Gorina S.A., Doctor of Science, Economics, Professor, arbitrator
Chairman the Government of the Russian Federation Dmitriy Medvedev has approved the program for the judiciary development in 2013-2020. The effected concept of the federal target program is mainly aimed at improvement of effectiveness of court orders execution, formation of continuity when implementing judicial measures and improvement of the quality of legal enquiries.
In this regard, the traditional question ‘What is to be done?’ remains urgent. What should the strategy of a new round of the judicial reform be like? Dmitriy Medvedev says it is necessary to plan thoroughly mechanisms of correct control of the judicial system, Russian Agency RAPSI reports in its publication “Judicial Reform. RAPSI’s diagnostics.”
Chairman of Supreme Court of Arbitration Ivanov A.A. in its interview to “Russian Newspaper” (rg.ru, justice online) says that the judicial system must be open to the maximum extent. “Courts of arbitration have done a lot to ensure transparency of court proceedings and information availability”.
Unfortunately, this has currently little reference to courts of general jurisdiction, which are slow in fulfillment of objectives and tasks related to reforming of the judicial system, in particular, increase of population’s confidence in the judicial system, remaining close and demonstrating their reluctance to be engaged in dialogue with the community and cast in settlement of divergent court orders.
The lack of courts openness is not due to the level of technical procurements and high loads at courts, as some representatives of courts of general jurisdiction try to claim in certain interviews, but unlawful conclusions in certain court resolutions made by courts of general jurisdiction and courts aiming to avoid presenting such judicial acts for public opinion. This leads to decreased confidence of our citizens in courts of general jurisdiction. Moreover, famous jurists refer in mass media to cases, when unlawful judicial awards were made, and believe that there are contractual relationships with the court. Unfortunately, elective justice exists, and closeness and conservatism of courts of general jurisdiction in certain regions of the country make the situation even worse.
There is no doubt that the key priority of strengthening of confidence in courts, ensuring uniformity of legal positions and elimination of elective justice are institutional modifications of the judicial power, first of all, introduction of the institute of reference for a preliminary ruling.
“If the institute of reference for a preliminary ruling was introduced in the judicial practice, this would make courts be able to consider the legal position of Supreme Court of Arbitration in cases, when there is ambiguity in interpretation and application of a legal norm, and the correct decision would be made only within several months, not years”, - says Chairman of Supreme Court of Arbitration Ivanov A.A..
However, there is a counterintuitive situation typical for courts of general jurisdiction in certain regions, when judicial resolutions are made in conflict with and in contradiction to the uniform judicial practice, Resolutions of Plenums of Supreme Courts of the Russian Federation. It means that the legal position established by the uniformity of the judicial practice and Directives of Supreme Courts is sometimes not considered by a district regional court, and the decision being in conflict with the existing judicial practice is made.
When an award of a regional court is appealed at the court of appeal instance, the controversial position accepted by the court of first instance is usually not reasoned or supported, which looks like protection of esprit de corps. This results in the appeal and supervision instances of the regional district court leaving the unlawful order unchanged, without providing their own legal position. It seems that such court resolutions, which are in conflict with the uniform judicial practice, should be posted at professional internet resources, thoroughly analyzed and, an opinion should be made to the professional community, otherwise it is impossible to fight elective justice, when supporting a man, the court has made a deal with, is more important than observing the law and making a fair judicial decision. Another effective measure to overcome the crisis of citizens’ confidence in justice, being aggravated by unlawful and controversial judicial resolutions, would be formation of an expert public council for audit of judicial acts, with regard to validity of which the publicity has doubts. Such expert council for audit of judicial resolutions may be founded under profession non-profit unions (associations), for instance, Association of Russian Lawyers. Elective justice and contractual proceedings, where unlawful judicial awards are issued and the uniformity of the legal system is violated may be eliminated with joint efforts only.
Also, to ensure uniformity of the judicial system through formulating of legal positions, it is necessary to carry out online monitoring of judicial resolutions, made by courts without any reasons, in absence of another legal position by such court with regard to a certain case and made in violation of the uniform judicial practice and positions of Supreme Courts. Such monitoring with further analysis will make decisions made by courts of general jurisdiction on an elective basis open, and failure to observe the law at such court obvious. It will also lead to disclosure of informal groups of influence inside among judges, beginning from the court of first instance. The author is personally familiar with decisions made in violation of the uniform judicial practice and positions of Supreme Courts at one of district courts of the Nizhniy Novgorod Region, consisting of two judges and a chairman. The multilevel management system and cast in protection of esprit de corps, usually, leave such decisions, made by courts of first instance unchanged during their review at courts of second instance. In response to citizens’ complaints courts send formal run-around replies; sometimes applications are not reviewed at all.
The serious obstacle on the way to openness of courts of general jurisdiction and overcoming of citizens’ confidence crisis is the existing management system, which in most cases prevents our citizens, who applied for restoration of an infringed right, from logical completion of the court proceeding. According to the statistical data for 2010-2011, less than 10 per cent of 90 per cent of persons previously applied to regional courts and courts of constituent subjects of the Russian Federation, file their claims to Supreme Courts. This, first of all, demonstrates that the system of judicial management is operating in a way that a court proceeding may take more than a year at a regional court, and considering the need in timely application of recovery, the court proceeding becomes pointless for our citizens.
The problem of untimely application for recovery is due to closeness and conservatism, typical for many district courts of general jurisdiction. Lack of mechanisms of correct control leads to the fact that courts of general jurisdiction do not always work in a single internet area, and probably intentionally ignore well-functioning and effective software, to which state program GAS justice refers. For example, in section “Bank of Judicial Orders” of the website of a district or regional court is reported that information is temporarily unavailable. As a result, state program GAS Justice, created in particular for the purposes of public disclosure of judicial orders made and improvement of the proceeding system, related to enforcement of judicial orders, reduction of bureaucracy at courts, is not applied or used in the work by the courts themselves.
Such attitude of courts of general jurisdiction to state program GAS Justice also makes it difficult to fulfill reforming tasks set by the Government and aggravates community’s confidence in court. Inability to recover a debt due to the bureaucracy at court and closeness of judicial decisions made thereby leads to reasonable disturbance of the community. The problem seems to be made artificially.
According to Article 428 of the Civil Procedural Code of the Russian Federation, the basis for issue of an order of enforcement is a judicial resolution, which was put into effect. Timely public posting of judicial resolutions at websitesof a court in single state program GAS Justice allows ensuring continuity of the law and practical implementation of a debt recovery procedure. The international practice has applied this for a long time. As to Russia, certain courts of general jurisdiction simply ignore operating their websites, which, note, is ignored on a selective basis, i.e. fail to update a certain page of their website.
This problem seems to be urgent for enforcement of judicial resolutions, reviewed at appeal instances and put into force. A district court will wait for a court case, usually sent from the appeal instance via regular mail, and only when the case is sent back from the court of second instance, the district court will issue an order of enforcement, on the basis of which a debt is collected. With this system of work, it might take months waiting for an order of enforcement at certain district courts, making the judicial order unenforceable. Why should a citizen apply to court then?