologda and establishing permanent contacts. Our presentations at the conference were also filmed, and a twenty-minute segment was shown on local television. As well, the audience of about 200, mainly law students, was very receptive and asked many relevant questions, quite a few relating to the death penalty.
Since our first attempt at helping to put on a judicial conference, we have paid for Russian Supreme Court justices to come from Moscow to participate in judicial conferences in Vologda, and we have brought other experts to Vologda to make presentations on various rapidly changing areas of the law.
Perhaps our most important contribution has been helping to change the general tone of these conferences, and the attitudes of the participants. In the past, the annual judicial conference was much more administrative and disciplinary than it was educational. Typically, the chief judge of the Vologda Oblast Court, Ivan Bareav, would use the conference to report on the performance of the various courts over the past year. These highly statistical evaluations are given in open session, in front of all the judges in attendance, and there is nothing subtle - and rarely anything positive - about the process. "Shame on the Cherpovets City Court for being behind in its work" is a typical item in the chief judge's annual report. Judges, too, are often singled out for working "well," or "very well," or because they "did not do a good job and may not pass the qualifying exam." Reports like this still take up most of the first day of the judicial conference, but starting this year, the conference has been extended to a third day, with the result that presentations on substantive legal issues now occupy the bulk of the conference.
Another area in which change is evident is the style of presentation. Before we became involved, presentations at judicial conferences were very similar to the standard style of teaching at schools and universities - a lecturer stood behind a podium and read his or her materials with no demonstrative aids and no interaction with the audience. And because the conferences have been organized as plenary sessions, all the judges are in a single hall listening to all the reports, even those that did not pertain to the courts in which they worked.
Our contribution to the format of the conference has been to make presentations using a variety of teaching styles including role-playing and audience participation. We try to use demonstrative aids, and we bought a marker board for the Vologdans to use for their presentations. Justice Linda Dalianis and Attorney Libby Hodges conducted a two-day training program for Russian judges devoted to effective methods of public presentation (adult learning pedagogy). We have also encouraged conference organizers to consider using break-out groups, as a way targeting specific content to specific categories of judges, which is also a way of making sure that nobody has to sit through hours of presentations that have no relevance to their work. While old pedagogical habits die hard, the judicial conferences are becoming more effective, and are enjoying substantially greater attendance. As an index to the value attached to the conference by the judges in Vologda, the last conference was funded entirely locally, without any money from our side.
In all . . .
Charles Szypszak, an attorney with Orr & Reno, has made significant contributions to the real property reform effort in Vologda. Chuck has traveled to Vologda several times and has hosted several groups of Vologdans in New Hampshire. His efforts are recounted in the accompanying article.
Working with the administrative head of the courts for the Vologda oblast, this subcommittee has focused on aiding judges in retrieving cases from other jurisdictions and other judges within the oblast. Under the Russian system, judges are generally not bound by precedent, but decide cases based upon statutes and the specific facts of each case. Since the demise of the Soviet Union, it has become apparent that conflicting decisions can undermine social and economic stability. To lessen this problem, judges want to know how other judges are making decisions.
Instead of beginning with some form of printed decisions (books, newsletters), one of the Vologda technicians suggested CD-ROMs. They are inexpensive and easy to copy and distribute. This dovetails well with the computer upgrades the New Hampshire committee has supported over the past several years. The judges written decisions are saved on computers. All that is needed is a system to search and access the written decisions. We hope to institute an HTML-based database for this purpose. Both our computer consultant and the technologists in Vologda agree this can be accomplished within the next year.
One enormous development in Russia's legal system is the advent - or, more properly, the renaissance - of jury trials. Parts of Russia, primarily the larger cities, had jury trials from 1864 through 1917, the date of the Russian Revolution. There were no jury trials during the Soviet era. In 1993, after a lapse of more than seventy years, jury trials were reintroduced in nine of Russia's eighty-nine regions. These early jury trials were reserved for the most serious crimes. Beginning in 2003, jury trials were to be held in all eighty-nine regions. Vologda held its first jury trial in February 2003.
It is not hard to imagine all the logistical and procedural changes that had to be made to implement jury trials, and all the effort that went into inventing all manner of infrastructure that we on the ocean liner just take for granted. How would prospective jurors be notified that they were being called for jury service? How could they be made to come to the courthouse? Where would jurors sit in the tiny courtrooms that currently exist? And where would they deliberate? Where would criminal defendants sit, in the cages that had been used when there were no juries, or at counsel table? (Due, presumably, to the costs of courtroom security, the cages remain.) How would judges, prosecutors, and advocates be trained to implement sections of the new criminal code designed to make trials more adversarial and less inquisitorial? How would the judges instruct the jury? How would voir dire be handled?
We have assisted our colleagues on the bench in Vologda in preparing for their first jury trial in a number of ways. We hosted several delegations of Vologdan judges, with the specific purpose of having them observe all aspects of jury trials from jury selection to verdict. We made a point of including time with a clerk of court, to show the Vologdans all the paperwork that we use to bring in a jury pool and select a jury. We have also translated a great deal of the material we use for jury trials, including notices of jury duty, juror questionnaires, and judges' instructions to the jury. We have also helped to sponsor presentations in Russia by judges in the various regions in which jury trials have been going on for some time.
I happened to be in Vologda in February 2003, just after the first jury trial was held. The presiding judge was Vladimir Shepel, with whom I have worked since the start of the New Hampshire-Vologda partnership. His jury returned a verdict of not guilty in a trial for double murder, in which the defendant beat a married couple to death but claimed self-defense. The story was front-page news in the local newspaper and the main story on local television. The public perception in Vologda - as might well have been in the United States - was that a murderer had gone scot-free. Judge Shepel was embarrassed over the outcome. I was interviewed by both local television and by a Moscow television station. Reporters from both stations wanted to know my views on the value of jury trials, and on whether justice had been done in the double-murder trial. I was very careful in my responses.
The result in the Vologda double-murder trial can be explained in part by the fact that verdicts in Russia do not need to be unanimous. A mere majority - seven out of twelve - will convict. Six will acquit, which is what happened in Vologda. That same vote would have resulted in a hung jury in the United States. In any event, despite the defendant's acquittal, the wheels of justice still have a few more turns to go. In Russia, both the defendant and the victim have the right to appeal any verdict.7 In Judge Shepel's case, the sons of the victims are appealing the verdict, and since most acquittals are overturned on appeal, the government may well still prevail. And after the faltering start for jury trials - at least in terms of public perception and confidence - the process got a boost in March 2002 when Vologda's second jury trial for murder resulted in a guilty verdict.
From the outset, we have attempted to involve lawyers (or "advocates" as they are known in Russia) in the New Hampshire-Vologda partnership. Initially, we encouraged the formation of a bar association similar to our own. Judges, however, were fairly adamant in their belief that it was inappropriate for them to belong to an association that also had lawyers as members. We continue to meet with advocates, and while they have always been friendly, it is not until recently that they have indicated much interest in an on-going relationship with us. The recent increase in interest in associating with us seems to have two causes: the advent of jury trials in Vologda and the outreach efforts spearheaded by Bjorn Lange and Barbara Keshen. Advocates in Vologda have organized a two-day training program in May 2003 and have asked for our assistance. Bjorn will be participating in the conference, and we are attempting to secure funds for experts from other regions in Russia where jury trials have been held for several years, based upon our commitment not to impose American models, but to help foster the development of truly Russian ways of doing things.
On my second trip to Russia with the New Hampshire delegation, we discovered the dire straits of the Vologda judiciary with respect to office technologies. Even photocopiers were nonexistent which resulted in our carrying three bankers' boxes of conference materials over the Atlantic for the third joint Russian/American conference in Vologda. It was clear we needed someone on our committee who would be able to advise us on how to proceed.
Attention to technology began with the addition of Steve Burtt, a local network integrator and computer guru. In addition to purchasing personal office computers, printers, and photocopiers, Steve loads us down with memory boards and connectors almost every trip. Currently underway is the networking of PCs within each courthouse for all courts existing in the city of Vologda. This establishment of an intranet involves purchasing and laying cable which has occupied Steve on his last two trips. The computer networking is the first step towards achieving the goals of the case retrieval project. In addition, we have plans for developing training programs and recording trials (now an assistant takes all courtroom notes by hand).
All in all, the rapidity of change in the Vologda legal system is exciting to those of us who are accustomed to the slow turn of the ocean liner - even as we assist our Russian colleagues in building a bigger, and hopefully better, boat.
The New Hampshire/Vologda Rule of Law Partnership Committee consists of the following: Hon. Kathleen McGuire, chair; Attorney Elizabeth Hodges, vice-chair; Steve Burtt; Hon. Robert L. Cullinane; Hon. Linda S. Dalianis; Attorney Nick Frasca; Professor Cathy Frierson; Attorney Ben Frost; Hon. Gary E. Hicks; Attorney Barbara Keshen; Attorney Bjorn Lange; Attorney Mark Larsen; Attorney Parker Potter; Attorney Albert (Buzz) Scherr; Attorney Charles Szypszak; and Dan Wise.
Special thanks to Attorney Parker Potter for his help with this article.
By analogizing the Russian legal system to a rowboat, I do not mean to belittle it, only to comment on its newness and its lack of baggage. In a speech I made at a judicial conference in Vologda last year, I reflected on the newness of the Russian legal system in a different way. Inspired by a biography of John Adams I was then reading, I noted various parallels between Russia in the 1990s and the United States in 1770s. Both, it seems to me, represent historical moments of great opportunity, chances to write on a fresh slate.
Their hospitality has only grown stronger over the years. To this day our delegations are greeted and sent off at the Vologda train station by a platform full of old and new friends. Departures are particularly festive, with bouquets of flowers, champagne, and Russian-style bear hugs all around. We, in turn, have hosted seven delegations of judges and other legal professionals from Vologda. In all, approximately 40 Vologdans have visited New Hampshire under the auspices of this project.
Unlike the system in the United States, which involves both state and federal courts, all Russian courts, at all levels, are federal. Within a given region, such as the Oblast of Vologda, criminal and general civil cases are handled at two levels. The lower level consists of approximately twenty-five district or city courts. The upper level is the Oblast Court. There is also a special court - the Arbitrage Court - that handles exclusively cases involving businesses. Thus, on my first visit, I visited the Vologda city civil court, the Vologda city criminal court, the Vologda Oblast Court, and the Arbitrage Court.
As for the precise form that the rule of law will take in Russia, neither RAROLC nor the New Hampshire committee has ever intended or attempted to impose an American way of doing things on our Russian partners. Rather, we are simply attempting to provide information that our Russian colleagues may use in whatever way they choose as they develop their own models. In a similar vein, we have found that the exchange is hardly a one-way street; we learn as much from our counterparts in Vologda as they learn from us.
All of these branches of law are, obviously, quite necessary in Russia now, as it remakes its economy along a capitalist model and seeks to participate in the world economy.
Even today we carry large amounts of cash on our trips, which is a commentary on how far the Russian economy has yet to go in terms of its infrastructure.
One of the notable differences between the Russian criminal justice system and the American system is the role given to victims. In criminal trials, victims are parties in their own right, and may even be represented by counsel.
Hon. Kathleen McGuire is a Merrimack County Superior Court Associate Justice, Concord, NH.