Judicial reform in Russia

Judicial reform in Russia: institutional and societal transformation analysis, results review, prospects determination

The judicial system in Russia is the permanent analysis issue of the INDEM Fund. In 2001 the report “The judicial reform: since the concept of 1991 till nowadays (inventory procedure)” was made. This report has been occurred some fruitful subject of the very imaginative conference held by the INDEM Fund.

In 2005-2006 within framework of the grant provided by the Ford Fund and based upon some pilot project a report “The concept of the complex investigation as per judicial power conditions and prospects” was performed. The preparation work and discussion on this document have been carried out under intellectual and professional cooperation with high-skilled judges including members of the Constitutional, Supreme Courts etc. The analysis concept and new ideas has been supported by the experts.

Some basic ideas have been used for the project resulting both out of the initial diagnosis as per judicial system conditions to be performed within framework of the project “The concept of the complex investigation as per judicial power improvement conditions and prospects” and upon results of any other projects provided by the INDEM Fund. It is anticipated that some defects and failures of the judicial system transformation from the totalitarian one to the liberal and democratic issue may be specified by factors as follows:

1. The effectively functioning institutions and, in particular, the Western judicial systems have been caused by not only goal-oriented projects but also resulted as some natural institutional drifting within first development stages especially.

2. Within process of the institutional drifting some specific institution and, particularly, the judicial system has formed its story (drifting trajectory); “has become overgrown” with various connections (couplings) with any other institutions, traditions and informal social practices and specific features of the social perception.

3. The judicial system effectiveness must be determined not only by its specific institutional design but functioning its adjacent institutions and its couplings' quality as well.

4. The primitive “project” transfer onto unprepared social realm of the formal institutional "body" as some laws' set and under some ignoring procedures the above interrelationship and the entire misunderstanding of the social realm features where this transferring procedure is being made (“transplantation”) as per this institution resulting as some rejecting this new formal institution. Thus its functions may be discredited substantially to the social mind.

5. The elaboration of some new attitudes towards judicial system transformation should be based not only on using any formal copies of the successful judicial systems but also with consideration of its compatibility to the ambience, knowledge of the relevant social and institutional realms within which the judicial system transformation is being carried out as well as some negative experience research procedure.

In connection with the above this suggested project has been oriented upon relevant analysis of the items as follows:

· institutional drifting of the Russian judicial system;

· contemporary conditions of the Russian judicial system;

· functioning process of the judicial system demonstrated by two Western countries;

· transformation experience of the judicial systems by the example of some 7-10 transit countries.

Under exploring any targets it is supposed to consider some factors to any various extent as follows:

· formal institutional design of the judicial system and adjacent institutions;

· traditions and informal practices;

· legal citizenship and specific social groups' consciousness (professional, groups of interest etc.);

· information realm particularities;

· institutional functional results.

Within this process the functional survey of the judicial system and its results must be performed through some criteria system which may feature any modern democratic judicial system.

It is suggested that synthesis of the analysis results upon the abovesaid lines would enable, firstly, to elaborate some new attitudes towards Russian judicial system transformation; secondly, within framework of the new approach to suggest some specific measures on the Russian judicial system transformation; in the third place, to provide a model of the new approach to the planning procedure of the judicial system reform in any other countries; in the fourth place, to be used as the sample of the planning procedure as per modernization or implementation of any other institutions within transit countries. The project results will be displayed in the series of publications, presented at some various seminars and special final conference.

The qualitative functions of the Russian judicial system may be nowadays evaluated contradictorily. On the one hand, it is obvious that since official approval of the Concept of the judicial system in 1991 its major issues have been formed in the institutional way and, above all, within RF Constitution framework. Both RF President and supreme courts' heads do consider that in general the judicial reform had been successfully completed, and now there is a job to improve it to some extent.

On the other hand, some sociological citizenship polls may demonstrate a very poor confidence in relation of the social communities to the judicial power. A lot of judges including very famous persons can suggest that some independence and self-dependence of the judicial power had not been achieved yet. As experts reported, the judicial staff may be dominated by such frame of mind as fear. This inadequate functional judicial system, to the experts' opinion, must be displayed by some excessive accusatory accent of the court decisions. Some experts, mass media and other information sources make evidence of the recurred so called “phone right”, any expansion of the other illegal influence on the judges, interference of the courts' heads in the legal proceedings. The prolonged proceedings' periods, bailiffs' failures and any other problems may be noted as well. The experts could say that the existing issue of the non-performance of the legal awards deprive of the judicial power prerogatives. Some suggestions repeatedly occurred on the close interrelationship between courts and prosecutors' offices. This is the most non-reformed institution in Russia with negative effect on the functions of the judicial power branch. Finally, the experts mentioned some judicial system being dependent on the political issues emphasizing the power monopolization which eventually may cause some usage of the judicial power for solving any private political and selfish problems.

One of the mostly widespread accusations to the legal courts is its corruption (although these courts could not be separated from any other powerful institutions). As per any data of the diagnostic surveys in relation to the Russian corruption provided by the INDEM Fund in 2001 and 2005 the summarized portion of the supreme courts' activities has been evaluated as “rather dishonorable” or quite dishonest ones rising by 5% and 3% respectively; this percentage for the courts below line is 8% and 6% respectively. The high courts' corruptibility has been noted by the RF President.

Another example of the inadequate or unsatisfactory functioning judicial system may be presented by the official legal statistic data. In 2005 some 1374 court decisions were made on the bribes' proceedings including only 222 such sentences as deprivation of liberty. With consideration of the judicial system accusatory accentuation this kind of indulgence may be supposed at least as absolutely inappropriate to the important and large-scaled corruption problem.

Along with it the practical expansion of the citizenship protection of its rights is quite evident within courts under numerous court decisions in favour of the citizens. As noted by the experts, this massive routine court decisions which are far apart from the public attention could be adequately “ground” by the legal system. Thus, some very controversial image of the judicial system can be occurred.

Under some efforts to consider any final criteria characterizing our judicial system it is necessary to bear against the respective citizens' opinions and its practice. The INDEM Fund and other research centers' data on the above are presented below.

As per the analytical “Levada Center” in 2005 only 16% of the population could trust the judicial system. On evidence of the other competent sociological “Public opinion fund” in 2004 the positive assessment of the judicial system and judges' activities was made in 26 % of any cases. It is interested that under the suggestion such as “One could say that the Russian court decision is governed just by the law. Other one could consider the Russian court decision is governed not only by the law but also any other circumstances. Which opinion – first or second one – do you agree?” – 62 % of citizens gave agreed with the second sentence.

The following evaluation of the courts has been made by the respondents during two surveys provided by the INDEM Fund under replying to the question as “There are different suggestions on the judicial system and our judges. How can you evaluate in relation to it the following sentences?” (the frequent selection as "Agreed" is shown in the Table):

Sentences' versions	2001	2005
One could gain a lawsuit more often if the plaintiff has paid more	75,0%	84,3%
Many persons do not wish to make a claim as they do not suggest to obtain a fair decision	78,6%	83,6%
Many persons do not wish to make an appeal as some unofficial costs are too high	72,2%	82,7%
Any boss can very often force to make a required decision by the judge	64,8%	79,0%
Our judges have such official immunity so that to operate in any possible manner and without any fear	39,2%	52,8%
The judges are poorly protected, they have a small salary so some of them start to get bribes	46,0%	37,6%
The judges are too non-skilled so that to make proper decisions	23,2%	29,4%
Now a citizen can protect its rights and get a fair decision in the court	17,1%	28,0%
Finally we've obtained out independent courts and normal judicial system	10,1%	18,9%

Thus one could see the obvious growth of the negative evaluations as per all items.

Upon our survey of 2001 about 14,5 % of the citizens at least one a year make appeal to the court so that to protect its rights and interests. Less than quartet of it could be satisfied upon such "meeting with state authorities". On the evidence of the same research work data 27 % of the citizens within two last years required some necessity to make appeal but they refused to do so. Thus, in general such an image of the judicial power low prestige has occurred resulting in some reduced demand for its services. And such situation has been formed not being quite deservedly against the information background upon any scandalous judicial system activities.

Another one line of the experts' intellectual search together with the INDEM Fund participating in the investigation procedure of the judicial system has been targeted towards some individual properties of the judges. Apart from any fear starting since 2002 as some psychological dominating idea the various features were mentioned as such ones which may affect the judges' activities. These properties can be divided into two sections. The first section refers to any individual professional features such as professionalism, impartiality, readiness to maintain its independence, moral firmness etc. The second one includes some properties to be characterized as the metaphorical “psychological portrait”. In particular, at the project preparation stage our experts have noted such essential phenomenon as fear whereas it is important to find out both the fear origins and its structure. Besides, it is necessary to state any extent of the accusatory accentuation of the Russian legislation and the degree of its institutional or social and psychological phenomenon. The similar task is also available as to the issue of the judges' disparate operations in relation to the proceedings' participants.

The most crucial result of the experts' survey has rooted in the necessity of any alterations both within normative documents of the judicial system and its “habitat”. The conclusion is quite logic one and may be corroborated by any other elements of the judicial power anamnesis. Along with it the pilot project constitutes evidence that both experts' and official suggestions do mix some faults (disadvantages) of the legal institutions and its reasons' estimates while under search of the latter not all of it may be noted. In other words, no any system and objective vision of the judicial system is available as some real judicial system condition (institutional, functional and mental), its reasons and ways of solving the main task as the judicial power to be complied with the legal lawful state standards.

Dissatisfaction by the judicial system has been reasonably expressed also in the authorities' activities on improvement of the normative documents and occurrence of the new concept projects. Though any replies to the above questions aren't quite evident. Thus, the new concept of Polyakova-Pashin is the very competent document but lacking of some proofs so that to determine respective reasons of the current power faults, methods of its cancellation, priorities' establishment. More problems are arising from the authorities' initiatives in this sense.

The problems of interrelationship between judicial power and any other institutions, political regimes' features and social consciousness are periodically occurred within scientific literature. But in the majority of cases either some individual specific interrelations or such static ones could be interpreted without its historical context of the institutional drift. The tasks can be posed as any search of the mutual interference of the individual institutions' isolated features rather than as mutual properties' conditionality formed by the institutional drift process. Any informal and background practices and its coupling with the judicial system may be surveyed very rarely.

Thus, both data of our pilot research work and analysis of the scientific context could confirm the suggested project topicality in relation to its performance as presented above which will be described fully below. No doubt that it is necessary to obtain the concentrated efforts on complex analysis of functioning Russian judicial system at the crossover as to any vast image of the four following realms: historical, institutional, societal and comparable per countries.

1) any opportunity of detention, confinement and imprisonment are allows only upon court decision; no detention available more than 48 hours prior to the court decision (Part 2 Clause 22);

2) right of each person for the legal proceedings within such a court and by that judge whereas this case may be referred under its jurisdiction (Part 1 Clause 47);

3) right of the defendant for a legal proceedings with jury participation in the cases as stipulated by the federal laws (Part 2 Clause 47);

4) right for obtaining some skilled legal aid including free assistance in any cases as stipulated by the laws (Part 1 Clause 48);

5) right of each detained, imprisoned, accused person to use its legal adviser assistance from the moment of its detention, imprisonment or indictment (Part 2 Clause 48);

6) inadmissibility of any repeated conviction for any one and the same crime (Part 1 Clause 50);

7) under administration of justice inadmissibility of any using evidence obtained by some methods with non-observance of the federal law (Part 2 Clause 50);

8) right of each convicted person for its conviction to be reviewed by any court of higher level in an order established by the federal law as well as any right to appeal for pardon or mitigation of the punishment (Part 3 Clause 50);

9) right of a person not to give evidence against itself, its consort or wife and close relatives to be determined by the federal law (Part 1 Clause 51);

10) realization of the rights of the crime victims and under abuse of power, its access to any legal actions and compensation of the losses incurred (Clause 52).

But the abovesaid indicators are not quite enough as it had been found (confirmed) in the course of the pilot research work and insufficient for any full-scale and comprehensive description of the judicial system condition. So we suggest to include some five additional indicators, namely as follows:

· degree of corruption within courts;

· level of the judges' legal skills;

· human resources for replenishment of the judges;

· admissibility of the legal protection;

· openness of the judicial system.

The INDEM Fund experience suggests that any implementation of the new and fundamental ideas into the human practice and consciousness may take a significant period of time. For example, the schedule of the idea of lawful expert examination as for the legal acts' corruptibility declared by one INDEM Fund report in spring 1998 was carried out in the following manner (under full spontaneous promotion of the notion and without any pressure from the authors). The start of 2000 – the first important and significant public expert examination of the project. The start of 2002 – an order from the Ministry of Economy and Development for the development of the relevant methods of the lawful expert examination as for the legal acts' corruptibility. The period of 2003-2005 - some "reproduction process" of any various methods based upon the INDEM Fund works; the performance of any individual expert examinations within different regions and departments. The start of 2006 – the Ministry of Economy and Development implements the recommended methods of the analyzing methods as for the lawful expert examination as for the legal acts' corruptibility into any regional authorities.

One could expect that this given project results would be also implemented not so quickly. Although there are some circumstances which may accelerate the process. Firstly, the idea of “cultivating” any institutions instead its “transplantation” has been already available under respective scientific and experts' communities. So this given project results can be implemented into a quite good and ready realm. Secondly, since 1998 the INDEM Fund development and elaboration notions grew significantly.
In the third part, the promotion process of any new ideas within our country may be supported by such new resource as accessible for the INDEM Fund. Here we mean the implementation of any similar ideas through the "Altus" international alliance which has been involved into the project from the very start.

It is obvious that one could anticipate from this given project not its immediate and practical results but some implementation of new ideas which, in a successful event, may "grow' not so fast but could have a great potential of any further and long-term consequences. The initiators of the project suggest that its realization procedure would lead to the results as follows:

· any new attitudes to the analyzing functions of the institutions and its development, firstly, referring the subject of matter as the judicial systems;

· any new attitudes to the projecting transformation procedure as for any judicial systems and any other institutions;

· any new knowledge on the interrelationship of the judicial systems along with its institutional and societal environment;

· any new attitude to the development of the practical recommendations on judicial system transformation;

· any new attitude to the evaluation procedure as for any efficient judicial systems and monitoring process of the judicial systems' institutional dynamics;

· any project experience of solving complex problems of any institutional transformations on the basis of the complex experts' teams operated at the joint edge of various subjects and using a wide range of relevant methods.

It is necessary to emphasize specially some essential questions (as results) to be replied in due course of the project realization. These replies are important for any practical issues as for the further transformation of the judicial system in Russia.

The first set of questions refers to the evaluation of the 1991 Concept and its substantiality, development, system-defined properties, consistency in the light of the analyzing procedure being made in the project course.

The second set of questions refers to the checking procedure of a famous thesis on a judicial system completeness:

· Is it possible to declare that the judicial reform has been completed?

· If the judicial reform goals have been realized completely?

· What kinds of the judicial reform goals have not been realized and for what reason?

The third set of questions refers to any reasonable or unreasonable issues of any further continuation of the judicial reform:

· Is there any sense to keep on this judicial reform furthermore and, if yes, so for what kind of goals?

· Should the Concept of the judicial reform be added with any new goals and/or new measures?

· What kinds of results have been obtained or not obtained and why?

· Where and from which point it is necessary to begin with any transformations – from the self-reforming judicial system itself by way, for instance, some appropriate human resources' policy (and what kinds of measures are to be taken in relation to it) or from the alteration of any political system in view of forming some political competition (and what is necessary for it)?

· If to start any political system alterations, so is there any sense prior to such global changes to alter something as for any material and procedural norms regulating legal activities?

· When this judicial reform may be completed (if it would be continued) and what kind of indicators can be used so that to determine a degree of such completeness?

· What kind of any alterations and its order should be made within the institutions coupled with the judicial system?

The fourth set of questions refers to the searching some subjective reflection of the judicial system predestination:

· How some independence/dependence of the court and judge can be formed?

· Is it possible to declare about any dependence or partiality as for the judges as system?

· How the judges' fear can be formed: at what stages, institutions and by which factors?

· This fear may be featured by any possible reasons: under any unreasonable retirement? Under any loss of career prospects? Under any legal proceeding? Under any harsh treatment?

· The locations of any principal “pressure points” – are they available within this judicial system or outside?

· How the jury may be protected from any discrediting procedure?

· What kind of measures are required so that to cancel (to minimize) any principal factors deteriorating any independent, non-partial, accessible and fair administration of justice?

Lastly, the fifth set of questions must find out any obstacles as for the judicial reform goals to be completed:

· Why the judicial reform is stubbornly refused now?

· Is the respective federal program in compliance with the judicial reform goals?

· What kinds of any economic, social, political, mental and any other reasons are available as for any successful or unsuccessful individual components of the judicial reform?

The project results may be improved due to its promotion by such international entities as the World Bank, International Monetary Fund etc. For this purpose it is presumed to perform some individual presentations procedures. Secondly, the results may be promoted towards realm of the legal staff human resources' preparation. So it is reasonable upon completion of the project and on its basis to take the respective measures on preparing some relevant training appliances such as the “Judicial systems' transformation”.

The project results' (in the sense as above) estimates may be indicated by any references to the works published within projects' realization framework. The number of countries where this project methodological ideas may be reproduced could serve another type of relevant indicator.

Police Station Visitors Week 2006

In a one-week period starting on October 29 2006, more than a thousand civilian visitors inspected 471 police stations in 23 countries around the globe. This unique global event --the Police Station Visitors Week-- was organized by Altus to assess the quality of service delivered in the participating police departments, to identify some of the best practices in use by police, and to strengthen the accountability of police to the local citizens whom they serve.

The visitors used a special kit developed by Altus to guide their visit, following protocols that were the same around the world. Immediately after each visit, the visitors answered 20 questions about what they observed. Altus collected the scores over a secure web site and verified them. The scores are based on visitors’ individual perceptions about the police stations. Expectations for police service vary across countries and within localities. As a result, the scores measure the extent to which visitors perceive the police in particular stations to be meeting or even exceeding local expectations in globally comparable areas of service. Altus designed the scoring system to channel the opinions of local visitors into measures that are useful to police officials. The Altus Global Alliance used the ratings supplied by the visitors to calculate an overall score for each station, as well as separate scores in the following five categories of service: