Armine Sa­hakyan: Ju­di­cial re­form is still a pipe dream in for­mer Soviet Union

Kyiv Post Legal Quarterly - - Contents - Armine Sa­hakyan

YERE­VAN, Ar­me­nia – Ar­me­nian Pres­i­dent Robert Kochar­ian at­tracted in­ter­na­tional at­ten­tion in 2007 by dis­miss­ing a judge who had sided with two busi­ness peo­ple against the gov­ern­ment.

Yere­van Dis­trict Judge Pargev Oha­nian ac­quit­ted the owner and a top ex­ec­u­tive of the Royal Ar­me­nia cof­fee pack­ag­ing com­pany of crim­i­nal tax eva­sion and fraud charges. The charges were widely seen as ret­ri­bu­tion against the de­fen­dants for pub­licly ac­cus­ing se­nior cus­toms of­fi­cials of try­ing to shake down their com­pany for bribes.

For those who know any­thing about jus­tice sys­tem cor­rup­tion in the for­mer Soviet Union, the real shocker was not so much that Kochar­ian fired the judge but that Oha­nian ruled against the gov­ern­ment in the first place.

Judges across the for­mer Soviet Union al­most never go against the power struc­ture for fear of hav­ing their ca­reers ru­ined — or worse. When pros­e­cu­tors bring a case be­fore them, they don’t have to be told they had bet­ter side with the gov­ern­ment: They know the game.

Not only do judges in the for­mer Soviet Union find for the gov­ern­ment in al­most all crim­i­nal and civil cases. They also sell jus­tice to the high­est bid­der in civil cases that don’t in­volve the gov­ern­ment. In other words, their de­ci­sions are based on which side of­fers the big­gest bribe.

The Euro­pean Union, the Or­ga­ni­za­tion for Se­cu­rity and Co­op­er­a­tion in Europe, the World Bank and other in­ter­na­tional or­ga­ni­za­tions have been try­ing to help for­mer Soviet coun­tries im­prove their ju­di­cial sys­tems al­most from the time the Soviet em­pire dis­in­te­grated in 1991.

The help, in the form of ex­pert ad­vice and fi­nanc­ing, has failed to cre­ate an in­de­pen­dent ju­di­ciary in most of the re­gion — that is, one that is not sub­ject to gov­ern­ment in­flu­ence. The ex­cep­tion is Ge­or­gia, which in­sti­tuted wide­spread po­lit­i­cal and jus­tice sys­tem re­forms be­gin­ning in the early 2000s as part of its courtship with the West. Ge­or­gia has made it clear it wants to join the EU.

Some for­mer Soviet coun­tries have made per­func­tory ju­di­cial re­forms.

Kaza­khstan, for ex­am­ple, has in­sti­tuted a Euro­pean-style pri­vate-bailiffs sys­tem to en­sure that those who win court cases ac­tu­ally get the dam­ages due them. The change was a re­sponse to the wide­spread prob­lem of judge­ment win­ners be­ing un­able to get their money.

Kaza­khstan’s re­forms have just nib­bled around the edge of the ju­di­cial sys­tem, how­ever. As with other coun­tries in

the re­gion, the key re­form that’s needed — an in­de­pen­dent and un­cor­rupt ju­di­ciary — has yet to be achieved, crit­ics say.

This means that judges al­ways side with the pros­e­cu­tion in crim­i­nal cases and with of­fi­cial­dom in civil cases pit­ting the gov­ern­ment against a pri­vate party, observers say. In ad­di­tion, it means judges of­ten take pay­offs in civil cases in­volv­ing two pri­vate par­ties, ac­cord­ing to observers.

The chair­man of Kaza­khstan’s Supreme Court, Kairat Mami, ac­knowl­edged the depth of the ju­di­cial cor­rup­tion prob­lem in late 2013 by not­ing that the high court had re­ceived more than 4,000 com­plaints against judges in the first nine months of the year. “Eight judges were fired, two judges were con­victed and six more judges are fac­ing cor­rup­tion charges,” he said.

Mami’s ad­mis­sion was a rar­ity. More of­ten than not, ju­di­cial of­fi­cials in for­mer Soviet coun­tries deny cor­rup­tion al­le­ga­tions.

So it came as a shock when our na­tional hu­man rights om­buds­man here in Ar­me­nia, Karen An­dreasian, re­leased a re­port in 2013 based on a sur­vey of ju­di­cial of­fi­cials and lawyers that con­cluded that the court sys­tem was rid­dled with cor­rup­tion.

The re­port, which as­serted that judges even had an unof­fi­cial “price list” for bribes, drew an­gry de­nials from ju­di­cial of­fi­cials. The Coun­cil of the Union of Judges was so worked up that it de­clared that An­dreasian’s al­le­ga­tions rep­re­sented a “se­ri­ous threat to the sta­bil­ity of the state and to public or­der.”

Lawyers who had come be­fore those judges said the find­ings were on the mark, how­ever. One of them, Ti­gran Hayrapetian, said he couldn’t have imag­ined a “bet­ter or more re­li­able re­port.”

When or­di­nary cit­i­zens in for­mer Soviet coun­tries are sur­veyed about the ju­di­cial sys­tem, their opin­ions are as neg­a­tive as the lawyers whom An­dreasian in­ter­viewed.

The coun­try whose cit­i­zens ap­pear to have the least faith in the courts is Rus­sia.

Eighty-four per­cent of Rus­sian house­holds whom the Global Cor­rup­tion Barom­e­ter sur­veyed in 2013 said the ju­di­ciary was ei­ther “cor­rupt” or “ex­tremely cor­rupt.”

It’s rare when Rus­sian judges are dis­ci­plined or pros­e­cuted, so the crim­i­nal cor­rup­tion charges that were brought against Com­mer­cial Court Judge Irina Bara­nova in 2014 gen­er­ated na­tional head­lines.

She ac­cepted hefty bribes in ex­change for sid­ing with a num­ber of busi­ness peo­ple who were be­ing sued for il­le­gally seiz­ing build­ings and other prop­erty, ac­cord­ing to the news agency RIA Novosti. The fact that an of­fi­cial Rus­sian news agency would cover the story in­di­cated that top of­fi­cials con­sid­ered Bara­nova’s be­hav­ior so egre­gious that they wanted to send a mes­sage to judges that some bribe-tak­ing was OK, but don’t go over­board.

Most Rus­sians — rank and file and elites — refuse to crit­i­cize trumped-up, po­lit­i­cally mo­ti­vated pros­e­cu­tions for fear of ret­ri­bu­tion. But po­lit­i­cal lead­ers, ju­di­cial-fair­ness groups and hu­man-rights de­fend­ers in the West feel no such com­punc­tion.

In 2013 the Coun­cil of Europe blasted the surge in the num­ber of po­lit­i­cally mo­ti­vated tri­als in Rus­sia since Vladimir Putin’s re­turn to the pres­i­dency in 2012.

The protest came amidst high-pro­file court cases against Putin op­po­nents, in­clud­ing Alexei Navalny and the rock band Pussy Riot.

Nils Muiznieks, the coun­cil’s com­mis­sioner for hu­man rights, said Rus­sia needed to make ma­jor re­forms “to rem­edy sys­temic de­fi­cien­cies in the ad­min­is­tra­tion of jus­tice” and to “strengthen the in­de­pen­dence” of the ju­di­ciary.

Putin did not re­spond to the coun­cil’s ac­cu­sa­tions of lack of ju­di­cial in­de­pen­dence and ju­di­cial cor­rup­tion. He had al­ready made his feel­ings clear in 2012, the year be­fore the coun­cil ripped the Rus­sian jus­tice sys­tem.

“I dis­agree with the state­ment that we lack a fully in­de­pen­dent ju­di­cial sys­tem,” RIA Novosti quoted Putin as say­ing. He also dis­agreed with “sweep­ing ac­cu­sa­tions that our ju­di­ciary and cer­tain judges are cor­rupt.”

The first step to­ward re­solv­ing a prob­lem is ad­mit­ting there is one, of course. It was ap­par­ent from Putin’s com­ments that Rus­sia is apt to do lit­tle or noth­ing to re­form a ju­di­ciary that the vast ma­jor­ity of the cit­i­zenry be­lieve is flawed.

Other coun­tries in the for­mer Soviet Union, try­ing to show they’re a civ­i­lized so­ci­ety and keep on the good side of the West, are mak­ing bite­sized ju­di­cial re­forms — like Kaza­khstan.

But the ul­ti­mate re­form — cre­at­ing a ju­di­cial sys­tem in which judges are not afraid to rule against the gov­ern­ment and which roots out and pun­ishes judges who can be bought — ap­pears to be way off in the sunset.

As with other kinds of graft in the for­mer Soviet Union, the losers when ju­di­cial cor­rup­tion oc­curs are the cit­i­zens. They in­clude those who go to prison on trumped-up crim­i­nal charges and those un­able to ob­tain dam­ages in civil cases for wrongs done to them.

"Long live our court, the most hu­mane court in the world!" is one of the most pop­u­lar phrases from a Soviet-era movie. It was ut­tered by ac­tor Ge­orgy Vitsin (R) in the 1960s Soviet clas­sic com­edy film "Kid­nap­ping, Cau­ca­sus Style." Of course, jus­tice in the Soviet Union was de­cided by those who ran the hi­er­ar­chi­cal Com­mu­nist Party. (Cour­tesy)

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