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Analysis & Opinion
15.06.11 Lawlessness Unlimited
By Tai Adelaja

Despite the Kremlin’s ongoing efforts to combat legal nihilism, there is little or no evidence on the ground of a change in support for the rule of law in Russia, a new study has found. Russia fared the worst of its BRIC peers (Brazil, India And China) when it came to upholding the principle of separation of powers and the observance of fundamental human rights, according to the Rule of Law Index report released on Monday.

"The country shows serious deficiencies in checks and balances among the different branches of government (ranking 55th), leading to an institutional environment characterized by corruption, impunity, and political interference," said the report, which was prepared by the World Justice Project and funded by a grant from the Bill and Melinda Gates Foundation. "Violations against some fundamental rights, such as freedom of opinion, freedom of association, and arbitrary interference of privacy are areas of concern."

The near absence of the rule of law and unequal access to justice for Russians has not escaped the attention of the country's leaders. While running for his first term as Russian president in 2000, Vladimir Putin announced the idea of a "dictatorship of law" as a core part of his presidency. Putin promised to restore Russia’s status as a great power, saying corrupt politicians and greedy businessmen were dragging the country down. "That's why we're insisting on a single dictatorship in Russia," Putin said. "A dictatorship of law."

But critics said the campaign to establish a rule of law, Putin-style, has instead given birth to a state where democratic institutions are too weak and the opposition is too vulnerable to make a difference, giving the government a green light to make decisions by virtual fiat. President Dmitry Medvedev, hand-picked by his predecessor, has also stressed the need for reform and improvement of the country's rule of law. The Russian president, a former lawyer, has vowed to crack down on legal nihilism, corruption and police violence and has sponsored a raft of legislative proposals aimed at improving the flawed state of rule of law in the country. Medvedev, who is now in the fourth year of his term as president as of last month, has also hinted at the need for checks and balances in the country's political structure, warning recently against excessive concentration of power, which he described as a “dangerous thing.”

However, some high profiles cases like that of the jailed Yukos CEO Mikhail Khodorkovsky and the on-going saga of Hermitage Capital Management has renewed doubts about the Kremlin's commitment to the rule of law. Observers pointed out, in particular, that the second conviction of Khodorkovsky on money laundering and the theft of billions of dollars has raised serious questions about selective prosecution and about the rule of law being overshadowed by political considerations. Cases like these, they said, have had a negative impact on Russia’s reputation and have put a damper on foreign investment at a time when the country badly needs to modernize and innovate.

Some leading Russian experts who contributed to the latest World Justice Project Rule of Law Index, have been giving their opinion explaining the "serious deficiencies" in Russia's rule of law. To break the vicious cycle of impaired rule of law and high levels of corruption, the experts said, Russia must first break the historical pattern of autocratic rule used to control a compliant society.

Andrey Zelenin, a partner at Lidings Law Firm, sees an enduring Soviet subservient mentality as the main drawback to the rule of law in Russia. “Seventy years under communism has taught people that they are unequal before the law,” Zelenin said. “This mindset has been passed on even under a flourishing market economy with people still expecting their leaders to exercise unusual authority in all cases.” Zelenin said the lack of a consistent rule of law has in some cases dampened entrepreneurs’ appetite to do business in Russia, as entrepreneurs wait for their president to deliver on promises to fight graft and red tape.

But more detrimental to upholding the rule of law is the “passivity of the judiciary,” said Svetlana Anokhina, a senior lawyer at Andreas Neocleous and Co. “The Russian judiciary does not perceive itself as an independent branch of the government,” said Anokhina. “Many judges are not ready to assert their constitutional rights or simply find it more convenient to remain in the shadow of influential politicians or political power brokers.” Anokhina further said that Russia desperately needs a new law “On the Status of Judges” that defines their legal rights, duties, and selection procedures. “The law is presently crafted in such a way that judges are in perpetual fear of losing their perks and entitlements if they don’t give the ‘right judgments,” she said.

Irina Krasnova, a legal expert at Russian Academy of Justice, said Russia’s heavily centralized political system and the fusion of business with party politics have had a perverting influence on the rule of law in Russia. "Instead of powering a revolution against the bureaucracy, our political and legal systems exist to serve the needs of bureaucrats," said Krasnova. "The procedures involved in doing any transaction in Russia are fraught with bureaucratic red tape and extortion. To cut through the red tape or simply accelerate the process, it’s a no-brainer what to do." Krasnova said Russians have been hesitant to litigate in order to defend their rights “because the court system is part of a larger bureaucracy.”

While brazen disregard for the rule of law may well be the main culprit, there is also a need to harmonize and fine-tune some of the country's basic laws, said Evgeny Reyzman, a labor lawyer and Partner at Baker & McKenzie, who also contributed to the World Justice report. The country’s labor codes, for instance, have lately come under fire, along with Russian tycoon and New Jersey Nets owner Mikhail Prokhorov, who called for a new labor code which would include "the possibility for the employer to manage his labor force freely." “In Russia, employers’ rights are unreasonably limited in their ability to manage staff or replace bad performers,” Reyzman said. “This means that it should be amended to give employers the right to fire employees at will as elsewhere." He cautioned, however, that the present balance must be maintained by increasing severance packages for employees who have lost their jobs.
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