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D.A. Fursov,

I.V. Kharlamova,


      The accessibility and effectiveness of justice in the Russian Federation depend not only on improvement of the judicature and judicial system, but also on solution of multiple related organizational problems among which the following will be briefly noted:

      1.  Manpower policy envisaging an open nature of information on every candidate for a judge and the competition procedure of their selection based on a system of objective criteria rather than on subjective estimate by the members of the examination and qualification boards.

      The open nature of information presupposes that the data on the professional activities and personal qualities of the candidate for a judge will be complete, and the judge should be ready to exercise his office duties when the cases are distributed not according to the norms, but as necessary.

      The system of criteria should include mastering of the general and branch theory of law, problems of judicial practice formation in consideration of individual categories of cases, analytical abilities and skills, health condition and psychological training allowing not to react directly to the actions of those participating in the proceedings, however acute the conflict between these may be, and other requirements necessary for the discharge of office duties in the conditions of sole and collective consideration of disputes.

      Introduction and spreading in the last decade of commercial conditions for getting a higher juridical education may entail devaluation of the diploma of a higher education as such, and this will require arrangement of after-high school examination on a state level.

      Promising seems to be formation of the judicial corps by purpose-oriented selection of candidates from among assistant judges recruited on a contractual basis with the prospect of contract extension or refusal to extend the contract.

      2.  Elevation of the status of a judge, which reflects the role of the judicial corps in implementation of the judicial authority as a variety of governmental authority and a true evaluation of the judges’ professional activities, the society’s demand for the judges.

      Remuneration of a judge as that of any hired labor should not be less than his cost value.

      Remuneration of a judge should not be the same as that of other clerks of the governmental and municipal authorities, since none of the latter takes independently such complicated decisions of similar intensity.

      A sufficient welfare of the judges is a minimal guarantee of their incorruptibility and impartiality, i.e. the guarantee needed by every social layer and the society as a whole.

      3.  Provision of information to every court instance requiring automation of clerical work and distribution of cases according to the rules established in advance, as well as timely access to normative legislative acts and court rulings.

      Creation under the auspices of all branches of the judicial authority of a single scientific center seems both reasonable and necessary. Such necessity is dictated by a number of circumstances:

      a)  in the present-day conditions a process is under way of daily accumulation of court rulings which are analyzed insufficiently;
      b)  there are a lot of questions variously acute for the common, arbitration, and constitutional courts;
      c)  all judicial institutions require not only the study of problems related to formation and development trends of the judicial practice, but to its systematization, storing of court rulings in the format suitable for use;
      d)  dissemination of analytical forces in the judicial institutions with no permanent connection with the fundamental science can ensure only the solution of current tasks of summarizing the court rulings;
      e)  administration of justice and the analytical activities proper are different kinds of legal reality comprehension; therefore these should supplement rather than substitute each other;
      f)  all branches of judicial authority have an objective basis for interaction and for cooperation with the research sector of science, since the subject of study is not the judicial casuistry per se, but the nature and the kind of connection between the repeated factual circumstances and applicable rules of law;
      g)  systematization of the provisions of law formed on the basis of the court rulings and containing new knowledge of normative legislative acts is capable of providing the judicial corps with the information on their uniform application required for rendition of motivated judgements, of preventing multiplication of judicial errors and revocation of judicial acts entailing an additional workload in the course of a new consideration of the cases;
      h)  scientific expert examination of the provisions of law, as well as participation in joint activities of the judicial corps will make it possible for highly qualified specialists to exceed the established limits of consideration of particular cases and to frequently discharge a function of forecast necessary for reasoned discussion of new problems;
      i)  the systematic analysis of the court rulings is necessary not only for assistance in resolution of particular cases but also for elaboration of consideration methods applicable to individual categories.

      4.  In discussing the judicature issues, it is necessary to use local and foreign experience attesting respectful attitude to the existing national traditions in views on the judicial system.

      Any efforts of structural changes in the system of common (formation of the vertical of administrative courts) and arbitration (setting up of specialized courts for entertainment of bankruptcy and tax cases) courts, and, moreover, recurrence of suggestions to merge two branches of the judicial authority are possible only when the judicial institutions to be set up will operate evidently better than their preceding analogues.

      5.  Involvement of judges in law drafting is necessary not only on the conceptual level, but also in discussing the laws article by article.

      For instance, the necessity of differentiation in the duration of proceedings depending on the complexity of substantive relations determining the contents of the dispute is apparent for judges.

      The European standard of a reasonable duration of proceedings is observed in the Russian Federation only in the highest court instances for which the duration of proceedings is unlimited by the procedural law. A formal instead of realistic duration of proceedings in some of the court instances may negatively affect the quality of justice.

      Another example is related to involvement of arbitration assessors in administration of justice. Democratization of proceedings should not be a self-purpose here. Vesting of judicial authorities with the arbitration assessors may take place only in a limited number of cases (related to protection of intellectual property, evaluation of accounting data, etc.), where the involvement of arbitration assessors is really warranted in absence of special knowledge with the judges appointed to entertain the case.

      6.  Acute also is the problem of close interaction between the branches of judicial authority and court instances inside each of these.

      It is required to use every form of the experience exchange between common, arbitration, and constitutional courts.

      It would be reasonable to sum up every month the results of analysis of the grounds for revocation of judicial acts to discuss the court rulings in judicial boards and tribunals.

      Of interest is the suggestion to vest the cassation instance with the authorities to appeal and with the right to assess the circumstances of the case, new evidence in the aggregate with the previously adduced ones. The case may be referred to a new consideration only if the circumstances cannot be verified in the court room.

      Such suggestion is related to the necessity to estimate the evidence not by an aggregate of impressions, but by the presence or absence of legally meaningful characteristics, to the possibility to consider the case in full using the available and additionally submitted documents, to the professional potential of the judges of the cassation court and, the most important, to the necessity to ensure the progress of the case rather than its return prior to consideration by the highest instance.

      7.  A system of measures to prevent and reveal corruption inside the judicial community is necessary.

      Qualification boards of judges are the bodies whose competence comprises protection of the judicial authority prestige. But it is difficult for them to implement the task in the present-day conditions.

      The nature of qualification boards is that that they can take a decision only on the basis of the materials available with them and, as a rule, with no cooperation with law enforcement agencies.

      The collective form of the qualification board meetings should be preceded by an unimpeded operative work of respective forces specializing in anti-corruption activities.

      It seems reasonable to fix in the Rules of Arbitration Courts the duty of the court administration to carry out thorough verification of all stated facts of corruption in cooperation with special services, as well as their participation in preventive measures.

      8.  Arrangement of the work of judicial institutions in line with their principal designation presupposes, with due regard for the experience of Russian courts in the nineteenth century, introduction of a special, rather than general, procedure for work with applications of individuals and entities.

      In common court the volume of communications reaches gigantic amounts due to displeasure of depositors deceived by organizers of financial pyramids and bankruptcy of commercial banks.

      A similar situation in the arbitration courts is caused by interminable proceedings in cases of redistribution of property by way of privatization, bankruptcy of companies, including those employing the majority of a town’s population, which affect the interests of large groups of population representing both sides in a dispute.

      In such conditions the correspondence between the court and individuals or entities is not reasonable in a generally accepted form. If the applicants disagree with the merits of the judgement rendered, they can appeal to a higher judicial instance. If the complaints are caused by the lack of certainty on the part of the applicants that the judges are unbiased, they may recuse the judge concerned in a court hearing. The complaints against the actions of a judge are considered by qualification boards.

      Multiple communications with the creditors, deputies of all levels, other applicants distracts the judges and court administration from the discharge of their office duties. Hence, applications of individuals and entities to the courts on the matters related to resolution of disputes, as well as correspondence with the applicants require special normative legislative regulation for the court.

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