I find it interesting that the “Magnitsky List”, being discussed actively in the US has caused such an emotinonal reaction from the Russian elite. It seems that possiblity of being included in this one or a similar document frightens Russian officials even more than, say, American BMD system in Europe. However for the rest of Russians the introduction of the list mostly raises a rhetorical question: what makes those included in the list different from thousands of other corrupt officials and judges? Those others might have been just lucky not to have had worked on a case that attracted so much international attention. The way Russians see it today, is that if it were different people involved in the Magnitsky case – the result would have been just the same. Americans see those in the list as villains, Russians see them as typical examples of government officials and judges.
One of my high-ranking acquaintances has recently taken part in the hearings at the High Court of London concerning the case of Russian Oligarchs. The strongest impression that he carried out of the court room was that of the atmosphere and feeling of the Rule of Law that was present during the whole process. And that is something that one won’t find in Russia.
Moreover Russian judicial system doesn’t seem to approve of Rule of Law in other countries either. For example the Chairman of the Superior Court of Arbitration Anton Ivanov has recently proposed to “defend the sovereignty” from foreign courts, by canceling their judgements in Russia. Moreover he is suggesting confiscating assets and capital of corporations and individuals who have been ruled in favor of, when figthing against Russian businessmen in foreign courts. As a bonus he also demands that foreign judges involved in such cases are refused entry to Russia. What doesn’t bother Ivanov when making such statements is that today, foreign investors are shunning Russia as it isl, while more and more capital escapes the country’s economy year over year.
If you ask me, these suggestions look anti-Russian to say the list. Russian business is already running away from its own country. D.Afanasyev from the “Egorov, Puginskiy, Afanasyev and partners” law firm announced recently that not more than 10% of important deals are made within Russian jurisdiction, while the most popular jurisdiction among Russian businessmen is that of Great Britain. Chairman of the comitee of Russia State Duma for economic policy, E.Fedorov noted that 95% of Russian industry can be found in foreign jurisdictions. All that is not just a flaw within the economic policy and arbitrary system of the country, but an immence failure of the government and authority as a whole. A legal catastrophe if you will. Russian leaders can spend dozens of precious hours persuading foreign investors to consider putting their money into Russia, but their attempts will be futile at best, if even the domestic businessmen have no trust in the country, its economic policy and legal system.
Today, Russia manages to retain the reputation of a country, in which corruption serves as the foundation for economic activity. Everyone remembers how Dmitry Medvedev declared war on corruption before eventually realizing that idealogical announcements are quite different from real life and that the mission to stop corruption was impossible to complete for Medvedev and his apointees.
Anton Ivanov mentioned above, Medvedev’s ex-classmate from St.Petersburg State University actually is one of those apointees. One of his previous employers before also happenned to be “SouzKontrakt”. For the uninitiated - during the hearing of “Cherney vs. Deripaska” in London Court it came out that the heads of “SouzKontrakt” during Ivanov’s time there were not just “regular” people. One of them is said to have been at the top of the organized criminal group of Podolsk, while the other is mentioned in the FBI report as an active member of “Russian Family” criminal group of San Fransisco. After his employement there, Ivanov managed to make it from a mere Docent of Saint Petersburg State University to the head of the whole Abtration system of Russia in just 4 months, at the same time witnessing how his former classmates were filling-in other important positions at the top of the country’s judicial system in the matter of months.
Elena Valyavina, another of Medvedev’s and Ivanov’s classmates became the Deputy Chairman of Superior Arbitration. Valeria Adamova became Deputy Chairman of Arbitration Court of Moscow, before becoming the head of Cassation of Moscow district. Inna Vorobyeva, yet another classmate, ended up at the top of the 10th Arbitration Court of Appeals. Abitration Court of Moscow was headed by a 27 year old Dmitriy Pleshkov, a close acquaintance of Ivanov. All of these appointees not only had personal acquiantance with Ivanov and have studied together with him and Medvedev, but also shared another interesting trait – none of them, including Ivanov have ever worked as a judge preceding their appopintements.
For the purpose of clearing space for these new appointments other Chairmen and their staff had to be removed from office prematurely. Tractable ones were honored with decorations (Evgeniy Ilyin from Arbitration Court of Moscow Oblast) or were raised to other economically prosperous regions (Oleg Sviridenko from Arbitration Court of Moscow or Artur Absalamov from the 10th Court of Appeals). The not-so-tractable were sacced (Liudmila Maikova from Cassation of Moscow district). Similar measures were used against the presidium of the Superior Court of Arbitration. Speaking of which, Elena Valyavina proved to be naïve enough to believe that the courts were indeed becoming independent and corruption free, and publicly acknowledged direct involvement of government officials into some of the cases. As a result enraged Ivanov removed her from presidium, eventually disrating her to a regular judge, with Medvedev never saying a word against Ivanov’s actions.
When taking to his position, Ivanov stated that the rumors about the corruption prevalent in Russian courts were exhagerated and blamed it on incompetent lawyers, who couldn’t properly defend their clients in turn accusing courts of unethical and illegal practices. Ironicaly, just five years after that statement had been made, Medvedev publicly recognized that a new type of criminal activity arose in Russia, which had been directly related to the unspeakable corruption in courts – the “Reshalshiky” (solvers), people who knew how to turn any case in favor of their client, by pointing out who required bribing and how much.
The case in Russia is that the judges most of the times are not affected by external influence, but instead are susceptible to aggressive pressure from the Chairmen, who use different means to push judges into desired behavior, starting with payroll and incentives and all the way to removal from office. Talking about the power of Chairmen of courts it would be wrong not to mention that in 2012 Anton Ivanov have made attempts to legitimize his immunity as Chairman, bassicaly making himself irremovable from office. So far his attempts were unsuccessful.
It is very important to realize and aknowledge that today in Russia legitimate state bodies operate alongside influential, non-public interest groups and centers of power. It’s in these centers that most of the important political, staffing and economic decisions aremade. Without proper means to regulate lobbying in Russia, these groups have continuously managed to use their pesonal economic interests as natinonal ones, which logically led and continues to lead to the situation when numerous economic policies go blatantly against the benefit of the state itself.
Global experience shows that it is impossible to overcome such unconstitutional split of power with politcal will only. To tackle this crucial problem the country needs a truly independent and strong judicial system, which can return the Rule of Law to Russia. Unfortunaltey so far, creation of such system has failed miserably. Perhaps Ivanov’s initial goals actually were quite the contrary, instead making the Arbitration Court more “controllable” when it came to dealing with economic interests? As was noted many times by business press, the “Medvedev’s team” consisted not only of Anton Ivanov, but also Alisher Usmanov, Suleyman Kerimov, Magomedov brothers, Igor Yusufov etc. The critical issue here is that the competition between such groups of interest and centers of power represents the foundation of Russian politics, while the role of judiciary system is to serve this struggle in a clearly not-so-idependent and openly subjective ways. Hence it shouldn’t surprise anyone including Russian government that Russian businessmen would rather go to foreign courts than get involved with corrupt system, where rule of law doesn’t apply equally to everyone. The situation is so dire that it seems that creating a proper, fully funcioning and effective judicial system is the only way to protect Russian sovereignty today.
Published in Echo of Moscow on July 17, 2012
Read in Russian: http://n-zlobin.livejournal.com/73343.ht