Complaints to the Authorities in Russia

A Trap Between Tradition and Legal Modernization

Elena Bogdanova

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781351389730
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Russian Politics
• Index: Politics & International Relations

This book considers the process of legal modernization in Russia from the development of the mechanism of complaints addressed to the authorities from the pre-revolutionary period to today. It analyzes wide-ranging data and sources, collected over 17 years, such as legislation, in-depth interviews, archival materials, original texts, and examples of different methods of complaints in Soviet and contemporary Russia.

Being marginal to the legal system and almost invisible for researchers of legal development, the complaint mechanism has functioned as an extremely important way of restoring justice, available to the majority of people in Russia for centuries. It has survived several historical gaps and, in a sense, acts as a thread that stitches together different eras, coexisting with the establishment and modernization of legal institutions, compensating, accompanying, and sometimes substituting for them. The research covers a period of over 100 years, and shows how and why at major historical crossroads, Russia chooses between full-fledged legal modernization and saving the authoritarian social contract between the state and society.

This book will be especially useful to scholars researching Soviet society and Post-Soviet transformations, socio-legal studies, and liberal legal reforms, but will also appeal to those working in the broader fields of Russian politics, the history of Soviet society and justice issues more generally.

1 Introduction

At the beginning of 2016, news about Vladimir Ponomariov went viral in Russia. A resident of Saratov, Vladimir walked over 850 kilometers from his native city to Moscow—all in order to deliver a complaint letter to the president of the Russian Federation. According to Vladimir, the letter contained “a description of injustice concerning all progressive people in Russia: medicine, social care, housing and communal services.”¹ Vladimir is a Russian amateur athlete, known for his loyalty to Putin’s regime and long-distance walking. Vladimir did not expect a personal audience with the president. The goal of his journey was just to deliver the letter to Vladimir Putin. Ponomariov made it to Moscow, but the president refused a private meeting.

By performing this action, Vladimir Ponomariov was making use of a method of request for justice deeply rooted in the history of Russian society. Complaints were as common an attribute of relations between the Soviet people and authorities as chelobitnaias were in the period of the Grand Principality of Moscow and as solicitations (prosheniia) were to the Emperor in the Russian Empire. At the dawn of the Soviet era, “the walkers” (hodokiˆ traversed thousands of kilometers to deliver their complaints to the Bolshevik government and to Vladimir Lenin personally.

The goal of the post-socialist modernizing legal reforms in Russia, which were initiated at the beginning of the 1990s, was to develop a legal system based on the rule of law, to develop legal institutions, and to implant law as a measure of justice in society. Multiple reform efforts were made to move towards independence of the judiciary, to establish a horizontal adversarial model of justice, and to consolidate the role of the courts as the sole agent of justice. In the present day, after decades of post-socialist legal reforms, and after being almost completely destroyed, direct complaints to the authorities have once again become a popular means for seeking justice.

The new life of the complaint mechanism coincided with particular changes in the political life of Russia. A consistent strengthening of vertical power, which intensified after Vladimir Putin’s arrival on the political scene, has made the domination of the executive (presidential) power and the formation of a dominant party regime into the main institutional arrangements of Russia’s authoritarian model in the 2000s. Among other measures, in 2006 the Duma adopted Law No. 59 “On the Order of Consideration of Citizens’ Applications in the Russian Federation.” The Law established direct complaints to the authorities as an official way of solving problems, an alternative to the judiciary. Between 2006 and 2010 the bureaucracy receiving and processing complaints was reconstructed at all levels of the executive branch.

The mechanism of direct complaint is not unique to Russian society. The first complainant was Adam who, after he and Eve disobeyed, complained to God that “the woman you put here with me—she gave me some fruit from the tree, and I ate it” (Genesis 3:12). The practice of complaint appears to be found in all regimes, both democratic and authoritarian (Henry 2012:243). Some form of interaction between society and the authorities is necessary to maintain the stability of any socio-political system. Inequality and asymmetric access to resources of power generates the need to seek help from someone of higher authority (shaman, pastor, feudal lord, prince, monarch, congressman). The universal functions of the complaint mechanisms are multiple:

1. It delivers actual information about the functioning of the system from below. This type of information may be used by different levels of authorities with different aims. Local governmental bodies may correct their measures and programs taking into account feedback from citizens. Higher levels of governance may use citizens’ applications to evaluate the probability of protest and dissent. In non-democratic systems with severe restrictions on the freedom of the press, central leaders themselves often lack information about local developments (Minzner 2006:117).
2. In comparison with all the other forms of interaction between citizens and society (non-governmental organizations, public protest, public petitions), the mechanism of complaints is the most predictable and convenient channel for state-society interactions for the authorities. The mechanism of complaints itself is accessible for control from the side of the state, because it is established by the state.
3. Whatever system it exists within, the complaint mechanism may be used to justify unpopular political decisions. Even in truly democratized systems, which make special efforts to turn the mechanism into a special tool providing transparency and accountability of governance, they are never entirely transparent. Information about the number of complaints and types of applications may be manipulated by the state. We never know the entire story of a complaint, shown as independent and sincere.
4. Complaint is a universal tool which can compensate for the most vulnerable features of regimes. Channels of direct communication with the authorities bring elements of flexibility and softness to democratic systems, which are often criticized for excessive legalism and formalism. Similarly, the usually low responsiveness of authoritarian systems can be compensated for by complaint mechanisms (Dimitrov et al. 2007). Therefore, “citizen complaints functioned as a fundamental mechanism of vertical accountability in communist regimes” (Dimitrov 2013:277).
5. Complaint mechanisms relieve social tension. In any type of society, complaint works as a safety valve (Almbjär 2019:1013). Complaint mechanisms help to address violations of citizens’ rights, and at a minimum provide hope of protection. This function is important anywhere, and especially valuable if all other channels are unavailable.
6. Being addressed to the authorities, complaints reproduce trust and faith in their potency, supporting the legitimacy of power in general.

The existence of a complaint mechanism does not say anything in and of itself about a society (Henry 2012:243). While similar in form, applications to the authorities can perform dramatically different functions in different socio-political contexts, and their role in legal modernization may also be diverse. Socio-political conditions, legal and democratic traditions, models of citizens-to-authority communication—all these things are formed over the course of history. The degree and frequency of use of the complaint mechanism, as well as the issues to which it is applied and how formality and informality are delimited, may play a crucial role for the rule of law, and also for the reputation of the political regime.

The peculiar thing about the complaint mechanism today is that, for the first time in Russia’s history, it coexists with legal institutions that have undergone a major modernization towards the Western model. For the first time in history, the complaint mechanism exists under conditions of the proclaimed separation of powers and the rule of law. Outwardly, the contemporary Russian legal system and the complaint mechanism exist as simultaneous but seemingly contradictory trends, which should generate a serious conflict affecting the process of legal modernization.

In this book I answer the following questions: is development of the Russian complaint mechanism consistent with legal modernization—if the mechanism itself is being modernized—or does it interfere with legal modernization in contemporary Russia?

Pre-modern features of the complaint mechanism

The mechanism of complaints is habitually discussed in relation to modernization. Formerly, complaints were considered a pre-modern channel of interaction with the authorities. Indeed, this was the first form of reporting to the authorities about discontent, the first available channel for petitioning for justice. This pre-modern form of complaint has several prominent features. First, it combines two functions, one of which concerns the optimization of governance, and the second with the restoration of justice. Legal modernization is usually associated with the separation of these two functions. This is a process that has occurred in different times and in different ways for different societies.

Democratic Western modernization is associated with efforts to overcome this double function of complaint mechanisms and any other contradictions that might violate principles of democratic governance and separation of powers. In the USA, the separation of administrative and judicial functions is associated with the First Amendment to the Constitution. The question of how to share responsibility for consideration of various types of appeals between executive, legislative, and judicial authorities provoked changes in the First Amendment several times between 1789 and 1791 (Spanbauer 1993:17–18, 40).

Pre-modern complaint mechanisms are usually understood, in Russia specifically, as underdeveloped “tool[s] deeply rooted in imperial and Communist practices” (Minzner 2006:108). They usually combine the functions of governance and justice into one subject of power, who is also the main addressee of applications. In authoritarian regimes like the Soviet Union, China, and Vietnam, the maintenance of complaint mechanisms is usually justified in terms of their ability to ensure political stability by addressing public dissatisfaction and monitoring implementation of policies at lower levels of government (Henry 2012:243–244). The xinfang system that exists today in China is a mechanism, originally established to resolve political problems of governance, that has “gradually evolved into a system of assistance serving as a replacement for the judicial system” (Minzner 2006:106). The number of complaints addressed to petitioning bureaus in China is almost double the total number of appeals to the courts (Ibid:105). This familiar and free mechanism performs the function of justice for the poor.

The second pre-modern feature of the mechanism of complaints is its semi-informality, which contrasts especially against the formalized judiciary. Established by the state, the mechanism of complaints usually does have formal frames, although in practice it can accommodate derogations from the formal rules, ignorance of them, or their replacement by informal versions. Drawing on research on socialist type complaint mechanisms in the GDR, Inga Markovits argues that:

[i]nstead of formal and neutral rules of procedure, we find informal self-review; instead of due process, office hours; instead of the vindication of individual claims, collective involvement; instead of an emphasis on providing administrative decisions with reasons so the citizen can fight back, an emphasis on reasons which will persuade and coopt a citizen into compliance and cooperation; instead of precise legal language, imprecise, human language; instead of confrontation, the illusion of family ties.

(Markovits 1986:742)

The third feature by which one can assess the modernization of the complaint mechanism itself is the social contract that it serves. State-society interactions are at the heart of the complaint mechanism (Minzner 2006:107). In Russia, both during the imperial times and the Soviet period, the social contract ensured the sustainability of society. Evidence suggests that “the social contract plays a central role in the maintenance of single-party communist regimes, regardless of the economic model they adopt” (Cook and Dimitrov 2017:8). Historically the force that supported stability of society was an authoritarian social contract, in which the law played a weak role, if any. From the point of view of legal modernization, it is important to understand if the post-socialist legal changes had a chance to transform the social contract, to change its dominant role in maintaining stability, or to increase the role of law in regulation and restriction of this contract.

Each country has produced its own version of the complaint mechanism. While some take steps to reform or eliminate pre-modern features, others may try to preserve them. In essence, the complaint mechanism reflects processes of legal modernization insofar as legal modernization involves the principle of separation of powers, the value of an independent judiciary, and the principle of the rule of law. The success of the modernization of the complaint mechanism itself can be measured by how well its pre-modern features are overcome and how well it can be coordinated with adherence to general principles of democracy (Henry 2012:243–244).

Legal modernization in Russia: Expanding the concept

How to talk about legal modernization in Russia? Examining processes occurring with law in Russia through the prism of theories of legal modernization leaves no chance for in-depth and meaningful analysis. The reason is simple: theories of legal modernization are ultimately focused on disseminating Western liberal legalism. According to the theories of legal modernization, the state exercises its control over the individual through law, the law defines and determines the behavior of people, the courts have the principal responsibility for defining the effects of legal rules, and the behavior of social actors tends to conform to the legal rules (Burg 1977). David Trubek and Marc Galanter, who were probably the foremost scholars in the field of legal modernization theory, believed that liberal legalism is an instrument of modernization and the measure of the legal modernization is equivalent to its exportation (Trubek and Galanter 1974). From this point of view, the case of Russia is of little interest. The maxims of legal modernization, mentioned above, can hardly be found in their pure form in Russia today, or ever in the past. Most attempts to evaluate the transformation of Russian society from this point of view inevitably come to the conclusion that Soviet and post-Soviet modernization has been a series of fiascos. Historian Richard Pipes (1977) cast the entirety of Russian history as a tradition of “anti-modernism.”

Researchers usually identify two main obstacles that distinguish Russia from successfully modernized countries. These are an intermittent development path, which always leads away from a consistent trajectory, and the importance of informal relationships and informality in all areas of society (Rose 1998: 2–3; Rose 2001). Meanwhile, exclusion of Russia from the debate on legal modernization is a mistake. Since at least the second half of the eighteenth century, Russia’s development has been oscillating between attempts to modernize the legal system and backsliding to the old ways. With all the instability of development and the perpetual need to catch up, the attempts of legal modernization in Russia have always been oriented towards the Western model of law. The Western legal system has always been viewed as an ideal model o...