Politicized Justice in Emerging Democracies A Study of Courts in Russia and Ukraine

Author: Maria Popova
Publisher: Cambridge University Press
ISBN: 9781107014893
Published In: March 2012
Format: Hardback , 210 pages
Jurisdiction: Russia, Ukraine ? Disclaimer:
Countri(es) stated herein are used as reference only

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Why are independent courts rarely found in emerging democracies? This book moves beyond familiar obstacles, such as an inhospitable legal legacy and formal institutions that expose judges to political pressure. It proposes a strategic pressure theory, which claims that in emerging democracies, political competition eggs on rather than restrains power-hungry politicians. Incumbents who are losing their grip on power try to use the courts to hang on, which leads to the politicization of justice. The analysis uses four original datasets, containing 1,000 decisions by Russian and Ukrainian lower courts from 1998 to 2004. The main finding is that justice is politicized in both countries, but in the more competitive regime (Ukraine) incumbents leaned more forcefully on the courts and obtained more favorable rulings.

• First book-length comparative study of political factors that influence the behavior of post-Communist lower courts

• Proposes a new quantitative measure of judicial independence that is both more reliable and more directly tied to the rule of law than existing measures

• First book-length systematic analysis of electoral registration disputes and defamation lawsuits against media outlets in the post-Communist region

List of Figures	viii
List of Tables	ix
Acknowledgments	xi
Introduction	1
Why Study the Rule of Law?	4
Judicial Independence and the Rule of Law	5
Why Do Some Countries Have Independent Courts and Others Do Not?	6
Judicial (In)Dependence in Russia and Ukraine	9
Roadmap	11
1. What Is Judicial Independence?	14
Institutional Judicial Independence	14
Behavioral Judicial Independence	16
Decisional Judicial Independence	18
Independent from Whom? Judicial Independence from Different Principals	19
Capacity Vs. Willingness Conceptualization of Judicial Independence	20
Judicial Independence at Different Levels of Abstraction	23
Conclusion	24
2. Judges and Politicians: Theories about the Origins of Judicial Independence	26
Structural Insulation Theories of Judicial Independence: How to Make It Impossible for Politicians to Pressure the Courts	27
Strategic Actor Theories of Judicial Independence: When Do Politicians Offer Independent Courts?	28
Strategic Actor Theories of Judicial Independence: When Do Judges Resist Pressure from Politicians?	30
Judicial Independence and Regime Type: Why Are Independent Courts a Rarity Outside of the World’s Consolidated Democracies?	32
Political Competition and Judicial Independence in Emerging Democracies – A Strategic Pressure Theory	38
Regime Age and Independent Courts	41
Conclusion	43
3. What Can a Focused Comparison of Russia and Ukraine Tell Us about the Origins of Independent Courts?	44
Existing Measures of Judicial Independence	45
Multistage Win-Rate Analysis as a Method of Measuring Judicial Independence	47
Measuring Judicial Independence from Politicians in Russia and Ukraine	50
Why Russia and Ukraine?	52
Similarities between Russia and Ukraine	52
Structural Insulation of the Judiciary in Russia and Ukraine	55
Political Competition in Russia and Ukraine	60
Theoretical Predictions about Judicial Independence in Russia and Ukraine	66
4. The Role of Ukrainian and Russian Courts in the Provision of Free and Fair Elections: Judicial Independence from Politicians during the 2002 Rada and the 2003 Duma Campaign	68
What Are Electoral Registration Disputes?	70
The Datasets	77
What Can a Plaintiff’s Political Affiliation Tell Us about Judicial Independence?	79
Measuring the Independent Variables	81
Administrative Resources and Case Merit: Why 2002–2003 Progovernment Candidates Should Have Been Losing in Court	91
Sartori Selection Model of Court Appeal-Rate and Win-Rate	93
Effect Magnitude as a Measure of Judicial Independence	97
Implications of the Electoral Dispute Analysis for Judicial Independence Theories	99
5. The Role of Ukrainian and Russian Courts in the Provision of Press Freedom: Judicial Independence in Defamation Lawsuits, 1998–2003	102
The Statutory Framework for Defamation Lawsuits	105
The Datasets	107
Loss, Victory, and “Moral Damage” Awards: Multistage Win-Rate Analysis of Judicial Independence from Politicians in Defamation Disputes	112
Judicial Independence from Other Principals	122
Conclusion	126
6. Politicians’ Capacity to Pressure the Courts	128
Ex Parte Communication	129
Telephone Law	131
Internal Dependence in the Russian and Ukrainian Judiciaries: How Superior Court Judges Influence Lower Court Judges	134
Links between the Judiciary’s Leadership and the Presidential Administration	139
Supporting Agencies as Supervisors, Rather Than Assistants	143
Implications for Judicial Independence Theories	146
7. Politicians’ Willingness to Pressure the Courts, 1998–2004 and Beyond	148
A Tale of Two Municipal Elections	148
A Tale of Two Lawyers for the Opposition	155
Tales of Maverick Judges	157
Judicial (In)dependence in Russia and Ukraine, Post-2004	161
Continued Politicization of Justice in Post-Orange Ukraine	161
Russia’s Authoritarian Reversal and the Courts: Looking beyond the Khodorkovsky/Yukos Cases	165
Conclusion	166
Conclusion: Politicized Justice in Russia, Ukraine, and Beyond	168
Pathways to Independent Courts?	172
Bibliography	175
Index	193