Aleksandr Martynovich (Capital City College Group) has posted When Judges Become Asylum Seekers: Judicial Independence, Systemic Pressure and International Refugee Protection on SSRN. Here is the abstract:
Judicial independence is a foundational principle of the rule of law and democratic governance. Yet in a number of legal systems the formal guarantees of judicial autonomy coexist with informal mechanisms of executive control that progressively erode the impartiality of justice. This article examines the development and operation of such mechanisms in the Russian Federation, drawing on the author’s professional experience as a federal judge and court president in Russia between 2008 and 2019.
The article analyses how executive pressure, the manipulation of performance metrics, and the expectation that judges should themselves ‘guess’ the required outcome created structural conditions in which judicial independence became not merely constrained but, in substance, fictitious. Drawing on the author’s first-hand experience, the article traces how the Russian judiciary was gradually brought under the control of the Federal Security Service (FSB) and other organs of the executive, and contributes to the literature on authoritarian legalism and the instrumentalisation of law.
The article further shows that the capture of the judiciary confronts a conscientious judge with a choice: to participate in the destruction of justice, or to refuse—and thereby become a target of persecution in turn. A judge who refuses to accept and participate in the new configuration of power finds himself exposed to the threat of fabricated criminal prosecution and compelled to seek protection abroad. Through his own case, the author argues that such a situation is a particular, and insufficiently examined, application of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol: persecution for refusing to participate in the unlawful exercise of state power may constitute a ground for protection on the basis of political opinion or membership of a particular social group.
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