Reform of the judicial system. Large-scale judicial reform begins in Russia
Building an effective court structure general jurisdiction with the separation of instances following the example of the system of arbitration courts - a positive initiative, but this is only the first step
The plenum of the RF Armed Forces decided to submit to the State Duma a draft federal constitutional law “On amendments to federal constitutional laws in connection with the creation cassation courts general jurisdiction and appellate courts general jurisdiction."
According to explanatory note to the bill, “at present there is an objective need to create in Russian Federation structurally independent cassation courts of general jurisdiction (hereinafter referred to as COJ) and appellate courts of general jurisdiction, which is determined by the need for the functioning of separate judicial levels in order to form independent and independent judicial authorities to consider both appellate and cassation appeals and performances on court rulings, whose activities will not be carried out in the same subject of the Russian Federation, and especially in the same court that heard the case at first instance. Structural separation of the cassation and appeal sections of the SBJ into separate independent instances, not bound by the administrative-territorial division of the constituent entities of the Russian Federation, will improve the hierarchy of the judicial system of the Russian Federation and optimize the judicial workload, while the existence of separate cassation and appeal courts in the Russian Federation can be considered positive on the experience of their activities in the system of arbitration courts.”
The position of the Supreme Court of the Russian Federation can be stated briefly.
1. In order to ensure the independence and autonomy of the courts, there is currently a need to separate the appellate and cassation instances located in the same court.
2. To achieve the same goals, you should structure courts in such a way that their jurisdiction does not coincide with the administrative-territorial division of the constituent entities of the Russian Federation.
3. Positive experience the existence of such a hierarchy in the system of arbitration courts is relevant for the SOJ.
Separation efficiency proven
The scourge of the modern COJ system is the existence of appellate and cassation instances within the framework of one regional and equal court. In this state of affairs, the mechanism for appealing judicial acts is ineffective, especially to the court of cassation - the presidium of the relevant court.
To combat this disease, the Supreme Court of the Russian Federation proposed the creation of federal cassation SOYU and federal appellate SOYU, after which the system of federal SOJU will look like this:
At the same time, according to the proposal of the Supreme Court of the Russian Federation, appeal SOJ will be located in the cities: Voronezh/Ivanovo, St. Petersburg, Krasnodar/Sochi, Nizhny Novgorod and Tomsk, and cassation - in Kaluga, Moscow, St. Petersburg, Krasnodar, Pyatigorsk, Kazan, Perm, Kemerovo and Vladivostok. Appeal and cassation SOJ will be named by numbers, for example, the First Federal Appeal SOY and the First Federal Cassation SOY.
The proposal to split the regional and equal court, which today unites two instances, into two independent courts seems justified. Moreover, the effectiveness of such separation has been proven by arbitration courts.
Currently, the presidiums of regional and equal courts, i.e. the cassation court includes judges appellate court, which calls into question compliance with the principle of independence and independence of the appellate authority.
The creation of separate courts of appeal and cassation levels will contribute to freer discretion of the court when adopting judicial acts.
Cassation and appeal SOJ will act as part of the presidium of the court and judicial panels: civil, administrative matters, criminal and military affairs. The presidiums of the cassation and appeal SOJ will carry out administrative function, as well as study and generalize judicial practice. Thus, the presidiums will not be directly involved in the administration of justice.
With such a system, the question of the possible influence of the chairman of the court on a specific judge of the corresponding court through standard powers of an organizational nature still remains open, however, the elimination of the system in which the appellate and cassation instances existed under one roof will reduce the degree of possible influence of the cassation instance on the appellate instance in the administration of justice , and a qualitative change in the powers of court chairmen is a topic for the further stage of reform.
The judicial system will undergo rotation
When determining the number of federal legal entities, the Supreme Court of the Russian Federation proposes to take into account the number of cases considered in each instance. Thus, according to Viktor Momotov, a total of 823 judges are planned to be dismissed from regional and equal courts, and the number of appeal and cassation judges will be on average 36-37 and 60-110 judges, respectively. At the same time, it is planned to form appeal and cassation JJs from among judges with experience, and therefore the judicial system will undergo rotation.
Thus, according to the proposal for the staffing of nine cassation judiciaries, the number of judges will be a total of 723, and assistants - 1,219 people. In the five federal appeal courts, 181 people and the same number of assistants will work as judges.
It seems that the creation of such a system will improve the quality of justice in the SOJ. However, in this matter one should not rely only on the formal separation of the cassation and appellate instances. In order for the mechanism to really work, it is not enough to change the structure. It is necessary to accept accompanying changes that will not turn the introduced project into a restoration of the facade.
The single judge filter should be abolished
The pressing question for all practicing lawyers and their clients remains the question of whether the single judge filter for transferring a case to the court of cassation will be eliminated. It seems necessary to remove the stage of studying the cassation appeal by a cassation judge in order to single-handedly decide the issue of transferring the case to the court of the so-called first cassation. If the Supreme Court of the Russian Federation proceeds from the positive practice and experience of the arbitration court system, then it would be justified and logical to make changes to the procedural legislation that abolishes the single judge filter for the first cassation. All filed cassation complaints must be reviewed by the judicial panel of the federal cassation council, only then will such a division make sense. Taking into account the number of cassation judges planned for the formation of cassation, the creation of such a system is quite possible.
Legal nonsense
Of no small importance for ensuring the effectiveness of legal proceedings in the SOYU is the question of the mechanism for restoring missed procedural period. The current situation in which the restoration of a missed procedural deadline, for example, for appealing a judicial act, is handled by the court that accepted the appealed judicial act, is legal nonsense, devoid of any logic. Here, again, it is useful to adopt the positive experience of the arbitration system, including arbitration procedural legislation.
Enter video shooting judicial trial
Construction effective system justice is impossible without modern technologies. Thus, the preparation of a protocol of a court session at on paper secretary of the court session, taking into account the fact that modern technical means audio and video recordings allow inexpensive and high-quality recording of the circumstances of a court session with 100% authenticity, which no longer meets the needs of modern judicial proceedings and does not contribute to the implementation of the goals and objectives of legal proceedings in the Russian Federation. I remember the first time, when I was still a trainee lawyer, I read the minutes of a court hearing before the court retired to the deliberation room. My lawyer-supervisor spoke in the debate for a very long time, argued the position of his client, gave arguments with reference to the rules of law and evidence in the case, and then the protocol stated that in the debate “the representative of the plaintiff supported the claims and asked to satisfy them in full " All. One sentence. So, perhaps, implementing the principles of publicity and openness, we should introduce video recording of court proceedings? By the way, this will significantly discipline the persons participating in the case, their representatives and the court, will make it impossible to argue about the content of the announced judicial act and the later written one, will confirm or refute the facts of the statement by the person participating in the case, certain petitions, etc.
Create new electronic system
Another important technical point that ensures quality justice is the creation of a simple, but at the same time complete file cabinet of cases considered in the SOJ. A comparison of the State Automated System “Justice” and the Card Index of Arbitration Cases is clearly not in favor of the former. Inconvenient and constantly malfunctioning, GAS “Justice” does not allow it to be used effectively. In addition, it is difficult to imagine a situation when some judicial act would not be published in the Card Index, but SOJ is completely guilty of this. Recently I had to go to the Judicial Department of the Supreme Court of the Russian Federation in order to get the text of the decision of the Magassky District Court of the Republic of Ingushetia and other information on the case published in the State Automated System “Justice”. And the point here is not the technical capabilities of the electronic system, but the control and will of the Supreme Court of the Russian Federation. If we say that an example should be taken from the best, then we must bury the State Automated System “Justice” once and for all and create a new electronic system, using the Arbitration Case File as a basis.
Better late than never
The Supreme Court of the Russian Federation has finally launched a vital reform, which is designed to create the basis for subsequent changes aimed at strengthening the judicial system of the Russian Federation. The introduced draft federal constitutional law was unforgivably late, but better late than never. Building an effective structure with a separation of instances, following the example of the arbitration court system, is a positive undertaking, but it is only the first step. The reform will stall and stall if measures are not taken to bring it to its logical conclusion. Does it matter which way the tightrope walker has walked if he has not taken the final step from the rope to the platform? That's right - it doesn't. The creation of an independent and effective court may encounter serious resistance from some representatives of both the judicial community and other branches of government. The only thing that will save this reform is the understanding of its significance and necessity by those who have the legal authority and political will to bring positive changes to the life of Russia.
The Center for Strategic Research (CSR) of Alexei Kudrin has published a draft reform of the judicial system. It was developed as part of the Russian strategic development program for 2018-2024. The reform is aimed at improving the quality of judicial personnel, strengthening the independence of judges and reducing the workload and streamlining trial.
Some of the proposals have already been announced in the form of bills, while others were announced by Vladimir Putin. Court chairmen will be appointed after the elections, judges will be trained in a special Center, and a reduction in the qualification class of judges will be introduced as a disciplinary measure.
Who developed the reformVadim Volkov(coordinator), doctor social sciences, scientific director of the IPP at the European University in St. Petersburg, member of the working group at the Economic Council under the President of the Russian Federation Igor Tsvetkov, Doctor of Law, prof. Department of Commercial Law and Fundamentals of Law Faculty of Law Moscow State University named after M. V. Lomonosova Kirill Titaev, Candidate of Sociological Sciences, presenter Timur Bocharov, Research Fellow at the Institute of Applied Sciences at the European University in St. Petersburg Lidiya Voskobitova, Doctor of Law, Professor, Head of the Department of Criminal Procedure Law at the O. E. Kutafin University (MSAL) Anna Smola, Candidate of Legal Sciences, Advisor to Bartolius Law Firm Arina Dmitrieva, Research Fellow at the Institute of Applied Sciences at the European University in St. Petersburg |
Personnel decide
To resolve the issue of improving judicial personnel, it is proposed to create a single Federal Center training of judges. It must act independently of departments and specialize exclusively in the professional training of applicants for the position of judge. It is assumed that the founder may be the Government. “It is also necessary to ensure a high degree of autonomy for the Center from any government, including the judiciary, since there is too close control from judiciary will contribute to maintaining the existing state of affairs, rather than changing it,” emphasizes the Center for Social Development. It is proposed to create the main campus of the Center in St. Petersburg, with additional campuses in Yekaterinburg and Vladivostok. According to the plan, training at the center will be free of charge, and students will be paid a stipend. It is expected that a specific target agreement will be concluded: upon completion of training, candidates must work for at least 5 years in a judicial position or reimburse the amount of training.
Strict selection criteria will be introduced for applicants: the Center will teach only the interpretation of the law, and not its substantive aspects. High-level entrance examinations are required, and candidates must be recommended by a Judicial Qualification Panel and undergo a background check before enrolling in the Center.
The Center will be taught by current and former judges at various levels, as well as law professors who are also practicing lawyers, as well as specialists in the fields of ethics, psychology, rhetoric, sociology and economics.
It is radically proposed to change the status of the court secretary. Firstly, work in this place will not provide legal experience, and secondly, it will not require legal education.
If currently court chairmen are forced to choose from a small number of lawyers and law students who are willing to go to work for low wages, then opening access to this work to representatives of other specialties will make it possible to recruit more qualified candidates
TsSR
Assistant judges, on the contrary, are proposed to be given procedural functions and conditionally given the status of “judge number two”. It is proposed to legalize the functions of preparing judicial acts, explaining to the parties their rights and obligations, requesting evidence, etc. At the same time, it is proposed to increase the salaries of assistants. Promotion wages It is recommended that the court staff do this twice. The costs for this will amount to 25 billion rubles. (14.7% of total funding for the judicial system from federal budget). According to Kudrin’s experts, this can increase competition for positions and improve the quality of personnel.
The Personnel Commission under the President should only participate in the process of granting a citizen the status of a judge, according to the Center for Social Responsibility. All further appointments of current judges or their transfers will take place on the recommendation of the Chairman of the Supreme Court. At the same time, it is proposed to include representatives of the Higher Qualification Committee, the presidential administration, the council of judges and the public in the composition of the PAC itself.
How judges are trained in other countries
Independent judges
To achieve these goals, it is proposed to appoint chairmen of district courts based on the results of elections or after the nomination of a corresponding candidacy by the court staff. It is also proposed to change the powers of court chairmen to participate in the process of appointing judges, distributing cases and material remuneration. The last measure the CSR calls is to clarify the conditions for the onset of disciplinary liability of judges.
For the appointment of chairmen of judges, the CSR offers two options:
|
District court chairmen are elected The candidacy is considered by the qualification board of judges, then a voting procedure takes place among the judges of this court, and the candidacy of the winning candidate is agreed upon with the chairman of the Supreme Court. The tenure of office lasts 3 years; one judge cannot serve as chairman for more than two consecutive terms. |
District court chairmen are nominated Only an active judge can be appointed as chairman of this court based on ranked voting. All judges make notes on the rating of all judges in special ballots. Next, the recommended judge who received the most votes is identified. A judge has the right to resign from office. The candidacy is approved by the Chairman of the Supreme Council. |
It is recommended to limit the powers of court chairmen as follows:
- eliminate or significantly reduce the participation of the chairman of the court in the process of appointing a judge to a position;
- change the mechanism for rewarding judges from the salary fund (without the discretion of the chairman);
- replace the practice of “manual” distribution of cases by the chairman with an electronic system for distribution of cases;
- organizational and economic powers should be withdrawn from the chairman of the court and transferred to the court administrator.
Experts note that clear regulation of the disciplinary liability of judges is necessary and point to contradictions in the legislation.
Now the termination of the powers of a judge occurs “not only for committing criminal acts, but also for the permissible disciplinary offense, despite the fact that the grounds for choosing, among all measures of disciplinary liability, namely termination of authority, are not differentiated clearly enough,” experts note. As changes to the legislation, it is proposed to take the position of the Constitutional Court, namely that the measure should be proportionate to the offense, and termination of powers should be an exceptional measure. In addition, termination of the powers of a judge can be applied for an offense that “discredits the honor and dignity of a judge, undermines confidence in the judiciary and is incompatible with the status of a judge.”
Also, CSR experts propose to distinguish between the concepts of “disciplinary offense” and “miscarriage of justice.” It is also proposed to differentiate the measures of disciplinary liability: it is proposed to add to the existing ones a reduction in the qualification class of the judge. Vladimir Putin has already made this proposal (see).
The ever-hanging threat of punishment for an unjust decision contributes to the formation of a corps of intimidated and controlled judges who are afraid of committing a miscarriage of justice, and therefore are unable to show autonomy and independence in their judgments. Punishment applied selectively to individual judges leads to an increase in tendencies of “controllability” contrary to the principle of the independence of judges and the independence of the judiciary
TsSR
Take the load off the judges
As CSR experts note, most judges in Russia work under constant overload. They propose to change this by adjusting the flow of incoming cases and the costs of legal proceedings for its participants, as well as by rationalizing the judicial process and procedures.
Mandatory and simplified proceedings in cases that do not actually contain a dispute significantly reduced the burden on the judicial system, but now this scheme has exhausted its capabilities. Currently, the main burden on the courts comes from civil cases. At the same time, cases that do not contain a dispute often end up in the courts.
There are numerous lawsuits tax authorities to citizens, while the “cost” of a claim is 12,300 rubles, and the average cost of claims from the Pension Fund of the Russian Federation is about 11,300 rubles. Moreover, cases are satisfied in 98.5% of cases for the tax office and in 99.3% for the Pension Fund. “It is advisable to increase the threshold amount of a claim for the Federal Tax Service and the Pension Fund of the Russian Federation to at least 10,000 rubles, this will reduce the number of civil cases by 2 million per year,” the Center for Social Security believes. The number of claims can also be reduced by significantly increasing the state duty for legal entities(for example, up to 10% of the amount collected, but not more than 1 million rubles). As a last measure, it is proposed to differentiate the fee for cassation and appeal, which “will force participants in legal proceedings to take a more responsible approach to appeal issues.”
In criminal proceedings, the only measure to reduce the number of cases is to create incentives to terminate cases at the investigation stage before transferring to court those criminal cases that are terminated in court. This possibility is provided for by the Code of Criminal Procedure, but no more than 1.5% of cases are terminated at the investigation stage.
In arbitration cases, it is proposed to extend the practice of mandatory departmental pre-trial appeal to all control and supervisory authorities. “That is, before submitting an application to the court, a citizen or organization is obliged to appeal the decision of any control and supervisory body to a higher authority of the same body,” explains the Center for Social Security.
Rationalization of the judicial process consists in providing the opportunity for judges in criminal proceedings to voice only the operative part, leaving the full text of the decision for the parties to review independently. You can learn more about this concept in the already published draft law, which regulates, among other things, motivations in civil and arbitration cases.
In addition, it is proposed to open the trial hearing at the preliminary hearing if both parties have appeared. This applies to courts of general jurisdiction.
They want to place an emphasis on audio recordings at the CSR meetings: “It is necessary to make an audio recording the main means of recording the progress of a court hearing in civil and criminal proceedings; the written protocol will be an auxiliary source, where only basic information and procedural actions of the participants will be entered,” they note.
The work will be simplified by a unified file of cases of courts of general jurisdiction with the possibility of public access to judicial acts, as well as the submission of documents to such courts in in electronic format, by analogy with arbitration courts.
Other measures that would reduce the burden include the development of the institution of mediation and the decriminalization of some offenses. It would help to reduce the flow of complaints in accordance with Art. 125 of the Code of Criminal Procedure (on actions/inactions, decisions of the investigation and the prosecutor’s office during the work on a criminal case). However, the CSR does not call them primary.
The material was prepared on the basis of “Proposals for improving the judicial system in the Russian Federation and changing regulations for the purpose of their implementation” by the Center for Strategic. With the full text of the study you can
A report that highlighted the main problems of the Russian judicial system - from the workload and dependence of judges to the predominance of guilty decisions - and proposed options for solving them.
Why do most judges make formulaic decisions and how do lawyers and sociologists propose to correct the shortcomings of the judicial system in order to also improve the level of the economy? "Paper" selected the main points of the report.
Experts identify five main problems in the modern Russian judicial system
After conducting empirical research, employees of the Institute for Law Enforcement Problems identified five main problems of the Russian judicial system:
Excessive repressiveness (high proportion of charges) of the judicial system, mainly in criminal cases.
Excessive influence of court chairmen and dependence of judges on the organizations in which they work.
Uncertainty of grounds for disciplinary liability of judges. According to experts, this makes it possible to influence the decisions of judges.
Low quality of personnel selection for the position of judge. Lawyers and sociologists note that currently in Russia the procedures for appointing judges are opaque and not reflected in the laws.
High workload on judges, including bureaucratic workload. As experts write, this leads to a “significant decrease in the quality of legal proceedings”, decision-making “based on a template”, as well as “emasculation of the essence of justice”.
If these shortcomings are corrected, the economy will begin to grow, the IPP believes
Experts say that solving these problems will create conditions in which it will be able to grow market economy and stabilize the economic system.
They argue that a properly functioning judicial system ensures the protection of the rights of citizens and associations, including property rights, which increases the level of trust in legislation among the population. With the advent of trust, lawyers and sociologists write, the volume of private investment will increase and business will strengthen.
Most problems arise in criminal proceedings. The average judge renders an acquittal once every 7 years.
Some of the problems identified by IPP employees - high workload, personnel selection of judges - relate to both arbitration and general jurisdiction courts, regardless of the type of process. However, accusatory bias or inequality of parties in the process applies only to criminal proceedings.
To prove that this is the most problematic area of the Russian judicial system, experts cite data compiled over the past five years. Based on these statistics, they prove that in criminal system:
Low proportion of acquittals (0.13%) in cases of public and private-public prosecution (such cases make up 93% of all criminal cases).
Most requests investigative authorities on preliminary conclusion the suspect's arrest is approved. This is 91% of cases.
Low rate of acquittals in jury cases. Defendants are acquitted in only 15–16% of cases.
The vast majority of acquittals occur in cases of private prosecution, considered without the participation of a prosecutor. In such cases, the acquittal rate is about 30%.
The average judge renders a guilty verdict once every seven years.
At the same time, the authors note that not all experts share the opinion that there is an accusatory bias in criminal trials. In contrast to this, as EU experts write, they often provide data on criminal cases dismissed in court on non-rehabilitative grounds, that is, because of an amnesty, the expiration of the statute of limitations for prosecution, the death of a witness or accused, or because of an existing verdict in the case. The share of such cases is 22–24% of all decisions.
The decisions of judges in Russia are influenced by their dependence on higher authorities and the human factor
Based on the same empirical studies, the authors of the report argue that the behavior of participants in legal proceedings, including the final decision of the judge, depends not only on formal legal factors.
People are also influenced by the hierarchical system of positions in the court, the goals, norms and restrictions determined by the interests of the court and its employees, and people's interest in advancing their careers and avoiding risks.
According to the IPP, the following two factors also play a major role in the judge’s decision:
Judges are dependent on the chairman of the court, who plays a key role in appointing them to a position, participates in the distribution of workload and bonuses, and influences their career growth.
Higher courts can bring a judge to disciplinary liability, but the procedure for this is not fully regulated. For example, judges may be held accountable for overturning court decisions. The authors believe that this affects acquittals, which are often appealed.
Experts also note that criteria for assessing the quality of a judge’s work have not yet been prescribed anywhere: there are no rules defining how many reversals of court decisions and complaints filed against judges are permissible.
Judges are often former court employees. The authors of the report believe that because of this they are less independent
Experts believe that in modern system Lawyers who previously worked mainly in the court apparatus are most often appointed to judicial positions: often as an assistant or secretary of a judge. In their opinion, if the selection of personnel for the position of judge is changed, future judges will become less dependent.
From the report:
“This (those who come to the position of judge - approx. "Papers") predominantly young women with a higher proportion of correspondence legal education than people from other legal professions. Among newly appointed judges in 2001, 19% came from the apparatus, and in 2013 - already 58%. This has led to the fact that today the judiciary consists of 32% former employees court apparatus (in 2001 there were 11%).”
According to the speakers, such people remain dependent on the court apparatus: they have already developed the habit of subordinating to the leader and have less developed skills for making independent judicial decisions.
From surveys it follows that most judges often overwork. Experts believe that because of this, judges pay less attention to detail and approach cases in a more formulaic manner.
In a survey by the Institute for Law Enforcement Problems, more than three-quarters of judges indicated that they stay late after work every day or several times a week. In Russia there are no workload standards for judges, therefore, experts say, this situation cannot be clearly called overload. Nevertheless, as the speakers found out, the speed of processing cases in Russia is one of the highest in Europe.
As a result of the increased workload, judges use template decisions, inserting new names and circumstances into them, which is proven by comparing the texts of court decisions.
Judges are often isolated from society due to the fact that they are forced to work late. Moreover for professional work both the study of literature and participation in specialized events are required.
Due to working with a multitude of documents, judges pay less attention to the details and individual characteristics of each case, as well as to the rights of each participant in the process.
Surveys show that, due to the high workload, judges rely more on documents than on the parties' pleadings, and also ask questions themselves to obtain the information they need to make a decision.
For each identified problem, experts offer their own solution
To solve the identified problems, experts propose, among other things, to change the legislation in force regarding the judicial system. According to the authors of the report, it is necessary:
Increase the actual wages of staff members by half or to the level of the regional average.
In the second half of July, the State Duma adopted a number of laws to improve the work of general and military courts. This is called the big word “reform”, but it is difficult to agree with such a definition. Optimizing the structure will not lead to real independence of the judiciary, the outcome of political cases will still be a foregone conclusion, and old, proven judges will remain in the system longer than expected. What will change and why will it have little effect?
What is the essence of the transformation judicial structure, which will come into force in September 2019? What problems is it intended to solve? The reason for the change was the fact that currently in regional courts The appellate and cassation instances are combined. (Cassation is a review of a decision that has entered into force, usually after an appeal). Thus, the presidium of the regional court is forced to review the appellate rulings of its own court. Of course, during appellate and cassation review, the judges are still different, but nevertheless they know each other well, since they sit in the same building, often in neighboring offices. A similar problem has not existed in arbitration courts for a long time: there the principle of “one court - one instance” was introduced without much noise and shouting about the “great reform” 15 years ago.
For a better understanding, we will describe the situation using a table that shows which courts will disappear as a result of the reforms and what will replace them. The abolished courts are crossed out, and the new ones are in italics. The right column shows the situation in arbitration courts for comparison.
|
Courts Institutions |
Cases commenced in the Magistrates' Court |
Cases started in district court |
Cases started in the regional (or equivalent) court |
Affairs, subordinate to arbitration courts |
|
First instance |
Magistrate's Court |
District Court |
Regional court |
Arbitration court of a subject of the Federation |
|
Court of Appeal |
District Court |
Regional court |
Profile Judicial Collegium of the Supreme Court of the Russian Federation Court of Appeal of General Jurisdiction |
Arbitration Court of Appeal |
|
First cassation instance |
Presidium of the regional court
|
Presidium of the regional Court of Cassation of General Jurisdiction |
Cassation court of general jurisdiction |
Arbitration Court of Cassation |
|
Second cassation instance |
Profile Collegium of the Supreme Court of the Russian Federation |
(currently unavailable) |
Collegium for Economic Disputes of the Supreme Court of the Russian Federation |
|
|
Supervisory authority |
Presidium of the Supreme Court of the Russian Federation |
Presidium of the Supreme Court of the Russian Federation |
Presidium of the Supreme Court of the Russian Federation |
Presidium Supreme Court of the Russian Federation |
From now on, the principle of “one court, one instance” will be observed everywhere except the Supreme Court. In it, supervision will continue to be combined with the second cassation. This is quite surprising, since he himself Supreme Court initiated the division of lower authorities. However, he does not want to reform himself in the same way.
There are also oddities with the distribution of the judicial workload. After the planned transformation, instead of 85 presidiums of regional courts throughout the country, there will be nine separate cassation courts on the appeal ladder, which will “inherit” approximately 220 thousand cases per year. This is quite a significant number. And those cases that begin at first instance in regional courts will be considered by one of the five newly established courts of appeal of general jurisdiction. There are about 2.5 thousand such cases a year. To these will be added about 8 thousand more appeals against interim decisions of regional courts. It is for the sake of these 10.5 thousand decisions that five new courts are being established, in which 181 judges will sit. A judge handles 58 cases a year – an enviable job! This is three times lower than the current (by no means high by Russian standards) workload of appellate judges.
It is useful to pay attention to the “add-on”, which, as is usual in the system of imitative parliamentarism, appeared only at the third reading, so the explanatory note does not say a word to justify it. We are talking about raising the age limit for holding office for some high-ranking judicial chiefs. As you know, now judges federal court occupy their chairs until the age of 70, and only to the chairmen of the Constitutional and Supreme Courts for their faithful service (of course, to justice, and not to some to a specific person) was granted the exceptional privilege of holding their posts for life. Now a similar privilege, although lesser, extends to the following layer of the highest nomenclature: age limit for deputy chairmen of the Constitutional Court and the Supreme Court, as well as for the chairmen of nine planned cassation courts of general jurisdiction and the heads of ten existing arbitration cassation courts, the age is increased to 76 years. All this is difficult to interpret otherwise than as a desire to maximally prolong the stay in power of those in the highest judicial positions. They are probably seen as a kind of “guarantor of stability.” In general, the “reform” will clearly benefit the judicial nomenclature: as a result, several dozen new bosses will appear - chairmen of courts, their deputies and chairmen of collegiums.
Is this a reform, and what kind of reform should it be?
What will this transformation of the judicial system change? In the official frame of reference, it really looks like a major reform. It eliminates the most serious threat to the independence of judges recognized by the authorities - the above-mentioned conflict of interest due to judges of different instances belonging to the same court. In reality, however, there are other, much more serious threats to the independence of judges, which are not officially recognized. This is, firstly, the unquestioning obedience of all courts to the highest political authority and, secondly, the dependence of local and regional courts on particularly powerful individuals. These problems can be defined colloquially as “Basmanny” and “Ust-Labinsk” justice.
It is clear that the chances of Messrs. Navalny, Khodorkovsky or Ulyukaev for an acquittal would not depend at all on whether the cassation and appeal were divided among themselves or not - they were and will remain zero in any case.
For the outcome of the relevant cases, it does not matter how many instances there will be in one court. The same applies to politically important economic disputes like the Bashneft case.
This fact is unlikely to escape the attention of serious investors deciding whether to invest hundreds of millions of dollars in the Russian Federation or prefer another country to it. They will not be misled by such transformations. Businesses are well aware that the level of legal guarantees for financial investments is unlikely to increase, and therefore, silently, without informing anyone about this, investors will continue to choose other jurisdictions. We cannot even know exactly how much our economy is losing due to the generally recognized (except for official propaganda) lack of a truly independent court.
Ultimately, this alteration does not solve the main task of judicial reform - it does not break with the legacy of the Soviet court. In the USSR there were judicial bodies, but there was no judicial power. There was only one real power - the power of the Politburo and the Central Committee apparatus. Even the Soviet government (Council of Ministers) was not a real government, and the parliament was decorative. By and large, we see the same thing now. Real power in its entirety belongs to the President of the Russian Federation and his administration - a body whose activities are not regulated by any law and which is only briefly mentioned in the Constitution. This body, located in the offices of the CPSU Central Committee on Old Square, “supervises” the courts, effectively ensuring that the decisions it needs are made, as Judge E.Yu. Valyavina once spoke quite frankly about. In those cases in which the highest political power has a vital interest and which it considers to be of principle, justice is abolished, only the appearance of it remains. In the hundred years that have passed since the establishment of Soviet power, there has not been a single exception to this rule.
Even changing the judicial system, new law still retains the inherent multi-instance nature of the judicial system of the Russian Federation, inherited from the USSR: a case can go through five successive instances. In the first, a decision is made, then it is appealed in four. This appeals ladder is much longer than in any other state: almost all countries are content with only three instances. There were three of them in historical Russia according to the Judicial Charters of 1864. Multi-instance is a specific feature of the Soviet judicial system: the authorities needed it primarily in order to have additional ways to review anything they disliked. judgment. It was an instrument of political control exercised through the highest judicial hierarchies. However, he undermined and is undermining the principles of stability and finality of judicial acts.
Only the transformation that solves these problems deserves to be called reform. The changes in the judicial system adopted by the State Duma do not solve them at all, which is why it is impossible to consider this a manifestation of genuine reformism. As for sudden personnel innovations, as if “smuggled” into bills, they even further strengthen stagnation.
"Plan for Change" inOn Wednesday last news the impending changes were announced at a plenary meeting of the Council of Judges of Russia in Moscow.
The first reform starts this summer: in district courts jury panels will be introduced. The number of cases heard by popular judges will increase sharply. Now the judicial system is actively preparing for this. As a representative of the Judicial Department at the Supreme Court of Russia reported yesterday, 2.3 thousand halls have been equipped in district courts throughout the country court hearings. And judges and court staff undergo special courses where they learn how to conduct jury trials. Let us remind you that in district courts there will be panels of six jurors. According to experts, jury trials will be able to consider about 15 thousand cases a year.
Another reform is still being discussed. The Supreme Court of Russia proposes to create separate courts of appeal and cassation. Then each new instance will not be connected in any way with the previous one, which means that the judges will be able to look at the case with a truly fresh look.
Chairman of the Supreme Court of Russia Vyacheslav Lebedev told reporters that he hopes for the adoption of a bill on the creation of a full-fledged four-tier system of courts of general jurisdiction in the country this fall.
According to experts, jury trials will be able to consider up to 15 thousand cases a year, and perhaps more in the future.
Let us recall that the Supreme Court came out with legislative initiative on the creation in the system of courts of general jurisdiction of five appellate and nine cassation courts, formed on the district principle. That is, these will be separate courts created exclusively to consider appeals or cassation complaints. As Vyacheslav Lebedev noted, the boundaries of the new judicial districts will not depend on the administrative-territorial division of the country.
“The new courts will have an interregional character, which will make them completely independent from the authorities of the constituent entities of the Russian Federation,” said the Chairman of the Supreme Court of Russia.
According to him, a similar system of federal district courts has proven itself well in the system of arbitration courts. Therefore, it is proposed to transfer it to the courts of general jurisdiction.
Today, according to experts, several instances are concentrated in one regional court. And it often happens that a case is heard at different stages in the same court. Yes, the judges are different, but the team is the same. The appellate judge may well go to the same cafeteria with the cassation judge. But good relationships (as well as bad ones) are always a threat to objectivity.
The construction of courts of general jurisdiction according to a new principle will increase the objectivity and independence of legal proceedings; will reduce the workload of courts, primarily regional ones.
“The innovation will have a positive impact on the quality of consideration of cases in the appellate and cassation instances, says Vyacheslav Lebedev. “In general, a full-fledged four-tier judicial system of both arbitration courts and courts of general jurisdiction will be created in the Russian Federation, including courts of first instance, appeal, cassation and supervisory courts.”
According to him, the efficiency and quality of consideration of cases in the courts of first instance will also increase.
Another news: the Supreme Court of Russia is developing a bill that will determine which errors of judges can be acceptable and which are considered a disciplinary offense.
"The adoption of such a law will important step on the way to improving the institution of disciplinary liability of judges and will allow us to identify cases where violations legal norms when considering specific cases, it should be qualified as a misdemeanor or as an acceptable miscarriage of justice,” said Chairman of the Council of Judges Viktor Momotov.
Fundamental point: on their own miscarriages of justice You can't blame a man in a robe. Like any living person, a judge can sometimes make mistakes. It is unforgivable for a person in a robe to judge dishonestly or dishonestly. Therefore we need clear criteria to separate one from the other.
According to the project, the case at each new stage will be considered in a separate court - and even in a different region
A judge who has committed misconduct can be dismissed only in exceptional cases. Moreover, the qualification board that makes the decision on early termination powers of a judge. In other words, such a difficult decision must be seriously justified.
For example, if the mistake occurred due to an incorrect assessment of evidence or incorrect application of legal norms, the judge will be corrected, but not punished. Although for a judge this is certainly a reason to work on improving his skills. However, if the same mistake is repeated regularly, and the judge makes it even after it is directly pointed out to him (for example, his decisions are constantly overturned on the same grounds), this will already be a reason to raise the question: does the judge take his place?
However, judicial errors cannot always be called mistakes. It happens that the norm is new, practice is being developed and lawyers do not have an unambiguous interpretation. A judge should not be afraid to express his opinion and decide as his conscience and experience tell him. Therefore, the project that is currently being prepared will become another measure to protect judges.
Yesterday, the President of the Federal Chamber of Lawyers, Yuri Pilipenko, also spoke at the plenary meeting of the Council of Judges. He drew the attention of the judges to the fact that the legal profession is now greatly transformed for the better. One of the manifestations of this is increased respect for the court, judges and the judiciary. “But this is a road that we ourselves cannot overcome,” he said. “And you, dear judges, must get involved in this work and allow lawyers to realize themselves professionally in the process.”