Oregon State Bar Bulletin APRIL 2014
With the collapse of the Soviet Union in the early 1990s the countries of the Balkans, the Caucuses and Central Asia were thrust into the role of independent countries. As these countries have struggled to take their respective places in the global community, they have all wrestled with restructuring their governments and revising their laws to deal with the realities of needing to accept the concept of private property and the development of a market-driven economy to attract much needed foreign investment and to compete in the global economy.
As part of their governmental and legal reforms, these countries have accepted (to varying degrees in different countries) the importance of changing the role of courts from keeping order and carrying out government policy to being an independent branch of government charged with fairly and impartially resolving the disputes of its citizens and also foreign investors. The United States Agency for International Development (USAID) has been assisting virtually all of these countries with the transition of their courts. This has been accomplished through funding numerous multi-year projects in which lawyers, judges and court administrators from the United States and various European countries have assisted these countries in their change processes. In most of these countries the transition is far from complete. Many challenges remain.
My contact with the courts in the former Soviet Union countries began in the year 2000 when I volunteered for a year as a liaison for the American Bar Association’s Central and East European Law Initiative (CEELI) in Azerbaijan. I quickly got an inkling of what lay ahead when all of the judgeships in the country were quietly sold to the highest bidders during a two-week period that marked the culmination of what was at the time touted as an “open, honest and transparent” judicial selection process.
Since the year 2000, I have worked in various capacities on court related projects in most of the countries of these three regions. From this work I have developed a list of challenges to the successful development of courts as an effective branch of government that I believe are common to all of these countries. These challenges are:
- Poor Public Perception
- Inadequate Laws
- Failure to Apply New Laws
- “If It Doesn’t Say We Can, We Can’t”
- Work Ethic of Judges and Court Personnel
- Managing the Work of the Court
- Applying Customer Service Concepts
- Lack of Judicial Independence
The discussion of each of these challenges is not and is not intended to be comprehensive. Each one of these could be the subject of a substantial article in and of itself. The purpose here is to simply provide an overview of what I see as the main challenges that these courts face as they try to move toward becoming an independent and effective branch of government.
Poor Public Perception
In the former Soviet Union, laws and courts played a very different role than we are used to in the Western world. We are used to looking to the law to answer many questions and to structure relationships in our everyday lives, especially in the business world. In turn, we look to the courts to resolve disputes by applying the law to our particular problems. In Soviet countries the law was often ignored and viewed as mostly irrelevant to day-to-day life. Law was pretty much viewed as something that the government used to justify something it wanted to do or as something to be used for the powerful and corrupt to get what they wanted. Courts were the vehicle used to achieve the end sought.
To a greater or lesser degree throughout the countries in which I have worked the courts continue to be viewed as ineffective institutions, often controlled by the government and populated by lazy, ignorant and corrupt judges and staff. While that view often reflects reality, the sad truth is that it really does not matter whether this view is accurate or not. If the public believes it, they will not resort to the courts to resolve their disputes. Further, like most perceptions, even if the perception is inaccurate, until the public has had substantial opportunity to actually see the courts consistently perform in a way that promotes confidence in their ability to be effective problem solvers in society, that perception will not change. In these post-Soviet countries courts are institutions that must prove their value to society, and that is going to take a good deal of time in most of these countries.
The collapse of the Soviet Union has brought about radical changes in most of these countries. With the introduction of the concept of private ownership of business and property, the move toward a market economy and the development of business relationships with foreign companies and investors, Soviet-era laws and regulations simply are no long relevant. The world that they governed no long exists. Unfortunately, in many cases the world has changed faster than the law.
Most of the countries of the former Soviet Union have turned to outside help in drafting new codes to meet the realities of their new worlds. Legislative specialists from the United States and a number of European countries, especially Germany, have put in a great deal of time and effort assisting them. However, even under the best of circumstances making major changes to laws is usually a slow, tedious process. Making such changes to govern concepts that are not necessarily fully understood — nor fully embraced by all in the legislative process — is even slower.
Failure to Apply New Laws
The failure of courts to apply new law generally stems from two very different but somewhat related sources. One is ignorance; the other is lack of will.
Ignorance of the applicable law is a major problem in many countries. It is a problem faced by judges and lawyers as alike. There are a number of factors that contribute to this problem. One is that the legislative bodies appear to be in session more or less continually, so new law is being constantly generated. A second problem is that most law changes become effective at the time they are promulgated so there is no lead time for lawyers and judges to educate themselves regarding changes before they go into effect. A third and very important factor is the way that law changes are disseminated. In most cases changes to various laws are collected and published from time to time in some form of official document. This document is not a recodification of the whole law, but only the publication of changes. This means that there is no one source to which lawyers and judges can turn to find the current law. Unless judges or lawyers keep some sort of private tickler system of changes, it becomes very difficult if not impossible to know what the existing law is at any given time. Finally, there are few if any organized educational programs for lawyers or judges to attend where they can receive instruction on new laws and their applications.
All of the above factors certainly play a role in discouraging judges and lawyers from doing the often hard work necessary to ensure that the proper law is being applied. The fact is that it is often just easier and faster to apply whatever law can be easily found, whether right or wrong, and get the matter resolved.
“If It Doesn’t Say We Can, We Can’t”
This is a particularly difficult issue to deal with in the courts in these developing countries. This approach to problem solving is essentially to look for a statute, regulation etc., that allows something, and if that cannot be found then it simply can’t be done. In other words, what is not specifically allowed is taken to be prohibited, even though the law does not say that. Most judges view themselves as “answer finders,” not “problem solvers.” Obviously this approach does not lend itself to creative thinking and the resolution of novel problems through the application of judicial reasoning. This approach seems to be a holdover from Soviet times when judges were told how things should come out and taking personal responsibility (problem solving) could be dangerous.
Work Ethic of Judges and Court Personnel
There is an old saying from Soviet times that is still quite apt today in many courts: “They (the government) pretend to pay us and we pretend to work.” It is not an exaggeration to say that in many former Soviet Union countries judges and court staff simply cannot live on what they get paid. Given this, it is certainly easy to understand why judges and court staff “pretend to work.”
While extremely low pay is certainly a major factor in explaining the lack of effort on the part of judges and staff, there are other factors that also contribute. One other important contributing factor is the working conditions. Most court facilities are old, shabby, dark, dingy structures with completely inadequate heating and cooling systems. Restroom facilities are often disgusting places. Court staff is usually wedged into small spaces that make working difficult. Most judges’ chambers are tiny rooms that double as courtrooms. Most work is still carried out by hand although computerization is making some inroads. In many places papers in court files are still bound together with needle and thread.
Given the low pay and poor working conditions it is little wonder that judges and court staff tend to come in late, leave early, take long lunch breaks and not work very hard in between. This situation is exacerbated by the continuing influence of the old Soviet system where one was not required to work hard. Mostly one only had to show up and do no more than it took to not get dismissed — and that was very little.
Managing the Work of the Court
Case management is a new concept for the courts of the countries of the former Soviet Union. Many have yet to embrace this concept. This is not surprising. To see value in managing cases one must accept the basic premise that courts have an obligation to the public to see that their disputes are resolved not only fairly but also expeditiously. Of course if this basic premise is accepted that throws open the door to the need for judges to accept personal responsibility to see that this obligation to the public is met. That in turn means that judges have to take it upon themselves to work hard to fulfill this responsibility. As noted in “Work Ethic of Judges and Court Personnel,” above, many judges are not ready to take on this responsibility.
Even if courts and judges were ready to embrace the concept of case management, meaningful management is very difficult without the assistance of computers and software designed to collect and analyze case data. In most courts of the former Soviet Union, automation is in its infancy. However, there are countries where court management software has been developed and is in use. Even in these countries however, the software is often not terribly sophisticated and does not produce the detailed management reports necessary to carry out a strong case management program.
Applying Customer Service Concepts
This challenge is closely related to the preceding one. The concept that courts exist to serve the public and therefore those who work in courts have the public as “customers” is another very foreign idea. Traditionally, government workers (including court employees) have viewed their jobs as entitlements and have seen no need to think about such customer service concepts as courtesy, helpfulness, giving accurate information and creating a business-like atmosphere. Interestingly, in Albania, probably the most repressive of all of the countries associated with the former Soviet Union, I was hired to write a customer service manual for the courts. Change is coming.
Lack of Judicial Independence
This remains a very serious issue in many of the countries of the former Soviet Union. The problem arises in several forms. One is in the judicial selection and retention process. I believe it would be fair to say that there are few open, honest and transparent judicial selection processes to be found in former Soviet Union countries. Many judgeships are obtained through the payment of money to one or more persons involved in the selection process. Those selections where money does not change hands are often encumbered with political obligations or family ties. Often closely tied to the selection process is the ability of the president of the country to dismiss judges either at will or based on standards that are so vague it amounts to dismissal at will. A third related issue is short judicial terms so judges must seek reappointment frequently. All of these contribute to judges lacking the independence to do their job in a completely impartial manner, free of improper considerations.
Another constraint on judicial independence is found in the funding of the courts. It is not unusual for the budget for the court to be controlled by a department of governmental administration or often, the minister of justice who normally is in charge of the prosecutors. If the minister of justice controls the court budget, it is easy to see how influence can be asserted upon the court to have it behave in a way that is not displeasing to the minister. If the budget is controlled by some department of governmental administration the potential for undue influence may be even more pervasive.
Even though judges may be funded separately in a court budget, it is also sometimes the case that the entire court staff will be under the direction and control of a department of governmental administration. Again, it is not difficult to see how such an arrangement can compromise judicial independence.
Corruption is pervasive in the courts in almost all of the countries of the former Soviet Union. It involves both judges and court staff. Corruption is found in several forms. Certainly the common form of corruption, “money for results” is rampant and is what allows many judges (as well as court staff) to live comfortably despite the small salaries they receive. A second form of corruption is also prevalent. This is often referred to as “telephone justice.” As the name implies, this form of corruption usually is characterized by the judge receiving a telephone call from someone, often in the government, advising the judge how a certain matter should be resolved. This form of corruption is directly spawned by the lack of judicial independence discussed above. A third common form of corruption is a bit more subtle. It consists of the judge, on his or her own initiative, making decisions that wrongly favor one party or another because the judge knows that by doing so the judge will curry favor with family, friends or politically important people. This is done with the expectation that at some point in the future this unsolicited favor can be relied upon to produce some benefit for the judge.
These challenges facing courts in their quest to become an effective branch of government in this post-Soviet era in the countries of the Balkans, the Caucasus and Central Asia are daunting. In many countries it may well be two or three generations before they are able to shed the influences of old Soviet thinking, rid themselves of corruption and inappropriate government influence and become the important and respected branch of government they need to be to support their country’s development into fully functional members of the global community.
ABOUT THE AUTHOR
Jim Hargreaves was a trial judge in the state of Oregon for 20 years. Since leaving the bench in 1995, he has worked extensively with courts in the United States and in many developing countries around issues of court and case management, business process change and the introduction of technology. Hargreaves is currently serving as trial court judge trying major criminal cases and war crimes in the courts of Kosovo through a program funded and administered by the European Union.
© 2014 Jim Hargreaves