The Primacy of the Police in the Courts: From Soviet Legal Orthodoxy to Post-Independence Challenges

The Soviet Union’s legal system was never designed to be a forum for independent adjudication between the state and the citizen. From its inception, the judiciary was conceived as an instrument of state policy, subordinated to the political objectives of the Communist Party and closely intertwined with the executive organs of state security. This arrangement placed the police—more broadly, the Soviet system of militsiya and its investigative apparatus—at the apex of the practical functioning of the courts. The resulting hierarchy not only reversed the principles of the rule of law common in Western jurisprudence, but also created enduring distortions in post-Soviet legal cultures, including in Ukraine, where the transition to genuine judicial independence remains incomplete.

Historical Origins in Soviet Legal Theory

The roots of police primacy in Soviet courts can be traced to Leninist legal doctrine, particularly the notion that law was a class-based instrument serving his imagined dictatorship of the proletariat (to use Marx's term). Lenin’s vision for the judiciary was not one of impartiality, but of conscious partisanship in advancing revolutionary goals. Early Soviet criminal procedure vested wide powers in the Cheka (later the NKVD and eventually the KGB) and the militsiya, which combined policing and investigative roles.

In the 1920s and 1930s, the Stalinist consolidation of power entrenched this approach. The concept of “socialist legality”—ostensibly a system of laws binding even on the state—was subverted in practice by directives from the Party and security agencies. Trials, when held, were typically preceded by investigative conclusions that were presumed accurate. Judges were expected to validate investigative outcomes rather than to challenge them. Acquittals were vanishingly rare: in the Soviet system they were often interpreted as evidence that the judge had erred or that the investigator had failed ideologically.

The procedural code itself enshrined police dominance. Pre-trial detention was easily authorised, the right to legal representation was restricted until late in the investigative process, and defence counsel was often drawn from state-controlled collegia advokatov (bar associations) who were under pressure to align with prosecutorial theories. In effect, the police and prosecutors formed a single operational bloc, with the courts serving as a rubber stamp.

Institutional Mechanics of Police Primacy

Several features sustained this primacy. First, the “investigative organs” (sledstvennye organy)—within the militsiya and security services—held control over evidence-gathering, charging decisions, and even pre-trial judicial motions. Second, the office of the Procuracy (Prokuratura) was empowered to oversee both investigations and the courts, a dual mandate that further subordinated judges to investigative authority. Third, judicial appointments, career progression, and disciplinary oversight were managed through party channels, making deviation from investigative conclusions risky for personal advancement.

Even after Khrushchev’s partial liberalisation in the 1960s, acquittals never rose above 1–2 per cent of criminal trials. By the Brezhnev era, the expectation was that an indictment was tantamount to conviction, and that trials were an administrative formality to confirm police and prosecutorial work.

Legacy in Post-Independence Ukraine

When Ukraine gained independence in 1991, she inherited not only the Soviet criminal codes but also the institutional culture that placed investigative and police bodies above the judiciary in practice. Although the militsiya was rebranded and Ukraine adopted reforms in her constitution to enshrine judicial independence, the procedural dominance of investigators persisted.

Key Soviet legacies remained:

• Low acquittal rates: Through the 1990s and early 2000s, acquittal rates in Ukraine hovered at or below 1 per cent, mirroring late-Soviet practice. Judges were still inclined to see police and prosecutorial findings as authoritative.

  
  

• Investigative control of proceedings: The investigative body—often still staffed by Soviet-trained personnel—retained effective control over evidence and could delay or frustrate defence access to case materials.

  
  

• Corruption and coercion: The hierarchical dependency of judges on political or prosecutorial approval created fertile ground for bribery, political interference and selective justice.

  
  

• Weak defence rights: While formally guaranteed, the right to counsel remained weak in practice; defence lawyers could be denied access to clients during key investigative phases, and judicial oversight of pre-trial detention was minimal.

  
  

Broader Post-Soviet Continuities

Ukraine’s experience is echoed across much of the former Soviet space. In Russia, Belarus, and several Central Asian republics, the primacy of the police over courts has not only persisted but, in some cases, deepened under authoritarian consolidation. Even in more reform-oriented states such as Georgia or the Baltic republics, early independence was marked by similar struggles to dismantle the police–prosecutor–court triad inherited from Soviet governance.

In many of these states, judicial careers remain dependent upon executive approval, and institutional inertia makes judges wary of acquittals. The persistence of the Procuracy as a powerful supervisory organ has been a particularly stubborn legacy, reinforcing prosecutorial dominance over judicial decision-making.

Efforts at Reform and Persistent Challenges

Ukraine has undertaken several rounds of judicial reform since 2014, aimed at dismantling the Soviet-era culture of police dominance. These have included:

• Introducing automatic case allocation to prevent judge–prosecutor collusion.

  
  

• Creating the High Council of Justice to insulate judicial appointments from executive control.

  
  

• Reforming the National Police and separating investigative functions from the Prosecutor General’s Office.

Yet reform outcomes remain uneven. While there has been a modest rise in acquittals in certain categories of cases, police and prosecutors still enjoy a structural advantage. Public perception of the judiciary as subordinate to law enforcement remains high, and political leaders frequently exert informal pressure in high-profile cases.

The persistence of Soviet legal culture—rooted in the political conception of law as a tool of state policy—means that dismantling police primacy requires not only legal reform but a generational change in institutional ethos. Until judges see themselves as superior arbiters of the conclusions of the Police and prosecutors, rather than administrative validators, the shadow of Soviet practice will remain.

Conclusion

The primacy of the police in Soviet courts was no accident; it was the logical outcome of a legal philosophy that rejected separation of powers in favour of unified state authority. This philosophy was embedded in codes, institutions, and career incentives, ensuring the subordination of the judiciary to investigative bodies. In Ukraine and other former Soviet republics, the legacy has proved remarkably resilient. Efforts to build independent courts confront not only the letter of inherited law but also the deeply ingrained habits of those trained under the old order. The Soviet system may have vanished more than three decades ago, but in the uneasy relationship between courts and police across much of the post-Soviet world, its lineaments are still visible.