Crime and Justice International Magazine - Sam Houston State University

The second meaning is connected with corruption, a more dangerous phenomenon because it is a question of the corruptibility of judges. As a result, court decisions favor the party that was able to pay out the necessary sum. For the designation of “justice” of this kind, the expression “justice made to order” is sometimes used.

It is also necessary to consider the corruptibility of detectives, procurators, and staff of other law enforcement bodies, as a result of which decisions are made on criminal cases (at the pre-trial stage particularly) based on the influence of an influential person or corporation.

We will consider here shadow justice in the third meaning, when the functions of judicial authorities are discharged by criminal groups and their leaders. In this case we speak sometimes about “black justice” or about “criminal justice.”

Shadow justice in the last meaning is of considerable interest for those countries where a significant number of natives of Russia and other republics of the former USSR live. Among such countries we may mention Great Britain, Germany, Austria, France, Switzerland, Spain, the United States, and others. In order for law enforcement of those countries to better understand the challenge that stands before them, it is useful to become familiar with the belief system such people come from, which local traditions they adhere to, which rules of behavior they choose, how they resolve internal and external conflicts, and how to cooperate with them or fight against them.

The Appearance of Russian Shadow Justice

It is important to understand that in Soviet Russia there were no businessmen; moreover, private entrepreneurial activity was forbidden under the threat of criminal punishment. The means of production were directly or indirectly owned by the State. The level of income of citizens did not vary significantly, and a considerable part of the gross domestic product was distributed among the population through various public funds. The most necessary things – housing, health services, education, and so on – were provided free of charge. Therefore, there were no real grounds for serious economic and property disputes. The existing disputes between economic entities could be likened to a conflict of a person with himself when he decides in which pocket he should keep his valuables.

The situation abruptly changed after private enterprise was permitted and the national wealth was privatized. Individuals suddenly obtained private ownership of factories, plants, newspapers, radio stations, TV stations, etc. Moreover, the distribution of newly accessible State property was obviously unjust.¹

It is no wonder that, with the realization of the rights of new proprietors and the collision of their interests, numerous and extremely violent property conflicts occurred. The judicial and law-enforcement systems surviving in Russia from Soviet times were not ready to provide an adequate solution to these conflicts.

In Russian society, therefore, there was a need for certain arbitration services in order to resolve property conflicts; this need was also evident in the so-called power structures (police, secret service, military, etc.) which would be tasked with putting into force the agreements arising out of the conflicts, protecting the interests of the participants. For a number of reasons, organized crime groups and their leaders – the so-called thieves in law, “polozhentsy” (emissaries), “smotryashchiye” (watchers), and others – began to fill this requirement. They helped decide who owed what to whom and assisted in or, if necessary, obstructed the recovery of debts. Along with this, they provided services as middlemen between the participants in property conflicts.

The problem addressed in the present paper took shape at the beginning of the 1990s. There are quite a few references to the emergence and the spread of this criminal phenomenon in the professional literature in Russia. In the middle of the 1990s the problem became more acute, so much so that the President of Russia, Boris Yeltsin, admitted that

...a steady tendency towards the non-execution of many court decisions in civil cases has occurred.... In the long run a criminal mechanism is actually being built. Seeing the inefficiency of court judgments, many people prefer to look for illegal ways of returning their lost assets.... In other words, the non-execution of court judgments throws doubt upon the existence of the judicial power and hence on the existence of the rule of law.²

Since that time the executive and legislative branches of power have taken certain measures to normalize the situation (new criminal legislation has been adopted, the service of bailiffs has been created, etc.); however, no fundamental changes have taken place in recent years. The criminalization in this sphere is being modified and adapting to new conditions. It is not an accident that in his Message to the Federal Assembly on April 3, 2001, the President of Russia, Vladimir Putin, called the system of “shadow justice” one of the key threats to the country.

An analysis of Russian shadow justice is impossible without considering it in close interrelation with property conflicts. Therefore, we shall further turn to the problem of property conflicts.

Property disputes are social conflicts by nature. The following definition formulated in modern conflictology is close to the views of the author: Social conflict is a process in which two (or more) individuals or groups actively look for the possibility of hindering one another in the achievement of a definite aim, to interfere with the satisfaction of the interests of a rival or to change his views and social positions.³

Property disputes are caused by the contradiction in property interests and the goals of conflicting parties, the term “property” being understood to mean a combination of things including material values and the right to obtain things and other means of material satisfaction (according to our understanding of Article 128 of the Civil Code of the Russian Federation).

As sociologist V.A. Yadov has noted, “In all conflicts actually two things (or sometimes even just one) are involved: resources and the question of control over them. From this point of view, power is only a variation of control over resources, and property is a resource itself.”⁴ Taking this into consideration, property conflict can be defined as a social conflict, the parties to which claim the same material benefit.

Depending on the specific essence of a property conflict, its elements (cause, participants, objects, means of dispute, etc.) are usually of a legal nature (as distinct from an interpersonal or religious conflict). The rights and duties of the participants of a property dispute – the procedure for its resolution⁵ – are regulated by Russian lawmakers (legislator, arbiter) in civil, civil procedure, and arbitration procedure legislation, etc.

Where property conflicts do not follow from juridical obligations (having other legal or illegal grounds) and there are no creditors and debtors, or a counter-action has been started and both participants in a dispute are claimant and respondent, we observe the same regularities as between a creditor and a debtor: one of the parties legally or actually controls some property, while the other one makes a claim to it. The position of the first party is close to the typical position of the debtor, the position of the second one is close to the position of the creditor, and the relations between them are formed in a similar way. Thus, in court the party actually controlling the disputed property strives to receive juridical recognition of this control, whereas the party which does not control the property tries to establish actual control over it through the recognition of his right in court.

As the official judicial system was inefficient in the post-Soviet era (for economic, political, social, psychological, and legal reasons⁶), judicial protection for a great number of participants in property disputes proved inaccessible or insufficient.

In this sense, the following data from 1999-2000 are of interest. The following question was put to state and private law enforcement representatives: what method of exacting legal debts from a person who evades payment produces the best effect? Less than a quarter of those polled indicated judicial recourse. The first three places were distributed as follows: over 40.5% favored the use of the traditional criminal “roof,”⁷ 30.8% relied on the law enforcement “roof,” and 27.8% relied on influential criminal leaders (avtoritety). We shall notice at once that due to the insufficiency of legal grounds, not all conflicts allow for a legal settlement by satisfying the basic demands of any party. They can be divided into three categories according to these options.

The first category includes conflicts that have a good chance of being resolved by the judicial system or other legal process. It includes claims and disputes over lawful and properly executed transactions and also over other statutory obligations (in particular, obligations due to inflicted harm), etc.

The second category includes conflicts having a low chance of legal settlement. In such cases it may be that previous relations had not been conducted in accordance with legal regulations. Typical examples are improper business transactions and disputes over the payment of prizes in games of chance (by general rule, conflicts arising from the organization of games and bets or participation in them are not subject to judicial protection – see Article 1062 of the Civil Code of the Russian Federation).

The third category represents conflicts in which the claims of the parties are based on the standards of the criminal world or other subculture and do not have legal grounds. Such conflicts include, for example, the disputes over the receipt and distribution of the contents of the “obshchak,”⁸ over the share of the assets acquired by criminal methods, control over enterprises by opposing criminal groups, the execution of the conditions of illegal transactions, and so on.

It is worth mentioning here that in recent years the so-called “otkat” have been widespread. The meaning of “otkat” is as follows: Besides the officially fixed conditions of any transaction, the negotiating persons agree to a payment for this transaction which is not mentioned in the text of the contract. For example, the enterprise delivers to a certain firm products for an underestimated price, and the firm transfers its reward for this discount of the representative of the enterprise to the personal account. It is quite clear that a violation of the arrangement about “otkat” cannot be challenged officially.

Research carried out by the author shows that the conflicts of the second and third categories and largely those of the first category are settled within the framework of shadow justice.⁹ The removal of organized crime from the areas in which conflicts of the first and the second categories arise is an essential task of the Russian law-enforcement and judicial agencies, entrepreneurial structures, and other interested State and public associations.¹⁰

Shadow Justice

The events that took place in Russia at the end of the 1980s and into the 1990s, the weakening of State power as a whole and of the law-enforcement and judicial systems in particular, increased negative social phenomena of a criminal nature, the definitions of which contained the adjective “shadow”: the shadow economy, shadow culture, and even the shadow state.¹¹ The expression “shadow justice” (and less often as synonyms – “black justice,” “alternative justice”) is used by journalists, lawyers, and practitioners¹²; even more often it is used by researchers. In recent publications devoted to the problems of organized crime control, it has been noted that shadow justice is developing and expanding in the country.¹³

In this connection it is worth noting that organized crime represents a self-perpetuating system enjoying protection from the State and legal control. Shadow justice is nowadays organically included in this system as its subsystem. Therefore, for the full liquidation of shadow justice it is necessary (but not sufficient) to eliminate the causes behind it.

Official justice in Russian jurisprudence is traditionally defined as a judicial department, a totality of legal agencies, the activity of administering justice.¹⁴ Therefore, a priori, based on an etymological analysis of the expression, shadow justice could be defined as a totality of unofficial structures, which examine and dispose of both criminal and civil cases as well as economic disputes in a certain way and contrary to current legislation. Thus, there are several open questions: What are the limits of shadow justice? Does shadow justice fully duplicate official justice in parallel? What are the elements of shadow justice and what are the procedures and means of supporting the efficiency of its functioning?

In the specialized literature (including criminological literature) of recent time we can find attempts to formulate the definition of shadow justice. One such attempt was undertaken by the Russian Criminological Encyclopaedia. Shadow justice is defined there as a system of the settlement of legal disputes hidden from social control, a system of restoring the rights breached by wrongful acts and the lawful interests of various legal entities and the redress of harm. This system is not based on the standards of law and even contradicts such standards directly.¹⁵

It is essential to note that a wide range of persons apply to the services of shadow justice, including those generally thought of as law-abiding citizens. This fact makes it possible for us to speak about the presence of shadow justice in society at large and not simply about the resolution of conflicts in an isolated social group that ignores official legal institutions. In any isolated community there inevitably forms a certain system of internal conflict resolution, but this can hardly be called shadow justice.

At the same time the above definition does not designate such an important feature of shadow justice as the execution of decisions by threat of criminal compulsion. Moreover, the scope of the concept is unreasonably narrowed in the definition by referring to shadow justice that resolves only legal disputes, and only lawful interests are protected. Meanwhile, the subjects whose rights are doubtful and whose interests are beyond the reach of the law often apply in real life to the shadow justice system of conflict resolution.¹⁶

In the conditions of Russia today it is usually property (partially economic¹⁷) disputes which are settled within the framework of shadow justice. Offences of a non-property character and non-property responsibility are not subjected to consideration and condemnation (at least so far).

In the Russian Criminological Encyclopaedia definition there is no such essential feature (which is probably inherent in all quasi-judicial formations) as a normative regulator of activity. The decisions adopted by subjects of shadow justice are based on the customs occurring in those layers of society to which the participants in the conflict belong (including the customs of business and of daily life), and also on the norms of criminal subculture, with the latter prevailing.

And so, shadow justice in Russia today can be defined as a system of resolving property and other disputes hidden from social control, of protecting the rights and interests of natural and juridical persons, based on the customs and norms of criminal subcultures and secured by a threat of criminal compulsion.

Shadow justice in Russia in the 1990s represented to a great extent the activity of the organized criminal formations¹⁸ and their leaders, which consisted of resolving disputes by reconciling the conflicting parties through a kind of criminal arbitration and compelling both parties to implement the decision made, assisting in the execution of their obligations, or in suppressing the activity of one of the parties.¹⁹

The forms of the manifestation of shadow justice in the proposed meaning predetermine three kinds of legal entities acting in a given sphere: criminal leaders and “authorities,” groups of a mercenary and violent nature, and groups of an economic orientation (fig. 1). As a result of their interaction we observe the following picture.

Figure 1. The basic legal entities of shadow justice

A. The “beating out” of debts – partly substitutes for the activity of the notaries who recognize the validity of property claims, and the services of bailiffs in the execution of judicial and other obligatory dcisions.

B. The restraint or suppression (neutralization) of persistent and other undesirable creditors – resolved using similar methods as mentioned above (threats, violence, and bribery).

C. Criminal arbitration – consists of rendering arbitration services to the conflicting parties and may be manifested on different levels.

At the lowest level, a dispute between businessmen or other legal entities laying claims to disputed property is settled by means of negotiations between their “roofs.” At the highest level, the dispute is considered by an arbitrator of the criminal world, a role usually played by a thief in law or some other person enjoying considerable authority in the criminal milieu (“polozhenets,” “smotryashchiy”²⁰). In complex cases, several criminal “authorities” may be required to resolve the conflict.²¹

For many decades the thief in law has been a prominent figure in the Russian criminal world.²² The thief in law essentially is an ideologically committed criminal who represents a great public danger, authoritative and privileged in his milieu, who has received the title “thief in law” as a result of a special initiation procedure (“christening” or “crowning”), one of the conditions of which is a recommendation by several thieves.²³

Criminal arbitration includes the elements characteristic of arbitration tribunals. However, as decisions by official courts, the decisions of criminal arbitrators (thieves in law and other “authorities”) are supported in necessary cases by compulsion, and, of course, the participants in a dispute realize the threat of such compulsion.

D. Mediation of criminal leaders, “authorities,” and also criminal groups in the resolution of property disputes between juridical and/or natural persons – in this case criminal leaders and “authorities” no longer act as arbitrators where they determine who is right and to what degree and in what way the conflict can be resolved. They have a different role to play here; they mediate between the conflicting parties, trying to bring their positions closer in order to find an acceptable solution. They often openly lobby the interests of one of the parties. Thieves in law, “polozhentsy,” and “smotryashchiye” usually play the role of intermediaries in property conflicts when the conflicting parties are strong and independent enough to act as arbitrators. The desirable result of such mediation is the reconciliation of the conflicting parties and the conclusion of a compromise agreement between them.

The mediation of criminal groups consists of organizing the mutual debt offsets between creditors and debtors, other arrangements and transactions directed at the settlement of property disputes. In other words, the groups of economic orientation act as intermediaries. During the crisis of non-payments, various forms of mutual debt offsets have been widespread in the Russian economy. This has made it possible for economic units to solve their financial problems without attracting monetary resources. In this case, as a rule, it is a question of adjusting relations only between legal persons, usually large enterprises, by means of forming a chain of mutual debt offsets with the use of bills and/or barter. According to the data which have been collected by the Main Department for the Struggle Against Organized Crime of the Ministry of Internal Affairs of Russia, since about 1994, more and more often the highly organized criminal groups of an economic orientation have been the initiators and organizers of such offsets, skilfully combining the possibilities of the legal and shadow economy.

Thus, shadow justice supplements, substitutes for, or opposes official justice. The structure of shadow justice in its criminal performance is schematically shown in fig. 2.

Figure 2. The structure of shadow justice

In generalizing the role of shadow phenomena (the important among which is shadow justice) in the life of the country at the end of the 20th century, some Russian scholars, without the slightest justification, asserted that the critical condition of the Russian society and the State was caused by the pouring of authority, finance and material resources, and also personnel potential from the legal sector into the illegal or semi-legal one with an obvious criminal shade. The pressure of the State machinery suddenly weakened. However, it was repeatedly compensated for by the oppression of the organized and unorganized criminals acting together with the corrupt part of officials and law-enforcement structures. As a result the law-abiding citizens were subjected to the unprecedented expansion of the criminal world. The rule of force and the fist triumphed; the norms of law were shamelessly trampled underfoot.

In conclusion, it is necessary to say that shadow justice in Russia is not limited to the forms described. By the beginning of the 21st century, the center of gravity in shadow justice shifted from the outspokenly criminal figures (whose importance is being reduced) to such subjects of law as “red roofs,” corrupt judges, heads of executive bodies, on which the official courts depend to a certain extent. The varieties of shadow justice described above are becoming more and more closely intertwined with one another.

Notes

1 On June 29, 2005, Sergey Stepashin, Chairman of the Audit Chamber of Russia, declared in the State Duma (the lower chamber of the parliament of Russia) that the privatization of state property had passed according to the most unprofitable scenario for the country, as the inspections by the Audit Chamber showed.

2 Boris Yeltsin, president of the Russian Federation. The Speech at the All-Russia Congress on Legal Reform on March 6, 1996, Moskva: Yuridicheskaya Literatura, 1996, p. 8.

3 See: Yuridicheskaya Konfliktologiya. Ed. by V.N. Kudryavtsev. Moskva, 1995, p. 6.

4 Sotsialnye Konflikty: Ekspertiza, Prognozirovanie, Tekhnologiya Razresheniya. Issue 1, Moskva, 1991. p. 44.

5 The expression “to settle a property dispute” will be used here and elsewhere in its factual meaning, which implies not only the process of decision-making by a certain subject on the disputed questions, but also the realization of a decision.

6 For more detail, see P.A. Skoblikov, Vzyskaniye Dolgov i Kriminal. Moskva: Yurist, 1999.

7 The “roof” is a group of persons (as a rule, an organized criminal group) or an influential person (less often) who for certain remuneration give their support to a commercial structure or separate persons who have essential commercial or other incomes. The definition and the typology of “roofs” can be found in P.A. Skoblikov Imushestvennye Spory i Kriminal v Sovremennoi Rossii. Moskva: Delo, 2001. pp. 131-143.

8 “Obshchak” is a mutual assistance fund collected by professional criminals and controlled by thieves in law.

9 According to my research, the property disputes in which organized criminal groups and their leaders took part as a third party occurred mainly in the sphere of civil-law relations of private persons and in the sphere of shadow business (not executed properly), and more rarely in the sphere of legal business, and especially rare in the sphere of criminal activity.

10 For example, at the end of June 2005, a Moscow lawyer defended his master’s degree on the topic “The Management of Subsidiary Organizations in Corporate Structures” on the example of one of the largest Russian corporations. The applicant (who works in that company) asserts that corporations depend not only on market conditions, on shareholders, investors, etc., but also “on the criminal structures which quite successfully adapt to new economic conditions.”

11 See, for instance, the article by I. Medvedeva and T. Shishova, “Shadow Culture”, Nezavisimaya Gazeta, July 2, 1997; S. Glinka, “Special Features of the Shadow Economy in Russia”, Nezavisimaya Gazeta, March 18, 1998; T. Mikhailenko, “The Shadow State,” Nezavisimaya Gazeta, July 24, 1997.

12 On November 10, 1998, the “RosBusinessConsulting” Agency in Moscow circulated the report, “In the opinion of the Chairman of the Karelian Arbitration Court, a parallel, shadow justice is being formed in Russia.”

13 Organizovannaya Prestupnost,` Ed. by A.I. Dolgova. Moskva: The Criminological Association, 1998, p. 143.

14 See, for instance: Yuridicheskiy Slovar`. Ed. by P.I. Kudryavtsev. Moskva, 1956, Vol. 2, p. 636; L.V. Tikhomirova, M.Yu. Tikhomirov Yuridicheskaya Entsiklopedya, ed. by M.Yu. Tikhomirov. – Moskva, 1998, p. 504.

15 See: Rossiyskaya Kriminologicheskaya Entsiklopedya. Ed. by A.I. Dolgova. Moskva: Norma Publishers, 2000, p. 724.

16 The answer to the question asked by the author, in which spheres property disputes took place, in which organized criminal groupings participated and their leaders as a third party, 63.9% of all experts polled answered that such disputes occurred in the sphere of shadow business (not duly registered), 26.4% of the polled experts answered in the sphere of criminal activity, while 60.9% of the experts responded in the sphere of legal business.

17 By way of example: the disputes of competitors on the delimitation of the spheres of influence (to whom of them, on which territory and at what price, in which volumes goods are marketed and services rendered, etc.).

18 The current criminal legislation provides for such forms of organized complicity in crimes as an organized group, a criminal community and a criminal organization (Article 35 of Criminal Code of the Russian Federation). Russian criminalists (both practitioners and theorists) use the terms “organized criminal grouping” and “organized criminal formation,” bearing in mind the collective concept that includes all the said forms of complicity. The members of such groupings call them “brigades,” less often - “squads” and “families”, if a “thieves” grouping is meant, etc.

19 Sometimes it is accomplished by the physical liquidation of one of the conflicting parties, as a result of which a conflict is solved.

20 “Polozhenets” and “smotryashchiy” are the criminal “authorities” who discharge the functions of thieves in law after the appointment by them or with their knowledge.

21 During the poll of staffers of the units for the struggle against the organized crime (about 200 persons from all the main economic regions of Russia), 91.2% of those polled indicated that they know the facts of criminal arbitration at the highest level when the dispute is settled by criminal “authorities” playing the role of arbitrators.

22 It is significant to note in this connection that some Russian modern researchers offer the classification of dangerous criminals by using the degree of the latter’s adherence to thieves’ ideology. See: N.A. Kolomytsev, Borba s Osobo Opasnym Recidivom Prestupleniy: Teoriya i Praktika. The author’s abstract of his doctoral dissertation, the Scientific Research Institute of the General Procurator’s Office of the Russian Federation. 2000, pp. 22-23.

23 For more details about thieves in law, see: P.A. Skoblikov Imushestvennye spory i kriminal v sovremennoi Rossii. Moskva: Delo, 2001. pp. 106-130.