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.
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:
INDEM and the CJA’s plan for achieving these goals is based on the following 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.
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.
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:
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):
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:
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:
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:
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.
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.
We plan to carry out the following activities as part of the project:
Analysis of the judicial system of the USSR:
Analysis of the judicial system of Germany (to be pursued as a separate sub-project with funding from other sources)
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)
This so called sub-project will be implemented if financed separately.
Institutional-Societal analysis of the Russian judicial system:
Methods to be used are:
Synthesis of project results and development of recommendations.
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)
We expect the following results from the project:
METHODS FOR MAXIMIZING EFFECTIVENESS
The project might be more effective if: