Telefonnoe pravo (Russia)

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Telefonnoe pravo
Location: Russia
Russia map.png
Author: Alena Ledeneva, Ružica Šimić Banović and Costanza Curro
Affiliation: University College London and Faculty of Law, University of Zagreb

Original text by Alena Ledeneva, Ružica Šimić Banović and Costanza Curro

Telefonnoe pravo (‘telephone justice’) may be defined as ‘informal influence or pressure exerted on the judiciary’ (Ledeneva 2008[1]) or, more precisely, the dependence of the Russian legal system on political orders. A widespread phenomenon, telefonnoe pravo implies that justice is overridden by power, a power that acts as ‘law’ or ‘justice’ itself. This practice could therefore be translated as ‘telephone command’ or ‘telephone overrule,’ though this would lose the irony of the definition, which points to the gap that exists between formal law and actual practice, a gap normally bridged by political intervention (ibid.).


Data from two opinion surveys reveal that the Russian public is generally aware of telephone justice – exercised both through directives from above and through informal requests. Those with direct experience of the judicial system are more likely to believe in its existence. Low expectations about state institutions in politics and business lead over time to the proliferation of such practices (Ledeneva 2006[2]). National surveys indicate low levels of trust in the Russian courts, particularly with regard to the system of judicial appointments and disciplinary procedures (Solomon 2002[3]; Hendley 2007[4]; Mishina, Krasnov and Morshchakova 2007[5]). This situation persists in spite of Russian President Vladimir Putin’s numerous statements about the importance of the rule of law and the impressive financial backup of judicial reforms, including a 40 percent pay raise for judges and material support of the courts, aimed at allowing judges to render justice fully and independently.


The legacy of informal practices operating in Soviet times has carried over into the post-Soviet order. The gap between the written rules and the actual order of things under the Soviet regime is likely to be replicated in all spheres: economic, political, social and legal. There is little controversy about the existence of such a gap in the Soviet economic sphere (Berliner 1957[6]; Fainsod 1963[7]; Nove 1977[8]). The scale and pervasiveness of reciprocal services has led some scholars to speak about a ‘second economy,’ of which these transactions constitute the major component (Rigby 1981: 4–5[9]). Rigby also suggested a link between a ‘second economy’ and a ‘second polity.’ Similarly, one can speak of a ‘second justice’—that is, a set of informal practices widespread in the legal sphere. These practices emerged because there was no real separation of powers in the Soviet regime and because the judiciary was dependent on the executive. They also served the political purposes of the ruling class and the private interests of select individuals. Studies that managed to penetrate the workings of the Soviet political elites illustrate how the Communist Party intervened within the judiciary. It was the leading role of the Party, its status above the law, and its protection vis-à-vis the law that undermined the independence of legal institutions and created this legacy.


Judges’ independence and subordination to law were a convenient fiction until the end of the 1980s (Huskey 1992: 223[10]). The ‘party cells at the workplace’ were the channels of both formal and informal influence in legal institutions. Virtually all Soviet judges were members of these party cells and were expected to implement the directives that the party apparatus communicated at party meetings. (ibid: 225). Such briefings pushed judges to place party loyalty (partiynost’) above concerns for legality (zakonnost’).


Even so, the prevalence of informal influence is difficult to document. Pressures on judges ‘were hardly ever committed to paper. Instead, party officials avoided undue risks by confining themselves to oral instructions, either directly or on the telephone’ (Gorlizki 1997: 257[11]). Oral and personal commands were seen as more important and were followed more closely than written decrees (ukazy) and instructions (rasporyazheniya) (Colton 2007: 325; Baturin 2001: 424).


During the final years of the Soviet regime, the phenomenon of telephone justice was increasingly targeted in reforms of the judicial sphere. New legislation on the selection of judges was designed to protect the courts’ autonomy. Additional legislation outlawed interference in judicial decision-making and was reinforced by the party’s own campaign of self-restraint in legal affairs. By the late 1980s, except in some conservative provincial areas, party officials reportedly abandoned the practice of instructing judges how to decide cases (Huskey 1992: 224[12]).


Even so, telefonnoe pravo has proven resilient in post-Soviet Russia. On a tip-off from above, criminal cases can be opened or closed, tax-evasion charges can be pursued or conveniently forgotten, and law-enforcement officers can continue an investigation or abandon it (Pastukhov 2002[13]; Allina-Pisano 2005 [14]). Allegedly, a paradigmatic example of the strength of telefonnoe pravo was the Yukos case, in which international media and observers overwhelmingly pointed out that the judges who convicted oligarch Mikhail Khodorkovsky were following orders from above (see for example Kulikov 2005[15]).


The difference between the formal flow of signed documents and informal (oral) commands illustrates the degree of discretion and non-transparency in post-Soviet Russia. The governance patterns rest upon, and help reproduce, concentric circles of ‘unwritten rules’ that are secretive at the top and inclusive at the bottom of governing bodies. Such unwritten rules preserve discretion and achieve additional control on the basis of informal leverage in order to pursue declared goals. Their latent function, however, is to distinguish between insiders and outsiders and to benefit the insiders according the principle that, ‘For our friends we have everything, for our enemies we have the law.’ The consequence is not only the selective use of the law, but also the use of the law for extra-legal purposes.


‘Telephone justice’ has increasingly been recognised as a problem to be tackled in an open way by representatives of Russia’s judicial and political institutions. For example, in 2005, code of administrative court proceedings was drafted with instructions to judges and citizens on how to proceed in case of bureaucratic abuse or arbitrariness, and in 2006 the Presidium of the Council of Judges of the Russian Federation recommended the document ‘On reaction to inquiries by citizens and civil servants about cases in court proceedings’ for practical use (Ledeneva 2008[16]).


Similarly, tackling corruption in the legal sphere has been defined by leading institutional figures – including former president Dmitriy Medvedev and former deputy prime minister German Gref – as a key aspect of the development of the Russian legal system (Medvedev 2008[17]; Ledeneva 2008[18]). However, the effectiveness of the measures undertaken so far is debatable in a country in which telefonnoe pravo is believed still to prevail.


Notes

  1. Ledeneva, A. 2008. ‘Medvedev’s Crackdown on Corruption in Courts,’ RIA-Novosti, May 29 http://en.rian.ru/analysis/20080529/108803537.html
  2. Ledeneva, A. 2006. How Russia Really Works: The Informal Practices That Shaped Post-Soviet Politics and Business. Ithaca, NY: Cornell University Press
  3. Solomon, P. 2002. ‘Putin’s Judicial Reform: Making Judges Accountable as Well as Independent,’ East European Constitutional Review, 1(1/2): 117–24.
  4. Hendley, K. 2007. ‘Are Russian Judges Still Soviet?’ Post-Soviet Affairs 23(3): 240–74
  5. Mishina, E., Krasnov, M. and Morshchakova T. (eds). 2007. Otkrytyye glaza rossiyskoy Femidy (The open eyes of the Russian Themis). Moscow: Fond Liberal’naya Missiya
  6. Berliner, J. 1957. Factory and Manager in the USSR. Cambridge, MA: Harvard University Press
  7. Fainsod, M. 1963. How Russia Is Ruled. New Haven, CT: Yale University Press
  8. Nove, Alec. 1977. The Soviet Economic System. London: Allen & Unwin.
  9. Rigby, T. 1981. ‘Early Provincial Cliques and the Rise of Stalin,’ Soviet Studies, 33(1): 3–28
  10. Huskey, E. 1992. ‘The Administration of Justice: Courts, Procuracy, and Ministry of Justice,’ in E. Huskey (ed.), Executive Power and Soviet Politics: The Rise and the Decline of the Soviet State. Armonk, NY: M. E. Sharpe
  11. Gorlizki, Y. 1997. ‘Political Reform and Local Party Interventions under Khrushchev,’ in P. Solomon (ed.), Reforming Justice in Russia, 1864–1996: Power, Culture, and the Limits of Legal Order. Armonk, NY: M. E. Sharpe
  12. Huskey, E. 1992. ‘The Administration of Justice: Courts, Procuracy, and Ministry of Justice,’ in E. Huskey (ed.), Executive Power and Soviet Politics: The Rise and the Decline of the Soviet State. Armonk, NY: M. E. Sharpe
  13. Pastukhov, V. 2002. ‘Law under Administrative Pressure in Post-Soviet Russia,’ East European Constitutional Review, 11(3): 66–74
  14. Allina-Pisano, J. 2005. ‘Informal Politics and Challenges to Democracy: Administrative Resource in Kuchma’s Ukraine,’ paper presented at the Danyliw Research Seminar in Contemporary Ukrainian Studies, University of Ottawa, 29 September– 1October
  15. Kulikov, V. 2005. ‘Telefonnoe pravo podsudno (Telephone justice is on trial),’ Rossiyskaya gazeta www.rg.ru/2005/09/06/telefonnoye-pravo.html
  16. Ledeneva, A. 2008. ‘Medvedev’s Crackdown on Corruption in Courts,’ RIA-Novosti, May 29 http://en.rian.ru/analysis/20080529/108803537.html
  17. Medvedev, D. 2008. ‘Tol’ko deyesposobnaya i uspeshnaya vlast’ mozhet pol’zovat’sya obshchestvennoy podderzhkoy (Only an energetic and successful authority can enjoy the support of society),’ speech at the Second All-Russia Civic Forum, Moscow, 22 January www.edinros.ru/print.html?id=126928.
  18. Ledeneva, A. 2008. ‘Medvedev’s Crackdown on Corruption in Courts,’ RIA-Novosti, May 29 http://en.rian.ru/analysis/20080529/108803537.html