track the path of the Tri Kita corruption scandal and examine how this case serves as a perfect example of how corruption has infiltrated all levels of the Russian government.

Unfolding of Events

Tri Kita, a Moscow-based furniture store, is owned by Sergei Zuev. On August 13th, 2000, Russian Customs inspectors seized a furniture shipment that was allegedly being smuggled in to Russia. The furniture was destined for Tri Kita and the supplying company was listed as Liga Mars. On September 7th, the Directorate of Internal Affairs of the Moscow Oblast initialed a formal investigation into Tri Kita and Liga Mars. On October 20th, Captain Pavel Zaitsev filed a criminal case against Liga Mars for smuggling 400 tons of furniture into Russia, and against Sergei Zuev, the owner of Tri Kita, for failing to pay $5 million worth of customs duty by falsifying the price and weight of the imported furniture. (Wikipedia)

Initial Customs investigations found that Tri Kita, while owned by Sergei Zuev, is actually controlled by Yevgeny Zaostrovtsev, a former member of the FSB. Zaostrovtsev used to supervise the current FSB director, Nikolai Patrushev, and is the father of General Yury Zaostrovtsev, who is an FSB deputy director and Head of the Economic Security Department. (Wikipedia)

On November 22nd, 2000, two hours after Captain Pavel Zaitsev received evidence about the link between Sergei Zuev and the FSB, the Moscow Prosecutor General’s Office, headed by Vladimir Ustinov, halted the investigation and confiscated the Customs files related to the case. (“One of Accused”) In December 2000, the Prosecutor General’s Office filed charges against Captain Zaitsev for abuse of office, conducting illegal searches, and illegally detaining two suspects. In May, 2001, First Deputy Prosecutor General, Yury Biryukov, signed a directive officially stopped the Tri Kita smuggling investigation, citing lack of evidence. (Wikipedia)

In September, 2001, the Prosecutor General’s Office accused the Chief of Customs Investigations Directorate, Marat Fayzulin, and the Chief of Customs Inspection Office, Alexander Volkov, with abuse of office for attempting to extort money from Sergei Zuev, the owner of Tri Kita. (Wikipedia)

On October 15th, 2001 the State Customs Committee claimed it had discovered a smuggling network organized by Sergei Zuev and officially charged him with customs duty evasion. (Wikipedia)

On February 18th, 2002 Yury Shechekochikhin, an investigative journalist and a member of the State Duma Security Committee, published a detailed article in Novaya Gazeta, about the Tri Kita smuggling affair and alleged that members of the Interior Ministry and the Prosecutor General’s Office were corrupt. Shechekochikhin claimed he had information that the Prosecutor General’s office closed the Tri Kita investigation after an unnamed criminal group paid members of the Prosecutor General’s office $2 million. (“Over Investigations”) Immediately after the publication of this article, Shechekochikhin started to receive death threats.

On March 13th, 2002, with the approval of the State Duma, Shechekochikhin and Alexander Gurov, Lieutenant General of Interior Affairs, and also a deputy of the State Duma, launched a parliamentary inquiry into the Tri Kita case. The Prosecutor General’s Office rejected all allegations of corruption, asserting the investigation was legitimately closed due to lack of evidence. In April, 2002, Shechekochikhin, Gurov, and Nikolay Kovalyov, another State Duma deputy and former FSB head, successfully lobbied for Russian President Vladimir Putin to intervene. President Putin appointed Vladimir Loskutov, a prosecutor from the Leningrad Oblast, to personally lead the investigation into this issue, and forced the Moscow Prosecutor General’s Office to reopen the investigation. (Wikipedia)

On September 5th, 2002, Moscow City Court found Customs Captain Pavel Zaitsev not guilty of abuse of office. The acquittal was appealed by the prosecutor, and the Supreme Court of the Russia Federation overturned the acquittal. On November 3rd, 2003, Captain Zaitsev was tried again in Moscow City Court by a different panel of judges, was found guilty and sentenced to two years probation. In December 2003, Moscow City Court Judge Olga Kudeshkina, who took part in Zaitsev’s original trial, told Russian newspapers that she was pressured to convict Zaitsev by court chairman, Judge Olga Yegorova, but she refused to do so. In early 2004, Kudeshkina was stripped of judgeship. (McGregor, 2003)

On June 4th, 2003, Moscow City Court found Marat Fayzulin, Chief of the Customs Investigations Directorate, and Alexander Volkov, Chief of Customs Inspection Office, not guilty of the extortion charges leveled against them by the Prosecutor General’s Office. Their acquittal stood. (Wikipedia)

On May 27th, 2003, Mikhail Pereverzev, the president of the Furniture Importers Association, and a key witness in the Tri Kita investigation, was shot and killed while in the hospital for some routine tests. (Wikipedia)

On June 2nd, 2003, Yury Shechekochikhin, investigative journalist and State Duma member, published another article in Novaya Gazeta about the Tri Kita case and accused the Prosecutor General’s Office, and specifically First Deputy Prosecutor General Yury Birukov, of corruption. (Wikipedia)

On July 3rd, 2003, Yury Shechekochikhin died after being hospitalized for a suddenly developed severe allergic reaction. Both Shechekochikhin’s wife, and his personal aide in the Sate Duma, claim he did not have any allergies. Hospital officials refused to provide an official medical report or allow samples of Shechekochikhin’s tissues be taken for independent medical analysis. Novaya Gazeta confirmed that Shechekochikhin received death threats after the articles he published about the Tri Kita case, but that he also had other enemies as a result of his journalistic pugnacity. The Pravda.ru news agency suggested that Shechekochikhin was poisoned. (Borisova, 2003) On August 11th, 2003, Novaya Gazeta published another article suggesting that Shechekochikhin was murdered because he was about to fly to New York to meet with FBI agents about Tri Kita laundering money through the Bank of New York. (Shleinov, 2003)

In May 2006, Alexander Zherikhov, head of the Federal Customs Service as well as some other FSB, Interior Ministry and Prosecutor General’s Office officials were fired. Though not publically stated, many believe these dismissals are linked to the Tri Kita case. On June 2nd, 2006, Vladimir Ustinov, who was Prosecutor General of Russia since 1999, resigned and became the Minister of Justice. Deputy Prosecutor General Yury Chaika took Ustinov’s place. On June 14th, Chaika reported that the Prosecutor General’s Office reopened the Tri Kita case and arrested Sergey Zuev, owner of Tri Kita, Andrey Latushkin, Director-General of the parent company Alliance-96, as well as two smugglers, Pavel Podsotsky and his wife Irina Podsotskaya, for smuggling and customs duty evasion. Later, other business people associated with both Tri Kita and Liga Mars, the furniture suppliers, were also charged with grand smuggling by an organized group, exceptionally grand custom duty evasion, and grand legalization of smuggled goods by an organized group (art. 188, part 4, art. 194 part 2, art. 174 part 3 of the Russian Criminal Code) (Wikipedia)

On June 15th, 2006, President Putin asked Vladimir Loskutov, a prosecutor from the Leningrad Oblast and a former classmate of Putin’s to continue his involvement with the Tri Kita case, since Putin did not feel he could trust the Moscow law-enforcement agencies to run a fair investigation. (Yasmann, 2006)

On July 7th, 2006, First Deputy Prosecutor General Yury Buiryukov resigned. On September 13th, 2006 Prosecutor General Yury Chaika announced that his office had obtained the dismissals of 19 unnamed high-ranking state employees who had been involved in furniture smuggling and the illegal importation of consumer goods. These officials, although dismissed from their positions, were never officially charged with any wrongdoing. Media sources revealed that officials dismissed around the time of the Prosecutor General’s announcement had worked in the following offices: the FSB, the Prosecutor General’s Office, the Moscow Regional Prosecutor’s Office, the Federal Customs Service, and the Presidential Executive Office. The dismissals occurred while FSB Chief, Nikolai Patrushev was out of the country on vacation. (Kiseleva, 2006)

On September 19th, 2006, Vladimir Vdovin, Deputy Chairman of the Russian Federal Property Fund, resigned after 12 years in office. He officially resigned because of a change of job, but rumors circulated that his resignation was also linked to the Tri Kita case. (Kommersant, 2006)

On October 2nd, 2006, Lieutenant-General Alexander Bulbov and other Federal Narcotics Control Service (FSKN) officers were arrested at Moscow’s Domodedovo airport by FSB operatives. Bulbov and his colleagues were leading the Tri Kita smuggling investigation. Bulbov claims that the charges against him were fabricated by high-ranking members of the FSB in retaliation for the series of dismissals that occurred in September. (“One of Accused”)

No further details about prosecutions were available regarding the Tri Kita case after October 2006.

Is This Corruption?

To determine if the above case fits the definition of corruption, it is necessary to define corruption in the context of this paper. J.S. Nye, in his article, Corruption and Political Development: A Cost-Benefit Analysis defines corruption as “behavior which deviates from the formal duties of a public role because of private-regarding (personal, close family, private clique) pecuniary or status gains; or violates rules against the exercise of certain types of private-regarding influence.” (1967, pg. 419) This definition is fitting for the Tri Kita case, because there were relatively few examples of bribery in a direct pecuniary sense, but numerous examples of quid pro quo and improper influence.

The allegations of corruption in this case are rampant and involve all levels of the Russian governmental infrastructure. Since the Tri Kita case is complex, involving many offices and individuals, this section of the paper will examine only those better-documented examples of corrupt behavior on the part of government officials.

At the lowest level, Customs official, Captain Pavel Zaitsev initiated the investigation that has lead to such high-level repercussions. Whether Captain Zaitsev tried to extort money from the furniture smugglers and was rebuffed, as the Prosecutor General’s Office has claimed, is unknown. However, Captain Zaitsev was not under investigation for extortion, he was under investigation for “abuse of office” for conducting 12 unauthorized apartment searches and for detaining two suspects without cause. After being charged with this crime in December 2000, his trial was conducted in September 2002. The decision of the Moscow City Court was to acquit Captain Zaitsev, ruling that the prosecution had not presented sufficient evidence of his guilt. The prosecutors appealed to the Supreme Court, who overturned the ruling, sending Zaitsev’s case back to Moscow City Court to be heard by a new panel of judges, including Judge Olga Kudeshkina. (McGregor, 2003)

Judge Olga Kudeshkina, who was a judge of 20 years and disclosed some of her experiences to voters when she was running for the State Duma in 2004. Judge Kudeshkina told voters that prosecutors intentionally exert pressure on judges hearing criminal cases, which is in direct violation of Russian constitutional law. Judge Kudeshkina spoke about Captain Zaitsev’s case during an interview with Ekho Moskvy radio in December 2003. Judge Kudeshkina said that during the course of the trial, Judge Olga Yegorova, the chairman of the Moscow City Court, called Judge Kudeshkina to her chambers and made it clear that Yegorova expected the panel of judges to convict Captain Zaitsev. Judge Kudeshkina said that Judge Yegorova told her the Moscow City Court and the Prosecutor General’s Office “act as one, having a common interest in the Zaitsev case.” (McGregor, 2003) Judge Kudeshkina believed that First Deputy Prosecutor General Yury Biryukov was behind Judge Yegorova’s interference in the case. “In my experience,” Judge Kudeshkina said during the interview, “this is not an isolated instance of a court case being used for political or commercial or personal interests. Today it’s Zaitsev, tomorrow it could be any one of us.” (McGregor, 2003) Despite Judge Kudeshkina’s protests, Captain Zaitsev was handed a two-year suspended sentence for abuse of office. In January 2004, Judge Olga Kudeshkina was stripped of her judgeship by Judge Olga Yegorova.

While the issue with Judges Kudeshkina and Yegorova started with Captain Zaitsev being charged with abuse of office, it became and issue of Judge Yegorova abusing her position to attempt to exert influence over a criminal trial proceeding. According to Section 1, Chapter 7, Article 120 of the Russian Constitution, “Judges shall be independent and shall obey only the Constitution of the Russian Federation and the federal law.” This article was apparently not upheld in the case of Capt Zatsev, and is ignored in other cases as well.

Judge Yegorova has been implicated in subsequent attempts to intimidate and bully her subordinates into ruling for the prosecution. An article appearing in The Washington Post on February 27th, 2005, outlines how Russian Judge Alexander Melikov was stripped of his judgeship and charged with 22 counts of “neglecting the interests of justice, belittling the reputation of judicial power, and undermining the people’s trust in the judicial system.” The Council of Legal Experts, at the request of the Moscow City Court’s disciplinary body, reviewed Judge Melikov’s cases and determined that with one minor exception from a case in 1998, Judge Melikov’s rulings followed Russian law. Despite this finding, Judge Melikov was still stripped of his judgeship. The ruling in this instance was handed down by the head of the Moscow City Court, Judge Olga Yegorova. (Finn, 2005)

The case of Captain Zaitsev provides insight into the corrupt practices of the Moscow City Courts, and implicates the Prosecutor General’s Office of illegally exerting influence over court rulings. The alleged corruption of the Prosecutor General’s office was brought up by journalist Yury Shechekochikhin as well. The dismissal of members of the Prosecutor General’s Office on May 12th, 2006, and the resignation of Prosecutor-General Vladimir Ustinov on June 2nd, 2006 goes some way to confirming the corruption allegations.

However, critics are skeptical about the motives behind the wave of dismissals and resignations as a result of the Tri Kita case. Georgy Satarov, the director of INDEM Foundation, an anticorruption think tank based in Moscow, believes the reshuffling of senior government personnel has little to do with an anti-corruption strategy. “This is definitely not a fight against corruption,” Satarov said.” At best it is a fight against separate corrupted individuals. [The Tri Kita case] is an intrigue, a fight for control over certain agencies, including customs. This is absolutely obvious and transparent; they removed representatives of an old clan and appointed new ones.” (Bigg, 2006)

Looking back at the initial suspects in the Tri Kita case, Tri Kita is owned by Sergi Zuev on paper, but it is actually managed by Yevgeni Zaostorvtsev. Yevgeni Zaostorvtsev’s son, Yuri, is an FSB deputy director in charge of the economic counterintelligence agency. It is alleged that Yuri Zaostorvtsev served as an intermediary for Tri Kita and the very smugglers his organization is supposed to control and investigate. In fact, the allegations further assert that Yuri Zaostorvtsev routinely receives payments from Solntsevo, one of Moscow’s largest criminal groups, for allowing them to operate without FSB interference. (Comstock, 2002)

It is likely that Yuri Zaostorvtsev knew his father Yevgeni Zaostorvtsev was involved in furniture smuggling, especially considering his professional position within the FSB. Even without confirming the bribes allegedly paid by Salntsevo, the familial relationship implies that Deputy Director Yuri Zaostorvtsev is also corrupt. If the FSB is corrupted at the deputy director level, it is not much of a stretch to assume that FSB Director Patrushev, whom Yuri Zaostorvtsev works for, is also corrupt. While there were no allegations that Director Patrushev was personally involved in the Tri Kita case, it is likely Patrushev knows of Yuri Zaostorvtsev’s criminal involvement. If Director Patrushev was unaware of the activities of one of his senior deputy directors, then his control over the FSB could be called in to question. If Director Patrushev – a close friend and associate of President Putin (who was FSB Director from 1998 - 1999) - was aware of the smuggling activities of both Yevgeni and Yuri Zaostorvtsev, then it is likely President Putin knew as well. (Comstock, 2002)

More Than Meets they Eye

What appears to be happening is a political battle between the FSB and the Ministry of the Interior (MVD). The FSB and the MVD, essentially our FBI and CIA respectively, are law enforcement “titans” in Russia. Smaller organizations align themselves with one of the other agency depending on history, corporate loyalty, or cadre policy. The Federal Guards Service (FSO), the States Customs Committee (GTK), and the Boarder Guards (FPS) are generally allied with the FSB. The Prosecutor General’s Office, the Federal Tax Police (FSNP), Federal Narcotics Control Service (FSKN), and the Ministry of Justice are allied with the MVD. The Tri Kita case, while it started relatively small, started a wave of accusations of corruption, abuse of office, and breaches of tax and customs regulations were lobbed back and forth between the two camps. (Kaliyev, 2002) Poor Captain Zaitsev probably had no idea what kind of Pandora’s Box he was opening when he started the investigation into the furniture smuggling of Tri Kita.

One of the main issues behind the Tri Kita case is the control of the Customs office. Smuggling is big business in Russia. Economics Minister German Gref issued a report indicating that approximately 70 percent of household appliances and electronics, 60 percent of footwear and 50 percent of furniture was illegally imported into Russia in 2005. According to the Confederation of Consumers’ Societies, 90 percent of all cellular phones sold in Russia are illegally imported. However, despites these large percentages, import duties account for a very small portion of the $70 billion that Customs earns for the federal budget each year. Much more important to the national coffers are export duties, which account for 85 percent of annual receipts, and most of that comes from oil. (Kommersant, 14 May 2006) As a result, import duties are not very important to the federal treasury, and as such are not closely tracked. While import duties are perhaps not important to the federal budget, they represent a huge potential income for corrupt customs officials and their associates. Since Customs has traditionally been aligned with the FSB, the battle surrounding the Tri Kita case between the FSB and the Prosecutor-General’s Office, representing the MVD, may actually be a fight over economics.

One can look at the Tri Kita smuggling scandal and see several failures of accountability which allowed the entire case to unfold as it did. The customs officials were happily accepting bribes from smugglers brings goods into the country, but were assiduously doing their duty collecting tariffs from companies exporting goods from Russia. The smuggling and bribery of customs officials were overlooked, because the smuggled goods were sold at full price in Moscow and the profits went to line the pockets of men highly placed in the FSB. Exactly how and why the case broke are unknown, perhaps Capt Zaitsev was a new graduate from Custom’s Officer Academy and was overzealous in his attack on crime. Or perhaps Tri Kita or Liga Mars failed to pay him his required price to look the other way.

The case, when it broke, was quickly closed down by the Prosecutor General’s Office who probably makes a habit of protecting high-ranking government officials from scandal. Perhaps they did not recognize the political capital the case represented. After realizing their mistake, the Prosecutor General’s office charged Capt Zaitsev with abuse of office, and then used its influence with Judge Olga Yegorova to ensure Captain Zaitsev was convicted. The Customs Office, affiliated politically and financially with the FSB apparently though this was a bit too heavy-handed by the Prosecutor General’s Office and used its considerable influence to get Prosecutor-General Ustinov to step down. However, Leningrad prosecutor Loskutov may have thought this interference with the judicial branch was too much, and asked his personal friend, President Putin, to fire several members of the FSB while FSB Director Patrushev was away on vacation. And as a final retaliation, the FSB arrested Lieutenant-General Bulbov, second in charge of the FSKN. At this point, President Putin may have stepped in and told the warring factions of the Russian law enforcement that enough was enough, which explains the relative lack of further information surrounding this case since October 2007. “No investigator will get to the bottom of this unless there is political will,” said Konstantin Shchekochikhin, the son of deceased investigative journalist Yury Shechekochikhin. (Franchetti, 2007)

Failed Accountability Mechanisms?

From this simple rerun, it appears the law enforcement branch (customs and FSB) is in bed with the criminals (smugglers and organized crime). The law enforcement branch has enough influence within the judiciary to get favorable court rulings. And everyone appears to be under the influence of, and vying for the favor of, the executive branch. With such a situation it is fairly safe to say there are essentially no horizontal accountability mechanisms in place to control corruption within the federal agencies of Russia.

With corruption so rife, what is the possibility of improvement and change? “Corruption is often a symptom of a deeper institutional weakness, and to reduce corruption, it is necessary to eliminate the conditions that favor the existence of corrupt practices and other forms of misconduct.” (Pelizzo and Stapenhurst, 2006) However, corrupt practices in Russia are so entrenched in the society, that change will be difficult. This state of affairs, while unfortunate, is not surprising. A quick look at Russian history goes a long way to explaining why the various branches of government are so intertwined.

The most pronounced theme running throughout Russian history has been the presence of totalitarian authority. Such authority has been all the Russians have known, be it a Mongol-Tatar khan, a Russian tsar, or a Communist Party leader. This factor assists in explaining some of the significant implications for the Russian political process and its criminal justice system. It also suggests that hope for dramatic changes in the region should be tempered by a recognition of that history. (Terrill, 2003, p. 444)

The close integration of national power is not unique to Russia. All countries that had a monarchy, including all of Western Europe, lived under centralized power. The monarch of the time was typically the sole judicial, executive and legislative power in a kingdom, unless certain powers were delegated to other, usually appointed, individuals. The difference between Russia and Western Europe is over time, through rebellion or organic governmental change, European monarchs officially relinquished power to other governing bodies. Initially this shift occurred in the legislative and judicial arenas, however, eventually even executive power shifted as the strength of representative governments increased. In Russia, power remained centralized throughout its entire history. Rebellions and power struggles took place, as they did in Western Europe, but national power and authority always remained intact and in the hands of one, or a select few, individuals. What follows is an account of the changes in form of that centralized authority.

A Brief Look at Russian History

Russian history is generally divided into four periods: 1) the early Middle Ages (1000-1200) ending with the invasion of Genghis Khan; 2) the Middle Ages (1200-1400); 3) The Tsardom of Moscow (1400-1700); and 4) Imperial Russia (1700-1917). The first two periods are not of interest here, but in the third are “where the roots of Russia’s present backwardness are to be found.” (Feldbrugge, 1993, p. 32) The overthrow of the descendents of Genghis Khan led to the ascendancy of the tsars in Moscow that gives this era its name. This period was essentially a form of “oriental despotism” that was also a three century separation from the rest of Western Europe. Blamed, in part, on Russia’s expansive and relatively uniform geography, the Russian tsars of the 15th Century strove to maintain a unified Russia and tolerated little expression of regional independence. Coupled with, and compounding, this Russian homogeneity was the Russian Orthodox Church, founded in 988AD and descended from the Byzantine church, which developed a close relationship with the state. This relationship continued into the Imperial Russia era when the Russian Tsar, Peter the Great (1682-1725), appointed himself as the secular ruler of ecclesiastical matters. This act established the Russian church as essentially a “ministry of religious affairs, a state department in charge of liturgical ceremonies and pastoral care.” (Feldbrugge, 1993, p. 33) The struggle between church and state that occurred in the rest of Western Europe during the period of enlightenment bypassed Russia because of the insular nature of the country. In fact, it was a crime until the 20th Century for a Russian to officially renounce his membership in the Orthodox Church; at least until the Communist Party renounced the Church altogether in 1918.

The centuries-old coupling of church and state led to the reinforcement of the concepts of “unity, coherence, integratedness, togetherness, uniqueness of destiny” (Feldbrugge, 1993, p. 35) in which the foundations for the subsequent Soviet legal system were visible. During the Middle Ages there continued a tendency for Russia to isolate itself from the rest of the world. Russians were forbidden to go abroad, ostensibly to protect them from foreigners who were considered heretical, hostile and dangerous. Even during the Imperial Russia era, when Peter the Great courted relationships with the rest of Europe, the influx of people and ideas from abroad was closely monitored and censored. One of these foreign ideas that took hold in Russia was the philosophical writings are Karl Marx and Georg Hegel. Vladimir Lenin took these ideas, organized the Bolsheviks and led a successful revolution to overthrow the last Tsar in October 1917.

Among many other ideas, the Bolsheviks believed that public law was equivalent to state power; state power used these “bourgeois” legal institutions as a façade to protect the interests of the ruling class and exploit the working people. Marx believed that under socialism, a classless society would prevail, individualism would be replaced by collectivism and the state would cease to exist. However, Marx, and Lenin, also believed that the state must continue to exist for a certain undetermined period of time as a “necessary instrument of coercion” until the final achievement of a classless society. (Berman, 1992, p. 53).

While Marx’s theory sounds plausible, it turned out to be unrealistic. The state did not cease to exist and by 1922 Joseph Stalin was leading the Russian socialist state and had evolved his own ideas about the state that differed significantly from Marx. Under Stalin all branches of the government, legislative, judicial and executive were subordinate to the will of the Communist Party, namely Stalin himself. Legal proceedings became politicized, law ratification was simplified, and the line between political and legal authority blurred to the point of nonexistence. The Communist Party elevated itself to a position of sovereignty in the Soviet political system and Communist Party decrees had the force of law. The Soviet Supreme Court, the highest judicial body, had little real power. It lacked authority to interpret or determine the constitutionality of laws, to interpret laws, or to strike laws down. It functioned essentially as another arm of the Communist Party. The concept of “justice” became so perverted under the Soviet system that torture-induced confessions were commonplace and conviction rates at criminal trials, held before a panel of one judge and two lay-people (derisively referred to by Russians as “nodders”), were over 99.5%. (Terrill, 2003)

Despite the changes in Soviet leadership over the years, the Soviet legal system of the 20th Century did not look significantly different from the legal system of the Russian Middle Ages. It is this centuries old totalitarian system that former Russian President Mikhail Gorbechev attempted to reform in the late 1980s by transferring lawmaking authority from the Communist Party, who had usurped it, back to the state. (Shvarts, 2003) On January 1st, 1992, the Soviet Government dissolved. The new Russian constitution ratified on December 12th, 1993, reintroduced jury trials and reasserted the independence of the judiciary. “Judges shall be independent and shall obey only the Constitution of the Russian Federation and the federal laws.” (Article 120) This new approach to judicial proceedings is in direct contradiction to the system which operated in Russia through the majority of its history.

Is Reform Possible?

Robert Klitgaard, in his book Controlling Corruption, facetiously says that “if you can’t do anything to change the structure or values of a society, you can’t do anything about corruption.” (Klitgaard, 1988, pg. 67) Yet Russia is attempting to change the structure and values of their society, but it is an arduous and lengthy process. Since the Russian government has existed as a one-party, one-branch government for centuries, the hopes for reform, as Terrill stated, “must be tempered by a recognition of that history.” Russia today has three branches of government, (Judicial, Executive, and Legislative) but they are all still learning their roles and responsibilities as separate entities, and in many ways they are still legally intertwined. According to Judge Kudeshkina, during her interview with Ekho Moskvy radio in December 2003, judges exist on low state salaries and are subject to various forms of pressure from both their superiors in the judiciary and from state bureaucrats. Stubborn judges who refuse to succumb to these pressures risk having their salaries cut, authority restricted and fringe benefits revoked. (McGregor, 2003)

Moscow-based Lawyer Dmitry Afanasyev said that the problem with corrupt judges stems from a flaw that exists in Russian legislation. Unlike the laws in the United States, there is no prohibition for lawyers on either side of the case to meet one-on-one with the judge before the case is heard. “Maybe one party is trying to bribe the judge. Maybe the government is trying to communicate to the court whatever it wants to say . . . it is a mini-judicial process, before the judicial process,” Afanasyev said. “The name of the game is who gets access to the judge first, and who will be heard more. It is totally ridiculous, but that’s the flaw.” (McGregor, 2003) Genri Reznik, head of the Moscow Bar Association, agreed that judges can be influenced. According to Reznik, in civil cases between two private individuals, judges are mostly free from outside influence and interference. In criminal cases, however, where the interests of power and money are clearly in play, the courts are less “independent.” (McGregor, 2003)

For any measure of horizontal accountability to work, an independent judiciary is essential. “A corrupt and politically dependent judiciary can facilitate high-level corruption, undermine reforms, and override legal norms. When the judiciary is part of the corrupt system, the wealthy and corrupt operate with impunity.” (Rose-Ackerman, 1999) The Tri Kita case acts as a perfect illustration of Rose-Ackerman’s point – high level FSB officials acting with virtual impunity while Customs officers and judges are punished. For, even though some members of the FSB were dismissed in May 2006, Deputy Director Yuri Zaostorvtsev, the son of Tri Kita owner Yevgeny Zaostrovtsev, was not among them.

If an independent judiciary is essential for corruption control, what are some ways to encourage more judicial independence? Klitgaard suggests changing incentives for corrupt officials to encourage them to not be corrupt. “Public officials should try to reward specific productive acts, and particularly effective agents.” (Klitgaard, 1988) In Russia, the ideal would be to reward judges who followed Russian law, handing down fair and impartial judgments. However, this tactic only works if those in positions of authority over judges, wanted to judges to stop their corrupt practices. What is currently happening, as the cases of Judges Melikov and Kudeshkina demonstrate, is the opposite. Judges who do not succumb to the pressures from higher authority are charged with “neglecting the interests of justice” and are stripped of their judgeship. Punishing honest behavior ensures other judges continue to follow the orders of higher authorities.

The Russian people, over the centuries, have become used to having no real justice in their legal system. There were several times in their history it appeared events were paving the way for individual rights and democracy. However inevitably, inexorably, the system returned to the status quo – a Russian totalitarian state where power is concentrated and unified, and where the three branches of government, instead of serving as a means of horizontal accountability, actually reinforce and bolster each other. Accountability is virtually impossible without an independent investigative, judicial, and prosecutorial system. “Unless there is some punishment for demonstrated abuses of authority, there is no rule of law and no accountability.” (Schedler, pg. 17)

To rein in corruption in Russia, there must be two basic forms of accountability – horizontal and vertical. Vertical accountability is for there to be some degree of governmental openness so the public can see what their elected officials are doing. Part of the vertical accountability is that if voters do not like the way politicians are behaving, voters can elect others to replace corrupt officials. Horizontal accountability has been mentioned previously, it is the notion that government agencies serve as a check for other members of the government to ensure they are behaving properly. Horizontal accountability is where the most improvement can be made to fight Russian governmental corruption. As Andreas Schedler points out in his article “Conceptualizing Accountability,” “The notion of political accountability carries two basic connotations: answerability, the obligation of public officials to inform about and to explain what they are doing; and enforcement, the capacity of accounting agencies to impose sanctions on powerholders who have violated their public duties.” (Schedler, 1999, pg. 14)

Ironically, in new democracies, such as Russia, the judiciary plays a particularly important role in ensuring horizontal accountability, yet it is these fledgling democracies that often have poorly functioning courts and legal systems. (Rose-Ackerman, 1999) In the case of Russia, the courts and legal systems function very efficiently, but they are completely in the hands of corrupt politicians and bureaucrats. Other political scientists, such as Guillermo O’Donnell, go further, saying that horizontal accountability simply does not exist if there are no state agencies “legally enabled and empowered, and factually willing and able, to take actions that span from routine oversight to criminal sanctions or impeachment.” (pg. 38) It is obvious, if the Tri Kita case is representative of how the law enforcement agencies and courts function, that high-ranking public officials are not subject to routine oversight, criminal sanctions or impeachment.

Russia has to develop its own way for the governed to control the government. In order to limit political power, and thereby limit corruption, accountability is essential. Accountability can be achieved by “government structures that create veto points and independent sources of political, administrative, and judicial power.” (Rose-Ackerman, pg. 174) The only way to reduce corruption in the Russian judicial system is to truly separate it from the executive and legislative branches of the government. Judges should not be at the mercy of the whims of bureaucrats and should be assured of their positions and paychecks as long as their rulings are consistent with Russian constitutional law. Since the pressure on judges comes from the top political offices, the only way this system will change is if the top political offices remove the pressure.

Klitgaard writes that “the unimpeachable integrity of the principal is often cited as a key precondition for cleaning up a corrupt organization (or nation).” Klitgaard cites a 122 B.C. work, Huai-nan Tzu to illustrate his point.

The power to achieve success or failure lies with the ruler. If the measuring line is true, then the wood will be straight, not because one makes a special effort, but because that which it is “rules” by makes it so. In the same way if the ruler is sincere and upright, then honest officials will serve in his government and scoundrels will go into hiding, but if the ruler is not upright then evil men will have their way and loyal men will retire to seclusion. (Klitgaard, 1988, pg. 91 cited in Syed Hussein Alatas, The Sociology of Corruption: The Nature, Function, Causes and Prevention of Corruption (Singapore, Time Books, 1980), 77)

Since the Tri Kita scandal can be linked to some of the top tiers of the Russian government, and possibly to President Putin himself, there is no “true measuring line” in Russia. If President Putin is corrupt, then where is the incentive for those around him to be true? However, hope is rekindled with each new leader elected, and Russia elected a new president on March 2nd, 2008. Former Deputy Prime Minister Dmitry Medvedev ran on a platform of reform, including judicial reform. The London Financial Times, on February 16th, 2008, quoted President Medvedev as saying; “one of the key elements of our work in the next four years will be ensuring the independence of the legal system from the executive and legislative branches of power.” (Belton, 2008) The Spanish newspaper, El Economista, reported more details from President Medvedev’s speech to the Krasnoyark Economic forum in Siberia. In that speech, Medvedev stated that in order to fight endemic corruption, freedom, private property and an independent judiciary would be the central platforms of his administration. “We must exclude law breaking from among the habits that our citizens have in their activities. . . What kind of equal opportunity and innovative thinking can there be if everybody knows that rights only belong to those with the sharpest teeth, and not those who obey the law?” (Dyomkin, 2008)

In a society such as Russia, it will take a change from the top to correct the corrupt practices that are rampant at all levels of the government. However, can a society such as Russia produce a leader who has unimpeachable integrity? Would someone with unimpeachable integrity be able to rise through the ranks of the corrupt Russian government to a position where he could do some good? Or is the Huai-nan Tzu says, that evil men will rule the government while the loyal men will retire to seclusion?

Guillermo O’Donnell states that growing political leaders in new democracies that are willing to both hold the rights of the people sacrosanct (liberalism) and are willing to subjugate themselves for the service to a greater public interest (republicanism) is unlikely, at best. (pg. 31) O’Donnell suggests that politicians in new democracies are often not interested in holding office in order to devote themselves to the service of public interest, but in order to devote themselves to personally enriching activities. Also, new democracies do not always uphold the rights of citizens above the interests of the state, but often uphold the rights of themselves above both the rights of the citizens and the state. These individuals commit abuses of public office, and rather than embodying and following the laws of the country, often view themselves as above the law.

While disheartening, this type of behavior is not wholly unexpected, because, as O’Donnell points out, the ideas of liberalism and republicanism are actually counterintuitive. “Why should those who are in charge of the common good accept restraints on what they decide? . . . Why should those who are better, or more virtuous than the rest, be prevented from governing for the sake of the common good? . . . Only in a small part of the world . . . was it persuasively argued that there were sets of rights that should not be infringed upon by any public or private agent.” (pg. 33) Without these ideas of liberalism (those in charge cannot infringe of the rights of the governed) and republicanism (that those in charge are subject to the rule of law as much as, if not more so, than the average citizen), horizontal accountability will never work. (pg. 38) The idea that politicians and government employees should constrain their behavior to follow the rule of law, and that if they fail to do so, an independent and sufficiently powerful agency can sanction them, is often anathema to those types of people who wish to hold public power in the first place.

The Tri Kita case “shows once again the depths corruption has infested Russia’s judiciary and law enforcement bodies – the very bodies that are tasked with protecting society often end up posing more of a threat.” (Yasmann, 2006, pg. 3) President Putin, despite claiming that ending corruption was one of his goals while in office, was unsuccessful in halting corruption. After his speech announcing the dismissals as a result of the Tri Kita case, Ekho Moskvy conducted a radio poll and found that 93 percent of respondents doubted that President Putin was serious about his endeavor to reduce corruption in the Russian government. (Kupchinsky, 2006)

This pervasive doubt among the Russian people is why President-elect Medvedev ran on a platform of economic and judicial reform. The question remains, will President Medvedev be “sincere and upright?” Will he be able to end endemic corruption and indeed make freedoms a cornerstone of his policies, in which the rule of law will reign? (Belton, 2008) President Medvedev’s promises are laudable, but he faces a laborious struggle if he truly wishes to untangle the judiciary from the executive and legislative branches of government; centuries of historical and cultural precedent are allied against him.

Pelizzo refers specifically to parliamentarians, but his suggestion can apply equally well to members of the judiciary. “ . . . parliamentarians should refrain from engaging in any activity that may damage their personal reputation and the reputation of the parliament.” (Pelizzo and Stapenhurst, 2006)

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