Judicial Bribery
Djaanae
BriberyandtheJudiciary.pdf
40 russian politics and law
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English translation © 2013 M.E. Sharpe, Inc., from the Russian text © 2012 “Otechestvennye zapiski.” “Sudebnaia vlast’ i vziatki,” otechestvennye zapiski, 2012, no. 2 (www.strana-oz.ru/2012/2/sudebnaya-vlast-i-vzyatki [accessed 21 June 2013—Ed.]). Translated by Stephen D. Shenfield.
russian politics and law, vol. 51, no. 4, July–August 2013, pp. 40–47. © 2013 M.E. Sharpe, Inc. All rights reserved. Permissions: www.copyright.com ISSN 1061–1940 (print)/ISSN 1558–0962 (online) DOI: 10.2753/RUP1061-1940510404
Vladimir rimskii
Bribery and the Judiciary
the judicial reform has made bribery more widespread in the russian courts, with business people the main target of extortion.
Corruption is correctly defined as actions of an official, carried out by any means and under any conditions, that—irrespective of motive—are aimed at extracting personal or corporate gain from the official’s social status or position in the government, a private business, or a nonprofit or public organization. Thus understood, corruption encompasses not only illegal actions but also unethical and amoral actions that do not violate the law as well as actions that society recognizes as unfair. The classi- fication of such actions, however, is to a large extent subjective: where some people discern manifestations of corruption, others see a peculiar behavioral norm. For example, some people consider it corrupt to hand a small gift to an official who has conscientiously performed his duties, while others do not view the gift in that light.
It is difficult to establish legal proof of a corrupt action. As a result, despite the prevalence of corruption in Russia, criminal cases pertaining to corruption are extremely rare. The report on the fight against corruption in 2011 sent by the Prosecutor General’s Office to the State Duma gives a figure of 11,921 cases submitted to the procuracy for prosecution, of which a mere handful made it to court.1 The small number of criminal cases brought against judges enabled Ol’ga Egorova, the presiding judge of the Moscow City Court, to declare that in courts in the two capitals
july–august 2013 41
“98 percent of judges are honest, and we ourselves will deal with the remaining 2 percent within the judicial system; we will get rid of such judges very quickly.”2 But if we take into account that corruption cannot be reduced to bribery, and especially not to legally proven bribery, then we must admit that we need more objective grounds to conclude that there is no corruption in the courts.
Over the last ten years, the INDEM Foundation has conducted four formalized questionnaire surveys on corruption, including corruption in the judicial branch, using a representative nationwide sample. The World Bank commissioned the first survey, conducted in 2001 after three years of in-depth study of Russian corruption by other methods; the Soros Foundation commissioned the second, conducted in 2002; INDEM conducted the third independently in 2005; and the Ministry of Economic Development commissioned the fourth, conducted in 2010.3 In addition to the surveys, the foundation hosted semiformalized inter- views with experts and focus groups with citizens and entrepreneurs. In 2007–9, the foundation also carried out the Judicial Reform in Russia: Institutional–Societal Analysis of Transformation, Revision of Results, Determination of Prospects project.4 Those involved in the project studied citizens’ and entrepreneurs’ interactions with the judicial branch. Below I present my interpretation of some of the results of these studies—an interpretation that does not necessarily reflect the position of the INDEM Foundation.
Assessments of the Level of Everyday Bribery in the Courts
One object of investigation was the market in corruption-related services, where government agencies render services to citizens in exchange for bribes. We might call this the market in everyday corruption, since it is the place where citizens mostly solve personal problems. Another object of investigation, to which this article devotes only minimal attention, is the market in business-related corruption, where government agencies render services to business people in exchange for bribes. The studies did not examine the market associated with illegal financial operations carried out with judicial support or other forms of corruption that are difficult to assess by means of sociological research.
Table 1 presents some frequency characteristics of the market in ev- eryday corruption in the courts. They are compared with mean values for fifteen other kinds of state services (using data from the same mass
42 russian politics and law
surveys). As can be seen, in all years the risk of corruption facing citi- zens when they go to court exceeded the analogous risks associated with applying for other state services, although the differences lie within the range of statistical error. During the same period, citizens became less willing to pay bribes in connection with court cases; this rate remained below the average level for citizens applying for state services. Hence over the last decade the courts have not differed from other state institu- tions in terms of the pressure they exert on citizens to engage in corrupt practices.
Table 2 presents data on the size of the market in everyday corruption in the courts. It also shows an additional indicator—the proportion of bribes associated with court cases relative to all bribes in the sixteen markets in everyday corruption that were studied. It is clear that the total size of all the markets increased to an insignificant degree, roughly corresponding to the level of inflation. At the same time, the proportion of bribes associ- ated with court cases did not exceed 10 percent of the total and steadily declined. Most likely, this finding reflects our citizens’ unwillingness to take matters to court, while the judiciary, as I show below, has reoriented itself toward extorting bribes from business people.
The average sizes of the bribes that citizens gave in connection with court cases, calculated from the survey data, are shown in Table 3. Also shown is the place occupied by this kind of bribe in the general list ordered by decreasing size. In 2001, the average size of the bribes that citizens paid to the judiciary was the largest; in 2005, it fell to second place; and in 2010, to third. The absolute size of the “judicial” bribe declined somewhat from 2001 to 2005 but increased again by 2010.
Thus, the level of bribery associated with court cases remained roughly constant over the 2001–10 period. In terms of the risk of corruption fac- ing citizens and the average size of bribes, the courts during this period surpassed many other state institutions.
Assessments of the Level of Business-Related Corruption in the Judicial System
Due to the very small sample sizes in the category “business people” (the 2010 survey did not include the market in business-related corrup- tion due to limited resources) and the frequency with which business people refused to answer questions about bribery of officials, we could make statistically reliable estimates only of the size of large markets in
july–august 2013 43
Ta b le
1
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44 russian politics and law
Table 3
Trend in Average Size of Bribes in Rubles
Market in everyday corruption
2001 2005 2010
size place in
list size place in
list size place in
list In connection with court cases 13,964 1 9,570 2 12,643 3
Average for all markets 1,817 — 2,780 — 5,285 —
business-related corruption. Nevertheless, we did uncover some patterns of markets in business-related corruption, and—judging by other scholars’ work—these patterns still exist.
Tables 4 and 5 show estimates of the size of the market in business- related corruption in the three branches of government and of the size of bribes. Table 4 demonstrates the leading position of the executive branch and a sharp growth in the size of the market in all branches over the 2001–5 period. Some changes also took place in the structure of the market in business-related corruption: the market shares of the legislative and judicial branches increased. In particular, the share of the judiciary rose from 0.9 to about 5.5 percent, with the absolute volume of bribes growing by sixty times—considerably higher than the average rate for all government institutions, which was a little above nine. The market in business-related corruption in the legislative branch grew even more rapidly, by a factor of 397—admittedly, from a very low initial level.
Table 5 demonstrates substantial growth—by almost twenty-five times—in the size of bribes given by business people to the judiciary over the 2001–5 period. This is almost double the growth factor of the average amount in bribes in all markets in business-related corruption—about thirteen. The growth factor of the average size of bribes given by business people to legislators was even higher—over thirty-five times.
In 2005, the average amount of a bribe to the judiciary was over 2,500,000 rubles, but such bribes are relatively rare. This rarity explains why the size of the market in business-related corruption is considerably larger in the executive than in the judicial branch.
Let us recall that a reform of the judicial system was carried out in 2001–5—accompanied, in particular, by a substantial increase in judges’ pay. But instead of the anticipated reduction in the level of corruption,
july–august 2013 45
both the size and the total amount of bribes to the judiciary increased. At the same time, the bribes given by business people greatly exceeded those given by ordinary citizens, both individually and collectively. For this reason, representatives of the judicial branch did not renounce cor- ruption as a result of the judicial reform but—fully in accordance with market principles—became more active in extorting bribes from business people, who are materially much better off than other citizens.
Business People on the Level of Bribery in the Courts
In 2008, the INDEM Foundation conducted a special study of bribery in a formalized questionnaire survey of business people as part of the Judicial Reform in Russia: Institutional–Societal Analysis of Transformation,
Table 4
Trend in Markets in Business-Related Corruption
Market in business- related corruption (per branch)
Size of market (millions of rubles) Share of total market
Growth factor in
market size2001 2005 2001 2005
Legislative branch 1.71 679.44 0.0017 0.071 397.35
Executive branch 1,003.45 8,358.43 0.9897 0.874 8.33
Judicial branch 8.73 526.00 0.0086 0.055 60.25 Average for all branches 1,013.89 9,563.87 1 1 9.43
Table 5
Trend in Average Sizes of Bribes in Markets in Business-Related Corruption
Market in business-related corruption (per branch)
Average amount of bribe in rubles
Growth factor in amount of bribe2001 2005
Legislative branch 17,429 614,448 35.25 Executive branch 288,796 1,890,649 6.55 Judicial branch 101,245 2,527,675 24.97 Average for all branches 305,985 4,110,125 13.43
46 russian politics and law
Revision of Results, Determination of Prospects project.5 For understand- able reasons, only indirect questions were asked. The survey showed that about 10 percent of business people regard bribery in the courts as episodic. The majority (66.9 percent) believe that it is a more or less widespread phenomenon. We should keep in mind that respondents’ opinions are not always based on personal experience; a major role here is played by information obtained from friends and relatives, the Internet, and the mass media.
Respondents’ answers when asked whether other business people are willing to give bribes in court cases indirectly reflected their own willingness to do the same. The majority of respondents (65.4 percent) answered in the affirmative, although 40.7 percent of them thought that a business person would resort to bribery only after exhausting all other means of solving the problem.
But willingness to engage in bribery is not the same thing as actually doing so. So we asked our business respondents whether other business people in fact bribe judicial personnel. Over one-half (51.3 percent) of the respondents refused to answer this question. Our data indicate that, on average, only about 10.5 percent of business people do not bribe ju- dicial personnel; moreover, this indicator declines as the business gets larger (12.8 percent of small business owners, 8.2 percent of medium- sized business owners; and 7.3 percent of big business people do not pay bribes in court cases). Thus, bribery is very widespread in the Russian courts, and the larger the business, the less likely its owner is to refuse to bribe judicial personnel.
The Courts Have Not Become an Institution for Protecting Citizens’ Rights
As the INDEM Foundation’s studies of the judicial branch show, 13.5 percent of citizens and 31.2 percent of business people apply to the courts for the protection of their rights and freedom. Both business people and ordinary citizens often pay bribes to obtain court rulings in their favor. Many others—28.9 percent of citizens and 34.6 percent of business people—cope with such problems on their own. If we also take into account the comparatively low level of trust in the courts, as revealed by the studies, then we have to recognize that the Russian ju- diciary is as yet incapable of performing one of its most important legal functions—protecting the rights of citizens and business people.
july–august 2013 47
In addition, most Russian citizens believe that there is no point in su- ing government employees or private business owners. This belief causes Russian citizens to draw no distinction between the judiciary and other branches of power; they do not regard the judicial branch as independent of the executive and legislative branches.
During the judicial reform, Russian judges began to orient themselves more strongly toward the interests and priorities of those who ensure them a high level of well-being, not toward the law. As a result, the level of bribery in the Russian courts did not decline but rose. Continuation of the judicial reform under such conditions will not ensure real independence for the courts or inspire greater trust in them among citizens, nor will it reduce the level of corruption or turn the judiciary into a real system for ensuring justice and the rights and freedoms of citizens.
Notes
1. Anastasiia Kornia and Liliia Biriukova, “Vziatki v sud ne idut,” Vedomosti, no. 54, 27 March 2012 (www.vedomosti.ru/politics/news/1566735/vzyatki_v_sud_ ne_idut [all Web site addresses accessed 21 June 2013—Ed.]).
2. “Predsedatel’ Mosgorsuda raskritikovala sudebnykh pristavov,” Interfaks, 15 November 2011, Moscow (www.interfax.ru/news.asp?id=216997).
3. “Sostoianie bytovoi korruptsii v Rossiiskoi Federatsii (na osnovanii rezul’tatov sotsiologicheskogo issledovaniia, provedennogo vo vtorom polugodii 2010 g.).” Moscow, 2011 (www.indem.ru/corrupt/doklad_cor_INDEM_FOM_2010.pdf).
4. The main findings of this project were presented in G.A. Satarov, V.L. Rimskii, and Iu.N. Blagoveshchenskii, sotsiologicheskoe issledovanie rossiiskoi sudebnoi vlasti (St. Petersburg: Norma, 2010) (http://indem.ru/Proj/SudRef/SocIsRoSuVlas. pdf).
5. Ibid.
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