Review of Valts Kalniņš' study "Judiciary and Corruption"
Is the justice system helpless?
This is a welcome and much needed study of the anti-corruption role of the justice system in Latvia. Increasingly many scholars and policy makers have concluded that corruption in post-communist countries is a plague hindering the consolidation of democracy and market economy, and that more needs to be done to fight it. Latvia is an important case to study both because it ranks relatively high on the corruption scales provided by Transparency International and the World Bank, and because it was a pioneer in starting an official anti-corruption campaign (1998). Law and the justice system have been called upon to be leaders in this campaign and Valts Kalnins tries to assess how well they have been doing. His institutional focus is on the procuracy and courts. He carefully examines existing laws and regulations, provides an in-depth analysis of five investigations of high level corruption, and reports on other material such as his interviews with judges. He also makes insightful comparisons to Lithuania, Estonia, Denmark, Italy, and France.
Kalnins argues that it is a strength of the Greco-Roman legal system found in Denmark and elsewhere that it focuses on legal principles rather than the specific wording of laws. The latter was typical of the socialist legal system and its remaining legacy in Latvia has impeded investigations and prosecutions for corruption. A formalistic approach that sticks to the letter of the law rather than its meaning has made it practically impossible to prosecute officials for conflict of interest and other corrupt practices. Kalnins also mentions that Soviet era law was subservient to politics, but he does little to analyze how this may influence contemporary affairs. Thus, he gives a striking description of the passivity of prosecutors in initiating investigations of high level politicians who are alleged to be involved in corruption, yet he does not discuss how this relates to habits developed during the Soviet-era such as undue subservience to official bosses.
This is a rich study that raises many important points. There are two main conclusions one can draw about how the justice system in Latvia has dealt with corruption. One conclusion is that much can be done to improve the workings of individual laws and procedures, and the author provides a helpful list of what changes bear most promise. The other conclusion is that post-communist corruption is so complex and slippery that formalistic judicial approaches do little to limit it, and may even indirectly promote it. This is so because judicial practice in Latvia over the last ten years has demonstrated that corrupt actors can act with impunity. Despite many scandals about misappropriations of public funds and despite findings by the World Bank that Latvia suffers from high level political corruption and even "state capture," few investigations into corruption have been launched, and there have been even fewer convictions.
This conclusion can be best illustrated by the material presented about what cases are investigated and prosecuted at all. As Kalnins notes in chapter 4, the procuracy has been hesitant to open investigations, including in some cases when the press had raised serious allegations. In the notorious case of the disappearance of three million lats from a Latvenergo transaction, the procuracy started to investigate only after six weeks and only after a formal complaint had been filed. Of those cases that are investigated, only a small fraction reach the courts, and of these only a fraction lead to convictions. Kalnins reports that the number of people convicted for bribery and other crimes related to their official positions decreased from eighty-nine in 1997 to thirty-three in 2000. He contrasts these numbers with the much higher incidence of bribery reported by respondents in various surveys. It would have been very helpful if he had included more such comparative analysis based on existing survey data and other sources.
As it is, Kalnins mainly makes descriptive comparisons to the situation in Lithuania, Estonia, Italy and France. The main body of the study consists of a lengthy discussion of various general aspects of the court system in Latvia and the other countries. There are in-depth descriptions of institutional and financial settings, the selection and qualification of judges, and of various court procedures and practices, for example in relations with the public. This part focuses too much on formal arrangements and the courts themselves. What's more, it would have made sense to focus more on the procuracy than the courts, because the procuracy holds the strategic position in the battle against corruption. The prosecutors office decides whether or not to open investigations, how to formulate cases and how to present them to court, and whether to appeal to higher courts if an outcome appears unsatisfactory.
The study does discuss the important issue of the extent to which the courts themselves are corrupt. On this issue -- as well as on others -- Kalnins provides extensive quotes from his interviews with twenty-five judges working in various level courts. This material provides some interesting insights and gives a flavor of the way the judges think, but is at times presented in too uncritical a manner. Thus, most of the judges interviewed insist that there is no corruption in the courts, but shouldn't one consider their psychological impulse to deny such problems? Even more so since corruption is narrowly defined as bribery and selected instances of conflict of interest?
As he states in the introduction, Kalnins deliberately chooses a narrow definition of corruption in order to get a better handle on it, but this doesn't work well. He mainly defines corruption as bribery, and in some cases illicit action in conflict of interest situations. It would have helped if he had included other forms of the misuse of official position, which he does mention in passing and which are in fact outlawed by various rules and regulations as Kalnins himself notes. A broader definition of corruption would have sharpened the theoretical and analytical thrust of the study. The most widely accepted definition of corruption is "the misuse of public office for private gain." Both in theory and practice this involves much more than bribery, it involves profiteering from privatization and procurement decisions as well as asset stripping and other self-serving uses of public resources by the officials in charge. As Kalnins mentions in passing, some of these corrupt practices are actually covered by Latvian laws, but the justice system does not work well to secure that these laws are observed. Even worse, there appears to be selective enforcement, such as in the case where two officials of the Riga City Council were singled out for illegally sitting on the board of the Port Authority of Riga and receiving high honoraria for it. While these two officials were chastised and made to repay the monies involved, there is no shortage of similar cases involving other politicians, but Kalnins does little to discuss this point. Obviously there are limits to what a single study can accomplish, but it is important to focus on all of the most crucial dimensions of the subject under investigation.
It is the purpose of a policy analysis to both accurately depict a situation and at the same time focus on pivotal issues that illustrate how alternative policies could make a difference. Kalnins makes some good points, but more could be done to develop them more fully. Thus, he does use the Italian case to show how a change in the political will and dedication of a group of judges dramatically changed the way that corruption was prosecuted in Italy, but more details on this important turn-around would have been very helpful in considering the Latvian case. Similarly, Kalnins mentions the important successes of the special anti-corruption investigatory unit in Lithuania, but without fully developing what this implies for Latvia. Last, but not least, Kalnins provides important material on the role of the European Union and various international conventions designed to fight corruption, and again some of them imply important reforms that could make a huge difference. One such reform includes the empowerment of the victims of corruption to sue for restitution, for example in the case of firms that have suffered from corrupt procurement deals. Couldn't one also discuss the role of individual citizens and civic groups going to court against corrupt officials who misuse public resources at the public's expense? In Latvia there have been some minor initiatives in this direction already, and it appears that this democratic approach to a legal battle against corruption could turn out to be decisive in the future.