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Wednesday, May 30, 2007

Annals of Russian "Justice": Another Failing Grade for Russia

Blogger and attorney Robert Amsterdam reports that Transparancy International has issued yet another failing grade to Putin's Kremlin, this time over its so-called "justice" system:

At the end of last week, corruption watchdog Transparency International issued its annual global report with respect to corruption of the world's judicial systems. The full report is well worth reading, as Russia is heavily featured as one of the countries that has significantly backtracked against international standards with political corruption of the courts. Below is an excerpt of an analysis written by Tom Blass, freelance journalist and consultant with the Foreign Policy Centre, taken from Chapter 2 ("Independence, political interference and corruption") of the new TI report. (click through to the PDF version to see all the footnotes.)

Combating corruption and political influence in Russia’s court system Tom Blass

Prior to the perestroika process, the judiciary was largely perceived as: ‘Nothing more than a machine to process and express in legal form decisions which had been taken within the [Communist] Party.’ The independence of the judiciary was one aspect of the changes called for by Mikhail Gorbachev in his groundbreaking speech to the 27th Party Congress in 1986.

The reality – a supine, underpaid judiciary, ill-equipped to withstand corruptive practices and the influence of economic or political interests – has proven slow to change, despite a series of reforms by Boris Yeltsin and his successor, President Vladimir Putin.

A 1991 decree by the Supreme Soviet of the Russian Federation established the judiciary as a branch of government independent from the legislature and the state. The following year, a Law on the Status of Judges was introduced that granted judges life tenure after a three-year, probationary period; new powers to review decisions by prosecutors regarding pre-trial detention; and established the role of the judicial qualification collegia – self-governing bodies, composed by and responsible for the appointment and regulation of members of the judiciary. The Yeltsin regime transferred control over the financing of courts from the Ministry of Justice to a judicial department attached to the Supreme Court, further distancing the judiciary from the executive branch.

After Putin was elected president in 2000, he made numerous assertions about the importance he attached to the judiciary. ‘An independent and impartial court is the legal protectedness (sic) of citizens,’ he said in 2001. ‘It is a fundamental condition of the development of a sound, competitive economy. Finally, it is respect for the state itself, faith in the power of the law and in the power of justice.’

President Putin’s Programme for the Support of Courts 2002–06 was structured to increase funding for the court system as a whole, including judges’ salaries. Top pay is now around US $1,100 per month for judges, although average judicial salaries are closer to US $300 per month. More recent developments include a move toward publishing details of court judgements.

While elements of these reforms are positive, new threats to the independence of the judiciary have emerged, with the International Bar Association, the OECD, the International Commission of Jurists, and the US State Department all expressing concerns at practices they perceive as not conducive to the independence of the judiciary.

Judicial appointments

Not all judges welcomed Putin’s attempts at reform. Among his initial targets were the qualification collegia, established in the early transition and responsible for appointing and dismissing judges. Originally these were constituted entirely by judges, but the 1996 Constitutional Law on the Judicial System was amended in 2001 so that one third of the membership would be constituted by legal scholars appointed by the federation council – which is appointed by the president. Under the Law on the Status on Judges 1992, judicial appointments were made by the president ‘based on the conclusions of the collegia relative to the court in question’. The same process applies to the appointment of court chairpersons, whose tasks include allocating cases and overseeing the running of courts. They wield substantial influence over the careers of their fellow judges.

In a 2005 report on proposed changes to the structure of the collegia, the International Bar Association (IBA) said it was ‘particularly concerned by a number of cases of judicial dismissals where undue influence appears to have been wielded by Court chairpersons or other parties’. ‘A system which could allow chairpersons to cow or eliminate independent-minded judges’, it noted, ‘is in practice the antithesis of recognised international standards for the judiciary’.

The IBA cited a number of instances in which it was alleged that undue influence had been brought to bear. In the case of Judge Alexander Melikov, dismissed by a qualification collegium in December 2004, it said it had studied the judge’s allegation that his dismissal followed his refusal to follow the directive of the Moscow City Court chairperson ‘to impose stricter sentences and to refuse to release certain accused persons pending their trials’. The IBA said that it was ‘impressed by his credibility’ and was satisfied there was no legitimate ground for dismissal.

Another recent case further highlighted the role of chairpersons. Judge Olga Kudeshkina was dismissed from Moscow City Court in May 2003 for ‘violating the rules of courtroom conduct and discrediting the judiciary’ after she claimed to have been pressured by the public prosecutor and the chairperson of the court to decide in the prosecutor’s favour in an Interior Ministry investigation.

In a widely publicised letter to President Putin in March 2005, Kudeshkina said the judicial system in Moscow was ‘characterised by a gross violation of individual rights and freedoms, failure to comply with Russian legislation, as well as with the rules of international law’ and that there is every reason to believe that the behaviour of the chairperson was possible because of patronage provided by certain officials in the Putin administration.

Perceived extent of corruption

While it is difficult or impossible to quantify the validity of Kudeshkina’s claims, her letter was in tune with the lack of public confidence in the judiciary. Research by the Russian think tank INDEM goes so far as to quantify the perceived average cost of obtaining justice in a Russian court. At 9,570 roubles (US $358), the figure is still less than the 2001 figure of 13,964 roubles.

Another Russian survey found that over 70 per cent of respondents agreed that ‘many people do not want to seek redress in the courts because the unofficial expenditures are too onerous’, while 78.6 per cent agreed with the statement: ‘Many people do not resort to the courts because they do not expect to find justice there.’ The same organisation estimated that some US $210 million worth of bribes is spent to obtain justice in law courts in a year, out of a total US $3.0 billion in bribe payments.

Senior court officials also hint at corruption within the judiciary. Veniamin Yakovlev, former chair of the Supreme Arbitrazh court, said that while mechanisms had been, and continue to be, put into place to root out corruption and the ‘overwhelming majority’ of judges conducted themselves lawfully, ‘it would be wrong to maintain that the judiciary has been purged of all traces of bribery’. In an interview with Izvestia, Valery Zorkin, current chairman of the constitutional court, was more forthright when he said that ‘bribe taking in the courts has become one of the biggest corruption markets in Russia’.

Anecdotal evidence (including from lawyers within Russia who would not wish to be named) suggests that the corruptibility of courts increases, moving down the judicial hierarchy13 and further away from Moscow.

Legal scholar Ethan Burger points out that large financial stakes and asymmetry between the parties in a court proceeding increases the likelihood of corruption,14 and that it is more likely to occur in trial courts than in the appeal courts since it is ‘easier to bribe a single trial court judge than a panel of appellate judges or members of the Supreme Arbitrazh Court’. Due legal process is altered in one of two ways, according to Burger: a judge may decide a case on its merits, but ask for payment before making a judgement; or the judge may ‘simply favour the highest bidder’.


The challenge now is for the Russian judiciary to build on the various reforms which have already taken place and to win the confidence of court users, regardless of the level of proceedings in which they become involved. But such a transformation will require more than structural or procedural reform.

Successive laws pertaining to the judiciary passed since the dawn of glasnost have reinforced or reiterated its independence. Despite some adjustment of their membership structure, the Judicial Qualification Collegia remain essentially self-governing. Salaries of judges and court officials, while low in comparison to those in Russia’s private sector and the West, have been significantly raised in the past 15 years. Civil society groups in Russia and outside (including TI) have been vocal in calling for greater transparency and openness within the judicial system.

Russian courts already have what is required to be fair, open and transparent. These elements need to be encouraged and consolidated. What follows are six concrete recommendations that can assist in consolidating what is fair, open and transparent in the Russian court system:

● The government should resist any further dilution of the judicial composition of the Judicial Qualification Collegia.
● Judges’ salaries should be regularly reviewed with a view to achieving near-parity with private sector salaries in order to reduce the incidence of bribe taking and to retain talent within the judiciary.
● The programme for publishing court decisions should be accelerated and expanded, with an emphasis on explaining the legal basis of judgements, the nature of disputes, the sums at stake and awards given.
● Local and national public awareness campaigns should be initiated to educate on the role of judges, the concept of judicial awareness and future expectations of the judiciary.
● The government should review existing penalties for corruption within the judiciary.
● Judges should be allocated cases on a randomised basis to minimise bias toward one party.

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