Leading Yeltsin Analyst On The Difficulties Of Fighting Corruption

April 17, 2018

This is a translation of an interview with leading Yeltsin analyst Peter Filipov conducted by Victoria Lee.  The original version of the article in Russian can be read here.  Some things may have been abridged for clarity. 

Russian laws are designed in such a way that citizens are unable to fairly defend either their personal or their common interests. In a lecture at the Sakharov centre, Peter Filipov, chief analyst of Boris Yeltsin’s presidential administration, assessed the possibility of private prosecution and the protection of public interests, including its effectiveness in the battle against corruption. Fillpov was a colleague of Yegor Gaidar, one of the pioneers of Russia’s famous period of privatisation in the 1990s, and once stood at the forefront of the Leningrad Popular Front. 

Why are laws not enforced in Russia?

Let the authorities decide. Us small people are difficult to notice from down here

Despite the Constitution prohibiting the election of the same president more than twice, and the Constitutional Court ruling that the words “in a row” do not matter, the law is not enforced. A huge amount of other laws are also not put into practice. Why are laws not being enforced in Russia? We have the burdensome heritage of the Horde. We come from a civilisation which revolved around force, not treaties or laws. He who had the most force had the most power. He who had the most power gained the most property.

Serfdom did not exist in England, France, Western Germany or even Sweden. There were no unfree people. Citizens belonged to themselves. They had rights, freedoms and, most importantly, ownership of themselves. They were neither serfs nor slaves, and their society consequently manifested itself as an agreement between free people. Society in Russia, however, was interpreted differently. A state was built to serve the needs of Genghis Khan, and subsequently became the Russian state. It was a time when violence, a lack of freedom and power allowed the boyar to seize fur from a merchant without paying a penny.

Two models of civilisation were thus formed. On one side was the civilisation of justice, encompassing Anglo-Saxon capitalism, Rhenish capitalism and up-and-coming Asian capitalism. The second model was the civilisation of power, containing old-Chinese, Horde, Russian and Islamic fundamentalism. The latter group contradicts progress, represses social development and has an authoritarian culture.

Germans, accustomed to living by orders from above, were shocked when they had to participate in state governance by choosing their own parties and forming personal opinions on political matters. Sociologist Theodore Abel noticed and recorded this in 1937. I’m sure you agree that this is very similar to our situation. People do not want to enter political parties, unite or organise themselves. Let the authorities decide. Us small people are difficult to notice from down here. It is notable that this very psychological striving for unity and the collective whole pushed Germans to band around Hitler. It meant that Hitler’s totalitarian regime was never threatened by popular revolt. Were we really threatened by a mass uprising before Gorbachev because of beggarly life, shortages and empty shelves? A culture oriented towards authoritarianism represses the country’s development. The 85% of Russians who support Putin are a reflection of our culture and a consequence of the power paradigm.

The main contrast between the two models lies in respect for the law. In a progressive society, the fair rule of law must be enforced. People almost instinctively understand this, knowing their legal rights and not letting anyone violate them. In these countries, the law is the foundation of power. Breaking the law leads to dismissal, impeachment or even a prison term. It does not matter whether it is the prime minister, president or everyday citizen who falls foul of such a system. If such a progressive culture works correctly, the end result of social development is inevitably real democracy, necessitating the end of authoritarianism and the recognition of the right to differing opinions and points of view. Conversely, cultures opposing progress consider anyone who disagrees with the authorities’ viewpoint to be an enemy of the people or a foreign agent that must be destroyed.

On the Russian judicial system

Once you’re on the conveyor belt, you can’t escape prison even if you are completely innocent.”

— No matter how useful the law is, it means nothing if the court is controlled from above. Judicial reform is needed. Nothing resulted from the previous attempt at judicial reform because the old judicial corpus remained. Old horses spoil the furrow.

One of the most effective mechanisms is trial by jury, introduced in the 1990s. It has certain advantages as there is a real contest between the prosecutor and the defence, thus guaranteeing justice. In a usual Russian court, judges tend to bow to the prosecution and often simply issue verdicts upon orders from above.

The jury is not responsible for the success of the criminal prosecution as they are not accountable to it. Experience teaches that if the jury doubts the validity of the accused’s guilt, they do not convict them. The jury is well aware of the defects of legislation and often correct illegal laws through their decisions. For this reason, the powers of the jury have been curtailed in recent years, and factors preventing the authorities from implementing their policies have been removed. All cases of espionage, treason, economic crimes, mass riots were removed from the jury’s control, and its remit was reduced to minor offences such as inflicting slight bodily harm and insult.

It is easier to work through ordinary judges. The average life span of a judge’s career is 31 years. Unskilled, courteous judges do not risk making decisions independently and, as a rule, turn to the organisation about which the client complains. Unfortunately, there is accusatory bias in our country. In tsarist Russia, 30% of all court cases were acquittals. When cases are tried by our jury, 15% of people walk out free. If a case falls to an ordinary judge, the acquittal rate is less than one percent. Once you are on the conveyor belt, you can’t escape prison even if you are completely innocent.

On the Prosecutor

The Prosecutor is a minister of the law, not an oprichnik

We are used to the fact that the Prosecutor is the eye of the tsar and, in essence, a truncheon in the hands of the authorities. The Prosecutor defends the interests of the powers that be, but this is not the case everywhere. If an efficient democratic system is in place and fair elections are held, the prosecutor is forced to work fairly.

The Italian Prosecutor’s Office is part of the judicial system, but fulfils a slightly different function to the courts. The Prosecutor is a member of the judiciary and appointed for life by the Supreme Council of Judges. The Italian Prosecutor’s Office lacks a hierarchy. In our country, it cannot be that a city attorney is unable to direct their district counterpart, whereas a district attorney is completely autonomous in Italy. Prosecutorial activity is controlled by the court and investigating judge. The prosecutor performs pre-judicial functions under the strict control of a court. He can be a defender as well as the accuser if he deems there to be enough evidence for an acquittal.

In Italy, the prosecutor’s office is an organ of justice, and not a party in the criminal process. In carrying out criminal prosecution, the prosecutor is guided by both the law and his conscience. He is a minister of law, not an oprichnik.

On Private Prosecution

This is a fantasy for Russia, but the lack of a deficit and the market also seemed like fantasies only 20 years ago.”

— Every US and Canadian citizen has the right to act as a prosecutor. Imagine if Navalny had the same right. This institution is virtually non-existent in our country.

In these countries, the citizen himself has the right to demand in court that the criminal be punished. The citizen does not have the equipment nor the investigators, making it difficult to fulfil the function of state prosecutor. In this context, private prosecution is perceived as a forced measure. Private prosecution appeared in the USA along with the courts, and there are now about 30 such courts per year in the states. In the Canadian criminal code, the citizen’s right to initiate criminal proceedings is considered “a valuable constitutional guarantee to counteract the inertia and predilection of the authorities.” Legislation does not allow engagement in litigiousness, foolishness or the blaming of innocent people.

The mere fact that a citizen can act as prosecutor destroys the public prosecutor’s monopoly and suppresses prosecutorial collusion with officials. If a prosecutor for some reason does not initiate proceedings, a simple citizen will do it instead. He does not necessarily need proof of guilt, as it can be provided by an informant.

If the court process ends in acquittal, the accused can file a lawsuit against the prosecutor. The court costs are only assigned to the prosecutor if the original charge is found to be unlawful. Otherwise, it is the state that pays.

As part of a private prosecution, a state official can become the accused if they call the public prosecutor and try to persuade him to stop the case. Citizens can initiate criminal proceedings against deputies, judges, sheriffs and prosecutors.

The death of a citizen in police custody or in prison is another cause for private prosecution. In England, the family of the deceased can issue a private charge. In Russia, law enforcement agencies protect the interests of the state and the authorities. It is no wonder that our private prosecution shares no relation with that of democratic countries. Our private prosecution is supported by the victim. If the application is submitted by the accused’s wife or friends, instead of their lawyer or them personally, a judge may reject it.

Granting citizens the right to private prosecution would place Russian investigators, prosecutors and police in a competitive environment, thereby increasing their quality of work. This is a fantasy for Russia, but, then again, so was the free market and lack of deficit 20 years ago.

 On Lawsuits In Defence Of The Public Interest

“If a court recognises a claim as fair, its decision is thrown into the void and carries no legal weight.”

— Boris Nemstov and I discussed potential lawsuits in defence of the public interest or an undefined circle of persons. In the mid-90s, we succeeded in pushing legislation to this effect through the Duma on its first reading. But those who disagreed with it acted cunningly; they introduced wording into all laws that the legislation would only work if it was indicated in sectoral law. They subsequently removed all indications from sectoral laws. As a result, we have no incentives to fight for the public interest in Russia.

Imagine the following situation. You live in a block of flats and the managing company is taking extra money from you. According to our legislation, you have the right to sue for your losses alone. You lost 200 roubles in February and decide to fight to regain it. Legal services, however, cost 30,000 roubles, making it senseless to bother. You could attract your neighbours, hold a general meeting and try to convince them to each file individual lawsuits. Nobody will do it. Residents of Canada, China and Brazil, however, will sue in defence of their neighbours without being asked. In Canada, you can receive 8% of general damages for this. Their law prescribes that it is necessary to incentivise those whose advocate for the public interest. The figure received goes up to 30% in the US. These are huge incentives.

Among those considered are cases of abuses in public services, illegal dismissals during mass reductions, defective products, damage compensation in case of metro accidents, price competition violations and so on.

What does the person risk in suing? Liability for legal costs lies solely with the group’s claimant-representative. The cost amounts to pennies, as this institution is safeguarded.

In my native St. Petersburg, the curb is being shifted for the third year running. It’s obvious that this is another budget cut. What can I do? Write a petition to the president? I cannot file a lawsuit in defence of St. Petersburg’s citizens, whose taxes clearly go to waste. We have no such law.

In Russia, only prosecutors, civil servants and lawyers of non-profit organisations such as the Consumer Rights Protection Society can file group lawsuits. If a court deems their claim as fair, its decision is thrown into the void and carries no legal weight. In the above example, residents of the block of flats would be forced to file individual lawsuits for the desired 200 roubles. Our law is designed so that it cannot satisfy any legitimate demands.

“Implementing all this from a legal point of view is not a problem. It all boils down to desire.” 

— We have to adopt amendments allowing the filing of lawsuits in defence of group interests and undefined social groups. A procedure for considering such claims must be prescribed, a law concerning weighty compensation to the plaintiff-representative of the victim group must be established. Accessibility of information for local self-government bodies must be ensured, and a punishment for non-disclosure must be levied. Our law on access to information is purely decorative, as decisions concerning which information to provide is left to the discretion of individual state departments. Our citizens cannot file lawsuits for the hiding of information. This is one reason why there is still a veil over the details of corruption and embezzlement. Correcting an absence of these laws, courts that don’t consider claims, and the lack of citizens’ right to act as prosecutor is feasible from a legal point of view. It all boils down to desire.

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