ARBITRATION COURT OF CASSATION AND GUARANTEEING OF ACCESSIBILITY AND EFFECTIVENESS OF JUSTICE (AS EXAMPLIFIED BY THE ARBITRATION COURT OF THE NORTH-WESTERN DISTRICT)
- The urgency of the conference topic is proved by the rulings of the Federal Arbitration Court of the North-Western District and those tasks that the arbitrators and the court staff have to resolve in order to fully implement the idea of accessible and effective justice.
- For the purpose of such implementation:
- the Court Presidium has developed a number of recommendations to arbitrators;
- the Court rulings are analyzed on an on-going basis in order to identify and exclude subsequent judicial errors and other defects in Court activities;
- the Court maintains permanent contacts with scholars - lawyers with respect to the problems interesting from the viewpoint of the legal doctrine and causing the lack of uniformity in the circuit courts' rulings;
- the Court periodical - Arbitrazhnye Spory (Arbitration Disputes) is being successfully published: the number of its readers and its authority among scholars and practicing lawyers grows;
- seminars and conferences on urgent topics of law enforcement are held with participation of arbitrators and the Court administration officials;
- rulings of the Federal Arbitration Court of the North-Western District (FAC of NWD) are fed into legal reference systems, for which purpose the Court has developed and constantly improves a classifier of judicial acts; the Court has created an Internet site.
- Lets dwell on each of the above trends in the Court activities.
Recommendation of the Court Presidium
The practice of elaboration of recommendations by the Court Presidium has been existing for several years and is based on Articles 28 and 29 of the Federal Constitutional Law On Arbitration Courts in the Russian Federation. The recommendations are formulated on the basis of the results of analyses and summary of rulings of the FAC of NWD on specific legal issues: individual rules enforcement practice, compliance of the Court rulings with certain provisions of the laws in force, international treaties.
The recommendations that seems to be the most important for the participants of the conference are as follows:
- on application procedure for Articles 85, 87, 107, 108 of the Code of Arbitration Practice of RF (adopted by the resolution of the Presidium of the FAC of NWD dated 10.12.99, No. 29-1).
The Presidium attracted the arbitrators' attention to inadmissibility of application of the above procedural rules out of the context of other provisions of the Code of Arbitration Practice of RF and other federal laws, as well as to the necessity to strictly differentiate between a stay of proceedings in a case (refusal to accept the statement of claim) and shelving of a claim (return of the statement of claim) in connection with different procedural consequences of these institutes enforcement: in absence of the right of action (Articles 85, 107 of the Code of Arbitration Practice of RF) a repeated filing of the same claim is inadmissible, and in absence of the conditions to exercise the right of action (Articles 87, 108 of the Code of Arbitration Practice of RF) a repeated recourse to the court with the same claim is admissible after elimination of certain circumstances.
The Presidium also pointed out that in evaluation of identity of the claims, while resolving whether to refuse to accept the statement of claim pursuant to para 2, part 1, Article 107 of the Code of Arbitration Practice or to terminate the proceedings in the case pursuant to para 2, Article 85 of the Code, the arbitration court should take into account three components of the identity of the claims in the aggregate: same persons involved in the case, the same subject and grounds of the claims. The absence of identity with respect to even one component attests to impossibility to enforce para 2, part 1, Article 107 and para 2, Article 85 of the Code of Arbitration Practice of RF.
In connection with judicial errors in the rulings of lower courts, the Presidium also deemed it necessary to underline an exhaustive character of the lists of grounds stipulated by Articles 85, 87, 107, 108 of the Code of Arbitration Practice of RF which are not subject to expanding interpretation.
- on a specific ground for restoration of the term for appeal to the court of cassation
(the recommendation was adopted by Resolution of the Presidium of the FAC of NWD on 10.12.99, No. 29-2).
The Presidium recommended the following: in restoration of the term for appeal to the court of cassation in the event the complaint was repeatedly filed after elimination of defects which were the grounds for its return, the time the complaint was in the arbitration court prior to its return should be taken into account when evaluating whether the excuse for failing to observe the time period specified for appeal, as applicable to Article 99 of the Code of Arbitration Practice of RF, was reasonable or not;
- on the procedure of enforcement of Article 168 of the Code of Arbitration Practice of RF (adopted by Resolution of the Presidium of the FAC of NWD on 03.03.2000, No.32).
The recommendations are aimed at ensuring a maximum admissibility of cassation proceedings.
The Presidium pointed out that when returning the appeal to the court of cassation, all grounds specified by part 1, Article 168 of the Code of Arbitration Practice for the return of the claim should be identified so that the claimant could sufficiently quickly eliminate the defects revealed and file the appeal to the court of cassation once again.
- according to the results of analysis of compliance of the FAC of NWD rulings with basic provisions applied by the European Court of Human Rights in defense of the property rights and the right to justice (adopted by Resolution of the Presidium of the FAC of NWD on 03.11.2000, No. 38-1).
The recommendations are aimed at enhancement of practical value of procedural principles of law, strict compliance with the requirements of Article 115 of the Code of Arbitration Practice of RF, ensuring maximum guarantees of accessible, adversary and, as a consequence, fair trial for those involved in the proceedings.
In particular, the Presidium of the FAC of NWD recommended the following:
- when verifying the lawfulness of judicial acts adopted by the first instance and appellate courts in those cases when the appellants refer to violation of the principles of law by the lower courts, or when the court of cassation itself comes to the conclusion that such violation has taken place, the latter should broadly substantiate its position from the legal and factual point of view in confirmation of the violation or compliance with the principles of law in the lower courts' proceedings;
- in elaboration of the given position, a special attention should be paid to basic provisions of the European Convention on the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 and Protocol thereto enforced by the European Court of Human Rights in defense of property rights and the right to justice;
- when calling a case for hearing and determining the extension of hearing, one should proceed from the necessity to provide to those involved in proceedings the opportunity to be heard by the court;
- in resolving on return or refusal to accept the appeal to the court of cassation, it should be taken into account that the European Court of Human Rights deems excessive legal or practical obstacles inadmissible; hence, any unsubstantiated enforcement of Articles 107 and 108 of the Code of Arbitration Practice of RF is considered as infringement of the subjective right to defense.
The Analysis of the FAC of NWD Rulings
The court executives are keeping track of the rulings on specific cases: the analysis of the supervising court setting aside the court rulings is done by judicial boards regularly, according to the outcome of a reported period, and is aimed at prevention of future judicial errors. But formation of a uniform and lawful practice of consideration of the appeals to the court of cassation is governed not only by the position of the supervising court, but also by the initiative of specific judges and court executives whose proposals are aimed at the analysis of legal problems attesting to either the absence of uniformity in the court practice of enforcement of individual legal rules, or to a stable existing practice which, in their opinion, needs certain modification. The above proposals to sum up and analyze certain issues are considered by the court executives and, as a rule, included in the half a year work plan of the court with appointment of those responsible for certain issues. Not only judges, but also employees of the Court Rulings Generalization Up Department, advisors of the deputies of the Chairman of the Court (postgraduates of the St. Petersburg State University) are involved in the above generalization and analysis, thus improving their professional qualification, taking into account interesting and important provisions of legal science and making it possible for the judges to see a certain problem at another angle, to differently comprehend the existing or developing court practice. It is on the basis of such generalization and analyses that the Presidium of the Court elaborates its recommendations.
Such approach is deemed to be right by the Court executives: the law and its enforcement do not stand still, the development and improvement of the Court practice always require new ideas and opinions.
The Court's Contacts with Legal Science
Doctrinal interpretation of legal rules permanently attracts attention of judges and the Court administration. The judges treat the position of scholars with great respect though, as is known, they are not obliged to follow such position in their law enforcement activities. Nevertheless, the usefulness of the Court and legal science interaction is obvious.
The latest example attesting such usefulness is the elaboration by the Court of recommendations on several issues pertaining to enforcement of Article 58 of the Code of Arbitration Practice of RF. The summary of Court rulings on prejudice issues prepared by a judge of the FAC of NWD served as a basis for applying to Doctor V.A. Musin, Head of the Civil Process Chair, Faculty of Law, the St. Petersburg University, with the request to prepare a respective legal opinion on specific issues formulated for elimination of problems related to enforcement of the above rule of law by the Court.
The Chair's opinion turned out to be extremely useful and important, having allowed the Presidium to elaborate the above recommendations which were adopted by Resolution of the Presidium dated 08.12.2000, No. 39-1. The Presidium recommended to the judges as follows:
- in enforcing part 1, Article 58 of the Code of Arbitration Practice of RF it is necessary for a tribunal entertaining a case to be aware of respective circumstances of the case. In its ruling, the court, with reference to part 1, Article 58 of the Code of Arbitration Practice of RF, needs to point out that a fact is recognized to be a common knowledge;
- when defining the circle of persons to whom provisions of part 2, Article 58 of the Code of Arbitration Practice of RF are applied, one should proceed from the fact that complete identity of persons involved in a previous case is unnecessary with the persons involved in another case;
- prejudicial nature of the circumstances established by the judgement rendered in a previous case, which has come into effect, is applicable only to the persons involved and to the circumstances relating to legal relations investigated by the court during proceedings in the previous case;
- subject to part 2, Article 58 of the Code of Arbitration Practice of RF the prejudice is applicable to statement by the court of certain circumstances in a judicial act which has come into legal force, provided such statement is of legal importance and can be considered per se as a fact incorporated in the subject of proof in a previous case;
- the judgement of a common court, which has come into legal force, on acknowledgment as invalid (partially or completely) of a regulation of a public authority which runs contrary to respective laws and other regulations, is the basis for enforcement of part 3, Article 58 of the Code of Arbitration Practice of RF.
The effectiveness of the court interaction with jurisprudence has become obvious also in discussing two drafts of essentially new Code of Arbitration Practice which were delivered to Court in 1999 and 2000. The comments and suggestions received as a result of these discussions in which scholars were also involved, made it possible for the judges to have a comprehensive and substantiated idea of the contemporary tendencies in the development of procedural law.
Arbitrazhnye Spory (Arbitration Disputes) Journal
The Court periodical will be three years old soon. The journal has found its readers, gone outside the North-Western District and occupied a worthy place in a row of legal periodicals.
In this connection it is important to note one of the fundamental principles in the work of the editorial board of the journal: accessibility of court rulings is conjugated with the idea of the so-called "feed-back". The journal publishes not only the rulings of the FAC of NWD, recommendations of the Court Presidium, articles by judges and Court administration officials. The journal is open for contacts with those involved in arbitration proceedings. On its pages one can find the materials prepared by scholars, counsels, employees of law enforcement agencies. Their point of view is interesting primarily because it makes it possible, due to accessibility of information interesting for its readers and provided by Court, to obtain a reaction important for the Court, to look at its rulings from aside, to identify certain defects in these and, as a consequence, grounds for their improvement.
The materials published in the journal are dedicated to the problems of law drafting, as well, they manifest vividly and conclusively the necessity of improvement of the current laws, expose a whole set of problems originating in connection with certain contradictions between the law and court rulings.
Seminars and Conferences
Participation of judges and Court Administration officials in seminars and conferences with papers and lectures has lately become traditional.
Only in 2000 the judges of the FAC of NWD delivered 111 lectures on different topics comprising many problems of current Russian law enforcement. The urgency of such events can be explained by the initiative of those involved in arbitration proceedings. The majority of seminars and conferences was organized by educational institutions, law firms, non-profit and profit organizations.
The interest to the rulings of the court of cassation is also governed by the fact that the Court always arranges its relations with participants of such events as a dialogue: all questions that the participants raise are answered by the speakers. Even if the answer to a particular question requires time, detailed study, it subsequently is published in the above journal or forwarded directly to the person who asked the question concerned.
In November 2000 the Court jointly with TACIS Bureau organized the seminar "Legal Protection of the Subjects of Economic Activities in the Russian Federation". TACIS program is aimed at improvement of legal environment for the subjects of economic activities in Russia, sharing of legal experience of the EU with law-makers and arbitration courts. Concrete tasks of the project for a number of legal trends were formulated at the seminar. The participants of the seminar, including representatives of the Court, have discussed legal problems of the region and defined the trends of regional activities of TACIS Bureau for the next months.
Computerization as an Element of Accessibility and Effectiveness of Justice
Actually the Court computerization started as soon as the Court was established in 1995. From 1996 all judges operate PCs and actively use legal databases. In 2000 all computers were united into a local computer network.
Databases, such as ConsultantPlus, Codex, Garant, have been installed in the Court and are updated every week. From 1997 most of the Court rulings are fed into the databases, and from 2000 - all judicial acts. Every citizen of the Russian Federation has access to these.
In order to improve such work, the classifier of judicial acts of the FAC of NWD in effect since 1998 was updated in November 2000.
In September 2000 the Court established a site in Internet. The site exhibits information on the name and location of the Court, its working hours, telephone and fax numbers of the Court chancellery, the Court structure, the procedure for reviewing the case materials by the participants in proceedings, about permits for entry, bank details for payment of arbitration fee, the procedure for filing the claims to the court of cassation, major problems that those filing such claims may have. The outcome of the Court's activities for the five years of its existence, information on the Court's publication and background of the Court may also present interest for Internet users.
The experience of the regions is of prime importance as applied to the topic of the conference. The FAC of NWD is open for cooperation with other arbitration courts, including with respect to the problems that were discussed at the conference.
A more detailed information on specific measures taken by the Administration of the FAC of NWD in order to expand accessibility of justice and increase its effectiveness may be always obtained from the Court against respective inquiries. However, one would like to rely on understanding of other courts and counter-initiatives, since only joint efforts can help overcome the existing problems without giving rise to new ones: the cassation function of circuit courts is designed to ensure uniformity of law enforcement throughout the whole Russia rather than in individual regions. That is why interaction of the courts of cassation is so important, whereas their isolation, lack of information about their rulings may become destructive factors in the development of really independent justice in this country, accessible and effective both in public opinion and from the viewpoint of every person or organization who feel protected by judicial authority from arbitrary rule of any persons encroaching on their rights and interests.