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. Last Updated: 07/27/2016

Legal Reform Aid: Is It Working or Isn't It?

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Email the Opinion Page Editor

In response to "Aid That Works," a comment by John Dooley, Feb. 15.

Editor,

Dooley's piece extolling aid for legal reform is a sad example of how someone's personal experience leads to horribly misguided generalizations. I can believe that Dooley has had some positive experiences participating in legal reform aid projects — so positive, apparently, that the grateful recipients of such aid have been able to pull the wool over his eyes. This I understand.

What I don't understand is how The Moscow Times can publish a piece — even an opinion piece — that is so full of blatant misstatements of fact. Here are some examples.

"Legal reform is occurring in Russia, although this progress gets far too little acknowledgement in the West. The court system is better funded; judges are better paid and better trained," Dooley writes.

Better trained? In the last 10 years educated people have fled the state sector, including the judiciary. Of roughly 15,000 judges working in Russia today, only 600 have advanced degrees (kandidat nauk, the rough equivalent of a master's; only one, the chairman of the Supreme Court, has a doctorate).

The vast majority of new judges are former court clerks who have completed a correspondence course in jurisprudence; their secretarial time is counted as "legal practice," and they get to sit on the bench as soon as they graduate.

Better paid? Judges have had two pay raises in the last 18 months or so, and both have fallen short of making up for inflation. A city court judge with an advanced degree makes less than $200 a month; others make less.

Better funded? Moscow judges routinely violate the Constitution by not wearing robes and holding hearings in rooms that do not have a state flag or state seal. This is because the courts can't afford to buy this equipment.

"Reforms have separated the Russian courts from direct executive-branch control."

That happened seven years ago; since then the system has been backsliding — a process that has speeded up a great deal since Vladimir Putin became president.

The prosecutors have regained most of the ground they lost when the right to exercise control over courts was taken away from them. What is that if not executive branch control? If that is not enough, there is the new bailiff service, which is directly controlled by the Justice Ministry. If a decision is not to the executive branch's liking, the bailiffs can enforce it the right way. A good example is the recent arbitration court decision to arrest 19 percent of NTV stock without suspending Media-MOST's right to vote with those shares. The bailiffs who came to the company to serve the papers informed Media-MOST it would not be able to vote with the shares. Now Putin is also likely to replace lifetime judge appointments with 15-year ones. And who do you think will be reappointing the judges? Right. The executive branch.

"The challenge of U.S. assistance is to help historically weak institutions, like the courts and private lawyers, thrive and grow to a position in Russian society comparable to the one they occupy in the United States. In order to do this, assistance must be focused on less glamorous issues like court administration, the use of technology to increase efficiency, alternative dispute resolution, effective judicial and lawyer training and ethics. And, yes, much of that assistance must go directly to the relevant parts of the government, not to nongovernmental organizations that can advocate reform, but not actually bring it about."

Sounds fine. There is just one problem: A loan for just these purposes was given by the World Bank in 1996, for a sum of $57 million.

The term of the loan runs out this year, but the bulk of the money still hasn't been spent, even though the Russian taxpayers are paying to service this loan. There can be no doubt at this point that the reason this loan failed so spectacularly was that state agencies were charged with reforming themselves. The incredibly bulky board composed of representatives of all the "relevant parts of the government" preferred to spend nothing rather than change anything. They could not even agree on a logo for the program's public-education component for nearly a year. In the end they threw out all the designers' proposals and drew up something themselves: a double-headed eagle.

Finally, the most insidious aspect of this piece is that it creates the erroneous impression that the tendency in Russia favors progress on legal reform. But the facts tell a different story. Two examples just from the last few weeks' law-making.

For one, in early January Putin proposes long-overdue amendments to the Criminal Procedural Code that would bring parts of it in line with the Constitution — most notably, would finally require a court order rather than a prosecutor's decision to arrest someone. The prosecutor general pays a visit to the president, and he withdraws the legislation.

Example Two. The head directorate of punishment execution, the penitentiary authority, proposes measures to reform itself — a miracle, a real attempt at liberalization coming from within. Among other things, it would place strict limits on the term of pre-trial detention and stop the practice of jailing juveniles for years for minor crimes that are classified as severe simply because they were committed by a group. The Duma passes the bill, making it worse in the process — but still. Then the prosecutor general raises a stink, the Kremlin signals the president's intention not to sign the bill, and the Federation Council, which had been all for it, suddenly votes it down.

Masha Gessen
Moscow


Dooley Responds

Editor,

Gessen's criticism of my opinion piece on legal reform is an example of why Western professionals only infrequently say anything positive about reform in Russia.

If one says anything positive, one is immediately branded an apologist, or worse supporter, of the pace and details of reform efforts. Of course, this silence contributes to the fatigue of Western donors. With virtually no one saying that reform is bringing about any progress, they see little reason to continue to support it.

With that understanding, I would probably not have responded to a charge that the wool has been pulled over my eyes. I cannot, however, let pass a charge that I am guilty of "blatant misstatements of fact." Here are the facts.

Judicial Salaries:

Judicial salaries increased substantially in 1997, again in 1999 and were raised again by 20 percent on Dec. 1, 2000.

Many judges, unlike most other government workers, have special benefits like apartments. Judicial salaries are not yet adequate, but they are increasing and are paid regularly.

Judicial Branch Funding:

The budget of the courts of general jurisdiction has risen steadily in the past few years: from 3.4 billion rubles in 1998 to 4.2 billion rubles in 1999 to 7.2 billion rubles in 2000 to 11 billion rubles in 2001 — a healthy 220 percent increase over the last three years. Historically, courts have been underfunded and have failed to receive even the amount appropriated to them in a timely fashion. However, that situation changed under the 1999 law on financing of the courts. That law has a very strong mechanism to insure that the judiciary receives all the funds appropriated and on time.

Judicial Training:

My original point dealt with training opportunities for judges once they reached that position. National training programs for both general jurisdiction and appellate judges have increased over the years and will increase further in the new Russian Academy of Justice. There are now regular programs in most regions.

The vast majority of new judges are not former court clerks, as Gessen asserts. Indeed, the largest source of district judges now is prosecutors (20 percent), followed by private lawyers (13.6 percent), interesting facts in light of Ms. Gessen's assertions that prosecutors have reassumed a dominant role over judges.

Gessen makes a different point — that few judges have advanced legal degrees. That same point can be made in the United States where an advanced legal degree is not seen as an important qualification for a judge. I would argue that the same priorities exist in Russia where changing laws and practices make relevant life-long learning more important than an advanced consideration of often out-dated theory.

Control of the Judiciary:

The separation of the judiciary from direct executive branch control started in 1996 (not seven years ago) with the law authorizing the Judicial Department under the Russian Supreme Court. In 1998, parliament passed implementing legislation, and the Judicial Department began to administer the courts of general jurisdiction, taking that power from the Justice Ministry. Regional court administrators were hired starting in 1998, and the hiring of local court administrators continued through 2000 (2,500 were hired in that year) up to the present. Whether or not one finds these laws to be optimum, the process of self-governance of the independent judiciary is being expanded and developed, not sliding back.

While it is an aside, I do not agree that executive branch control of the bailiff's service is as sinister as Gessen alleges. The service is based, in part, on the model of the United States Marshal's Service, which is in the executive branch in this country, and replaced court executors, who were also working under the Justice Ministry. It would have been difficult for the judiciary to assume control over bailiffs at the same time as it was building the Judicial Department.

The World Bank Loan:

Gessen's strongest point is the inadequate performance of the Russian Foundation for Legal Reform in administering the World Bank loan to the Russian government for legal reform efforts. Even here, there has been some progress brought about by the restructuring of the governance of the organization and pressure from the World Bank.

In the Feb. 6 issue of Itogi, part of the Gusinsky media family, Gessen described some of the actions in the various cases involving Gusinsky and concluded: "Gradually, the independent behavior of judges has come to surprise us less because the number of judges nobody has heard of who make decisions according to the law rather than according to 'understandings' has become greater."

I can think of no better sign that progress has been made on judicial reform despite the inevitable incidents that slow the pace of reform. A court system that is making more and more difficult decisions according to law, not politics, needs to be supported, not abandoned.

Justice John Dooley
Vermont Supreme Court

Dooley's Right

Editor,

Thank goodness for wisdom like that in Vermont Justice John Dooley's comment on assistance to rule-of-law programs in Russia.

Too often, dramatic, legally related headlines charging that Russia runs kangaroo courts are taken as some sort of crude reality.

On Dooley's evidence alone, if there's a threat that worthwhile rule-of-law assistance programs will be cut, no effort should be spared saving them from the shortsighted.

How else will AvtoVAZ/General Motors dealerships execute judgments on defaulting purchasers of new automotive products?

John Anderson
Calgary, Canada


Attractive Petersburg

In response to "St. Pete Gets $1.4Bln for Tricentennial Party," Feb. 9.

Editor,

St. Petersburg Governor Vladimir Yakovlev has asked that the visa process be made cheaper to attract Scandinavian tourists. Last I heard, granting visas was outside the responsibility of the city authorities. What could the city do to make life easier and friendlier for the tourists?

We could start by improving the international terminal at the airport. With more than three flights landing within an hour the place becomes total chaos with baggage falling off the belts and long queues for customs clearance.

Yes, I know the improvement has been discussed, planned, postponed, discussed again but let's stop talking and do something.

How about getting into town as a stranger without paying $40 to the taxis outside or relying on a tour bus? Yes, there are cheaper ways and even a bus service of sorts, but nothing easy for a tourist to understand. Supporting the taxi service perhaps is an admirable goal but how much of that money ever gets paid back to the city in taxes?

What about hotels? Yes, we are getting a couple more soon, but it was scandalous that some visitors to the ice hockey tournament had to commute all the way from the Finnish border. We need a lot more hotels that are affordable for the average tourist but offer sufficient comfort and security. It is not the city's job to build hotels, but they could make it easier for those that do.

There are events taking place in St. Petersburg every year. Trying to find out what events are planned even during the established festival times more than a month or two in advance appears to be like stealing military secrets.

Of course the events are planned, major international artists are booked years ahead. Why not publicize them more?

As a frequent visitor to St. Petersburg, I can say that it is beautiful and well worth visiting for all kinds of people, young and old.

Why is it such a big secret to potential tourists?

There are plenty of things to do in St. Petersburg even for those who don't want the cultural things such as visiting the Hermitage and the Mariinsky. But are these things promoted? No. Not outside the pages of a few papers with limited readership outside St. Petersburg.

Yes, cheaper visas and simpler registration would be good. But perhaps Yakovlev should concentrate on fixing those things that are in his control. Just think of all those tourists spending their money in St. Petersburg instead of the other Baltic states.

Hugh Kennedy
Frankfurt, Germany


Looks Like Justice

In response to "News in Brief: Canada Envoy Probe," Feb. 19.



Editor,

I'm glad to see that the Russian justice system hasn't let former diplomat Andrei Knyazev slide away into bureaucratic never-never land after his drunken driving caused the death of Catherine MacLean here.

Many Canadian citizens are concerned that the difficult reforms Russian is transitioning through may allow this man to fall through the cracks.

We will be watching this case to its end.

James Kautz
Ottawa, Canada