Category Archives: burger

OP-ED: Some thoughts on Russia Today’s Tomorrow

Some thoughts on Russia Today‘s Tomorrow

by Ethan S. Burger

Exclusive to La Russophobe

Ethan Burger

The Russian people have not experienced any significant benefit from the symbolic pressing of the “reset” button in U.S.-Russian relations. Just ask any Russian citizen what they think about the necessity of urging the work force to stay home or establishing 120 “anti-smog centers” in Moscow as a result of the fires near the capital. This situation in Moscow is being well reported by the foreign press and Russia Today, can the same be said of the state-owned media?

I have often wondered what the Russian leadership thinks it gains from placing special supplements of Russia Today in major newspapers like The Washington Post and the New York Times.   Most U.S. newspapers are struggling, as Hendrik Hertzberg wrote in The New Yorker, this did not prevent The Washington Post from undertaking a comprehensive investigation analysis of the wasteful homeland security complex (both governmental and private-sector, largely government-funded) that has emerged post 9/11. It is doubtful that any Russian media outlet that reaches a large segment of the population would ever have the courage to undertake a comparable effort about the fires currently spreading through the country.

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COLUMNIST: Russia and the WTO

Russia and the WTO

by Ethan S. Burger

Original to La Russophobe

Ethan Burger

In 2002, at a conference of the American Association for the Advancement of Slavic Studies, as part of a panel a U.S. government official gave a presentation praising all the new legislation Russia was enacting. He suggested that “western technical” assistance in the legal area was having a real impact in the country. The next speaker was a Russian law professor who specializes in anti-corruption and human rights matters. He began his remarks with the comment that while he enjoyed the prior’s speaker’s remarks, it was unfortunate that he was describing a country that did not exist.

Russia is now seeking entry into the World Trade Organization (WTO). It should not be allowed to join this body until it enforces its own domestic laws, amends its restrictive foreign investment laws, and observes its existing international obligations. Russia has a poor record in applying the 1959 U.N. Convention on the Recognition and Enforcement of Arbitral Awards. Its does uphold its obligations under, or follow the standards and guidelines of, arising from its membership in the Organization for Security and Cooperation in Europe. Cyber attacks on Estonia and Britain has arisen from its territory (arguably NATO should have responded). It foreign policy to a great extent seems aimed “reset” Europe to the Cold War era (although it has apparently privatized or contracted out formally state activities. Russia is not so powerful that it should not be challenged for its aggressive actions.

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Burger on Responding to the Putin Doctrine

Responding to the Putin Doctrine

by Ethan S. Burger*

(original to La Russophobe, all rights reserved by Professor Burger)

Professor Ethan Burger

Professor Ethan Burger

In its Communiqué following its Emergency Summit on Georgia, the European Union took little significant action except announcing that it would “postpone” entering into a long-term partnership until Russia withdrew its troops from Georgia.  While expressing its concern about Russia’s “disproportionate” use of force against its neighbor, the EU sought to maintain a dialog with Russia (or more precisely, its current leadership).  It is most unfortunate that the EU leaders underestimate their countries’ long-term “soft” power.

Russia’s invasion and partial dismemberment of Georgia violates international law, even if Georgian President Mikheil Saakashvilli foolishly provided the Kremlin with a pretext by seeking to assert control over South Ossetia. The Russian leadership has issued a challenge to the EU and NATO members, one that can now be characterized as “the Putin doctrine.”  The West in turn must come to appreciate that the appropriate responses are not merely issuing condemnations or increasing defense spending (with the notable exceptions of that needed to combat “cyber attacks”); more creative approaches must be pursued.

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Ethan Burger on the Georgia Apocalypse

Professor Ethan Burger

Professor Ethan Burger

Original to La Russophobe, the noted Russia scholar Professor Ethan Burger of Georgetown University Law Center and American University offers the following analysis of the Georgia apocalypse.

Note that LR has previously published other work by Professor Burger, click the “Burger” link in the categories section of our sidebar to peruse it.  Professor Burger’s legal expertise makes him uniquely well positioned to explain the legality (or lack thereof) of what Russia is doing in Georgia and its worldwide consequences.

LA RUSSOPHOBE: Welcome Professor Burger, and thanks for taking time out of your busy schedule to talk about Georgia with us.   It’s being reported that Russia is attempting to issue passports to Ukrainians in Crimea. Do you see a parallel, as some have suggested, between that action and Russia’s similar behavior in Ossetia? In your view, does this action violate international law? Does the U.S., for instance, have the right to issue passports in Chechnya?

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Annals of Russian "Justice": Another Failing Grade for Russia

Blogger and attorney Robert Amsterdam reports that Transparancy International has issued yet another failing grade to Putin’s Kremlin, this time over its so-called “justice” system: 

At the end of last week, corruption watchdog Transparency International issued its annual global report with respect to corruption of the world’s judicial systems. The full report is well worth reading, as Russia is heavily featured as one of the countries that has significantly backtracked against international standards with political corruption of the courts. Below is an excerpt of an analysis written by Tom Blass, freelance journalist and consultant with the Foreign Policy Centre, taken from Chapter 2 (“Independence, political interference and corruption”) of the new TI report. (click through to the PDF version to see all the footnotes.)

Combating corruption and political influence in Russia’s court system Tom Blass

Prior to the perestroika process, the judiciary was largely perceived as: ‘Nothing more than a machine to process and express in legal form decisions which had been taken within the [Communist] Party.’ The independence of the judiciary was one aspect of the changes called for by Mikhail Gorbachev in his groundbreaking speech to the 27th Party Congress in 1986.

The reality – a supine, underpaid judiciary, ill-equipped to withstand corruptive practices and the influence of economic or political interests – has proven slow to change, despite a series of reforms by Boris Yeltsin and his successor, President Vladimir Putin.

A 1991 decree by the Supreme Soviet of the Russian Federation established the judiciary as a branch of government independent from the legislature and the state. The following year, a Law on the Status of Judges was introduced that granted judges life tenure after a three-year, probationary period; new powers to review decisions by prosecutors regarding pre-trial detention; and established the role of the judicial qualification collegia – self-governing bodies, composed by and responsible for the appointment and regulation of members of the judiciary. The Yeltsin regime transferred control over the financing of courts from the Ministry of Justice to a judicial department attached to the Supreme Court, further distancing the judiciary from the executive branch.

After Putin was elected president in 2000, he made numerous assertions about the importance he attached to the judiciary. ‘An independent and impartial court is the legal protectedness (sic) of citizens,’ he said in 2001. ‘It is a fundamental condition of the development of a sound, competitive economy. Finally, it is respect for the state itself, faith in the power of the law and in the power of justice.’

President Putin’s Programme for the Support of Courts 2002–06 was structured to increase funding for the court system as a whole, including judges’ salaries. Top pay is now around US $1,100 per month for judges, although average judicial salaries are closer to US $300 per month. More recent developments include a move toward publishing details of court judgements.

While elements of these reforms are positive, new threats to the independence of the judiciary have emerged, with the International Bar Association, the OECD, the International Commission of Jurists, and the US State Department all expressing concerns at practices they perceive as not conducive to the independence of the judiciary.

Judicial appointments

Not all judges welcomed Putin’s attempts at reform. Among his initial targets were the qualification collegia, established in the early transition and responsible for appointing and dismissing judges. Originally these were constituted entirely by judges, but the 1996 Constitutional Law on the Judicial System was amended in 2001 so that one third of the membership would be constituted by legal scholars appointed by the federation council – which is appointed by the president. Under the Law on the Status on Judges 1992, judicial appointments were made by the president ‘based on the conclusions of the collegia relative to the court in question’. The same process applies to the appointment of court chairpersons, whose tasks include allocating cases and overseeing the running of courts. They wield substantial influence over the careers of their fellow judges.

In a 2005 report on proposed changes to the structure of the collegia, the International Bar Association (IBA) said it was ‘particularly concerned by a number of cases of judicial dismissals where undue influence appears to have been wielded by Court chairpersons or other parties’. ‘A system which could allow chairpersons to cow or eliminate independent-minded judges’, it noted, ‘is in practice the antithesis of recognised international standards for the judiciary’.

The IBA cited a number of instances in which it was alleged that undue influence had been brought to bear. In the case of Judge Alexander Melikov, dismissed by a qualification collegium in December 2004, it said it had studied the judge’s allegation that his dismissal followed his refusal to follow the directive of the Moscow City Court chairperson ‘to impose stricter sentences and to refuse to release certain accused persons pending their trials’. The IBA said that it was ‘impressed by his credibility’ and was satisfied there was no legitimate ground for dismissal.

Another recent case further highlighted the role of chairpersons. Judge Olga Kudeshkina was dismissed from Moscow City Court in May 2003 for ‘violating the rules of courtroom conduct and discrediting the judiciary’ after she claimed to have been pressured by the public prosecutor and the chairperson of the court to decide in the prosecutor’s favour in an Interior Ministry investigation.

In a widely publicised letter to President Putin in March 2005, Kudeshkina said the judicial system in Moscow was ‘characterised by a gross violation of individual rights and freedoms, failure to comply with Russian legislation, as well as with the rules of international law’ and that there is every reason to believe that the behaviour of the chairperson was possible because of patronage provided by certain officials in the Putin administration.

Perceived extent of corruption

While it is difficult or impossible to quantify the validity of Kudeshkina’s claims, her letter was in tune with the lack of public confidence in the judiciary. Research by the Russian think tank INDEM goes so far as to quantify the perceived average cost of obtaining justice in a Russian court. At 9,570 roubles (US $358), the figure is still less than the 2001 figure of 13,964 roubles.

Another Russian survey found that over 70 per cent of respondents agreed that ‘many people do not want to seek redress in the courts because the unofficial expenditures are too onerous’, while 78.6 per cent agreed with the statement: ‘Many people do not resort to the courts because they do not expect to find justice there.’ The same organisation estimated that some US $210 million worth of bribes is spent to obtain justice in law courts in a year, out of a total US $3.0 billion in bribe payments.

Senior court officials also hint at corruption within the judiciary. Veniamin Yakovlev, former chair of the Supreme Arbitrazh court, said that while mechanisms had been, and continue to be, put into place to root out corruption and the ‘overwhelming majority’ of judges conducted themselves lawfully, ‘it would be wrong to maintain that the judiciary has been purged of all traces of bribery’. In an interview with Izvestia, Valery Zorkin, current chairman of the constitutional court, was more forthright when he said that ‘bribe taking in the courts has become one of the biggest corruption markets in Russia’.

Anecdotal evidence (including from lawyers within Russia who would not wish to be named) suggests that the corruptibility of courts increases, moving down the judicial hierarchy13 and further away from Moscow.

Legal scholar Ethan Burger points out that large financial stakes and asymmetry between the parties in a court proceeding increases the likelihood of corruption,14 and that it is more likely to occur in trial courts than in the appeal courts since it is ‘easier to bribe a single trial court judge than a panel of appellate judges or members of the Supreme Arbitrazh Court’. Due legal process is altered in one of two ways, according to Burger: a judge may decide a case on its merits, but ask for payment before making a judgement; or the judge may ‘simply favour the highest bidder’.

Recommendations

The challenge now is for the Russian judiciary to build on the various reforms which have already taken place and to win the confidence of court users, regardless of the level of proceedings in which they become involved. But such a transformation will require more than structural or procedural reform.

Successive laws pertaining to the judiciary passed since the dawn of glasnost have reinforced or reiterated its independence. Despite some adjustment of their membership structure, the Judicial Qualification Collegia remain essentially self-governing. Salaries of judges and court officials, while low in comparison to those in Russia’s private sector and the West, have been significantly raised in the past 15 years. Civil society groups in Russia and outside (including TI) have been vocal in calling for greater transparency and openness within the judicial system.

Russian courts already have what is required to be fair, open and transparent. These elements need to be encouraged and consolidated. What follows are six concrete recommendations that can assist in consolidating what is fair, open and transparent in the Russian court system:

● The government should resist any further dilution of the judicial composition of the Judicial Qualification Collegia.
● Judges’ salaries should be regularly reviewed with a view to achieving near-parity with private sector salaries in order to reduce the incidence of bribe taking and to retain talent within the judiciary.
● The programme for publishing court decisions should be accelerated and expanded, with an emphasis on explaining the legal basis of judgements, the nature of disputes, the sums at stake and awards given.
● Local and national public awareness campaigns should be initiated to educate on the role of judges, the concept of judicial awareness and future expectations of the judiciary.
● The government should review existing penalties for corruption within the judiciary.
● Judges should be allocated cases on a randomised basis to minimise bias toward one party.

Listening to Professor Ethan S. Burger

One of America’s more insightful and candid analysts of Belarusian, Russian, and Ukrainian affairs is Ethan S. Burger (pictured), a Scholar-in-Residence at American University’s School of International Service and an Adjunct Professor at Georgetown University Law Center. Professor Burger has in excess of 50 published works, taught classes concerning Russian law and politics as well as international economic crime and corruption. He has given presentations at the Kennan Institute, Harvard University’s Davis Center, the International Monetary Fund, the Institute for State & Law, Radio Free Europe/Radio Liberty, the Royal Institute for International Affairs, the World Bank, and other institutions concerning a range of topics such as corruption in the Russian judiciary, the consequences of the break-up of the Soviet Union for global security, the “Sovietization” of contemporary Russia, and U.S. policy towards Belarus. His writings reflect his practical work experience in the region with a deep understanding of its history and politics. La Russophobe is honored to publish the following original essay from Professor Burger, who provided LR with contributory analysis for her post about the recent condemnation of Russia’s human rights record by the U.S. Department of State, including our link to the DOS publication (and who has contributed previously to the blog in the form of a brilliant essay about Anna Politkovskaya). Continue reading

The Mailbag: Burger on Lavelle

Letters, we get letters, we get lots of cards and letters every day!

La Russophobe has received and is pleased to publish the following letter from reader/contributor Professor Ethan Burger of Georgetown University regarding her recent post about Peter Lavelle (look for another installment from Professor Burger, this time regarding corruption in the Russian arbitrazh courts, in the coming days):

Greetings:

I think La Russophobe has been unfair to Peter Lavelle as some of the comments to the piece about him. It is one thing to attack one’s views, it is quite another to attack a person. He has been willing to publish views inconsistent with his own. He views force those who disagree with him to be more intellectually vigorous.

We are all products of our experience, for example, when Jerry Hough was hired to update Merle Fainsod’s “How Russia is Ruled” he produced “How the Soviet Union is Governed.” Hough, unlike the emigres and middle class academics who dominated Soviet studies, grew up in a lower-income household. His critique of Soviet Society was unique.He recognized the importance of interest group politics and put the Totalitarian Model. Although I do not share all of Mr. Hough’s views his writings at least triggered debate in what had been a stale field.

Peter has shown the courage to publish on-line two items I wrote on, when the mainstream press would not raise questions as to President Yushchenko’s first Prime Minister (Yulia Timoshenko) who I regard as at best morally challenged. He also co-authored one piece that supported political change to make the country a more democratic state. I do get annoyed when some of his discussion groups pro-Putin agitprop-types make unsubstantiated statements, but they should ignored or shown to be wrong. We must not lose sight of the fact that former Italian Berlusconi and Jacque Chirac may have been engaged in corrupt activities, that the western press with certain exceptions are not independent, and it is no crime for a country to pursue its foreign policy interests. Finally, I have found some of Peter’s commentaries insightful. He is a contrarian who enjoys going against the convention wisdom, but he has sought to maintain a level civility in his discussion group.

Sincerely,

Ethan S. Burger

Here is La Russophobe’s response to Professor Burger:

Dear Professor Burger:

Thank you for your comments about our post Mr. Peter Lavelle. We certainly agree that if he has had the good judgment to publish your thoughtful and scholarly analysis of the Russian question, then he can’t be all bad.

However, we must question the depth of his commitment to publishing “views inconsistent with his own.” If you think it is a profound one, we suggest you write something praising this blog, submit it to him for publication and see what happens. As an aside, we assume you are not suggesting that Mr. Lavelle disagreed with your views on Yulia Timoshenko, a leading Russophobe in the Ukraine. To the contrary, we believe that Mr. Lavelle, a hard-core Russophile from way back (as we understand it, he’s now employed by government-owned propaganda mouthpiece Russia Today), would have been only too delighted to publish any material criticizing her and therefore undermining the Ukraine’s efforts to free itself from the yoke of Russian oppression. We might also mention, just for the record, our view that though Ms. Timoshenko may very well be tainted by various types of corruption, its hardly likely that she’s as dirty as convicted criminal Victor Yanukovich, her Russophile adversary for control over the future of the Ukraine. As between the two, we’d take Yulia in a heartbeat.

We heartily agree with your observation that personal abuse should be avoided. That’s why we found it particularly offensive to be the target of unprovoked recent personal abuse from Mr. Lavelle, someone we haven’t said a word about for months and have mentioned only once in our whole history, and several of his readers in a e-mail communication to which we were not even made privy. We trust you will express your displeasure at Mr. Lavelle’s unfair and inaccurate comments about this blog, which has also had the good judgment to publish your writings, to him. We look forward to reading it when he publishes it on his venue (that is, if he still has one).

More important than the issue of personal abuse, however, is the question of accuracy. Quite simply, Mr. Lavelle was lying (or experiencing a fit of delusional egomania) when he claimed to be a “favorite target” of this blog. What’s more, only an utter fool could think he could get away with making such statements about this blog without receiving the type of response we provided, so if Mr. Lavelle is half as clever as you suggest he knew full well what he was letting himself in for. The statements of Mr. Lavelle’s correspondent about David McDuff were still more outrageous and lacking in factual basis. Part of the reason for our existence is to impose a stiff sanction on those who enter the blogosphere making statements as factually irresponsible as those offered by Mr. Lavelle’s little clique. Such people must know that a permanent web page will be created documenting their nefarious deeds that will follow them to the end of their days.

Don’t get us wrong. We’d be the last ones in the world to disdain free thinkers and contrarians, and we generally ignore Mr. Lavelle because he’s such an insignificant little flyspeck where the blogosphere (or anything else for that matter) is concerned (and besides, he’s almost indescribably boring). In fact, the only reason we mentioned him is that he mentioned us first. But we don’t think Mr. Lavelle fairly reports on what’s going in in Russia today. We think he minimizes or ignores the bad and maximizes or fabricates the good, and we think that helps push Russia down the road to destruction (however marginally). Therefore, we can’t stand him. If he’s associating with Russia Today, that’s beneath contempt. Maybe, we feel, his publishing occasional criticism of Russia is just a way of sugarcoating his propaganda for the unwary (that is, if he’s really doing it, and we’re not aware of any such publications). Mr. Lavelle may well think this blog maximizes the bad and minimizes the good, and thereby harms Russia. He has the right to his opinion, but he doesn’t have the right to tell outrageous lies about us, and if he does he’ll receive our censure in the strongest terms we can enunciate. If he can’t stand the heat, he should stay out of our kitchen.

Sincerely yours,

La Russophobe

Further comments from readers regarding this issue are always welcome.