Institutional theories of judicial independence offer the same prediction for the relative difference in judicial independence in Russia and Ukraine during the late 1990s and 2000s, as the strategic pressure theory. They anticipate that Russia would have a higher level of independent judicial output than Ukraine because it has a more structurally insulated judiciary. The mechanism through which this result is expected to come about is very different, however. The structural insulation theories would claim that institutions constrained Russia’s incumbents and made it harder for them to exert pressure on the courts, whereas Ukrainian incumbents were still free to continue in their Soviet ways.

This chapter presents qualitative evidence that the formal institutional structure of the judiciary does not truly constrain Russian politicians. Rather, despite the institutional difference that we observe during the 1990s and 2000s, the actual relationships both within the judicial hierarchy and between the judiciary and the political branches of government are surprisingly similar in Russia and Ukraine. Informal practices, which are a carryover from the Soviet period, appear to be durable and resilient to the challenge of new formal institutions. The chapter describes four interrelated informal mechanisms through which both Russian and Ukrainian politicians could impose their preferences on judicial output if they wanted to: (1) the widespread and acceptable practice of ex parte communication; (2) telephone law; (3) the high level of internal dependence within the judiciary; (4) the cozy relationship between the leadership of the judiciary and the Presidential Administration; and (5) the widespread perception among judges that officials in the agencies assigned to provide administrative and technical support for the courts supervise, rather than serve them.

Ex Parte Communication

The formal institutions may have been different in Russia and Ukraine as Chapter 3 argued, but the exact same informal mechanisms for exerting pressure on judges were available to both Russian and Ukrainian incumbents during the late 1990s through early 2000s. The first such mechanism is the practice among judges, lawyers, and prosecutors to engage in ex parte communication (i.e., discussion of cases outside the courtroom). As a result, even though most politicians would probably profess support for judicial independence, they also feel free to talk to judges about individual cases. The more the specifics of a case are discussed outside the courtroom, the more the case is actually decided outside the courtroom. In other words, ex parte communication is a conduit for extrajudicial interference in judicial decision making.

Ex parte communication is a standard practice with long history both in Russia and in Ukraine. Russian and Ukrainian judges readily discuss the specifics of individual cases with litigants or other people with a stake in the outcome of the case. They often do not see this practice as problematic, but as a legitimate information-gathering technique and a service to the population. At a conference sponsored by the Canadian International Development Agency (CIDA) in Shklo, Ukraine, seventy-nine Ukrainian district court chairs, appellate court chairs, arbitrazh court chairs, and regional heads of Union of Judges chapters discussed ways to improve the functioning of courts of general jurisdiction. One presenter’s exposé on the importance of minimizing ex parte communication was met with a barrage of criticism from his fellow judges. Judge after judge stood up to protest. A few opposed the proposal on the principled position that they reject any counterproductive attempt to transplant “Western” or common law legal principles in a post-Soviet, civil law environment. Many, however, emphasized that even though they welcomed outside advice on judicial reform, they thought that limiting ex parte communication was neither feasible nor desirable. Judges in Ukraine (as in Russia) were used to holding regular “office hours” during which they would meet with litigants and answer questions (i.e., engage in ex parte communication). Judges felt that these office hours were an essential service that they provided to the community. They emphasized how they save people money routinely by instructing them whether their case has any merit. Once a case had been filed, judges often used the office hours to, in effect, pursue mediation between the sides. And, of course, they would welcome valuable information about a case from any source, as it would help them establish the truth. And establishing the truth is the crux of a judge’s mission within the civil law legal tradition, to which both Russia and Ukraine belong (Merryman, Reference Merryman1969).¹

Evidence of ex parte communication between judges and litigants in specific cases came out of several of the interviews that I conducted in both Russia and Ukraine with SMD candidates who participated in electoral registration lawsuits. The first example is from an interview with S. K., a Communist Party of Ukraine candidate from Crimea. Nine days before the election were to take place, the District Election Commission deregistered S. K. for failing to disclose all his properties. S. K. appealed the DEC decision to the Central Election Commission and filed a petition in a Kyiv district court asking the court to declare explicitly that S. K. did not have possession of the building that the DEC alleged that he owned. The CEC rejected the complaint, so S. K. appealed the CEC decision at the Supreme Court. Just one day before the elections, the Supreme Court of Ukraine denied his appeal. Having exhausted all appeal venues, S. K. could not run in the March 31 election. After the election, when his ownership of the unfortunate building was no longer relevant, the Crimean district court satisfied his petition and declared the sale contract null and void. I asked S. K. why he decided to take his case to the CEC and a Kyiv court, rather than to the Crimean courts first. S. K. explained that he himself and his lawyers consulted numerous times with judges both in Crimea and in Kyiv about the best way to maximize his chances for restoring his registration and acted upon the judges’ recommendations (S. K., 2003).

In Russia, a Moscow SMD candidate who unsuccessfully sued to try to deregister a United Russia nominee also reported discussing the particulars of the case with the judge who heard it. S. R. was an ambitious youth organization leader who did not have any ideological disagreement with the party of power, but rather was looking for a way to make a political career. Oddly enough, taking the party of power nominee to court was S. R.’s chosen way of getting noticed and getting political credibility, not with voters, but with party organizers. S. R.’s strategy is reminiscent of the strategy of a software start-up positioning themselves as challengers to Microsoft, when their ultimate goal is to get bought by Microsoft. S. R.’s argument in the lawsuit that he filed with Moscow City Court was that the UR nominee should be deregistered because many of the advertising materials distributed on his behalf, were not paid for by his election fund. Moscow City Court rejected S. R.’s claim with the motivation that these materials were printed by the party, rather than ordered by the candidate himself and the candidate was, hence, not responsible for what the party did. S. R. did not stop there. His lawyers found some documentation that showed that the UR nominee’s signature appeared on an order form for campaign materials. S. R. even found someone from the party, willing to testify to this effect in court, so he planned to appeal the Moscow City Court decision to the Supreme Court. S. R. said that the Moscow City Court judge explained to him and his legal team that the appeal would be rejected on a technicality. The explanation was that the court would not be willing to set a scandalous precedent, which would open the floodgates to similar claims about all UR SMD nominees in districts around the country. Unlike S. K. in Ukraine, S. R. did not follow the judge’s recommendations and, nevertheless, filed the appeal. And, as the judge had predicted, the Supreme Court indeed rejected it by refusing to accept additional evidence.

Telephone Law

Discussing the particulars of a case outside the courtroom always opens the door to some potential extrajudicial interference in judicial decision making, but once a politician and a judge start discussing the particulars of cases, we may start crossing the line into telephone law. Telephone law or telephone justice is a channel for politicians to communicate their preferences about the outcome of individual cases to the judges who hear them. Arkadii Vaksberg has claimed to have coined the “telephone law” term in 1986 to describe a supposedly ubiquitous Soviet practice, where Communist Party officials simply called in decisions in individual cases (Leneneva, 2008). Vaksberg actually thinks that the situation has only exacerbated during the post-Soviet period and telephone law has given way to something even more sinister – Basmannoe pravosudie (named after Basmannyi district court in Moscow, which decided some of the Khodorkovsky-Yukos cases).

Vaksberg was likely overstating the Soviet case somewhat because such crude and direct extrajudicial interference in judicial decision making as calling judges to tell them how to rule in a specific case does not seem to have been standard practice (Solomon Reference Solomon1996; Huskey, Reference Huskey1992;). Stalin’s Soviet Constitution from 1936 contained a guarantee for judicial independence, and, in fact, it was considered improper for Communist Party officials to call judges and offer an opinion on specific cases (Solomon, Reference Solomon1996, p. 291). Thus, the influence of Communist Party officials on judges was informal and slightly more subtle. It flowed through ex parte communication between local government and party officials and judges, which was seen as completely legitimate. It was legitimate because judges were supposed to be embedded within the local government institutions rather than in a separate branch. Ex parte communication about specific cases was part of the symbiotic relationship between the judiciary and the other branches. It purportedly increased the efficiency of the judiciary in tackling crime and resolving other disputes because it provided judges with “local knowledge,” which supposedly helped them reach “the right” decisions (Solomon, Reference Solomon1996, p. 290–7).

The practice of routine ex parte communication between judges and representatives of the other branches of government has survived the collapse of communism and the state, as well as the judicial reform programs that independent Russia and Ukraine both pursued during the 1990s. An incident that took place at a confirmation hearing for judges eligible for life tenure appointments at a meeting of the Rada Committee on Legal Affairs illustrates the subtler manifestations of the close informal relationship between judges and politicians and how it continues to undermine judicial independence today. During the confirmation of a Kyiv district court judge, Nasha Ukraina MP and the current mayor of Kyiv, Leonid Chernovetskii, urged his fellow MPs to think twice before granting this judge life tenure because the judge was purportedly rude and irresponsible. Chernovetskii justified his recommendation by explaining that a couple of years earlier he had left a message for this particular judge asking him to call back so Chernovetskii could explain some circumstances of a case, which would help the judge reach a fair decision. The judge did not return Chernovetskii’s call, which both surprised and disappointed the opposition MP. The MP described his disillusionment at the realization that this particular judge was not interested in hearing all sides to a story and thus could not possibly deliver just and well-informed decisions. Chernovetskii has a PhD in law from Ukraine’s most prestigious law academy and used to be a law professor at Kyiv’s Shevchenko University, so his position hardly stemmed from a low level of legal expertise. Moreover, many of his fellow MPs nodded in agreement or looked indifferent. The one MP who disagreed vociferously with Chernovetskii was Serhii Holovaty, a politician who is well-known for his pro-Western positions.

I do not have systematic data on the frequency of such “courtesy calls” by politicians either for Russia or for Ukraine. Ledeneva (2008) reports 2006 survey data, according to which the majority of Russian judges think that the telephone law is widespread and has a strong influence on judicial decision making. I did, however, use the Chernovetskii story as a vignette in my semistructured interviews with jurists in both Russia and Ukraine, and everyone expressed confidence that the Soviet-era practice of open ex parte communication about specific cases between judges and politicians endures. Many thought Chernovetskii’s call was acceptable insofar as he did not intend to instruct the judge on how to rule, but simply wanted to provide useful information. In other words, even though telephone law is perceived as improper, ex parte communication is perceived as an acceptable practice, even when it involves judges and politicians.

Even if it is perceived as improper, however, telephone law is not shocking, but quite real to both Russian and Ukrainian judges, which suggests that it may be a common practice. For example, Judge Yurii Vasilenko from Kyiv Appellate Court, who opened a criminal case against incumbent President Leonid Kuchma in October 2002, reported receiving many direct calls from politicians. He claimed that Presidential Administration head, Viktor Medvedchuk, called him immediately after hearing of the case to yell at him. So did a member of the Supreme Council of Justice (SCJ) who was the president of the Union of Jurists, and was firmly within Kuchma’s political circle. By Vasilenko’s account, both callers “warned” him privately that he would likely face criminal prosecution soon (Vasilenko, Reference Vasilenko2003).

Judge Mykola Zamkovenko, a Kyiv judge who made headlines when he released opposition leader Yuliya Tymoshenko from pretrial detention in April 2001, also echoed Judge Vasilenko’s experience. Before he ruled in the Tymoshenko case, he also received warnings in the form of “friendly advice” by friends and acquaintances who were positioned within the Kuchma regime. Although Judge Zamkovenko was not as specific as Judge Vasilenko in naming the sources of telephone law, he did bring up PA head Medvedchuk. Zamkovenko emphasized that he knew Medvedchuk from their law school days together at Kyiv State University and stated that he believed that Medvedchuk had “set him up” by getting him involved in the Tymoshenko case, when he wanted to stay away from it and not take a side (Zamkovenko, Reference Zamkovenko2004). The discussion suggested the participation of high-ranking members of the incumbent regime in individual cases through informal, rather than formal channels.

In Russia, the best example of the telephone law that I heard of involved Mayor Luzhkov’s administration. Even though the evidence is more indirect than the Ukrainian one, it also suggests that the lines of communication between judges and politicians about specific cases are wide open. Andrei Buzin, a Yabloko member of the Moscow City Election Commission (MCEC), told the following story. During the 2001 election campaign for the Moscow City Duma, a vice-mayor of Moscow showed up at a meeting of MCEC unannounced, took the podium, and spoke about why two candidates should be deregistered. The next day, a Moscow City Court judge ruled to take down these same candidates’ registration using virtually the same language in explaining the motives. After the campaign was over and Mayor Luzhkov’s faction captured a 33/35 majority in the city Duma, the Moscow City Election Commission dominated by Luzhkov supporters demonstrated the mayor’s appreciation for the role that Moscow courts played in the race by awarding Moscow City Court chair Ol’ga Egorova with an honorary badge “For Active Contribution to the Elections,” first rank (Buzin, Reference Buzin2002)!

Internal Dependence in the Russian and Ukrainian Judiciaries: How Superior Court Judges Influence Lower Court Judges

Communication between politicians and judges about specific cases can be an efficient vehicle for influence or indirect pressure. The practice of providing judges with housing, vacations, and other perks for the duration of their tenure is an even more powerful tool for influencing judicial output. Judges who deliver rulings that anger incumbent politicians can suddenly face eviction or a transfer to another apartment, which in the best-case scenario is a huge hassle. In a diabolical, but admittedly quite ingenious, worst-case scenario that I heard about, a prickly Ukrainian judge found himself living in the same apartment building as a recently released violent criminal whom the judge had put in jail years before (M. V., 2003). Other judges may simply be told that they have to wait for an apartment vacancy and that wait may extend to several years, during which these judges may preside over hundreds of cases in which the regional authorities who provide the housing have a strong interest. For example, Judge Zadorozhnaya in Moscow and Judge Vasilenko in Kyiv both had to sue in order to receive housing. A Moscow judge cited the fact that she owned her apartment as an important determinant of her independent adjudication of cases (Kudeshkina, Reference Kudeshkina2004). In Ukraine, during hearings to recommend candidates for the about-to-be-created administrative court hierarchy, one MP asked each candidate whether he or she owned an apartment in Kyiv. When virtually all candidates said that they did not, the MP expressed concern about their future independence (Legal Affairs Committee Meeting, 2003).

In addition, independent judicial output is severely compromised by the very high level of internal judicial dependence within both the Russian and the Ukrainian judiciary. By internal judicial dependence, I mean the dependence of lower court judges on their superiors within the judiciary’s ranks – court chairs and higher courts. Alternatively, the strong hierarchical relationship between lower and higher court judges has been called bureaucratic accountability – like bureaucrats, judges are not independent decision makers, but are strongly bound by the guidelines and outright interference in their decision making by superiors within the same institution (see, e.g., Di Federico, Reference Di Federico1976; Piana, Reference Piana2010; Solomon, Reference Solomon2010).

The Qualification Commission (QC) hierarchy and the regional chapters of the Union of Judges (i.e., the formal institutions purportedly created to keep control over judicial careers within the judiciary) exemplify the internal dependence phenomenon. Instead of giving rank-and-file judges a voice in the recruitment, appointment, promotion, disciplining, and dismissal of fellow judges, the Qualification Commissions actually serve as monitors for the federal executive of judicial behavior at the district court level. The commissions do not foster debate but rather implement mandates from higher-ups in the judicial hierarchy. Whereas QCs do not always reach decisions unanimously, if there is any dissent, it is usually a power struggle between two powerful fractions, not debate. The newly elected members take their cue from the more experienced members and vote accordingly.

QCs and Union of Judges chapters are vehicles for vertical accountability and dependence within the judiciary because the process of staffing them is de facto uncompetitive. Judges in both countries reported that court chairs handpick candidates to run for a seat at the qualification commissions and present the lists at the conference where all judges vote. The nominees do not campaign, and there is no debate on the candidacies. Individual judges usually have never heard of the nominees. Rank-and-file judges also virtually never throw their hats in the race. Even if an ordinary judge gets nominated by a colleague, they usually recuse themselves if they do not have their chair’s backing. While there is the odd challenger from time to time, such insurgency candidates never get a majority to vote for them against the candidate picked by the chairs.²

That is because court chairs wield great power over the judges on their courts. Chairs control the assignment of cases and distribution of bonuses to individual judges and panels of judges. If they want to harass a judge who does not take orders well they have a variety of options at their disposal. The list of options cited by Russian judges is virtually identical to the examples given by Ukrainian judges.

Judges from Moscow City Court talked about the chair’s discretion over bonuses, case assignment, and threats with disciplinary measures. Budget proposals contain a certain sum of money for bonuses based on the number of judges who work in the court. In Moscow City Court, for example, there are 150 judges. However, during a given year, maybe 90 of these judges work throughout the year, while the others are on sick leave, maternity leave, or accumulated vacation. This means that their bonuses, which are built into the estimate and thus get appropriated to the court, have to be redistributed among the other judges. The chair has full discretion over how to redistribute this additional bonus and the difference could be quite significant – some judges may receive 12,000 rubles and others can get 70,000 rubles. The court chair also decides who will hear which case and the practice is to give the cases that potentially bring good money in bribes to his or her favorite and most “reliable” judges. Finally, chairs can exert pressure indirectly through off-hand remarks, such as “You are acquitting an awful lot of people lately; are you taking bribes?” or “Why are other people hearing more cases per month than you? Maybe you are wasting too much time granting motions for the defense” (Pashin, Reference Pashin2004; Kudeshkina, Reference Kudeshkina2004).

Several Ukrainian judges cited the same mechanisms for ensuring internal judicial dependence. Court chairs had wide discretion in assigning cases to judges on their court. In addition, court chairs can put a problem judge in panels with two other judges who have personal or ideological differences with the problem judge to neutralize the “trouble maker.” Basically in every ruling the problem judge would be the one dissenting opinion, and thus he or she would be voiceless. The chair can use his or her case assignment power to make other judges isolate the trouble maker socially. The chair also determines the size of bonuses and can punish individual judges by giving them smaller bonuses (Vasilenko, Reference Vasilenko2003; Zamkovenko, Reference Zamkovenko2004).

Just as in Russia, in Ukraine the court chair can also give problem judges smaller bonuses and or even withhold their entire salary. For example, Andrii Fedur, who represented the thirty-seven judges from Donetsk appellate court, reported that the entire criminal chamber simply did not receive salaries for eight months. The official explanation was that the entire budget had been spent on judges traveling around the region, but Fedur was convinced that the wage arrears were collective punishment for the chamber’s decision to uphold a politically controversial lower court ruling. In 2002, Slavyansk district court judge Ivan Korchistii acquitted Yurii Veredyuk in the murder of investigative journalist Igor’ Aleksandrov. Many believed that the homeless Veredyuk was used to cover up the involvement of the Donetsk regional authorities in the opposition journalist’s slaying (Fedur, Reference Fedur2003).

Court chairs comply with directives from higher-ranking judges because they owe their appointment to a higher-standing Qualification Commission, which is in turn staffed with members loyal to the chairs of the higher court level. This well-oiled machine results in a high level of internal dependence within both the Russian and the Ukrainian judiciaries.

Some Russian judges I interviewed claimed that when a case appears sensitive, judges themselves approach the court chair and ask for “guidance” on how to decide the case. If the chair is uncertain about what the “politically correct” decision may be, he or she would discuss the issue higher up the hierarchy (Pashin, Reference Pashin2004; Kudeshkina, Reference Kudeshkina2004). For example, former Prosecutor General Yurii Skuratov, who attempted a run for the Duma in his native Buryatiya, reported that when he appealed the district election commission’s refusal to register him in the SMD, the chair of the Supreme Court of Buryatiya traveled all the way to Moscow to consult on how his court was supposed to rule in the case (Skuratov, Reference Skuratov2004).

In Ukraine, judges reported that in politically sensitive cases, they usually “receive advice” from their court chair or from procurators or lawyers they know, about how to rule (A. D., 2003). S. K., an SMD candidate in Ukraine claimed that a Crimean judge who was supposed to hear his appeal against a decision of the District Election Commission informed him that he had “received word” directly from Kyiv that S. K. had to be taken out of the race in his Crimea district. Hence, the judge said that it is not “worth” ruling in his favor at the district court level because the decision would be reversed at the next instance (S. K, 2003).

The strong concern that lower court judges have about their decisions being reversed at the higher instance comes from the fact that reversal rates are one of the components of a judge’s professional evaluation criteria. Each reversal is considered an “error” by the lower court judge, rather than a disagreement about the interpretation of the law or the facts of the case by two jurists. Thus, high reversal rates are considered a blemish on a judge’s record and consequently can hurt a judge’s promotion prospects or even get him/her fired.

This is true both in Russia and in Ukraine. For example, Sergei Pashin, one of the main forces behind Russia’s judicial reform efforts in the early 1990s, was heavily criticized by his court chair at Moscow City Court for handing out too many acquittals in criminal cases, which were then reversed on appeal by the Supreme Court. His high reversal rate reflected badly on the court (Pashin, Reference Pashin2004; Kudeshkina, Reference Kudeshkina2004). Judge Kudeshkina from Moscow City Court also claimed that if the court chair wants to punish a judge, she can give the most complicated cases, which increases the likelihood that any decision delivered in such a case would be overturned on appeal. A high reversal rate makes a judge vulnerable to disciplinary action by the QCs (Kudeshkina, Reference Kudeshkina2004). In Ukraine, Judge Yurii Vasilenko made the same argument almost word for word. A higher and more complex workload, Vasilenko explained, increased the likelihood that he would “make a mistake” in one of them. When I asked how one would know whether any given decision is a mistake or not, his answer was that it was rather simple – if the decision was reversed on appeal, it is a mistake. And if a judge makes many mistakes, this is grounds for disciplinary action by the Qualification Commission (Vasilenko, Reference Vasilenko2003).

I observed first-hand how important reversal rates are as a component of the evaluation of judges’ professional competence. I attended meetings of the Rada Committee on Legal Affairs, during which MPs examined judges who had completed their initial trial term and were now up for confirmation. If the MPs recommended them for confirmation, the judges would receive life tenure. The process appeared very different from a U.S. Supreme Court confirmation hearing in the Senate. The process appeared nonpoliticized and aimed at ascertaining whether the candidate has the necessary qualification to be a judge. The MPs did not ask any questions that would allow them (or anyone) to identify the political or ideological positions of the judges. Instead, the questioning session had the feel of an oral examination of candidates to the bar. For example, MP Holovaty asked each judge the same question – he described a hypothetical case and asked the judge which article of the European Convention on Human Rights was violated in this instance. Another routine question focused on the judge’s reversal rate on appeal. This appeared to be a central component of a judge’s record, because the MPs cited specific numbers in their questions and repeatedly asked judges with high reversal rates to explain why they allowed this to happen. The line of questioning and the answers that the judges gave made it abundantly clear that a high reversal rate is not a sign of a creative judicial mind or an “activist” judge, but instead a sign of simple incompetence and lack of professionalism. The only judge who did not receive confirmation during the hearings that I attended (which, in effect, means that the Rada committee recommended his removal from the bench) had two strikes against him: (1) He could not point to any justification of his high reversal rate, and (2) he had delivered decisions in Russian, rather than Ukrainian, even though he is required by law to do the latter.

A strong judicial hierarchy and the low internal independence within the judiciary that comes with it are not unique to Russia and Ukraine. Arguably, the Russian and Ukrainian experience in this regard is in line with the general civil law legal tradition to which Russia and Ukraine belong. Studies of other civil law judiciaries have made similar claims about the low independence of lower court judges from their superiors within the judiciary (see, e.g., Merryman, 1987; Guarnieri & Pederzoli, Reference Guarnieri, Russell and O’Brien2001; Hilbink, Reference Hilbink2007).

However, unlike some other civil law judiciaries, which purportedly have a strong professional culture and tradition of being apolitical (see, e.g., Hilbink’s book about the Chilean judiciary), both the Russian and the Ukrainian judiciaries are sprouts of the Soviet judiciary, which was hardly apolitical. In fact, Soviet judges’ professional mandate was highly political – they were supposed to aid the Communist Party and its subordinate state institutions in the implementation of policies and the creation of the “Soviet man” (Solomon, Reference Solomon1996). Thus, the Ukrainian and Russian post-Soviet judiciaries still operate with an organizational culture that emphasizes a symbiotic relationship with the other branches of government. This heritage facilitates the easy transfer of political goals and mandates from incumbent politicians to the leadership of the judiciary, which then delegates the implementation of these goals down the hierarchy to the lower court judges.

Links Between the Judiciary’s Leadership and the Presidential Administration

Another piece of the informal institutional puzzle, in addition to the informal practices that facilitate internal dependence within the judiciary, was the existence of various cryptic departments within the Presidential Administration. These departments had a low public profile and no formal mandate but wielded significant influence over judicial careers through the informal connections between them and the highest echelons of the judicial hierarchy.³ Kuchma’s PA had a Department of Interior Policy, a Legal Department, and a Department of Judicial Reform Issues and Relations with the Procuracy and the Judiciary.⁴ Interestingly enough, there was virtually no public information about the existence and activities of these departments. The structure of the Presidential Administration is not described in any law, and only Rada MPs, ministers, PA employees, and their assistants have access to a database listing all constituent departments of the PA. According to Ukraine’s Minister of Justice in 2003, Aleksandr Lavrinovich, these departments were responsible for analyzing legislation proposed as part of judicial reforms, advising the president about his position on such issues, and drafting presidential decrees in accordance with the existing laws (Lavrinovich, Reference Lavrinovich2003).

According to former Prosecutor General, and former High Council of Justice member, Viktor Shishkin and others, however, the nontransparent PA departments were actually involved in closely monitoring judicial output and identifying “problem judges” who ruled against the president’s interests (Shishkin, Reference Shishkin2004). Judge Mykola Zamkovenko also talked about a PA department as a source of telephone law and an institution that generally “keeps an eye” on judicial behavior. In addition, Judge Zamkovenko reported that PA head, Viktor Medvedchuk, actually could influence the allocation of cases to different courts. Judge Zamkovenko believed that Medvedchuk had “set him up” by giving his court the hot potato criminal prosecution of opposition leader and former deputy premier Yuliya Tymoshenko (Zamkovenko, Reference Zamkovenko2004). And, finally, election expert Volodymir Kovtunets argued that a PA department carefully monitored judicial output in electoral disputes (Kovtunets, Reference Kovtunets2004).

In addition, there were strong informal links between the higher echelons of the judiciary and the Presidential Administration. For example, the circumstances of the November 11, 2002, election of Judge Malyarenko to the position of chairman of the Supreme Court of Ukraine, which I heard unprompted in several interviews (including from a direct participant in the election) illustrate the informal influence that political incumbents seem to exercise in judicial affairs. President Kuchma and the head of his Presidential Administration, Viktor Medvedchuk, reportedly showed up personally to the session, during which the judges were scheduled to elect a new chair. They attended the session even though the president, let alone the head of his administration, did not have any formal role in the Supreme Court chair election. According to Article 128 of the Constitution of Ukraine and Article 42 of the Law of Ukraine on the Court System and the Status of Judges, which were in force at the time, the chair of the Supreme Court is elected through a secret (as opposed to open) vote by the Plenum of the Supreme Court (Constitution of Ukraine, 1995; Law of Ukraine on the Court System and the Status of Judges, 2002). There are, however, no formal rules that prevent the holders of these political offices from physically attending any Supreme Court session. Medvedchuk and Kuchma allegedly asked judges to vote for a specific candidate, Judge Malyarenko, and extolled his suitability for the job. They also, reportedly made two promises – first, not to pursue any measures to decrease the number of Supreme Court judges, and second, to propose to the Rada to raise the salaries of Supreme Court judges. Even though there had been supposedly a different front-runner for the Supreme Court chair position, the judges promptly elected Kuchma and Medvedchuk’s proposed candidate, Judge Malyarenko (Y. V., 2003; V. S., 2004; A. V., 2004).

Putin’s first Presidential Administration had several analogous components, all created by presidential decree – a State-Legal Department, a Department on Cadres and State Awards, a Commission on the Evaluation of Nominees for Judicial Posts at Federal Courts, a Council on Justice Enhancement Issues, and a vaguely named Department of Affairs, which provides the financial and organizational capacity for all constituent parts of the PA.⁵ These institutions ran background checks on all nominees for judicial posts, analyzed legislation that might affect the functioning of the judiciary, and even collected statistics on judicial output, especially on electoral disputes. Although information on the number of employees at the PA departments was not readily available, the institutions seemed to run a massive operation. Judges reported that as part of the PA background check, their employers and even their spouses’ and adult children’s employers received personal visits by representatives checking for any compromising facts and general “reliability.” These individual background checks were allegedly performed by FSB employees, but the information gathered was relayed back to the PA departments (O. K., 2004). It is hard to decide whether to treat this activity as the PA “outsourcing” tasks to the FSB or to interpret it as evidence that the Putin PA was basically run by the FSB. The head of the PA Commission on the Evaluation of Nominees for Judicial Posts at Federal Courts, Viktor Ivanov, was a former deputy head of the FSB in charge of economic security, which further blurred the distinction (President of Russia, 2006).

Regardless of the exact relationship between the PA and the FSB, it appears that these PA departments performed some tasks, which were supposedly at the crux of the mandate of the Qualification Commission system and the Court Department at the Supreme Court system (CDSC). If the PA indeed routinely performed its own fact-finding missions, then it, at best, doubled the work performed by the QCs. At worst, however, the PA departments served as a monitor of the QCs, which would suggest that the QCs were informally dependent on the executive. Even if we do not observe many (or any) cases, in which judicial nominees recommended for appointment by the QCs would be rejected following a PA-conducted background check, this might mean that QCs apprehensive about having their nominees rejected by the president would try to select only candidates that would be acceptable to the PA. In addition, by collecting court statistics, which, as I have already discussed, are the main method for evaluating judges, the PA departments doubled the work performed by the Court Department hierarchy. As a result, the PA would informally check the work of one more judicial institution and would possess data, which it could then use to trigger disciplinary proceedings against judges, whose judicial records appear to deviate from what is expected. Thus, the PA would be well positioned as an important player in judicial careers, despite the formal structural insulation of the judiciary from the executive.⁶

In addition, the PA departments provide opportunity for informal interaction and ex parte communication about cases between the executive and the judiciary’s leadership. The list of members of PA-affiliated commissions read like a “who’s who” of the country’s top judges and administrators. The chairs of the Supreme Court and the Supreme Arbitrazh Court, the director of the Court Department, and the chairs of the Supreme Qualification Commission and the Union of Judges all sit on these commissions together with the first deputy director of the FSB, the president’s representative in the Duma, a member of the Federation Council, and the directors of several other departments within the PA structure.

Yurii Skuratov’s registration travails during the 2003 Duma campaign illustrate the prevalence of ex parte communication and the cozy relationship between the Presidential Administration and the Supreme Court leadership. Besides attempting a run in Buryatiya’s SMD, Skuratov also registered as a candidate on the federal list of the Party of Pensioners. However, after he was denied registration in Buryatiya for failing to disclose that besides being a department chair at a Moscow university, he was also a professor, Skuratov was also kicked off the federal list. Party of Pensioners Bloc chair Vladimir Kishenin petitioned the Supreme Court to cancel Skuratov’s federal list registration because his lies about his employment status purportedly hurt the party’s electoral chances. Skuratov argued that Kishenin is “an FSB man,” so he was simply following orders by the Presidential Administration. Skuratov’s claim seems to be corroborated by Kishenin’s other pro-Kremlin and anti-KPRF actions during the 2003 campaign. The focus of the Pensioners’ Party campaign was to allege that KPRF leader Zyuganov had financial ties to exiled oligarch Boris Berezovskii, as well as expose Berezovskii’s alleged financing of Chechen terrorists (Skuratov, Reference Skuratov2004). Skuratov argued that the Kishenin petition should not have been heard at all because it had procedural errors (the law requires that an authorized person, rather than the chair of the party file any petitions). In fact, according to Skuratov, his sources at the Supreme Court had told him that the judge who was assigned to the case was going to dismiss it without a hearing. However, those same sources later informed Skuratov that Presidential Administration deputy head Vladislav Surkov spoke personally to Supreme Court chairman Vyacheslav Lebedev about the need to keep Skuratov out of the Duma race. The next day, Judge Lebedev reassigned the case to a close friend, Judge Nikolai Romanenkov, and Romanenkov not only decided to hear the case, but also ruled in favor of Kishenin and against Skuratov. A panel of three judges later upheld Romanenkov’s decision at the cassation stage (Skuratov, Reference Skuratov2004).

There are, of course, two sides to every story. I also interviewed one of the Supreme Court judges who had heard Skuratov’s case. The judge argued that Skuratov had indeed lied to the voters. In the judge’s recollection, Skuratov had misled voters that he was a full-time professor, while in reality he was a part-time adjunct professor. In addition, the judge argued that Skuratov had an inflated ego and believed that the Presidential Administration was out to get him, when in reality the president could care less whether Skuratov had a Duma seat or not. Therefore, the judge rejected Skuratov’s claims that the Presidential Administration interfered in this case (Anonymous, 2006). The judge may well be right that Skuratov’s application was technically in violation of electoral registration application guidelines. He may even be right that Skuratov may have had an inflated image of his own importance. Both of these issues are beside the point, however. What I think is striking in the judge’s account of the Skuratov case was the argument that Skuratov was not worthy of a PA intervention. The judge did not reject outright the proposition that the PA intervenes in Supreme Court cases or whether it makes its position known to Supreme Court judges. Why would a Supreme Court judge know whether the PA had an opinion about an individual litigant and what it was?

Supporting Agencies as Supervisors, Rather than Assistants

Finally, judicial independence may have been compromised in both countries by the very agencies assigned to provide administrative and technical support for the courts. Qualitative data that I gathered through semistructured interviews with Russian and Ukrainian judges, as well as participant observation provides evidence that, informally, both agencies used carrots and sticks to maximize judicial compliance. The majority of Russian and Ukrainian judges that I interviewed said they perceived the role of the two administrative and technical support institutions (called the Court Department of the Supreme Court in Russia and the State Court Administration in Ukraine) more as supervisory, than as supporting. Those who did not use the word “supervisory” still reported that the supporting agency officials could help or hurt judges if they wanted to.⁷

The Russian CDSC was established in 1999 as the institution in charge of securing the day-to-day operations of the courts. Its responsibilities include (1) drawing up the lists of candidates for judges; (2) organizing and providing logistical help to the judicial examination commissions; (3) keeping court statistics and archives; (4) dealing with the financing of the courts and the various judicial organizations (i.e., QCs, Union of Judges, etc.); (5) organizing procurement for the courts (e.g., supplying judges with everything from pen and paper to computers to light bulbs); (6) facilitating the provision of all services that judges are entitled to – housing, vacations, medical coverage, etc; (7) managing and disbursing the judiciary’s budget (Sudebnyi Departament pri Verkhovnom Sude Rossiiskoi Federatsii, 2010). The CDSC is firmly situated within the judiciary as its director is appointed and dismissed by the Chairman of the Supreme Court with the consent of the Council of Judges (Law of the Russian Federation on the Judicial System, Art. 31.2; Law of the Russian Federation on the Court Department at the Supreme Court, Art. 8.1). He reports on the activities of the CDSC to the Congress of Judges, a meeting of all judges held every four years (Gusev, Reference Gusev2008). Thus, on paper, the CDSC and its chapters in the regions serve judges.

It appears, however, that the CDSC structure also provided another institutional mechanism, through which the higher echelons of the Russian judiciary can relay pressure to the lower echelons. It can play the role of a conduit for the flow of influence from top to bottom. In Russia, I arranged a meeting at the CDSC to obtain statistical information about defamation and electoral disputes. I was invited to wait for the head of the statistical department in the office of the director of the international cooperation department. As I arrived, a court chair from Kaluga region was wrapping up his visit. Both the judge and I had brought gifts for the director. However, while I gave my host a three-dollar university seal pen, the judge had brought a hand-woven tapestry portrait of the director in a procurator’s uniform!

In Ukraine, the Kuchma administration established the State Court Administration ostensibly to provide technical and administrative support to the courts. Unlike the Russian CDSC, however, the SCA was part of the executive, rather than the judiciary. As a result, it was perhaps an even more straightforward conduit of influence from politicians to judges. The SCA could influence district court judges through their control over budget disbursement and logistics. A Ukrainian court chair described the following mechanisms. First, the SCA developed the cadre plans for each district court and the chair was unhappy that the local SCA chapter had decided to allocate money for hiring eight cleaners, when the court really needed a computer tech support specialist. The chair called the SCA and demanded that they amend the plan to better reflect the court’s needs. Instead of implementing the judge’s suggestion, the SCA leadership decided to show who was in charge and started sabotaging the chair’s requests. For example, when the chair asked for toner, it took the SCA three weeks to wire over the money. During these three weeks, the price of toner had changed slightly, so the SCA asked the chair to file a new application for funds. The chair reported feeling like a beggar every time he had to approach the SCA for funds. Finally, besides being in charge of organizational logistics at the courts, both the CDSC and the SCA controlled such perks as trips abroad, subsidized vacations, access to rehabilitation centers, and conference travel (A. D., 2003).

At the Canadian-sponsored conference, which I attended at a mountain retreat managed by SCA, the head of the SCA, Volodymir Karaban’, carried himself as the highest-ranked official, even though the group of judges included Supreme Court and Supreme Economic Court justices and the chairs of all appellate and appellate economic courts in the country. Karaban’s air of superiority became particularly obvious when he chaired a discussion that followed a presentation by the director of the court administration at an Edmonton court. The judges asked a couple of questions about judicial salaries, but then interest in the speaker waned. A few judges began to talk softly to each other and soon the room was buzzing with various conversations. It looked like everybody was ready for an early coffee break. Visibly embarrassed that the foreign guest would be offended by the lack of interest, Karaban’ scolded the judges with a tone usually reserved for students. After his remark, several judges eagerly raised their hands and asked perfunctory questions. During the coffee break, my roommate – a court chair and the head of her region’s chapter of the Union of Judges – worried that Karaban’ would be unhappy with the judges’ performance during the conference. I asked her why she cared. She gave me a puzzled look and then mumbled something about a different set of judges being invited to the next event, also to be held at a beautiful retreat.

Implications for Judicial Independence Theories

The qualitative evidence discussed in this chapter suggests that despite the introduction of formal institutions aimed at protecting the Russian and Ukrainian judiciaries from outside interference in their affairs, politicians in both countries could still influence judicial output. Through various informal practices, motivated politicians could interfere in individual court cases and punish judges for delivering decisions not to their liking. In Russia, the Kremlin could impose its preferences on individual case outcomes through the following informal mechanism – the Kremlin’s position would be communicated to the higher echelons of the judiciary through the close informal ties between politicians and the judiciary’s leadership, then these preferences would get passed down to the lower courts through the highly effective hierarchical relationship within the judiciary. In Ukraine, incumbent politicians had the same tools at their disposal and, additionally, could provide carrots and sticks to judges directly through the SCA, which was part of the executive. In short, both Russian and Ukrainian politicians had the capacity to subordinate the courts and judges in both countries were aware of this reality.

This finding suggests that the institutional theories of judicial independence have a hard time explaining the realities of judicial-executive relations in Russia and Ukraine. The formal institutions adopted during the 1990s to try to separate the judiciary from the other branches of government are undermined by the continuation of informal practices. Motivated politicians can easily circumvent the structural insulation measures. In addition, the small differences that we observed in the level of independent judicial output in Russia and Ukraine cannot be attributed to the higher structural insulation of the judiciary in Russia. The formal concentration of the power to manage judicial careers within the judiciary, which distinguished Russia from Ukraine, has not made it significantly harder for Russian politicians to lean on the courts.

These findings suggest that judicial independence is unlikely to come about through institutional engineering, especially in the short term. Independence-fostering formal institutions may trigger the expected response in behavior if they are introduced in a brand new system, but they virtually never are. Even in new states, like Russia and Ukraine in 1991, the new judicial institutions that were adopted, were superimposed on a rich and long legal tradition. The Soviet judicial experience was not erased with the collapse of the Soviet Union. In fact, most of the judges sitting on the bench in independent Russia and Ukraine during the 1990s and 2000s were educated and socialized within the ranks of the Soviet judiciary. Hence, the survival of the informal institutions and practices described in this chapter.

The interview data reported in this chapter also shows that neither Ukrainian, nor Russian judges felt particularly independent from politicians. They knew that incumbent politicians had a whole set of levers of influence. The question is how often these levers were activated and under what circumstances. When did politicians choose to actively lean on the courts, and when did they simply lurk in the background and leave the judiciary to its own devices? The next chapter deals with this question.