Is Russia’s judicial system reformable?

In this interview for oDRussia, Prof.Alena Ledeneva talks to Oliver Carroll about the prospects for judicial reform in Russia. Medvedev’s efforts amount to far more than rhetoric, argues Ledeneva. Her ongoing research into the subject suggests that they strike at the heart of Russia’s informal system of government.
Oliver Carroll Alena V Ledeneva
12 March 2010

OC: A fairly prevalent approach today views the Russian judicial system as dysfunctional: unwieldy law and shadowy governmental interference. To what extent is this caricature justified?

Alena Ledeneva

AL: Let’s start with the positives. With respect to the basic legal code, the Russian Constitution is one of the most exemplary documents of its kind anywhere in the world. In general terms, too, much Russian legislation would pass any test of legal expertise. The problem is when we start talking about coherence and consistency. Alongside a lot of really good legislation you have overregulation — both in terms of high administrative barriers and old regulation that has yet to be annulled or taken out of circulation. You also see a patchy and unpredictable way of implementing legal norms or legal decisions.

In other words, overregulation plus under-enforcement — that’s the short formula.

In terms of administrative pressure, the judicial system is clearly exposed to the broader set of informal practices, unwritten rules and loyalty bonds that dominate Russia’s model of governance. These influences are what Russians collectively refer to as “the system”, sistema. Broadly speaking, the expert consensus is that while it would certainly be a caricature to suggest that every court case in Russia is decided according to directives from above, it is certainly possible to imagine a way sistema can produce “correct” judgments for the government.

OC:How are such “correct” judgments delivered in practice? Is it simply a matter of a telephone call from Kremlin to judge? Or are indirect considerations — perhaps the prospect or otherwise of career growth — more important?

AL: Oral commands from above certainly play their part. This is the most literal manifestation of telefonnoye pravo, or “telephone justice”, a term you sometimes find in the media today. On the other hand, as you say, informal pressure does not have to be directly communicated. It can be the kind of pressure that reins you back from stepping outside the system. The dependence judges have on court chairmen, their managers. The self-censorship. The need to play by unwritten rules in order to function or prosper within the judicial system.

These are the kinds of pressure I focus on in my research. Unfortunately, they are also the most difficult ones to get at, since people themselves have trouble identifying it. Insiders don’t want to “flag” it. It is only really thanks to the whistleblowers who speak out that we have some knowledge of it. Judge Olga Kudeshkina is one good example, though she isn’t alone: Pashin, Morshchakova, and most recently Yaroslavtsev and Kononov have all provided important information for the record.

One thing that my informants consistently bring up is the central role of krugovaya poruka  within this professional community. What they mean is a feeling of mutual accountability and control. In other words, judges feel corporate about what they do. They don’t want to spill things out. Of course, all this makes disciplinary review by judicial committee very difficult. Judges understand that they too could find themselves under the same spotlight, and so they act accordingly. A 2001 reform tried to reduce some of these contradictions by introducing outside legal experts on to judicial qualification committees — the ones that decide on promotions, appointments and disciplinary proceedings. By all accounts, this was actually a progressive and successful reform.

OC:The process of appointments is a crucial chapter in any story of dependence. Do we have any data on how judges are recruited? Who are they? What kind of areas are they recruited from?

AL: From the interviews that I have done with judges and other experts, it is clear that appointments are subject to clearance from government agencies and certain officials within the executive. Very often, that clearance test or series of interviews are informal negotiations or ways to communicate to the judge certain expected alliances and loyalties. As Judge Kudeshkina said, it is very difficult for an independent official to get appointed. If you don’t play loyalty games, you’re not even in the running.

The situation with appointments generally is that there have been an enormous number of vacancies in the judicial system. This started with the 1990s reforms, which created jury trials and additional court tiers. In 2000, 8% of judges’ benches were vacant: there just weren’t enough people with adequate qualifications. In the event, the vacancies were frequently filled by former clerks of the court, who were fast-tracked to appointment after completing evening courses.

Unsurprisingly, many of the appointments were far from perfect. On the other hand, as the former deputy chairman of the Constitutional Court Tamara Morshchakova has argued, with weak appointments comes dependence. This is quite important. Even if you give inexperienced people all the independence you want, they will not know how to use it. They would be lost without a hint or tip-off from the court chairman.

OC: So this would, perhaps, be an intentional policy?

AL: In part, it is the workings of sistema. If you want to have people who are compliant with the chairman of the court, you have to have them weak, defective and non-professional. Because then they are easy to guide. That is certainly part of the story. The other part is all the things we have talked about before: corporate responsibility, the threat of compromising disclosures and so on. Dmitry Medvedev is himself is to some extent a product of sistema. Putin chose him for the presidency both because of his personal loyalty and because of his lack of experience of public — as opposed to backroom — office.

OC: And yet, despite being a product of sistema, Medvedev has somewhat turned his back on it. He has talked at great lengths about tackling government corruption, ‘telephone justice’ and appointment nepotism. How much of this is actually genuine? Is any of it significant?

AL: I would argue that the rhetoric is actually hugely significant. It is the first time that systemic defects of this kind have been publicly acknowledged at the presidential level. Medvedev has even said they represent a threat to national security. The very fact of such acknowledgements counts.

It would be wrong to say that Medvedev’s actions have been limited to words. He has also put forward reforms that are, in essence, a profound challenge to the operations of sistema. His proposals for reforming the appointment system for top bureaucrat positions, for example, are quite radical. Today, these appointments largely rest on personal contacts and cash.

Medvedev has suggested two basic reforms: first, the creation of a national database of governmental officials; and second, the introduction of a presidential quota for appointments. The first hundred nominees of this planned 1000-strong “golden” list of candidates were published in February last year; and a further 500 were announced very recently. Most of them are young, dynamic and successful. Of course, critics rightly point out the lack of transparency in the creation of the list — who chose the names and under what criteria? On the other hand, the database introduces many new faces who could help run against the principles of sistema.

OC: Does Medvedev have sufficient power base within the Kremlin to tackle vested interests in the way you describe?

AL: We don’t know. What is interesting is that Medvedev seems to be developing a rather different power base to Putin’s. Whereas, in broad terms, Putin’s constituency is the ex-military and ex-security men, the siloviki, Medvedev’s natural constituency is with his former colleagues in the civil law department of the Leningrad State University, the “civiliki”. Where Putin signified a transfer of power from criminal gangs to siloviki, Medvedev may well yet herald a transition from siloviki to civiliki.

You do see that, under Medvedev, the legal elite is generally operating with increasing independence. Most famously, you have the 2008 Boyev vs Solovyov libel case, which brought together Valery Boyev, the head of the rewards department in the Kremlin, and Vladimir Solovyov, a prominent broadcaster who made statements alleging the Kremlin’s control of the arbitration courts. This was a run-of-the-mill case that everyone expected Boyev to win, given his governmental seniority. That was until a dramatic intervention by Yelena Valyavina, the first deputy chair of the Supreme Arbitration Court, who made an extraordinary statement in support of Solovyev’s claims.

OC: Stating that she had, in fact, been pressed by Boyev to return certain judgments ...

AL: Exactly. Her evidence was hugely decisive and Boyev withdrew the case. Indeed, the statement has since been used in British courtrooms as proof of governmental pressure in the Russian system.

Valyavina’s statement was quite unprecedented. While I can’t be sure about the Soviet period, at no point during recent times has a senior woman judge taken to the witness box to make a statement of this sort. Moreover, one can certainly imagine that prior to making it she consulted with the head of the Supreme Arbitration Court, Anton Ivanov; and that Ivanov in turn consulted with his friend and co-author, Dmitry Medvedev.

The Valyavina statement is as clear a signal as you can get that the president does not want bureaucrats interfering in the work of the courts.

OC: Then again, some commentators have highlighted the fact that no action followed: no one has been prosecuted. Their suggestion is that the whole story amounted to little more than PR on Medvedev’s part...

AL: Well, you need perspective. Let’s just go back for to 2005 a moment. Then you had a case where a woman was prosecuted for making a prank call to the court. She had pretended she was the secretary of the chairman of the Supreme Arbitration Court; and because she had worked in the judiciary and knew all the small-talk, she wasn’t identified immediately. When they realised it was a prank call, the woman was tracked down and a whole show case about telefonnoye pravo was instigated against her.

That was a strange trial. It punished an outsider for an unsuccessful attempt to use telefonnoye pravo, while asking no questions of the system, which seemed to continue working for insiders. 

So, in that perspective, you have to say Valyavina’s statement represents huge progress.

OC: You mentioned the arbitration courts. These have attracted considerable attention in Russia, both for the links between Anton Ivanov and the president, but also for an increase in caseload: in Medvedev’s first year, there were 36% more cases. Is there much variation between the different types of court?

AL: There are three main types of courts in Russia. You have courts of general jurisdiction, topped by a Supreme Court. You have the arbitration courts and the Supreme Arbitration Court. You have a Constitutional Court, consisting of nineteen judges, which defines the appointment procedure for all of those three. In terms of the Courts of General Jurisdiction you have an amazing number of court tiers — about five in total.

Of all the courts, the arbitration courts, the courts that settle commercial disputes, do enjoy the best reputation. First, they are new, post-Soviet institutions: they did not exist as such in Soviet times, so the judges are newly trained and recruited. Second, these are courts that require real expertise, meaning judges tend to be better and more efficient at what they do. The US scholar Kathryn Hendley has done quite a lot of work on these courts. When she analysed the cases, she came to the conclusion that by and large their decisions were entirely professional. She could not find much that either contradicted the law or pointed to informal influence on judges’ decisions.

OC: Hendley also has an interesting perspective on reform generally, saying that pressure from below will be as important in Russian judicial reform as any top-down effort. Does your research show that Russian public is in any way engaged in the judicial process? Is there any real consensus at the top?

AL: Kathryn Hendley would certainly feel there is a growing demand for law. Indeed, her data shows that as many as three in ten Russians revert to the courts whenever they face a problem. The same surveys also show that the courts are, in fact, the most trusted official institution in Russia — ahead of the police and so on.

This is not, however, the same thing as saying there is any sort of sustained pressure from below. For that, you would need civil society to organise itself along the lines of housing associations, or motorist organisations. In the judicial sphere, you just don’t have that kind of association. Sure, people who lose their cases do sometimes get together with other people who lose cases, but their situations are usually different. There is no foundation for protest, and certainly no civic movement. As is well known, human rights campaigners find it notoriously difficult to operate. They do what they can, but aren’t in any position to change the system.

As regards consensus at the top, what we can say is there is consensus on strategy. In terms of strategy, the entire government is for improving the investment climate, for deciding cases inside the country rather than in Strasbourg, for judicial reform and for the creation of an independent judiciary. That is not an issue. The issue is tactics, and there they certainly differ.

OC: To finish with the crucial question, is it at all likely that Medvedev’s reforms can succeed against sistema?

AL: In all probability, the reforms will only be partially successful. One problem is that elite-initiated, top-down efforts are very difficult to sustain. Being a legalist is not necessarily in Medvedev’s favour here. He believes that it is possible to change the system by changing the law, whereas what actually needs to be changed is culture, institutional culture. Specifically, you need to combine mechanisms that increase risk for non-normative behaviour, but also create protection for those who want to go professional, like Olga Kudeshkina. That has proven, so far, to be very difficult to achieve.

Second, any change in the formal rules introduces yet another constraint to be dealt with informally. If Medvedev really wants to make changes, ultimately he will be forced to work through sistema. He will, for example, have to use oral commands and make sure they are followed. One way of interpreting the Valyavina affair, indeed, is that it sent a new signal: one which instructs officials and businessmen not to interfere with the courts. The last time a formula such as this came into play was with Mikhail Khodorkovsky, who ignored an oral command not to meddle in politics and was sent to prison as a result. It will be interesting to see what — if any — sanctions will be applied in relation to those who break this latest settlement.

Alena Ledeneva is Professor of Politics and Society at SSEES University College London

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