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DOI: 10.1177/0964663913482931

published online 1 May 2013Social & Legal StudiesMarina Kurkchiyan

Justice Through Bureaucracy: The Ukrainian Model

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Article

Justice ThroughBureaucracy: TheUkrainian Model

Marina Kurkchiyan

University of Oxford, UK

Abstract

This paper examines legal proceedings in the court of first instance for civil cases inUkraine. Using ethnographic methodology, it demonstrates that a large part of a court

judgement is predetermined by the institutional infrastructure and by practices estab-lished more widely in Ukrainian society. By observing case hearings and interviewinglitigants and judges, the paper reveals that an unbridgeable gap separates a legal case, as

constructed through documentary files, from the reality of life. This affects the verymeaning of evidence and the way that judicial decisions are made. The paper alsoillustrates the benefits of viewing a lower-level civil courtroom as a microcosm of asociety, demonstrating that it provides rich insights into different layers of that society.

Keywords

Administration of justice, bureaucracy, civil procedure, courtroom ethnography,documents, evidence, institutional interdependence, judicial decision-making, Ukraine

Introduction

The complexity of the process of judicial decision-making has been well appreciated by

sociolegal scholars. As understanding has deepened, scholars have identified an intricate

set of interactions involving multiple actors inside the courtroom (Searcy et al., 2009)

and outside it (Clark, 2010), together with artefacts (Langer et al., 2008), symbols and

rituals (Chase, 2005) and more subtle processes like the effect of the physical setting

within which a trial is taking place (Mulcahy, 2011). Together these have generated a

Corresponding author:

Marina Kurkchiyan, Centre for Socio-Legal Studies, University of Oxford, Manor Road, Oxford OX1 3UQ, UK.

Email: [email protected]

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bulky literature describing what happens in the court room, why it happens as it does and

how the mixing of all sorts of non-legal noises (Moorhead and Cowan, 2007: 318) with

the legal ones determines what a judge decides.

This paper examines such questions via a study of the court of first instance for civilcases in Ukraine. It demonstrates that a large part of a court judgement is predetermined

by the institutional infrastructure and by practices established more widely in Ukrainian

society. The picture that emerges from the data resonates with the one suggested by

scholars working in the actornetwork paradigm (Walsham, 1997). Legal proceedings

come into view as a process of interaction through which legal cases are constructed by

compiling a file of documents that are generated elsewhere in the society and brought to

the courtroom. When a document is added to the official file, it attains the status of evi-

dence and becomes formative for judicial decision-making (Latour, 2010). However,

the findings presented here show that legal cases are the products not only of information

channelled into the case file through the network of interactions but also of several other

social processes. Some of the information will have been invented solely for the sake of

the file; other potentially relevant information should be there but is missing because of

malfunctioning somewhere in the network; or it is there in the sense that the judge is

aware of it but is prevented from taking it into official account because it has not materi-

alized in the form of a document. Together these factors transform the meanings of doc-

ument and evidence as descriptions of the contents of a file. In addition, they alter a

judges approach to his or her job and affect the way in which litigants experience law.

The research presented in this paper is drawn from the legal system in a non-Western

society. That is advantageous because the general shortage of research in non-Westerncountries narrows down our understanding of the social space of law. We tend to see only

what is visible in one social order, instead of the global range of social orders. Ethno-

graphic studies from societies with greater differences would not only provide a richer

account of what law means and how it works in any particular context. They would also

highlight variables that are clearly expressed in one context while remaining latent and

therefore undetected in others.

In addition to providing an analysis of the legal proceedings, this paper is intended to

make a methodological point for the attention of researchers working in the areas of

sociology other than law. If law is bringing together information flowing through thenetwork that links together the whole society, it follows that the study of the law in a

court (where all that information is assembled) must yield insights into the society at

large. This is particularly true in relation to civil cases that bring stories of everyday life

into the courtroom. Each case forms a window through which a sociologist (e.g. one

interested in development, institutions or social economics) can peer into a particular

issue that may be invisible when other methods of social research are used.

Legal historians have of course long appreciated this point, and there is a

well-established tradition of using court records to draw inferences about life in society

at various times in history (Burbank, 2004; Dieter, 1994; Perry, 2006). But there seems tobe no broad equivalent for the study of contemporary society.

Legal anthropologists have also ventured to use the legal domain as a way of exam-

ining the wider social context (Greenhouse et al., 1994; Merry, 1990; Ewick and Silbey,

1998). However, the main effort of this group of scholars has still been directed towards

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law: the examination of the role of law in society, how people perceive it and what they

think it means. They have pored over the social context in order to spot the law in it and

then interpreted what they see. Ewick and Silbey have even claimed to be able to identify

law everywhere.This paper makes an attempt to shift the focus. It suggests that by choosing a court-

house as a place of observation and by stitching together the information that flows into

the courtroom, sociologists can gain access to a rich stock of sociological data, both on

how people manage to negotiate the institutional infrastructure and on their values,

principles and routine practices. In addition, civil court cases frequently offer glimpses

of various aspects of microeconomics and economic development.

The approach adopted in this paper fits the metaphor of a filmed life story running

backwards, an image suggested by David Engel and Eric Steele. It begins at the last

stage, a judicial process, and tracks backward to the origin of the story as a primary

event. The farther back we went the more we would find the screen crowded by appar-

ently similar matters, only one of which, the subject of our film, was destined to become a

lawsuit. It would be difficult and perhaps impossible to differentiate the nascent civil

case from the scores of similar disputes, relationships, situations, or events that

appeared on the screen. (Engel and Steele, 1976: 300301). We know that the vast

majority of everyday disputes never reach the court, as Hazel Genn (2008) convincingly

demonstrates in her survey of the paths of development of disputes that emerge in

everyday life . However, an examination of the ones that do reach the court takes us deep

inside the social fabric.

In this respect, Ukraine attracts particular interest. It is a transitional country withacute social problems and uneven public services. Together these features make for a

vivid illustration of the way in which a court depends on its social context and to test the

methodological argument. A considerable effort has been made to reform many of its

institutions, including the legal ones, in the hope of making the country recognizably

European (Aslund, 2009; Kubicek, 2005). There have been many assessments of the

impact of these reforms (Solomon, 2010), but even so the manner in which the society

actually works today remains an open question.

In the Methodology section, the method used to collect the data will be described.

This will be followed by an account of what the public services look like from the court-house and how they affect decision making by the judges. It will then elaborate on what

the cases can tell us about the current state of the economy. And finally, the courthouse

itself is placed under scrutiny as a public institution.

Accounts of three exemplary cases are provided in an attachment to the paper. They

are intended to illustrate the arguments developed in the paper, while also conveying the

flavour of the much larger number of cases that came under my gaze.

Methodology

This paper is based on an ethnographic study of civil cases heard in a court of first instance in

Kiev, the capital city of Ukraine, in the month of August 2010. I went to the court each day to

observe the cases that were scheduled for that day. After observing a case, I conducted

follow-up interviews with the judge and with the litigants. While talking to the judge, I set

Kurkchiyan 3


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out to discover their interpretation of the issue, their experience with similar cases, their

impression of the litigants, their view of why the case had reached the stage of litigation

and their explanation of why that particular decision has been taken. In addition, I steered

the interviews towards more general reflections upon their profession, on legal reforms,and on what they believed their work to be about in terms of law and justice. While talking

to the litigants, I was interested in their account of why and how their dispute had reached

the court, their experience while preparing the case and in the courtroom, their image of

the judge, what they thought of the procedure, whether they were satisfied with the outcome

and their view as to whether or not justice had been done in their particular case.

In practice, the data collection was less orderly than it might sound. As is always the

case when using the ethnographic method, there was a need to adjust to the local routine.

For example, I had to move from one courtroom to another when a case started normally

but was then adjourned, or when it became clear that a case was becoming legally too com-

plicated. Every day there was a need to discuss with various judges about all the cases that

were scheduled for the day and to ask them whether the litigants in a given case were likely

to turn up (which could not be assumed) or about a scheduled case that had been unexpect-

edly cancelled and could now not be observed. I spent many hours in the corridors waiting

for a particular case to start, and I used that time not only to talk to the litigants in that case

but also to others waiting for their cases with a different judge. As a result, the conclusions

in the paper have been inferred from a variety of cases: those in which it was possible both

to observe and then to interview the judge and the litigants; those that were observed even

if the judge and/or the litigants were not available for an interview; those that I was unable

to observe but which were described to me in part or in full by the litigants; and finally,those cases that judges discussed with me during their lunch and coffee breaks.

Despite the messy routine of the courthouse, there was a necessity to have a strategy

for the selection of cases. The Ukrainian legal system takes its civil cases as they come; it

does not group them by monetary value or according to the issue in dispute. Big or small,

the procedure is the same and the approach is the same.

The largest share of the District Court caseload was concerned with bad debts, uncon-

tested divorces, unpaid utility bills and so forth. Procedurally, these were all handled by

paperwork rather than hearings. It was obvious that these cases were not suitable for

observation. Instead, I discussed the issues and specifics of particular cases with thejudges and with the court administrators.

The second largest group of cases consisted of disputed contracts, claims for damages

and non-contractual disputes such as conflicts between neighbours. The conclusions of

this paper are based mainly on the evidences drawn from this group.

A small number of cases dealt with bigger issues. These tended either to involve many

people and require several lengthy hearings or they were legally complicated to such an

extent that the technical argumentation overshadowed the social stories behind the

dispute that had brought the matter to court. Typical examples were messy divorces, the

inheritance of sizable estates, disputes about intellectual property and major incidents ofdefamation. Cases in this set were not included in the research, for several reasons: there

were not many of them; the hearings consisted mainly of convoluted legal arguments,

and in most instances the whole case lasted for years so that it was not feasible to follow

them. Family cases were also excluded.



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One could argue that any generalization about a society based on observation in a

courthouse is likely to mislead because it will lead to disproportionately negative infer-

ences. After all, smooth-running relationships are not taken to court. However, that argu-

ment is less relevant to minor civil disputes than to criminal incidents, which for mostpeople are not part of daily life and therefore constitute breaks in routine. This research

deals with the opposite scenario: disputes that emerge from the routines of social life.

Even though very few of them do reach the court, the narrative of the case and how they

actually get there is revealing. Second, to ensure that the cases we observed were not in

any way exceptional, I consulted all our interviewees. I asked how common each partic-

ular case was and elicited detailed assessments from those involved of the way in which

the specific issue, its context and the parties caught up in it fitted into the broader social

context. Third, the focus of analysis was not on the legal issue in dispute and how it was

determined by the court, but rather on the chain of events and perceptions that led up to

the lawsuit, how it was treated in court, and the parties reflections on it.

Public Institutions Through the Lens of Court Cases

The inefficiency of Ukrainian government departments has been well documented (Tiffin,

2006). Allina-Pisano (2007) compares Ukraines institutional bureaucracy to a Potemkin

village. However, traditionally the attention of researchers has been directed to each insti-

tution separately: the state welfare agency, the trading standards organization charged with

certifying quality in various industries and so forth. Here there is a new focus on the cumu-lative effect of the public services on citizen access to justice. It was apparent throughout the

research that the outcome of the majority of the cases depended not so much on the decision-

making power of the judge, but more on the ability of the litigants to deal successfully with

public services otherthan the institution of justice, such as healthorganizations, welfarestate

departments, mail delivery services, building inspectorates and so forth.

Almost every case observed could have been used to support this conclusion. For

example, in the case of Mr Bondarchuk vs. a building company (see Appendix 1, Case

1) Mr Bondarchuk was claiming compensation for the delayed completion of a new

building, whereas the company was insisting that the building had been completed on

time. After the hearing, the judge explained to me that whenever the court has to deal

with property developers, it is never possible to know for sure what is really going on.

To obtain a completion certificate, a building firm needed to collect separate signatures

from 15 different state or state-certified organizations and oiling was commonly

expected in return for each signature. He pointed out that:

A building can be ready for occupancy and sometimes people may even have moved in and

be living comfortably in it, but the completion papers are still in a mess or nonexistent.

Many buildings do not reach the stage of full state certification for a long time after they

come into use, if they ever do. (21 August 2010)

As the judge phrased it, in the building industry, there is no such thing as perfect

completion and that has unfortunate consequences. The legal requirement provides

an opportunity for officials to extort bribes from the developers. Knowing that the

Kurkchiyan 5


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certification process is likely to be costly, developers sometimes allow it to drag on for

years. That delay makes it possible for some people to make use of the lag between the

real facts and the official process. They need only to claim that if the paperwork is incom-

plete then their flat is not ready for occupancy. The judge was entirely aware of the highprobability of that scenario. But as he admitted, he had to rely on documented facts,

which in this case was a certificate of completion. The judge concluded his reflections

on the case by making a joke that was revealing for the mode of operation of the public

offices that carry responsibility for quality and safety in the building industry:

In practice, if the director of the building company tries hard enough [meaning that if he

bribes the inspectors] he can produce a certificate dated back before the construction started.

But doing that would cost him much more than the sum Mr Bondarchuk is claiming. (21

August 2010)

Two issues come out clearly from the stories that were told in the court: an inefficient

bureaucracy and the corruptibility of civil servants. Although the two are closely inter-

twined and each permits the existence of the other, they have different effects on what

goes into the files of legal cases and therefore have different effects on the outcomes.

The first problem, the unresponsiveness of the staff in the public offices, makes it dif-

ficult for ordinary people to get things done even on a small scale. For example, in the

case of Mr Kruchko (see Appendix 1, Case 3), he was attempting to secure the removal

of an unauthorized corridor door. The door was not only installed without permission but

also in violation of basic safety requirements. The authorities were told about it imme-diately, but it nevertheless took Mr Kruchko almost a whole year of systematic letter

writing to several different offices even to get an order an official statement of the

principle that the door should be removed. Most of the letters he wrote to achieve this

had to be delivered in person, because the post office was known to be unreliable and

in addition it was widely assumed that staff in government offices could choose to ignore

letters from the public.

To learn about who was authorized to deal with the problem, Mr Kruchko had to start

knocking on every door until he arrived at the court. In the course of doing this, he man-

aged to put together a file of written confirmations that the door was illegal. But even thepossession of a file that proved his claim was not sufficient for the court to go ahead and

issue an order; the hearing had to be repeatedly deferred because the defendant was

absent, having simply ignored the court summons. It was only by following a friends

advice on how to overcome the obstacle that he succeeded in getting a court order. But

as Mr Kruchko pointed out in our interview, even after that success it would not be easy

to enforce the order. He himself was confident, however, that by determination and

persistence he would eventually get it done.

This story was far from being an exception. The same pattern of bureaucratization of

public services was repeated again and again. A litigant whose flat was flooded by aneighbour was unable to arrange for a formal assessment of the damage because the

relevant housing office said that it was too busy to send someone. She could not trace

the plumber who had attended the flood and who had proved to be the only reliable wit-

ness in a similar case, because her initial call to an emergency agency had not been



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recorded properly. A pensioner who was seeking compensation was unable to get it when

the hearings were repeatedly deferred because the case required a formal statement from

the pension office, which had to be sent directly to the court; she had been instructed that

the document could not be handed to her in person. Her only course of action was tocome to court again and again only to learn that the statement had not arrived. In the

same vein, a number of other cases about a variety of issues had to be deferred solely

because representatives of public bodies who had been summoned by the court as a

witness or as a third party had failed to turn up.

The unreliability of the Ukrainian postal service had profound implications for the

operation of the courts. In each case, there was always a question about whether sum-

monses, formal requests and inquiries had been delivered to their addressees, or not;

about whether the non-appearance or non-response should be attributed to negligence

among public officials or to the fact that their reply had got lost on its way. As a result

the court was reluctant to take radical steps against any litigant or government depart-

ment for ignoring a court request, and instead deferred case after case, while new letters

were sent out. In assessing new regulations for the operation of the court, introduced by

the parliament at the time of our project, one of the judges commented:

They have significantly reduced the time allowed in future for completion of the cases;

otherwise we will be penalised. For a politician it is good to say that, but in practice it is the

ordinary citizens who will suffer. Now we will have to rush to close cases and disregard the fact

that even an official summons might have not have been delivered. That is without even men-

tioning our need to deal with numerous requests for official documents. If we have to proceed

without them we will be blamed for not considering the cases seriously. (10 August 2010)

These examples should not leave an impression that no public service is available in

Ukraine. Mr Kruchkos achievement demonstrates that it is possible to make them work

for you. The problem is that doing so requires amounts of determination and time that

few people are prepared to invest. The heavy bureaucracy makes the option of taking

short cuts by oiling the machinery seem irresistible. That creates the second problem:

the widespread practice of offering and taking bribes in public offices, not necessarily in

order to do anything illegal, but simply to get things done.Obstacles created by the bureaucracy in public offices other than the legal institutions

had direct implications for the outcome of the cases. One has to bear in mind that Ukrai-

nian civil procedure is based on the Russian version of the continental European tradition

of heavy reliance on written documents (Maleshin, 2007: 543). The situation creates

numerous impasses for litigants who find themselves trapped without any appropriate

pieces of paper to support their cases.

The judges were fully aware of the problem. They admitted repeatedly that to deal

with the bureaucracy, it always takes a great deal of time, and even if a certificate finally

appears, it may turn out to be useless in court because it is the wrong type of document.The claim for compensation for damages caused by a flood from the flat above provided

a clear example. After going through the laborious chore, the litigant had secured two

documents. One of them proved that the flood had actually taken place and the other was

a formal estimate of the cost of renovation, prepared by the builders who had been called

Kurkchiyan 7


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in. In court, the judge examined the documents and announced that she did not find them

useful. As she explained in the interview afterwards:

Nobody has disputed the fact that the flood happened so there was no need for proof of that.I do not need to see inflated estimates from builders either. I can do nothing without an

official assessment of the nature, extent and value of the flood damage to the property. I

understand the difficulties in arranging for that assessment, but I still have to deal with the

evidence that people produce. As a judge, I should have already dismissed the claim in this

case because the claimant has failed to produce support for the sum specified in the claim.

But as a human being I feel sorry for that woman. That is why I keep deferring the case and

pushing the two neighbours to agree between themselves. (25 August 2010)

It seems that however seriously a Ukrainian judge aspires to resolve civil disputes in a

just fashion, an obstacle often stands in the way: the impenetrability of the many bureau-

cracies exist in other public services. As a result a well-supported case becomes the

exception rather than the rule.

The second issue facing the courts in their efforts to solve cases judiciously is the

prevalence of networking and corruption. Whereas bureaucratic inefficiency tends to result

in missing or inappropriate documents, corruption tends to result in deliberately falsified

ones. Although the methodology employed in the research was not attuned to supplying

evidence of that, it was clear that fake documents (spravka) were expected to appear in

court. Many cases were deferred because one of the parties fails to turn up, so I asked the

judges why they are so lenient in this regard. As one of the judges put it:

We know very well that if we make a decision in the absence of a litigant, they always then

bring to the court a stamped paper showing that they were ill on the date set for the hearing,

or that they were taking a holiday that had been booked long beforehand and could not be

rebooked, or that they were required to deal with a sudden crisis in the family or the work-

place. Then we have to restart the case from the beginning. That is because not doing so

would provide the party who had missed the hearing with a strong argument on which to

base an appeal. (16 August 2010)

To conclude on the role of public services in shaping legal cases, it was evident that the

performance of the social infrastructure imposes severe constraints on the decision-

making in the court. To piece together a case, the judge must rely on documents that have

been obtained elsewhere. The centrality of paperwork in the administration of justice is not

confined to Ukraine. As Dery has noted, file management is a symbol of the modern bureau-

cracy (Dery, 1998), and the disparity between the presentation of a case and the actual stream

of events has been discussed in the context of western jurisprudence (Heimer, 2006).

However, the potent capacity of documents to translate information between the

networks of agents involved (Latour, 2010) is context sensitive. In the western context,a lie is usually . . . not in the file, but in what is not there as an English coroner com-

mented to me while explaining his way of dealing with documents. He then continued if

I am suspicious of what I have in front of me I summon relevant people and request

answers to my questions. In the circumstances of Ukraine, everyone assumes that what



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is not in the file is most likely not to be a lie; in many cases, it will merely be a con-

sequence of the difficulty of securing any document from relevant services. However, it

is also entirely possible that it is a lie because the very unreliability of the public services

provides a convenient cover-up for wrongdoing. And what is in the file itself could alsobe a lie, because of the widespread corruption. The result is that the court file that rep-

resents a case becomes a mixed collection of documents. Some may be relevant to the

issue, some not; others are what Clark refers to as fantasy documents (Clark, 1999:

16) invented for the case, while yet others are what could be called phantom documents

because they have been repeatedly requested but have never arrived.

This situation creates an unbridgeable gap between the case constructed by the file

and the actualities of life. Faced with such a problem, the only option that judges typi-

cally see for themselves is to consciously disregard the reality of life and instead to work

exclusively with the file. That process is what people experience as law. It is inevitable

that it leads to disenchantment among ordinary citizens and that it encourages the growth

of a dismissive attitude towards legal institutions (Akimova and Schwodiauer, 2005).

Some Glimpses of the Emerging Market Economy Through the

Lens of Court Cases

In the following section, I will turn the focus of the discussion away from the performance of

the public offices in Ukraine to the activities of entrepreneurs as they appear in the civil courts

of general jurisdiction. Considering that the research was carried out in the court of generaljurisdiction and not in the commercial court, these findings reflect only what is happening in

a particular sector of Ukrainian business activity: the one in which ordinary consumers deal

with private providers. The paper does not claim that there are no orderly working businesses

in Ukraine (see Aslund, 2005). Understandably, such firms were not picked up by the radar of

our observation. However, evidence gathered in this project indicates not only that opportu-

nistic behaviour is widespread among the small- and medium-sized business firms that are

emerging in Ukraine but more importantly that their quasicriminal style is widely tolerated.

The judges tend to expect that when businesses are involved in a case, their stories tend to

have a murky background. However, for the reasons discussed earlier, they usually adopt

a strategy of minimalistic questioning even if criminality is suspected, and instead proceed

on the basis of whatever written evidence is provided by the parties.

The attitude of get what you can while the getting is good was repeated in many cases.

After one such case when an insurance company refused to reimburse a policy holder who

had been taken to hospital for emergency treatment in Germany, the judge commented:

This case is all about the reality of Ukraine today. Insurance companies have sprung up

everywhere, like mushrooms after rain. However, those companies seem to believe that they

are there only to collect money, forgetting that they are also there to pay out money if a

claim is justified. They do not really understand the nature of the job. Car insurance is thesame story; in fact it is typical for all the insurance companies here. (18 May 2010)

In the case of Mr Bondarchuk vs. a building company (Appendix, Case 1), the judge

stated that there was no point either in trying to guess what lay behind the story or in

Kurkchiyan 9


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being concerned about fairness. In his mind, it was certainly possible that the building

company had become trapped in the labyrinths of bureaucracy, but it was equally pos-

sible that the construction work was incomplete. The company might have stolen the

money invested in the development so that it no longer had the resources to finish thebuilding. A situation like that could drag on for years. This is what often happens in the

building industry in Ukraine concluded the judge.

It is safe to suggest that these cases were notrare exceptions within a general pattern

consisting mainly of well-run business firms. It was evident that judges and lay citizens

alike assumed that any private company that offered to provide services to the public was

quite likely to be fraudulent. It is important to bear in mind that the nature of most

companies operating at the private services end of the economy such as insurance, real

estate agency or property development are small. They are usually owned and run by

individuals or families with little experience, employing only a few people. As this

suggests, capitalism has not yet penetrated very deeply into the Ukrainian economy.

A number of cases revealed a culture of entrepreneurship that operates at the border-

line of criminality. The case of Mr Levko vs. Ms Astakhova well demonstrates the pat-

tern (see Appendix 1, Case 2). Mr Levko put forward a claim against the babushka (as

both the claimant and Ms Astakhovas own representatives referred to her in court) after

Ms Astakhova transferred the power of attorney from him to two new caretakers.

Formally, Mr Levkos role as caretaker had been legitimate; Ukrainian law does make

provision to register someone as a caretaker who acts on behalf of an elderly person.

A caretaker takes responsibility for the well-being of the elderly person and in return

is legally permitted to become that persons heir.However, once in the courtroom no one, not even the judge, made any secret to the fact

that the case had nothing to do with the babushka and her interests. Mr Levko, a former

policeman now running a private legal consultancy, saw the case as being about the legit-

imate benefits of initially renting out the flat of Ms Astakhova and later being able to sell it.

As he put it, his dishonest competitors (who turned out to be estate agents) had heard

about his deal with Ms Astakhova and simply bought out the babushka. While they were

waiting outside the judges office for the hearing to start, Mr Levko and the two represen-

tatives were conversing openly about the business, as they presented it.

In his comment on the case, the judge explained to me that:

The hunt for elderly peoples accommodation has become an unsavoury industry in Kiev.

Flats are expensive now and there is an open season on elderly people who own flats but

have no relatives. There are many of them around and we have numerous cases of this kind.

In most of them it is the babushkas themselves who are playing the ball. They make a care-

taker contract with one person, then after a period of time they ask to cancel the contract and

make another one with someone else making a profit in-between the two. I myself have

had to cancel four caretaker contracts at the request of just one babushka within a period of

only two years or so. (16 August 2010)

The judge was confident that the parties would not come back to court after the defer-

ment. They would negotiate a settlement instead. The judge gave two reasons why he

thought so. First, it was not in their interest to expose their dirty business. If the court



12/20

hearings continued, questions would be asked and answers would have to be given. In the

judges understanding neither of them wanted that. And second, both parties were inter-

ested in finishing the matter as soon as possible because time was against them; the

babushka was old and could pass away any day. If that happened while the case wasbefore the court, neither side would get the flat. That made him confident that his court-

room was merely a testing ground to enable the parties to check out each others hands

before a deal could be struck.

This case illustrates how closely the margin of acceptability can be pushed towards

criminality. The judges I spoke to had been listening to stories in case after case that led

them to be suspicious, at the very least. When they discussed with me what they under-

stood about the social background of the situations in which small private businesses

were involved, they referred to the lack of settled principles of conduct among business

managers and to the prevalence of grab-the-money-and-run attitudes. At the same time,

the semi-criminal activities were seen as almost legitimate in terms of formal legality.

People bring the suspect cases to court because they are confident that their actions will

not be questioned beyond the argument made in support of the claim. In informal

conversation with a researcher about the background to their cases, the parties were not

shy about acknowledging this.

The Court as a Public Space

The account of how the operation of the court is dependent on the public services should

not leave the impression that the court is a mere victim of what is happening around it. Amore appropriate interpretation is that the court system is an integral part of the social

infrastructure and because of that it operates in accordance with the same rules. It

performs the same task of dispute resolution as courts do in all countries, but there are

key differences in social identity and role performance from one country to another

(Chase, 2005). Each legal system tends to project different social messages and to create

different sets of mentalities among those who represent the institution as well as the

members of the public who use it. (Kurkchiyan, 2010).

In the Ukrainian social order, the court, as an institution, functions as one among

several parts of a state bureaucratic machine. Bureaucracy in the sense of formalized pro-cedure is of course a necessary feature of any institution, legal or non-legal, but I would

argue that in the Ukrainian case, it is not simply one characteristic of what people do.

Bureaucracy in this context is what they believe their job to be about, and it has become

the dominant image that they project as a corporate body. In Ukraine, the court system is

included in that perception, and bureaucracy is the social identity of a court. To illustrate

this interpretation, I will start with a description of the physical space of the courthouse.

As Graham convincingly demonstrated in her study of the changing design of the Eng-

lish courthouses through the trajectory of social history, the character of the space

reflects the identity of its inhabitants (Graham 2003: 323).The building in which the court was located in Kiev had no distinctive uniqueness as a

courthouse. If we agree with the assertion that the appearance of the courthouses can tell

us about the authority of law and about its role as an instrument to legitimize the power

of the ruling elite (Resnik and Curtis, 2011), then it is evident that Ukrainian leaders do

Kurkchiyan 11


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not see law as an important device for them to exercise control. The court building

looked just like all the other rundown buildings around it. It was arranged in the style

typical of the Soviet era for accommodating any local government. Litigants had to wan-

der along lengthy narrow corridors, unventilated and poorly lit, in order to track downtheir judge by reading the names on the office doors. Anyone could at any time open the

door of a judges office to ask questions or even engage in conversation.

Such an open access setup is the complete opposite of the segmented physical

environment of English courthouses (Mulcahy, 2011). Even so, its effect in Ukraine is

not one of democracy in adjudication (Resnik and Curtis, 2011: 289); far from it. What

it signifies to the people is bureaucracy instead of adjudication. The example of coun-

tries such as Ukraine does suggest that the idea of redesigning English courthouses

should be approached with some caution. Mulcahy advocates changes such as opening up

segregated areas, removing barriers and simplifying public access in order to convey a mod-

ern vision of transparent and accountable administration of justice (Mulcahy, 2007). But if

that process is taken too far, the whole experience of law could be reduced to a bureaucratic

routine of client processing, of which courts already have quite enough (Cowan and Hitch-

ings, 2007). In the extreme, an expectation of justice might well disappear.

After finding the right judges office in Kiev, the parties of the case had to wait to be

invited inside for the hearing. Occasionally, they were directed to a dedicated courtroom

instead. A typical judges office in which most of the cases were heard was a small room,

offering only enough space to accommodate two conventional desks with a computer on

each desk for the judge and his secretary plus a handful of chairs casually arranged to

face the desks. The offices had the appearance and feel of an ordinary workplace, withkitschy pictures, family photographs and stacks of papers here and there. The only indi-

cation that the procedures were in fact formal hearings was a microphone placed on the

judges desk to enable a recording to be made.

One might argue that the core problem in Ukraine was a lack of resources, a point that

was frequently made in academic literature (Baird, 2010). Scarcity of resources is

undoubtedly a factor. However, the social identity of the judiciary and their perception

of the functions that they perform have a greater impact. The judges are still free to make

use of the space available to them in a manner appropriate for the job as they see it. To

the observer, it seemed significant that although symbols such as gowns were formallyrequired they were habitually ignored, and that although a few purpose-designed court-

rooms did exist in the building, even when they were available the judges still preferred

to hear the cases in their offices.

The Ukrainian judges see themselves as officials with a duty to consider the com-

plaints of the public (see also Neill and Brooke, 2008). That can be deduced from the

observation of the way in which the work of the court was organized. There was no

special day or time that was reserved for a judge to be in a courtroom. Every working

day of a week consisted of cases to be dealt with. How to get through the caseload on

each day was more or less left to the discretion of the judge: when to start the day, whento go for lunch and for how long and when to come back leaving the crowd of litigants

waiting outside the office door. The tedium of waiting, for any period from half an hour

to several hours, was imposed on almost everyone who attended the court. On one occa-

sion that I observed, it was five hours. In the experience of the interviewees, such a delay



14/20

is normal in most public offices. This way of organizing the workload is not caused by

simple inefficiency. I would argue that it is deeply rooted in the social image of the insti-

tution of justice as being a part of the state bureaucracy.

The procedure in the courtroom could be described neither as formal, meaning that itfollowed strict rules, nor as informal, meaning relaxed and friendly. It was hierarchical.

The structure of power in the courtroom was not created through segmentation of the

available space in the manner observed by Mulcahy. Even with the reservation that

Mulcahy was scrutinizing criminal cases in which the purpose-designed setting would

inevitably tell a different story from that of a room intended for civil cases, the design

of a Ukrainian court room did not provide any structure at all. Instead the feeling was

of talking in a managers office. Procedural requirements were not completely ignored,

but they were not taken seriously either. The cases would routinely start with a few ele-

ments of a procedure, such as standing up when addressing the judge, but then usually

lapsed into unstructured exchanges.

A more careful look at how the judges interpret their role suggests that for them, the

core task is predominantly that of processing paperwork. They perceive the litigants and

their legal representatives as being there to submit documents rather than to argue their

case and discuss the circumstances of the affair. In the case of the illegal door, the deci-

sive factor was not the safety hazard or the self-evident violation of law; it was the liti-

gants file with its assembled documents that proved the illegality of the neighbours

action. The case of the babushka raised serious questions about the obscure dealings

around Ms Astokhovas flat, but the judge explained to me that his role was small. The

claim had been issued and so he started the procedure. It was not his job to get to thebottom of the story. Indeed, a significant number of cases were on the verge of dismissal,

either because an official document was unavailable as in the case of flood damage

caused by a neighbour or because a litigant had used inappropriate terminology in the

claim originally submitted, as happened in the case in which the claimant merely needed

access to a jointly owned flat but wrongly formulated his request as allocation of a

space.

And just as in any other public office in Ukraine, the court was not immune from pub-

lic suspicion of corruption. This was expressed by phrases such as they are always on

the side of those who pay more; they always look for a big share for themselves. Thelitigants that were interviewed felt deeply frustrated by the judges. Their feeling was

grounded on a perception of the judiciary as indistinguishable from other groups of civil

servants.

Conclusions

This scrutiny of civil cases in the Ukrainian court of first instance supports the view that

what happens in the court depends on how the rest of the society functions. The example

of Ukraine throws a spotlight on the horizontal institutional ties that shape the legal pro-cess of decision-making. In considering their cases, Ukrainian judges tend to rely heavily

on evidence that is produced, verified or backed up by relevant public services. They also

have to depend on the appearance of specific public servants in court as and when they

are required, despite the fact that the officials in question are unreliable. Even a trivial

Kurkchiyan 13


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factor such as the erratic nature of the postal service can affect how a judge manages and

delivers his or her caseload.

The Ukrainian experience suggests that the importance of the network of institutional

infrastructure in the legal process is probably stronger in countries within the continentaltradition, where reliance on written evidence is more considerable. The same inference

can be drawn for developing countries, where public services are significantly more

inefficient and corrupt, and for pre-transition countries in which the basic democratic

principle of accountability in public office has yet to be established. However, one

should not assume that the impact of the institutional infrastructure on the judicial pro-

cess is negligible right across the common law world. Observations in the English small

claim courts suggest that just like their overseas counterparts, English judges have to

depend on the availability of a written document to make a judgement, and they too can

face uncertainty caused by flaws in the social infrastructure (Kurkchiyan, 2011).

The Ukraine observation also has drawn attention to the set of socially constructed

concepts such as reliability and trustworthiness that are critical in the legal proceed-

ings. The meanings of such concepts are determined by whatever values and practices

dominate in the society in which the court has to function. Explaining why common law

tradition attaches great importance to oral testimony, the Honourable Judge P.L.G. Brer-

eton RFD stressed the importance of ensuring . . . that the court has the opportunity to

see and hear the witness and have regard to his or her demeanour in the witness box,

which can inform judgments about the credibility of the witness (Brereton, 2007). In

contrast, the Ukrainian cases demonstrate the judicial difficulties caused by the preva-

lence of cynicism and habitual distrust in everyday life. Those characteristics of socialrelationships tend to spill over from daily life into the courtroom. Inevitably, such a

demanding social environment inflicts frustration on the judges. To adapt to it, they

typically choose not to question the reliability of the evidence given by any of the liti-

gants or witnesses, but instead to allow cases to be determined solely by certified written

documents that are taken at face value even though they are not trusted. A similar pattern

in the work done by judges has been recorded in other countries such as China that also

struggle with a deficit of trust (Woo and Wang, 2005).

However, the court should not be seen only as a passive recipient of the social context.

It actively reproduces the principles and patterns of the social relationships that arealready established throughout the society, and thereby takes on a social role that fits the

rest of the society. In Ukraine, the characteristic self-image of a judge was that of a

bureaucrat responding to the grievances of the people. This image was projected through

the style in which cases were handled, through the customary preference for the kind of

room to hold the trials in, and through the mode of interaction established by the judge in

dealing with the litigants. The common perception of judges as bureaucrats has direct

implications for the way in which people experience and understand law. It constructs

an understanding of law as fully detached from the abstract ideal of justice. There is

instead a vicious circle of self-reproducing cynicism about the judicial system and therole of law in general.

The research also supports the methodological argument that an ethnographic study of

disputes in court provides a solid platform to stand upon in order to see how the society

works, or more accurately to see how parts of it do not work. The court process displays



16/20

in microcosm the main problems and challenges that a society can generate whenever

one of its institutions fails in its purpose or when it lacks institutions capable of addres-

sing everyday disputes in the kind of problem-solving manner that is described by func-

tional conflict theory (Coser, 1964; also Roberts and Palmer, 2005).Methodologically, the technique is equally useful for any society even though there

will necessarily be significant differences from one to another in what can be seen

through the window. For instance, an observation of the English Small Claim Court is

revealing about the manner in which council houses were being administered by local

governments and more generally about the social problems faced by the residents of such

properties. An observation of the court of first instance in Poland displays in stark detail a

set of issues that are typical of the transitional stage of an economy. They include, for

example, clashes about ownership, between emerging private firms and collective firms

still lingering from the past or clashes about conduct and practice caused by the contra-

dictions between the assumptions of the new free market and those inherited from the

surviving communist institutions (Kurkchiyan, 2011).

As for Ukraine, this methodological approach provided strong evidence for a major

inference about the state of the country. It is that Ukraine has not modernized in the way

in which its bureaucratic machinery actually functions. The market system is emerging,

but it remains rudimentary and murky, at least in the sector that includes the firms that

sell services to individual consumers. This observation closely corresponds with the

other studies of the Ukrainian business environment (Meyer and Peng, 2005; Vyno-

slavska et al., 2005: 296)

Appendix: Representative Cases

Case 1. Mr Bondarchuk, who is a buy-to-let landlord, had invested in a house while it was

under construction. A clause in his contract with the construction company stipulated that

if the flat had not been completed by a specified date, he would be paid compensation by

the company. Mr Bondarchuk filed a claim for compensation, arguing that he should

receive it because the flat had not been completed on time. The company insisted that the

job had been completed, citing as evidence the fact that tenants had already moved intoother flats in the structure. Therefore, they asserted, Mr Bondarchuk had no grounds for

the claim. However, at the date of the hearing, the Director of the company had not

submitted an official certificate of completion of the building to the court.

The judge deferred the case requesting the certificate of completion in good order (17

August 2010).

Case 2. Ms Astakhova, a woman in her late 80s, owned a flat in Kiev but some years ago

had moved back to her home village in the countryside near Kiev. She found that she was

unable to pay her bills and as a result had fallen into debt. She had no relatives whowould inherit her flat after her death. Two years before the case came to court, Mr Levko

had learned about her situation and offered to sort out all her administrative and financial

problems in exchange for the right to the flat upon her death. The sorting out was to

consist of paying all the accumulated debt for her Kiev accommodation including the

Kurkchiyan 15


17/20

utility bills and handling the paperwork in relation to her pension. To implement the deal,

Ms Astakhova gave Mr Levko a power of attorney to act on her behalf. Two years later,

other people convinced Ms Astakhova that she should break the deal with Mr Levko and

rewrite the power of attorney in their names. In doing so, Ms Astakhova formally trans-ferred rights to the flat to them. But during those 2 years, Mr Levko had invested around

$2000 towards renovation of the flat.

Mr Levko demanded that if his caretaker deal was going to be stopped, then the

money that he had spent on the flat should be given back to him. Ms Astakhovs new

carers were refusing to pay the sum and were asking the judge to consider a counter-

claim containing a long list of accusations that Mr Levko manipulated Ms Astakhov into

signing papers without reading them, that he had renovated the flat on his own initiative

and that the flat was now rented out, that he was not passing the full amount of the prom-

ised pension on to Ms Astakhov and so on. The judge refused to accept the counterclaim

because of lack of evidence. He deferred the case so as to give more time to the defence

to redraft the counterclaim, if they wished to do so (12 August 2010).

Case 3. Mr Kruchko, Mr Chudok and Mr Ckazin were neighbours who all lived on the

same floor of a multi-storey building. A year before the hearing, Mr Ckazin installed

a metal door halfway along a shared corridor, without consulting his neighbours and

without any kind of permission (probably with an intention to increase the size of his flat

by adding part of the common corridor to it at a future date). In doing so, he blocked his

neighbours access to the meters and master taps for the buildings electricity, water, gas

and telephone. As soon as Mr Kruchko saw the door construction underway hedemanded that it should be stopped. This was ignored, so Mr Kruchko immediately

called the Housing Office and invited a representative to come and see. After repeated

calls an official did come and told Mr Ckazin to stop the installation. This did not have

any effect, and the door was completed and locked.

Mr Kruchko and his next door neighbour Mr Chudokin, who was facing the same

problem, started to write letters both to the Housing Office and to the local authorities.

After a number of letters and inspections, they received a formal response confirming

that the installation of the door was illegal and that it must be removed. With this written

confirmation in hand, the two neighbours started to write letters to the police, at firstwithout response but eventually, after their requests had become persistent, the police

did visit the building and inspect the door. They warned Mr Ckazin that he did not have

permission to fit a door to a shared corridor and that it should be removed. But they also

told Mr Kruchko and Mr Chudokin that there was nothing more that they could do about

the situation without an order from the Prosecutor. Therefore, the next letter, delivered in

person, went to the Prosecutors Office. There Mr Kruchko and Mr Chudokin were told

that they had come to the wrong place and that the problem was not in their competence.

The only authority that could issue an order for removal of the installation was the court.

Therefore, they filed the case in the court as a civil dispute.This was the third hearing; two earlier ones had been deferred because Mr Ckazin did

not attend. Following advice from a friend, Mr Kruchko invited two of his acquaintances

to his home and waited for Mr Ckazin to come into the building. Then in the presence of

two witnesses, he confronted him in the corridor to inform him orally about the date of



18/20

the court hearing and to give him a request to attend. This fact was recorded, signed by

the two witnesses and presented to the court. This document allowed the judge not to

defer the case for a third time, but to go ahead and consider the case despite the absence

of Mr Ckazin. An order for the demolition of the door was issued.For the order to be implemented, Mr Ckazin must first be given a warning and a dead-

line. This warning had to be given to him in person by the representatives of three-state

agencies (the Police, the Housing Association and the Law Enforcement Agency) all of

whom must be present at the building at the same time. After the deadline had passed, the

demolition could go ahead but again only if all three organizations had representatives

on site to witness the process. All this had to be arranged by Mr Kruchko (19 August

2010).

Acknowledgements

I wish to thank the administration of the Ukraine court for granting permission to conduct this

research freely and for the help that allowed me to organize my work efficiently. I am also grateful

to all the judges and litigants who generously gave me their time, told me their stories and dis-

cussed their cases.

Authors Note

Data was collected as part of a broader project, Legal Culture in Transition: The Impact of European

Integration, sponsored by the Research Council of Norway, 20072012 (182628/v10). It is expected

that a full set of the data collected in five countries in the course of the project, including detailed

reports on some the cases observed, will be posted on the website of the sponsor by July 2014.

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