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Corruption in the Russian Judiciary


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Judicial Corruption in Russia is widespread. For many years neither the Russian government or donor organizations were willing to candidly discuss this topic. This era has ended.

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Corruption in the Russian Judiciary

  1. 1. The State of the Russian A rbitrazh Court System: Are We Being Too Unrealistic in Our Expectations? The Davis Center, Harvard University September 27, 2006 Ethan S. Burger, Esq. American University & Georgetown University Law Center [email_address] or [email_address]
  2. 2. Some Thoughts on Methodology <ul><li>63.7% of all statistics cited by academics in presentations are either false or misleading. </li></ul><ul><li>Quantitative data in the social sciences even if accurate are merely illustrative of qualitative phenomena. </li></ul><ul><li>When do anecdotes become data? </li></ul>
  3. 3. Analytical Framework <ul><li>The concepts of the “Rule of Law” and the term “Dictatorship of Law” are not merely semantic. </li></ul><ul><li>Russian reality does not envision a true separation of powers – when it does, the matter at stake is relatively unimportant or not of concern to the authorities. </li></ul><ul><li>“ Funded” research often generates unreliable or inaccurate findings. </li></ul><ul><li>Traditionally the field of Soviet or Russian studies lacked an adequate comparative base. </li></ul>
  4. 4. Structure of the Russian Court System <ul><li>Arbitrazh [Commercial] Courts System . </li></ul><ul><li>Courts of General Jurisdiction (Supreme, RF Subjects, District, Peace (less than $350 at stake). </li></ul><ul><li>Constitutional Court. </li></ul>
  5. 5. The Arbitrazh Hierarchy <ul><li>Courts of the 1 st Instance -- trial courts of republics territories, oblasts, cities, etc. </li></ul><ul><li>2 nd Level – Appeals Courts determine whether the law was properly applied to facts. </li></ul><ul><li>3 rd Level – 10 Federal Courts – focus on procedural issues. </li></ul><ul><li>4 th Level – Supreme Arbitrazh Court (some conflict with Constitutional Court) – explains the meaning of the law. </li></ul>
  6. 6. Dynamics of Court Appointments <ul><li>Judges are appointed by the President (but they must pass a qualifying exam). </li></ul><ul><li>Federation Council (now appointed by President) must confirm judges for the Constitutional, Supreme and Supreme Arbitrazh Court. </li></ul><ul><li>3-year term initially, but then reappointed for unlimited term, until judge reaches age 65). </li></ul>
  7. 7. Adopting Laws is a Good Start, but . . . <ul><li>RF Federal Constitutional Law of December 31, 1996, “On the Court System of the Russian Federation.” </li></ul><ul><li>RF Federal Constitutional Law No. 1-FKZ of July 21, 1994, “On the Constitutional Court of the Russian Federation.” </li></ul><ul><li>RF Federal Constitutional Law No. 1-FKZ of April 28, 1995, “On Arbitrazh Courts in the Russian Federation.” </li></ul><ul><li>RF Federal Constitutional Law No. 1-FKZ of June 23, 1999, “On Military Courts of the Russian Federation.” </li></ul><ul><li>RF Law of the RSFSR No. 976 of July 8, 1981, “On the Judicial System of the RSFSR.”   </li></ul>
  8. 8. Generalizations are Generally True <ul><li>While there is no such thing as a national weather report, the further one gets from Moscow and the more that is at stake in a case, the greater the likelihood that outcomes are determined by corruption. </li></ul><ul><li>What are the likely consequences if the best lawyers are in the private sector and former members of the procuracy represent a disproportionately large share of the country’s judges. </li></ul>
  9. 9. President Putin’s Comment on the Russian Judiciary in his April 25, 2005 Address to the Federal Assembly <ul><li>“ [I]f part of Russian society continues to see the court system as corrupt, there can be no speaking of an effective justice system in our country.” </li></ul><ul><li>“ Overall, I want to note that we need principally new approaches to fighting crime in our country. The relevant decisions will be prepared.” </li></ul>
  10. 10. Some Factors Contributing to Judicial Corruption <ul><li>Wages of Judges and Judicial Staff? </li></ul><ul><li>Complete judicial decisions are usually not published and even if they were decisions alone are not do not provide a sufficient basis for demonstrating corruption since decisions may be based on substantive or procedural grounds. </li></ul><ul><li>Culture that tolerates corruption and inadequate oversight mechanisms (official and media) . </li></ul>
  11. 11. 3 Models for Explaining Tainted Judicial Outcomes <ul><li>Judges review case and determine which side should prevail on the merits and then seek bribes to issue appropriate ruling. </li></ul><ul><li>Judge rules in favor of the highest bidder. </li></ul><ul><li>Judge follows the dictates of state officials (YUKOS) or members of organized crime groups. Sometimes, this is a distinction without a difference. </li></ul>
  12. 12. Don’t Be Fooled by the Word “Reform” <ul><li>It is easier to convoke an Advisory Commissions than to solve a problem. </li></ul><ul><li>Declaratory statements and framework legislation without the commitment to implement changes are principally for public consumption. </li></ul><ul><li>The funding of the courts at adequate levels, the modernization of facilities, and increasing salaries does not ensure the proper funding of an efficient and fair judicial system. </li></ul>
  13. 13. Are All Results Tainted? There are Numerous Factors To Consider <ul><li>If the arbitrazh courts are so corrupt, why has the number of cases doubled over the last 10 years? </li></ul><ul><li>Efforts are being made to improve transparency and improve court administration. Russia’s efforts are insufficient under its Council of Europe obligations as well as under the U.N. Anti-Bribery Convention </li></ul><ul><li>Training of judges has improved, but will trained judges stay? All transitions take time and Russia is no exception. </li></ul><ul><li>Private citizens have frequently prevailed against the government (particularly in tax matters). Perhaps this is because private parties have better lawyers and maybe because the government doesn’t bribe or exert pressure on judges in typical cases. </li></ul><ul><li>Judicial corruption is universal even in some U.S. state courts. </li></ul><ul><li>. </li></ul><ul><li>. </li></ul>
  14. 14. InDem Foundation Findings <ul><li>Survey Comparison 2001 & 2005 (see complete survey using URL provided on last page). </li></ul><ul><li>Fewer bribes from citizens to public officials (20% lower). </li></ul><ul><li>Average amount rose from $10,200 to $135,000. </li></ul><ul><li>Note that the Indian Center for Media Studies notes that former Chief Justice of the Indian Supreme Court estimates that 20% of Indian judges were corrupt. The Indian general public estimated the figure at 80% </li></ul>
  15. 15. What the RF Qualification Commission Data Show: Table 1 Complaints, etc. Received <ul><li>Year Number </li></ul><ul><li>1996 1839 </li></ul><ul><li>1997 2740 </li></ul><ul><li>1998 3655 </li></ul><ul><li>1999 4740 </li></ul><ul><li>2000 5463 </li></ul><ul><li>2001 5950 </li></ul><ul><li>2002 6993 </li></ul><ul><li>Vestnik Vyshei kvalifikatsionnoi kollegii sudii Rossiiskoi Federatisii [Herald of the Higher Qalification Collegium of the Courts of the Russian Federation, Issue No. 2, 2003, Annexes 1-5. </li></ul>
  16. 16. Judges Forced Off the Bench <ul><li>Year Number </li></ul><ul><li>1994 67 </li></ul><ul><li>1995 50 </li></ul><ul><li>1996 96 </li></ul><ul><li>1997 75 </li></ul><ul><li>1998 115 </li></ul><ul><li>1999 92 </li></ul><ul><li>2000 75 </li></ul><ul><li>2001 45 </li></ul><ul><li>2002 36 </li></ul>
  17. 17. Official Reasons for Removal <ul><li>violation of work discipline (13%); </li></ul><ul><li>falsification of judicial documents (12%); </li></ul><ul><li>other violations of the Judicial Code of Honor (8%); </li></ul><ul><li>violation of substantive and procedural legislation of the Russian Federation (53%); </li></ul><ul><li>red-tape [presumably inefficiency] (14%) </li></ul>
  18. 18. A Lack of Candor at the Top of the Russian Arbitrazh Court System? <ul><li>Initially, Russian Supreme Arbitrazh Court Chairman Anton Ivanov: </li></ul><ul><li>Argued that the extent of corruption has been exaggerated. </li></ul><ul><li>Gradually he seemed to take a more realistic position, following the lead of President Putin -- i t is impossible to completely defeat corruption, but it can be reduced. </li></ul><ul><li>. </li></ul>
  19. 19. Appraisal by One Who Should Know <ul><li>Deputy Presidential Administration Head Dmitrii Kozak (formerly the Southern Federal District Plenipotentiary and widely regarded as the major advocate of judicial reform). </li></ul><ul><li>When in charge of judicial reform he concluded: </li></ul><ul><li>- the judicial system must be overhauled; </li></ul><ul><li>- it is impossible to find justice there; </li></ul><ul><li>- one cannot hope for economic and political progress at a time when people do not believe in the judicial system ; </li></ul><ul><li>- the present day judicial system has turned into a veritable business where large enterprises are trying to delegate their representatives into the judicial system. </li></ul><ul><li>Source: Novosti January 27, 2005 </li></ul>
  20. 20. U.S. Govt is Finally Speaking the Truth (well sort of) about the Problem of Russian Judicial Corruption? <ul><li>Generalizing about the quality of the Russian judiciary is difficult. This situation has been noted by U.S. Ambassador to Russia Alexander Vershbow: </li></ul><ul><li>“ there is a troubling pattern in many regions - the conflict of interests at the municipal and oblast levels of government that work to keep out competitors. This tendency is exacerbated by the weak and often corrupt judicial system that fails to uphold court decisions. This is an all too frequent element in long-standing investment </li></ul><ul><li>Disputes involving foreign investors. At the federal level, policies are often pursued to support the interest of specific firms at the expense of competitors.” </li></ul><ul><li>In the U.S. Ambassador’s view, a foreign investor may be unable to receive a fair hearing of its case on the merits. That being said, even within a given judicial district, the quality of Russian judges from both a substantive and ethical standpoint is highly variable   </li></ul>
  21. 21. Disquieting Report of the Council of Europe’s Parliamentary Assembly <ul><li>“ The Assembly stresses the importance of the independence of the judiciary and of the independent status of judges in particular, and regrets that legislative reforms introduced in the Russian Federation in December 2001 and March 2002 have not protected judges better from undue influence from the executive and have even made them more vulnerable. Recent studies and highly publici[z]ed cases have shown that the courts are still highly susceptible to undue influences. The Assembly is particularly worried about new proposals to increase further the influence of the President’s administration over the judges’ qualification commission.” </li></ul><ul><li>Point 6 from Report: “The circumstances surrounding the arrest and prosecution of leading Yukos executives.” (November 2004) </li></ul>
  22. 22. Is there Discrimination Against Foreign Companies? Two Completely Opposite Views: <ul><li>U.S. attorney Glenn P. Hendrix participated in a study purporting to show that there was not evidence of discrimination against foreign legal entities. But his admitted limitations about the data raises questions about his conclusions. </li></ul><ul><li>Speaking at an OECD Conference entitled “Corporate Governance in Russia,” another U.S. attorney, Jeffrey N. Hertzfeld, indicated that the estimate that 70% of the cases heard by Russian courts Russia [presumably “high stake” commercial disputes] are determined by bribery. <Same as estimates for Argentina>. </li></ul><ul><li>Former World Bank Head James Wolfensohn stated that one of the “biggest obstacles to the development of legal and judicial systems [was] a situation where economic elites use the system in their own interests.” </li></ul>
  23. 23. Useful Websites <ul><li>Supreme Russian Arbitral Court -- </li></ul><ul><li>Higher Qualification Collegium of the Russian Federation -- </li></ul><ul><li>Russian Government Portal -- </li></ul><ul><li>Russian President’s Website -- </li></ul><ul><li>INDEM -- </li></ul><ul><li>Transparency International Russia -- </li></ul>