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A.T.Bonner,
PROFESSOR OF THE MOSCOW STATE ACADEMY OF LAW,
DOCTOR OF LAW



CERTAIN PROBLEMS OF ACCESSIBILITY OF JUSTICE IN ARBITRATION AND CIVIL PROCEEDINGS


      1. Dictionary of the Russian language by S.I.Ozhegov, along with other meanings of the word accessible, gives also the following : appropriate for many, for all (regarding the possibility of being used...)... Easy to be understood[1] I think that justice must be really accessible both in common and arbitration courts, i.e. appropriate for all individuals and legal entities in the sense of easiness to understand the principles of the judicial institutions organization and functioning and possibility to use it for defense of violated or challenged civil rights.

      If, regarding the first part of the above problem, chapter 7 of the Constitution of RF The Judicial Authority is consulted, a number of the following issues arise. Some of its fundamental provisions are not quite understandable, the others are not always and fully observed. Thus, in compliance with part 2, Art. 118 of the Constitution of RF the judicial authority is exercised through constitutional, civil, administrative, and criminal proceedings. And pursuant to Art. 126 of the Russian Constitution the Supreme Court of the Russian Federation is the highest judicial body in civil, criminal, administrative, and other cases that fall under the jurisdiction of common courts. As to the High Arbitration Court of the Russian Federation, pursuant to Article 127 of the Constitution it is the highest judicial body to settle business disputes and other cases considered by arbitration courts.

      Since Article 118 of the Constitution does not dwell on business disputes, the following dilemma arises - whether the cases adjudicated by arbitration courts should be regarded as civil ones, or the above constitutional rule requires supplementation with an express reference to business disputes?

      Nor the problems are solved by the Federal Constitutional Law On the Judicial System of the Russian Federation, the Federal Constitutional Law On Arbitration Courts of the Russian Federation, and the Code of Arbitration Practice of the Russian Federation with their detailed regulation of the principles of organization and functioning of arbitration courts.

      Besides, in connection with the essential change in procedural activities of arbitration courts and exclusion of the principle of arbitrariness as the principle of trial of business disputes, the terms arbitration court and the Code of Arbitration Practice seem to become outdated. It would be more correct to refer to such courts as business courts.

      The conclusions made by D.A. Fursov seem to be correct. In his opinion, a present-day branch of the procedural law is not governed by connections objectively existing in the system of real public relations, so it is impossible to determine its place in the system of law, and to recognize it as fundamental, secondary (derivative), or complex branch in a generally accepted meaning.

      The law of arbitration procedure should be defined as a similar, i.e. duplicating branch of law. The subject of duplicating is legal relations of civil procedure nature. The law of arbitration procedure should be recognized as a duplicating branch not only because it has to repeat the rules of the civil procedural law, but also because it seeks to regulate similar civil relations with other composition of privies.

      Being a duplicate branch, the law of arbitration procedure represents a double standard which, from the viewpoint of a system organization, has no right to exist but, actually, does exist in the system of law.[2]

      And in fact, it has so historically happened that the law of civil procedure and the law of arbitration procedure, the Code of Civil Practice (the CCP) and the Code of Arbitration Practice (the CAP) are in fact duplicating systems, in many respects repeating each other.

      In future the two simultaneously in force sub-branches of the judicial power will close in. But it is still a long way off. A formal analyses of the rules of the CCP and the CAP makes it possible to conclude that they are almost the same. But, in fact, the procedures of common and arbitration courts have nothing or almost nothing in common.

      The following should be pointed out. The modern arbitration courts established on the basis of the former state arbitration, in many respects, but far from always, go up to the level of a civilized business court. As to the High Arbitration Court of the Russian Federation, it employs highly qualified lawyers. As to local arbitration courts, it is far from always that their activities may be qualified as administration of justice from the viewpoint of compliance with the proceedings form.

      The following are, so to say, glimpses from an exhibition to illustrate the above. Scene of action: the regional arbitration court of Nizhniy Novgorod. Time of action: 9.30 a.m., 29 January 2001. That was exactly the date and the time that a trial of a specific business dispute was called on. At the appointed time the claimants representative is humbly trying to open the door of a respective court room. There are Judge N. and three unknown persons there. The party is having tea and animatedly discussing something. There is a box of expensive sweets and other delicatessen on the table. The judge suggests to the claimants representative to go out and close the door.

      An hour later he is admitted to the court room and finds out that the three persons who have been having tea with the judge during the past hour are representatives of the defendant - a legal entity well-known in the region. Two of them have just brilliantly won two other arbitration cases involving the legal entity concerned, which have been entertained by Judge N.; the third representative was to participate in the hearing called for 9.30 a.m. As a result of the tea party, without even bothering herself with any formalities and giving to the claimants representative no opportunity to make a motion, to present the case, etc., the judge declares that the dispute between the parties has already been adjudicated. The lady-judge announces that she has carefully, comprehensively, completely, fairly, and impartially examined the case materials, and it proceeds therefrom that the defendant mentioned in the statement of claim is improper and that is why she denies the action.

      The claimants representative inquires about the results of consideration of the motion demanding evidence that has been filed earlier in writing. The judge announces: Your motion has been considered and dismissed. However, the slow-witted claimants representative, desperately tries to argue that the case has not been tried on the merits. Besides, he says that the claimants counsel is busy in another court hearing in one of the Moscow courts that day, which fact is attested by a respective certificate, so this trial should have been adjourned (Article 120 of the CAP RF). And the judge suddenly remarks: Well, all right, Ill give you a chance. You may make a motion for taking a co-defendant to court and referring the action to the respective arbitration court at the co-defendants location. The motion was made and subsequently allowed, and the case allegedly adjudicated was referred for consideration on the merits to the Arbitration Court of Moscow[3].

      Another documentary case from practice of arbitration courts also reminds a bad joke. It was narrated to the author of this article by the late Head of the Chair of Civil Process at the Kuban State University Assistant Professor M.D. Matievsky who concurrently practiced law at that time. The matter concerned the Arbitration Court of Krasnodar Region.

      The judge reads out the operative part of the award, and it proceeds therefrom that the relief claimed by the claimant is allowed in full. The claimants representative instantly informs his principals respectively, and the latter congratulate and thank him accordingly. When a few days later the claimants representative reads the text of the motivated award, he feels as if on the verge of a stroke. The contents of the award is absolutely contrary to the operative part thereof announced by the judge pursuant to Art. 134 of the CAP of RF, and the operative part of the award available in the case materials, quite naturally, fully corresponds to the operative part of the motivated award.

      It is obvious that the situation in common courts with respect to observance of the principle of lawfulness is also far from being proper, in particular, with respect to the observance of the rules of the procedural law. But a story similar to that described above can hardly take place in common courts, since there is at least a certain witness there, I mean the clerk of the court recording proceedings. Unfortunately, there is no such person in an arbitration process, and pursuant to Art. 123 of the CAP of RF it is the judge who is responsible for recording. The question is whether this procedure is justified by the specific nature of legal proceedings in arbitration courts or it is established for reasons of economy? The answer is evident. It goes without saying that it is absolutely inadmissible for one and the same person to hold concurrently the office of a judge and that of a clerk of the court, and as to the economy - it is absolutely ostensible. The price of such economy is procedural oversimplification, additional opportunities for violation of the rules of the CAP, and in certain cases - complete lack of control over and arbitrariness on the part of the judge. Evidently, such specifics of arbitration process must be rejected.

      The same concerns the structure of appellate instances of arbitration courts, which are not organizationally separated from arbitration courts of first instance whose activities they are to supervise. We believe that the appellate instance of the arbitration court must not be a structural subdivision of the arbitration court of the federal subject, but a separate court. How to implement that this should be thought over[4].

      As to the prospect of concurrent existence of common and arbitration courts, it is reasonable at our particular historic stage. At the same time, their integration into a single judicial system is quite unavoidable in the future for the reasons of both the economic and legal nature.

      With transition of the Russian economy to a market economy, enhancement of the importance of the private capital and its owners role in the national economy, there will be less and less differences in the nature of cases considered by common and arbitration courts. As to the procedural rules of disputes adjudication in these courts, they are undoubtedly closing in, simultaneously enriching each other. Currently, not so many technical differences of the kind are left.

      2. The following issue also concerns the problem of accessibility of justice. In exercise of its power of legislative initiative, the Plenary Session of the Supreme Court of RF by its decree dated 19 September 2000 submitted to the State Duma the draft Law On Federal Administrative Courts in the Russian Federation. The explanatory note thereto states that the necessity to set up the administrative justice to conduct administrative proceedings (the finesse of the style is on the conscience of the authors of the explanatory note) is based on Articles 118 and 126 of the Constitution of the Russian Federation, whereby the judicial power is exercised through constitutional, civil, administrative, and criminal proceedings....

      The note also cites the judicial statistics which will be discussed below.

      The explanatory note to the law draft reads further as follows: Because of the complexity of the above category of cases, their consideration and correct adjudication require high professionalism and specialization of judges...

      In my opinion, setting up of a system of administrative courts, if this idea is put into practice, will be a mistake. The author hereof believes that he has the right to express his view of the problem at least because he has been studying it for nearly 40 years and has certain experience in trial of cases arising from administrative relations. It is correct to ascertain that a tribunal of qualified judges is required for adjudication of such cases, but do we not need a tribunal of qualified judges for adjudication of traditional civil disputes? Besides, it should also be noted that most of the disputes arising from administrative relations are easier to adjudicate than civil cases. Circumstances of administrative cases do not present any difficulty as regards facts and evidence. The main point here is to correctly apply and construe laws and normative acts. In other words, it is easier to adjudicate such cases according to general rules. Naturally, the judges in this case must be of high or at least fair professional skills, since for an insufficiently trained judge any case will present an insoluble problem.

      Let us address the statistics cited in the explanatory note to the above mentioned draft law and which have already been referred to by Professor M.S. Shakaryan in her report.

      As stated in the document, 350,000 cases resulting from administrative relations are annually adjudicated by the courts of Russia. It is not quite clear where these figures have been taken from. I think that the Plenary Session is being a little cunning. If the numbers of individual categories of disputes resulting from administrative relations, which are cited in the explanatory note, are summed up, we shall have only 224,000 cases, and not 350,000 cases. And what about the other 126,000 cases? Evidently, the matter concerns only cases related to administrative offenses (disorderly conduct, etc.)

      Then the question arises whether these 126,000 cases may be referred to particularly serious and complicated cases which must be tried only by judges of the highest qualification. As to the remaining 224,000 cases annually filed before Russian courts, it is hardly reasonable to set up interregional and circuit administrative courts, as well as a respective board of justices forming part of the Supreme Court of RF.

      Setting up such courts will hardly contribute to greater accessibility of justice. Besides, the issue of justice in cases connected with verification of lawfulness of actions of public and municipal bodies and their officials will persist even after specialized administrative courts are set up. The point is that in many cases a court adjudicating a purely civil dispute has concurrently to verify lawfulness of actions and resolutions of respective bodies and their officials. The question is: who will adjudicate such cases after setting up of specialized administrative courts?

      3. Pursuant to Article 120 of the Constitution of RF judges are independent and governed only by the Constitution and federal laws. And pursuant to Article 124 of the Constitution financing of courts is effected only from the federal budget and must secure complete and independent administration of justice following a federal law. Unfortunately, complete implementation of these constitutional provisions is still a long way off. According to the AiF weekly, up to 70% of their upkeep the Russian courts receive from local governors. Consequently, independent courts are actually kept by local authorities and, hence, they are should be ready to render all kinds of delicate services in return[5].

      Thus, according to some of the press, a certain very popular Russian governor has won in his own courts about one hundred claims seeking protection of his honor and dignity. Only once his claim was dismissed by the court of original jurisdiction, but the judgment was instantaneously reversed by the court of cassation. As regards this particular governor, justice is readily accessible for him, which cannot be said about his procedural adversaries.

      The conclusion is, apparently, quite evident. In precise pursuance with the Constitution the courts must be financed exclusively at the expense of the federal budget, and the financing must be reasonably sufficient and not so paltry as it is nowadays. As to governors, naturally, they must not be deprived of the right of relief. However, consideration of a claim of a governor or any other high rank local official in his/her own court must be recognized as impossible for ethical reasons with application of provisions of Article 123 of the Code of Civil Practice of RSFSR (the CCP of RSFSR) on reference of a case by a higher court from one court to another.

      Lets dwell on the issue of accessibility of justice in its direct meaning. There are crowds of citizens in common courts craving to hand in their legal actions to the judge during reception days and hours, and cases are considered sometimes not even during months, but years. It is mostly caused by circumstances of purely economic nature. Suffice it to say that the whole Russian judicial corps (common courts are meant here) comprises only 16,742 judges, with 36,000 - 38,000 judges being really needed.[6] Similarly are staffed the courts with other court employees (clerks, etc.). They are lacking premises, office equipment, paper, etc.

      As to arbitration courts, there is, with rare exception, no bureaucratic procrastination, but there is also a huge overload on judges. All this, intensified in many respects by formal traditions existent in trial practice, results in that a judgment is based not on an objective, but a formal truth. Similarly observed in arbitration courts, and if to call a spade a spade, then not observed at all, some principles of a legal procedure, for example, the principle of publicity (Article 123 of the Constitution, Article 9 of the CAP of RF).[7]

      During the last years the federal laws dated 30 November 1995 and 7 July 2000 have introduced a number of important amendments and addenda to the CCP of RSFSR. Actually, a reform of the civil procedure has been conducted. However, not all the novels can be recognized as fairly successful, including with respect to accessibility of justice. In particular, a court of appeal has become less accessible for individuals with regard to their possibility to obtain a reversal of ungrounded judgments. The appellate principle, in the sense of possibility for the appellate court to study the new evidence, formally introduced to the appellate process (part 2, Art. 286 of the CCP), by virtue of its antidemocratic nature has turned out to be inoperable, as could be expected. It is actually impossible to prove that respective materials could not be possibly produced before the court of first instance. Moreover, a situation may arise when the court of cassation may change its judgment or deliver a new one on the basis of available and additionally produced materials, which have been made known to the parties (para.4, Art. 305 of the current version of the CCP of RSFSR). Besides, it will be impossible to appeal against such judgments in the court of cassation. In my opinion, application of such rule in practice will be contrary to Art. 46 of the Constitution of RF and international legal acts.

      In his report I.A. Prikhodko suggested that the principle of taking collective decisions in a court of appeal should be rejected. On the face of it, such suggestion seems to be a revolt. However, I am of the opinion that it is correct on the whole. It is no secret that this principle is observed formally in a court of cassation, since two out of three judges with rare exceptions are unable to get familiar with the case materials before a trial on the merits. At the same time, even formal presence on the board of justices takes a lot of judges time. In reality even a speaker cannot thoroughly study the case materials. As a result the report comes to mere statement of the appealed judgment and sometimes even to citing of it. Besides, the content of the appeal and other materials being the subject of consideration by the court of cassation, with rare exceptions remains beyond the scope of the report, which runs contrary to the provisions of Article 301 of the CCP. Moreover, only a few minutes are left for adjudication of the appeal. All this leads to nervousness, haste, leaving unaltered frivolous and unlawful court rulings, and consequently, rouses quite grounded censure of the parties to the process.

      Our colleague from Finland, a judge, who is dealing with settlement of labour disputes, is present at the conference. Yesterday, 30 January 2001, she attended a session of the Moscow City Court. Our Finnish colleague familiarized herself with the docket for that day. There were altogether 28 cases on the dockets. True, judges in the trial panel periodically took turns. However, just try to calculate how much time could at an average be allocated for consideration of each of these 28 cases during a working day (from 9.00 a.m. till 18.00 p.m. with a small break)?

      Now I shall make use of the question put by the Finnish colleague in order to support once again the suggestion made by I.A.Prikhodko. Had all these 28 cases been considered not by a panel of judges, but by sole judges of the Moscow City Court, many of whom are truly highly qualified, and some have the highest qualification, the results would have been much better. A sole judge adjudicating an appeal in the court of cassation would have much more time to study the case materials, to consider the case on the merits, and to draw up a determination on the appeal. Rejection of the formal collective case consideration would enhance the role and importance of the sole judge chairing in the court session, would improve the results of appeals and protests consideration, would obviate or reduce grounds for complaint of the parties to the case. But of course, the problem respecting the premises for cases consideration will arise at once, but this is another, although also very important, problem.

      Our Finnish colleague was perplexed at the insignificance, from her viewpoint, of some of the matters which were considered by the court of cassation. She believes that there is no need to hear the explanations by the parties to the dispute, it would be quite enough to submit respective pleadings which will be examined by the court of cassation. But the notion of an insignificant matter is rather subjective. What seems insignificant to one person, to another is vitally important.

      Now I would like to dwell on the issue of combination of oral and written proceedings in the court of cassation. I cannot exclude a situation when in some of the cases it is possible to verify lawfulness and justification of a judgment on the basis of an appeal and other written materials. But the trouble is that an overwhelming majority of the cases in this country are conducted without participation of attorneys. Hence, there is the problem of quality of procedural documents, which in many cases are drawn up by legally ignorant persons. Therefore, today it is hardly possible to limit the number of recourses to the court with unimportant matters, nor it is possible to reject hearing of explanations by the parties to the process, provided they are present at the hearing by the court of cassation. Moreover, I think the courts of cassation and supervision must take on the staff a modest, but at the same time important figure, namely a clerk of the court, and also to supplement the CCP with the rule necessitating to keep records in courts of cassation and supervision.

      6. In his report I.A. Prikhodko raised also an issue of the role of a public prosecutor in a civil process. Is there any actual use in a public prosecutors participation in trials of certain categories of civil cases? Unfortunately, on the whole, the effect of a public prosecutors participation is very low. In cases where a public prosecutor is obliged to participate, his role is reduced, with rare exceptions, to making a formal opinion to support or deny the action. There are exceptions, but, unfortunately, they do not change the situation.

      Regarding comparatively recent addenda to the law, related to establishment of the so called Fund of Support of the Department of Public Prosecution, and as a former officer of such office, I must say that I am greatly ashamed of these novelties. Since with availability of such Fund it is possible to say to an accused in the process of a criminal case investigation: Please, indemnify the damage that has or has not been caused by you, and we shall see whether to institute criminal proceedings against you! This smells very badly. It is my opinion that this legislative novel must be urgently rejected.



[1]  S.I.Ozhegov, Slovar russkogo yazyka (Dictionary of the Russian language), Moscow, Russian language, 1981. p. 158.
[2]  D.A. Fursov. Predmet, sistema i osnovnye printsipy arbitrazhnogo protsessualnogo prava (problemy teorii i praktiki (The Subject, System, and Main Principles of the Law of Arbitration Procedure (Problems of Theory and Practice). M.: Infra-M, 1999., p. 31.
[3]  The Arbitration Court of Moscow. Case # A40-5607/01-52-84
[4]  See, for example: I. Khrennikov, Arbitrazh protiv oligarkhov (The Arbitration Against Oligarchs). Benjamin Yakovlev believes that the operation arrangement of arbitration courts should not be changed, in Segodnya ( Today) of 6 March 2001.
[5]  See V. Sivkova , SUDerzhanki ( a non-existent word differing in spelling in only the second letter u instead of o - from the Russian word Soderzhanki which means kept women, while the three first letters SUD mean court in Russian - translators note), AiF, 03.11. 2000.
[6]  See: the interview A Judges Mantle Does Not Fit Everybody given by the Chairman of the Supreme Court of RF V.M.Lebedev to Rossijskaya Gazeta (Russian Gazette) published on 28 November 2000.
[7]  See, for example, the article by V. Portnov, Kto v sude glavnee: sudya ili zakon? (Who is Pivotal in the Court: the Judge or Law?), Rossijskaya Gazeta, 29 June 2000.


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