The Role of Civil Society Institutions in the Formation and Implementation of Criminal-Law Policy

Abstract

The article clarifies the limits and forms of the subjectivity of civil society institutions in the formation and implementation of criminal-law policy. It is shown that the prevailing state-centric model, which treats these institutions as participants rather than subjects of policy, fails to explain existing practices in which representatives of the public influence the selection of judges, take part in resolving personnel matters of the police, and trigger personnel consequences through investigations. It is substantiated that the subjectivity of civil society institutions should be measured not by the intensity of their involvement, but by the share of the authoritative decision transferred to them; on this criterion three modes of participation are distinguished - influence, co-participation in the decision, and substitution for the state. It is established that policy formation is dominated by the mode of influence: decisions of public councils are advisory and binding only as a matter of consideration, while public consultations are mandatory procedurally but not in their outcome. By contrast, in policy implementation the participation of the public in police commissions and, above all, the activity of the Public Council of International Experts in the selection of judges of the High Anti-Corruption Court, endowed with a decisive vote, amount to co-participation in the decision; a comparison of this council with the Public Integrity Council demonstrates that the effectiveness of participation is determined by the scope of the transferred authoritative power. It is argued that the anti-corruption segment of policy is the zone of maximal subjectivity of the public, whereas the substitution of the state by civil society (“hybridisation”) is not the apex of such subjectivity but its pathological form, which weakens both the state and its "watchdogs".