A Law & Society Take on Legality in the Former Soviet Union: An Introduction to the Special Issue

This special issue, along with the forthcoming issue of Europe-Asia Studies,1 brings together the work of established and early-career social scientists who write about the post-Soviet region from the law & society perspective. The core premise of law & society scholarship is simple: it focuses not on the letter of the law but on the many ways that the law shapes, and is shaped by, social processes, actors, and institutions. Macaulay, Friedman, and Mertz explained it as the “outside point of view” on “law, legal systems, and legal institutions,” which stands in ostensible contrast to the “inside perspective,” which focuses on legal processes “the way that lawyers and judges usually see them” and “accepts them more or less at face value” (2007: 1).

Perhaps not surprisingly, the primary geographic focus of North American law & society scholarship is the developed West. Thus, in the last thirty years, the dedicated section of the American Sociological Association has awarded its annual prizes to only two articles written by graduate students and one authored by a faculty member with a focus on the Global South. While the Law & Society Association has a stronger international orientation than its sociological counterpart, it has not fared much better: since the mid-nineties, only five of its book prizes (awarded often to two books a year) have recognized studies of non-Western countries. Notably, none of these award-winning studies have focused on the former Soviet bloc or Central and Eastern Europe.2

Despite this lack of formal recognition, a number of talented scholars (primarily in political science) have applied the law & society framework to analyses of the former Soviet bloc. The most prominent studies within this body of work include Kathryn Hendley’s work on courts (2002, 2004a, 2004b, 2005, 2006, 2007, 2013, 2017); Alena Ledeneva’s scholarship on petty law-breaking and informal exchange systems (1998, 2006, 2008, 2013); Vadim Volkov’s research on illegal and extra-legal entrepreneurship and provision of private security (2000a,b, 2004a,b, 2016[2002]); Marina Kurkchian’s work on Russian legal culture (2007, 2009, 2011); Peter Solomon’s (1995, 2005a,b, 2007), Brian Taylor’s (2006, 2011, 2014), and William Pridemore’s (2002, 2005a, 2005b, 2006) analyses of crime, deviance, and criminal justice practices in the region; and Kim Lane Scheppele’s work on the rule of law and democratization (1999a, 1999b, 2000, 2003, 2006, 2015). A crop of these and other scholars’ students—now established researchers themselves—have also engaged in critical sociolegal analyses of the region’s courts (Marat 2010, 2012; Trochev 2008, 2009, 2012, 2014), policing practices (McCarthy 2015; Marat 2010, 2018; Light 2013, 2014), informal economies (McMann 2015; Osipian 2010, 2012, 2015, 2017), property rights (Gans-Morse 2012, 2017; Serban 2019), legal careers (Wilson 2017), and a host of other law-related topics.

The marginal status of Eastern Europe-focused research within the institutionalized field of law & society in the United States is hardly a reflection on the quality or promise of this scholarship. Rather, it stems from the widely acknowledged parochialism of American sociology, which remains the primary disciplinary home of law & society (Armer 1987; Dodoo 2005; Calhoun 2007; Kurien 2015). Sociology’s ethnocentricity is exacerbated by the post-Cold War fatigue with the region in the academy and beyond: since the mid-nineties, Russian and Eastern European Studies programs in Western universities have experienced a substantial decline in funding and enrollment levels, while the attention of scholars and policy-makers has shifted from the former Soviet bloc to the Middle East, China, and Africa (Redden 2013).

At the same time, this marginality also suggests that law & society students of the post-Soviet region have not yet established a shared identity that would make them recognizable to the rest of the field for their theoretically unique, surprisingly coherent, and highly policy-relevant contributions. The primary goal of this special issue, then, is to create a dialogue between several socio-legal scholars of the former Soviet bloc, some of whom have already had a strong impact in their respective disciplinary fields and some of whom are less established and well-known. It is my hope that the striking consistency of their arguments—grounded, as the rest of this introduction discusses, in the law & society tradition—and the methodological rigor and breadth of their analyses will make a convincing claim that they belong within the interdisciplinary field of law & society.

This issue’s secondary objective is to bring sociological imagination and empirical nuance to the study of rule-by-law in non-democratic and not-fully-democratic countries. I borrow the notion of rule-by-law, which offers a convenient shorthand for legal processes in non-competitive political regimes, from the work of Ginsburg and Moustafa (2008). In their excellent edited volume, the authors highlighted the lack of scholarly attention to the judicialization of politics in authoritarian states, which they attribute to the widespread and inaccurate assumption “that courts in authoritarian regimes serve as mere pawns of their rulers, and that they therefore lack any independent influence in political life” (2008: 1). Ginsburg and Moustafa’s collected work showcases compelling empirical evidence against this functionalist view of courts in non-democracies. In the spirit of the best law & society scholarship, they reveal that, far from being a mere instrument of oppression and power consolidation in the hands of autocratic elites, courts offer a unique platform for interactions between state and society and provide limited yet consequential mechanisms for protecting citizens’ rights.

This special issue builds directly on the work of Ginsburg and Moustafa, applying the critical law & society lens to a range of legal processes, actors, and institutions in authoritarian and hybrid regimes of the former Soviet bloc. The studies assembled in this issue challenge several misconceptions about how the law works under conditions of non-democratic governance. First, they dispute the presumption that high-profile laws, especially those that address controversial social issues, are necessarily promulgated to further the political interests of incumbents. Second, they cast doubt on the idea that autocratic-leaning elites are capable of—and committed to—manipulating the process of legal development and implementation to their advantage. Finally, they challenge the notion that non-state and, in particular, anti-state actors cannot and do not use the law to undermine the power of incumbents.

To be clear, these are not the assumptions that many contemporary sociologists or political scientists would defend in explicit terms (although they do appear in a crude form in mass media and political discourse). Rather, these ways of thinking may color existing scholarship because they permeate the dominant political ideology (which, for instance, construes leaders like Russia’s President Putin as highly strategic [Taylor 2018; Galeotti 2019; Greene and Robertson 2019]), and because relevant empirical data of sufficient quality and nuance are nonexistent or difficult to get. Together, politicized popular narratives and the dearth of good data from closed and hostile regimes give rise to simplistic and inaccurate assumptions about authoritarian legality. These assumptions are part and parcel of the functionalist rule-by-law paradigm, critiqued by Moustafa and Ginsburg (2008) and other law & society scholars of non-democracies (for some recent examples that focus on Eastern Europe, see the edited volumes by Kurkchiyan and Kubal [2018] and Solomon and Gadowska [2019]).

The first pitfall of the functionalist paradigm is the perception that in authoritarian states, the legal system in general and individual laws in particular—especially those that are deemed controversial by international civil society and Western media—are designed by the elites who have captured the state to serve their own interests. This assumption is understandable: a lot of high-quality research on non-democracies emphasizes the power-preservation outcomes of various autocratic policies (Moene and Soreide 2015; Zaloznaya and Hagan 2012; Roque 2009), priming researchers to seek out the de-facto implications that different laws—regardless of their stated rationales—have for the maintenance of the status quo. While this is an important research objective, the law & society tradition cautions against imputing the motives of law-makers from the observed consequences of the legislation, suggesting instead that the production of law—even in an autocracy—necessarily reflects a variety of rationales, motivations, institutional constraints and inertia, as well as a host of historical and path-dependence processes.

Olga Semukhina’s contribution to this issue applies these insights to Russia’s infamous 2017 law decriminalizing domestic abuse. In the context of the blatant politicization of gender policy under President Putin (Riabov and Riabova 2014; Sperling 2014, 2016), many interpret this law as yet another effort by the administration to promote a neotraditionalist and pro-natalist regime that defines women’s and LGBTQ rights as a wedge issue separating Russia from Western democracies. Semukhina’s data, by contrast, reveal that passage of this legislation was, first and foremost, a response to the immediate constraints that domestic abuse cases imposed on local criminal justice institutions. Since the criminal prosecution of poboi (beatings, in Russian) is victim-driven, cases involving this offense are often terminated due to reconciliation. Thus, prior to 2017, domestic abuse cases required a substantial amount of work by Russian police and filled the dockets of local magistrate judges without having a positive impact on their performance statistics. Semukhina argues that the legal transformation of poboi into a much more controllable administrative offense reflected the system’s internal reaction to institutional incentives and pressures rather than a grand political strategy by the Putin administration.

Beyond specific legislation, the law & society framework also suggests that the development of a legal system, broadly conceived, is always impacted by social processes that are partially or wholly outside state control—even in countries like Russia. In line with this argument, Jordan Gans-Morse’s study in this issue concludes that economic development—especially the evolution of the banking sector and tax collection practices—had unintended consequences for the legal practices of Russian firms. Gans-Morse’s mixed-methods analyses reveal that Russian firms’ increased reliance on formal banking mechanisms, together with rising rates of tax compliance, were associated with a marked growth in firms’ utilization of formal legal institutions—such as Arbitrazh courts—to resolve disputes with other enterprises and the state. The author argues that these economic processes impacted firms’ cost-benefit analyses, making informal mechanisms of dispute resolution, such as violence and corruption, more costly while simultaneously decreasing the risks associated with turning to courts and governmental officials for help. This insight cautions readers against overestimating the role that the Russian government, authoritarian though it may be, plays in defining the role of formal legal mechanisms in the business sector.

The second problem with taking the rule-by-law paradigm at face value relates to the implementation and enforcement of the law in systems that are strictly regulated by non-democratic central authorities. Once a law is adopted, the assumption of legislation’s functionality, challenged by Olga Semukhina and Jordan Gans-Morse in this issue, often gives way to a related expectation of centrally controlled implementation that is reflective of the original intent of autocratic lawmakers. This expectation is logical: not only does strong authoritarian leadership leave little space for political action by the opposition and non-state actors, but many personalist and party-based autocracies tend toward statism, aided by a sprawling administrative apparatus that reaches and governs all facets of their country’s social and economic life (Taylor 2018).

By contrast, law & society approaches predict that, regardless of how strong and far-reaching formal oversight mechanisms are, no one group of actors can have full ownership over the implementation of any policy. Rather, the transformation of the law on the books into the law in action is shaped by a multitude of social factors, many of which lie outside of the purview of even the most controlling state. In line with this argument, Sophia Wilson’s article in this volume makes a compelling case that in non-democratic Azerbaijan, legal actors’ perceptions of religious minorities, heavily influenced by popular beliefs and stereotypes, strongly influence when and how the laws on religious freedoms are actually enforced. Wilson’s conclusions suggest that even in punitive and controlling authoritarian regimes, law enforcement agents may and do exercise their discretion to systematically undermine the will of the authorities.

In their article on anti-corruption reforms in Russia and Ukraine, Marina Zaloznaya and William Reisinger reach similar conclusions. The authors show that even in an autocracy, legal implementation of anti-corruption reforms is shaped by contestation between multiple domestic actors. The interviews they conducted with governmental and non-governmental anti-corruption practitioners in authoritarian Russia and more politically liberal Ukraine suggest that the distribution of power between these actors impacts not only the outcomes of anti-corruption laws, but also the processes whereby the highly standardized policy scripts translate into distinct laws in action. As one might expect, the more political freedoms a regime affords, the fiercer and more visible the domestic contestation over legal production and implementation becomes. At the same time, the authors’ results reveal that, despite the expectation that global policy scripts are more likely to be subverted in rule-by-law contexts like Russia, the very (or overly) active political contestation experienced by newly-democratized countries like Ukraine is also likely to delay, block, or modify the implementation of policies promoted by the international community.

In their respective contribution to this issue, Maria Popova and Daniel Beers also conclude that even in societies with a stated commitment to building the rule of law, entrenched political and judicial elites may effectively sideline legal development. The authors argue that in a context of political volatility, Ukraine’s incumbent political authorities, steeped in decades of non-democratic governance, impede depoliticization of the judiciary in order to maintain a degree of control over the courts that allows them to reduce the likelihood of losing power. Together, these two articles suggest that rule-by-law, while never absolute or uncontested, does generate a low-level equilibrium that is hard to escape even as political systems liberalize.

Finally, and perhaps most importantly for analyses of authoritarian legality, Kathryn Hendley’s contribution to this issue directly addresses the promise of the law as an instrument of resistance within an oppressive political system. To that end, the author considers the potential for what she calls “renegade” activity among a sample of Russia’s youngest cohort of lawyers—law students nearing their graduation. Hendley’s analyses yield positive results: she identifies a subset of lawyers-to-be who openly question and critique the verdicts in politicized cases (such as the infamous Pussy Riot case). These young lawyers differ from their regime-supporting counterparts in a number of important ways: they support liberal-democratic ideals, question Russia’s political direction, and distrust existing formal institutions. However, the renegade potential of these youth is tempered by their relatively low self-confidence, low levels of current political engagement, and lack of express aspiration to become private-practice advokaty—the criminal defenders who, historically, have been best positioned to challenge the status quo in Russia. She concludes that whether or not these young people will “break the mold” and become true renegades remains to be seen.

Taken together with the findings of the other authors featured in this issue, Hendley’s conclusions emphasize the ambivalence, contingency, and complexity of authoritarian legality. Far from being a mere instrument of control and oppression accessible exclusively to non-democratic political elites, the law and legal institutions are an active site for the contestation of power by different actors in less, as well as more, competitive political systems. As such, authoritarian legality must be studied “in action,” with consideration given to the process and due attention paid to social context. The law & society tradition offers just the right set of theoretical and methodological tools to allow social scientists to leave the functionalist rule-by-law paradigm behind and approach the study of law and legality in non-democratic and non-fully-democratic societies of the Global South with a critical eye and open empirical questions. The contributions assembled in this special issue take an important step toward this goal, staking a convincing claim to inclusion in the mainstream field of North American law & society scholarship.

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1 Other notable recent publications that share this goal include an edited volume by Marina Kurkchian and Agnieszka Kubal (2018) and one, edited by Peter Solomon and Kaja Gadowska (2019).

2 For the full lists of winners please see https://www.asanet.org/asa-communities/asa-sections/current-sections/law/section-sociology-law-award-recipients and https://www.lawandsociety.org/prizes/jacob_winners.htm.

The Decriminalization of Domestic Violence

in Russia

Olga Semukhina

Tarleton State University

Abstract: In 2017, Russia decriminalized the crime of simple battery (poboi), which was historically a main avenue for prosecuting cases of gender-based violence in the country. This change was made despite the fact that domestic violence crimes have multiplied in Russia over the past 20 years. The decriminalization was met with an outcry from public activists and victim advocates, who argued that such a change would increase gender-based violence. The proponents of reform suggested that criminalization would simplify the process and make justice more accessible to victims. Drawing on two sets of in-depth interviews with Russian criminal justice professionals (police officers, defense lawyers, and justices of the peace), this study suggests that the decriminalization was driven in part by the inability of the Russian criminal justice system to effectively “process” the crime of poboi. The paper argues that the changes of 2017 were implemented to make the crime of domestic violence more controllable and amenable to the needs of the justice system, specifically the police.

Public policy on gender-based violence (GBV) is intrinsically linked to a state’s political regime.1 These relationships are not always straightforward and are complicated by each country’s unique cultural profile (Sanford, Stefatos, and Salvi 2016). In general, however, those countries with mature democratic political structures tend to have more effective public policies on GBV than those with autocratic regimes.

In the post-Soviet space, the paradigm of transitioning to democracy has frequently been used to explain the political changes that have occurred since the fall of the Soviet Union (Johnson 2007). Accordingly, the challenges of establishing an effective public policy against domestic violence—and, indeed, the failure to do so—have been explained through the lenses of imperfect transition to democratic government and immature civil society (Alekseeva 2004; Horne 1999; Jappinen and Johnson 2016; Johnson 2017).

Over the last 15 years, however, many political scientists have shifted away from the idea of democratic transition and begun to describe several post-Soviet countries, including Russia, as stable hybrid regimes characterized by a combination of strong authoritarian elements and weak, superficial democratic elements (Carothers 2002). It has been noted that a hybrid regime is a popular mode of political organization in the modern world, one that many countries adopt as a convenient way to hide authoritarianism behind a façade of democracy (Diamond 2002; Levitsky and Way 2002). This “hybrid regime” paradigm calls for a different explanation of Russian public policy on GBV, as the old theory of transition may no longer adequately reflect the country’s inner public policy process.

In 2017, when the Russian state decriminalized the crime of assault without injury (poboi), the main avenue for prosecuting domestic violence, many critics focused on Russia’s failed democratic transition as the explanation of this change (Ferris-Rotman 2018; Weisberg 2019). The new law was viewed as a symbolic message to the international community, a public rejection of Western legislative protections for those who suffer from domestic violence (Roache 2018). It was also framed as a way to score political points domestically from conservative stakeholders and members of the Orthodox Russian Church (Johnson 2017; Weir 2017). While these are important features of the way in which the law was publicly framed, they are unlikely to be the only explanations for the public policy change. Russian society remains divided in its attitudes toward gender-based and even family violence. Many cultural stereotypes are shifting in the minds of the younger generations (Lysova 2007; Maslova and Smagina 2012; Stickley, Kislitsyna, Timofeeva, and Vågerö ٢٠٠٨; WCIOM 2018). For its part, the Russian Orthodox Church has faced a decline in public support following several serious public scandals but continues to enjoy the unconditional support of the ruling regime.2 Under such conditions, it is unlikely that the decriminalization of poboi would be prompted solely by the need to gain support from these stakeholders.

The academic literature on the decriminalization of poboi in Russia in 2017 is somewhat limited due to the recency of this policy change. The majority of studies look at the decriminalization through the lens of gender policy in post-Soviet Russia more broadly, drawing connections to the challenges facing civil society, changing gender norms, and national identity (Johnson 2017; Muravyeva 2018).

This study has a different premise. It seeks to explore how the unique conditions of the criminal justice system provided the impetus for the recent decriminalization of GBV in Russia. The main argument of this article is that the Russian criminal justice system’s inability to adequately process a growing number of assault complaints and its need to “solve” the problem without addressing the underlying nature of GBV prompted the decriminalization of domestic violence. This explanation is consistent with the model of hybrid regimes, in which superficial solutions are often presented as democratic elements and used to mask the authoritarian political regime. In the case of legal statutes, such devices are known as symbolic or façade laws (Schroeder 2001). Russia has made a number of such legislative changes, changes that are intended not to regulate behavior but to send symbolic messages of some kind (Semukhina and Galliher 2013).

This article by no means intends to suggest that the public policy process in mature democracies is a straightforward search for true solutions to real problems. Studies have shown that most public policy decisions are the convoluted result of a complex interplay between multiple visible and invisible political actors, often with competing agendas. The public policy process in a hybrid regime appears to be even more complex, due to the constant need to keep up democratic appearances and the uncertain numbers of institutional and non-institutional players with indeterminate power.3 This article suggests that the public discussion about the decriminalization of GBV that took place in Russia in 2016-2017 is inconsistent with what has been perceived as the “problem” within the criminal justice system.

The argument is organized as follows. The first section discusses the public politics immediately preceding the legislation on decriminalization. The second section reports qualitative data (collected in 2017 from in-depth interviews with police officers, defense lawyers, and judges) on how domestic violence was prosecuted prior to 2017. The third section discusses qualitative data from 2018 interviews with criminal justice professionals, which reflect on how the justice system has been handling domestic violence since the decriminalization.

The Public Politics of Decriminalization

On February 7, 2017, the Russian president signed into law an amendment that decriminalizes first-time assault among “related persons” without injury (poboi), an offense that has been traditionally used in Russia to prosecute domestic and intimate-partner violence. The new law reduced assault from a crime to an administrative violation that could be punished by a fine, administrative arrest, or community service.4 The decriminalization initiative prompted a significant public outcry both before and after its promulgation, with many members of the community arguing against it.5 Despite this opposition and public debate, the initiative was fast-tracked and voted into law by an overwhelming majority of Russian legislators in the space of less than three months.6 The following analysis of the law’s legislative history helps to illuminate which institutional actors were involved in this initiative and why.

The analysis should be prefaced by this important note: the present article analyzes only the official reasons for the amendments, as expressed in legislative documents and official public interviews. The author does not consider this official reasoning to encompass the entire public policy process on GBV in Russia, for two reasons. First, many “unofficial” actors—including, but not limited to, criminal defense organizations and NGOs—have been involved in the politics of gender violence in Russia. Given the hybrid nature of the Russian political regime, none of these institutions had an official voice in the decriminalization process. Second, the attempts made before 2015 and after 2017 to change Russian legislation on domestic violence are outside the scope of this analysis. These include the comprehensive package on GBV proposed by Mari Davatyan in 2012, which failed a first round of Duma hearings. This comprehensive package provided for protective orders and other measures that have been successfully used by other countries to combat GBV (Muravyeva 2018). Other packages, such as the one introduced by Saliya Murzabaeva and Anton Belyakov in 2016, have been sent back for “further improvements” (Ovsyannikov 2018).

The first attempt to decriminalize poboi (which was partially successful) was initiated by the Supreme Court of Russia on December 12, 2015, as draft law #9533696.7 The draft proposed the decriminalization of a number of offenses, including threats of deadly force,8 repeated failure to pay alimony,9 and assault without injury (poboi).10 The draft also reduced sentences for other types of battery, such as an intentional assault that caused minor bodily injury (umyshlenoe prichinenie vreda zdorovyu).11 However, the draft would have permitted poboi to remain a criminal offense in cases where there were aggravating circumstances, including hooliganism, religious discrimination, and hate crimes.12 It would also have made a repeat offense in one of these categories a criminal offense even if the first offense was only an administrative violation.13

The official explanation for the Supreme Court’s legislative initiative was as follows. First, too many petty crimes were being processed by the Russian criminal justice system: 46% of all defendants in 2013–2014 were convicted for petty offenses. Second, many of these offenses were not dangerous enough to be considered crimes. To support this argument, the Supreme Court pointed out that 95% of defendants convicted for petty offenses were handed down sentences that included no jail time. Of those convicted of poboi in 2014, 800 were given probation and 10,000 were required to pay a fine. Third, a significant number of prosecutions for petty offenses like poboi (65,000 in 2014) were terminated when victims and defendants agreed to reconcile. The Supreme Court concluded that such evidence was sufficient to remove poboi from the Criminal Code, thereby reducing judges’ case loads and allowing them to focus on more serious cases.14

During the legislative process, the Duma Committee on Civil, Criminal and Procedural Law and Arbitration amended the draft during the second hearing to include assault committed among “related persons” in the category of “aggravated circumstances.”15 The author of this amendment, Pavel Krasheninnikov of United Russia, explained that such a change was necessary to provide special protection for children who are physically abused by their parents.16 It is worth noting that although Pavel Krasheninnikov represents the so-called “liberal wing” of United Russia, he is a mainstream politician embedded in the official political system. The amendment immediately provoked resistance from Senator Yelena Mizulina, also of United Russia, who labeled it an attempt to create “juvenile justice” in Russia and an attack on traditional family values. Nevertheless, Krashenninkov’s amendment was adopted and the law entered into force on July 3, 2016.

Just 25 days later, Senator Mizulina initiated a proposal to amend the new law and remove the term “related persons” from Article 116 of the Criminal Code. In explaining the need for this change, Mizulina focused on only one aspect of the new statute. She argued that the law effectively criminalized the behavior of parents who use corporal punishment, such as spanking, to discipline their children. Thus, she pointed out, the law discriminated against those with traditional family values, in the sense that assault committed against a family member was now a crime, whereas an assault committed by a stranger was an administrative offense. Moreover, Mizulina argued that the punishments specified in the existing law were disproportionate to the crimes: whereas an assault without injury committed against a family member could now be punished by up to two years in jail, a more serious crime (such as assault) that caused minor bodily harm to a stranger was only punishable by a four-month jail term. In her official letter accompanying the draft law and public discussions of the law, Mizulina avoided talking about intimate partner violence or spousal battery. Instead, she focused on cases of “spanking” and insisted that, under the current law, parents would go to jail and lose their children merely for disciplining them.17

The legislative package initiated by Mizulina was denied further discussion on technical grounds, but on November 14, 2016, an identical package was introduced by a group of Duma representatives and senators from the Federation Council.18 Senator Mizulina subsequently joined that initiative. Between July and November, Mizulina initiated a public campaign that collected over 200,000 signatures from concerned parents and organizations advocating19 for traditional family values in support of Mizulina’s proposal to decriminalize first-time assault committed by family members.20 Most petitioners avoided talking about spousal abuse and how this new amendment would affect it. Instead, the public discourse juxtaposed traditional Russian cultural values of disciplining children inside the family with Western ideas of the government taking children away from their helpless parents.21 The latter was labeled as “juvenile justice,” which is a pejorative term used to show the problems in “Western societies.”22 Public discussions of the “juvenile justice problem” were intertwined with the adamant denial of statistics on domestic violence cases and the assertion that a new law was needed for national security reasons.23

Draft law #26265-7, which proposed to decriminalize assault against “related persons,” was fast-tracked through the Duma and the Federation Council with little discussion of any effect it might have on domestic violence in Russia. The reviews of the various committees, including the committee chaired by Krashenninikov, were only a few sentences long and contained standard language. The public hearings in both chambers were brief, and just three months after its initiation, the law was signed by President Putin.

It can be argued that Russia decriminalized domestic violence as a symbolic means of distancing itself from the “alien Western values” of juvenile justice. This move is consistent with Russia’s increased differentiation of its values from those of “Western” countries such as the United States and Western Europe. Senator Mizulina did an excellent job of framing the decriminalizing amendment in a way that made it impossible for anyone in Russia to oppose it. As a result, few “mainstream” political leaders, including Krasheninnikov himself, publicly criticized the decriminalization. President Putin’s mention of the decriminalization initiative in his speech to the Federal Assembly guaranteed that it would be processed with no or little discussion in the State Duma or Federation Council. But is symbolism the only reason for the decriminalization of domestic violence?

Readers may recall that the original impetus to decriminalize domestic violence, as well as many other crimes, came not from Mizulina but from the Supreme Court of Russia. In its “explanatory letter” accompanying that first draft law, the Supreme Court did not frame decriminalization as an issue of juvenile justice or traditional values. Indeed, the Supreme Court is known to have a relatively low political profile. Most of its legislative initiatives emerge from analysis of court statistics, and they are typically framed as a way of improving the efficiency of the criminal justice system. Such was the case of the original draft law to decriminalize assault without injury. Moreover, that draft law targeted not only crimes related to domestic violence, but also other petty crimes, such as theft and repeated failure to pay child alimony. This suggests that the rationale for decriminalizing poboi might be found outside the political narrative voiced by Senator Mizulina.

Statistics and Public Opinion of Poboi

Traditional criminology suggests two major reasons to decriminalize behavior, both of which have to do with diminished public danger of the conduct. First, the infrequency of the conduct can demonstrate a diminished public danger and thus lead to decriminalization. Second, changing societal values, such that a behavior is no longer deemed to be dangerous, can prompt decriminalization (Richards 1986).

A quick look at the official crime statistics from the MVD demonstrates that assault without injury is a frequent crime in Russia. In 2014, 2,287,967 complaints were registered for this type of assault; in 2015, this number reached 2,370,034.24 At the same time, experts maintain that the actual crime rates for assault are significantly higher than official statistics would suggest because this crime is one the most “latent” offenses in Russia.25 Victimization surveys demonstrate that at least 70% of poboi are not reported by the victims (Antonova 2016).26 The official statistics from 2012–2016 showed significant growth in officially reported victimization. In 2012, 34,026 individuals reported suffering from violent crimes perpetrated by their family members (MVD 2019b). Of these, 73% were women and 10% were minor children. By 2016, there were a reported 65,543 victims of family violence, of whom 72.4% were women and 23% were minor children.27 In an official survey conducted by the Russian State Committee on Statistics with the United Nations in 2011, 38% of women reported having experienced verbal abuse in their lifetime, while 20% reported having been subjected to physical abuse (United Nations in the Russian Federation 2008). Taking this data in aggregate, it is safe to argue that domestic and intimate-partner violence is prevalent in Russia; as such, its low frequency cannot explain the decriminalization.

A review of surveys on domestic violence in Russia shows that the majority of Russians continue to view family violence as a serious problem. A study conducted in 2008 by the United Nations reported that 90.7% of women and 82.3% of men in Russia believed domestic violence was a serious problem (United Nations in the Russian Federation 2008). In 2015, the Gallup Institute found that 58% of Russians believed domestic violence to be a serious problem. In the same study, the majority of women (56%) and a significant number of men (44%) said that government efforts were not sufficient enough to fight domestic violence, while only 20% of women and 24% of men were satisfied with the government’s efforts to combat domestic violence (Esipova and Ray 2017). A WCIOM study conducted in 2016 produced similar findings: 58% did not believe that the government was doing enough to fight domestic violence, while 18% suggested that increasing the penalties for violent crimes would be a solution to this problem (WCIOM 2016). Another 2016 study, this time conducted by FOM, found that 77% of respondents did not believe that violence within the family was ever justified (FOM 2016). It is important to note that all these studies were conducted at a time when assault without injury was still a crime under the Criminal Code of Russia. Taking these studies together, it is difficult to argue that the majority of Russians view domestic violence as less dangerous than in the past and therefore “unworthy” of criminal prosecution. In 2017, WCIOM published the only study since the legislative changes to the Criminal Code, finding that the majority of Russians (59%) supported decriminalization (WCIOM 2017). This stands in stark contrast to the 2016 FOM study’s finding that only 27% of men and 19% of women supported decriminalization (FOM 2016).

The recent public discourse on GBV has been reinvigorated by new high-profile cases of domestic violence.28 Despite the decriminalization, 65% of women and 52% of men in recent surveys continue to believe that family violence needs to be reported to the police, with only 14% saying that “wife-beating” is a private matter that needs to stay within the family.29 Thus, even recent data show no significant shifts in public opinion on GBV. Evidently, therefore, the decriminalization of assault without injury has little to do with the prevalence of this crime or a decisive shift in public views of how dangerous this behavior is.

Domestic Violence as an “Inconvenient” Crime for the Russian Criminal Justice System

If the official rationale for decriminalization is not supported by data and evidence, perhaps an explanation of the decriminalization can be found in the way that the Russian criminal justice system processed poboi in the past. The power ministries, including MVD, have been at the foundation of Russian state-building capacity and it is logical to assume that they have tremendous lobbying power on issues such as the decriminalization of poboi. To explore this possibility, I conducted 67 semi-structured interviews30 in March-July 2017 and April-July 2018 with police officers (beat cops and investigators), judges, defense lawyers, and staff members of crisis centers (NGOs) who work with victims of domestic violence in Russia.31 In my interviews, I looked for patterns in how the criminal justice system handled poboi before and after the decriminalization and solicited opinions on the impact that the decriminalization has had on both victims and criminal justice professionals. The interviews were conducted in three regional cities in Russia, either via Skype or face-to-face. The interview locations are not disclosed to protect the identities of interviewees. Handwritten notes were taken by the author verbatim when possible. Snowball sampling was utilized to allow for detailed and trustworthy findings. All interviews were conducted outside respondents’ official places of work, and most interviewees were known to the author prior to the start of this research.

It is difficult to conduct official interviews with criminal justice professionals in Russia. Even when permission to conduct such interviews is granted, it is nearly impossible to get detailed and trustworthy answers from those employed by the government. Table 1 summarizes the credentials of each interviewee cited in this article, including as many details as possible while maintaining their confidentiality.

The majority of interviewed police officers found poboi quite a challenging crime. First, many were frustrated with the fact that victims of domestic violence often changed their minds about whether to prosecute. “I hated poboi; at first, in the heat of a fight, she will report it, but then she will change her mind a few days later and take him back…”32 Most police officers who had to deal with this crime expressed frustration with the fact that the victim alone controlled the outcome of the case: “I work hard to document her situation. I send her to the medical examiner…all this time is typically wasted because one day she and her husband are back together and she wants to stop the case.”33 Much of this is due to the fact that poboi falls into the category of “private prosecution” crimes (dela chastnogo obvineniia). In this category of cases, the victim has significant control over the prosecution and the victim’s reconciliation with a defendant is cause to terminate the investigation of a case.34

However, legal provisions are only part of the story. Police officers’ frustration with poboi was also related to problems with statistical reports. In Russia, crime statistics are often manipulated by police officers and other professionals to achieve pre-set quotas (Skomorokhov and Shikhanov 2006). These quantitative indicators are routinely used to determine officers’ raises and promotions; as such, crime statistics in Russia are first and foremost an indicator of police performance (Paneyakh 2014). Crimes like poboi, where victims control the outcome, are inconvenient and frustrating because they often negate the officers’ efforts to provide “necessary” reports to their superiors: “Last year in one month, I sent 20 women to the medical examiner, and then only five of them went to court, and four reconciled so we closed the cases…You think my boss liked it?…He ripped my soul out of me.”35

The problem with the termination of poboi cases is indicative of a more general trend in the Russian criminal justice system: police officers are evaluated on the number of successful cases sent to court, and termination of prosecution is viewed as a failure (Titaev and Shklyaruk 2016). For private prosecution cases such as poboi, this situation presents an inherent conflict: on paper, the law allows victims to control the prosecution, yet the institutional culture discourages termination of cases and even penalizes police officers whose victims do so. Some of my interviewees see this as being bound up with police officers’ identity as “crime fighters”: “The husband and wife reconciled; we saved the family…it’s supposed to be a good thing…but my boss doesn’t see it this way because his boss doesn’t see it this way, and the minister doesn’t see it this way…because we are crime fighters...we are not in the business of saving families.”36

For many of the interviewed officers, there was also a subtle but noticeable connection between the victim’s “blameworthiness” and the level of police frustration about wasted time and resources. A beat officer explains: “She called us so many times when she fought with her husband. We came, we told her to get a medical examination and file with the court, then she took it all back. After a few times, I stopped going to her place. She is just hopeless.”37 Another officer describes a different situation: “She drinks, and he drinks, then she complains he beats her up. How in the world do I know what happened between the two of them? She comes to me and cries, but I don’t know if I want to spend time on her…I feel like she is probably as guilty as he is.”38

However, police officers’ role in cases of assault without injury (poboi) was usually limited. The victim typically called the police for cases of public disturbance or came to the precinct herself, whereafter the police took the initial complaint and sent the victim to the medical examiner. The victim then had to file the official criminal prosecution with the justice of the peace court (mirivoi sud) and wait for the hearing. During the hearing, the victim herself had to confront the defendant and support the accusation. Thus, it appears from pre-decriminalization law and practice that justices of the peace played a more important role than the police in processing poboi. I conducted interviews with five different judges in three courts to understand possible patterns and concerns associated with adjudication of these batteries.

Similarly to police officers, the judges often expressed frustration with domestic violence cases. Once again, this frustration was centered around the victim’s ability to control the outcome of the case. One justice of the peace sums up this frustration: “They come to me, I schedule the hearing…they show up, and at the last minute they reconcile…what a waste of my time.39” Another justice of the peace adds: “My dockets get always messed up because these women don’t show up or they show up and don’t know what to do or say.”40

In addition to logistical frustration, many judges were unhappy with victims’ lack of legal knowledge. “They come to my office; they don’t even know how to write the complaint. My secretary is always busy with them…we don’t have the time or resources to handle these crimes.”41 This lack of specialized knowledge also affected how victims behaved during the court hearing: “They don’t know what to say; I have to play the role of the prosecutor and the judge…it’s an impossible situation, and I wish they had some professional lawyer with them.”42

Again similarly to police officers, many judges felt that poboi cases were “unimportant” because of the victim’s blameworthy behavior: “I sympathize with many of them…but let’s be honest…some [of these women] contribute to these situations.”43 “Unfortunately, the lifestyle of these women (drinking, partying) makes them more vulnerable.”44 “When I see the same woman in the courtroom again and again, and she terminates prosecution so many times, I start feeling less sympathetic to her situation…if she is serious, she should not waste the court’s time.”45

These feelings appear to have an impact on some justices of the peace’s sentencing decisions: “For most crimes of poboi, I give a fine…it’s not like he hurt her badly…so minimum punishment is required.”46 Another justice of the peace explains: “When I see them drinking together, both are not working… I will sentence him to the least serious punishment available, which is a fine.”47 Another justice of the peace elaborates: “If the woman keeps terminating her prosecution, she needs to understand that I cannot later take it into consideration when I sentence him…a fine is what he gets.”48

What is appropriate sentencing for assault without injury seems to be a learned experience: most justices learn from fellow judges or their superiors what punishment should be handed down for poboi. In the two to three years immediately preceding decriminalization, first-time offenders typically received a fine. “There is a practice…analysis of cases…the chair of the court has us examine reports and learn what it is.”49 A significant departure from this standard is likely to cause a decision to be reversed, which, in the world of judges, is a highly undesirable outcome. “When I was a rookie, I gave a guy who beat his wife real jail time…I knew he was a repeat offender, but his wife always terminated the prosecution…so when she finally got brave…he got jail time…it was reversed…my chair of the court told me no bonus this year…and I learned quickly.”50

Judges in Russia are known to be highly dependent on the state bureaucracy, and particularly the chair of the court: much of trial judges’ salaries, raises, bonuses, and case load depends on how well the judge follows the patterns set out by the superior courts through communication with the judge curator, appellate decisions, and summary of practice (Volkov, Dmitrieva, Pozdnyakov, and Titaev 2017). Because all judges in Russia are appointed, it was unsurprising to see no references to public perceptions of poboi when judges discussed their sentencing policy. Instead, sentencing discretion was exercised cautiously and only within the boundaries acceptable to the superior court.

Similarly to police officers, justices of the peace also expressed frustration with the level of acquittals resulting from poboi. Even though judges are not as sensitive to acquittals as police officers and prosecutors, they often view acquittals as a waste of their time and resources. “I schedule the case, I start the hearing…and then she shows up and says he did not beat her on purpose…that’s the end…it has to be intentional. I have to acquit.”51 Acquittal also occurs when the victim does not show up for the trial: “I hated poboi…they complain…I schedule…then she doesn’t show up…I reschedule, but she doesn’t show up again…so I have to acquit.”52

Officers and judges alike emphasized that cases of assault without injury were particularly frustrating because they were so frequent and had similar patterns. One justice of the peace explains: “I have an extreme case load; 50 cases a month is normal…I don’t have time to deal with victims who forgive their offenders…these cases consumed so much time on my docket…I barely had time to see my own family.”53 A beat cop in a rural area explains: “These batteries happen to the same women again and again, and there are so many of them…I spend half of my time just writing reports about them.”54

Interviews with defense lawyers and advokaty presented the other side of the story, revealing that most victims are equally frustrated by how the Russian justice and legal systems handle poboi cases. First, many interviewees objected to poboi being categorized as a private prosecution, saying that this placed a significant burden on an already vulnerable victim: “Many women thought they could go to the police and the prosecutor, and they would protect them from their abusive husbands…when they learned it was all on their shoulders…they did not want to do it.”55

Much of defense lawyers’ frustrations come from the fact that the procedural law allowed for the termination of prosecution through reconciliation. “This is a big mistake; it puts additional pressure on women…their husbands used all means, knowing that reconciliation would terminate the prosecution.”56 “I think in theory reconciliation sounded like a good idea, but in reality…look at these women…they are dependent on their spouses…financially…emotionally…they have no other place to go…of course they reconcile.”57 One defense lawyer relates: “When a woman is financially independent, she has other places to stay, and she has professional legal help; these women never reconcile…they punish their husbands and get divorced. But they are a minority.” A crisis center employee explains: “When a woman is forced to live with the perpetrator [to stay] with her kids, eventually she settles down and retracts her complaint. If all women who got beaten had a place to stay and a job that would give them food and clothes…I am pretty sure they would not reconcile.”58

Many interviewees focused on the lack of legal and psychological help available to victims of spousal abuse: “If each woman had access to a free lawyer, women would file more often…they would know when and how to file…they would not be scared of the court and the judge.”59 A crisis center psychologist explains: “The idea that a women must go and publicly, in court, accuse her husband of beating her is psychologically wrong. An open and public confrontation with someone who abused you for a long time, most victims can’t do it…it’s very unfortunate that the law made these poor women do it. If they had proper psychological help…maybe some of them would do it and not back down.”60

Several defense lawyers complained that police tried to prevent victims from reporting crimes. “Sometimes a woman comes to police to get a referral for a medical examination, and they tell her she has no case.”61 A victim advocate discussed several cases where medical examiners downplayed obvious bruises, thus preventing the victim from filing charges with the court.62 My interviewees also reported that medical examiners are unavailable in many rural areas, keeping many victims of assault from having access to prompt medical examination.63

Many defense lawyers were also disappointed with the courts’ sentencing patterns when it comes to poboi: “The fine did nothing to protect the victim or prevent the offender from reoffending; the fine just made the family poor…women paid the fine from the family budget…the court punished the victim in the end.”64 Another defense lawyer explains: “Most of my clients in cases of spousal poboi would prefer arrest or community service…not a fine. A fine is just money…it’s not a personal punishment…it would not deter.”65

Many interviewees also argued that a mandatory arrest policy was needed for successful prosecution of a spousal beating. “Battered women need separation from their abuser. The court or police never arrest the perpetrator when the woman reports the abuse…for many women, this is a reason not to file charges…they have nowhere to go, and they are afraid the husband will retaliate.”66

It is worth mentioning that findings from these interviews are consistent with reports by other organizations that looked at practices of prosecuting poboi in Russia prior to decriminalization (ANNA 2010; CEDAW Committee 2010; Human Rights Watch 2018; Open Society Institute 2007; United Nations in the Russian Federation 2008).

After learning about the issues with prosecution and adjudication of domestic violence in Russia, it is obvious that the Supreme Court’s purported reasons for decriminalization are at least questionable. The Supreme Court argues that a high rate of reconciliation in poboi cases is a sign that such cases lack public danger. However, interviews with defense lawyers and employees of crisis centers suggest that such reconciliations could be a sign of battered women’s extreme vulnerability rather than a reflection of their true desire to reconcile. The Supreme Court also suggests that current sentencing practices for poboi are a clear indication that most judges do not see these perpetrators as dangerous offenders. However, interviews with judges reveal that their sentencing decisions are often influenced by appellate court practice and guided by a fear of reversal. As such, sentencing practices on poboi are more likely to reflect court bureaucracy views on appropriate sentencing for poboi than they are the danger of the perpetrator.

I also asked my interviewees whether the situation described by Mizulina was prevalent in the criminal justice system and to what degree it could explain the need for decriminalization. The senator maintained that the statute on poboi allowed police to prosecute law-abiding parents who discipline their children with spanking. The absolute majority of police officers found this scenario highly unlikely. “We don’t need to open a case that is likely to be terminated…a child with a bruise…the beat officer may be sent to ask questions…but that’s it.”67 An experienced investigator commented: “I don’t remember a single case like that…we are not stupid, and we are too overworked already to pay attention to such garbage…the only time when I pay attention is when there is a pattern of bruises and other injuries…and if there are no suspicious circumstances…like alcohol abuse or mental illness…I don’t bother to open the case.”68 A justice of the peace summarizes: “Cases like this are rare; sometimes they are initiated by a parent with a bitter divorce, but they never go to trial. I talk to the parties and explain that they are wasting my time.”69

One plausible explanation for the decriminalization of poboi in Russia is the inability of the Russian criminal justice system to handle domestic violence cases properly. It is difficult for police and judges to control the outcome of these cases, thus interfering with their ability to produce the expected statistical reports. Because of their frequency, cases of poboi also imposed a heavy case load on justices of the peace, who are already working at their full capacity. The majority of cases went unreported to police, and, of those victims who did file a report, the majority terminated their prosecutions. Adjudication rates remained low, and sentencing practices favored monetary fines over other punishments. Most victims of domestic violence were clearly not satisfied with their attempts to prosecute poboi. As such, it is logical to assume that the Supreme Court saw decriminalization as a possible solution to these issues.

In the Aftermath of Decriminalization

Proponents of decriminalization argue that very little has changed for victims of domestic violence since decriminalization. The administrative offense of poboi still results in a fine for the perpetrator, and the administrative procedure used in court actually streamlines and simplifies the process for victims (Chetvertyakova and Khodzhaeva 2017). Opponents of decriminalization, meanwhile, contend that decriminalization has had a devastating effect on domestic violence in Russia. The stigma of crime is a crucial factor in preventing repeated assault and an important indicator of what society considers normal. Many opponents of decriminalization suggested that the new law sends the wrong signal to Russian society: it conveys the impression that spousal violence is normal, not delinquent behavior. “Beating your wife is now the equivalent of parking your car in the wrong place” (Human Rights Watch 2018). Together with several other amendments to the Criminal Code initiated by the Supreme Court, these laws reinforce the idea that low-intensity everyday violence is acceptable normal behavior in Russia (Davtyan and Rivina 2018).

While concerns about symbolism are of interest to public policy analysts and researchers, they appear to have little impact on the daily decisions of institutional actors involved in handling domestic violence in Russia. Most police officers interviewed in 2018 expressed relief that poboi had been decriminalized. This feeling had little to do with the well-being of victims, but related instead to diminished pressure on the officers themselves: “[Decriminalization] is a good thing…we can now quickly and painlessly sign the administrative protocol for poboi…it’s faster and simpler for me.”70 It also appears that the administrative proceeding has given police officers greater scope to produce desirable reports, since victims can no longer terminate the proceeding due to reconciliation: “I like it…these women can’t take it back…at least not on my level…so my numbers are always good…they are actually going up.”71 Many beat cops agreed that they now have a greater incentive to proceed with domestic violence complaints: “It doesn’t feel like a waste of my time anymore…I take a complaint…sign up protocol and send it to the court…it’s an easy score for me.”72 Some police officers acknowledge that the pressure over administrative reports is not as severe as in criminal cases, with the result that they feel more comfortable exercising their discretion in signing administrative protocols: “My boss doesn’t pay as much attention to the administrative reports…and I don’t sweat as much…I sign the protocol and send her to court…it’s out of my hands and that’s the way I like it…I have much more important business to handle than these battered women.”73

Justices of the peace also suggested that making poboi an administrative violation had resulted in effective and efficient administration of justice: “The administrative protocol on poboi is a much faster and easier proceeding…the women are less confused about what to do…and at the end of the day they get what they want…the husbands are punished.”74 Similarly to police officers, the justices appreciate the fact that the administrative offense of poboi is a much more controlled proceeding due to its simplicity and the fact that professional lawyers are not involved: “Criminal poboi victims sometimes brought lawyers…this could be a nightmare, especially when they wanted to participate in the trial… things got slow and cumbersome… administrative protocols involve no lawyers…so I can swing through my dockets to get the fine imposed.”75 Some justices also appreciated the ability to send deficient cases back for fixing, something that was almost impossible to do in the criminal case: “Women often don’t know what should be in a protocol…I can send it back to be fixed…it’s quick and requires little of me.”76 Also similarly to police officers, justices of the peace felt that the simplification of the proceeding was reflective of how unimportant cases of poboi are for the criminal justice system: “Criminal trials need to be reserved for serious cases…two drunk spouses punching each other is just not worth it…we need to be focusing on real problems in our society.”77

It appears that the decriminalization of domestic violence in Russia has transformed the “inconvenient” crime of poboi into a controllable and more predictable administrative offense that police officers and justices of the peace alike can effectively “process” through the justice system. The collateral consequence of this new efficiency is an increased number of sentences for poboi in Russia. The Judicial Department of the Supreme Court reported that only 17,838 individuals were sentenced for the crime of poboi in 2016, whereas the number of those sentenced for poboi as an administrative offense reached 120,692 in 2018 (Judicial Department of the Supreme Court of Russia 2016a, 2018b). Moreover, the decriminalization of poboi has made it possible for more victims to be separated from their abusers due to the availability of an administrative arrest sentence (short-term detention). In 2016, only 281 individuals were sentenced to a jail term for the crime of poboi, but in 2018, 8,301 individuals received short-term detention for the administrative offense of poboi (Judicial Department of the Supreme Court of Russia 2016b, 2018b). Some researchers suggest that the increased numbers of administrative sentences and short-term detentions are positive consequences of the decriminalization of domestic violence. The fact that higher numbers of women are filing administrative complaints, the logic goes, indicates a higher level of public trust in the police and courts, as well as the improved availability of protection to a larger group of women (Chetvertyakova and Khodzhaeva 2017).

My interviews with defense lawyers and those who worked in crisis centers indicate that the decriminalization of poboi has primarily had a negative impact on victims of domestic violence, although the scale of such impact is still unclear. Despite officers’ claims that poboi is easier to process now that it is an administrative offense, many defense lawyers continue to encounter bias and prejudice against victims of domestic abuse: “the people who process these cases are still the same regardless of decriminalization…and they often have a high tolerance for violence… women are blamed for not leaving abusive husbands earlier or simply for not recognizing that he is an abuser before marriage…statutes don’t change people’s minds…at least not in one day.”78 Many defense lawyers argued that the growing number of administrative complaints is not a sign of the system’s effectiveness but rather an indicator of the growing number of instances of violence due to decriminalization: “When a bruise on your wife is the same as a speeding ticket, what prevents you from doing it…there is less shame for anyone and fewer consequences…I see more women complaining to me about violence in the family now.”79 Some defense lawyers maintained that the lack of a criminal record is making women more willing to speak out: “When you know that your spouse will not get a criminal record, you are more likely to complain…even if he was hurting you for a long time.”80 It has also been suggested that the increase in administrative filing may be short-lived: “Most women soon realize that an administrative proceeding is not going to help them…the fine is just a fine…I doubt we will see more victims filing administratively in the future…”81 Since reliable data on domestic violence is unavailable in Russia, it is unclear to what degree each of these arguments can be generalized to the entire population of Russia.

Another serious issue related to the adjudication of domestic violence in Russia is the prevalence of monetary punishments (fines) for poboi. My interviewees were in agreement that decriminalization did little to change this practice: “Judges continue to fine husbands for poboi…this money just comes out of the family budget…wives punish themselves by filing complaints.”82 Data from the Judicial Department for 2017-2018 support this proposition: 81% of those sentenced for poboi in an administrative proceeding received a monetary fine (Judicial Department of the Supreme Court of Russia 2017a, 2018b). Most of my interviewees were also skeptical about the value of administrative arrest: “The administrative arrest is kind of a joke…judges give it to those husbands who are unemployed and will not be able to pay a fine…in my practice, they gave only a few days even though the maximum is 15.”83 Some defense lawyers see the main problem as being the timing of arrest: “Administrative arrest for a few days would be effective way to deescalate violence and provide a victim with an opportunity to relocate away from an abuser if it was applied immediately at the time of conflict… the court imposes it one month later…it has no value at that time.”84 Whereas other countries have effectively used mandatory arrest immediately after an incident to prevent further domestic violence, the decriminalization of poboi in Russia makes it legally impossible because preventive measures prior to a sentence cannot apply to non-criminal offenses.

Probably one of the most damaging consequences of the decriminalization of poboi in Russia is the repeated claim that it allows for the escalation of serious violence against women. This argument is based on the premise that the administrative offense lacks the necessary stigma to prevent reoffending: “Now that it’s not a crime…guys have no reasons to be afraid…I had a few cases where wives were beaten nearly to death after husbands paid their administrative fines.”85 MVD statistics do not support this proposition, as the number of women and children who suffered from violent offenses did not change significantly since 2010.86 However, these data include all crimes and not simply domestic violence (MVD 2019a). Another set of official crime statistics from the MVD report that the number of women and children suffering at the hands of their spouses/fathers grew exponentially between 2012 and 2016 but has halved since the decriminalization in 2017, even though the number of female victims in general suffering from violent crimes remained the same from 2012 to 2018 (MVD 2019b).87 Several interviewees at various regional MVD agencies discuss this pattern: “There has been a directive from the central office to decrease violent crimes against spouses…in my practice this is not reflective of what is going on in my circuit…but my boss said these cases have moved into the category of administrative offenses so I need to show a decrease.”88 Another officer explains how domestic violence can be reported differently: “The official statistics on 7.2689…are concerned with crimes against spouses and children…if they never got officially married…which is, like, half of them…or if they are divorced…you can put the violent offenses in a different category.”90 Some experts in the field of domestic violence believe that “better” statistics are one driver of the decriminalization, especially as Russia prepares to report on compliance with the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) in 2019 (Ovsyannikov 2018). Without reliable data, it is impossible to say how generalizable the escalation of violence since decriminalization is. However, qualitative data and highly publicized cases suggest that such events are not specific to isolated places or categories of victims.91

Another troubling piece of evidence comes from crime statistics on repeated domestic violence, which continued to be a crime in Russia after 2017. It would be logical to assume that with a sharp increase in those sentenced to an administrative offense of first-time poboi, there would be some increase in criminally punishable repeated offenders. However, data from the Judicial Department of the Supreme Court report that only 535 individuals were sentenced for the crime of repeated domestic violence in the whole of Russia in 2017, and 922 individuals in 2018. These numbers represent less than 1% of those individuals who were sentenced for first-time poboi via administrative proceeding (Judicial Department at the Supreme Court of Russia 2017b, 2018a). Of the repeat offenders, only 6 individuals received jail terms of any kind, 146 individuals received a fine of under $500, and 57 individuals received a fine of under $100. It is highly unlikely that a one-time monetary fine was so effective at preventing further domestic violence across the entire country (Judicial Department of the Supreme Court of Russia 2017b, 2018c). The numbers of those sentenced for repeated domestic violence are even more surprising when you consider that 20% of people in a nationally representative sample of Russia’s 146 million inhabitants reported having experienced domestic violence at some point in their life (United Nations in the Russian Federation 2008). My interviews with beat cops and defense lawyers alike shed light on this issue. Many defense lawyers acknowledge that the extremely low numbers of criminal convictions for repeated domestic violence are due to additional barriers: “Filing a criminal complaint for repeated domestic violence became nearly impossible after 2017…[there are] so many ways in which the police just turn you down…many women don’t realize that when they terminate their administrative proceeding, they lose their ability to file a criminal charge for repeated domestic violence.”92 Another defense lawyer elaborates: “Decriminalization changed nothing in the fundamental way in which the justice system in Russia deals with domestic violence…but it made the criminal complaints for repeated violence more difficult…heightened scrutiny applied to these cases and often made victims helpless since cases are sabotaged by officers, prosecutors and even medical examiners.”93 And here is a response from a police officer that encapsulates the modern justice system’s attitude toward domestic violence in Russia: “The system was changed so that poboi is no longer a part of the criminal justice system…we are giving these women a chance to solve their family issues via administrative proceeding…they need to fix their families…and if they don’t…we shouldn’t be clogging the criminal justice system with their cases.”94 Many interviewed officers felt that the issue of domestic violence had now been “solved” and those that seek criminal prosecution are themselves to blame for bringing about the repeated violence.95

In sum, the true winner from decriminalization appears to be the criminal justice system, including judges and above all police officers. The inconvenient cases of poboi have been removed from the criminal justice system both because they are unworthy of the attention of “crime fighters” and because the system is unable to control their outcomes. The solution provided by the administrative proceeding is the same that was previously offered by the criminal one and has very little impact, since monetary fines do not address the core problem of domestic violence and place an additional financial burden on families that are already struggling. The impact of decriminalization on victims is at best unclear, with some evidence that both the frequency and the severity of domestic violence has been growing. The negative aspects of the change are especially obvious with regard to victims of repeated violence, whose cases are now less likely to be prosecuted and receive an actual jail term. The symbolism of the decriminalization of poboi is also damaging, since it downplays violence against women by putting poboi on the same level as a minimally delinquent behavior like a speeding ticket. In combination with the lack of effective help from social workers and psychologists, the justice system in Russia continues to disguise the problem of domestic violence by manipulating the statistics and placing the blame for domestic violence on its vulnerable victims: financially dependent women and their children.

Table 1. Description of interviewees

Interviewee code

Affiliation

Location

Age

Gender

Experience in current job at time of interview

PO#1

Beat police officer (uchastkovyi)

Large metropolitan cityi

23

Male

1 year

PO#2

Investigator (doznavatel); former beat police officer (uchastkovyi)

Small regional cityii

38

Male

7 years

PO#3

Beat police officer (uchastkovyi)

Large metropolitan city

31

Male

6 years

PO#4

Beat police officer (uchastkovyi)

Small regional city

27

Male

5 years

PO#6

Beat police officer (uchastkovyi)

Medium regional cityiii

32

Male

5 years

PO#7

Beat police officer (uchastkovyi)

Medium regional city

25

Male

4 years

PO#9

Beat police officer (uchastkovyi)

Small regional city

24

Male

1 year

PO#11

Beat police officers (uchastkovyi)

Small regional city

24

Male

2 years

PO#12

Head of the department of public safety

Small regional city

34

Male

4 years

PO#14

Beat police officer (uchastkovyi)

Large metropolitan city

41

Male

8 years

PO#16

Beat police officer (uchastkovyi)

Medium regional city

37

Female

11 years

PO#17

Beat police officer (uchastkovyi)

Medium regional city

33

Male

5 years

PO#18

Beat police officer (uchastkovyi)

Large metropolitan city

39

Male

11 years

PO#19

Head of the department of public safety

Medium regional city

41

Male

5 years

J#1

Justice of the peace

Medium regional city

32

Female

5 years

J#2

Justice of the peace

Small regional city

42

Female

10 years

J#3

Justice of the peace

Large metropolitan city

31

Female

2 years

J#4

Justice of the peace

Medium regional city

29

Female

3 years

J#5

Justice of the peace

Small regional city

36

Female

6 years

DL#2

Defense lawyer

Medium regional city

28

Male

4 years

DL#3

Defense lawyer

Medium reginal city

34

Female

11 years

DL#4

Defense lawyer

Large metropolitan city

37

Female

14 years

DL#5

Defense lawyer

Small regional city

26

Female

2 years

DL#6

Defense lawyer

Medium regional city

37

Male

10 year

DL#10

Defense lawyer

Medium regional city

35

Female

11 years

DL#11

Defense lawyer

Medium regional city

26

Female

3 years

DL#12

Defense lawyer

Small regional city

41

Female

12 years

DL#13

Defense lawyer

Large metropolitan city

44

Female

20 years

DL#14

Defense lawyer

Large metropolitan city

39

Female

13 years

DL#15

Defense lawyer

Large metropolitan city

43

Female

14 years

DL#16

Defense lawyer and former employee of crisis center

Large metropolitan city

45

Female

7 years

DL#17

Defense lawyer

Small regional city

36

Female

12 years

DL#19

Defense lawyer

Large metropolitan city

40

Female

13 years

CCE#1

Crisis center employee (sotrudnik krizisnogo tsentra)

Medium regional city

46

Female

11 years

CCE#3

Crisis center employee (sotrudnik krizisnogo tsentra)

Large metropolitan city

36

Female

3 years

i Refers to a non-capital city of over 1 million people in the Central Federal District.

ii Refers to a city that is not a regional center with a population of 100,000 people in the Southern Federal District.

iii Refers to a city that is a regional center with a population of 500,000 people in Siberian Federal District.

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Olga Semukhina is Associate Professor of Criminal Justice, PhD Program Coordinator, and Director of the Institute for Predictive and Analytical Policing Science at Tartleton State University. E-mail: semukhina@tarleton.edu.

1 It should be noted that this article is focused entirely on Article 116 of the Russian Criminal Code, which addresses the crime of poboi (physical assault that caused no bodily injury). The prosecution of family and gender violence in Russia is not limited to this crime; more serious cases of domestic abuse are often prosecuted under Articles 111 and 117 of the Russian Criminal Code. However, a discussion of these crimes is outside the scope of this article.

2 See, for example, WCIOM’s (2019) rating of support for public institutions.

3 For an in-depth discussion of hybrid policymaking in Russia, see Taylor (2014).

4 See the official version of Statute #8-FZ at https://rg.ru/2017/02/09/rg-publikuet-zakon-o-dekriminalizacii-domashnego-nasiliia.html.

5 See, for example, an article on members of the Public Council of the Investigative Committee at “SK obespokoila predpolagaemaia dekriminalizatsiia domashnego nasiliia [SK Concerned about Alleged Decriminalization of Domestic Violence],” RIA Novosti, November 17, 2016, https://ria.ru/society/20161117/1481597519.html; statements by defense lawyers at “Dekriminalizatsiia poboev v sem’e privedet k vzryvu domashnego nasiliia—eksperty” [Decriminalization of Domestic Beatings will Lead to an Explosion of Domestic Violence—Experts], Moskva 24, January 11, 2017, https://www.m24.ru/articles/%D0%93%D0%BE%D1%81%D0%B4%D1%83%D0%BC%D0%B0/11012017/127049; and interviews with members of NGOs at “ ‘Posledstviia budut tragicheskimi’: Eksperty o dekriminalizatsii poboev” [“The Consequences will be Tragic”: Experts on Decriminalization of Poboi], Wonder, January 11, 2017, http://www.wonderzine.com/wonderzine/life/life/223639-decriminalization.

6 380 members voted for the new law, with only three voting against it and members of the Communist parties abstaining; see “Duma uzakonila dekriminalizatsiiu poboev v sem’e” [Duma Enacted Decriminalization of Domestic Violence], BBC Russian Service, January 27, 2017, http://www.bbc.com/russian/news-38768162.

7 The package of draft legislation can be found at http://www.duma.gov.ru/systems/law/?number=953369-6andsort=date.

8 Article 119 of the Criminal Code of Russia.

9 Article 157 of the Criminal Code of Russia.

10 Article 116 of the Criminal Code of Russia.

11 Article 115 of the Criminal Code of Russia.

12 Article 116 of the Criminal Code of Russia.

13 Article 116i of the Criminal Code of Russia.

14 The explanatory letter for draft law #9533696 (Poiasnitlenaia zapiska) is available at http://www.duma.gov.ru/systems/law/?number=953369-6andsort=date.

15 See the Table of Amendment recommended by the Committee on Civil, Criminal, and Procedural Law and Arbitration of the State Duma of Russia to be adopted into the draft law: http://www.duma.gov.ru/systems/law/?number=953369-6andsort=date

16 See an interview with Krasheninnikov: “Pavel Krasheninnikov: o shlepkakh i detiakh chinovnikov” [Pavel Krasheninnikov: On Spanking and Children of Officials], Veved, October 14, 2016, http://veved.ru/press/79139-pavel-krasheninnikov-o-shlepkax-i-detyax-chinovnikov.html. Also see, for example, how law professor and senator Andrei Klishas presented and explained the amendments during the Federation Council hearing: https://www.youtube.com/watch?v=pKdvyI8Nmgc.

17 See the explanatory letter accompanying draft law # 26265-7 (poiasnitelnaia zapiska) at http://www.duma.gov.ru/systems/law/?number=26265-7andsort=date.

18 The legislative package can be found at http://sozd.parlament.gov.ru/bill/26265-7.

19 See, for example, Parents All-Russian Resistance at https://rvs.su/.

20 See, for example, Mizulina’s interview, “‘Administrativnogo kodeksa dostatochno’: Mizulina rasskazala RT o dekriminalizatsii poboev’” [“Administrative Liability is Enough,” Mizulina Told RT about the Decriminalization of Poboi], RT, February 2, 2017, https://russian.rt.com/russia/article/355471-mizulina-intervu-zakon-shlepki.

21 See, for example, Mizulina’s speech to the Duma: “Mizulina: Poboi—eto nasilie bez vreda zdorov’iu i dazhe nasilie bez nasiliia” [Mizulina: Beating is Violence without Harm to Health and Even Violence without Violence], GordonUA, https://gordonua.com/news/worldnews/mizulina-poboi-eto-nasilie-bez-vreda-zdorovyu-i-dazhe-nasilie-bez-nasiliya-168999.html.

22 See, for example, Vladimir Laktanov, “Sovet Evropy pytaetsia razrushit’ rossiiskie sem’i” [European Council Wants to Destroy Russian Families], https://rusplt.ru/society/sovet-evropyi-pyitaetsya-razrushit-rossiyskie-semi-22671.html.

23 See, for example, a discussion at “Dekriminalizatsiia poboev—protiv IuIu i ‘profilaktiki semeino-bytovogo nasiliia’—2 (prodolzhenie)” [Decriminalization of Poboi—Against JJ and “Prevention of Domestic Violence” - 2 (Continued)], RVS, May 5, 2016, https://rvs.su/statia/dekriminalizaciya-poboev-protiv-yuyu-i-profilaktiki-semeyno-bytovogo-nasiliya-2-prodolzhenie.

24 Cited from the website of Consortium of Women’s Rights Organizations, http://wcons.net/materialy-i-publikacii/gendernye-issledovaniya/oficialnaya-statistika-mvd-rossii.

25 See, for example, “‘Shlepki Mizulinoi’: k chemu privedet dekriminalizatsiia nasiliia v sem’e” [‘Mizulina’s Slaps’: What Will the Decriminalization of Domestic Violence Lead To?”] RBK, January 25, 2017, http://www.rbc.ru/politics/25/01/2017/588727459a7947bde03fca37.

26 See, for example, data from a 2016 report by the Legal Initiative, “Otchet Proekta ‘Pravovaia initsiativa,’ po teme ‘Nasilie v otnoshenii zhenshchin v Rossiiskoi Federatsii” [Legal Initiative Project Report on Violence Against Women in the Russian Federation], https://www.srji.org/resources/search/otchet-pravovoy-initsiativy-po-teme-nasilie-v-otnoshenii-zhenshchin-v-rossiyskoy-federatsii/.

27 Higher numbers are reported on the website of Consortium of Women’s Rights Organizations, http://wcons.net/materialy-i-publikacii/gendernye-issledovaniya/oficialnaya-statistika-mvd-rossii.

28 The two cases most frequently discussed are the case of the Khachaturian sisters, who killed their father, alleging both sexual and physical abuse over the years, and the case of Rita Gracheva, whose husband cut off both her hands after kidnapping her.

29 For more detail, see Levada Center, “Domashnee nasilie” [Domestic Violence], September 13, 2019, https://www.levada.ru/2019/09/13/domashnee-nasilie/.

30 Of 67 original interviews, 36 were used for this study. The remaining interviewees either did not offer enough detail on the prosecution of GBV or did not want to provide information beyond an official narrative.

31 The best way to explore whether the “inconvenience of poboi” was a reason for the decriminalization would be to interview those high-ranking actors from MVD and other representatives of power ministries who lobbied directly for this new policy. Practically speaking, however, this an impossible task in modern Russia. Given that, the next best thing is to explore the day-to-day operation of the system and make the assumption that the system’s persistent and systematic inability to process poboi pushed high-ranking MVD officials to amend the statutes.

32 Interview PO#1.

33 Interview PO#4.

34 Article 20 of the Criminal Procedural Code of Russia.

35 Interview PO#7.

36 Interview PO#12.

37 Interview PO#2.

38 Interview PO#4.

39 Interview J#3.

40 Interview J#1.

41 Interview J#4.

42 Interview J#1.

43 Interview J#2.

44 Interview J#1.

45 Interview J#3.

46 Interview J#4.

47 Interview J#1.

48 Interview J#4.

49 Interview J#5.

50 Interview J#1. Officially, a justice of the peace’s salary does not depend on the chair of the court. However, in some interviews the justices alleged that there are “bonuses” available from additional funds that the chair can use at her discretion. This notion is outside the scope of this article and I did not investigate it further to allow interviews to flow more easily.

51 Interview J#4.

52 Interview J#2.

53 Interview J#4.

54 Interview PO#11.

55 Interview DL#12.

56 Interview DL#4.

57 Interview DL#11.

58 Interview CCE#1.

59 Interview DL#15.

60 Interview CCE#3.

61 Interview DL#4.

62 Interview VA#3.

63 Interview DL#7.

64 Interview DL#15.

65 Interview DL#2.

66 Interview DL#10.

67 Interview PO#14.

68 Interview PO#2.

69 Interview J#3.

70 Interview PO#16.

71 Interview PO#3.

72 Interview PO#6.

73 Interview PO#18.

74 Interview J#4.

75 Interview J#1.

76 Interview J#3.

77 Interview J#2.

78 Interview DL#15.

79 Interview DL#12.

80 Interview DL#6.

81 Interview DL#14.

82 Interview DL#5.

83 Interview DL#3.

84 Interview DL#16.

85 Interview DL#17.

86 8,700 women died in 2010 compared to 8,300 in 2018; 10,000 women suffered serious injury in 2010 compared to 11,400 in 2018.

87 11,640 women suffered spousal violence in 2012, compared to 27,256 in 2016 and 12,516 in 2018. In contrast, 24,231 women were victims of violent crimes in general in 2012 compared to 23,518 in 2018.

88 Interview PO#9.

89 The numeric code used for violent crimes committed against the members of family on the form for statistical reports (Chislo prestuplenyi soprazhennykh s nasilstvennymi deistviyami v otnoshenii chlena semyi).

90 Interview PO#17.

91 See, for example, the case of Rita Gracheva, whose husband cut off both her hands after torturing her in the woods: “Margarite Grachevoi, kotoroi muzh otrubil kisti ruk, sdelali bionicheskii protez. Ona smozhet rabotat’ za komp’iuterom” [A Bionic Prosthesis Has Been Made for Margarita Gracheva, Whose Husband Chopped Off Her Hands. She Will Be Able to Work at a Computer]. Meduza, March 22, 2018. https://meduza.io/feature/2018/03/22/margarite-grachevoy-kotoroy-muzh-otrubil-kisti-ruk-sdelali-bionicheskiy-protez-ona-smozhet-rabotat-za-kompyuterom.

92 Interview DL#19.

93 Interview DL#13.

94 Interview PO#19.

95 Interview PO#19; PO#17.

Taxes, Banking, and Legal Development in Russia:

Lessons about Institutional Complementarities and the Rule of Law

Jordan Gans-Morse

Northwestern University

Abstract: A significant challenge faced by rule-of-law reformers is that newly created legal institutions frequently remain divorced from the de facto rules governing economic transactions. Firms instead rely on informal, and sometimes illegal, means of enforcing contracts, protecting property, and resolving disputes. This article proposes that one key to overcoming the chasm between formal legal institutions and on-the-ground practices is to adopt a broader understanding of legal development. In many cases, developments in spheres that are only indirectly related to formal legal institutions may be equally important, particularly if these developments either (1) increase the costs of illicit alternatives to reliance on law or (2) reduce barriers to firms’ use of formal legal institutions. This article illustrates the argument with two key examples in post-Soviet Russia: banking sector development and improved tax compliance.

Over the past three decades, a near consensus has emerged among legal scholars, social scientists, and policymakers regarding the importance of the rule of law—secure property rights, in particular—to stimulating and sustaining economic growth (see, for example, North 1981; Knack and Keefer 1995; Posner 1998; Acemoglu et al. 2001; Dam 2007). During this period, the international development community has dedicated vast sums of money to rule-of-law promotion, including nearly $3 billion in the 1990s and early 2000s from the World Bank alone (Trubek 2006, 74). Regimes that are not reliant on international aid or advice, including authoritarian regimes such as China and Singapore, have likewise recognized the significance of property rights, creating homegrown programs for promoting certain aspects the rule of law, particularly those needed to sustain economic relations (Peerenboom 2002; Rajah 2012). Yet despite colossal efforts, legal development projects have produced strikingly few success stories (Carothers 1998; Davis and Trebilcock 2008).

One significant challenge reformers face is that newly created legal institutions frequently remain divorced from the de facto rules governing economic transactions, particularly when institutions have been transplanted from abroad (Berkowitz et al. 2003). Firms instead rely on informal, and sometimes illegal, means of enforcing contracts, protecting property, and resolving disputes. In the most extreme cases, firms utilize the services of criminal protection rackets. In other cases, firms utilize illicit connections with state officials, a strategy that can corrupt formal legal institutions such as courts, law enforcement agencies, and specialized regulatory bodies.1

This article proposes that one key to overcoming the chasm between formal legal institutions and on-the-ground practices in many post-communist and developing countries is to adopt a broader understanding of legal development projects. Such projects usually focus on improvements to the judiciary, law enforcement agencies, the penal system, and the legal profession (see, for example, Carothers 1998; Daniels and Trebilcock 2004). These types of developments are undeniably critical for improving the effectiveness of legal institutions. But in many cases developments in spheres that are only indirectly related to formal legal institutions may be equally important, particularly if these reforms either (1) increase the costs of illicit alternatives to reliance on law or (2) reduce barriers to firms’ use of formal legal institutions. The two examples examined here concern banking sector development and improved tax compliance.2

Banking sector development reduces firms’ reliance on cash transactions. As firms increasingly conduct transactions through banks, it becomes more complicated and expensive to maintain off-the-books cash, a critical component of many corrupt or illicit practices. Meanwhile, when firms are unwilling or unable to fulfill their tax obligations, they hesitate to use formal legal institutions out of fear that their own legal violations will be exposed. Improved tax compliance can therefore stimulate firms’ use of law.

To illustrate the relationships between banking sector development, tax compliance, firms’ use of formal legal institutions, and legal development more broadly, this article analyzes the case of post-Soviet Russia. Russia may seem like a surprising case for such analysis, particularly given many observers’ disproportionate attention to high-profile property rights disputes, usually involving major business tycoons and powerful state officials. Yet drawing on interviews with Russian firms, lawyers, and private security agencies, as well as an original survey of Russian enterprises, I demonstrate that following a turbulent decade in the 1990s, many of Russia’s understudied non-oligarchic firms reduced their reliance on criminal protection rackets or corrupt connections to state officials in favor of formal legal institutions. To be clear, this is not a claim that the rule of law—frequently defined as “a system in which laws are public knowledge, are clear in meaning, and apply equally to everyone” (Carothers 1998, 96)—has emerged in Russia. Though many run-of-the-mill court cases are conducted impartially, it is well-documented that in politicized cases, particularly high-profile cases in which powerful state actors have an interest, all are not equal before the law (Hendley 2009, 2011). Moreover, firms continue to face substantial threats to their property rights from predatory state officials (Gans-Morse 2012; Markus 2015).3 But the development of a more full-fledged rule of law clearly is infeasible when firms prefer to rely on private coercion or corruption rather than on law, leading everyday practices to diverge sharply from the formal rules of the game. The evolution of Russian firms’ strategies for enforcing contracts, protecting property, and resolving disputes is therefore significant and worthy of attention. Moreover, the fact that such evolution has occurred in an environment usually considered hostile to the rule of law indicates that insights drawn from the Russian case should be of value for a range of post-communist and developing countries. What works in Russia will arguably be even more effective in more benign environments.

In the Russian context, however, reformers did not intentionally or explicitly develop a strategy linking banking development, tax compliance, and law. The Russian government did make efforts to directly increase the state’s legal capacity, particularly in the early 2000s, including improved procedural codes, better funding of court administrations, and increased salaries for judges. But as argued elsewhere, these reform efforts were at best a partial success; neither improved legal institutions nor firms’ rising fear of the state’s coercive capacities can adequately account for Russian enterprises’ evolving reliance on law (Gans-Morse 2017a, 345-347; Gans-Morse 2017b, ch. 4). Moreover, to the extent that the state played a role in improved tax compliance or banking sector development, it was pursuing aims unrelated to the legal sector, such as revenue generation. Some policies in the sphere of taxation, such as overly aggressive auditing or the imprisonment of the oligarch Mikhail Khodorkovsky for tax evasion and other economic crimes, were arguably at odds with the development of the rule of law.

The critical point is not, therefore, that the Russian experience illustrates a successful reform plan or strategy, but rather that the Russian case offers intriguing evidence of the complementarities between the spheres of taxation, banking, and law. As discussed in the article’s concluding section, a focus on these complementarities may allow domestic reform coalitions and international agencies promoting the rule of law in other contexts to intentionally leverage these linkages across institutional spheres, particularly when direct reforms of the legal sector are technically infeasible or politically untenable.

The next section of this article provides an overview of the changes in Russian firms’ strategies for securing property. This is followed by analysis of banking sector development and the evolution of firms’ tax compliance in Russia, using qualitative analysis to trace the mechanisms through which changes in these institutional spheres encouraged firms’ use of law. Quantitative analyses are then employed to demonstrate the associations between tax compliance, reliance on cash transactions, and firms’ willingness to utilize to formal legal institutions.

Formal Institutions and Everyday Practices: Divergence and Convergence

The Russian case illustrates both how on-the-ground practices can diverge from formal rules and how this emerging chasm can subsequently be bridged (at least to a significant extent). In the chaotic aftermath of the Soviet state’s collapse, the formal legal system—which had to be fundamentally retooled to serve a market rather than a socialist economy—was in disarray. But institutional reforms proceeded quickly. By the 1990s, Russia had legislation in place on joint-stock companies, securities markets, and bankruptcy; a new Civil Code; and a new system of commercial courts. This institutional development drew praise from observers. Hendley (1997, 236), for example, concluded that “For the most part, the legal infrastructure needed for a market economy has been created—at least on paper. Relatively stable rules exist by which citizens can order their behavior, and institutions have been created that are charged with enforcing those rules. Taken as a whole, the accomplishment is impressive.” Yet Hendley (1997, 246) also offered a strong caveat to this complimentary assessment, warning that Russia’s “excellent legal system on paper” was at risk of remaining “largely irrelevant for business” given firms’ reluctance to utilize the emerging system of courts. Pistor (1996, 87) drew similar conclusions about the unwillingness of firms to turn to formal legal institutions: “In Russia, the early institutional changes aimed at providing a court system for handling commercial disputes have so far proved to be largely ineffective. The main reasons for this appear to lie less in the inefficiency of the system than in the lack of demand for the services that it offers.” As a result, the formal rules and Russian firms’ everyday practices for enforcing contracts and protecting property diverged.

Instead of formal legal institutions, Russian firms during the early 1990s relied in part on informal practices—based on social norms, social networks, and repeated interactions—to avoid or resolve business disputes. These strategies comfortably coexist with, and may even complement, formal legal institutions in economies throughout the world (see discussion in Frye 2017, ch. 5). But firms also came to rely extensively on violence and corruption, which are much more likely to undermine the effectiveness of the formal legal system. Criminal protection rackets offered entrepreneurs protection against other criminals or unprincipled competitors, a service referred to as providing a “roof” (krysha), and frequently aided in contract enforcement, debt collection, vetting of business partners, and arbitration of business disputes (Skoblikov 2001; Volkov 2002). Estimates by Russian law enforcement suggested that in the early 1990s up to three-fourths of Russian businesses paid protection money (Webster 1997, 2–3). Such estimates are difficult to verify and should be treated with caution, but rigorous research conducted in the mid-to-late 1990s also found substantial evidence of criminal rackets’ influence, particularly among smaller firms. In a 1996 survey of 230 small retail shops in Moscow, Ulyanovsk, and Smolensk, Frye and Zhuravskaya (2000) reported that over 40 percent of respondents recounted having contact with a criminal group in the last six months, while Radaev’s (1999, 36-40) 1997 survey of 221 enterprises across 21 Russian regions found that approximately two in five respondents reported personally experiencing violent extortion or threats of physical coercion “sometimes” or “often.” During this period, private security agencies also proliferated, offering similar services, many of dubious legality, to those provided by criminal rackets. Already by 1993 there existed approximately 5,000 officially registered private security agencies, and this figure grew to around 30,000 by the late 2000s (Volkov 2002, 138; Gans-Morse 2017b, 48). Larger firms created internal security services, which the journalist David Hoffman (1997) colorfully described as “private armies of security agents, bodyguards and commercial spies.”

In addition to criminal rackets and private security agencies, Russian firms in the 1990s turned to corrupt law enforcement officers and other state officials. Law enforcement protection rackets utilized their access to state resources for private gain, offering many of the same services as criminal protection rackets, including debt collection, contract enforcement, and adjudication of disputes. The services of rackets run by the Ministry of Internal Affairs (MVD) State Directorate for the Struggle with Organized Crime (GUBOP) and its regional branches (RUBOPs), as well as FSB (the KGB successor) units devoted to economic and organized crime, were in particularly high demand (Sborov 2003; Pravotorov 2006).4 But less powerful state actors also played an important role in the provision of security services, with some estimates indicating that approximately 30 percent of MVD personnel offered kryshas of various forms (Webster 1997, 30). By the late 1990s, firms were far more reliant on state officials, or on private security agencies with ties to the state, than on criminal rackets for protection services, with observers suggesting that criminal elements’ share of the private security market had fallen to under 20 percent (Khodorych 2002; Volkov 2002, 169–179; Sborov 2003; Taylor 2007, 45). Internal cables from the US Embassy in Moscow to the State Department in Washington summarized the shift as follows: “Moscow business owners understand that it is best to get protection from the MVD and FSB (rather than organized crime groups) since they not only have more guns, resources and power than criminal groups, but they are also protected by the law. For this reason, protection from criminal gangs is no longer so high in demand” (Chivers 2010).

There were, however, signs of significant changes in Russian firms’ practices for enforcing contracts and securing property by the late 1990s. Over time, these would allow for a degree of convergence between everyday conflict resolution practices and the formal rules governing economic transactions. In particular, substantial evidence points to a shift away from reliance on outright physical coercion. Matveeva’s (2007, 86) sociological analysis of business conflicts in Russia’s Central Federal District identified a noteworthy decline in the number of businesspeople murdered in the course of conducting business on an annual basis, from 213 in 1997 to 33 in 2005. More broadly, journalists and Russian security experts reported a drop in contract killings by the early-to-mid-1990s. These sources additionally note that many of the contract killings that persisted into the 2000s were not the direct result of business conflicts but instead targeted journalists and human rights activists (Skvortsova 2000; Kommersant 2008; Krylov et al. 2008; Ram 2009). Survey and interview data also showed firms’ encounters with criminal rackets to be decreasing during this period. In contrast to the 40 percent of respondents who recounted having had recent contact with rackets in the 1996 survey conducted in Moscow, Ulyanovsk, and Smolensk by Frye and Zhuravskaya (2000), less than 25 percent of small shops in a 1998 survey conducted in the same three cities reported such encounters (Frye 2002). In line with these data, a co-founder of a prominent Moscow-based private security agency and former Ministry of Internal Affairs agent reported that by the mid-1990s “criminal groups were disappearing to such an extent that they were becoming simply something exotic.” Almost wistfully, he added that “If a client came to us and said that some bandity from the street had tried to extort him, well, this was for us something exciting. [It gave us a] sort of nostalgia for the old days” (Security 5, interview, 2009). These trends continued, and by 2010 the survey I conducted of 301 firms from eight Russian cities found that less than 8 percent of 105 small businesses in the sample (and less than 4 percent of the overall sample) reported contact with criminal protection rackets in the previous three years.5 Similarly, less than 5 percent of respondents said that they or their employees had “sometimes” or “often” been subjected to threats or physical coercion.6

The shift away from violence was also evident in the private security sector. By the late 2000s, security agencies differed little from their Western counterparts, with experts estimating that provision of basic physical security of buildings, cargo, and business executives accounted for 70 percent of the sector’s revenues, with the remainder consisting of information security, legal services, and the installation of cameras and alarms.7 As the security concerns of Russian businesspeople evolved, the notion of “economic security” (ekonomicheskaia bezopasnost) came to be understood as responses to new and complex threats such as computer virus attacks by competitors or semi-legal raids utilizing complicated legal schemes to acquire assets. Firms specializing in economic security came to rely on lawyers, accountants, IT specialists, and former law enforcement officials rather than on violence and force to counter these emerging challenges. This is not to say that illicit practices were fully squeezed out of the private security market. Well into the 2000s, many security providers with ties to the state, or state officials themselves, continued to utilize state resources in questionable ways. My 2010 survey, for example, distinguished between the licit and illicit use of state coercion by asking respondents not only about the extent to which they relied on law enforcement agencies and state officials (e.g., inspectors, regulators, and other bureaucrats) but also whether they sought support from those officials in an official capacity or in an unofficial private capacity.8 Approximately 20 and 17 percent of firms reported using bureaucrats and law enforcement agencies, respectively, in an “unofficial capacity” to address a security issue in the previous three years. Yet despite the risk of these practices subverting state institutions, observers of the Russian business world often perceived them to be an improvement over the extraordinary violence of the 1990s. In the words of one Russian journalist, “the classic krysha is irreversibly becoming a thing of the past. These days, ‘protection’ of businesses appears to be more civilized” (Pravotorov 2006).

As violence was declining and security agencies and state officials were replacing criminal elements in the private security market, Russian firms also increasingly came to rely on formal legal institutions. The number of cases firms initiated in Russia’s commercial courts quintupled between 1994 and 2010, rising from around to 200,000 to over a million (see Figure 1).9 Pioneering survey research by Hendley et al. (2000) found that reliance on the commercial courts was already increasing by the

Figure 1. Annual Number of Cases Initiated by Firms in Russia’s Commercial Courts, 1992–2018

Note: Figure 1 excludes administrative cases initiated by government authorities. Data are from reports of the Judicial Department of the Verkhovnyi sud of the RF (Russian Supreme Court) and the Vysshyi arbitrazhnyi sud (VAS) (High commercial court), the latter of which was disbanded as an independent entity in 2014. These are entitled Svodnyi otchet o rabote arbitrazhnykh sudov subektov RF (Summary report on the work of the commercial courts), Spravka osnovnykh pokazatelei raboty arbitrazhnykh sudov RF (Information on the basic indicators of the work of the commercial courts), Svedeniia o rassmotrennykh sporakh s uchastiyem nalogovykh organov (Report on cases with the participation of the tax authorities), and Spravka o rassmotrenii arbitrazhnimi sudami RF del, voznikayushchykh iz administravnykh pravootnoshenii (Information about cases arising from administrative law considered by the commercial courts). Data from 2014-2018 are available at www.cdep.ru; from 2001-2013, at www.arbitr.ru. Earlier data were obtained directly from the VAS.

mid-1990s, and a number of subsequent surveys showed that in the mid-2000s Russian firms utilized formal legal institutions extensively, with around one-third of smaller firms and two-thirds of larger firms reporting having had litigation experience (Johnson et al. 2002; Yakovlev et al. 2004, 69; Yakovlev 2008; Rimskii 2009, Table 2.1). Particularly noteworthy was firms’ growing willingness to use legal remedies even in disputes with state authorities, something that firms in many countries seek to avoid out of fear of retribution by state officials or due to a lack of faith that state-appointed judges will rule impartially in cases involving the state (see discussion in Hendley 2002, 144-145). For example, between 2000 and 2008, cases against the tax authorities increased 280 percent. Litigation against state agencies in general represented nearly 20 percent of all cases initiated by firms by 2009, as can again be seen in Figure 1 (see also Trochev 2012).10

To be sure, rising caseloads can result from a growing number of disputes rather than increased willingness to turn to legal institutions, but survey data suggest this was not the case. Yakovlev (2008), for example, found that between 2000 and 2007, there was a decline in the extent of legal violations reported by firms. Meanwhile, in the 2010 survey I conducted, 54 percent of respondents reported that compared to 10 years earlier, they would be more willing or significantly more willing to turn to courts in response to violations of their legal rights; only 6 percent of respondents indicated that their willingness had declined. (Thirty-three percent of respondents said that their willingness to use the courts remained unchanged, and 7 percent were unsure.) Finally, a comparison of firms’ responses to the 1998 and 2008-2009 financial crises offers an additional indicator of firms’ increased willingness to use courts. As can be seen in Figure 1, inter-enterprise cases skyrocketed during the more recent crisis as firms flooded the court system with nonpayment disputes. There is no evidence of a similar rise in court usage during the 1998 crisis, suggesting that firms relied instead on extra-legal forms of dispute resolution.

Most business disputes, of course, do not end up in court, meaning that litigation rates attest to only a portion of the actual increase in reliance on lawyers and law (Hendley 2001). But many other indicators offer broader evidence that law has come to play an increasingly important role in the Russian business world. First, from the late 1990s through the 2000s the number of Russian lawyers increased, indicating a perceived demand for the profession (Hendley 2006, 364). The number of advokaty, the only lawyers in Russia for which a unified bar membership exists, more than doubled between 1996 and 2010, from 26,300 to 63,740.11 The growing role of lawyers can also be seen in the increased size of legal departments. In Hendley et al.’s survey conducted in 1997, legal departments ranged in size from 1 to 17 lawyers, with a mean of 2.5. The study further suggested that these legal departments remained largely unreformed from the Soviet period, continuing to play a routine and insignificant role in Russian business practices (Hendley et al. 2001, 690, 693). In my 2010 survey, by contrast, firms reported much larger legal divisions—the size of legal departments in my survey ranged from 1 to 80 lawyers, with a mean of around 6—despite the average firm in my sample being smaller than in the Hendley et al. sample.12 Firms with dozens of in-house lawyers presumably consider legal resources to be valuable assets. Second, firms’ reliance on law beyond the state-provided court system can be seen in firms’ increasing use of private arbitration. Private arbitration in Russia does not directly involve state actors, but it functions in part because firms can turn to the commercial courts to enforce arbitration decisions. Although there is no unified source of data on private arbitration courts, data from individual courts suggest that demand for private arbitration—although still low—rose in the 2000s, particularly during the economic crisis of 2009. In some cases, this growth was significant: the Federal Court of Private Arbitration (Federalnyi treteiskii sud) heard 72 cases in 2008, 364 cases in 2009, and 956 cases in 2010 (Gans-Morse 2017b, 63). Meanwhile, the number of cases from private arbitration that were disputed or for which enforcement was sought via the official commercial court system cases increased sevenfold between 2002 and 2010, from 672 to 4,054, and then doubled to over 8,000 by 2015.13

Third, interviews with lawyers point to notable changes in the legal profession and its role in business. As one of Russia’s top tax lawyers recalled, demand for his services skyrocketed in the late 2000s, whereas in the 1990s his “main problem was not winning, but convincing businesspeople that it was worth going to court” (Lawyer 21, interview, 2009). According to a prominent bankruptcy lawyer in Moscow, one of the reasons for this hesitancy was that “lawyers here are part of a very young profession. In the 1990s businesspeople thought of them as con-men (moshenniki).” Over time, he explained, the “image of lawyers more broadly has changed. They are like advisors now, not only for legal stuff but more generally in business” (Lawyer 3, interview, 2009). And when asked about the extent to which firms now use the court system, a lawyer from the Siberian town of Barnaul observed that “people have more or less come to resolve disputes in a civilized way, by going to court.” Indeed, he noted that the courts are so packed with litigants that “it is now impossible to move through the corridors of a courthouse” (Lawyer 22, interview, 2009).

A final source of evidence regarding the evolution of firms’ strategies for resolving disputes pertains to firms’ evaluation of their relative use of various strategies. Hendley et al.’s (2000, 635–636) study, based on a 1997 survey, found that even in the late 1990s firms considered courts to be relatively appealing compared to other approaches to resolving disputes. Other than direct enterprise-to-enterprise formal negotiations, turning to the courts was the most frequently used approach to addressing contractual problems with suppliers. Likewise, with the exception of stopping trade with a customer, litigation was the most common approach to dealing with customer conflicts. Yakovlev et al. (2004, 70) found similar results in a 2002 survey of open joint stock companies. For over half of the respondents, turning to the courts was their preferred method of dispute resolution.

My survey indicates that these trends toward reliance on formal legal institutions and law continued throughout the 2000s, as shown in Table 1. Respondents to the 2010 survey were asked to indicate, on a scale from 1 to 7, how likely a firm like theirs would be to utilize various strategies to resolve an asset dispute (with 7 representing “very likely” and 1 representing “very unlikely”). The highest-ranking strategies were the use of lawyers to resolve the conflict out of court (average ranking 6.0) and filing a claim in the commercial courts (5.7). These ranked higher than direct negotiations with the other firm’s management (5.3), even though negotiations are often considered to be the first step in resolving a conflict and were ranked at the top of firms’ preferred strategies in previous survey research (Hendley et al. 2000; Yakovlev et al. 2004). By contrast, the average rankings for the likelihood of turning to a private security firm or criminal protection racket were 2.3 and 1.9, respectively, while strategies involving the corrupt use of state resources ranked somewhere in between. Results were nearly identical for a similar question that examined firms’ preferred approaches to addressing a nonpayment conflict, as opposed to resolving an asset conflict.

Overall, data from surveys, interviews, caseloads, and other sources all offer evidence of a significant evolution in firms’ strategies for enforcing contracts, protecting property, and resolving disputes, with firms’ everyday practices converging with formal rules of the game over time as they came to utilize formal legal institutions. The following sections analyze how changes in the spheres of taxation and banking influenced these developments in the legal sphere. But before turning to this analysis, several issues deserve attention.

Table 1. Russian Firms’ Preferred Responses to Nonpayment and Property Disputes

First, as in research on any sensitive topic, an important concern is whether the trends discussed above reflect social desirability bias or respondents’ imperfect recall. However, the similar findings from multiple sources and types of data—as well as the magnitude of the changes reported—suggest that these concerns should not be overstated.14 In addition, businesspeople may in general face incentives to underreport, rather than overreport, reliance on the legal system, given that classic studies such as Macaulay (1963) emphasize the ways in which litigation against business partners can be a breach of social norms. Second, a reasonable question concerns the extent to which Russia firms’ use of legal institutions reflects increased bribery and reliance on judicial corruption rather than law per se. Undeniably, illicit practices persisted throughout the 2000s, with nearly 14 percent of respondents to my 2010 survey admitting to the use of “informal connections” when turning to the commercial courts.15 But scholars such as Hendley (2006, 351) have found that the extent of illicit influence in Russian courts is limited: “mundane cases are handled in accordance with the prevailing law,” even if “cases that attract the interest of those in power can be manipulated to serve their interests.” Similarly, a partner at a Moscow law firm explained that “Connections are probably needed if the case is high-profile, big or political, or if the opponent is a large company. But for middle-sized cases they are not necessary . . . .and the majority of cases are rather small . . . .” (Lawyer 6, interview, March 6, 2009). Third, it should be noted that the analysis above concerns non-oligarchic firms. Enterprises with connections to influential state officials and firms owned by powerful tycoons have consistently faced a different set of rules, many of which are based on the types of informal understandings analyzed by scholars such as Ledeneva (2013). Finally, it should be recognized that reversals of some of the trends discussed above may be underway, given the upheaval Russia has experienced in recent years due to slowing economic growth, geopolitical conflicts, and increasing confusion about the informal rules governing political and economic behavior among elites (see Barsukova 2019; Blyakher 2019). I return to these issues in the article’s concluding section.

Taxes, Banking, and Legal Development

Numerous factors affect Russian firms’ decisions about how to enforce contracts, protect property, and resolve disputes. In other works, I have developed a comprehensive explanatory framework (see Gans-Morse 2017a, 2017b), but the aim here is to more narrowly analyze the complementarities between legal development and changes in other institutional spheres, such as taxation and banking. The following sections examine each of these in turn. Qualitative analyses first trace the evolution of reliance on the formal banking system and tax compliance in post-Soviet Russia and establish the distinct mechanisms linking these to firms’ reliance on law. In particular, the analysis shows how firms’ declining use of cash transactions increased the costs of utilizing violence or corruption, making reliance on law more appealing, while increased tax compliance reduced barriers to firms’ use of formal legal institutions. Quantitative analyses then establish correlations between tax compliance, cash transactions, and firms’ choices of strategies for resolving disputes.

Banking and Reliance on Cash Transactions

The banking system that emerged following the collapse of the Soviet command economy was poorly equipped for financing and servicing a modern market economy. In the first years of transition, the number of banks skyrocketed, reaching more than 2,400 by 1994, far above the OECD average (OECD 2009, 99). But rather than serving as intermediaries between lenders and borrowers, most post-Soviet Russian banks instead functioned as corporate treasuries for financial industrial groups (FIGs) or other large companies, which in part used banks as a tool to move capital abroad or launder money. Despite the large number of banks, the system was highly consolidated, with approximately two-thirds of all banking assets belonging to just 30 banks in the late 1990s (Chowdhury 2003; Tompson 2004; OECD 2009, 99–100). Loans to enterprises without direct affiliations to banks, and particularly to smaller firms, were exceedingly rare, as can be seen in Table 2.

Not only did banks during the first post-Soviet decade fail to act as intermediaries between holders of capital and enterprises in need of financing, but they also rarely facilitated transactions. The Soviet payment system had been highly inefficient, posting payment orders by mail, but given money’s limited role in the command economy this had not been a significant impediment to Soviet enterprises’ transactions. This all changed with the emergence of a market economy. To make matters worse, banks often delayed the delivery of payments intentionally in order to profit from high inflation by holding the payment in a foreign currency (or other assets protected from rapid depreciation) before finally delivering the depreciated nominal payment, sometimes as late as several weeks after the transaction (Poser 1998, 168).

The absence of an effective banking system forced firms to rely on cash and barter transactions, a tendency exacerbated by firms’ efforts to hide transactions from tax authorities (discussed in greater detail below). At its high point, some estimates suggest that barter accounted for 50 percent of all transactions among industrial firms, and an even higher share of transactions conducted by larger firms (Tompson 1999, 259). Meanwhile, surveys found that between 25 and 30 percent of payments in the 1990s were conducted in “black cash”—off-the-books funds created through tax evasion schemes—with this cash economy especially prevalent among smaller firms (Yakovlev 2001, 47).

The 1998 financial crisis dramatically transformed the Russian financial system. More than one-third of bank assets were tied up in claims on government debt, and most of these assets were lost when the state defaulted. Meanwhile, a fifth of liabilities were held in foreign denominations that were significantly inflated following Russia’s currency devaluation. As a result, many financial institutions were unable to survive the crisis, accelerating the process of banking sector consolidation that was already underway (Barisitz 2009, 48). This consolidation, combined with unexpected economic growth in the wake of the crisis—the result first of a rise in import-substitution manufacturing and later of rising oil prices—bolstered the financial sector. By the early 2000s, capital-starved firms were seeking loans in order to maintain their rapid pace of expansion. At the same time, whereas pre-crisis banks had thrived on speculative activity based on hyperinflation, short-term bonds, and privatization auctions, these opportunities dried up following the crisis, forcing banks to turn their attention to non-speculative operations. A series of banking reforms conducted between 2003 and 2005 further contributed to the sector’s development. The government created deposit insurance, increased the capital adequacy ratio and minimum capital requirements, mandated a transition to the International Accounting Standard, developed a simplified lending system for small businesses, and amended the Law on Banks and Banking Activity and the Law on the Bank of Russia so as to improve the regulatory environment (Chowdury 2003; Tompson 2004; Barisitz 2009, 52–53).

Table 2. Loans, Deposits, and Bank Transactions, 1999-2008

As can be seen in Table 2, Russian firms recognized the growing stability and trustworthiness of the banking system and began to make bank transactions, deposit funds, and seek bank loans. Credits to non-financial enterprises as a percentage of GDP approximately doubled between 1999 and 2005; deposits as a percentage of GDP increased nearly eightfold from the end of the 1990s through the 2008-2009 recession. In the early 2000s the government also took steps to reduce tax evasion, requiring all companies to open bank accounts and mandating that all large transactions be conducted through the banking system (Yakovlev 2001, 47). As transactions through the formal financial system became more common, firms began to perceive unwillingness to conduct business via bank transactions as a sign of unscrupulousness. According to a consultant who specializes in investment in Russia’s regions, “[Firms use] only bank transactions—there is now practically no cash used. Well, comparably little is still used. [It is used] for the illicit activities that are still conducted (v gryaznie veshchi kotorye ostalis)” (Firm 15, interview, 2009). Concerns raised by firms’ avoidance of the banking system increasingly led to wariness on the part of potential business partners, providing further incentives to utilize the banking system (Firm 1, interview, 2009).

As firms became more reliant on the banking system, they became less willing to employ violence or utilize corruption due to the rising costs of undertaking illicit activities and the greater probability that such practices would be exposed. When firms were conducting nearly all transactions in cash, it was relatively easy to allocate resources to bribe government officials or pay criminal protection rackets. By contrast, when transactions are done through the banking system, they leave a paper trail. It is possible to conceal this trail through front companies, slush funds, and other related schemes, but this entails additional time, expense, and risk of getting caught (Firm 1, interview, 2009).

Additionally, the increased role of the banking system created a new layer of vetting and screening. For example, a manager at a mail-order business based in Moscow related an incident where a representative of his company who had been sent to open a bank account appeared to be concealing information, leading to a denial of his request. Within a short span of time, the firm found itself on a blacklist that complicated its opening of bank accounts throughout Moscow until the matter had been resolved (Firm 9, interview, 2009). The possibility that an unsavory reputation could reduce firms’ access to the banking system served as yet another deterrent to engagement in illicit practices.

In summary, the switch from cash to bank transactions reduced firms’ access to off-the-books cash, which forced firms engaged in illegal activity to develop creative schemes to hide the paper trail that bank transactions leave behind. As a result, the transaction costs of illicit practices for enforcing contracts or protecting property multiplied. Meanwhile, the vetting undertaken by banks before firms could receive loans or open bank accounts increased the risks associated with illegal activity. Together, these changes contributed to the shift from violence and corruption to reliance on law discussed in the preceding section.

Tax Compliance

While firms’ decreased use of cash transactions created incentives to reduce reliance on illicit activities, firms’ rising tax compliance had a complementary effect by removing barriers to firms’ use of formal legal institutions. In the wake of the Soviet Union’s collapse, a large informal economy had emerged, due in part to firms’ tax avoidance. Tax compliance had little meaning in the Soviet command economy, in which the state owned all productive assets and taxation was a means of resource allocation among enterprises and ministries rather than a tool for extracting revenue from private firms. Consequently, the concept of paying taxes was foreign to Russia’s emerging entrepreneurs, while the tax administration was underdeveloped and dependent on a narrow tax base consisting of large, recently privatized firms and the remaining state-owned enterprises (Easter 2002). The Yeltsin administration’s decision to grant regional governments the right to implement new taxes further complicated tax payment, leading to over 200 different taxes by the late 1990s, many of them implemented at the subnational level, and an aggregate tax rate nearly equivalent to 100 percent of enterprise profits (Himes and Milliet-Einbinder 1999, 170; Shleifer and Treisman 2001, 95-97, 118). In response, firms turned to schemes such as barter and underreporting of sales or wages to alleviate their tax burden (Shleifer and Treisman 2001; Yakovlev 2001).

Legal scholars quickly recognized how low levels of tax compliance could limit firms’ willingness to utilize formal legal institutions. Solomon (1997, 54), for instance, noted that “The realities of the tax system and the ways that many firms chose to cope with it (operating partly in the gray economy with two sets of financial records) had the added effect of discouraging those firms from using the courts to resolve disputes” because firms were “loathe to risk exposing their own illegal practices.” Pistor (1996, 85) offered nuanced detail of why tax violators hesitated to utilize courts, explaining that “Even where the courts themselves do not inquire into the nature of a transaction, there is a clear danger that cases will come to the attention of other state agencies, such as the Procuracy . . . [which] still enjoys broad powers to oversee the observance of legality...Tax authorities are also likely to keep an eye on any documentation revealing the volume of transactions or profits of a company.” Moreover, counterparties in a legal dispute were likely to take advantage of evidence of tax evasion, such as suspicious bookkeeping. As one Moscow lawyer explained, there is “always the risk that somebody who knows about [a company’s] ‘sins’ may whisper [to] the tax authorities,” thereby turning tax violations into “a weapon that can be used against the company” (Lawyer 8, interview, 2014).

Just as Russia’s 1998 financial crisis significantly affected the banking system, it also dramatically altered firms’ calculus regarding the costs and benefits of exiting the informal sector. Unexpected economic growth in the year following the crisis encouraged firms seeking to exploit emerging economic opportunities to formalize their operations (Dyufi 2005, 127; Valitova and Tambovtsev 2001, 9). The crisis also engendered a sense of mutual vulnerability among business tycoons and Russia’s leaders, resulting in a cooperative policymaking effort that produced long-needed tax reforms (Jones Luong and Weinthal 2004). These in turn further encouraged tax compliance by formalizing taxpayers’ rights and obligations, streamlining tax collection for social funds, and reducing tax rates (Anisimova et al. 2008a, 2008b).

From a peak of nearly 10 percent of GDP in 1998, tax arrears dropped sharply, with arrears to the consolidated state budget falling to around 5 percent of GDP by 2001 and nearly disappearing by the late 2000s (Gans-Morse 2017b, 101). In part, the fall in arrears resulted from the growing economy, but improved tax compliance also played an important role. According to the Business Environment and Enterprise Performance Surveys (BEEPS) conducted by the World Bank and European Bank for Reconstruction and Development, the percentage of respondents claiming that typical Russian firms report 90 percent or more of sales revenue for tax purposes rose from 42 percent in 1999 to 65 percent in 2005, a 23-percentage-point increase. The magnitude of change was even larger for the percentage of respondents claiming that typical firms report 100 percent of revenue, a 32-percentage-point increase (from 28 to 60 percent).16

These surveys are not panel data, and so some caution is required in interpreting these changes. Moreover, tax avoidance clearly remained a problem well into the 2000s, given that 35 percent of respondents in 2005 still indicated that a typical Russian firm reported less than 90 percent of sales revenues. Nevertheless, the magnitude of the reported change is striking, and interview evidence attests to the dramatic effect of improved tax compliance on removing barriers to firms’ use of formal legal institutions. A founding partner of a Moscow law firm explained, for example, that “There are [now] more commercial disputes between legal entities. That is, companies have switched, well, are switching, to a legal tax regime system. Accordingly, they turn to law firms, conclude civil contracts, and find protection for their contracts in the courts. Previously, everything was decided with a handshake . . . Now it’s not like this” (Lawyer 20, interview, 2009). Similarly, discussing firms’ ability to address concerns about employee theft, a prominent issue in Russia in the 2000s, another respondent emphasized that firms “have to operate legally (byt belymi), because when they catch a dishonest accountant in the act of stealing, they explain: ‘Listen, man, I pay my taxes . . . so let’s go to court.’ And they will not be afraid to go to court, because they know that their books are clean” (Firm 15, interview, 2009). In summary, Russian firms’ avoidance of taxes created a barrier to their use of formal legal institutions in the 1990s. Changes in the Russian economy and improvements in Russia’s tax administration facilitated tax compliance, removing this barrier and contributing to firms’ increased reliance on law.

Quantitative Analyses

Survey data provide further evidence of the relationships between tax compliance, reliance on cash transactions, and firms’ utilization of violence, corruption or law to resolve disputes. Ideally, panel data would allow for the tracking of individual firms over time, facilitating analysis of how changes in a firm’s tax compliance or use of the formal banking system affect its strategies. Longitudinal datasets measuring the relevant variables unfortunately do not exist, but it is nonetheless feasible to cautiously draw inferences from the cross-sectional data. If paying taxes reduces barriers to firms’ use of formal legal institutions, then firms that are more tax-compliant should be more likely to use legal institutions and less likely to rely on violence or corruption. Similarly, if cash transactions are critical for engaging in illicit strategies, then firms that rely less on cash transactions should find such practices relatively more costly and be less likely to utilize private coercion or illicit connections to state officials.

To this end, firms in the survey I conducted were asked “Approximately what percentage of total annual sales would you estimate the typical firm in your line of business reports for tax purposes?” Sixty-eight percent of those responding stated that a typical firm reports more than 90 percent of sales revenues. Similarly, respondents were asked, “Approximately what percentage of your firms’ transactions are conducted in cash?” Fifty percent of those responding reported that they conduct less than 10 percent of transactions in cash, while the other half of the sample reported using cash in more than 10 percent of transactions.17

I then reconsidered firms’ preferred approaches to responding to the hypothetical property and nonpayment disputes introduced in Table 1, in

Table 3. Tax Compliance, Cash Transactions, and Firms’ Responses to Property Conflicts (OLS Regressions)

which respondents rated on a scale from 1 to 7 the likelihood that they would use various strategies. The ratings of firms’ propensity to use strategies serve as the dependent variables for the analyses in Tables 3 and 4, which utilize OLS regressions to examine the hypotheses that firms with high levels of tax compliance and low levels of cash transactions are more likely to utilize law and less likely to utilize violence or corruption. (Analyses using ordered logit regressions produce similar results.) All regressions control for firm age, size (measured in number of employees), financial health, sector, city of location, and ownership structure (i.e., whether or not the firm has foreign or government shareholders); the respondent’s age, gender, job description, and education; and whether the respondent’s firm has recently been involved in disputes or litigation. Summary statistics for all control variables are provided in Section 2.2 of the Online Appendix.

Coefficients on the Tax Complier variable represent the difference between the average responses of firms reporting more than 90 percent of sales revenue for tax purposes and firms reporting less than 90 percent, while coefficients on the Low Cash variable represent the difference between the average responses of firms conducting less than 10 percent of transactions in cash and firms conducting more than 10 percent, holding other factors constant. In accordance with the claim that tax-paying firms and firms that rely less on cash transactions are less likely to utilize private coercion, all coefficients in Panel A in Tables 3 and 4 are negative. Most notably, tax-paying firms rate their likeliness of turning to criminal rackets to resolve a property dispute more than 0.8 points lower than those that do not pay their taxes, and they are approximately 0.7 points less likely to use rackets to resolve a nonpayment dispute, results that are statistically significant at the 1 percent level. Firms that rely less on cash transactions rate their likelihood of employing rackets to resolve a property dispute 0.3 points lower, and of resolving a nonpayment dispute nearly 0.5 points lower, although only the latter is statistically significant.

Results are most robust for responses involving the illicit use of state resources, as shown in Panel B of Tables 3 and 4. Both tax-paying firms and low-cash firms rate their likelihood of turning to courts while using informal connections and seeking the help of law enforcement or other state officials in an unofficial capacity between 0.6 and 1.3 points lower than firms with lower tax compliance and higher reliance on cash transactions. All results in Panel B in both tables are statistically significant at least at the 10 percent level, and in many analyses at the 5 percent, 1 percent or 0.1 percent level.

Finally, in line with the above analysis about how tax compliance removes barriers to firms’ use of formal legal institutions, Panel C shows that firms reporting more than 90 percent of sales for tax purposes rate their likelihood of turning to courts (without reliance on informal connections) to resolve property or nonpayment disputes around 0.6 points higher than firms with lower levels of tax compliance, a result that is statistically significant at the 5 percent level. Tax compliers also express more willingness to use lawyers to resolve property disputes—though not nonpayment disputes—out of court. Reliance on cash transactions is not correlated with propensity to utilize lawyers and courts, but this is not entirely surprising given that, as discussed above, the reduced reliance on cash transactions most directly affects firms’ costs of employing illicit practices.

Although the cross-sectional nature of these analyses limits what can be inferred, particularly with respect to the direction of causality, the results are consistent with the qualitative evidence from the preceding section demonstrating how firms’ evolving practices for resolving business disputes resulted from improved tax compliance and reduced reliance on cash transactions. More broadly, the quantitative analyses clearly establish the complementary nature of taxation, banking-sector, and legal development. The final section turns to the broader implications of these findings.

Table 4. Tax Compliance, Cash Transactions, and Firms’ Responses to Nonpayment Conflicts (OLS Regressions)

Discussion

This article has offered evidence of a significant divergence between Russian firms’ everyday practices for enforcing contracts, securing property, and resolving disputes and the rules of the game envisioned when formal legal institutions were created in the early 1990s. But over time, de facto practices converged to a significant extent as firms turned away from violence and corruption and increased their reliance on law. Development of the banking sector and rising tax compliance contributed to this shift. The former raised the transaction costs of illicit practices, while the latter reduced the barriers to the use of formal legal institutions faced by tax-avoiding firms.

Whether the convergence of on-the-ground practices and formal rules of the game will continue remains to be seen. Since Russia’s 2014 annexation of Crimea, the Russian economy has been buffeted by international sanctions. Low oil prices have also exacerbated Russia’s economic hardships. By some accounts, Russian firms, particularly in regions such as the Far East, have responded to these challenges by again moving operations into the informal economy, both to cut costs and to avoid extortion by predatory state officials (Blyakher 2019). Additionally, in recent years, state-owned enterprises have proliferated, shrinking the private sector’s relative share of the economy (Meriminskaya 2016). If such trends persist, it is possible that barriers to firms’ reliance on formal legal institutions will reemerge.

But from a broader perspective, the complementarities between taxation, banking, and legal development examined here offer lessons for rule-of-law reformers in other contexts. The developments traced in this article, to be sure, were not the result of a blueprint by Russian reformers or international agencies. The 1998 financial crisis, for example, played an unexpectedly beneficial role, transforming Russian firms’ practices in ways few analysts or policymakers could have foreseen. Yet the analysis here suggests that in other settings, reformers should consider the ways in which promoting banking-sector development and improving tax compliance can contribute to legal development. Reforms focused directly on improving the effectiveness of the judiciary, law enforcement agencies, the penal system, and the legal profession are undoubtedly of great importance, but their effects will be limited if firms face strong incentives to avoid formal legal institutions. Moreover, for international agencies seeking to support legal development, efforts to directly influence legal systems may prove politically sensitive. By contrast, a focus on tax administration reform that facilitates tax compliance has the added political benefit of increasing state revenues, while a focus on banking sector development may be politically palatable if packaged as a means of stimulating economic growth.

The convergence of everyday actors’ de facto practices and the formal rules governing economic transactions is, of course, not equivalent to the establishment of the rule of law. But it is an important prerequisite to the type of legal development often envisioned by rule-of-law reformers. Thinking more holistically about legal development may allow reformers to leverage linkages across institutional spheres, thereby making formal legal institutions more accessible to individuals and firms, as well as more appealing compared to extralegal alternatives.

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1 Scholars have recognized the central role of informal practices in even the most developed of economies since at least the seminal work of Macaulay (1963). But the illegal strategies addressed in this article differ from the informal strategies examined in the relational contracting and private ordering literature. Informal strategies such as reliance on informal norms, repeated interactions, or private arbitration coexist comfortably with formal institutions; illegal strategies involving violence or corruption do not.

2 To be sure, tax administration reform often is included on lists of rule-of-law reforms, but the stated purpose of these reforms is to generate the revenue needed to build legal capacity, a complementary yet distinct goal from the issues discussed in this article (Daniels and Trebilcock 2004, 117).

3 It is also clear that Russian state officials regularly abuse the legal system to repress political opponents and civil society activists (Fish 2005; McFaul and Stoner-Weiss 2008).

4 Though illegal, some GUBOP leaders perceived these services not simply as a means of acquiring personal profit but as a necessary means of financing their units—including the purchase of cars, equipment, and subsidized meals for personnel—in the face of a state revenue crisis (Sborov 2003; Pravotorov 2006).

5 The survey was conducted in Moscow, St. Petersburg, Ekaterinburg, Nizhnyi Novgorod, Samara, Novosibirsk, Rostov-on-Don, and Kazan. The sample included both industrial and service firms and ranged in size from firms with under five employees to firms with nearly 10,000 employees. Additional details about the survey and qualitative interviews can be found in Sections 1.1 and 1.2 of the Online Appendix.

6 These comparisons of surveys over time should be interpreted with caution (see Frye 2010, 85–86). Later surveys may over-represent the views of firms that were least likely to face violence and protection rackets, and therefore more likely to avoid going out of business. It is also possible that firms over time became less willing to respond truthfully, biasing estimates of illicit activities’ prevalence downward. These concerns deserve acknowledgement, but it is unlikely that they account for the trends described here given the magnitude of the shift in assessments of violence and organized crime. The fact that in-depth interviews and analysis of objective indicators, such as murders of businesspeople and caseload statistics, corroborate the survey findings also bolsters the findings’ credibility.

7 Interview with Aleksandr Ivanchenko, Director of Russian Security Industry Association, June 8, 2009.

8 The survey used phrasing that was not directly incriminating yet was recognizable to Russian businesspeople as a reference to law enforcement protection rackets or similar types of corrupt services. Respondents were asked to clarify whether they used the resources of law enforcement or state officials in an “official capacity” (obratitsya kak k dolzhnostnym litsam) or “unofficial capacity” (obratitsya kak k chastnym litsam).

9 Russia’s commercial courts (arbitrazhnye sudy) are specialized courts within the state judicial system that hear civil disputes among firms and civil or administrative cases between firms and the state. Criminal cases are heard separately in the courts of general jurisdiction (sudy obshchei iurisdiktsii).

10 Statistics in this paragraph are from the sources listed in the notes to Figure 1.

11 For biannual data from 1996–2004 on the number of registered advokaty, see Hendley (2006, 385). For more recent data, see Federalnaia palata advokatov [Federal Chamber of Lawyers] (2010, 32). Tracking the number of lawyers in Russia is difficult because the field of legal professionals is fractured among iuristy and advokaty, and only the latter are required to take a bar exam and pay bar membership dues. During Soviet times, advokaty were the rough equivalent of defense attorneys while iuriskonsulty were the rough equivalent of in-house counsel. In post-Soviet Russia, the distinction between the two is more ambiguous. Only advokaty can represent a client in a criminal case, but advokaty also serve corporate and business clients. For background on the structure of the Russian legal profession, see Hendley (2010, 8–9).

12 The average legal department size reported above excludes four outliers whose representatives reported improbably large legal departments given the size of their firms. Three of these respondents classified their firms as part of the food and beverage sector. Interviews with insiders knowledgeable of this sector suggested that these firms are likely specialized service centers to whom Russian food and beverage companies outsource their legal and accounting services. Including these outliers increases the average size of legal departments in the sample to approximately 10. In terms of the comparability of the two samples, firm size in the Hendley et al. sample ranged from 30 to 17,000 employees, with a mean of 980 and median of 300. Firm size in my sample ranged from 3 to 9,000 employees, with a mean of 390 and median of 200.

13 These statistics are from the sources listed in the note to Figure 1.

14 See section 1.3 of the Online Appendix for further discussion of research on sensitive topics.

15 Respondents were asked to distinguish between going to court fully in a “formal manner” (v formalnom poriadke) or going to court while also using “informal connections” (s ispolzavaniem sushchestvyushchich tam sviaziei).

16 Author’s calculations based on data from the BEEPS surveys. Difference-in-means tests show that all differences between the 1999 and 2005 averages are statistically significant at the 1 percent level.

17 For both the tax compliance and cash transaction question, respondents were given six choices: less than 10%, 10 to 24%, 25 to 49%, 50 to 74%, 75 to 89%, or more than 90%, as well as “not sure/unwilling to answer.” In the analyses that follow, I use dichotomous to facilitate interpretation. Results are similar when a threshold of 75 percent of sales reported to tax authorities is used for the tax variable instead of a 90 percent threshold and when a threshold of 25 percent of transactions conducted in cash is used for the cash variable instead of a 10 percent threshold. It should also be noted that both of these variables exhibit high levels of non-response, possibly due to the sensitive nature of the questions. Non-responses are presumably positively correlated with lower tax compliance and higher reliance on cash, meaning that the statistics above most likely overestimate tax compliance and underestimate cash transactions. For the regression analyses, I mitigate concerns associated with missing data by employing multiple imputation using the AMELIA II package for R (Honaker et al. 2011) (see Section 2.1 of the Online Appendix for additional details). Results are robust to the use of listwise deletion.

Jordan Gans-Morse is Associate Professor of Political Science at Northwestern University. He conducts research on corruption, the rule of law, property rights, and political and economic transitions, and is the author of Property Rights in Post-Soviet Russia: Violence, Corruption, and the Demand for Law. E-mail: jordan.gans-morse@northwestern.edu.

Mechanisms of Decoupling from Global Regimes:

The Case of Anti-Corruption Reforms in Russia and Ukraine

Marina Zaloznaya

The University of Iowa

William M. Reisinger

The University of Iowa

Abstract: The current system of international governance entails several legal regimes that address social issues ranging from terrorism to environmental degradation. While these regimes’ policy prescriptions are standard, the reforms that they inspire within individual countries are strikingly diverse. Based on a case study of anti-corruption reforms in Russia and Ukraine, we use the notion of decoupling to analyze the process by which regime policy prescriptions translate into unique country-level reforms. Using the grounded theory method, we derive four mechanisms for decoupling from the global anti-corruption regime: sabotage, appropriation, intransigence, and accommodation. Our data suggest that the distribution of power among the domestic political actors who compete for ownership of reforms has an impact on which mechanism is likely to be used.

In recent decades, the international community has mobilized in a common fight against corruption, broadly defined as the abuse of entrusted power for personal gain (Transparency International 2019). Based on a growing body of research that links corruption to poor economic performance and weak democratic institutions (see Lambsdorff 2006 for an overview), the World Bank has declared corruption “the single greatest obstacle to economic and social development” worldwide (De Sousa et al. 2014, 34). Hereafter, we refer to the extensive institutional apparatus that has emerged from this mobilization as a global anti-corruption regime, or global anti-corruptionism.

According to Krasner, international regimes are “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations” (1982, 185). Similar to international environmental, human rights, and anti-terrorism regimes, anti-corruptionism is anchored by multilateral treaties (such as the UN Convention against Corruption) and maintained by Western governments, watchdog groups, intergovernmental organizations, and epistemic communities of policymakers and academics. This regime generates policy scripts, provides resources to facilitate their implementation, and puts pressure on local governments to comply (Sampson 2010).

According to the IMF, the World Bank, and other leading actors in the sphere of global anti-corruptionism, the battle against corruption in the Global South rests primarily on political and economic liberalization: in the long run, support of civil society, the promotion of a free press and fair elections, and the removal of barriers to trade and business are expected to reduce corruption. In the shorter run, anti-corruptionism rests on good governance policies, such as administrative and civil service reforms that advance meritocratic hiring, introduce wage incentive programs, and institute electronic government platforms, such as publicly accessible databases of officials’ incomes and public procurement (Khan 2006; Brinkerhoff 2000; Seitiyono and McLeod 2010).

In a critical assessment of this reform agenda, Hindess (2012) argues that global anti-corruptionism reflects the tried-and-trusted “neoliberal program.” Yet, despite the familiarity of prescriptions emanating from global anti-corruptionism, its local results vary significantly. Case studies offer some stories of apparent success—such as recent anti-corruption surges in Georgia, Rwanda, and Hong Kong (Manon 2004; DiPuppo 2010; Light 2014)—as well as more numerous stories of failure (as, for instance, in Kenya and Uganda [Persson et al. 2010]). A vibrant body of literature attributes the differential effectiveness of local campaigns to differences in resources, local norms, and political will for reform (Doig 2009).

In addition to their dissimilar results, anti-corruption reforms assume strikingly different forms across countries in terms of their targets, intensity, and strategies. In Russia, for instance, anti-corruptionism entails a narrow set of initiatives targeting a single stratum of public officials, whereas in Ukraine it spans a number of democratization initiatives as well as involving a deep restructuring of the social service-provision system. This variation as to how the standard prescriptions of the global regime are implemented in different local contexts receives much less scholarly attention than does the variation in outcomes. Our goal in this article is to fill this gap by tracing the patterns—or mechanisms— by which the standard policy scripts of the global anti-corruption regime are transformed into unique national anti-corruption drives. We use the cases of Russia and Ukraine to identify four possible mechanisms by which such decoupling occurs and to suggest which characteristics of country-level governance are associated with different decoupling pathways. Theoretically, we demonstrate the utility of thinking about decoupling from global legal norms as a process rather than as a binary outcome. We maintain that a process-attentive theory of decoupling may help generate predictive models of non-compliance with international regimes.

What Does Decoupling Mean in the Context of Global Regimes?

In this article, we use the concept of decoupling to analyze the disconnect between what global anti-corruptionism prescribes, in letter and in spirit, and actual anti-corruption processes as they occur within nation-states. The notion of decoupling was coined by neoinstitutionalist scholars to refer to the gap between an organization’s structure and its day-to-day activities. Through decoupling, these scholars argue, organizations maintain external legitimacy without compromising their efficiency (Meyer and Rowan 1977). We are not the first to use this concept to evaluate the effects of international regimes: social scientists have invoked decoupling to describe the disconnect between supranational institutions and national outcomes in the cases of environmental, human rights, and anti-terrorism regimes (Hironaka and Schofer 2002; Schofer and Hironaka 2005; Hafner-Burton and Tsutsui 2005; Cole and Ramirez 2013).

Although there are, to the best of our knowledge, no systematic typologies of decoupling from international regimes, empirical case studies suggest three ways in which it might occur. The first route to decoupling is non-implementation, whereby international policy scripts are not adopted despite a pro-forma commitment thereto. In this scenario, local political actors ignore, skirt, or outright reject the provisions of global treaties and recommendations of the donor community. For instance, even though Uzbekistan ratified the Committee on the Elimination of Discrimination against Women (CEDAW), little was subsequently done to implement and enforce relevant policies (Avdeyeva 2007).

The second route to decoupling entails modified implementation, whereby the foci, scope, or timing of policy scripts are altered during adoption. Modified implementation may happen as a result of policymakers’ efforts to adjust standard scripts to local realities; as an unintended consequence of contextual differences in the recipient country (such as low institutional capacity or peculiar traditions); or as the result of a compromise between different visions of a reform. One example comes from China, where international standards for protecting workers’ rights, recommended by the International Labor Organization, are implemented in ways that do not increase workers’ independence. Kent (2007) attributes this modification to the national leadership’s fear of possible worker unrest.

Third, decoupling may happen when policy scripts are implemented according to the specifications of the international community but have unanticipated outcomes due to peculiarities of the local political, economic, or institutional context. For instance, while Russia complies with the World Heritage Convention, the International Tropical Timber Agreement, and the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora, these environmental protections did not yield the intended results in the 1990s due to the decentralization of the country’s government and a national economic downturn (Jacobson and Weiss 1997).

Why Does Decoupling Happen?

Most explanations of decoupling fall into one of two categories: those that emphasize the role of states and those that focus on local institutional environments. In the former camp, political scientists from the rationalist tradition expect recipient states to comply with global regimes only when regime provisions maximize their interests (Mearsheimer 1994; Downs et al 1996). Similarly, the liberal approach suggests that governments make and observe international commitments as a way to build up domestic democratic institutions (Moravcsik 2000).

Normative theorists, by contrast, emphasize the role that regime legitimacy and underlying norms play in disincentivizing decoupling. These theorists focus on socialization processes through which governments learn about the symbolic importance of compliance with international norms and come to enact them (Finnemore 1996; Katzenstein 1996; Risse 1999). While the “pull” for compliance in these theories is symbolic rather than material, the underlying logic is similar to that of rationalist arguments: international regimes generate compliance by creating incentives for individual states.

Functionalist thinkers, in turn, focus on the “push factors” for compliance, such as reputational concerns and fear of punishment. Thus, Cole (2012) finds that compliance rates are, indeed, higher for international treaties with stronger monitoring provisions. Yet others argue that the recipient state’s regime type matters for the likelihood of decoupling: democracies are less likely to decouple because their political leaders experience stronger pressure from constituents and because their domestic institutions, such as independent judiciaries, enforce the implementation of international agreements (Hathaway 2002; Landman 2005; Powell and Stanton 2009; Simmons 2009). That being said, anti-compliance constituents may also influence democratic governments, thus increasing the likelihood of decoupling (Fearon 1997).

Scholars in the latter camp, meanwhile, recognize that conceptualizing decoupling as non-compliance with a specific policy is overly “state-centric” and does not fully measure the impact of a global regime (Raustiala 2001). Even when compliance with policies is not absolute, global regimes may have diffuse effects on various actors and institutions within nation-states. For instance, even if a country’s government does not sign a specific anti-corruption treaty, domestic actors may adopt select anti-corruption policies as a result of their exposure to the ideas of global anti-corruptionism. Explanations of decoupling that embrace this broader conception of regime impact look beyond the actions of the state, focusing instead on domestic political processes and institutions. For instance, in their study of female genital mutilation, Boyle et al. (2002) argue that decoupling is more likely when the social impact of institutions that carry relevant scripts, such as universities and the mass media, is smaller. Schoefer and Hironaka (2005) also emphasize the importance to compliance of structuring a domestic institutional environment that promotes compliance, that environment’s penetration of local social systems, and its persistence over time. Hafner-Burton et al. (2008) add that different domestic groups’ degree of integration with the government also matters.

Decoupling as an Outcome of Domestic Contestation

Authors who reject state-centric understandings of decoupling draw our attention to within-country contestation of the policy scripts and reform models that emanate from international legal regimes. This contestation occurs among local political actors with dissimilar and often competing interests. We take this line of argument a step further, contending that different political actors within nation-states compete with each other to control global policy scripts. Decoupling, we argue, is often the result of this contestation.

Domestic actors compete to control anti-corruption reforms because membership of the associated global regime is a source of significant resources. The most obvious are material resources: through conditional loans and technical expertise, intergovernmental organizations, experts, and Western donors are eager to help developing nations implement their vision of “what works” (Walton 2017; Snyman 2017). By accepting donor recommendations, incumbent governments can receive financial assistance and avoid insolvency, while also gaining membership of international alliances (Hafner-Burton and Tsuitsui 2005). The European Union, for instance, sets corruption-related benchmarks for aspiring members to qualify for accession (European Commission 2017). On top of the financial benefits, serious anti-corruption efforts enhance leaders’ international legitimacy, give them a voice in diplomatic negotiations, and boost foreign investment (Hafner-Burton et al. 2008; Habib and Zurawicki 2002).

While being the face of anti-corruptionism is beneficial for incumbent politicians, non-governmental actors also have a lot to gain from leading the fight against corruption. Through anti-corruptionism, non-governmental actors such as NGOs, think tanks, and activist organizations can access donor funding and tap into opportunities for organizational growth (Holloway 2001).

Besides material spoils, the potent normative rhetoric of anti-corruptionism offers an effective tool for popular mobilization (Sampson 2010). Through conspicuous investment in anti-corruptionism, politicians may garner electoral support and consolidate their hold on power. Alternatively, oppositional politicians and civil society may draw on anti-corruption scripts to pressure incumbents or destabilize the status quo. From the Arab Spring to the Revolution of Dignity in Ukraine, a number of regime changes in recent decades have begun under the banner of anti-corruptionism (Kuzio 2008; Landolt and Kubicek 2014).

Given these benefits, it is hardly surprising that bitter domestic contestation accompanies anti-corruption reforms in many countries (Gadowska 2010; Grødeland 2010; Batory 2013). Importantly, scholars suggest that such contestation may impact the likelihood that states will comply with global norms. For instance, Doig (2009) and Moravcsik (1997) associate compliance with the relative strength of groups that benefit from compliance vis-à-vis those that bear the costs. Raustiala (2001) adds that cooperation between domestic actors increases the likelihood and the degree of compliance. From the other side, Hafner-Burton, Tsuitsui, and Meyer (2008) argue that in repressive states, the autonomy of the state from non-state actors increases the likelihood of treaty ratification that is not followed by implementation—or, in other words, the likelihood of decoupling.

Studying Decoupling as a Process

Placing the emphasis on the domestic contestation of global legal regimes facilitates a shift from thinking about decoupling as an outcome to thinking about it as a process. This approach is a novel one in the literature on international law. Although some, like Cole and Ramirez, recognize that decoupling is, indeed, a “dynamic temporal process” (2013, 2), to the best of our knowledge, no studies explain decoupling as such.1

The process of decoupling that stems from domestic contestation may follow several trajectories or mechanisms, and it is the first goal of our article to identify and outline these mechanisms. We define mechanisms of decoupling as generalizable patterns of linkages between variables rather than case-specific causal chains. In the words of Espeland and Sauder, “instead of simply identifying relationships between variables, conditions, or events, a mechanism describes causal patterns that generate and sustain these relationships. A mechanism is like a causal switch that, if turned on, directs action in one way rather than another” (2007, 10). Building on studies that suggest that decoupling happens via either non-implementation or modified implementation, we derive from our data four different causal patterns by which similar policy scripts end up on one of these two routes.

We believe that an analysis of “how” decoupling happens can also provide new insights into “why” it occurs. The second goal of this article is to identify the characteristics of domestic political landscapes that affect which mechanisms the decoupling follows. By matching each mechanism with a “switch” that sets it in motion, we present a more comprehensive causal account of decoupling than studies that conceptualize it as a binary outcome. Besides showing why implemented policies look different from prescribed policies, we specify the scope conditions that lead to concrete patterns of divergence from the policy prescription. In conclusion, we maintain that the analytical outline of a switch/pattern combination may enable early interventions by giving policymakers the tools to identify decoupling risks before the process is in motion and to mitigate its negative effects once it is underway.

Methods

Case Selection

In the summer and fall of 2015, we collaborated with research firms in Russia and Ukraine to carry out 40 in-depth, semi-structured interviews with local anti-corruption practitioners. As is standard for studies that employ the paired comparison method (Tarrow 2010), we selected our cases on several independent variables that we anticipated would impact patterns of decoupling from global anti-corruptionism. Russia and Ukraine share centuries of political history (Magocsi 2010; Kappeler 2014), have similar linguistic and religious profiles (Borowik 2002), and suffer from comparable rates and types of corruption (Round and Williams 2010).

Petty bribes, presents, favors, and string-pulling in Russian and Ukrainian service-provision organizations date back to the central planning systems of the communist era (Michailova and Worm 2003). Under socialist governance, firm output quotas and ineffective, state-controlled resource allocation mechanisms led to the rise of in-kind, delayed reciprocity transactions known as blat. Ledeneva (1998, 1) defines blat as “the use of personal networks and informal contacts to obtain goods and services in short supply and to skirt formal procedures” and argues that it offered ordinary Soviets a personalized, flexible, and highly effective alternative to rigid and politicized institutions. After the demise of socialism, corruption economies in Russian and Ukrainian bureaucracies expanded and diversified to include other types of exchanges (Wedeman 2004; Ledeneva 2018). Most significantly, and mirroring changes in formal economies, local corruption systems embraced money as the primary medium of informal exchange (Polese 2008; Rimskii 2013). Whereas money was obsolete under socialism, when stores were empty and borders were closed, after economic liberalization it emerged as the most convenient, versatile, and—often—desirable remuneration for services (Drugov et al. 2014; McMann 2014; Ledeneva 2018).

In addition to petty corruption, Russia and Ukraine have both suffered from malfeasance by political and economic elites. During the Soviet era, state capture by the Communist Party allowed for systematic abuses of power and the concentration of wealth in the hands of select high-level public officials. During the 1990s, the liberalization of governance saw corruption grow and spread in the realms of large-scale business and political corruption. Throughout the region, chaotic market reforms in a context of legal vacuum and institutional dysfunction created ample opportunities for large-scale graft and the appropriation of natural and industrial resources by well-positioned individuals and groups. In both Russia and Ukraine, these transformations led to the rise of oligarchs, the criminalization of large sectors of the economy, and the re-capture of the state by different interests (Puglisi 2003; Ledeneva 2006; Fritz 2007).

Given these similarities, Russia and Ukraine tend to receive similar rankings on the world’s most widely used corruption indicator, Transparency International’s Corruption Perception Index.2 The two countries are also treated similarly in the social science literature on corruption (Rimskii 2013; Polese 2008; Ledeneva 2009; Round and Williams 2010). And in recent years, corruption has been at the forefront of political discussions in both countries. Under domestic and foreign pressure, political leaders in both Russia and Ukraine have embarked on extensive and highly publicized quests to wipe out corruption (Poroshenko 2018; Shorokhov 2017). In Russia, the government initiated an anti-corruption campaign in the wake of the 2012 protests, which were spurred by allegations that the parliamentary elections had been rigged; in Ukraine, a surge in anti-corruption efforts followed the Revolution of Dignity (also known as Euromaidan) in 2014.

Due to their shared history of socialist governance and similar current levels of corruption, the two countries have been exposed to similar anti-corruption policy scripts emanating from the global regime. These policies seek to increase the accountability of public servants, the independence of criminal justice agents, and the effectiveness of civil society (TI Russia 2018; TI Ukraine 2018). While there is undoubtedly substantial variation between different donors’ recommendations for stamping out corruption, scholars argue that, taken together, they amount to a relatively standard program of reforms around the world—and especially within geographic regions (for a more detailed description, see Transparency International 2014). In fact, some have argued that these reforms represent a program of “normalization,” as they subject different socio-cultural and institutional contexts to more-or-less identical remedies (Hindess 2012).

Given the extensive similarities between Russia and Ukraine, and the general consistency in the policy scripts that are recommended to them, paired comparison of the two country cases offers an imperfect but effective way to “control” for many potential determinants of decoupling that have previously been identified in the literature.

Sampling and Interview Strategies

Our analyses are based on interviews with 20 governmental and 20 non-governmental experts in Russia and Ukraine. We identified and recruited these experts with the help of two local research firms that were hired as part of a larger project on corruption and anti-corruptionism in the region.3 Both organizations are regional leaders in sociological data collection and analysis, with extensive experience in elite and expert interviewing. To identify the most knowledgeable respondents, our partners relied on their extensive connections within the local governments and civil societies of the two countries.

Our governmental respondents occupied a variety of professional roles, ranging from members of parliament to heads of organizational anti-corruption divisions and deputy ministers. Their non-governmental counterparts worked in organizations ranging from large international anti-corruption NGOs to small citizen activist groups. Half of the sample consisted of interviewees in high-level leadership and administrative positions; the other half held ground-level positions involving hands-on work with corruption cases and direct involvement in the implementation of anti-corruption initiatives. At the time that the interviews were conducted, all respondents had occupied their positions for at least three years (with the longest tenure nearing ten) and all had previously held another governance-related post. Table 1 provides additional information on the professional affiliations of our respondents. For confidentiality reasons, we provide differing amounts of detail about different respondents.

Our respondents—two-thirds of whom were men—ranged in age from 26 to 63. All of them held spetsialist degrees (a qualification roughly equivalent to a U.S. Master’s).

In Russia, respondents were interviewed in Moscow, Kazan, Kostroma, and Barnaul. While our resources were limited, we sought to diversify the Russian sample by including experts from two relatively central administrative regions (Kazan and Kostroma) and a more remote one (Barnaul). We also sought to include experts from ethnically non-Russian regions of the country: Kazan is the capital of Tatarstan and Barnaul is the center of Altai. Although anti-corruptionism (like most other politicized initiatives in Russia) is heavily controlled by the Kremlin, cultural differences and regional variation in terms of the resources available may affect patterns of policy implementation.

In the smaller and non-federal Ukraine, our respondents were concentrated in Kyiv. Yet it is important to keep in mind that present-day Ukraine does have marked regional heterogeneity: Ukrainians from Eastern regions, for instance, often (but not always) speak different languages or dialects, hold different ethnic identities, and support different visions of the political future from their counterparts who hail from Western regions (Myshlovska and Schmid 2019). Our decision to limit our interviews to Kyiv was a function of limited resources and the following considerations. First, the Ukrainian anti-corruption landscape is significantly more varied than the Russian one. To cover different approaches to anti-corruption and speak with representatives from governmental and non-governmental entities, we therefore needed to interview more people in the central government and NGO headquarters in Kyiv than we did in Moscow. Second, while regional anti-corruption initiatives and groups in Ukraine are undeniably important, because the country is not a federation, most major entities have representation in the capital. Future research, however, should explore regional variance in Ukrainian anti-corruptionism.

Table 1. Professional affiliation of interview respondents

RUSSIA

UKRAINE

Governmental

[RG]

Non-

Governmental

[RNG]

Governmental

[UG]

Non-

Governmental

[UNG]

1

Member of Parliament, minority party

A leading officer, national association of prominent activists

Head, a subcommittee, parliamentary anti-corruption committee

Head, Anti-Corruption Expertise Department, investigative think-tank

2

Consultant of the anti-corruption division of human resources office, regional government

A leading officer, inter-regional organization focused on corruption in business

Head of a department, General Prosecutor’s Office

Senior manager, a donor “good governance” initiative

3

Specialist in anti-corruption, governing board of a federal agency

Working group member, public chamber of the government of one of Federal Republics

Officer, government agent for anti-corruption, Cabinet of Ministers

A leading officer for healthcare reform, an NGO coalition

4

Member of Parliament, minority party

Legal analyst, an investigative NGO

Acting head, Sector on Prevention and Detection of Corruption, a Ministry

Vice head, a “good governance “initiative, USAID

5

Head, anti-corruption committee of the governance board, state-owned corporation

Senior researcher, public chamber, Ministry of Internal Affairs of one of the Federal Republics

Head, Sector on Evaluation and Elimination of Corruption Risks, a Ministry

Project director, donor-funded educational initiative

6

Head, human resources office, federal government

A leading officer, interregional anti-corruption movement

Deputy Minister, a Ministry

Director, domestic investigative NGO

7

President, governmental anti-corruption committee

Head, regional support center for civic initiatives

Head, sub-department, Ministry of Internal Affairs

Head, grassroots anti-corruption movement

8

Secretary, regional committee of a minority party

Vice head, regional anti-corruption committee

Head, Department of Prevention and Combating Corruption, a Ministry

Analyst for criminal justice reform, an NGO coalition

9

Head, municipal anti-corruption committee

Officer, local chapter of a transnational NGO

A leading officer, The Anti-Corruption Bureau

A leading officer, local chapter of a transnational NGO

10

Head, regional anti-corruption sector

Head, regional anti-corruption center

High-level official, the Secret Service of Ukraine

Head, independent think tank

Our interviews were semi-structured and lasted between 40 minutes and two hours. In Ukraine, they were carried out by the first author; in Russia, a trained associate from the local partner firm served as an interviewer to alleviate the potential concerns of government-affiliated respondents. The interviews took place in respondents’ offices or the offices of the partner firms and were audio recorded.

To ensure comparability, the interviews followed the same general structure in both countries, touching on the history of anti-corruptionism, recent and ongoing reforms, and the various local actors involved in their design and implementation. As is customary for semi-structured interviews, interviewers had flexibility regarding the order of questions, specific phrasing, and the amount of follow-up inquiry. Interviews typically began with a discussion of different components of local anti-corruption programs (past and present) and their respective successes and failures. Then, respondents were asked to map out the local institutional landscape of anti-corruptionism: the organizations and actors involved, the relationships between them, etc. In the concluding part of the interview, respondents discussed their personal experiences in anti-corruptionism: the projects with which they had been involved, their everyday routines, their encounters with other practitioners, and so on.

Data Analysis

In our analyses, we adopted a set of principles for deriving generalizable patterns from qualitative data known as grounded theory. Corbin and Strauss (1994, 9) write that the aim of grounded theory is “to build a theoretical explanation by specifying phenomena in terms of conditions that give rise to them, how they are expressed through action/interaction, the consequences that result from them, and variations of these qualifiers.” Such an approach combines induction and deduction, and is iterative. Typically, a researcher begins with a broad empirical question and derives a preliminary outline of a theory from systematic analysis; she then returns to the data to look for empirical evidence, with the goal of confirming and fine-tuning the emerging theory. Theory-building continues throughout data collection and analysis.

The first goal of our study, as is customary in grounded theory research, is a theoretical elaboration of a process whereby anti-corruptionism prescriptions become decoupled from on-the-ground outcomes through contestation by domestic political actors. Our second goal is to identify the scope conditions that give rise to decoupling through reverse process-tracing and ongoing comparison between and within our two country-cases. Continuous juxtaposition of two contexts in which decoupling followed different routes allowed us to identify the causal switches that shaped decoupling in those two cases. In the following section, we describe in broad strokes the different forms that anti-corruptionism assumed in Russia and Ukraine.

The logic of presentation in the following empirical sections, however, is different. During the analysis, the standard of “preponderance of the evidence” was used to first identify and then confirm the mechanisms of decoupling and their determinants. According to our rule of thumb, during the first round of analyses, two different respondents had to mention a specific pattern for it to constitute a theoretical category subject to confirmation in the second round of analyses. Two additional mentions were then required for the process to be theorized and discussed in the article. Due to space limitations, however, we cannot present all the supporting evidence below; rather, we have selected those quotations from the interviews that best illustrate the mechanisms of decoupling and the causal switches behind them.

Methodological Limitations and Shortcomings

It is important to note that the aim of our analyses is not to describe the universe of possibilities or test causal hypotheses. Rather, and more modestly, it is to begin to outline a theory of decoupling and its causes, the validity and generalizability of which can be tested by future empirical research. Besides acknowledging the narrow scope of our task, we also recognize that our analyses suffer from the weaknesses of qualitative research in general and grounded theory research in particular. These include, but are not limited to, potentially narrow generalizability, biases associated with reliance on the perception-based claims of a limited number of non-randomly-selected interviewees, and possible violations of the integrity of respondent narratives (for an overview of common critiques of this method, see Clarke 2007). Yet despite these shortcomings, grounded theory has been widely recognized as an effective and valuable tool for building theoretical frameworks in social science research.

Results

Ukraine: Domestic Contestation of Anti-Corruptionism

Over the last decade, Ukraine’s anti-corruptionism has morphed into an all-encompassing project of societal transformation. In the eyes of Kyiv officialdom and the international community alike, a successful fight against corruption is a precondition for the nation’s economic growth, democratization, and ability to withstand pressure from its adversarial neighbor, Russia (UG-24; UG-4; UG-5; UG-10; UNG-4; UNG-9; Karatnicky and Motyl 2018). Infusion of these larger meanings into Ukrainian anti-corruptionism is not accidental. Ukraine’s two pro-democracy uprisings in the post-Soviet period, the Orange Revolution (2004) and the Euromaidan (2014), both started with popular disgruntlement with ubiquitous corruption, which was widely seen as the reason for Ukraine’s economic underperformance and subservience to Russia. Corruption, therefore, mobilized the population and offered the international community a feasible entrée into Ukrainian politics [UNG-5; UNG-7].

In the wake of the Euromaidan, a hunger for reform was palpable both within and outside the Ukrainian government [UG-3; UNG-6; UNG-8]. After President Yanukovich was ousted and the presidency went to a political outsider, Petro Poroshenko, a large number of Euromaidan activists gained seats in Ukraine’s Parliament. Those who remained in civil society formed the Reanimation Package of Reforms coalition, the Anti-Corruption Action Centre, and numerous other organizations, which were heavily backed by foreign governments and inter-governmental organizations alike [UNG-2].

To date, one of the greatest achievements of Ukrainian anti-corruptionism has been the establishment, in April 2015, of the National Anti-Corruption Bureau, which is tasked with investigating corruption among high-level political and criminal justice officials [UG-3; UG-4]. The Bureau’s novelty lies in its formal independence: it is accountable only to the Public Council and the Parliament, and is audited externally. Other new governmental institutions established to prevent, detect, and punish corruption include the National Agency for the Prevention of Corruption and the Special Anti-Corruption Prosecutor’s Office. Also significant are e-government initiatives, such as the implementation of a new procurement system that is open to the public and that features built-in “red-flag” accountability checks (ProZorro 2017). In addition to this, Ukraine has launched an electronic asset declaration system for public officials, thereby completing the core condition of its visa-free travel agreement with the European Union (Rasmussen 2017; UNG-6; UNG-9). Noteworthy too was the comprehensive reform of the Ukrainian patrol police. Financed heavily by the U.S. Department of State, this reform entailed the selection of a brand-new police force through standardized testing, the training of new recruits in customer service, and the outfitting of police with body cameras (Peacock and Cordner 2016; UNG-8; UG-2; UG-10).

On top of these reforms, a number of public education and outreach campaigns have been implemented throughout Ukraine. The “They Wouldn’t Be Silent” campaign featured billboards and national TV clips portraying famous Ukrainians, such as writers Lesia Ukrainka and Taras Shevchenko, imploring citizens to speak up against corruption. The “No to Bribery” (“Ni Habarnitstvu”) movement, meanwhile, asks Ukrainians who wish to join to sign an oath that they will neither give nor receive bribes5 (UNG-5; UNG-7; UNG-9).

Despite its singular successes, Ukraine’s anti-corruptionism is a distorted reflection of global anti-corruptionism. Most notably, it is punctuated by holes and incorrect sequencing in several crucial areas, such as judicial and campaign finance reforms (Karatnycky and Motyl 2018). Due to the adversarial relationships between local political actors, several global scripts have either experienced slow and incomplete implementation, have not been implemented at all, or else have not yielded the desired results (Kostanyan 2017; McLaughlin 2017; Zochowki and Jaroszewicz 2017; UNG-2; UNG-4; UNG-9).

The lack of a shared vision between Presidential allies and powerful parliamentary coalitions has delayed, disturbed, or altered the roll-out of core reforms, including the establishment of independent anti-corruption institutions such as an anti-corruption court. In the words of one interviewee from the non-governmental sector, the Presidential Administration “depends on the opinions of coalitions” and “they rarely see eye-to-eye” (UNG-2). Anti-corruption-related contestations within the government also involve the President himself, former Prime Minister Yatseniuk, local leaders of the President’s Party (Saakashvili 2016), high-level criminal justice officials (e.g., Prosecutor General Lutsenko [McLaughlin 2017]), and the State Security Services of Ukraine (Donati 2017). According to political analysts and our respondents, Ukrainian political elites contest anti-corruption scripts to protect their own economic interests and the interests of their oligarchic allies (Kostanyan 2017; UNG-6; UNG-7). Ukrainian politics is infamously affected by oligarchs, who control large shares of the country’s wealth. Ukrainian politicians often develop informal pacts whereby the promotion of oligarchic interests is exchanged for campaign financing and, at times, physical security (Wilson 2012). In sum, “there is no single group or ideology guiding Ukraine’s embryonic reform process” (Wilson 2016, 2) and local anti-corruptionism is systematically undermined by the lack of consensus among relevant domestic actors (UG-1; UG-3; UG-9; UNG-2; UNG-6).

Contestation of anti-corruptionism also occurs within Ukraine’s civil society. Local anti-corruption groups and investigative journalists have markedly different approaches to fighting corruption than international anti-corruption NGOs such as Transparency International. While local activists prioritize detecting and punishing corrupt individuals, especially in the higher echelons of authority (UNG-6), INGOs prefer to collaborate with incumbents to achieve more systematic institutional reforms (UNG-9). As one respondent put it, local civil society claims that “corruption has a name,” while INGOs treat corruption as a structural problem (UNG-2).

The most heated contestation, however, is between the Ukrainian government and civil society. Multiple respondents from the non-governmental sector lamented their exclusion from important anti-corruption initiatives (UNG-2; UNG-3; UNG-6; UNG-8). Along the same lines, Marat (2015) writes in a Foreign Policy piece that “civil society activists are only invited to oversee procedures already in place, as opposed to generating ideas for the reform’s direction.” In response to this critique, governmental respondents claimed that it is appropriate for NGOs and activists to have only limited access to core anti-corruption reforms, as they lack policy experience and their motivations may be tarnished by foreign donors (UG-1; UG-3). Thus, one Member of Parliament characterized Ukraine’s non-governmental sector as “perverted” by “the interests that finance it.” He continued: “Either, it is financed by foreign grants, which clearly changes its orientations, or it is financed by local oligarchs [who] can be very selective in pursuing their mission.” Later in the interview, he characterized civil society activists as “people who [...] have never worked in government,” with “proposals that are often quite detached from reality, impossible to implement” (UG-1).

In sum, Ukrainian anti-corruptionism is heatedly contested by multiple powerful actors within and across the governmental and non-governmental sectors. The high stakes that the battle against corruption has for Ukraine, the country’s adversarial political culture, and the deep involvement of outside interests have all fueled this contestation.

Russia: Domestic Contestation of Anti-Corruptionism

In the run-up to the 2012 Russian presidential election, the issue of corruption was at the forefront of public discourse. Ordinary Russians’ discontent with pervasive informal practices in business and politics laid the foundation for the oppositional movement of Alexei Navalny. Navalny, a young lawyer, started a blog documenting abuses of power at the intersection of state and business affairs. It quickly gained popularity, transforming into what Gessen (2016) called “a significant crowd-funded operation.” Navalny’s work combined with deteriorating economic conditions to inspire mass anti-government protests that swept through Moscow following the rigged Parliamentary elections of 2011.

The period following the parliamentary elections saw the inauguration of the most active anti-corruption campaign in Russian history. This process only intensified following Putin’s reelection in 2012, a testament to the president’s realization that he needed to address the issue of corruption in order to protect his regime against challengers (RNG-4). The main foci of this campaign were the reform of bureaucratic service provision and pressure on select elites (RNG-9; RNG-7).

The reform of the service-provision sector entailed the replacement of many street-level bureaucrats with electronic services and a reduction in the discretion of other providers through the imposition of additional accountability requirements and tightened employee hierarchies. These reforms were broad and punitive. Our interviews suggest that they aimed to increase control over civil servants and punish those who stepped out of line (RG-4; RG-7; RNG-1). One respondent described this anti-corruption strategy as being designed “to ensure the inevitability of punishment […], so that every offender is punished in accordance with both the criminal and the civil code” (RG-2). As an illustration, several respondents talked about a set of recommendations issued by Russia’s Ministry of Labor in 2013 that included a list of words that street-level bureaucrats were discouraged from using in their interactions with clients. These including phrases like “doing a favor,” “coming to an agreement,” and other euphemisms commonly used in corrupt transactions (Ministry of Labor and Social Protection 2019; RNG-8; RNG-10).

In contrast to this punitive approach to petty bribery and string-pulling, the Russian government targets elite corruption very selectively. While most high-level abuses in politics and business go unpunished, Russian elites with suspected oppositional tendencies, as well as those who have moved their money abroad, are subject to restrictions on their physical mobility, property ownership, and economic transactions (RNG-4; RNG-6). Since the beginning of the anti-corruption surge, a number of these elites have faced highly publicized prosecutions (Schimpfössl 2018).

Both types of anti-corruption initiatives are orchestrated by the Russian government. The Russian government’s proclaimed goal of fighting the foreign agents who are allegedly trying to infiltrate the country’s politics leaves little space for the independent work of non-governmental and non-commercial organizations (RG-4; RNG-4; RNG-6; RNG-7; RNG-9). Under a federal law passed in 2012, groups are registered as “foreign agents” if they receive funding from any foreign entity and perform what the law defines as “political activity,” including “any attempt [...] to influence public policy, regardless of the group’s mandate” (Human Rights Watch 2018).

Some existing accounts and our own analyses suggest that Putin’s version of anti-corruptionism has achieved two political goals. First, by creating the illusion of tackling corruption, Russia’s ruling elites have reframed it as a problem of street-level organizations and of a few rogue elites. The incumbent leadership, by contrast, has emerged as leading a crusade against this decades-old affliction. Second, this strategy has distracted Russian citizens from their declining standards of living, which are associated with the drop in the oil price and the economic and diplomatic sanctions imposed by Western countries. According to Anatoliy Yakorev (2014), Director of the Center for Business Ethics and Compliance in Moscow, Russia’s anti-corruptionism “was meant to make up for the lack of deep structural reforms and restrain certain key players [potentially disloyal elites].”

Mechanisms of Decoupling Explained

In this article, we build on the international relations literature suggesting that compliance with international regimes is “a function of state preferences determined by domestic political bargaining” (Moravcsik 1994) and that it may lead to one of two outcomes:6 non-implementation or modified implementation of regime prescriptions. Our contribution lies in identifying the mechanisms of decoupling that stem from this contestation. First, we argue that non-implementation and altered implementation of regime prescriptions may result from two different mechanisms of decoupling. Second, we maintain that the relative bargaining power of domestic contesting actors is an important determinant of which mechanism decoupling follows (see Table 2). When political power is concentrated in the hands of one set of actors, the mechanism that leads to non-implementation is sabotage, or strategic obstruction of adoption and implementation. When power is distributed more evenly among competing actors, non-implementation happens through intransigence, defined as either refusal to compromise or a prolonged contestation that impedes action. By contrast, when power is concentrated in the hands of one set of actors, modified implementation occurs through appropriation, whereby one set of actors modifies a policy script to promote unrelated political objectives; when power is distributed, altered implementation happens via accommodation, defined as the change in focus, scope, timing or other characteristics of a policy script, which reflects compromise among different visions of the reform.

Table 2. Mechanisms of decoupling

Power Concentrated

Power Distributed

Implementation

Appropriation

Accommodation

Non-Implementation

Sabotage

Intransigence

Sabotage. We define sabotage as strategic obstruction of the adoption or implementation of a policy script by one set of actors. This can occur due to a lack of political will, whether that manifests as an active refusal to take on the recommendations of the donor community or a passive refusal through non-action. Sabotage may also happen through non-allocation of the institutional, human, or financial resources necessary to implement or enforce a certain policy. Finally, sabotage can occur through strategic erection of obstacles that make implementation and enforcement impossible.

Our data reveal multiple examples of sabotage in both Russia and Ukraine. For instance, in Ukraine, there is no political will to enforce the law that limits the size of gifts that street-level bureaucrats can receive from their clients (UNG-9). According to one governmental official, Ukrainian journalists routinely set up cameras outside bureaucratic offices that record people entering the buildings with presents that far exceed the permitted value and leaving the offices empty-handed (UG-6).

In Russia, examples of sabotage are more common than in Ukraine. Almost all of our respondents from the non-governmental sector volunteered at least one story about a policy that was not applied to a medium or a high-level official (RNG-1; RNG-2; RNG-3; RNG-4; RNG-6; RNG-7; RNG-9; RNG-10). Here is a typical account from one interviewee: “Effective sanctions are [...] only in regard to people who are not connected to the ‘authorities.’ Top-level authorities always find ways to get their people out of trouble” (RNG-10). Another respondent told us about the work of her NGO:

When we see any concrete instances [of corruption], we work on them. But I have to tell you: when we do […], we turn to the president, to the government—and so far these petitions have resulted in nothing. The same is true of Company X:7 the company received a contract from the government without participating in an open competition; we brought this case to the president—nothing yet. […] All our suggestions are ignored completely, we lose everywhere (RNG-2).

These accounts exemplify the most straightforward kind of sabotage, but sabotage can also happen through more covert action. For instance, our interviewees concurred that the Russian government has set up a number of organizations that appear independent but that work to undermine the application of anti-corruption sanctions to the elites (RNG-1; RNG-9). Thus, most “non-governmental” anti-corruption action in present-day Russia originates from the Obschestvennie palaty (Public Chambers), the official goal of which is to oversee the activity of various governmental institutions. Ironically, members of these chambers are selected by governmental officials, while most of their organizational funding comes from the state. In the words of one respondent, “not only do these committees consist of governmental appointees, but it is also well-known that only the most loyal of citizens are appointed to them” (RNG-9).

Intransigence. Intransigence occurs when contesting actors are not willing to compromise with each other to implement a policy script or when implementation is undermined by protracted negotiations between actors with different visions.

The deadlock around the reform of the general prosecutor’s office in Ukraine exemplifies this decoupling mechanism. Several of our interviewees from the government as well as from non-governmental organizations referred to this case in their testimony (UG-1; UG-9; UNG-2; UNG-6; UNG-8; UNG-9). This infamous case began when two independent reformers, Vitaliy Kasko and Davit Skvarelidze, won an open competition to head the reform of the General Procuracy of Ukraine (GPU). In addition to implementing new accountability and transparency procedures, they sought to decrease the number of officials in prosecutorial positions from 19,000 to 10,000. Under their leadership, in the summer of 2015, two high-level GPU officials, Oleksandr Korniyets and Volodymyr Shapakin, who later became known as the Diamond Prosecutors, were charged with bribery. Searches of their properties turned up half a million dollars, along with unregistered guns, cocaine, and diamonds. Kasko and Skvarelidze also revealed the links between the Diamond Prosecutors and the Head of the GPU, Prosecutor General Shokin. Following these revelations, the reformers were intimidated by GPU insiders; Shokin himself also attempted to stall and derail the investigation.

Citing the mounting evidence of Shokin’s collusion, Ukrainian civil society pressured President Poroshenko to replace the Prosecutor General, whom the New York Times (2016) described as “a symbol of Ukraine’s deeply ingrained culture of corruption, failing to prosecute a single member of the deposed Yanukovych regime or of the current government while blocking the efforts of reform-minded deputies.” Yet the President refused for months to fire Shokin, leaving procuratorial reform in limbo (Golinkin 2016). It was not until late March of 2016 that Shokin was finally fired, and even then efforts to reform the GRU remained deadlocked. In mid-May, the parliament passed a controversial law changing the eligibility requirements for a new Prosecutor General, a move that enabled the appointment of Poroshenko’s ally Yuriy Lutsenko (Euromaidanpress 2016). Thus was the deadlock due to intransigence resolved, with incumbent state actors prevailing in their efforts to maintain the status quo.

Appropriation. Appropriation refers to the modification of policy scripts by actors who seek to promote their own political objectives, objectives that are unrelated to, or go beyond, anti-corruptionism. In many ways, appropriation represents a best-case scenario for any political actor: it earns her credit for pursuing anti-corruptionism while also yielding additional political benefits.

Clear examples of appropriation come from Russia, where President Putin adapted anti-corruptionism to his own needs of boosting public confidence in the regime, offsetting popular disgruntlement with the economy, and threatening disloyal officials. First, our analysis suggests that Putin’s disproportionate emphasis on social control—through surveillance and excessive punishment in street-level bureaucracies—greatly discouraged political dissent (RG-4; RNG-1; RNG-4). One respondent, for instance, referenced “prophylactic warnings, firings, court cases and criminal punishments…” associated with anti-corruption reforms in local universities. He even mentioned “bulletin boards with the last names of university employees who are going through criminal proceedings because of corruption” (RNG-9). According to another interviewee, these interventions generate a culture of fear in local bureaucracies: “even when someone just brings candy to a school or hospital, they [officials] refuse to take it because they are that scared” (RG-9).

Other examples of appropriation relate to the rare anti-corruption sanctions against elites. While most high-level abuses go unpunished, the Russian government has cracked down on the foreign financial dealings of rich Russians under the aegis of fighting corruption (RNG-4). According to Krastev and Inozemtsev (2013):

Putin’s war on corruption—and its crackdown on foreign bank accounts—was meant to punish those elites who refused to do his bidding and force them back into the fold [...]. Stealing in exchange for loyalty remains the custom, but if the elites want to continue enjoying their right to steal, they should repatriate their money and family to Russia.

Our respondents also reported that allegations of corruption were used as a justification for firing high-level officials who were no longer in line with the administration’s political vision (RNG-2; RNG-6; RNG-10).

Accommodation. The second mechanism of decoupling leading to modified implementation is accommodation, whereby policy scripts are implemented with changes that reflect a compromise between contesting actors’ differing visions.

Our data from Ukraine contain many examples of accommodation, of which the reform of the criminal justice sector is especially illustrative. Consistently ranked among the most corrupt institutions in the country, the Ukrainian police were targeted for reform soon after the Revolution of Dignity. Oppositional politicians and domestic NGOs pressed for a wholesale and simultaneous reform of all levels of the police and the prosecutor general’s office. They argued that unless prosecutors were freed from undue influence, low-level corruption in police would persist (UNG-8). The Ukrainian government, however, was reluctant to deal with higher-level criminal justice officials. The compromise between the more and less radical reformers can be broken down into three parts. The first is the wholesale replacement of the old Soviet-style Highway Militsia with a new Patrol Police, who were well-equipped, well-paid, trained to be efficient, and arguably incorruptible (UG-7; UG-9). The second is the de-facto absence of any meaningful reform in other parts of the police force (UNG-8). The third is the partial reform of prosecutor’s offices throughout the country; open competition resulted in the re-staffing of most positions with the old cadres (UG-2; UNG-8). As a result, according to an analysis published in Foreign Policy (2015), “top-level police officers, accustomed to deploying excessive force against peaceful demonstrations or operating criminal syndicates, remain unchallenged and unreformed. And while a shiny new police force might challenge small-scale corruption, there has still been no serious anti-corruption drive from the top.” As one NGO employee explained,

The government was supposed to get the entire police force re-attested within three months but that did not happen. Re-attesting meant interviewing everyone, collecting information on whether they had impinged on anyone’s rights or were engaged in corruption, if there were any complaints. If something were found, they would not be reappointed. But they didn’t do that. Take investigators […], for instance: they were simply reappointed automatically. [...] Although they promised that there would be new blood in the office, the results of the tests show that the overwhelming majority of current prosecutors are staying. […] This amounts to a failure of the whole reform (UG-8).

Other respondents also testified to these dynamics. One member of the Parliament claimed that Ukrainian “security services are pretty well-informed about existing corruption schemes, with concrete numbers and concrete names…But everything dies at the prosecutor’s office [...] because those who collect corruption spoils share with SBU [Security Services of Ukraine] and the Prosecutor’s office” (UG-1).

Discussion and Conclusions

Our findings suggest that decoupling happens in a number of different ways, ranging from sabotage, as often occurs in Russia when alleged perpetrators of corruption have political connections; to intransigence, which frequently stems from protracted and fruitless negotiations between governmental and non-governmental actors in Ukraine; to appropriation, exemplified by Putin’s use of anti-corruption reforms to consolidate his control over the country’s public servants; and, lastly, to accommodation, which occurred in the case of Ukraine’s criminal justice reform. The discovery of these distinct pathways to similar outcomes refocuses the inquiry on decoupling as a process and raises the question of the scope conditions under which it is likely to follow a specific pattern.

Although our data cannot offer a definitive answer, they suggest that the distribution of power among domestic contesting actors—governmental and non-governmental, as well as different groupings within these two spheres—impacts the likelihood that decoupling will follow either sabotage or intransigence in cases of non-implementation, and either appropriation or accommodation in cases of modified implementation. When one actor holds significant power, like President Putin does in Russia, he or she may either sabotage or appropriate a policy to fit his or her own political interests; when power is distributed more evenly among competing actors, decoupling occurs due to intransigence or accommodation (see Table 2 above).8

In instances where the concentration of power is sufficient for appropriation or sabotage, contestation of a policy script is, in effect, blocked. In this scenario, the only question of interest is why one set of actors decided to do what it did—or, in other words, why did it choose to either appropriate a policy script or sabotage it altogether. For instance, our data raise a question about the motivation of Ukrainian law enforcement agents who systematically sabotage the enforcement of the code of conduct of street-level officials—at least in regard to receiving gifts and favors from clients.

However, when no single actor has sufficient power to determine the outcome in isolation, political possibilities depend on the number of actors involved in the contestation, as well as their relative bargaining power. When there are only two primary contesting actors and neither can determine the outcome in isolation (for instance, when there is a 60-40 power split where a 70% percent consensus is necessary for action), either intransigence or accommodation are likely, leading, respectively, to a contestatory deadlock (non-implementation) or an implementation of a diluted version of the script (modified implementation). For instance, our interviews reveal that in Ukraine, two parts of the anti-corruption reforms in the criminal justice system followed distinct mechanisms of decoupling due at least in part to the configuration of actors involved in their contestation. In the case of General Procuracy reform, particularly the removal of the allegedly corrupt Prosecutor General, the matter was seen as too politically charged for global and transnational NGOs to intervene strongly (UNG-6; UNG-8). As a result, the block that pushed for Shokin’s replacement consisted primarily of oppositional politicians and domestic NGOs and was not strong enough to overcome the opposition of the president and his allies. By contrast, global and transnational NGOs joined domestic civil society and oppositional politicians in their efforts to reform lower-level law enforcement agencies, leading to the modified implementation of an anti-corruption script in Ukraine’s criminal justice system.

These examples suggest that our framework can be applied to scenarios with multiple contesting actors. First, scholars should consider bargaining processes within the two sets of domestic actors who often find themselves on opposite sides of the contestation of global legal regimes: state-affiliated actors and civil society. Using empirical evidence, it may be possible to create a two-by-two matrix, with four possible combinations of predicted mechanisms and outcomes (see Table 3). For each of these two composite actors, lack of power concentration, or disagreement on goals and ways to achieve them, decreases their bargaining power vis-à-vis the other composite actor and raises the likelihood of appropriation by the adversary. If it is civil society that has the internal concentration of power, then decoupling may be avoided altogether because civil society’s goals are often aligned with those of global policy scripts. However, if power is concentrated in the hands of non-governmental actors whose vision is at odds with that of the international community (for instance, if civil society actors are primarily preoccupied with removing incumbents from office—as, according to our respondents, is the case with many domestic anti-corruption NGOs in Ukraine [UG-1; UNG-2]), reforms may be appropriated for these purposes. By contrast, if the bloc of state actors, who tend to resist costly reforms that may undermine their power, is internally cohesive while civil society is not, decoupling is likely to happen via sabotage, appropriation, or accommodation of select demands from civil society. Our cases provided examples of this outcome from both Russia and Ukraine, showing that they are especially common in instances when the targets of reforms have connections to incumbent politicians. By contrast, when both composite actors have internally concentrated or internally distributed power, the contestation is likely to proceed through intransigence, leading to deadlock and non-implementation, or through accommodation and the resulting implementation of a “diluted” version of a policy script.

The theoretical framework developed in this article suggests two possible directions for future empirical research on decoupling from international regimes. One possibility is to explore what amount of power is sufficient for one set of actors to sabotage or appropriate the reforms, and what patterns of power distribution are associated with either intransigence or accommodation. Answers to these questions are likely to depend on the make-up of a given political system (i.e., in democracies, bars for sufficiency may be higher than in autocracies) and on concrete policies and provisions within these systems, such as constitutional rules on checks-and-balances and standards of majorities and supermajorities in legislative branches.

Table 3. Contestation involving multiple actors

CIVIL SOCIETY

Power Concentrated

Power Distributed

STATE ACTORS

Power

Concentrated

Intransigence

Accommodation

Sabotage (by state actors)

Appropriation (by state actors)

Accommodation

Power

Distributed

NO DECOUPLING

Appropriation (by civil society)

Accommodation

Intransigence

Accommodation

Another question for future research is why decoupling follows specific mechanisms when political power is either distributed or concentrated. In other words, why do political actors with concentrated bargaining power choose to sabotage rather than appropriate a certain script? And why do multiple contesting actors end up in a deadlock due to intransigence instead of achieving a compromise on a specific issue? While it is possible to hypothesize that the mobilization potential of the contested issue, pressure from external and supranational actors, and the resources of different political blocs all influence the mechanism of decoupling, it is ultimately an empirical question.

While building a body of empirical research on decoupling as a process is important for understanding and theorizing the impact of global regimes on nation-states, our framework may also suggest some useful policy tools for increasing compliance with their tenets. Since the promise of international law lies in shaping the political and legal landscapes of nation-states, much of the dedicated scholarship searches for characteristics of national contexts that are associated with compliance (Allee and Huth 2006; Kahler 2000; Mansfield and Pevehouse 2008; Powell and Mitchell 2007). Our findings extend this research by showing that patterns of interaction among different domestic actors may also lead to decoupling and non-compliance. They suggest that without sufficient attention to the processes of domestic contestation of international law, it is difficult to predict decoupling—especially in contexts that, like Ukraine, appear compliance-friendly. We believe that close monitoring and analysis of the processes that transpire after a formal commitment to international law may help generate targeted and timely interventions that will prevent or attenuate potential decoupling.

Ethical Statement

i. Compliance with Ethical Standards: The research carried out for this article is fully compliant with the human subjects protections standards set out by the University of Iowa Institutional Review Board on the basis of the Belmont Report (https://hso.research.uiowa.edu/summary-belmont-report). The IRB approval number for this project is 201407750. The project was also approved bv the U.S. Department of Defense HRPO (# A-18607.b)
ii. Funding: This study was funded by the U.S. Department of Defense, Life Sciences Division (Proposal Log Number 65649-LS, Award Number W911NF-14-1-0541).

iii. Conflict of Interest: Marina Zaloznaya declares that she has no conflict of interest associated with the research performed for this article. William M. Reisinger declares that he has no conflict of interest associated with the research performed for this article.

iv. Ethical approval: This article does not contain any studies with animals performed by any of the authors. All procedures performed in studies involving human participants were in accordance with the ethical standards of the institutional and/or national research committee and with the 1964 Helsinki declaration and its later amendments or comparable ethical standards.

v. Informed Consent: Informed consent was obtained from all individual participants included in the study.

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1 The scholarship on the causes of decoupling, as briefly reviewed above, conceptualizes it as a binary outcome.

2 Both have consistently ranked in the bottom quintile of countries worldwide in terms of corruption (TI 2018).

3 In Ukraine, we worked with Kyiv International Institute of Sociology (https://www.kiis.com.ua/?lang=eng); the identity of our Russian collaborators is concealed due to the growing number of instances of political persecution against independent (and West-oriented) researchers in present-day Russia.

4 From here on, we use the following notation system to indicate the source of data or quotation: U/R = Ukraine/Russia; G/NG = Governmental/Non-governmental; number corresponds to the description of the respondent in Table 1.

5 While many of these campaigns have been hailed as successes, researchers point out that by educating ordinary citizens about the extensive spread of corruption, they may, in fact, contribute to its normalization (Denisova-Schmidt et al. 2015).

6 Because our interest is in how domestic contestation shapes the likelihood and patterns of implementation, the third type of decoupling—the one that results in unintended consequences—is not of interest to us in this article.

7 The name of the company is omitted for confidentiality reasons.

8 It is important to note that this concise articulation of our theory rests on ideal types of power concentration, whereby the power is either sufficiently concentrated in the hands of one set of actors to dominate the contestation or nearly-equally distributed among multiple contesters. In reality, however, the capacity of domestic actors to influence political processes can be concentrated in the hands of contesting actors to different degrees, creating a continuum of concentration levels between these two ideal types.

Another caveat to our theory is that we describe Russia and Ukraine as instances of sufficiently concentrated and sufficiently distributed power for analytical purposes only. In practice, concentration of power is not a characteristic of national political systems. Rather, it is issue-specific and therefore ranges within individual countries. While in Russia power is more likely to be consolidated in the hands of the government, its civil society has ample bargaining power on a selection of issues that the regime deems to be not strategically important. Similarly, although in Ukraine power tends to be more distributed than in Russia, its various political actors may still hold concentrated power in the case of specific issues.

Marina Zaloznaya is Associate Professor of Sociology and Criminology at the University of Iowa. E-mail: marina-zaloznaya@uiowa.edu. William M. Reisinger is Professor of Political Science at the University of Iowa. E-mail: william-reisinger@uiowa.edu.

No Revolution of Dignity for Ukraine’s Judges:

Judicial Reform after the Euromaidan

Maria Popova

McGill University

Daniel J. Beers

James Madison University

Abstract: Following the historic Revolution of Dignity in 2014, Ukraine’s leaders embarked on a major overhaul of the country’s judicial sector. Against a backdrop of favorable conditions, including strong public support for reforms, vigorous political competition, and the insistence of international partners, Ukrainian lawmakers enacted a sweeping array of legislative and institutional changes, purportedly to strengthen judicial independence and improve the transparency and accountability of the courts. Yet five years on, this high-profile restructuring appears to have had little substantive impact on entrenched patterns of political subservience and corruption. Why has Ukraine’s rule-of-law breakthrough failed to live up to its promise? The answer, we argue, requires a closer examination of the nature and internal dynamics of the reform process—in particular, political elites’ shallow commitment to powerful, independent courts, as well as the absence of a strong reformist constituency within the Ukrainian judiciary.

If ever a country seemed ready for a rule-of-law breakthrough, it was Ukraine in 2014. The massive Euromaidan protests demonstrated Ukraine’s consistently high demand for law, which has been deemed crucial to the development of a well-functioning judiciary (Hendley 1999; Pistor 2002; Berkowitz, Pistor, and Richard 2003). During the Revolution of Dignity, which eventually toppled President Yanukovych, the average protester was advocating for the rule of law, rather than for European integration, Ukrainian nationalism, or the partisan opposition (Onuch 2014; Popova and Shevel 2014). Demand for law remains high: a majority of Ukrainians report that judicial reform should be the government’s top priority, while civil society has spawned several organizations devoted exclusively to monitoring the process.

Since 2014, Ukraine has increased the institutional or de jure independence of the judiciary, considered by many to be a prerequisite for de facto independent courts and the rule of law (Larkins 1996; Burbank 1998; Russell and O’Brien 2001; etc.). The new Ukrainian government immediately turned its attention to judicial reform, and within a few weeks of the revolution Ukraine’s judges received a stronger mandate for self-government—the rank-and-file judges on each court could elect their chair in a secret ballot (Popova, 2014). Over the following four years, almost a dozen new laws brought the institutional setup of the Ukrainian judiciary closer to international best practices (Szostek 2017).

More broadly, Ukraine has vigorous political competition, which many believe fosters the emergence of independent courts (Ramseyer 1994; Ginsburg 2002; Stephenson 2003; Epperly 2013; etc.). Former president Poroshenko had to change his Prime Minister, reshuffle his government, and compromise with opponents in parliament. Challenges have come from all sides—from the official opposition, the aptly-named Opposition Bloc; from Poroshenko’s one-time allies in parliament; and even from ambitious executive appointees. As a case in point, in May 2015, former Georgian president Saakashvili obtained Ukrainian citizenship to become the governor of Odessa and the face of the Poroshenko Administration’s radical reforms. By 2017, the two had fallen out: Saakashvili was fired, founded a new opposition movement, organized anti-government protests, and was stripped of his citizenship.

Furthermore, Ukraine has been subject to strong external pressures from foreign investors and European conditionality mechanisms, which are widely viewed as catalysts of successful rule-of-law reforms (Schimmelfennig and Sedelmaier 2004; Vachudova 2005; Bechev and Noutcheva 2008). The EU and the IMF have closely monitored judicial reform, offered several carrots (loans and visa-free travel), and threatened to withhold them (again, loans) when they perceived the Ukrainian government to be wavering in its commitment to judicial reform and the rule of law (Popova 2017).

Despite this long checklist of auspicious conditions, the promise of the Revolution of Dignity to foster the rule of law in Ukraine has gradually dissipated. From 2014 to 2019, the judiciary dragged its feet on holding anyone accountable for the massive corruption and abuses of power of the Yanukovych administration that had been revealed during the protests. The high-profile restructuring of the judiciary yielded few visible signs of change in implementation, and 2019 presidential challenger Zelensky ran on a promise to do better. Both within Ukraine and among its international partners, the dominant perception is that the courts are as dependent and corrupt as ever.

This analysis takes stock of the wide array of legislative and institutional changes enacted in the name of judicial reform since the 2014 Euromaidan protests. We highlight the remarkable breadth of these changes, as well as their startling lack of impact on institutional norms and practices. Despite the appearance of a radical break with the past, the evidence does not suggest deep or abiding changes in the way Ukraine’s judicial system operates. Indeed, Ukraine’s ambitious reform agenda seems to have generated very little in the way of substantive change.

On a conceptual level, we point out that reform is a complex and multilayered phenomenon. It can take many forms, and its impact on judicial independence and the rule of law is far from certain. Reform is not merely a destination but a process of transformation, about which we understand surprisingly little. In the literature, there is a lot of discussion about factors that trigger or impede the initiation of reforms—whether domestic political competition, the institutional configuration of the judiciary, or international pressures on domestic actors. But how does the process unfold from there? Independent judiciaries do not appear de novo or in a vacuum—they have to replace politically subservient courts and the arbitrary use of law for political purposes. Yet we are surprisingly oblivious to the mechanics of the metamorphosis. Can we teach old dogs new tricks—i.e. do dependent judges become independent under the right circumstances? Or is it necessary to replace old, dependent judges with new, independent ones? Who needs to do the purging—politicians, civil society or the judiciary itself? How should the purge happen—through formal measures in one fell swoop, or gradually, through changes in the informal norms that govern the behavior of the judiciary?

We use Ukraine’s post-2014 judicial reform experience to grapple with some of these theoretical questions. We argue that politician-initiated legislative and institutional reforms tend to fall short (at least in the short- to medium-term) if there is shallow elite commitment to the rule of law. Civil society pressure cannot overcome obstructionism, and indeed can be counterproductive in the long run, unless it goes hand in hand with reforms that are driven, embraced, and implemented by an internal constituency within the judiciary. While it is too soon to tell where the reform process in Ukraine will end, it appears that reforms have actually increased political pressure on judges and decreased the prospects for genuine democratic change—quite the opposite of reformers’ purported goals.

The Meaning of Judicial Reform: A Conceptual Framework

Surprisingly, most of the scholarship dealing with judicial reform takes the concept for granted and rarely bothers to define it. Judicial reform is often implicitly understood as a set of institutional changes—whether that refers to small modifications, such as switching from partisan to non-partisan judicial elections (Hall 2001) or changing judicial tenure rules (Finkel 2008), or major institutional restructuring, such as the adoption of judicial self-governance through the judicial council model (Magalhaes 1999). Other studies on judicial reform define it in terms of outcomes—usually normatively desirable judicial features, such as independence or efficiency (Botero et al. 2003). In such cases, the literature tends to assume that judicial reform has either a positive impact or no impact on outcomes such as independence, power and efficiency. When the effects are positive, reform is deemed successful. When no positive effects accrue and the status quo persists, reform is judged as a failure.

This underdeveloped conceptualization misses a lot. First, reform can be consequential without any institutional restructuring of the judiciary. Often, changes in the informal norms that structure the relationship between the judiciary and other branches are the most transformative for the functioning of the judiciary. Second, judicial reform can reduce the independence, power, and efficiency of the courts, either as an unintended consequence or as a deliberate strategy. When political actors attempt to limit the independence or power of the judiciary through institutional restructuring or changes in informal norms, they are also pursuing judicial reform. Sometimes they sell reform as an attempt to increase efficiency, when the surreptitious goal is to curtail power and independence. Alternatively, they openly argue that judges are unaccountable and overly activist and hence the judiciary needs to be reformed to better serve the common interest.

Put differently, judicial reform is a multidimensional phenomenon that varies considerably in its content, form, and function. Judicial reform may affect one, multiple, or all levels of the judiciary and the institutions that govern it; it may include legislative, institutional, and/or informal norm changes; and it may alter the internal functioning of judicial institutions, the judiciary’s relationship with the other branches of government, and/or the popular legitimacy of the courts. Moreover, the effects of reform measures can vary considerably. Reforms may embolden the courts or limit their power and independence; they may generate deep and enduring changes or have little lasting impact on the de facto function or independence of the courts.

To better reflect this complicated reality, we outline three dimensions of judicial reform—to which we refer as scope, mode, and impact—to highlight the variety of possible configurations and outcomes subsumed by the concept. In the process, we identify some of the key oversights and mistaken assumptions that obscure our understanding of what judicial reform is and how it takes shape.

Scope

The concept of scope refers to the range of actions associated with the reform process. Reform can be limited in scope, focusing on only a single issue, institution, or rung of the judicial hierarchy. For example, a change to the rules governing the appointment process for new judges is a reform with limited scope. Other limited-scope reforms might target only the lower courts, only appellate courts, or only the Constitutional Court and its jurisdiction. In contrast, a comprehensive reform program with broad scope would affect many levels of the judicial hierarchy and institutions of judicial governance—including judicial councils, judicial appointments commissions, and/or judicial administration bodies.

One of the common misconceptions among both advocates and opponents of reform, as well as the public at large, is that scope is positively correlated with impact. We assume that the bigger or more wide-ranging a reform program, the more potential impact it has. Reformers often conflate scope with impact, using it as a “sales tactic” to give the appearance of dramatic change, because it is easier to convince people that change is afoot when they can see widespread and highly visible reforms. But appearances can be deceiving. Reforms can tinker with lots of unimportant things (broad scope) to create the appearance of reform without having much of an impact. Conversely, a change to one seemingly minor rule—e.g., the retirement age of Supreme Court justices (limited scope)—has the potential to have a huge impact on the composition of the court and the political independence of the judiciary.

Mode

The mode of reform—legislative, institutional or normative—refers to the type of changes or initiatives associated with the reform process. Judicial reform is most commonly enacted through legislative amendment. Reforms often involve changes to existing legislation that outlines the structure of the judiciary; judicial careers and budgeting; judicial self-governance; and the formal relationship between the judiciary and other institutions. Legislative changes can also alter the codes that courts work with, influencing the jurisdiction of the courts or their level of discretion. Another common mode of judicial reform is institutional restructuring. This can include creating new courts, closing down existing courts, creating or reorganizing institutions of judicial self-governance, and introducing new institutions in other branches of government with oversight powers over the judiciary. All institutional restructuring involves adopting new legislation or amending existing legislation (and sometimes the constitution), but not all legislative amendments rise to the level of institutional restructuring. A third mode of judicial reform involves normative change. This type of reform attempts to influence the informal norms that govern the behavior of actors within the judiciary or interactions between the judiciary and other branches of government. This can include attempts to violate existing norms, alter existing norms, or introduce new informal norms.

As might be expected, the most visible and readily achievable modes of reform—namely, legislative and institutional—are also the most common. Normative change is the slowest and most difficult kind of reform because it requires not only altering legal or institutional rules, but also changing the way that judicial actors think and behave. Thus, it is also arguably the most consequential and enduring of the three. However, the modes of reform do not follow a clear hierarchy, nor are they mutually exclusive. Legislative and institutional reform packages often include normative objectives, whether explicit or implicit. Likewise, reformers interested in normative change frequently rely on legislative or institutional reforms to achieve their goals. The key point is that where reformers place the emphasis can affect outcomes. Reforms that focus exclusively on legislative or institutional changes without concern for normative change can easily fall short, producing no discernable change in the de facto functioning of the courts, or backfire due to a misunderstanding of existing norms.

Impact

The third dimension of judicial reform is its impact, or the degree of change in the functioning of the judiciary. Impact can be difficult to measure and may lag behind the other dimensions of reform. But without this dimension, judicial reform is not interesting or consequential in and of itself. Among the range of possible impacts are turnover in court personnel, changes in judicial behavior and the functional independence of the courts, and/or changes in the perceived power and independence of the courts.

Significant turnover in personnel is among the most visible signs of reform impact. Court-packing reforms, lustration reforms, closure of existing courts or foundation of new courts, changing procedures for disciplining judges—all can have the effect of removing old judges and/or recruiting new ones. This turnover can produce deep change when newcomers bring new norms and values that transform the institution from within. However, turnover can also be a sign of only superficial change: the faces on the courts may be new, but the way in which the institution behaves can remain fundamentally the same.

Another potentially measurable indicator of reform impact is the way in which judges decide cases. If reform measures are effective, we may find evidence of courts breaking with established patterns of political subservience and asserting their functional independence from powerful elites. This could include deciding cases against the interests of powerful political and economic actors or rejecting politically-motivated cases intended to punish or intimidate incumbents’ political rivals.

Finally, changes in judicial behavior can eventually lead to changes in perceptions of judicial power and independence on the part of judges and the public alike. These changes in perception may affect the level of public trust in the judiciary, ultimately improving the ability of the courts to serve as a guarantor of democratic rights and freedoms.

How Change Happens

The literature on judicial reform says very little explicitly about the mechanics of institutional transformation. However, much of the research assumes an implicit theory of change, which goes something like this: The reform process begins with political leaders, who—compelled by some combination of public demand for change, domestic political competition and/or international pressure—realize that judicial reform is necessary and ultimately in their best interest. These leaders enact a set of reforms that change the incentive structures facing judicial actors and alter the power dynamics between judicial institutions and other interested parties. In successful cases, these changes trigger a kind of spontaneous rebirth of the judiciary. Judges, now rid of political pressure and the corrosive influence of corrupt officials, are finally able to realize their independence and fulfill their professional obligations to uphold the rule of law. Court cases are now judged on their legal merits rather than the interests of powerful political and economic actors. This is the thrust of the political insurance model of judicial reform first proposed by Tom Ginsburg (2003) and built on by many others (Finkel 2005; Pozas-Loyo and Rios-Figueroa 2010; Negretto 2013; Epperly 2013; etc).

The problem with this theory is that the reform process is rarely, if ever, so clear-cut. In practice, the motives of political reformers are mixed, and sometimes explicitly anti-democratic. Public cries for accountability and civil society activism can help facilitate change, but they can also increase the vulnerability and politicization of the courts. Judges supposedly liberated by the reform process may in fact be uninterested or unprepared to claim their newfound independence—or rightfully skeptical about the true motives of reformers and the risks for judges who break ranks and challenge existing hierarchies and behavioral norms. In short, the process of change is likely to be messier and less linear than we may imagine, because judicial systems in transition are full of actors imbedded in, and conditioned by, a complex political and institutional environment that shapes the way they understand that process.

In this analysis, we describe how the Ukrainian example exposes the blind spots in our theoretical understanding of the judicial reform process. A country seemingly poised for a rule-of-law breakthrough, Ukraine has instead witnessed a flurry of reform activity and political fanfare, accompanied by precious little functional change in the judicial sector. Specifically, despite the appearance of favorable conditions, we contend that Ukraine’s highly contentious political environment and history of deeply politicized courts have fostered shallow elite commitment to the rule of law and a weak internal constituency for reform within the judicial sector. Though nearly absent from the scholarship on judicial reform, we argue that these factors have played a decisive role in Ukraine, undermining the transformative potential of legal and institutional reform measures and scuttling the possibility of de facto independence and the rule of law.

Ukraine’s Post-Maidan Judicial Reforms

By all accounts, the vast scope of the post-Maidan reform agenda is one of its most notable features. The Poroshenko administration enacted sweeping and comprehensive changes throughout the judicial sector. Every level of the court hierarchy and all institutions of judicial self-governance underwent some form of restructuring. A host of new institutions were created. In legislative and institutional terms, the Ukrainian judiciary underwent a tectonic shift. Yet, as we discuss, the impact of these changes is much less clear.

Legislative Changes

Between March 2014 and early 2019, the Rada passed at least eight major new pieces of legislation, including a set of constitutional amendments, aimed at shaping the judiciary. The first of these laws was adopted on April 8, 2014, barely 6 weeks after Viktor Yanukovych fled the country. The Law on Restoring Trust in the Judiciary, widely known as the judicial lustration law, introduced sweeping changes. The law had two cornerstones: 1) the automatic dismissal of all judicial leadership cadres—court chairs and deputy chairs, the members of the High Qualification Commission of Judges (HQCJ), and the members of the High Council of Justice (HCJ); and 2) the formation of an ad hoc commission to investigate complaints against judges who allegedly violated defendants’ rights during Euromaidan and decide whether to recommend some judges for dismissal by the HCJ on the grounds of judicial oath violations.1

In February 2015, the pro-Poroshenko parliamentary majority adopted another judicial reform law—On Guaranteeing the Right to a Fair Court—drafted and submitted by the Presidential Administration. The law restored the jurisdiction of the Supreme Court, which had been severely curtailed by Yanukovych’s 2010-11 judicial reform. The law also introduced a qualification procedure for judges that was designed to enable the HQCJ to re-assess judges’ professional competence. This procedure was a step backward for institutional independence, as it could be used as a tool for rewarding loyal judges and punishing disloyal ones.

Judicial reform continued in the summer of 2016 with the adoption of a set of constitutional amendments and amendments to the main piece of legislation governing the structure of the judiciary—the Law on the Judicial System and the Status of Judges. The June 2 constitutional amendments fully reversed Yanukovych’s judicial reform by reincorporating the high specialized courts created under his tenure into the Supreme Court. In a major break with Ukraine’s post-Soviet practice, the constitutional amendments took away the President’s power to create and close courts, transferring it to the Rada. In exchange, the President received the power to immediately appoint all judges to life terms, while the Rada was removed from the judicial appointment process. Through amendments to ordinary legislation, judges’ functional immunity from prosecution was reduced and the list of transgressions that called for disciplinary action against them by the judicial self-government organs became longer. Finally, new legislation introduced a new institution—private judicial act enforcers.

In January 2017, a new law reconstituted the High Council of Justice (Vysha Rada Yustitsii) into the High Council for the Administration of Justice (Vysha Rada Pravosuddya). In July 2017, a new law on the Constitutional Court introduced many changes. In October 2017, in a legislative initiative of a scope unprecedented in Ukraine’s post-Soviet history, three of the main codes (the Commercial Procedural Code, the Civil Procedural Code, and the Administrative Code) were rewritten. The pro-presidential majority that voted through the revision of the codes in parliament has billed it as a reformist step toward a better legislative basis for a more efficient and “more European” judiciary. However, working with new legislation can also adversely shape judges’ behavior. As judges work to learn the intricacies of the new provisions, they may be more insecure in their decisions and more vulnerable to “guidance” by judicial superiors in individual cases. In June 2018, the Rada adopted a compromise law on the creation of an Anti-Corruption Court. Another law further regulating the function of the court is in the works.

Institutional Changes

The Poroshenko administration presided over an explosion of institutional creation within and around the judiciary. The Supreme Court, Constitutional Court, and High Council for the Administration of Justice were reconstituted with different membership, jurisdiction, rules of standing, and institutional setup. Moreover, the majority of the changes were in line with what are perceived to be best practices in the institutional setup of the judiciary: strong judicial self-government, powerful high courts with broad jurisdiction, and institutional insulation. According to the comparative judicial politics literature, these elements form a necessary (if not sufficient) condition for the development of independent courts, which can effectively constrain the political power of the executive (Burbank 1998; Magalhaes 1999; Helmke and Rosenbluth 2009; Rios-Figueroa and Staton 2012; etc).

The reconstituted and renamed High Council for the Administration of Justice (HCAJ) is a stronger organ of judicial self-government (that is, supervising the work of judges and courts) than its predecessor. HCAJ members now take leave from their regular jobs as judges, prosecutors, or lawyers and work full-time rather than part-time, as they did before. This change is supposed to reduce their reliance on the work of staff, whose behavior is less transparent and accountable. The judicial corps now has a controlling share of representatives on the new institution (11 out of 21, of whom 10 are appointed by the Congress of Judges and the eleventh is the Chair of the Supreme Court, serving ex officio); the President and the Rada can appoint just two members each. This step formally greatly increases the insulation of this judicial institution from the political branches. The remaining 6 members of the HCAJ are appointed by the professional associations of lawyers, prosecutors, and legal academics. Finally, the new institution has full power over judicial careers and the courts’ budgets, further enhancing the structural insulation of the judiciary from the political branches—judges no longer have to beg politicians for money to assure that the courts are properly financed.

Major institutional reforms have reached the Constitutional Court as well. The Ukrainian Constitutional Court can now be accessed through the constitutional complaint option that exists in many European countries: any Ukrainian citizen can challenge the constitutionality of a given law as a way of appealing a final court decision. The new Constitutional Court has 18 justices, appointed to fill three quotas (presidential, parliamentary, Council of Judges) and following formal competitions. Justices will serve only one nine-year term, but after leaving the Court will be entitled to a lifetime salary equal to 50% of their salary on the bench. The goal of the post-tenure salary is to foster independent behavior on the bench by reducing the need for justices to issue quid pro quo decisions as an investment in their post-tenure livelihood.

A new Public Integrity Council (PIC) was launched in the fall of 2016 alongside the High Qualification Commission for Judges (HQCJ) to vet candidates for judicial office. The PIC is comprised of 20 members, who were required to show that they had pursued an anti-corruption agenda within civil society for at least 2 years prior to their appointment to the council (i.e., since at least fall 2014). The purported goal of this institution is to increase the transparency and accountability of the judicial cadre renewal process by involving civil society.

A High Anti-Corruption Court and an Anti-Corruption chamber within the Criminal Cassation chamber of the new Supreme Court were created during Poroshenko’s term and are still in the works as this article goes to press. After almost two years of wrangling and under significant pressure by the IMF and the EU, the Rada adopted a law on the High Anti-Corruption Court in June 2018. The court will have 35 judges hearing only political corruption cases, and its decisions will be able to be appealed in a dedicated chamber at the Supreme Court. The judges on the new court will be appointed through a public competition run by the HQCJ. The members of the HQCJ commission running the competition will be appointed to fill the quotas allocated to the President, the Rada, the Minister of Justice, and the international community. The points of contention that delayed the adoption of the law were the make-up and role of the international community’s quota. Predictably, the international organizations demanded that the experts they appoint should have greater autonomy and power, a move the presidential administration resisted. In the end, a compromise was reached. The law gives meaningful veto power to the international experts: a candidate cannot be appointed to the court unless she has the support of at least half of the international experts. However, the presidential administration managed to push through a provision allowing Ukrainian citizens to serve as international experts as long as they are backed by the international community. Many see Ukrainian citizens as potentially more vulnerable to pressure by the Ukrainian political establishment. As this article goes to press, the HQCJ and the international experts are still vetting candidates.

Within the executive, the Poroshenko administration had an active point man for the judiciary, a former lawyer (and thus relative outsider to the judiciary), Aleksei Filatov. In 2014, Filatov formed a Council for Judicial Reform Issues and invited key administrative leaders within the judiciary (i.e., high-level judges and court chairs) to participate in regular consultations. The Council for Judicial Reform within the Presidential Administration drafted the judicial reform bills that the Presidential Administration submitted to parliament.

Finally, a slew of new institutions tasked with tackling corruption have been formed outside the judiciary. Arguably, their creation also amounts to judicial reform, as they redrew the playing field for prosecution of corruption—a central mandate of the judiciary that it has thus far failed to fulfill. The National Anti-Corruption Bureau of Ukraine (NABU) first appeared in March 2015. It is an autonomous institution whose director is selected and appointed by the president but cannot easily be removed by him. NABU can investigate high-level political corruption, although it cannot prosecute it. In September 2015, a new Special Anti-Corruption Prosecution (SAP) was created through a decree of the Prosecutor General. SAP can oversee the legality of NABU’s investigations and prosecute NABU’s cases in court. Within the executive, a National Agency for Corruption Prevention (NAZK) was launched in August 2016. This organ focuses on the formation of government policy for fighting corruption.

Normative and Behavioral Changes

Although informal norms are widely understood to be sticky, the vast institutionalist literature descended from Douglas North’s ground-breaking work argues that strategic actors alter their behavior in response to formal institutional changes (North 1991). However, the informal norms that have shaped judicial behavior in post-Soviet Ukraine seem to have survived the sweeping and comprehensive structural reforms of the Poroshenko era. First, deference to court chairs is alive and well, especially in the lower courts. Analysis of the April 2014 court chair elections (Popova, forthcoming) shows that the judicial rank-and-file did not use the direct election to bring about major change in the courts. On the contrary, leadership continuity and retention were the norm up and down the judicial hierarchy and across the country’s regions. Overall, over 80% of court chairs retained their positions. Figure 1 shows retention rates by type of courts, level of courts, region, and individual characteristics. Multivariate regression analysis shows that Yanukovych protégés (i.e., judges parachuted in by Yanukovych to serve as chairs of courts in which they had not previously worked) were significantly more likely to lose their positions in the April 2014 elections. However, even for these chairs, the re-election rate was 60%, which seems quite high given that their political sponsor had fled the country. This result is consistent with a strong norm of deference by rank-and-file judges to their administrative leaders.

There was no strong regional dimension to the chair elections—judges in Western and Central Ukraine were roughly as likely to re-elect their Yanukovych-era chairs as were judges in Eastern and Southern Ukraine.2 This is a somewhat surprising finding, given that Western and Central Ukraine purportedly experienced significant civil society mobilization around rule-of-law issues and were the focus of “trash can lustration” actions and other attempts to interfere in the judicial election process. The lack of regional variation thus suggests that the judicial norm of hierarchical deference is quite strong, holding true across traditional East-West ideological and political cleavages.

Figure 1. April 2014 Court Chair Re-Election Rates (percentage)

Source: data collected by authors.

Another informal norm that stood firm following the political earthquake that was the Euromaidan is executive dominance over judicial governance through the appointment of “pro-presidential” members of the judicial self-governing institutions. The judicial lustration law initially triggered a confrontation between Yanukovych-era judicial elites, who wanted to avoid being purged, and members of the incoming political elite, who aspired to take their positions. This confrontation tied up the two institutions of judicial self-government, the HQCJ and the HCJ, for the rest of 2014. Although the lustration law provided for the immediate disbanding of the HQCJ, the HQCJ continued to operate with its Yanukovych-era membership for months, as members delayed the process by challenging their dismissal in the courts. The High Council of Justice (HCJ) also became a battlefield as Yanukovych-era judicial playmaker Sergei Kivalov attempted to safeguard his control over the judiciary (Popova 2014). The stalemate at the HQCJ was broken by early 2015. The new chair had no previous experience as a judge but had been active in a lawyers’ association that gravitated toward the Poroshenko administration. In an introductory interview, he was up-front about both his close ties to the Presidential Administration and judges’ resentment that an outsider had been appointed to lead one of the judiciary’s most powerful institutions (High Qualification Commission of Judges of Ukraine n.d.). By the spring of 2015, the HCJ was functioning and the majority of its newly-elected members were loyal to the Presidential Administration, whether they had long-standing ties to Poroshenko or had more recently pledged their allegiance. The organ was chaired by Igor Benedisyuk, an appointee from the presidential quota.3 The reconstituted judicial self-government organ, the HCAJ, though formally much more insulated from the executive, informally represented the continuation of the norm of executive dominance, as it was also chaired by Benedisyuk.

“Telephone law,” a related informal norm of executive interference in judicial decision-making, also seems to have been unaffected by the institutional reconfiguration of the judiciary. “Telephone law” involves unsolicited calls in which politicians or their representatives urge judges or their superiors to resolve a given case in a particular way (Ledeneva 2008; Hendley 2009; Popova 2012a). In September 2017, two famous pranksters demonstrated that judges find it eminently credible that a representative of Poroshenko would call them and give them instructions about how to adjudicate a case. In one call (posted on YouTube),4 the prankster—posing as Rada deputy Granovsky—calls a judge hearing one of Saakashvili’s cases in a district court in Lviv, asks concrete questions about evidence in the case, emphasizes that Poroshenko is following the case, and urges the judge to consider the case very seriously. The judge proclaims his gratitude to the President for having given him life tenure and assures Poroshenko’s purported representative that the law will be applied in the correct fashion. In another call,5 the chair of another district court in Lviv, where another of Saakashvili’s cases and a case against David Sakvarelidze are being heard, gives “Granovsky” important details about the movement of the cases, lays out her planned course of action in the case, and then asks, “As far as I understand, [this] is what we are supposed to be doing. Do I understand correctly?” And if the pranksters are, in a way, trying to prove with a “field experiment” that telephone law is alive and well, there are also reports from judges about such conversations. In 2015, Kyiv Appellate Court chair Anton Chernushenko became a whistleblower about “telephone law.” He alleged that he had met the Presidential Administration’s point person for the judiciary, Aleksei Filatov at the Presidential Administration shortly after Poroshenko’s inauguration. At the meeting, Poroshenko allegedly personally explained that Filatov and Chernushenko should collaborate in the future, and that if Filatov called to seek clarifications about cases, Chernushenko should interpret Filatov’s opinions as the president’s positions (Ukrainska Pravda 2015a). Chernushenko alleged that after he refused to collaborate closely with the Presidential Administration, he became the target of a corruption investigation by the procuracy and the secret services. The judge was accused of manipulating the supposedly random assignment of court cases and personally distributing politically sensitive cases. A raid of his office also found some cash. Following these accusations, Judge Chernushenko fled the country.

One post-Maidan change is that judges have increasingly been subjected to credible pressure and interference by civil society activists. While it may be too early to call this an emerging informal norm, disruptions and threats from activists are becoming a common occupational hazard for Ukrainian judges. The mobilization of civic groups for court “monitoring” started as early as the April 2014 court chair elections campaign. At the time, civil society groups wanted to make sure that rank-and-file judges voted independently and that their votes were counted accurately. Other actions sought to punish judges who, activists believed, had violated citizens’ civil and human rights during the Euromaidan yet remained on the bench. These “trashcan lustration” actions brought about the resignations of a number of judges, who had been publicly humiliated. More recently, activists spent weeks camped outside the home of HCAJ chair Igor’ Benedisyuk, threatening him with retribution. These incidents likely further undermine judges’ self-perception of their independence and efficacy. Instead of serving to counterbalance pressure and interference from political incumbents, as is purportedly one of the activists’ primary goals, they underscore the point that judges in Ukraine are not free to decide cases in line with their bona fide interpretation of the law but need to weigh competing sources of pressure.6

Reform Impact

There is a certain appeal to trying to assess the impact of the sweeping reforms by reference to turnover: the higher the turnover, the deeper the impact. Figures reported by the judicial self-government organ show that a total of 2,470 judges, or 28% of all Ukrainian judges, resigned their positions between 2014 and late 2017 (Lukyanchuk 2018). Most of these spots have not been filled, with the result that many district courts around the country are struggling to handle their caseloads. The retention elections for court chairs, which were ordered immediately following victory on the Maidan and which took place in April 2014, removed about one-fifth of chairs at all levels (Popova, forthcoming). At the highest echelons of the judiciary, turnover is still higher. Between 50 and 70% of judges appointed to the reconstituted Supreme Court did not serve on previous versions of the country’s highest court (see Table 1).

Table 1. Candidates for Appointment to the New Supreme Court

Nominee’s current

position

Civil chamber

Administrative chamber

Criminal chamber

Commercial chamber

Supreme Court judge

1 (3%)

2 (7%)

0

1 (3%)

Specialized High Court judge

14 (47%)

8 (27%)

9 (30%)

11 (37%)

Appellate court judge

6 (20%)

8 (27%)

10 (33%)

2 (7%)

Lower court judge

0

4 (13%)

3 (10%)

3 (10%)

Lawyer

2 (7%)

0

1 (3%)

6 (20%)

Academic

3 (10%)

5 (17%)

3 (10%)

5 (17%)

Former judge

0

1 (3%)

2 (7%)

2 (7%)

Nominees rejected by High Council for Administration of Justice

4 (13%)

2 (7%)

2 (7%)

1 (3%)

Source: data collected by authors.

As Table 1 demonstrates, in each chamber (except the Criminal Chamber), the highest proportion of nominees are judges who served on previous incarnations of the Supreme Court. In the Civil Cassation chamber, these judges make up 50% of nominees; in the Administrative Cassation chamber, they constitute 34%; and in the Commercial Cassation chamber, they comprise 40%. If we include the judges who have served on appellate courts (the judicial hierarchy rung immediately below the Supreme Court), all four cassation chambers are dominated by experienced judges—70% in the Civil chamber, 61% in the Administrative chamber, 63% in the Criminal chamber, and 47% in the Commercial chamber.

Nevertheless, the assumption that greater turnover means deeper reform is misguided. At the lowest levels of the judiciary, we simply do not know who resigned and who decided to remain in their positions. One possibility is that most of the 2,500 judges who left the judiciary were thoroughly corrupt and/or politically enmeshed with the Yanukovych regime. Fearing that their corruption and/or politicized decisions would be exposed by the reform measures and that they would face disciplinary measures, dismissal, or even criminal charges, they resigned to save face and avoid punishment. If that is the case, then the comprehensive reforms have had a deep impact. However, the sluggish and ineffectual work of the ad hoc Commission tasked with investigating judicial corruption and abuses of office during Maidan suggests that Yanukovych loyalists and corrupt judges had little to worry about. The commission received complaints against 351 judges, but less than one-tenth of them (31, or 9%) were fired in 2016, and only 3 in 2017. The window for pursuing these cases has now closed.

A more plausible scenario is that judging in post-Maidan Ukraine is as high-stress a job as it has ever been, and judges are leaving in droves for greener pastures. Many of those who resigned likely feared that the judicial lustration project was a political purge behind a façade of fighting against judicial corruption. Some presumably feared being scapegoated and criminally charged for infractions they either did not commit or committed along with most of their colleagues. Others may have worried about being attacked and harassed by “court monitoring” vigilantes. Still others possibly wanted to avoid being saddled with lose-lose cases (prosecuting anti-Maidan activists in an Eastern/Southern court, for example), so they left pre-emptively. If that is the case, the reform may have reinforced the norm of executive dominance over the judiciary and exacerbated judicial corruption and dependence.

In the higher courts, turnover likely stemmed from the replacement of Yanukovych loyalists with Poroshenko loyalists, rather than from an influx of reformist elements from the lower rungs of the hierarchy or from outside the judiciary. As Table 1 shows, only about 10% of new appointees to the Supreme Court were scholars, while another 10% were lower-court judges.

Perceptions of judicial independence offer another perspective on the impact of reform. Perhaps as a result of sustained political pressure and a freer media that obsessively covers the courts’ every move, the judiciary is now perceived as more politically dependent than ever before. A 2015 survey by the Center for Political and Legal Reforms shows that 80% of respondents think judges are dependent on politicians and/or oligarchs. Another 2015 survey by the same organization shows that less than 10% of judges themselves believe that the Ukrainian judiciary is independent. Even more damningly for the current government, 46% of judges believe that political pressure on judges today is just as strong as under Yanukovych, while 29% believe that political pressure has increased under Poroshenko! That view changed little in 2017. A USAID survey conducted in August-September 2017 revealed that when asked to assess the current state of the Ukrainian judiciary, respondents most often answered by talking about corruption or political dependence. Fifty-eight percent thought that corruption was on the rise, while 49% thought that new judges were selected using political, rather than meritocratic, criteria. Only 16% think that judges are independent from politicians and oligarchs.

In sum, popular trust in the judiciary has plunged below Yanukovych-era levels and ordinary judges feel less independent from politicians than ever. The 2015 Center for Political and Legal Reforms survey found that only 9% of respondents trusted the courts, compared to 40% who trusted the President and the Army, and approximately 30% who trusted the Rada and the government. By 2017, trust in the Rada and the government had collapsed to 10%, according to the aforementioned USAID survey, while courts remained profoundly distrusted, with 12% trusting them and 65% distrusting them.

The Breakthrough that Wasn’t

Taking stock of Ukraine’s reform trajectory, we are confronted with a puzzle: Why have apparently favorable conditions generated so much legal and institutional change yet so little impact? In other words, why has Ukraine’s rule-of-law breakthrough failed to live up to its promise? The answer, we argue, requires a closer examination of the internal dynamics of the reform process—in particular, the shallow commitment of political elites to the rule of law and the absence of a strong reformist constituency within the Ukrainian judiciary. We contend that these factors constitute key variables in the reform process that are central to understanding the Ukrainian experience, as well as the experiences of transitioning states more broadly.

Shallow Elite Commitment

Political elites play a vital role in shaping the reform agenda and overseeing its implementation. As veto players in the policy process, they may choose to cede substantial authority to an independent judiciary or to guard their political power at all costs. Of course, it is rare to find political elites who openly oppose the idea of a strong and independent judiciary; to do so is to mark oneself as explicitly anti-democratic, an apologist for corruption, and a target for public criticism and scrutiny. Yet in practice, there is wide variation in the depth of elite commitment to the rule of law. Some ideologically committed elites are willing to invest political capital and scarce resources to further the rule of law, playing the role of “reform makers” who can tip the balance toward deep and lasting reform. Others feign support for the rule of law to keep up appearances, while working behind the scenes to keep the courts weak and politically dependent. Despite public declarations to the contrary, these “reform fakers” would prefer to constrain judicial authority and harness the power of the courts for personal or political gain (Popova 2017).

In Ukraine, the post-Maidan push for judicial reform was not enough to turn old elites into born-again believers in the rule of law. The circumstances simply left politicians with no choice other than to publicly support a reformist agenda despite their private misgivings. Evidence of this shallow elite commitment can be seen in many of the actions of political elites throughout the reform process. In the Rada, laws proposed by reformist MPs were watered down by competing drafts from the Presidential Administration. As old judges resigned, the Poroshenko administration dragged its feet on new judicial appointments that could breathe life into the reform process. In criminal cases involving judges implicated in corruption and abuses of power during the Maidan period, the General Prosecutors appointed by Poroshenko took a passive stance that betrayed their lack of commitment to reform. And despite promising to appoint independent international experts to the panel selecting justices for the new High Anti-Corruption Court, the Poroshenko administration made repeated moves to undermine this commitment. In sum, political elites repeatedly blocked the deepest and most transformative reform measures, suggesting an opportunistic and disingenuous posture toward the reform process.

Part of the explanation for this shallow elite commitment can be found in the nature of political competition in Ukraine’s highly contentious and unstable regime. Where intense political competition is coupled with deep uncertainty about the stability of the political system, the comparative evidence suggests that political elites are less likely to prefer independent courts (Popova 2010, 2012; Aydin 2013; Llanos, et. al. 2016; Bolkvadze 2019; etc.). Because incumbents cannot be assured of winning the next election—or even that the next election will be held—they are compelled to use any and all tools at their disposal to stay in office, including manipulating the courts to disadvantage, disqualify, or intimidate political opponents (Popova 2010; Trochev 2010). At the same time, well-established patterns of judicial politicization mean that political elites enjoy ready-made tools to control the courts, while there is reduced concern for public backlash among a populace accustomed to such behavior. The result is a kind of no-holds-barred fight for power and influence in which instrumentalization of the courts constitutes a logical and attractive strategy for maximizing short-term political advantage in an environment of long-term uncertainty (Popova 2012).

In Ukraine, we have seen these dynamics play out over and over: in the highly politicized defamation and electoral registration lawsuits used to silence political rivals and media organizations in the 1990s and early 2000s (Popova 2010, 2012); in the Yanukovych administration’s systematic attacks on judicial independence; in the highly politicized prosecutions of political figures like Yulia Tymoshenko and Yurii Lutsenko (Popova 2016a); and in the use of courts as a political weapon against protesters during Euromaidan (Popova 2016b). Ukraine’s judiciary has repeatedly been targeted by regime elites as a key political battleground. And with the stakes of political competition having only increased in the post-Euromaidan period, the political environment in Ukraine continues to incentivize elites to politicize the judiciary rather than to insulate it and protect it from influence.

Further, we contend that diplomatic and economic pressure from powerful actors like the EU has predictably failed to consolidate genuine elite commitment to reform. While the appeal of closer relations with Europe may influence political calculations in neighboring countries like Ukraine (Schimmelfennig and Sedelmeier 2004; Vachudova 2005; Grabbe 2006), there are clear limits to the efficacy of external pressure as a mechanism for fostering deep elite commitment to reform. A longstanding criticism of the EU accession process is that it tends to produce only surface-level lip service to reform among domestic elites. With its prescriptive focus on top-down legislation and institutional changes, critics argue that the EU incentivizes political leaders to focus on appeasing Brussels rather than on building consensus and fostering genuine ideological commitment to democracy and the rule of law. As a result, it has created states that have the formal trappings of democracy but are populated by elites with an informal aversion to liberal norms (Ágh 2015, 2016; Bugarič 2015).

In recent years, the “de-democratization” of EU member states like Hungary, Romania, and Poland has offered a stark illustration of this reality. In Hungary, Victor Orbán’s systematic assault on judicial independence and his sustained efforts to centralize political authority have called into question the country’s basic commitment to democracy (Ágh 2015, 2016; Scheppele 2018; Halmai 2018). In Romania, Victor Ponta’s attempts to undermine the Romanian Constitutional Court during an intra-institutional conflict in 2012 were followed by legislative changes aimed at decriminalizing official corruption to shield Romanian politicians from prosecution (Scheppele and Perju 2012; Karasz 2017). In Poland, the so-called Law and Justice Party’s efforts to purge and coopt the judiciary have so severely impeded judicial independence that experts warn there is “no longer a separation of law and politics” (Sadurski 2018; Kovács and Scheppele 2018). The EU has since taken the Polish government to task by triggering a procedure to punish Poland for a “clear breach” of Article 2 of the Treaty of the European Union, which guarantees the rule of law, and the European Court of Justice has temporarily suspended Poland’s judicial reform law in order to protect the judiciary’s independence. These developments raise serious questions about the commitment of political elites to basic democratic principles—and in turn, about the limits of EU influence—in states where the EU has actively lobbied for reform.

These uncertainties are compounded by the political and geographic limitations of EU influence in non-candidate states like Ukraine. Given public opposition within the EU to even a watered-down Association Agreement with Ukraine,7 the only realistic option for the foreseeable future is for Ukraine to remain part of the European Neighborhood Policy (ENP) framework, without the promise of future membership to sway the core political interests of political elites (Flenley 2013). In such a scenario, the EU’s already questionable influence over domestic elites is further constrained by the absence of a credible mechanism to advance formal accession negotiations. Thus, despite repeated interventions by the EU and the IMF, external actors lack the leverage to move the needle in Ukraine beyond shallow and irresolute commitments to reform.

Weak Internal Constituency

Another important influence—though one that is frequently absent from academic and policy debates—is the degree to which the reform process is supported by a reformist constituency within the judiciary. Given the many ways in which the judicial corps can influence outcomes, it is surprising how often judges are left out of the conversation about judicial reform. Judges and judicial leaders are a central part of the reform equation because they are essential to the day-to-day implementation of reform policies. A strong reformist movement within the judiciary can press for reforms and empower change agents within the court system to animate the reform process. Conversely, a judicial corps resistant to change—or afraid to challenge the status quo—can torpedo well-intentioned reforms and set in motion a self-fulfilling prophecy of political subservience and judicial corruption. Put simply, if judges are not part of the solution, they may well be part of the problem.

By internal constituency, we mean not just latent pro-reform attitudes among rank-and-file judges, but the proactive engagement and assertion of judicial authority by actors within the judiciary. This may take the form of organized judicial action, particularly through autonomous professional associations that give voice to judges as active participants in the reform process (Beers 2012). Alternatively, it may manifest as a more amorphous “ideational shift” within the judiciary that changes judicial perceptions about the role of judges in a democratic society and prompts judges to engage in “high-risk judicial activism” (Hilbink 2012). In either scenario, the key point is that judges have the power to shape the development of the judiciary and the judicial reform process in ways that are often overlooked and under-studied.

One possible configuration is a judicial corps with outspoken activist tendencies. The comparative evidence suggests that internal reform movements within the judiciary can be effective advocates of judicial independence and the rule of law, even in the face of political opposition. Such was the case, on Hilbink’s account, of activist judges in late-Franco-era Spain; they resisted political subservience and challenged the abuses of the regime by seizing upon “strategic opportunities to ‘speak law to power’” (Hilbink 2012, 590). More recently, the judiciary in post-communist Czech Republic provides a subtler but no less important example of judicial activism on behalf of democratic reforms. Despite a dearth of formal institutional protections and a pattern of anemic policy reforms in the judicial sector, the Czech Union of Judges led the charge for reform, vocally advocating for increased political independence, stronger mechanisms of transparency and accountability, and increased professionalization (Beers 2012). In many ways, the strength of the post-communist court system in the Czech case is a direct result of the judiciary’s own role in pressing for key reforms.8

In other cases, the primary impetus for reform may be located outside the judiciary—in a prosecutor’s office, ministry of justice, anti-corruption agency, or civil society group. However, a reformist movement inside the judiciary can still play a vital role, both by allying with other change agents to press for reforms and by grooming key personnel to lead newly reformed judicial institutions once a political opening appears. In Romania, where efforts to reform the judiciary have been protracted and highly contested, the reform process has benefitted substantially from an internal movement organized by mid-ranking judges from a handful of regional courts outside Bucharest. Dissatisfied with the existing leadership in the Romanian judiciary, the group founded an alternative judicial association, the National Union of Romanian Judges (UNJR), in the mid-2000s. Despite their modest ranks and relative obscurity in the early years, UNJR’s judicial activists vocally pressed for reforms and served as key allies to change agents outside the judiciary—in the Ministry of Justice, the National Anticorruption Directorate (DNA) and civil society (Beers 2012). By the early 2010s, when the judicial reform process in Romania was nearing a tipping point, several UNJR leaders had been promoted to key leadership positions in the Superior Council of Magistracy (CSM) and the National Institute of Magistracy (INM), where they continued to push a strong reform agenda from inside the judicial hierarchy.

Just as the reform process can be strengthened and emboldened by reform advocates in the judiciary, it can also be undermined by a judicial corps that is actively resistant to reform. Court presidents may circumvent official rules and procedures to reward cooperative judges and punish those who rebuff informal influence. Judicial councils may fix exam results or waive disciplinary sanctions for subservient judges linked to political patrons. Judges may dismiss corruption cases against well-connected political elites even in face of compelling evidence. Judicial authorities may even use newly minted powers and protections to actively subvert the reform process and shield corrupt elites from real accountability. The case of Bulgaria provides a clear example of this dynamic. Despite the occasional willingness of some political elites to pursue a substantial slate of reforms, the Bulgarian judiciary has stonewalled efforts to tackle official corruption and promote greater transparency and accountability in the legal sector. Judges have actively colluded with the same powerful politicians and bureaucrats they are meant to be prosecuting and used strong institutional protections to shield the judiciary from public and political pressure to take action against corruption (Popova 2012b). In this way, the Bulgarian example offers a stark picture of the dangers of ignoring the agency of judicial actors and assuming that greater institutional protections for judges will naturally and automatically strengthen the rule of law.

In a less spectacular but more common scenario, the judiciary may play a largely passive role in the reform process, neither actively endorsing nor staunchly opposing reform measures. However, this does not mean that the judiciary’s posture toward the reform process is inconsequential. In the absence of a clear reformist constituency, a highly politicized reform process can be damaging to both the function and the reputation of the judiciary, ultimately generating a vicious cycle of low expectations and poor performance. In highly charged debates over judicial reform, judges are frequently painted as the willing accomplices of corrupt political elites. In this way, the reform process itself can be damaging to public perceptions about judicial institutions and the rule of law. Further, claims about politically subservient courts and judicial corruption are likely to leave rank-and-file judges feeling persecuted and scapegoated. When judges do not have effective advocates representing their interests and defending their reputations—i.e., when there are no credible voices within the judiciary calling for reforms to protect and exonerate the courts—the reform process can be demoralizing and disempowering to the very actors it is meant to protect and embolden.

In Ukraine, we find a judiciary with a largely passive and complacent internal constituency. Despite the flurry of recent attention to the issue of judicial reform—or perhaps because of it—there is no substantial, organized reformist movement within the judiciary itself. As one former administrative court judge put it, the few staunchly reformist judges inside the system are isolated and disorganized, surrounded by a silent majority who feel vulnerable and disempowered.9 By and large, those who have weathered the Revolution of Dignity and remained in their judicial posts appear focused on keeping their heads down and avoiding the political maelstrom. In similar fashion, the judiciary’s newly empowered self-governing institutions have declined to use their increased autonomy to advocate for a strong reformist agenda. Rather, they have strategically avoided taking a strong stand on politically contentious issues, deferring decisions about judicial reassignments in the Donbas and allowing complaints of judicial misconduct during the Maidan protests to quietly expire without investigating or punishing the accused judges.

This passive approach to the reform process is, in part, a predictable response to Ukraine’s long history of deeply politicized courts. In such a volatile political environment and without clear evidence that new legal and institutional protections will insulate judges from attacks, silence and inertia may well be the most rational course of action. Especially in the absence of a strong and outspoken reformist leadership within the judiciary, rank-and-file judges must carefully weigh the costs of voicing opinions and exercising their independence, for fear that such actions may bring significant personal risks. Put differently, judicial actors in Ukraine face a collective action problem common to many anticorruption situations: even if most people in the judiciary believe that anticorruption reforms are necessary and beneficial to society, very few individual judges have a clear personal interest in taking a personal stand against corruption (Persson, Rothstein and Teorell 2012, 463-4). Rather, most rank-and-file officials have far more to lose by raising the ire of superiors and political elites than they have to gain. In short, it is “rational to not openly support reform” (Friesendorf 2017, 8).

Adding fuel to the fire, the post-Maidan period has been marked by a distinctly antagonistic relationship between civil society actors advocating for reforms and the policymakers and public servants charged with implementing them. In a recent analysis of anticorruption activism in Ukraine, Zaloznaya, Reisinger, and Claypool (2018) describe the tactics of civil society organizations as “aggressive,” “non-collaborative,” and ultimately “detrimental to anti-corruptionism.” Rather than supporting and collaborating with reformist elements within the state bureaucracy, Ukraine’s “integrity warriors” have relentlessly criticized the motives and tactics of reformers. As a result, their repeated attacks have delegitimized the reform process, further eroded public trust in formal institutions, and decreased the capacity of the state to implement effective reforms (Zaloznaya et al. 2018). In the judicial sector, where civil society groups have been especially critical, anticorruption crusaders have subjected judges to unusually intense public scrutiny. This adversarial posture has reinforced negative public attitudes about the courts and paradoxically increased political pressure on the judiciary. Instead of encouraging rank-and-file judges to speak out against corruption, it has put them on the defensive.

Conclusion

Despite big promises and apparently favorable conditions, Ukraine’s post-Maidan judicial reforms have yielded little substantive change. In the language used at the start of this analysis, the ambitious scope of the reform process has dramatically altered the legal and institutional structure of the judiciary but failed to have a deep and lasting impact on the functional independence of the courts. Rather, the judiciary appears to be entering a downward spiral wherein judicial leaders subservient to the previous regime are being rebuked and replaced by new judicial leaders subservient to the current regime. If anything, the reform process has reinforced the picture of a politicized and submissive judiciary, both among rank-and-file judges and among the general public. It is an arresting demonstration of the limitations of sweeping institutional reforms in the absence of real political will or a genuine base of support within the judiciary.

To make sense of this outcome, judicial reform must be understood not simply as a set of institutional fixes, but as a process that builds upon, and is deeply influenced by, the political and social context in which it takes place. In the highly contested and unpredictable political environment of contemporary Ukraine, regime elites have feigned commitment to the principles of transparency and judicial independence while systematically undermining the deepest and most transformative reforms before they could take root. Meanwhile, within the judiciary, a complacent and browbeaten judicial corps has proven unprepared and unwilling to take advantage of this historic opening to advocate for meaningful changes in the organization and operation of the courts. It is a story of empty rhetoric, missed opportunities, and dashed hopes. It is also a logical and sadly predictable narrative, considering the interests and experiences of actors in the system.

Looking beyond the singular experience of post-Maidan Ukraine, the patterns described here suggest that underspecified, overly simplistic conceptualizations of reform are bound to lead us astray. The Ukrainian example demonstrates why we should consider not only the drivers of reform and the ideal structure of judicial institutions, but also the internal dynamics of the reform process—i.e., how, and under what circumstances, those reforms are put into practice. Specifically, we need to recognize the ways in which the political and institutional environment shapes the implementation of reforms, with particular attention to elite commitment and the judiciary’s internal constituency as key factors that can facilitate or derail the process.

Among the many questions that emerge from this study, perhaps the most pressing is about the environmental factors that facilitate meaningful and enduring change in transitioning states. Under what circumstances do elites in highly contested regimes like Ukraine develop a genuine commitment to the rule of law? What factors give rise to an “ideational shift” (Hilbink 2012) within a judicial system accustomed to politicization and corruption? In short, under what conditions can we expect a critical juncture like the Revolution of Dignity to be perceived as a catalyst for positive change rather than an existential threat? The answers to these questions are poorly understood, but it is clear that they lie at the heart of the reform process.

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1 For more on the law, see Popova 2014.

2 Judges in the Central region possibly had a slightly lower re-election rate—one model specification showed this result.

3 In the words of a Ukrainska Pravda journalist: “But the majority of them would not be considered politically unaffiliated jurists with a spotless reputation” (translation by authors) (Ukrainska Pravda 2015b).

4 “Sud’ia Bilous, chto rassmatrivaet delo Saakashvili” [Judge Bilous, who is hearing the Saakashvili case], YouTube video, 4:56, posted by “Vovan222prank,” September 22, 2017, https://www.youtube.com/watch?v=Ar0r76P5Xpg&feature=youtu.be.

5 “Sud’ia L’vova Volosko o dele Saakashvili” [Lviv Judge Volosko on the Saakashvili case], YouTube video, 3:09, posted by “Vovan222prank,” September 22, 2017, https://www.youtube.com/watch?v=d2LsN89MHxY.

6 A potentially more promising informal norm change is that post-Maidan judges seem more willing to put their names forth in public competitions, rather than wait to be nominated by their superiors. We are working to collect evidence from recent public competitions for the new Supreme Court and for the vacancy on the Constitutional Court, which will be filled by the Council of Judges shortly.

7 Before the current Association Agreement entered into force in September 2017, it was blocked by a public referendum in the Netherlands—until a supplementary clause was added to clarify that the agreement would not give Ukraine the right to automatic EU membership. See RFE/RL 2017.

8 In one notable example, the Czech Union of Judges went so far as to create its own “Education Commission” in 1999 to provide training programs and classes to Czech judges in the absence of a state-run judicial training school (Beers 2012).

9 Personal interview with the authors, April 2015.

Maria Popova is Associate Professor and Jean Monnet Chair in the Department of Political Science at McGill University. E-mail: maria.popova@mcgill.ca. Daniel Beers is Assistant Professor of Justice Studies at James Madison University. E-mail: beersdj@jmu.edu

Assessing the Potential for Renegades Among Russian Millennial Lawyers

Kathryn Hendley

University of Wisconsin-Madison

Abstract: For the most part, Russian lawyers have been notable for their passivity. With the exception of a handful of public interest lawyers who have zealously defended human rights activists and others in the Russian domestic courts and in Strasbourg, Russian lawyers have contented themselves with handling routine legal problems for their clients. This article explores whether the generation of Russian lawyers who have recently joined the profession might be different. The analysis is grounded in a nationwide survey of Russian law students who graduated in 2016. It focuses more specifically on those who disapproved of the verdicts in the Pussy Riot case. This subgroup of renegade lawyers is united by a strong belief in democratic values and an equally strong skepticism of the capacity of the Putin regime to move forward on these values, especially in the case of the rule of law.

Lawyers in robust democracies serve as a linchpin of civil society. They take the often inchoate demands of citizens and shape them into viable claims. The vast majority of such claims have no larger social relevance. But when necessary, lawyers are able to use existing institutional structures—whether courts, administrative agencies, or other established channels to executive and/or legislative authorities—to press for societal reforms. Scrappier lawyers may eschew existing paths in favor of guerilla tactics that challenge the conventional. They are not always successful, nor are all lawyers willing to take on controversial cases, but the potential for lawyers to serve as agents of change is understood and accepted by state and society alike.

Lawyers typically have fewer options in non-democratic polities, in which civil society has often been co-opted by the state. In Russia, for example, civil society became empowered in the late 1980s and 1990s as the Communist Party crumbled. A multitude of non-governmental organizations blossomed, only to have the wind taken out of their sails when the Putin regime cracked down on their activism by labeling those deemed too obstreperous as foreign agents (Crotty et al. 2014). But the Kremlin did not revert to Soviet-era tactics; they tolerated a wide variety of protests aimed at their economic and social policies, although none were allowed to become generalized or sustained (Greene 2014; Robertson 2009). Russia, like other non-democratic regimes, was unreceptive to calls for fundamental reforms from within civil society. When lawyers have spearheaded movements aimed at regime change in other authoritarian settings (Munir 2012; Ahmed and Stephan 2010) or have taken on claims that are unpopular with political elites, they have risked social ostracism, disbarment, imprisonment, or worse (Michelson 2007; Lobban 1996). Some lawyers are willing to persist, but most retreat to the safety of handling mundane cases. Their primary concern is making a living, not fomenting revolution or even iterative reform (Michelson 2006).

Russian lawyers fit into this pattern.1 In both the Soviet and post-Soviet eras, lawyers have tended to color within the lines. Although the parameters of their work—and, consequently, their numbers—have expanded as a result of the transition from an administrative-command to a market economy (Moiseeva and Skugarevskii 2016), most lawyers see their role as helping clients solve their own legal problems. As befits lawyers in countries with civil law legal traditions, in which court decisions are generally not recognized as a source of law, they rarely contemplate the larger implications of the cases they handle.2

There have, of course, always been exceptions. A handful of Soviet lawyers acted on behalf of the so-called dissidents of the Brezhnev era, proclaiming their innocence in court by arguing that their clients were simply exercising the rights guaranteed by the constitution (Alexeyeva 1985; Kaminskaya 1982). These quixotic efforts consistently went down in flames, subjecting the lawyers to harassment from the regime and threats of disbarment. These lawyers were not viewed as role models by most of their colleagues.3 Yet they do serve as inspiration for present-day public interest lawyers in Russia. Though these lawyers, like their predecessors, are small in number, they have the advantage of being able to turn to the European Court of Human Rights when their claims fall on deaf ears in the Russian domestic courts (Kubal 2019; van der Vet 2018; van der Vet and Lyytikäinen 2015; Greene 2014). The courage of these lawyers is undeniable and has been well documented. Yet their victories in Strasbourg rarely translate into meaningful change within Russia, instead subjecting them to the same sorts of threats that dogged their predecessors (Open Dialogue Foundation 2018; Murphy 2005; Hiatt 2005). Thanks to the unwillingness of Russian bar associations to kowtow to the Kremlin, they have averted disbarment.4 Even so, for the average Russian lawyer, their colleagues who take on politicized cases serve as a cautionary tale rather than an exemplar.

Is this state of affairs destined to persist indefinitely? Every cohort brings its own predilections. In this article, I explore the possibilities for change by focusing on the potential of the youngest generation of Russian lawyers to challenge the state. Russian sociologists generally agree that Russian millennials “constitute a very specific generation” (Gorshkov and Sheregi 2018, 861). Although far from homogeneous, they are unique in having no memories of the Soviet era; they have been raised in a world with greater political and economic flexibility than their parents’ or grandparents’ generations experienced (Petuhov 2018).

My analysis is grounded in a 2016 survey of Russian law students on the cusp of graduation. Almost all—99.6 percent—of the respondents were born between 1981 and 1996, making them millennials (Dimock 2019). For the most part, their legal education imbued them with a strong belief in the legitimacy of the legal system. They trust in the independence of the courts and believe that written law (rather than political or economic influence) is the basis for judicial opinions (Hendley 2018b). The general tenor of their views is consistent with the social science literature, which has found Russian youth to be mostly supportive of Putin and reluctant to challenge authority (Sheregi 2013; Rosenberg 2017). Indeed, Russian millennials have only fleeting memories of a Russia not dominated by Putin. Yet a careful analysis of the survey data reveals a subgroup of law graduates who are less eager to fall in line. Strong evidence of such iconoclasm is opposition to the guilty verdicts handed down to the members of the punk rock group Pussy Riot, who were charged with hooliganism following their provocative performance at Moscow’s Cathedral of Christ the Savior in 2012 (Gessen 2014). I label respondents who disapproved of these verdicts as “Renegade Lawyers”5 and, in an effort to better understand their mindset, investigate the qualities associated with this subgroup.

This article provides insight into the potential for lawyers to emerge as social gadflies, giving voice to those dissatisfied with the direction in which Putin is taking Russia and thereby reinvigorating civil society. It also deepens our understanding of Russian millennials. The burgeoning social science literature on this generation has explored their political identities, with a particular focus on their propensity to join protests, whether pro- or anti-regime. My research threads in millennials’ professional identity in an effort to work out the extent to which young lawyers differ from their generational counterparts. My goal is not to build a predictive model for Renegade Lawyers, but to provoke discussion and further research on possible pockets of civil society in contemporary authoritarian societies.

I begin by providing background on the survey. After laying out the method used to construct the dependent variable, I explore the demographic qualities of those who emerge as Renegade Lawyers and the extent to which their worldviews are typical of their generation. The substantive analysis is grounded in three sets of basic hypotheses. The first is tied up with respondents’ personal experiences with the courts and their attitudes toward the legal system. The second is grounded in respondents’ support for democratic ideals and the Putin regime’s policies. The third focuses on their career aspirations.

My earlier work shows that Russians come away from personal experience with the courts with somewhat contradictory attitudes. On the one hand, court users were generally satisfied with their experience in the courts, viewing their judges as fair and their treatment by court personnel as respectful. On the other hand, however, these court users emerged from their lawsuits with less trust in the Russian judicial system (Hendley 2017a; 2016b). These findings led me to believe that having had court experience would influence respondents’ likelihood of being Renegade Lawyers, though I was uncertain of precisely how. Closely related are attitudes toward the Russian courts. I surmised that respondents who were skeptical about the capacity of the courts to act independently would be more inclined to be oppose the regime.

My second set of hypotheses relates to respondents’ belief in the importance of living up to the basic precepts of democracy in Russia. Logic suggests that those who believe more strongly in the need for Russia to have free and fair elections, an unfettered right to speak their mind, and an unrestricted media would be less supportive of regime policies, including the railroading of Kremlin opponents through criminal prosecutions. Meanwhile, those who have high levels of trust in the present-day Russian executive and legislative institutions are likely to be more supportive of Putin.

The final hypothesis is intertwined with respondents’ career choices. Russia’s divided bar makes the choice of specialization particularly meaningful. Legal professionals tend to identify with their specialty (as, say, a prosecutor or a notary) rather than seeing themselves as lawyers (iuristy). Although there are upward of ten possible paths, these can be boiled down to a basic choice between state service and private practice (Hendley 2019). Logic would seem to dictate that respondents destined for state service would be less inclined to challenge court decisions, especially those with political resonance like the Pussy Riot case. Those interested in private practice, meanwhile, might be more willing to stand up to the state. Among the possible options, becoming an advokat would seem to be the most likely. As the only type of lawyer empowered to represent criminal defendants, advokaty have long been at the forefront of political cases.

Methodology

My research departs from the standard approach to studying Russian lawyers. Scholars have traditionally honed in on the various specialties rather than studying lawyers holistically. As a result, we have an abundant literature on advokaty (e.g., Bocharov and Moiseeva 2016; Jordan 2005), prosecutors (prokurory) (e.g., McCarthy 2015; Smith 1978), criminal investigators (sledovateli) (Titaev and Shliaruk 2016), judges (sud’i) (Volkov et al. 2016; Hendley 2007), and in-house lawyers (iuriskonul’ty) (Hendley et al. 2001), but know virtually nothing about many other types of lawyers. These unstudied lawyers include those who work within the state bureaucracy as well as unlicensed litigators and notaries.6 In sheer numerical terms, the latter groups likely constitute a majority of all Russian lawyers. Efforts to study the full spectrum of Russian lawyers are complicated by the lack of an overarching professional organization to which they all belong. Only advokaty, notaries, and judges must pass any sort of qualifying exam to practice law. All other types of lawyers need only graduate from a law faculty to practice.7

In order to create a sample that included the full range of Russian lawyers, I surveyed law students. As in most European countries, legal education in Russia is an undergraduate enterprise. The number of law faculties has exploded over the past few decades, increasing from 50 in the late 1980s to over 1,000 by 2017 (Maleshin 2017). Russians interested in studying law can almost always find a place, though the quality of the education received is wildly uneven (Maggs, Shwartz, and Burnham 2015). State institutions generally have a better reputation than do private law faculties, which are a post-Soviet phenomenon. All of the law faculties that are considered elite are state funded.8 Most existed in the Soviet era.9 Law faculties served as the initial unit of analysis when constructing the sample. The sample was then stratified based on prestige level and funding source (public or private). In the late spring of 2016, an army of interviewers fanned out to 163 law faculties across Russia. Using snowball methods, they administered the survey through face-to-face interviews with 1,557 full-time law students in the weeks before their graduation.10

Surveying law students as they finish their education and prepare to enter the legal profession captures them at a pivotal moment. They have spent four years thinking deeply about law, but most have not yet put their ideas into practice. The survey queried respondents about their experience as law students and their plans for the future. Over 80 percent aspired to work in the legal arena.11 A quarter of respondents had secured jobs at the time they were surveyed. (See Table 1 for an overview of respondents’ backgrounds.) The most common reason given for studying law was achieving financial security. Helping people and/or changing society were more distant motivations. Although Russian legal education has long purported to emphasize practical training—students are required to complete internships with practitioners—law students have typically been lukewarm about these experiences (Shepeleva and Novikova 2014; Hazard 1938). My respondents are no different. Many found greater value in internships they arranged on their own and part-time jobs. When reflecting on their time at the law faculty, they were more satisfied with their theoretical, classroom-based education than with their practical training.

Table 1. Descriptive statistics: Comparison of Renegade Lawyers with other respondents (reported as percentages)

Full Sample

Renegade Lawyers

Non-

Renegade Lawyers

Chi2

Interested in working as legal professional following graduation

81.5

80.2

81.8

Job in legal field secured at graduation

24.7

22.7

26.1

Geographic location

Moscow or St. Petersburg

32.2

44.8

29.7

Other European regions

39.9

28

42.8

Siberia and the Far East

11.7

14.6

11

Urals

11.5

13.2

11.1

North Caucasus

4.7

1.6

5.4

0

Gender

Men

36

36.5

35.9

Women

64

63.5

64.1

0.845

Family’s financial situation

Poor: family had trouble

covering the cost of basic

necessities

13.6

17.1

12.7

Lower middle class:

family had enough money

for essentials, but had to

save for big-ticket items

33.2

33.2

33.3

Upper middle class:

family can afford big-

ticket items, but not cars

37.7

33.9

38.6

Rich: family had no

financial worries

15.5

15.7

15.5

0.197

University-educated parents

43.6

44.3

40.5

0.227

Method of paying for legal education

Received state subsidy

(no tuition)

35.8

40.8

34.6

Parents paid

55.3

51.3

56.3

Respondent paid

6.8

5.3

7.1

Other

2.1

2.6

2

0.145

Type of law faculty attended

State-funded law faculty

82.8

88.2

81.5

Elite law faculty

17.7

25.7

15.8

Privately-funded law

faculty

17.2

11.8

18.5

0.006

Law-related job as student

17.2

22.4

16

0.008

Virtually all of the respondents matriculated directly from high school, leading to a mean age of 22 at the time of the survey. A majority (63.5 percent) stuck close to home when studying law. Most (72 percent) had at least one parent who had a university degree. Relatively few (6.8 percent) paid for their own education. Instead, most (55.3 percent) relied on their parents, and about one-third of the sample received state support.

Identifying Renegade Lawyers and Uncovering the Qualities that Unite Them

Fielding surveys in present-day Russia presents unusual challenges for Western scholars. Several organizations that work with foreign social scientists have been labeled as foreign agents by the Putin regime, constraining their ability to continue their work (de Haldevang 2018). Russian sociologists who have not yet been so identified are eager to avoid the spotlight. Consequently, they are skittish about questions that explicitly ask participants to share their views on the regime. Surveys, including mine, have to be carefully drafted to elicit the desired information without setting off any political trip wires.

Given my set of interests, these constraints nevertheless left me with a fair amount of flexibility. Asking graduating law students about their trust in various types of courts and about the extent to which Russian judges pay attention to law when resolving cases raised no warning bells. Nor did a series of questions about their support for the verdicts in well-publicized cases involving Kremlin opponents, such as Mikhail Khodorkovskii, Aleksei Naval’nyi, the members of Pussy Riot, and those arrested during the 2012 protests at Bolotnaia Square. This latter set of questions serves as the starting point for my analysis (see Table 2). These cases, which may be obscure to those not living in Russia, are well-known to Russians.12 They are similar in that they involve defendants who have openly defied the regime. Though each had a full-fledged trial and was zealously defended by their advokaty (for which the latter suffered repercussions), their convictions were a forgone conclusion. Public opinion polling documents the complex feelings of ordinary Russians toward these beleaguered defendants (Levada Center 2016; 2015; 2012; 2011). On the one hand, they exhibit little sympathy. On the other hand, they freely acknowledge that these defendants were railroaded—that the evidence was manipulated (and sometimes manufactured) to ensure convictions. And this lack of due process would have been even clearer to the surveyed law students, considering that they had been immersed in the minutiae of the relevant procedural codes for the past four years.

Table 2. Responses of graduating law students when asked about their level of support for the verdicts in recent politicized cases (reported as percentages; n=1,557)

Completely fair

Somewhat fair

Somewhat unfair

Completely unfair

Knows nothing about case

Difficult to answer

Refused to respond

Pussy Riot

26

25

12.5

7

12.7

11.9

5

Mikhail Khodorkovskii

15.4

32.5

14.1

5.1

15.2

13

4.7

Aleksei Naval’nyi

14.3

30.7

15.7

5.3

15.2

13.7

5.1

Protesters

arrested at

Bolotnaya Square

12

25.1

14.9

5.7

20.8

16.1

5.5

Respondents were asked to indicate their level of support for the verdicts in these cases along a four-point scale. Alternatively, they could indicate a lack of awareness of a case or could opt not to respond. Table 2 shows that a plurality of respondents viewed the verdicts as fair; far fewer saw them as unfair.13 I use the responses to the question about the Pussy Riot trial to identify Renegade Lawyers, namely those respondents who are open to defying the Kremlin. This struck me as the most appropriate case on which to make such a determination, as it is the one about which respondents expressed the strongest views. Of the trials about which they were queried, the Pussy Riot case was also the one of which the highest share of respondents admitted to being aware. This makes sense when we consider that the respondents and the members of Pussy Riot are both part of the millennial generation. Of course, the two groups have made radically different life choices. My respondents respected social convention by pursuing university degrees. By forming a punk rock group and demonstrating against the hierarchy of the Russian Orthodox Church and the Putin regime inside the Cathedral of Christ the Savior in Moscow, the women of Pussy Riot ostentatiously rejected social niceties.

I constructed a variable that captured respondents who opposed the verdicts in the Pussy Riot case, i.e., finding them either completely or somewhat unfair.14 These Renegade Lawyers constitute 19.5 percent of the sample. The minority status of Renegade Lawyers within my sample fits with what we know about Russian millennials. As Petuhov argues, “Today’s youth, for the most part, is disconnected and atomized” (2018, 553). Indeed, a 2011 nationally representative survey revealed that only 16 percent were willing to identify themselves with any existing ideology or political orientation (ibid.). Along similar lines, a 2012 survey of young people aged 16 to 30 years old conducted in 21 Russian regions found that 85 percent had never participated in a public protest (Sheregi 2013, 24).

The remainder of the article is devoted to unpacking the qualities associated with the Renegade Lawyers. Table 1 sets forth basic descriptive statistics for this group. The results of the logistic regression in which the variable capturing Renegade Lawyers is used as a dependent variable are set out in Table 3.

Table 3. OLS regression model for disapproval of verdicts in Pussy Riot case (Renegade Lawyers). Results presented as odds ratios (standard deviation).

Model 1

Demographic

background

Model 2

Satisfaction with life

Model 3

Law faculty

experience

Model 4

Legal system

Model 5

Democracy

Model 6

Combined

From Moscow or St. Petersburg

1.877***

(0.253)

1.967***

(0.274)

1.793***

(0.245)

1.662***

(0.239)

1.817***

(0.256)

1.595***

(0.247)

Women

0.958

(0.129)

0.973

(0.135)

0.911

(0.124)

1.023

(0.145)

1.009

(0.141)

1.034

(0.155)

Poor family

1.436**

(0.260)

1.277

(0.240)

1.465**

(0.267)

1.506**

(0.286)

1.348

(0.254)

1.374

(0.276)

University-

educated parents

0.767**

(0.103)

0.789

(0.109)

0.730**

(0.0994)

0.728**

(0.103)

0.753**

(0.105)

0.704**

(0.106)

Satisfaction with life

Respondent feels respected

0.879***

(0.0389)

0.903**

(0.0446)

Others can be trusted

0.859*

(0.0677)

0.958

(0.0841)

Law faculty experience

Attended state law faculty

1.655***

(0.323)

1.926***

(0.470)

Law-related job as student

1.418**

(0.230)

1.252

(0.227)

Social change as primary motive to study law

0.713**

(0.102)

0.725**

(0.114)

Legal system

Spent time in court as student

1.368**

(0.188)

1.275*

(0.188)

Judges are not independent

1.413**

(0.198)

1.271

(0.191)

District court judges rely on law

0.914***

(0.0265)

0.955

(0.0303)

Legal nihilist

1.152*

(0.0891)

1.066

(0.0883)

Democracy

Trust in state institutions

0.875***

(0.0194)

0.887***

(0.0230)

Support for merger of top courts

0.784*

(0.107)

0.827

(0.121)

Belief in democratic principles

1.058*

(0.0336)

1.033

(0.0359)

Constant

0.221***

(0.0534)

0.677

(0.269)

0.102***

(0.0429)

0.225***

(0.0849)

0.464

(0.253)

0.362

(0.305)

Pseudo r2

0.0174

0.0272

0.0292

0.0402

0.0509

0.0771

Observations

1,557

1,471

1,557

1,434

1,515

1,355

*** p<0.01, ** p<0.05, * p<0.1

Personal Background. Almost 45 percent of Renegade Lawyers are from Moscow or St. Petersburg. The regression analysis confirms this finding. They are around 60 percent more likely to hail from these two major population centers as from the hinterland (“From Moscow or St. Petersburg”). This is consistent with the findings of scholars of youth behavior, who have consistently argued that young people from these most populous Russian cities are more open to participating in anti-regime protests (Chaisty and Whitefield 2013; Lyytikäinen 2013). This fits with the overall liberal political tenor of these cities and the greater engagement of their residents with alternative media sources that put forward a narrative of Russian politics that does not automatically follow the Kremlin line.

But Renegade Lawyers depart from millennial activists in other important respects. Men tend to dominate the ranks of young protesters. When Lyytikäinen asked members of Oborona, an anti-Putin youth group, about the lack of women in their ranks, they “seemed puzzled and answered as if they had not even thought about the question before” (2016, 61).15 When she pressed, men and women alike told her that women were too emotional and, due to their family obligations, lacked time to devote to politics (ibid., 60). As Lyytikäinen notes, Soviet-era attitudes echo unmistakably among these post-Soviet Russians. But gender is not helpful in identifying Renegade Lawyers. As Table 1 shows, the breakdown between men and women among this subgroup matches that of the sample as a whole. Class is also a less potent factor for Renegade Lawyers than for activists more generally. Young protesters tend to come from financially comfortable backgrounds (Lyytikäinen 2016, 54-55; Hagerman and Kufenko 2016). By contrast, Renegade Lawyers are less likely than other respondents to be middle-class and more likely to come from families that are struggling financially (“Poor family”).16 They tend not to have university-educated parents (“University-educated parents”), which also contrasts with young protesters, most of whose parents have university degrees and hold white-collar jobs (Lyytikäinen 2013). The professional activities of my respondents’ parents were not associated with respondents’ likelihood of being Renegade Lawyers.

Renegade Lawyers share a distinct worldview in which they view themselves as somewhat beleaguered vis-à-vis others. In a series of questions in which respondents were asked to place themselves along a nine-point scale in terms of their relative wealth, power, and respect, with higher scores indicating higher levels, the mean scores for Renegade Lawyers were consistently and significantly lower than those for the rest of the sample (see Table 4), which holds up in Model 2 of the regression analysis (“Respondent feels respected”).17 This suggests a sense of otherness. It also hints at a lack of self-confidence, which is buttressed by a series of questions dealing with respondents’ self-image. Respondents were given a series of statements, including: “The majority of people can be trusted;” “I have a good opinion of myself;” and “At present, I am generally content with my life.” They were asked to indicate their level of agreement along a four-point scale, with higher scores reflecting stronger levels of agreement. As Table 4 shows, Renegade Lawyers invariably scored lower, indicating that, as a group, they are less self-assured than their fellow respondents. Their wariness toward others shines through in their reluctance to embrace the idea that most people can be trusted. This variable retained its significance in Model 2 of Table 3 (“Others can be trusted”). This meekness once again differentiates Renegade Lawyers from millennial protesters, who have generally been found to be brimming over with self-confidence (Erpyleva 2018). It also sounds a cautionary note in terms of what can be expected. If Renegade Lawyers are, as a group, less courageous and confident than their peers, then it seems unlikely that they will stand up to the regime or even to their colleagues by spearheading unpopular and politically risky claims.

Table 4. Mean responses of graduating law students to questions about self-worth

Scale

Full

Sample

Renegade Lawyers

Non-

Renegade Lawyers

p-score

Imagine a nine-step ladder where those at the bottom lack this attribute and those at the top have it in full measure

Wealth

1-9

5.08

5.13

4.89

0.006

Power

1-9

4.78

4.57

4.82

0.012

Respect

1-9

6.15

5.89

6.21

0.001

Agree or disagree with statement:

The majority

of people can

be trusted

1-4

2.4

2.31

2.42

0.049

I have a good

opinion of

myself

1-4

3.52

3.45

3.54

0.013

At present, I

am generally

content with

my life

1-4

3.34

3.25

3.36

0.008

I have little

influence over

what happens

to me

1-4

1.86

1.81

1.87

0.178

Taken together, an assessment of the Renegade Lawyers as individuals that weaves together their demographic attributes with key personality traits begins to paint a picture of Renegade Lawyers as up-and-comers rather than the spoiled and entitled youth who have become the stereotype of young activists, suggesting that they may be distinct from these much-studied millennials.

Law School Experiences. Their hardscrabble background means that Renegade Lawyers are less able to depend on their parents to foot the bill for their legal education than are their compatriots. Their better-than-average track record in attracting state funding (colloquially referred to as “budget” places) helps explain their comparatively greater success in gaining admission to higher-status state-funded law faculties. Indeed, the regression analysis, set forth in Table 3, confirms that Renegade Lawyers were almost twice as likely to attend these more prestigious law faculties (“Attended state law faculty”). They also were more successful in seeking admission to elite law faculties. Over a quarter of all Renegade Lawyers studied at elite law faculties, compared with less than 16 percent of non-Renegade Lawyers.18 Scholars of anti-Putin youth activists have found that they also typically attend high-profile universities, but their research tells us little about these activists’ courses of study or sources of support (Lyytikäinen 2013). Renegade Lawyers emerge as significantly more likely to have held down a law-related job as a student (“Law-related job as student”). Whether this is due to funding shortfalls, a desire to gain practical skills, or a combination of the two is not clear from the survey data. All of this fits with an image of Renegade Lawyers as young people who tend to rely on their hard work and intellect rather than connections.

Interestingly, Renegade Lawyers were not attracted to the study of law by any common purpose. In a series of questions about their intentions when enrolling, Renegade Lawyers did not stand out as a group. Indeed, they seem to be ciphers. When compared to the rest of the sample, they consistently claim to have been less motivated by any of the stated goals, which included becoming rich and successful, having intellectually stimulating work, helping others, pleasing their families, and changing or improving society. These differences are statistically significant. Their uncertainty about what to expect in a law career might have stemmed from the humbler pedigrees of Renegade Lawyers, many of whom lack role models of what university education can bring. Alternatively, their relative lack of interest in fame and fortune and/or living up to familial expectations could be seen as consistent with the image of Renegade Lawyers as iconoclasts who are seeking their own path rather than automatically doing what is expected.

At first glance, Renegade Lawyers’ lack of commitment to changing or improving society might seem inconsistent with their opposition to the Pussy Riot verdict. After all, fighting back against politicized trials could be seen as a way of trying to alter societal expectations. But we need to contextualize both the question and the answers. My prior work has shown that respondents interpreted the phrase “desire to change or improve society” (zhelanie izmenit’ ili uluchshit’ obshchestvo) not, as U.S. law students might, as a desire to transform Russia into a liberal democracy, but rather as a desire to bring to life Putin’s vision of a Russia in which Moscow dictates policy with very little pushback from civil society (Hendley 2016a). Looking at respondents who listed social change as a key motivation for studying law, I found that this group tended to be more supportive of Putin than other respondents.19 For example, they were more supportive than their fellow respondents of convictions in the cases listed in Table 2. Thus, it follows that when I singled out respondents who opposed one of these verdicts, these Renegade Lawyers had significantly lower odds of being motivated by a desire to contribute to social change (“Social change as primary motivation to study law”) (see Model 3, Table 3).

Court Experience and Attitudes toward the Legal System. Doubtless more relevant to their disapproval of the Pussy Riot verdicts is Renegade Lawyers’ experience in the courts. Almost two-thirds of respondents (either themselves or a member of their family) had confronted a problem where they could have benefitted from advice from a lawyer (see Table 5). Only a quarter of them actually sought such advice. Even fewer took their complaints to court. This does not mark them as unusual. My prior work has repeatedly documented that disgruntled Russians, much like their counterparts elsewhere, rarely pursue their disputes to court (Hendley 2017b). Compared to their fellow respondents, Renegade Lawyers are more likely to have faced legal problems and to have consulted with lawyers about possible solutions, but their propensity to pursue their claims to court is in line with the overall sample.

Russian law students have many opportunities to spend time in court. These include working at legal clinics based at their law faculties and at internships and paying jobs in various legal settings. Renegade Lawyers have taken greater advantage of these opportunities. Almost half had spent time in court, compared with less than 41 percent of non-Renegade Lawyers (see Table 5). The regression analysis confirms this difference (“Spent time in court as student”). The odds of having spent time in the courts are approximately 30 percent greater for Renegade Lawyers than for other respondents (Model 3, Table 3). Whether there is a link between the Renegade Lawyers’ personal legal woes and their demonstrated interest in court activities cannot be determined from my data.

Table 5. Responses of graduating law students when asked about their experience with, and attitude toward, the Russian legal system (reported as percentages)

Full Sample

Renegade Lawyers

Non-

Renegade Lawyers

Chi2

Respondent has had a need for legal services to resolve problem over past 5 years

65.3

77.3

62.3

0

Respondents with legal needs who consulted lawyer

25

29.2

23.7

0.092

Respondents who have been parties to a lawsuit

11.2

10.9

11.3

0.813

Spent time in court as student

42.5

49.3

40.8

0.007

Attitude toward judicial independence

Russian judges are

basically independent of

federal and local power

50.2

43.8

51.7

Russian judges are

basically under the

control of representatives

of federal and local power

37.8

45.4

35.9

Unwilling to take a position

12

10.8

12.4

0.035

Do you agree that court chairmen exert too much influence on trial judges?

Completely agree

13.4

18.2

12.4

Somewhat agree

45.6

48.7

44.9

Somewhat disagree

35

27.7

36.7

Completely disagree

5.9

5.3

6.1

0.002

Did you support the consolidation of the Higher Arbitrazh Court with the Russian Supreme Court?

Yes

56.3

47.3

58.4

No

31

44.2

28

I am not aware of this

consolidation

12.6

8.5

13.6

0

The analysis suggests that Renegade Lawyers’ experiences have darkened the rose-colored glasses through which many Russian law students see the courts. This is consistent with my prior studies of court veterans, which found that, even when satisfied by their treatment and the outcome of their case, they nonetheless emerged less trustful of the courts (Hendley 2016b). As a group, my law graduate respondents were generally sanguine about the likelihood that Russian trial courts resolve disputes on the basis of law rather than relying on extra-legal factors. Renegade Lawyers, however, were decidedly less optimistic. I asked about both types of Russian trial courts: the justice-of-the-peace (mirovye) courts that handle simple claims and the district (raionnye) courts that handle more complicated cases (Hendley 2017b). On a scale from 0 to 10, where 0 reflects a belief that decisions are not grounded in law and a 10 reflects a conviction that they are grounded exclusively in law, the mean responses for the full sample for justice-of-the-peace courts and district courts were 6.58 and 7, respectively (see Table 6). Renegade Lawyers had a mean of 6.1 for justice-of-the-peace courts, compared to a mean of 6.69 for non-Renegade Lawyers. For district courts, the means for the two groups were 6.42 and 7.14. The consistently lower mean scores of Renegade Lawyers confirm their lower levels of confidence in the integrity of the courts. The high correlation between the two variables meant I could include only one in the regression analysis. The significance for the district courts holds up in Model 4 of the regression analysis (“District court judges rely on law”) (see Table 3). Given their suspicions about the potential of the political or economic influence to sway judges, it is hardly surprising that, when asked more pointedly about their trust in various Russian courts, Renegade Lawyers as a group consistently betray their lack of confidence as compared to other respondents (see Table 6).20

Along similar lines, Renegade Lawyers are more skeptical about the capacity of the Russian courts to operate independently of politics. Respondents were asked whether Russian judges are basically independent from representatives of federal and local power or, alternatively, tend to be basically under their control. Once again, Renegade Lawyers’ greater misgivings about the courts shine through. As Table 5 shows, Renegade Lawyers were fairly evenly divided, with about 45 percent on each side. By contrast, a majority of non-Renegade Lawyers categorized Russian judges as fundamentally independent; a much smaller group (36 percent) felt judges were manipulable. The regression analysis confirms this finding, showing that the odds of Renegade Lawyers viewing judges as politically compromised are around 30 percent greater than for the rest of the sample (“Judges are not independent”) (Model 4, Table 3).

Table 6. Mean responses of graduating law students when asked about their attitudes toward the Russian legal system

Scale

Full

Sample

Renegade Lawyers

Non-

Renegade Lawyers

p-score

Assess the likelihood that trial judges make decisions solely on the basis of law

District courts

0-10

7

6.42

7.14

0

Justice-of-the-

peace courts

0-10

6.58

6.1

6.69

0.0002

Indicate your level of trust in:

Russian

Supreme Court

1-4

3.18

3.06

3.21

0.001

Russian

Constitutional

Court

1-4

3.23

3.28

3.09

0

District courts

1-4

2.88

2.77

2.9

0.0003

Justice-of-the-

peace courts

1-4

2.81

2.83

2.72

0.027

Agree or disagree with statement:

If a person

thinks a law is

unfair, he has the

right to go

around it

1-4

1.89

2.02

1.86

0.005

As a group, however, respondents’ views of judicial independence depart dramatically from the attitudes of other millennials. The question they were asked replicated one included in a 2008 nationally representative survey organized by INDEM, a Moscow think tank. Isolating those born after 1988, only 18 percent viewed judges as fundamentally independent, whereas 55 percent saw judges as being under the thumb of politicians (Hendley 2019). These differences bring home the impact of the socialization provided by Russian law schools. The pedagogical approach, which emphasizes rote learning over critical thinking, leaves students with a more positive view of courts than is typical of their generation or of Russians more generally.

Another window into respondents’ thinking about the Russian judiciary is their attitude toward court chairmen. The highly bureaucratic (civil service) structure of Russian courts gives chairmen tremendous control over judges’ career trajectories. Both Russian and Western scholars have decried the tendency of chairmen to influence judges to toe the line in their judgments (Volkov et al. 2016; Solomon 2010). This pressure is not exerted in most cases, but whenever the chairman flexes his muscles, it obviously calls the independence of the courts into question. The survey noted that some people believe court chairmen exert too much influence on judges and asked respondents whether they agreed. A majority of both groups concurred. Renegade Lawyers were, however, more likely to agree and expressed their feelings more emphatically. As Table 5 indicates, almost 67 percent of Renegade Lawyers evinced concern about the sway held by court chairmen over their underlings, of whom 18 percent were deeply bothered. By contrast, the corresponding percentages for the rest of the sample were 57 and 12.

Renegade Lawyers’ skepticism about the Russian courts extends to their expectations of law. Compared to others, they are more nihilistic—that is, more open to ignoring law when it proves inconvenient. The survey asked respondents to estimate their level of agreement on a four-point scale with a statement that captures the essence of legal nihilism: “If a person thinks a law is unfair, he has the right to ‘go around’ (oboiti) it.” Renegade Lawyers’ mean score (2.02) was significantly higher than the mean for the rest of the sample (1.87) (see Table 6). As Model 4 of Table 3 shows, this variable remains significant in a multivariate analysis (“Legal nihilist”). The suspicion with which Renegade Lawyers approach law is not typical of Russian young people. In my earlier work, I explored the incidence of legal nihilism in contemporary Russian society using the same question, which had been included on the Russian Longitudinal Monitoring Survey (RLMS) several times.21 I found this attitude to be least common among the oldest and youngest generations (Hendley 2017b). Nihilism was most pronounced among those who were displaced by the economic reforms of the 1990s (those born between 1941 and 1987). It makes sense that my respondents would have stronger, arguably better-informed, views about law. After all, the young people included in the RLMS sample were not law students and, consequently, had no special knowledge of law. On the other hand, scholars who have studied Russian youth activists have found that they tend to be frustrated by the uneven implementation of the law in Russia (Lyytikäinen 2016, 100-101). The belief that ordinary citizens should not be expected to obey the law if officials feel entitled to ignore it is integral to legal nihilism. Renegade Lawyers and millennial activists are similarly frustrated by their inability to count on the law as written.

Attitudes toward Democracy—In Theory and in Practice. Renegade Lawyers’ lack of faith in formal institutions is not confined to the legal system. Respondents were asked to assess their levels of trust in the key elements of the executive branch (the president and the government) and the legislative branch (the Duma and the Federation Council). With regard to each, they gave a score of 1 to 4, with higher scores indicating greater trust. As Table 7 shows, the mean scores of Renegade Lawyers are consistently lower than those of their fellow respondents and these differences are statistically significant. The contrast is most striking as to Putin, who is, of course, the embodiment of the Russian Presidency.22 The mean score for Renegade Lawyers is 2.87, while the mean for the rest of the sample is 3.31. To simplify the regression analysis, I constructed a scale that included all four institutions (“Trust in existing state institutions”), which retains its significance and confirms that Renegade Lawyers have less confidence in present-day Russian political institutions (Model 5, Table 3).

This anti-regime view is confirmed by a question that asked respondents about the decision to consolidate two of Russia’s top courts. From the collapse of the Soviet Union in 1991 onward, Russia had two distinct hierarchies of courts. Most cases were heard in the courts of general jurisdiction, for which the Russian Supreme Court was the court of last resort (Solomon and Foglesong 2000). But bankruptcies and common economic disputes involving firms were heard in the arbitrazh courts (Hendley 1998). The Higher Arbitrazh Court stood at the apex of this hierarchy. In 2013, Putin proposed consolidating the two courts into a single supreme court, for reasons that remain obscure (Solomon 2014). The strong opposition of stakeholders in the arbitrazh court system, including the business lawyers who regularly practiced before the Higher Arbitrazh Court, was ignored (Ob”edinenie 2013). The merger, which required a change to the constitution, was accomplished with lightning speed:23 the newly constituted Russian Supreme Court was up and running by mid-2014. This policy initiative serves as a good proxy for respondents’ support for Putin’s agenda. The results confirm the relative antipathy of the Renegade Lawyers toward Putin suggested by the analysis of their trust in state institutions. While only 28 percent of non-Renegade Lawyers opposed the merger, 44 percent of Renegade Lawyers took this position (see Table 5). This finding holds up in the multivariate analysis. Model 5 in Table 3 shows that the odds of supporting the merger were about 25 percent less for Renegade Lawyers (“Support for merger of top courts”).

On the other hand, when the queries shift away from contemporary Russian reality to support for the basic building blocks of democracy, a somewhat different picture emerges. The survey included a set of questions that asked respondents to place a value from 1 to 4 on their level of support for free and fair elections, freedom of speech, independent media, and political opposition. Although the two groups display no discernable difference in their views of the need for free elections and free speech, Renegade Lawyers separate from the pack as to the importance of a free press and a political opposition (see Table 7). They are significantly more likely to endorse these principles than are other respondents. When I combined these four variables into a scale and included it in the regression analysis, the results held up (“Belief in democratic principles”) initially, though the significance faded as other variables were included (much like the measure of support for the merger of the high courts).

Career Aspirations. My expectations about the interrelationship between respondents’ career goals and their willingness to challenge the state were not fully realized. My prior work documented the soundness of dividing the sample between law graduates destined for state service and those keen to embark on private practice (Hendley 2019). The two groups can be distinguished based on their attitudes towards democracy and the legal system. The private-sector specialties—which include advokaty, in-house lawyers, lawyers who work at law firms (both litigators and corporate specialists), and notaries—are more supportive of democratic principles and more skeptical of the integrity of the courts than are their colleagues who plan to work for the state in some capacity. The state service path includes prosecutors, investigators, police, judges, and those who work within the state bureaucracy.

This earlier work would predict that Renegade Lawyers would be more likely to opt for private practice. Table 8 confirms that this is indeed the case.24 The pattern for Renegade Lawyers is almost the inverse of that of non-Renegade Lawyers: almost 57 percent of Renegade lawyers want to work in the private sector, whereas 56 percent of non-Renegade Lawyers plan to join the state sector. It makes sense that non-Renegade Lawyers would be more attracted to state service. After all, they are less dubious about the integrity of the courts and less likely to embrace legal nihilism. When put to the test, they give judges the benefit of the doubt by accepting the guilty verdicts handed down in recent politically-charged cases—verdicts that trouble Renegade Lawyers.

Table 7. Mean responses of graduating law students to questions relating to democracy

Scale

Full

Sample

Renegade

Lawyers

Non-

Renegade

Lawyers

p-score

Indicate your level of trust in:

President of

Russia

1-4

3.22

2.87

3.31

0

Government of

Russia

1-4

2.87

2.59

2.94

0

State Duma

1-4

2.61

2.37

2.67

0

Federation

Council

1-4

2.79

2.56

2.84

0

Indicate how important it is that the following exist in Russia:

Free and fair

elections

1-4

3.65

3.65

3.65

0.94

Freedom of

speech

1-4

3.64

3.65

3.64

0.74

Independent

mass media

1-4

3.42

3.51

3.4

0.014

Political

opposition

1-4

3.09

3.17

3.07

0.068

Within the population of lawyers in private practice, advokaty are the subgroup that have traditionally stood on the ramparts. This makes sense, given that most politically-charged cases include criminal prosecutions and they are the only lawyers who are empowered to represent criminal defendants. As I noted earlier, a willingness to take on controversial cases is not a defining quality of all advokaty. But there is a small and dedicated subgroup of Russian advokaty who have joined the battle. This led me to anticipate that Renegade Lawyers would outpace others in their desire to become advokaty. The data tell a different story. As Table 8 shows, the likelihood of wanting to be an advokat is approximately the same for Renegade and non-Renegade Lawyers. Because two years of post-graduate legal

Table 8. Career plans of graduating Russian law students (reported as percentages)

Full Sample

Renegade Lawyers

Non-

Renegade Lawyers

Chi2

Career choice (general)

Private

46.7

56.7

44.4

State

53.3

43.3

55.6

0.001

Career choice (specific)

Private

Advokat

10.8

11.8

10.5

Litigators who do not

become advokaty

(unlicensed)

3.5

4.9

3.2

In-house counsel

13.7

16.3

13

Corporate lawyer

6.9

10.4

6

Notary

3.3

3.6

2.1

State

Prosecutor

10.9

11.11

10.83

Investigator

13.7

10.4

14.5

Jobs in criminal

justice system other

than prosecutor or

investigator (eg.,

police)

3.1

2.8

3.1

Judges

7.9

4.5

8.7

State bureaucracy

7.9

5.9

8.4

Unsure

13.3

12.5

13.5

No plans to work as a

lawyer

5.2

7.3

4.7

0

experience are required before taking the exam to become an advokat,25 I suspected that some respondents were thinking of their short-term rather than long-term career goals. But the same pattern emerged when I expanded the inquiry to include those who indicate that they may take the bar exam at some point in the future, implying that they have a long-term goal of joining the advokatura. This increases the percentage of respondents interested in becoming advokaty to 20, but the differences between Renegade and non-Renegade Lawyers are not statistically significant.26

The career paths within the private legal arena that disproportionately appeal to Renegade Lawyers are in-house counsel and corporate law. At first glance, neither would seem to be a job for rabble-rousers. In the Soviet era, in-house legal work was highly feminized and was a haven for the unadventurous who did not mind monotonous work (Shelley 1984). Corporate law was unknown, given that all means of production were owned by the state. The collapse of the Soviet Union in 1991 and the privatization of state-owned enterprises made corporate law relevant in Russia for the first time and reshaped the role of in-house lawyers. Precisely how these reforms will play out remains to be seen.27 The instability of both career paths may make them appealing to those seeking new challenges, which fits with the idea of being a Renegade Lawyer.

Less surprising is the disaffection of Renegade Lawyers vis-à-vis most career paths in the state sector. Particularly noteworthy is their tepid interest in the judiciary. While almost 9 percent of non-Renegade Lawyers aspire to a career on the bench, only 4.5 percent of Renegade Lawyers share this goal (see Table 8). This is surely fueled by their concerns about the tendency of Russian courts to allow extra-legal concerns to bleed into the courtroom.

Tentative Conclusions

Renegade Lawyers are united in their skepticism about the integrity of the contemporary Russian state. They recognize that, while the formal attributes of democracy continue to exist, they have mostly been stripped of their meaning. Compared to their compatriots, Renegade Lawyers have lower levels of trust in state institutions, including courts. They are more likely to suspect judges of giving in to pressure to tailor their decisions to the interests of outside actors. Nor is this disdain limited to state officials. They are also more inclined to suspect their fellow citizens of ignoring the law when it proves inconvenient. Yet they are not completely jaded; their belief in the principles that undergird liberal democracies remains intact.

What does the existence of these Renegade Lawyers portend for the future? Might they be the spark that reenergizes the legal profession as a vital link in Russian civil society? Might providing help to controversial and marginalized clients become more of the rule rather than the exception in Russia? This would require Renegade Lawyers to regularly step up to represent clients who challenge state actors and others when they attempt to use their influence to manipulate the law. Speaking truth to power requires a strong backbone and a willingness to risk social and professional ostracism by going against the grain. It goes without saying that the lives of the Renegade Lawyers would be easier if they stayed on the sidelines. Whether they will enter the fray is difficult to predict. Studies of the millennial generation more generally provide little hope. These young people have yet to emerge as independent thinkers (Krawatzek 2016, 187). Their participation in the 2011-2012 mass protests was as followers, not leaders (Smyth 2016). The survey does not allow for a definitive determination of whether Renegade Lawyers will break the mold.

The survey captured Renegade Lawyers at a crossroads in their lives. They were shedding their identity as students and looking forward to their lives as practicing lawyers. Whether their willingness to share their true feelings about the day-to-day realities of Russian courts will dissipate as they gain experience remains to be seen. Their parents and grandparents were socialized to hold their tongues when it came to politics. They learned to “speak Bolshevik” (Kotkin 1995, 220). Though this version of political correctness ended along with the Soviet Union, Putin’s rise has brought a new dialect. The caution that marked informal conversations in the past has begun to return, especially for those keen to get ahead. As Pomerantsev wrote about life under Putin, “all cultures have differences between ‘public’ and ‘private’ selves, but in Russia, the contradictions can be quite extreme” (2014, 199). Speaking honestly is a necessary, but far from sufficient condition for lawyers to jumpstart civil society. They have to be prepared to act on their beliefs. The shared tendency of Renegade Lawyers to be wary of others and their lower level of self-confidence is cause for pessimism on this score.

The absence of activist lawyers as positive role models fighting for individuals against the state also weighs against the Renegade Lawyers evolving in this direction. This is not to discount the courage of Russian advokaty who have represented unpopular clients in actions against the state. It is merely to recognize that they are not lionized by society at large, but rather by a small strata of intellectual elites. There is no one akin to Clarence Darrow, Thurgood Marshall, or Gloria Allred, whose exploits are generally known—even if not always admired—in the U.S. (Newcity 2005; cf. Butler 2011:15). As I noted at the outset, most Russian lawyers are risk-averse. They prefer to stay away from cases with political resonance. They aspire to quiet lives in which they help clients solve quotidian problems. To do otherwise would, again, require Renegade Lawyers to break the mold. Moreover, any lack of political engagement is not specific to their identity as lawyers. The scholarship on Russian youth likewise emphasizes millennials’ lack of political commitment and points to a paucity of role models as part of the explanation. Those who have joined organizations, whether pro- or anti-Putin, are typically motivated by a desire to belong (Lyytikäinen 2016; Hemment 2015). It is unlikely that Renegade Lawyers could satisfy this urge by taking on high-profile cases, an activity that, by definition, tends to require lone-wolf instincts rather than a group mentality.

The fact that Renegade Lawyers are not particularly interested in becoming advokaty is yet another reason to doubt their follow-through. Within the ranks of Russian lawyers, the burden of fighting the state in court has always been shouldered by advokaty, albeit a minority of them. It is possible that with this millennial generation the torch may pass to other types of lawyers, but the monopoly on criminal defense work held by advokaty makes this difficult. Renegade Lawyers’ interest in corporate work might lead them to represent clients in civil cases against the state. These could include claims of overreach by various state agencies, including the tax inspectorate. By pursuing them, Renegade Lawyers could work to ensure that the state lives up to its obligations under the law. Suing the state is a post-Soviet phenomenon. The numbers of such cases have increased steadily (Trochev 2016; Hendley 2002).

Yet the willingness of Renegade Lawyers to buck convention by questioning the propriety of the verdicts in the Pussy Riot case should not be minimized. It shows an openness to questioning authority that is unusual among young Russian lawyers. The analysis confirms that it is not a fluke. The shared attitudes of Renegade Lawyers toward the state and, more specifically, the legal system reveal a deep vein of discontent that could serve as a foundation for a career as an activist lawyer. Although Renegade Lawyers constituted only about 20 percent of my population of graduating law students, if this group of lawyers proved willing to tackle cases that could ruffle the feathers of powerful actors, it could reshape the expectations placed on legal practitioners by Russian citizens. Follow-up surveys of this population of 2016 graduates of Russian law faculties will tell us whether these Renegade Lawyers have the courage to follow through on their youthful convictions.

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1 The use of the word “lawyer” is intended to include anyone with an advanced degree in law who works as a legal professional.

2 In post-Soviet Russia, decisions of the Constitutional Court and the Supreme Court have precedential value, but decisions of lower courts do not (Gutbrod and Pomeranz 2012).

3 Dina Kaminskaya, who represented many Brezhnev-era dissidents, was once asked by a more senior colleague, “Why do you bother to defend these ‘politicals’? ... You’d do better to defend store clerks—it pays better and, even more importantly, it means a quieter life.” In response, she wrote, “I defended anyone who needed my help ... I acted basically from ethical convictions, from a simple sense of professional duty.” Yet she did not condemn those who took a different path, recognizing that they acted out of “an entirely justified and understandable fear of disbarment, which excuses the refusal [to take political cases] in the eyes of one’s friends and especially one’s colleagues” (1982, 37-38).

4 The experience of Russian criminal defense lawyers stands in contrast to the fate of their Chinese counterparts, many of whom have been arrested and worse for advocating too zealously for their clients (Liu and Halliday 2016). The state’s control over the Chinese bar association leaves them with little institutional support (Pils 2015). In Russia, only advokaty are required to be members of bar associations. In-house lawyers (iuriskonsul’ty) for companies that have come under fire from the Kremlin have no similar association to shield them.

5 Admittedly, this label may be a stretch. These young people stand on the threshold of their careers. At this point in their lives, they are only possible renegades.

6 Mishina (2013) has written about the shifts in the duties and compensation of notaries in post-Soviet Russia, but no one has studied this group systematically. There is a robust literature on notaries in Eastern Europe that provides useful comparative cases (Shaw 2009).

7 The names of institutions that teach law vary. When part of a larger entity, they are referred to as a law faculty (iuridicheskii fakul’tet), which is akin to a department. But some are stand-alone entities that are known as institutes or academies of law. To simplify the presentation, I refer to all of them as law faculties.

8 The law faculties included in my sample that can reasonably be considered elite are: Moscow State University, St. Petersburg State University, Saratov Legal Academy, Urals Legal Academy, Tomsk State University, Moscow Legal University named for O.E. Kutafin, and the Higher School of Economics in Moscow, as well as its branches in St. Petersburg and Nizhni Novgorod.

9 The only exception is the Higher School of Economics, which has benefitted from generous state funding since its creation in 1992. It has become a refuge for many legal officials who have fallen out of favor with the Kremlin. These include Tamara Morshchakova (former member of the Russian Constitutional Court), Anton Ivanov (former chair of the Higher Arbitrazh Court), and Sergei Pashin (former Moscow court judge).

10 The survey also encompassed a second sample of correspondence (zaochnye) students, who are not included in the analysis. See Hendley (2018b) for a discussion of the differences between full-time and correspondence students. The latter are typically combining study with full-time jobs and are older, with a mean age of 28.

11 Of those who had not opted for a career in law at graduation, less than 30 percent had definitively ruled out becoming a lawyer. The remainder were on the fence. For a fuller analysis of respondents’ career aspirations, see Hendley (2019; 2018a).

12 The trials were covered by the press. Social scientists have dug deeper (e.g., Navalny and Michnik 2017; Lassila 2016; Gessen 2014; Smyth and Soboleva 2014; Weiss 2013; Kahn 2011).

13 This trend comes into sharper focus when respondents who expressed no opinion or were unaware of the case are left out. Of those remaining, over 60 percent thought the verdicts were either completely or somewhat fair. The approbation for the Pussy Riot verdict was strongest, with 72.3 percent in favor. As to the Khodorkovskii, Naval’nyi, and Bolotnaya verdicts, the percentages in favor were 72.3, 68.2, and 64.3, respectively.

14 Limiting the group to those who believed the verdict was completely unfair would have been preferable, but their small number (109, or 7 percent) made this impracticable.

15 This mirrors my experience in Russian courts. Women constitute the majority of judges (Volkov et al. 2016). When I ask them why, they always seem perplexed by the question, as if women have an obvious comparative advantage as judges. When pressed, however, they are rarely able to lay out the reasons, often resorting to the stereotype that women are better at managing paperwork and handling tedious work (Hendley 2017b; 1996).

16 This is reflected in both the descriptive statistics (Table 1) and the initial regression results (Table 3).

17 Because the responses for these three variables were highly correlated, I could include only one of them in the regression.

18 The variable that captures attendance at elite law faculties is not included in Table 3 because of its close relationship to “Attended state law faculty,” the variable that divides the sample between those attending state law faculties and those attending private ones. When I include it in lieu of “Attended state law faculties,” the results confirm that Renegade Lawyers are significantly more likely to attend elite law faculties (odds ratio = 1.64**).

19 Under Putin, the state has actively courted youth through the creation of Nashi, a youth arm of United Russia, as well as other volunteering opportunities linked to the state’s policy agenda (Krawatzek 2018; Hemment 2015). Due to the desire to avoid ruffling political feathers, we did not ask respondents whether they had ever been members of Nashi.

20 As Table 6 shows, both Renegade Lawyers and the rest of the sample have comparatively higher levels of trust in Russia’s courts of last resort—the Supreme Court and the Constitutional Court—with which few respondents had personal experience. When asked about the more mundane courts—the district courts and the justice-of-the-peace courts—respondents become more suspicious. This mirrors results for a survey fielded by the Levada Center in 2010 in which respondents gave higher scores to less familiar courts than to courts that are more accessible to them (Gudkov et al. 2010, 15-16).

21 The Russian Longitudinal Monitoring Survey, RLMS-HSE (https://www.cpc.unc.edu/projects/rlms-hse), is conducted by the National Research University Higher School of Economics and ZAO “Demoscope,” together with the Carolina Population Center at the University of North Carolina at Chapel Hill and the Institute of Sociology of the Russian Academy of Sciences. It has been fielded regularly since 1994 and provides basic demographic data about Russia. It also includes questions dealing with Russians’ attitudes toward the state.

22 A survey of millennials when they were still adolescents shows that their outsized trust in Putin is not newfound. In a 2005 survey, almost 80 percent reported high levels of trust in Putin, compared to only about 20 percent who admitted to trusting parliamentarians (Nikolayenko 2011, 36).

23 Article 127 of the Russian Constitution, as ratified in 1993, provided for the Higher Arbitrazh Court. It was eliminated as part of this reform. Article 126, which deals with the Russian Supreme Court, was revised to expand the Court’s jurisdiction to include economic disputes (Konstitutsiia 1993). Ordinary Russians were mostly oblivious to this reform. The differences between ordinary courts and arbitrazh courts were obscure to non-lawyers. In a November 2013 national poll, a majority of Russians surveyed had no opinion on the merger (Levada Center 2013). My respondents, whose curriculum included courses on Russian procedural law, would have been familiar with the reform. See Kashanin (2016) for an assessment of life after the merger.

24 The high correlation between the variables for basic career paths (state or private) and for being from Moscow or St. Petersburg meant that I could not include the former variable in the regression analysis presented. When I included this variable in lieu of “From Moscow or St. Petersburg,” it documented that the odds of Renegade Lawyers opting for private practice were two-thirds greater than for others.

25 Art. 6, Ob advokatskoi deiatel’nosti, 2002.

26 When I included a variable that captured respondents planning to be advokaty in the regression, it was not significant. The results were the same when I included a variable that captured those who planned to take the exam to become an advokat at some later date.

27 A study of in-house lawyers carried out in the late 1990s suggests that little had changed for in-house lawyers. Their ranks were still dominated by women, a strong indicator of the undesirability of the job. Lawyers were largely shut out of the privatization process (Hendley et al. 2001). As Russian companies are joining the global economy, the expectations for their lawyers may be evolving toward those for in-house lawyers in Western corporations.

Kathryn Hendley is the Roman Z. Livshits and William Voss-Bascom Professor of Law and Political Science at the University of Wisconsin-Madison. E-mail: khendley@wisc.edu. Thanks are due to Valeriia Umanets for research assistance.

Law Enforcement and the Politics of Religious Minority Rights in Azerbaijan

Sophia Wilson

Southern Illinois University Edwardsville

Abstract: Across post-Soviet countries, laws governing the practice of religion differ. However, these laws are not always a good predictor of the level of discrimination against religious minorities. Simply knowing the legal provisions and strictures on religious liberties may not allow us to determine which congregations are more likely to experience discriminatory treatment from local law enforcement. While laws guaranteeing religious freedoms are violated on a regular basis, some groups are more likely to be discriminated against by state agents than others. On the basis of original interview data and legal records, this article will demonstrate that popular attitudes toward given religious minorities affect law enforcement behavior vis-à-vis those minorities in Azerbaijan.

The president of the Jewish congregation in Azerbaijan proudly recalled, “When we met with Lukashenka, the president of Belarus, during our visit to the country, I described to him how our president routinely congratulates us on Jewish New Year and expresses his condolences during the Holocaust commemoration. I also told him that we have three Jewish schools and a synagogue. Lukashenka was shocked that this happened in a Muslim country.”1 As I will show in this paper, while representatives of the Jewish faith insisted that they had not encountered any problems with government and law enforcement agents in Azerbaijan, the representatives of Evangelical faiths were far less positive about their experiences. In fact, Jehovah’s Witnesses have been jailed for exercising their freedom of religion in recent years (Corley and Kinahan 2015). Felix Corley (2008), a long-time analyst of religious rights in Azerbaijan for Forum 18, has likewise observed that “ethnic” minority faiths—religions associated with certain ethnic groups—are more accepted than Evangelical ones. Importantly, laws governing the practice of religion in Azerbaijan do not act as a good predictor of state discrimination against religious practices. In other words, while laws protect some rights and restrict others, state agents might violate certain laws to further suppress the rights of certain religious minorities.

Scholars often do not distinguish between the various minority groups and their experiences when analyzing sources of discrimination against religious minorities in Muslim-majority countries. Moreover, the focus is often on state laws rather than the behavior of state agents, even though there is frequently a gap between legal codes and practice. In this article, I scrutinize police and judicial conduct with respect to representatives of various religious minorities in Azerbaijan in the period between 2000 and 2010—that is, starting a decade after the collapse of the Soviet Union. I argue that public perceptions of religious minorities heavily impact the behavior of state agents in the country. I argue that Islam should not be seen as a source of minority discrimination, but rather that post-colonial nationalism, rooted in post-Soviet nation-building processes, results in social distrust of proselytizing religions. Through pioneering research, I will show that police and judges reflect these social biases in their interactions with representatives of these groups.

Nation-Building and Religious Rights

Why are some religious minorities suppressed more than others by state agents in Azerbaijan? When analyzing religious rights in Muslim-majority countries, scholars have historically discussed three major variables: Islam, authoritarianism, and nationalism. Below, I will analyze the applicability of all three, arguing that post-colonial nationalism has the strongest theoretical power to explain the differences in treatment of various religious minorities in Azerbaijan. The data in this paper confirm this theory.

Some scholars argue that Protestant and Catholic societies are less likely to have suppressive states, while Orthodox Christian and Islamic doctrines are less conducive to democratic practices (Casanova 2001; Huntington 1996; Radu 1998). Philpott’s (2019a) comprehensive cross-national analysis of religious rights revealed a strong relationship between authoritarianism and the suppression of religious freedoms, but also that it is possible for a Muslim-majority country to be a democracy and yet have low levels of religious freedom. He provides examples of Islamic civil society groups in democratic states such as Indonesia that put pressure on the state to restrict various religious practices. As the author concludes, however, this alone does not provide strong support for the thesis that Islam is a causal variable of discrimination. First, not only have scholars argued that there is a theoretical basis upon which Islam and democracy can coexist (Stepan and Robertson 2003, 2004; Kurzman and Naqvi 2010), but a number of Islamic scholars have contended that Islamic thought embraces religious liberties (Qutb, Saeed and Saeed 2004; An-Na’im 1990, 2008; Akyol 2011; Sachedina 2009; Soroush 2000). Kuru points out that Islam should not be seen as a source of repression because Muslim-majority nations were philosophically more developed than Western European ones between the ninth and twelfth centuries, and a number of them imposed fewer restrictions on various religious practices (Kuru 2019). Importantly, Islamic thought as a variable has hardly any applicability to the case of Azerbaijan’s law enforcement: the country’s legal code was inherited from the Soviet era. Not only does the legal code make no mention of Shari’a, but police and judges undergo secular education, and most were trained either during the (atheist) Soviet era or by Soviet-educated instructors.

Felix Corley’s (2008) reports on the status of religious rights in Azerbaijan provide a grim analysis of continuous restrictions of religious liberties in the country since its independence. Corley argues that state suppression of the rights of religious minorities is meant “to crush any potential challenge to political leadership.” Sarkissian (2015: 51-87) argues that governmental repression of religious activity in Azerbaijan is designed to “completely eliminate all forms of social and political pluralism,” a goal rooted in the government’s fear of the “organizational potential of religious groups.” These arguments are part of a larger scholarly literature on domination-resistance that posits that states will suppress religious communities as they come to represent competing centers of authority (Gill 2007; Gustafson and Moen 1992; Bellah and Hammond 2013). Koesel’s (2014) study shows that an authoritarian state is more likely to suppress religious groups if they are suspected of being disloyal or separatist. While these explanations help us see the larger picture of authoritarian suppression of liberties in Azerbaijan, neither the domination-resistance nor the interest-based frameworks help us understand the intricacies of discrimination practices in the country.

Why are Jehovah’s Witnesses and Baptist groups severely suppressed while Jewish, Orthodox Christian, and Lutheran groups are tolerated? The former groups are very small in size, such that they can hardly present a political challenge to the state, nor are they more likely to be disloyal than a group affiliated with an ethnic minority. Indeed, affiliation with an ethnic minority does not make a given religious group any less likely to be political.

A repressive setting does not always guarantee repression by individual state actors. In fact, when it comes to judicial behavior in Azerbaijan, research shows that judges and police at times seek to circumvent restrictive state laws to support individual rights, such as the rights of journalists (Wilson 2012). In other words, while the state is interested in suppressing the opposition, individual state actors may lessen the impact of such state attempts. As this paper shows, however, Azeri police and judges rarely show any mercy toward representatives of Evangelical faiths. Moreover, they often sidestep the law to engage in discriminatory practices.

Scholarly works on nationalism provide the most helpful model for explaining the fate of minorities in Azerbaijan. Anthony Smith argues that religion often provides a significant basis for national identity, as it offers common traditions, beliefs, values, and meanings—a reality that leads to the marginalization of religious minorities (Smith 1986: 228-263). Scholars of Eastern Europe have generally interpreted the turn to illiberal and anti-Semitic nationalism as a result of the radicalization of secular nationalism (Porter 2000). Philpott (2019b) also asserts that repression of religious minorities stems from secular nationalism. Paul Hanebrink’s (2006: 4) study of Eastern Europe shows the role of social discourse in discrimination of minorities, emphasizing that both religious and secular nationalisms promote “public mores” in a time of national crisis, i.e., that nationalist movements in Eastern Europe insisted on defining the public sphere as a Christian space, requiring the elimination of destructive “anti-Christian” forces. Notably, Hanebrink denies the link between a religious doctrine—in this case Christianity—and discrimination practices (Phayer 2000). In other words, history shows that social discourse in Christian-majority countries may be just as supportive of discriminatory practices as its counterpart in Muslim-majority countries. More importantly, it is not the religious ideology per se that is at the root of majoritarian support for discrimination. How does this theoretical framework help us explain why some religious minorities are discriminated against more than others?

I agree with Hanebrink that a distinction between the types of nationalism (religious or secular) is of limited significance. The larger forces promoting nationalism are of greater interest. I argue that post-colonial nation-building processes prompt discrimination in the name of “national revival.” Research shows the drastic effects of post-colonial nation-building on gender relations, as the reproductive roles of women in maintaining ethnic exclusivity are emphasized (Racioppi and O’Sullivan See 2000; Yuval-Davis and Anthias 1989). In a number of post-Soviet societies, traditional gender roles are presented as cornerstones of national revival (Zhurzhenko 2004; Kamp 2004), leading state actors to bend the law (if liberal) to reassert gender roles (Wilson 2017). We can apply the framework of post-colonial nationalism to the study of religious minorities in Azerbaijan and ask: are any of these groups perceived as presenting a threat to national survival? As I show in this paper, Western Evangelical groups are often perceived as a threat due to their proselytism. Thus, while Orthodox Christians, Jews, and Lutherans attract only members of affiliated ethnic groups (Russians, Jews, and Germans, respectively), Baptists and Jehovah’s Witnesses appeal to all. Such conversions are often perceived as a “betrayal” by locals, and in the post-Soviet nation-building process, perceived “national revival” presupposes a return to pre-Soviet practices.

The practice of suppressing certain groups is affected by the social process of reversing Soviet suppression of an envisioned national development, and often adopted not as a conscious repression of minorities, but as a perceived necessity to national survival. In arguing this, I build on the theory of William Talbott (2005: 67), who argues that oppressors may not only (a) consciously bias the evidence to convince the oppressed that oppressive practices are right, but may also (b) “generate self-serving particular moral judgments” that allow them to themselves believe that the oppressive practices are right, such that their interest unconsciously biases their own evidence. In the case of unconscious bias, the oppressors engage in self-deception by being selective in their observations and/or not empathizing with victims, which prevents them from realizing their wrongdoings, or by using self-serving rationalization to “explain away” the wrong actions and make them seem benign (ibid.). These biases are often reflected in judicial rulings: as Spann (1990) argues, judges are likely to act on their biases due to their own assimilation of dominant social values. Judicial majoritarianism therefore has both positive and negative implications for human rights rulings: if rights are viewed as essential by the public, they are likely to be reflected in courts’ decisions; on the contrary, if certain rights are not deemed inalienable, they will not be supported by courts.

I draw on Finnemore’s (1996) definition of norms as “shared expectations about appropriate behavior held by a community of actors,” and emphasize a public-driven source of norm construction. As I construct a model to trace the role of public norms in institutional behavior, I distinguish between the formal laws/codes of conduct and the actual behavior of individual state actors. I argue that judicial non-compliance with formal institutional rules is a function of public norms, which are in turn affected by identity formation in nation-building processes.

In order to demonstrate that law enforcement behavior is a function of public conceptions of rights, I will examine: (1) public opinion regarding the rights of religious minorities; (2) legal provisions that guarantee or suppress these rights; and (3) law enforcement behavior vis-à-vis members of religious minorities in Azerbaijan. I trace the motivations behind agents’ behavior by analyzing court cases and interviewing those dealing with state agents.

In order to measure how public conceptions of rights affect judicial and police behavior regarding the rights of religious minorities, I rely on the following data. To measure public norms, I rely on public opinion polls, capturing public attitudes toward various faiths as well as conversion. To measure judicial and police behavior, I rely on (a) court documents, and (b) personal interviews with leaders of local religious congregations, who provide an account of law enforcement behavior toward members of their religions. Public conceptions and law enforcement behavior are measured on whether they are supportive or oppressive in terms of ability to gather and perform religious rituals and ability to proselytize and convert to another faith (distinguishing between ethnicity-based and non-ethnicity-based religious minorities). I also assess whether public conceptions of rights and the behavior of state agents are compatible with the legal provisions of the Constitution, civil codes, and legislative acts. The research focuses on the period of 2000-2010, following the adoption of Azerbaijan’s Constitution and new judicial codes.2 This framework allows us to trace the effects of the early stages of the nation-building process. Thus, this paper analyzes the effectiveness of newly adopted state laws through an analysis of the actions of state agents. More specifically, it provides an unprecedented analysis of how judges implement new laws and in what ways they diverge from the code. Seeing the differences between the code and judicial actions allows us to speculate as to the potential causes of such divergence.

Public Conceptions of Religious Rights

The people of Azerbaijan consider religion a defining element of their ethnoidentity. At the same time, the level of religiosity is low compared to other Muslim-majority countries. Only 12 percent of the population attends mosques regularly, and 75 percent of Azeri Muslims do not carry out Namaz, or set prayers, which is considered one of the defining religious practices of adherents in other Muslim-majority countries (Yunusov 2004: 278). In other words, it is not religious practices per se, but perceived religious affiliation with their national identity, that is most often valued among post-Soviet Azerbaijanis. This link between religious and national identity affects conceptions of religious tolerance among the populace. This is evidenced by the fact that 60 percent of the population believes that it is necessary to strengthen the position of Islam in the social life of the country, implying the assertion of the religious majority at the expense of minorities.

In a 2003 poll, when Azerbaijani citizens were asked about freedom of religion and their attitudes toward the concept, the majority of respondents answered positively and many expressed indifference (see Table 1). However, differentiated questionnaires paint a more complex picture of religious tolerance among the Azeri populace. Attitudes toward Judaism and Christianity specifically are mixed.

Notably, however, when Judaism was broken out separately from Christianity in questions in the public poll, the practice of Judaism enjoyed more support. The leader of the Jewish Congregation suggested that there exists peaceful co-existence among the traditional faiths of post-Soviet Azerbaijan:

To get the money to build the [Baku] synagogue, I targeted all kinds of international organizations, including Israeli, British, and Eurasian… I also addressed the Sheikh of the Caucasus Muslims, who did help financially; Caspian Episcope Alexander, the head of the Christian churches [in the Caucasus] also offered financial assistance. The people of Azerbaijan likewise contributed to our project… Both the Sheikh and the Russian Orthodox Episcope came to the dedication ceremony.3

Just as the Jewish Congregation caters to ethnic Jews, the Lutheran congregation is generally considered to be a church for German expatriates and ethnic Germans. In fact, as the Lutheran priest in Baku related, the Lutheran church in Baku dates back to the 1830s, when 15,000 German colonists arrived to create village communities. They solidified their presence with the first oil boom in 1898, when thousands of Germans arrived, building a Lutheran church and establishing affiliated community organizations. Today, the community also incorporates a number of Russians with German roots, the priest explained.4 However, the community does not include ethnic Azerbaijanis, and state agents do not permit the church to proselytize to locals.5

The tendency to distrust non-traditional religious trends is revealed in the results of the questionnaire. Indeed, Azerbaijanis also tend to take a dark view of new directions within Islam, with 40 percent or more expressing a negative opinion of various Muslim sects (see Table 1).

Table 1. Public Attitudes toward Various Faiths in Azerbaijan, 2003 (percentages)

Positive

Negative

Indifferent

Don’t Know

Attitude to the concept of freedom of religion

Cross-regional

56

12

28

4

Attitude toward Judaism and Christianity

Cross-regional

21

33

39

7

Baku

30

31

39

0

Attitude toward non-traditional Islamic trends

Cross-regional

27

41

22

4

Baku

13

51

N/A

N/A

Attitude toward Wahhabism

Cross-regional

4

69

18

9

Source: Institute of Peace and Democracy, Azerbaijan, 2003 in Yunusov 2004, pp. 276-8.

Importantly, when respondents were asked to express their attitude toward Azerbaijanis who were previously affiliated with Islam but converted to other religions, only 9 percent held positive views of such individuals, while 67 percent held a negative view (see Table 2). In some regions, such as Apsheron, Lenkoran and Astrata, negative views were as high as 78-80 percent. Moreover, according to the Azerbaijani Institute of Peace and Democracy, many respondents openly expressed their protest against those who convert to non-Muslim religions (Yunusov 2004: 277-8).

Table 2. Public Attitude Toward Formerly Muslim Azerbaijanis Who Converted to Non-Muslim Religion, 2003, in percentages

Positive

Negative

Indifferent

Don’t Know

Cross-regional

9

67

18

6

Source: Institute of Peace and Democracy, Azerbaijan, 2003 in Yunusov 2004, pp. 277-8.

Greater support for Judaism than Christianity, and hostile attitudes toward Muslims who convert to other religions (mostly Christian faiths, in the Azeri case), strongly suggest that traditional faiths are more welcomed in Azerbaijan; evangelical faiths that tend to proselytize are regarded with distrust. Indeed, in interviews that I conducted in 2007, representatives of the Jewish congregation, as well as of the Catholic and Lutheran faiths, mentioned that they enjoy a considerable degree of tolerance from the population. Representatives of Evangelical Christian groups, meanwhile, often encounter discrimination and find themselves reported to the police for singing during their gatherings. In other words, while Jewish, Catholic and Lutheran religions are often considered ethnic-based, evangelicals are treated with hostility due to their tendency to proselytize and convert local Muslims to Christianity, which, in the view of the population, undermines national unity.

A representative of the Adventist Church reported:

People ask [us] to provide religious services in their cities, but we can’t offer services there; there were persecutions in Lenkaran, Hochmaz… During the holiday of Maharambih (shahse mahse), at a gathering which had three thousand [people], the Muslim leader of Ganja called on people to kick Adventists out of the city (which had the highest Christian denomination). They are irritated by their presence, despite Qu’ranic verses that demand tolerance of Christians. There was a town meeting of the educated elite, writers, who also spoke negatively about the Adventists.6

Notably, this distrust of non-traditional religious minorities is characteristic not only of Azerbaijan, but of most post-Soviet states (Wilson 2011).

Legal Provisions on Religious Rights

The laws of Azerbaijan guarantee freedom of religion and freedom to convert. On top of guarantees of freedom of religion embedded in international human rights charters that have been ratified by the state, Article 47 of the Constitution of Azerbaijan guarantees the freedom of thought and speech, stating that “nobody shall be forced to identify or refuse his/her ideas and principles.” Article 48 specifically guarantees freedom of religion and consciousness, specifying that “everybody shall have the right to independently define his/her attitude towards religion, to profess religion alone or together with others, or to profess no religion at all, to express and spread convictions.”

It should be noted, however, that the Azerbaijani Constitution imposes several limitations on religious activity. First, it restricts propaganda “inciting racial, ethnic or religious animosity.” Second, it restricts the spread of religions “which humiliate human dignity and contradict the principles of humanity” (Article 18, Constitution of Azerbaijan). Third, while Article 48 states that “violation of the freedom of religion and self-expression shall not be justified,” it contains a peculiar caveat: freedom to exercise religion applies only if the practice “does not violate public order or public morality.” While the first two limitations can hardly be interpreted as restrictive of evangelical faiths, the third has occasionally been applied to restrict the activities of these religions, as will be discussed below. Finally, while Article 49 guarantees the right “to freely gather with others,” it also indicates that peaceful, unarmed gatherings and protests require the “notification of corresponding government bodies in advance.”

Technically, these limitations do not override the rights to gather and proselytize but are meant to prevent the spread of fundamentalist organizations that might promote terrorist activity. Article 49 requests that the authorities be notified of gatherings (supposedly with a view to targeting public protests) rather than requiring official registration of all congregations. In practice, however, the Ministry of Religious Affairs, which was officially set up to protect religious liberties and the practices of various religions, often requests that all congregations register with the state. Moreover, it could be argued that Article 49 laid the groundwork for the Legislative Religious Law of 2009, which criminalizes unauthorized religious activity. Nonetheless, the fact that these provisions can be interpreted as limitations on religious activities by no means explains the differential treatment of religions, which is a notable characteristic of law enforcement behavior.

The new amendments of 2011 raise the required number of adult founders for a religious community from 10 to 50, introduce new controls on religious education, and increase the controls that the state requires religious headquarters or centers to have over all communities under their jurisdiction (Corley 2011a). These provisions seem to be targeting non-traditional congregations, whose numbers are often below 50. Thus, as Corley points out, the amendments clearly create complications for non-traditional minorities who lodged re-registration applications in 2009 and now fear that the requirement of 50 adult founders will enable the State Committee to reject their current applications (Corley 2011c).

Additional restrictions were introduced when articles 299-300 were enacted. Article 299 (“violation of the procedure for creating or running religious organizations”) imposes fines for such activities as meeting for worship without state permission, unregistered religious worship, and holding religious worship at a venue that does not have state approval (Corley 2011b). Articles 300.0-3 punish producing, importing, exporting, disseminating, and selling religious literature, religious objects, and other information material without permission from the State Committee for Work with Religious Organizations. Article 300.0.4 punishes “religious propaganda” by foreigners or people without citizenship. In December 2010, sharp increases in fines were introduced for all violations of Article 299, as were fines for religious activity under Article 300 of the Code (Corley 2011a).

Although these recent laws clearly restrict religious liberties, they do not, as will be discussed below, account for all the discriminatory law enforcement behavior prior to their adoption. The data presented below demonstrate that the conceptions of individual rights for non-traditional minorities is an essential element for the possibility of religious rights development.

Police and Judicial Behavior

Ethnic-Affiliated Minorities

Article 18 of the Azerbaijani Constitution affirms that “all religions shall be equal by law,” and the state attempts to represent that this is the case. Official public gatherings in Azerbaijan frequently involve the presence of religious leaders from major traditional faiths: the Muslim Sheikh, the Orthodox Priest, and the Jewish Rabbi (Goltz 1998). Indeed, the leader of the Jewish Congregation asserted that the presidential administration is eager to express publicly its support for Azerbaijan’s Jewish community:

[I] invited the president to the dedication ceremony… Since he was in Cleveland for his treatment, he sent a letter from the hospital congratulating the Jews. I asked the president if he gave his blessing; he said yes and promised he would come to the opening… Lots of ministers and parliamentarians attended the ceremony.7

In response to questions about encounters with law enforcement agents, the leader of the Jewish congregation indicated that law enforcement agents tried to avoid breaking the law when dealing with members of their faith. He assured me that there were no problematic encounters with state agents and that open legal cases concerning the community were nothing more than neighbors’ quarrels—and not anti-Semitic in nature.8

The Catholic community, which is mainly of Slavic descent, enjoys similar symbolic support from the state. State officials attended the Church’s blessing ceremony in April 2007; they also often offer symbolic assistance during the Easter holiday.9 The Church members do not proselytize, but focus on charity work, which is not constrained by state officials.10

Likewise, the Lutheran priest stated that the community had had no problematic encounters with law enforcement. He did, however, note that since it is illegal for foreign representatives to proselytize, they are not allowed to even place posters or the Church’s name on the door as this could be interpreted as missionary work.

Evangelical Christians

In contrast to ethnic-based congregations, non-traditional religious minorities, which are associated with missionary activities, experience problematic and at times brutal encounters with law enforcement agents. These problems include imprisonment, rejections of registration, police raids during worship services, and censorship of religious literature. While congregations representing traditional faiths have claimed and received pre-Soviet houses of worship associated with their faiths (including mosques, some synagogues, and Orthodox churches), a 1911 building belonging to the Baptist church was not returned. Although it can be argued that the behavior of state agents reflects government registration requirements, the laws cannot account for the selective registration of certain groups and not others. Moreover, there are no legal provisions allowing law enforcement agents to harass representatives of religious minorities or interrupt their religious services.

With the establishment of the Ministry of Religious Affairs, a number of religious groups were required to re-register, despite the fact that they were registered with the Ministry of Justice, which had formerly been responsible for this process. A representative of the Adventist Church explained that after the establishment of the Committee of Religious Affairs (CRA), a number of Adventist churches were declined registration. This denial was attributed to issues with the religion’s statutes, even though the same statutes existed when the Adventist churches were registered previously.11 On orders from the new committee, the church’s activity was also restricted to the city limits. As a result of these limitations, Adventist services can now be held only in the cities of Baku and Ganja.

Similarly, a leader of a Baptist church in Baku noted that while the government allows their branches to register, it does so only on a limited basis. Thus, out of twenty Baptist groups, only three have official registration (others manage to function as branches).12 Moreover, seven years ago, an Azerbaijani Baptist church was closed, despite the fact that it was registered, and government officials annulled the registration.13

A representative of the Adventist Church described cases of censorship of religious literature:

The Committee is worse than the Spanish inquisition, because rather than providing a list of prohibited literature, as during the inquisition, all religious books are currently prohibited in Azerbaijan. Every book that enters the territory of Azerbaijan has to be checked by the CRA; moreover, according to the rule, in order to get permission to bring the books in, you have to provide a copy of each book that is being transported, but there is no permission to bring it in, so we cannot provide them with a sample. When we receive permission from the censorship department of the CRA, they send a separate letter to customs, then the customs department spends a few months examining the books that were miraculously delivered there, and by the time we receive all these permissions and go to the border to get them, border control says that the permission is too old. So border control is awash in religious literature...14

Similarly, a representative of a Baptist church was told by a post office representative that only the CRA was permitted to receive religious literature. “The CRA officials, of course, refused, so the post office sent the package back.”15

Often, law enforcement agents go beyond the laws set by the government, using excessive force against members of non-traditional faiths. The loss of registration under a court order, such as the Adventist church in Nakhchivan experienced in 2003, is often followed by police harassment.16 A leader of a Baku Baptist church described an encounter with police agents who turned up during religious services:

A policeman was aggressive; when the pastor said that they were operating under the law and provided a copy of our rules, the policeman said, “I’ll show you the law and how it can be used; you can take the law and go to the bathroom with it”… [A few months later], a police detail carried out a raid during Church services, demanding that the services be stopped, and took the pastor away to the police [before imprisoning him].17

Since the restrictive amendments to the religious law in 2011, which make unregistered religious activity illegal, more than 300 religious communities that have lodged registration or re-registration applications have not been granted the needed registration. A number of Evangelical groups have ceased to congregate for worship services out of fear galvanized by threats and continuous police raids. Thus, government-initiated pressure has certainly deteriorated the condition of religious liberties in Azerbaijan over the past few years. However, attributing discriminatory law enforcement behavior to institutional provisions fails to explain the fact that police raids and harassment occurred throughout the years prior to the legal amendments restricting smaller congregations.

Notably, police harassment includes statements that reflect majoritarian social biases. Members of Evangelical faiths face constant police pressure to renounce their religion. Thus, a leader of the Baku Baptist congregation stated:

[In October of 2008] the armed police were supposedly looking for Wahhabists. The fact is, police summoned two of our religious members in Nihchala, near Iran. Both of them—the pastor and his assistant—were ethnic Azeris. The police started investigating them and threatened them. The pastor was not afraid, and quoted the Azerbaijani president, who claimed that the country supported democracy and tolerance, but the young assistant got scared and stopped coming to church, as they threatened him and demanded that he renounce Christianity.18

Similarly, representatives of the Adventist faith indicated that their members of Azeri descent are exposed to harsher treatment from police, who often threaten them, accusing them of betrayal and connections with foreign spy organizations.19

The following case, involving a local man who converted to an evangelical faith, reveals discriminatory practices among the police as well as judges. According to the court record,20 the pastor of a local Baptist church was sentenced to two years’ imprisonment under Article 315.1 of the Azerbaijani Criminal Code, which punishes resistance to—and the use of force against—law enforcement agents. Written accounts from representatives of leaders of other churches testify to policemen’s violations of protocol and brutality toward church members who tried to follow the pastor; they also suggest that the scene of arrest appeared to be a provocation to jail the pastor of the Protestant group.21 Thus, the pastor of another Baptist church in the same town noted that members who were present at the arrest and tried to get an explanation reported that they were humiliated by the police; one of them was even hit by a policeman. The latter pastor was likewise taken to the police, who attempted to coerce him into signing documents to renounce his duties as pastor and promising that he would never hold meetings in his house. (He refused.)22 A leader of Baptist churches notes in his report regarding the arrest of the first pastor:

From the beginning, the actions of the police indicated provocative intentions. In particular, police claims that they had been informed that this was the local headquarters of a Wahhabist group seem falsified. In reality, the congregation has met at this location for the last 15 years, and the pastor [name] had been summoned to the station a number of times. Therefore, this action was thought of as a provocation, and was indeed carried out as planned.23

Moreover, the leader points out that there were 12 witnesses who were willing to testify to the police agents’ excessive use of force, but these witnesses were ignored by law enforcement.

The court’s decision, dated August 8, 2011, incorporates detailed testimony from the five police agents, who described being attacked by the pastor, leaving heavy bruises on some of them.24 Also included was testimony of pastor “A,” who asserted that he did not use force against the policemen. None of the church members who had witnessed the scene were asked to testify. The most peculiar aspect of the court decision was the testimony of a local imam, who was also an elder of the community. It was recorded as follows:

[Name, Imam, community Elder] said that A, a citizen of the town, was born a Muslim, and used to engage in Namaz together with other town dwellers; later, however, he built a chapel (molelnia) in his house, where he gather people under the cover of proselyting Baptism, carried out illegal propaganda activities on the pretense of teaching, among the people there are underage children… Neighbors who live on the same street complain that he gathers people twice a week and plays loud music on a keyboard, which is troubling to them… [The community elder], as a responsible party regarding religious activities in the town,… invited him a number of times to town meetings to warn him to stop the gatherings of Muslims in his house, but A ignored their pleas. [The elders] addressed the regional police repeatedly regarding this matter.25

The imam also mentioned that the pastor displayed resistance during the arrest. It was unclear, however, whether the imam was in fact present at the time.

The court decision found A guilty solely on the basis of Article 315, i.e., the use of force against the police. In other words, not only did law enforcement authorities decline to hear testimony from members of the Baptist group, but they relied on the testimony of a town elder, following a traditional Azeri practice of relying on the Elder’s testament of one’s character rather than witnesses who were actually present at the scene of a crime. Moreover, while the major offence was declared to be the use of force against the police, unregistered religious activity and, most peculiarly, a conversion to Baptism were discussed in the case as “weakness of character.”26 This practice violates the post-Soviet Azeri code, which, similarly to Western law, calls for a trial rather than a character reference.

Table 3 summarizes my analysis of data on the rights of religious minorities in Azerbaijan.

Conclusion

It is often assumed that in authoritarian countries, law enforcement agents are loyal to the ruling regime and therefore unable to reflect the opinion of the local population. The scholarly literature has identified a number of instances in which state agents may diverge from the state and explored the underlying causes of this divergence. While previous research

Table 3. Summary: The Rights of Religious Minorities and Law Enforcement Behavior

Practices of Ethnicity-Based Minorities

Practices of Non-Ethnicity-Based Minorities

The Right of Locals to Proselytize

The Right to Convert

The Law

Supportive

Partially supportive

Supportive

Supportive

Public Conceptions of Rights

Supportive

Oppressive (suggestive data)

Oppressive

Oppressive

Compatibility with the Law

Yes

No

No

No

Law Enforcement Behavior

Supportive

Oppressive

Oppressive

Oppressive

Compatibility with the Law

Yes

Partial

No

No

Compatibility with Public Conceptions of Norms

Yes

Yes

Yes

Yes

shows that judges in post-Soviet states may support journalistic rights in defiance of state pressure (Wilson 2012), this article shows that judges in Azerbaijan may discriminate against certain religious minorities in violation of state laws. Specifically, state agents discriminate against representatives of some religious minorities but not others. The analysis of police and judicial actions presented here strongly suggests that the actions of these state agents reflect social biases vis-à-vis certain religious groups. Thus, while judges may defy the state when dealing with journalists, reflecting public support for press freedoms, they may equally well circumvent the law to repress certain religious groups, which is likewise a reflection of majoritarian biases.

Public perceptions of certain religious minorities strongly affect state agent behavior. As shown in the article, police and judges reflect social biases in their conduct toward representatives of religious groups, which are perceived with suspicion by the local population. The non-discriminatory treatment of traditional minorities, meanwhile, could be rationalized as a continuation of pre-Soviet practices of religious tolerance in Azerbaijan. It has also been shown that modern-day Azerbaijanis aspire to present themselves as religiously tolerant due to their desire to enter into political and economic partnership with Western powers (Solveig 2012). Neither of these arguments, however, explain judge-led discrimination against non-traditional religious minorities. Unlike ethnicity-based religious minorities, proselytizing Evangelical groups are perceived as presenting a threat to “national survival” in the post-Soviet era. The nation-building process in the post-colonial (post-Soviet) era is internalized by the population and is rooted in ethnic nationalism. Proselytizing religions are perceived to be robbing the locals of a certain group identity.

Law enforcement agents’ conduct reflects popular biases due to their own assimilation of dominant social values. Since the rights of Evangelical religious minorities are not seen as inalienable by the local population, police and judges are likely to discriminate against representatives of these groups. The interview data presented here show that state agents reveal their personal biases in their interactions with Azeris who convert to Protestantism: police agents accuse local members of Adventist and Baptist groups of betrayal and pressure them to renounce their religion. This practice is likely less a conscious repression of minorities than it is a manifestation of the perceived social necessity of reviving/maintaining a certain national identity in the post-colonial era.

This work does not reject the hypothesis that state repression of religious minorities in Azerbaijan is driven by the desire to suppress political dissent. Rather, it provides a more nuanced look at the dynamic of suppression. It explains why, given that all religious minorities are subject to the same restrictive laws, certain groups are repressed more than others. Social oversight is essential to keeping the state (democratic or authoritarian) in check and preventing discriminatory state practices. When social biases mean that such oversight is absent, state agents can give their prejudices free rein in their dealings with minorities.

This study suggests that majoritarian views may affect the behavior of state agents, showing that not all state agent behavior is elite-driven. A recent study showed some shifts in the construction of civic identity in Azerbaijan and a divergence from ethno-nationalism (Siroky and Mahmudlu 2016). Future studies will need to explore whether such shifts affect public views of non-traditional proselytizing faiths and consequently the behavior of state agents.

Further research on non-traditional Islamic groups in Azerbaijan is needed. Previous studies show that representatives of these groups are exposed to harsher treatment from state agents. My research supports this conclusion: law enforcement behavior reflects public attitudes which take a dim view of non-traditional Islamic groups.

Acknowledgments

Research for this article was supported in part by the following grants: the International Research and Exchange Board (IREX) with funds provided by the National Endowment for the Humanities, the United States Department of State (which administers the Title VIII Program) and the IREX Scholar Support Fund. The author wishes to thank Anthony Gill, Stephen Hanson, Jamie Mayerfeld, Rachel Cichowski, Ahmet Kuru, and the anonymous reviewers and editors of Demokratizatsiya for their suggestions and invaluable comments on earlier drafts of this article.

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1 Personal interview with the author, November 5, 2007.

2 Before the new legal codes were passed and instituted, all post-Soviet states relied on the Soviet code. In many cases, the language of the Soviet code was replicated in the new ones. Unlike the Constitution of the atheistic Soviet state, however, the new Constitutions guaranteed the rights of religious minorities. With time, the new laws of Azerbaijan became more restrictive of certain religious rights, as this article shows.

3 Personal interview with the author, October 17, 2007.

4 Personal interview with the author, November 7, 2007.

5 Ibid.

6 Personal interview with the author, November 1, 2007.

7 Personal interview with the author, October 17, 2007.

8 In contrast, in post-Soviet Tajikistan, anti-Jewish social sentiment is more prevalent and state repression is severe: the courts did not prevent the demolition of a century-old synagogue in 2008, despite the outcry of the local and international Jewish community. See Farangis Najibullah, “Dushanbe’s Last Synagogue Demolished,” Radio Free Europe/Radio Liberty, June 23, 2008, https://www.rferl.org/a/1144701.html.

9 Catholic priest, personal interview with the author, Baku, November 9, 2007.

10 Ibid.

11 Personal interview with the author, November 1, 2007.

12 Personal interview with the author, October 30, 2007.

13 Ibid.

14 Personal interview with the author, November 1, 2007.

15 Personal interview with the author, October 25, 2007.

16 Personal interview with the author, November 1, 2007.

17 Personal interview with the author, October 30, 2007.

18 Personal interview with the author, October 30, 2007.

19 Personal interview with the author, November 1, 2007.

20 Court document, Zagaltaisk region, Azerbaijan August 8, 2007.

21 Record requesting assistance from international organizations in support of religious liberties, May 25, 2007.

22 Ibid.

23 Personal interview with the author, May 25, 2007.

24 Court document, Zagaltaisk region, Azerbaijan, August 8, 2007.

25 Ibid.

26 Ibid.

Sophia Wilson is Associate Professor of Political Science at Southern Illinois University Edwardsville. E-mail: sowilso@siue.edu.

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Demokratizatsiya is abstracted in Geographical Abstracts: Human Geography and GEOBASE, International Political Science Abstracts, and Political Science Abstracts.

Editorial Policy: Demokratizatsiya: The Journal of Post-Soviet Democratization is a peer-reviewed, international and interdisciplinary quarterly journal that covers historical and current transformations in the Soviet Union and its successor states. The journal welcomes submissions by academics, policymakers, and other specialists on the political, social, and economic changes begun in 1985.

Article submissions and all correspondence regarding editorial matters should be addressed to demjournal@gwu.edu. For more information, please visit our website: www.demokratizatsiya.pub. The views expressed in this journal are those only of the authors, not of Demokratizatsiya or George Washington University.

Printed in the USA. Cover map courtesy of the University of Texas Libraries, The University of Texas at Austin.