6 Legitimacy, Accountability and Discretion of the Russian Courts Alexei Trochev 1. A puzzling duality: Constitutionalism, arbitrariness and accountability The two decades of judicial reforms in Russia have produced a puzzling duality of judicial behavior. 1 On the one hand, little has changed in the way judges handle criminal cases, as indicated by the stable pre-trial detention and acquittal rates. On the other hand, Russian judges have increasingly ruled against the federal government in cases brought by individuals and companies, something unimaginable during the Soviet period. One source of this duality is the contradiction between what Richard Sakwa described as constitutionalism and the arbitrariness of the admin- istrative regime in Putin’s Russia (Hendley, 2011; Sakwa, 2011). While constitutionalism means that formal constraints and the rule-based accountability of the state apparatus guide public policies, Russia’s arbi- trary administrative regime is about pursuing policies based on short- term political expediency instead of formal rules. Russia’s rulers use this duality to boost the legitimacy of the political regime. Constitutionalism is reflected in the 1993 Constitution that subordinates public policies to the supremacy of human rights (Article 2), including ‘universally rec- ognized human rights and freedoms’ (Articles 17 and 55.1). To protect these rights from abuse by the government, the Constitution establishes the state’s obligation to compensate ‘damage caused by unlawful actions (inaction) of bodies of state authority and their officials’ (Article 53), provides for an independent judiciary (Article 120.1) including the Con- stitutional Court (Article 125) and allows anyone to take Russia to the international human rights tribunals (Article 46.3). 121