At a recent Kennan Institute talk, Ethan Burger, Scholar-in-Residence, School of International Service, and Adjunct Associate Professor, Washington College of Law, American University, presented some findings from his on-going work that he believes support the position that Russia has not achieved the rule of law and is not likely to in the near future. Despite numerous attempts at reform, Russia's judicial system is subject to increasing pressure from the executive branch and marred by corruption. Burger based his position on evidence obtained from Russian and foreign attorneys practicing in Russia, Russian academic and media reports, and the arbitrazh courts, which handle commercial disputes. According to Burger, aggregated data seems to indicate that businesses in Russia are beginning to trust the arbitrazh courts more and to turn to them for the settlement of their disputes. Although this may be explained in part by the increased level of private economic activity in the country, the number of cases that the arbitrazh courts handle is increasing each year, and private citizens have won a significant number of cases against the state. Burger believes, however, that aggregate data mask the serious examples of corruption that businessmen and lawyers continually encounter in their dealings with the courts.

Burger contended that Russia has extensive legislation regulating the judicial system, but legislation often has little to do with actual practice. He explained that judges in Russia are appointed by federal order, and that the appointment process is reportedly under the control of Viktor Ivanov, an ally of President Vladimir Putin and fellow former KGB agent. Judicial corruption, in Burger's view, is caused by several factors. Judges earning a moderate salary by Russian standards are presented with cases involving large sums, providing a strong incentive for corruption. At the same time, judicial practice is neither standardized nor transparent. According to Burger, judicial decisions are typically made according to one of three formulas: the judge makes a decision based on the merits of the case, but then seeks bribes to issue the appropriate ruling; the judge seeks bribes from both sides and rules in favor of the highest bidder; or the judge issues a ruling based on the dictates of state officials or organized crime.

Officials at the top levels of the Russian state do not agree on whether judicial corruption is a problem in their society, Burger said. The newly-appointed Chairman of the Supreme Arbitrazh Court, Anton Ivanov, has stated that the extent of corruption in the courts has been exaggerated, and the Chairman of the Supreme Court, Vyacheslav Lebedev, has denied that a problem of corruption exists in Russia's judicial system. Burger noted, however, that other top officials, including Valery Zorkin, Chairman of the Constitutional Court, and President Putin himself, have publicly expressed concern about judicial corruption. The Putin administration has brought forth several measures to reform the court system, including advisory bodies to investigate corruption, but Burger argued that these reforms have never had sufficient funding to be successful.

Burger emphasized that the type of corruption that exists in Russia's courts is not unique—similar situations exist in many Asian, African, and Latin American countries. He believes that addressing this problem will require long-term systemic and attitudinal change, including greater transparency, genuine accountability, effective training, and a willingness to commit substantial resources for anti-corruption programs. It is overly optimistic to believe that this will occur in the near future, he concluded.