The Rule of Law Comes to Russia?
On the final day of the twentieth century, Boris Yeltsin resigned as the
first President of the post-Soviet Russian Republic, turning his office over
to his chosen successor, Vladimir Putin. In March, Acting President Putin
will stand for election.
When a balanced history of contemporary Russia is written, another event
which took place in the final week of 1999, along with a similar event in
July, may well be regarded as more significant. These were the acquittals
first of Grigorii Pasko in Vladivostok, and, last week, of Aleksandr Nikitin
in St. Petersburg. Sadly, these events have attracted little notice in the
The fact that both Pasko and Nikitin are environmental activists is of
interest to the global community of environmentalists. Of greater historical
significance is the fact that both individuals prevailed over the Russian
internal security apparatus for the first time in the entire history of both
the Soviet and the successor Russian governments. They did so by appealing
to the protection of Federal and International law.
Thanks to the letter of that law, along with widespread support from
within and outside of Russia, and the decision of two courageous judges,
Pasko and Nikitin are now free men. And the rule of law has exhibited
supremacy over political and bureaucratic power.
With our tradition of reliance on the rule of law, it is easy for us to
overlook the significance of the Pasko and Nikitin cases, and of the
extraordinary courage of the defendants, their advocates within Russia
(notably the Socio-Ecological Union), and the judges in the case.
In our fortunate country, we take the "rule of law" for granted – perhaps
too much for granted. (And that is topic enough for another essay). When
abused by our fellow citizens, we tell them "I'll see you in court,"
confident that the courts are the best means available to the ordinary
citizen for attaining justice. We also go about our business, confident that
the bounds of permitted behavior is "on the books," and that we will not be
charged and convicted onex post facto laws (enacted "after the fact"). And
most significantly, our laws protect us from what Hamlet called "the
insolence of office." As Richard Nixon learned to his sorrow, not even the
President of the United States is above the law. The law did not allow Nixon
to censor the publication of "the Pentagon Papers" (a case remarkably
similar to those of Pasko and Nikitin), and it did not allow him to conceal
the evidence that eventually forced him from office.
The government of the Russian Federation is only a decade old, and many
of the members of the oppressive Soviet regime hold office in the new
government. The "Federal Security Bureau" is in a discomforting sense, a
continuation of the Soviet KGB. And the new Acting President, Vladimir Putin
is the former chief of the FSB – the same agency that arrested and
prosecuted Pasko and Nikitin. Thus in Russia "the rule of law" is, to say
the least, tenuous and experimental. These "whistleblowers" acted, and were
subsequently defended, with no settled assurance that "the rule of law"
would protect them. In this sense, Pasko and Nikitin were less comparable to
Daniel Ellsberg (who released "the Pentagon Papers") with his protection
under the US Constitution, than to Andrei Sakharov who also acted on
principle with no assurance of the protection of the law. Pasko and Nikitin
thus put their lives and freedom on the line, with at times poor prospects
of victory. These were two noble gambles in defense of principle for which
the Russian people, and indeed all freedom-loving peoples of the world, owe
both individuals a debt of enduring gratitude.
Other heros in these inspiring cases include are our friends in the
Socio-Ecological Union. Read the accounts of the Pasko and Nikitin cases in
The SEU TIMES, collected at this site in a single "Archive" Edition. There
you will find candid accounts of these cases along with statements of
principle in defense of Pasko and Nikitin, and in condemnation of the FSB.
Now consider the place of origin of these publications. The activists of the
SEU believe, apparently with some justification, that an "open society"
under the rule of law may at last and for the first time have come to
Russia. But these published statements also display amazing courage,
affirmation and hope. For much less defiance and criticism of the government
and its security apparatus, many of the fathers and grandfathers of these
SEU activists earned themselves trips to the Gulag or, still worse, to the
cellars of the Lubianka. In the homes of our Russian friends, we have seen
old photos of relatives who paid the ultimate price for their defiance of
Soviet decrees. Each statement today of criticism of the government, however
benign and tolerant that government may now appear, must be haunted by the
spectres of Derzhinsky and Beria.
Two additional individuals deserve our commendation: Judges Dmitri
Savushkin and Segei Golets who presided, respectively, over the Pasko and
Nikitin trials, and ruled for their acquittal. Note the following from the
July issue of the SEU TIMES (with emphases by The Gadfly):
For the first time in Russian history, a Federal Security Bureau
espionage case has failed. According to the Russian Pacific Military
Court, [Grigorii] Pasko has been cleared of the charge of espionage, but
is guilty of "misapplying his position." The court has ruled that he
should be given amnesty. The judge has also issued a special document
listing all the offenses against the law by the FSB's investigating bodies
discovered during the process.
And in the December 30, 1999, issue of The New York Times, we read:
"The use of these orders is a direct violation of the Constitution of
the Russian Federation," Judge Golets said. He also said the federal case
ran counter to the European convention on human rights, to which Russia is
In short, for the first time in history, the Russian courts have asserted
the supremacy of the law over the security apparatus of the Russian
However, these victories reside on insubstantial ground. The NY Times also
reports that the FSB has the right to appeal the Nikitin case. It is likely
that the Acting President is under pressure by his former FSB colleagues to
do just that. He must also be made to feel the countervailing pressure of
world opinion. This latter opinion could be effective, as Putin has
announced that he seeks to gain "respect" in the community of nations for
the new Russian government.
Of late, the US media and officials have been alarmingly critical of the
Russian government, as we detect whiffs of cold-war rhetoric creeping into
our media. In addition, as we have reported at this site, much of the
official and commercial American involvement with the Russians in the last
decade has been arrogant and ill-informed. The US has approached the
Russians with an attitude, well-summarized by our friend Svet Zabelin of the
SEU: "In general, ordinary Americans look upon Russia as a failed United
States - that all we need to succeed is to be more like you. So they come to
us with schemes that might be useful in the United States (and perhaps not,
for that matter), and with little regard for our historical and cultural
contexts." (See our "Conversation with
In August, 1998, the New York Times published a commendable editorial in
defense of the then-beleaguered Alexander Nikitin. In contrast, the report
of his acquittal was lost in the back pages of the New York Times and The
Washington Post. We have heard no mention of either case in the broadcast
media – not on public television's News Hour, or CNN. (Our search of the NPR
archives recovered a February, 1999 report that Pasko had "little hope" of a
favorable outcome of his trial. There was no subsequent NPR report of his
acquittal in July). This is regrettable, for the acquittals of Pasko and
Nikitin, and the implied promise of an emerging rule of law in Russia, is
news of extraordinary importance to Russia and to the international
community of nations.
The courageous individuals and organizations in Russia who took part in this
triumph of freedom and justice – the defendants, Pasko and Nikitin, the
leaders of the nascent civil society who suported them, and the judges who
ruled for acquittal – have all earned the admiration, gratitude, and
continuing support of all who cherish freedom and justice.
The struggle for the rule of law in Russia continues, with the outcome still
in doubt, despite these very significant victories. (Thus the question-mark
on our title to this essay). Support for the heroic Russian reformers,
inside and outside of the government, must continue unabated.
We await, with some uncertainty, the expression of such commendation and
support from our political leaders and our media.
We urge you to read these accounts of the Pasko and Nikitin case in the SEU
TIMES – and be amazed! The current issue reports a very similar case in
Belarus – that of Prof. Yuri Bandazhevsky. Read further in the SEU TIMES and
you will find reports of numerous appeals to the courts, by ordinary Russian
citizens and NGO environmental groups, for injunctions against governmental
and commercial assaults upon the environment.
Postscript (2009): I had the great
privilege of meeting Alexandr Nikitin, and sitting next to him at a
conference table at the Wilson Center in Washington DC, November, 2001.
The Conference, on "Environment and Human Rights in the Russian Federation,"
was jointly sponsored by The Center for Democracy (USA) and Center for
Russian Environmental Policy (Moscow). Follow these links for
my paper at the conference and
my report of the conference.