PROJECT TITLE: “Judicial Reform in Russia - Institutional-Societal Analysis of Transformation: Assessment of Results and Future Perspectives”

 

BACKGROUND AND INTRODUCTION

The purpose of the project is to develop and present a fundamentally unique analysis of the current status of the Russian judicial system by studying and analyzing the environment in which the judiciary operates; its development to date; and the factors contributing to its institutional drift.

Today, the judiciary and its representatives are under constant and acute pressure from all sides, including the legislature, political interests and the mass media. Most of the Russian population has a negative opinion of judges and the courts for a variety of reasons ranging from judicial nihilism to a low level of confidence in the judiciary to the poor quality of judicial decisions. At the same time, the reality is that the protection of citizens’ rights through the courts is improving, and the quality of judicial decisions is also improving. The extent to which citizens do not recognize improvements paints an odd picture, which suggests that there is something wrong with the conventional wisdom about the courts and judges in Russian society.

Within the framework of this project (JIR), we intend to present a different view on the Russian judicial system and to propose recommendations for future reforms and improvements to the judiciary.

I. JIR

PROJECT SUMMARY

The foundation for the JIR project, which INDEM and CJA plan to launch in February 2007, are the ideas that have emerged from INDEM’s diagnostic study of the judiciary, “Concept for Comprehensive Research on the Current Realities and Possibilities for Development of the Judiciary in Russia, as well as previous judicial reform projects and research conducted by the CJA and INDEM. The judiciary has remained a permanent area of study and analysis for INDEM and the CJA. In 2001, the CJA conducted an assessment of progress on judicial reform and released a report, entitled, “Judicial Reform: from the Concept of 1991 up to Today (an Attempt at an Inventory). This report paved the way for constructive dialog at a well-attended and widely reported conference organized by INDEM Foundation.

Through JIR, INDEM and the CJA will conduct:

1) A comparative analysis of the Russian judicial systems institutional development and functioning, including:

The following factors will be taken into account during the course of research on the aforementioned topics:

2) An analysis of the functioning of the judicial system as a democratic institution. At the same time, any analysis of the functioning of the judicial system and the results of its functions must be conducted within the context and through the lens of a set of criteria that would be used to characterize a modern judicial system in a functioning democracy.

3) An study of the mentality and personal qualities of judicial officers and personnel. A separate but important objective of the research is a study of the individual qualities of representatives of the judicial system. One of the important conclusions of INDEM’s initial diagnostic study was that it is necessary to change not only the legal basis for the judicial system but also the environment in which it operates. Additionally, there is currently lacking any objective vision of the real condition of the judicial system whether from the standpoint of the judiciary as an institution, the judiciary functions or the judicial mentality.

GOALS AND OBJECTIVES

The project has two inter-connected goals:

  1. To use comprehensive research on the status/condition of the Russian judicial system in order to develop a new approach to transforming and improving the effectiveness of the functioning of the Russian Judicial System;
  2. To develop well-justified recommendations for reform of the Russian judiciary based on the application of this new approach to issues facing the judiciary.

INDEM and the CJA’s plan for achieving these goals is based on the following premises:

PREMISES

This proposal reflects the development of two methodological approaches, which, when applied together will, on the one hand, provide systematic research, and, and on the other hand will allow the researchers to tailor the results of the research to the peculiarities of contemporary Russian governance.

Theory I

Typically, modernization is seen as process of transplanting “Western” institutions into a different social context. But, Western civilization grew these institutions, and in the course of growning these institutions, one institute followed another, and at the same time, a clear environment for the institution was formed (including the existence of other institutions). Citizens consciousness also changed, as did their informal and background practices.

However, the ideology and practice of modernization results in the transplantation or establishment of an institute in a completely ndifferent environment in a different social context, which is usually quite attenuated from the environment and context in which the same institute is developing in donor countries. The primary reason for the failure of modernization projects is that the social environment and context, into which a new institution is implanted rejects the institution, adjusts the institution or brings it into line with its own needs.

Therefore, two primary issues determine the success of failure of attempts to establish new institutions for transitional governments. First, there is a weak understanding of the social context into which an new institution is moved. Second, institutions operate within their own social contexts and cannot be isolated from that context. Institutions are intertwined with other institutions, with societal beliefs,etc. Therefore, the transfer of an institution from one context to another without taking into account this connections causes the perversion of its functioning.

Theory II

A realistic picture of the status/condition of a judicial system can only be described through the intersection of formal-logical, organizational, managerial, societal, and psychological conditions and attitudes. Since the object of this research is specifically the system, it is therefore necessary to study every possible factor that could influence both the construction and the functioning of the system. Given that the main player in any social system in man, it is imperative to understand how and to what extent these factors affect the motivations of the individual. In order to obtain such a “stereoscopic” picture, the best result will be the use of a matrix method, which comprises the following:

First, four parameters are designated:

  1. Formal institutions (legislation, the organizational and territorial structure of the judicial system, the financing of the judicial branch);
  2. Informal practices (the actual functioning of institutions, the practice of exercising judicial authority , informal channels for influencing judges etc.)
  3. The legal consciousness and culture among judges (not only in relation to specific cases, but also in relation to the judiciary as a whole, and to the need for reform or preservation of the judiciary in its current state);
  4. The attitude of external forces or “agents” (representatives of different segments of society and the government) toward the judicial power.

The interrelationship of the aforementioned parameters during the process of analyzing each indicator of the realization of judicial reform will be established through a process of layering parameters one upon another. The correlation of the indicated parameters in the analysis of every result characterizing the realization of the judicial reform will be identified by the way of comparing the parameters to each other. This will make it possible to obtain not only a comprehensive and realistic picture bit also to understand with parameter plays a greater or lesser role in the state and effectiveness of the functioning of the judicial system. For the purpose of this project, we call this approach “institutional-societal analysis.”

In order to achieve the goals outlined for the project within the context of this approach, INDEM and CJA plan to achieve the following objectives (the following list of activities reflects the nop level on the tree of objectives):

  1. Institutional-societal analysis of the USSR judicial system from the beginning of its transformation with a focus on those factors that influenced the transformation and its results;
  2. Institutional-societal analysis of the Russian judicial system;
  3. Institutional-societal analysis of the judicial systems of two Western countries through the lens of this project’s methodology and criteria;
  4. Institutional-societal analysis of judicial systems of several transitional countries and issues that arose during their processes of transformation;
  5. The formulation of objective picture of the achievements of judicial reform in Russia beginning in 1991 and how the achievements have influenced the actual quality of legal protections for citizens;
  6. Description of the reasons for weaknesses in judicial protection of the legal rights of citizens in Russia;
  7. Development of a set of standards and indicators, through which citizens can conduct oversight and evaluate the state of judicial protection of citizen rights.

It is envisioned that the synthesis of the results of the aforementioned activities will allow INDEM and CJA to: 1) develop new approaches to the transformation of the judicial system in Russia; and 2) within the context of new approaches, offer concrete steps for the transformation of the judicial system; 3) provide a model for a new approach to planning reforms of the judicial system in other countries; 4) offer its approach as a model for the modernization or introduction of other institutions in transitional countries. The results of the project will be reflected in a series of publications and will be presented at a variety of seminars and special final conference organized to generate discussion of the issues raised by the project.

The following methods will be used during the course of the project:

  1. Institutional- normative analysis of the judicial system and the principal institutions related to the judicial system;
  2. Analysis of administrative and procedural practices, through which normatively- established parameters of the judicial system and other key related institutions;
  3. A literature review publications on the subjects of the project;
  4. Comparative analysis of judiciaries in other countries;
  5. Statistical research on data that reflect the activities of the judicial system (judicial statistics, data on the number of judges, court staff, prosecutors, investigators, attorneys, etc.;
  6. Case analysis (of a selection of key cases);
  7. Analysis of mass media articles and reports on issues covered by the project;
  8. Case studies of media reports regarding the functioning of the judicial system;
  9. Analysis of Soviet-era fiction reflecting the work of the judicial system;
  10. sociological research;
  11. Focus groups;
  12. In-depth interviews;
  13. Interconnected surveys of for specific respondent groups, including : judges, attorneys, prosecutors, journalists, visitors to the courts and court clerk’s office staff;
  14. Formalized interviews of citizens and businessmen;
  15. Brainstorming with experts.

INDEM has extensive experience with the aforementioned methods and has used these methods in a variety of projects to date. Moreover, INDEM has built its reputation on its ability and practice of developing and utilizing new methodological approaches and concrete research methods along with the most up to date social science methods. and establishing new methodological approaches and specific research methods along with constant exploiting the most up to date methods of sociological research. Therefore, INDEM expects that the comprehensive application of a broad range of methods will be possible and accomplished as part of this project.

POTENTIAL RISKS AND MEASURES TO MINIMIZE RISKS

The following risks could affect the project’s effectiveness:

  1. The possibility of missing or leaving out an important object of research;
  2. The danger of the project becoming too vague and losing its concreteness;
  3. The creeping in of influence and pressures of the researchers’ own concepts and methodological preconceptions among staff and experts;
  4. Project management difficulties;
  5. Inadequate availability of qualified staff;
  6. Difficulties in maintaining positive relationships with government authorities;
  7. Difficulty in promoting the new ideas, approaches and project results.

The following measures, which will be taken by the project team and project managers should minimize the aforementioned risks. These measures must be implemented in a comprehensive and complementary manner.

During pilot project development, INDEM identified a group of experts, who are prepared to work on the project. These experts include judges of the Constitutional Court, judges of the Supreme Court and some of the most respected experts on the judicial system. For the implementation phase of the project, INDEM will establish an Advisory and Oversight Board that will provide expert oversight on project implementation and assist INDEM and the CJA establish and maintain positive relationships with government authorities where INDEM and/or the CJA does not have existing relationships. All publications and other outputs from the project will be reviewed jointly by project staff and the Board to ensure their quality. Finally, the Board will be charged with helping to minimize external risks to the project’s success.

In order to minimize the first two types of risks outlined above (leaving out an important element for research or allowing the project to lose its concreteness – two risks which may, in fact, be in conflict with one another), INDEM and CJA plan to take the following measures as recommended by project experts:

  1. Include all categories of courts that exist in Russia today in the study;
  2. To consider these courts as a whole but also focus on categories of cases reviewed by these courts that regulate specific kinds of relationships;
  3. To take into regional disparities by defining several types of regions based on economic, geographical, political and socio-cultural factors.
  4. To disaggregate the analysis of the most common kids of cases that are reviewed on a routine basis by the courts and those cases that attract public attention and draw in other branches of government and their capacity to influence the courts.
  5. To take into account and review the differences in the administration of justice depending on demographics (regions with different population density and of different sizes from the largest cities to country villages.

One of the most important ways in which INDEM and CJA will minimize risks to the project will be aggressive publicizing of the project. The most important tool for doing this will be the Internet. Using a special project, INDEM and CJA plan, in additional to all other project activities, to involve a wide circle of specialists from around the country in discussions about the project and its methods. Transparency will be the best way to ensure the project’s success.

PROJECT SUCCESS

The projects success will be evaluated not only on the basis of its research achievements or the thoroughness of its recommendations but also on the basis of its ability of the project ideas to garner a critical mass of support and get acceptance among political elites. In order to ensure this kind of success, INDEM and CJA plan to use the Internet to promote the project. The project website will be launched at the earliest possible stage of project implementation. Prior to the launch of the project website, INDEM and CJA will use their own websites to inform the public about the project. A key stage of the project will involve informing journalists through press conferences and other media events. INDEM and CJA will develop cooperative relationships and agreements for national and local press to cover the project throughout its implementation, Finally, INDEM will organize a high-level, international conference to discuss the research findings and recommendations with well-respected experts in the field and key policymakers at the national level.

PROJECT ACTIVITIES

We plan to carry out the following activities as part of the project:

Analysis of the judicial system of the USSR:

Proposed Topics:

  1. Connection with other state systems;
  2. Informal practices of interaction with other systems and between different institutional entities within judicial system;
  3. Public opinion polls on judicial system.

Proposed Methods:

 

 

 

 

Analysis of the judicial system of Germany (to be pursued as a separate sub-project with funding from other sources)

Proposed Topics:

  1. The German judicial system today and its functioning;
  2. Relationship of the German judicial system with other institutions, civic awareness, traditions, and informal practices;
  3. History of the German judicial system;
  4. The challenges faced during judicial reform in the post-war period in Germany;
  5. The challenges faced during judicial reform in the former German Democratic Republic following reunification.

Analysis of the judicial system of the United States (to be pursued as a separate sub-project with funding from other sources)

Challenges of judicial reform in the transitional countries (to be pursued as a separate sub-project with funding from other sources)

Proposed Topics:

  1. Judicial systems prior to reforms.
  2. Principals and models of judicial reform.
  3. Relationship of judicial reforms to reforms of other governmental institutions;
  4. Positive and negative experiences;

This so called sub-project will be implemented if financed separately.

Institutional-Societal analysis of the Russian judicial system:

Objectives:

  1. Institutional description of the judicial system and relevant institutions (legislation, organizational and geographic structure of the judicial system);
  2. Description of the informal practices within judicial system and the judicial system’s interaction with other institutions (the actual functioning of institutions, (the exercise of judicial authority, informal channels for influencing judges and corruption);
  3. Study of the judges’ legal consciousness (with respect to individual cases and the judiciary as a whole, and the need for reform or preservation of the judicial system in its current state);
  4. Description of the effects of distortion and rejection of a new institution of the judiciary taking into account the contradictions of its previously established structure and system of order;
  5. Identification of the reasons for inadequate judicial defense of citizen rights.
  6. Identification of variations in the provision of judicial defense of citizen rights across different locations;
  7. Study of the functioning of judicial institutions with respect to special categories of cases;
  8. Study of the attitude of different external “agents” or potential influencers toward the judiciary (representatives of different segments of society and government);
  9. Study of the citizens’ awareness of the law;
  10. Study of citizens’ and legal entities’ access to justice and relevant judicial practice related to access of justice;
  11. Formulation of a realistic picture of what has been achieved through judicial reform since 1991 and how these achievements have influences the real quality of defense of citizens’ rights;
  12. Description of need for further transformation of the judicial system.
  13. Description of changes that would need to place outside of the judiciary in order to achieve transformation of the judiciary;

Proposed Methods

Methods to be used are:

Synthesis of project results and development of recommendations.

Proposed Objectives

  1. Synthesis of findings obtained through all stages of the project;
  2. Development of recommendations for policies in the area of transforming the judicial system and related institutions, as well as the formation of legal awareness among citizens and government officials;
  3. Development of recommendation on the establishment of a system for monitoring media reports on judicial/court topics;
  4. Development of a set of standards and indicators, through which the public can evaluate and oversee the state of the court system.

IMPLEMENTATION PLAN

The roject will be divided into 3 phases of varying duration:

Phase I (7 months)

 

Phase II (12 months)

During phase II, the project team will continue to study the Russian judicial system through the following activities:

Phase III (12 months)

 

RESULTS

We expect the following results from the project:

METHODS FOR MAXIMIZING EFFECTIVENESS

The project might be more effective if: