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N.M. Korshunov,
DOCTOR OF LAW,
PROFESSOR

I.Yu. Akkuratov
DOCTOR OF LAW


ACCESSIBILITY OF RELIEF AT LAW AND EFFECTIVENESS OF PROTECTION OF CIVIL RIGHTS OF MUNICIPALITIES


      A relief at law is a principal and determinative form of the mechanism safeguarding fundamental human rights and freedoms (Articles 18, 46 of the Constitution). Its priority is legislatively fixed also in the sphere of protection of economic (entrepreneurial) rights (Art. 11 of the Civil Code of RF (the CC of RF)), protection against wrongful acts of public authorities and officials (Art. 46 of the Constitution). In the present-day situation the court is becoming more and more a universal body of protection of violated and challenged rights irrespective of the branch of law regulating them and the legal status of interested persons. This principle is best expressed in Art. 22 of the draft Code of Civil Practice (the CCP). It says that all cases of interested persons related to protection of violated or challenged rights and legally protected interests fall within jurisdiction of common courts, unless pursuant to a federal law their protection is within the competence of any other judicial body. Municipalities participating in cases related to protection of their rights and legally protected interests in common and arbitration courts are no exception. The court activities determine, in many respects, effectiveness of protection of rights on the whole.

      The theory of effectiveness of justice in civil cases ... dwells on a complex of issues connected with the social role of the judicial procedure. To evaluate it, it is necessary to correlate the result of the civil procedure on a national scale with that ideal model of the result which is expected by the state from this kind of procedure and is provided for in a law, i.e. with the objective of justice in civil cases[1]. Such global conception, presumably grounded from the viewpoint of the pure science, in fact lacks for real possibilities of application since, in general, it is neither possible nor necessary to simulate the result of the judicial procedure on a national scale. Not to mention that this viewpoint puts a court in the position of a states implement, it represents an independent branch of the state power.

      In V. F. Yakovlevs opinion, effectiveness of arbitration courts is determined, to a great extent, by efficiency, quickness of adjudication of cases and complaints, and the quality of justice is determined by the quantity of reversed and reviewed judicial acts[2]. It should be admitted that these indices reflect only approximately the results of activities of judicial authorities evaluated thereby. But nothing more practical and precise has been developed so far.

      Today the problem of enhancement of effectiveness of a relief at law moves from the sphere of the judicature to the sphere of the court procedural activities[3]. Intensification of work in this direction resulted in preparation of the drafts of the CCP of RF and the CAP of RF. At the same time, the problem of ensuring accessibility of relief is becoming an object of keen attention of theorists, legislators, and practicians.

      At first sight, the accessibility of relief may be regarded as a warranted possibility to resort to the procedure of protection of violated or challenged rights at any time and with a minimum time consumption and financial costs. However, this egocentric projection of accessibility closes on an individual who is in need of a relief. A hypertrophied support of only this aspect may bring a court down to the feeble state of a body incapable to cope with the purposes of justice which, by its definition, should not (and is incapable to) try all legal conflicts arising in the society.

      Accessibility of a relief at law in the above meaning is good within certain limits which, if exceeded, result in the decrease of both the total effectiveness of a relief and its accessibility. The overload of courts and protraction in cases trial are the first features of the decrease of effectiveness and accessibility of a relief. Shelving a case in a courts safe and stay of a limitation period do not further actual protection of a violated right.

      Therefore, the objective aspect of accessibility of a relief at law is manifested in taking over the cases requiring court trial, as well as in timely and correct consideration and adjudication thereof.

      Hence, to enhance protection of rights, it is necessary to upgrade the quality of a relief at law, and this presupposes its subjective accessibility threshold extension. It is necessary to save courts from the cases and, first of all, minor and incontrovertible cases, which could be settled out of court and do not require involvement of justice. Further, it is necessary, as it is fashionable to say nowadays, to conduct permanent monitoring of judicial costs, to offer an incentive to the parties in order to enable them to act in the direction of an amicable settlement of their disputes. It is necessary to reduce (to bring down to the optimum) the activity of a court in a civil (arbitration) process by letting the parties to find the truth themselves and the court to judge which party has managed it better.

      At the same time, accessibility perceived as the possibility to freely apply to a court, must be encouraged by the state and guaranteed to the citizens. By virtue thereof, it is necessary to improve institutes of delayed payments of a statutory duty and exemption from payment thereof. As to municipalities, it is not topical since at present and in future they are exempted from payment of statutory duties.

      The right of relief, purposes and tasks of a judicial procedure, decentralization of judicial instances, reduction of the cost and speeding up of proceedings, diversification of a process (differentiation of judicial procedures), development of out-of-court remedies are the means ensuring accessibility of relief.

      Accessibility of justice is, first of all, realized in the right of relief, free access to a court for protection of a violated legal right or a legally protected interest. Art. 3 of the CCP provides for a universal right of relief guaranteeing every interested person a possibility to apply to a court for protection of a violated or challenged right following a statutory procedure. Art. 3 of the draft CCP reproduces this rule with the only deviation: it has no reference to every interested person. It seems that it is not a matter of constricting a circle of interested persons, but of a mere editorial clarification, since the word every seems to be excessive in combination with the word interested. The contents of para 2, Art. 4, articles 36, 40, 47, 48 of the draft CCP convince of the same.

      Pursuant to para 4, Art. 40 of the draft CCP, municipalities may be the parties to a civil process. This provision fills in the gap in the law of civil procedure. The current CCP has no rule admitting participation of a municipality in a civil process, since no such subject of law can be found in the list of parties participating in a case (Art. 29 of the CCP of RSFSR), and Art. 42 of the CCP cannot be applied to such parties, either.

      However, their joining (involvement in) a process and, especially, the conduct of the process seems to be a not so simple solution as it is in relations of regular legal entities.

      Speaking about the cases directly affecting the rights and interests of municipalities, the latter may participate in a process only as parties in whose interests or against whom an action is filed (a case has been initiated). The right to file an action in the interests of municipalities is exercised by local authorities (the head and branch departments of the local government, etc.), a public prosecutor. It follows directly from para 2 , Art. 125 of the Civil Code of RF that on behalf of municipalities the local authorities through their actions may acquire and exercise rights and obligations within their competence established by the acts defining their status.

      Governmental and local authorities, as well as legal entities and individuals may act for and on behalf of the municipalities in cases and following the procedure established by federal laws, decrees of the President of the Russian Federation and the Russian Government, normative acts of the subjects of the Russian Federation and of municipalities.

      Pursuant to Art. 16 of the Law of the Moscow Region dated 27 June 1996 On the Local Government of the Moscow Region the local authorities are: a) a representative body of the local government - the Council of municipal deputies (henceforth - the Council); d) an executive and administrative body of the local government - the municipal administration (henceforth - the Administration). The Statute of the municipality may provide for other bodies of the local government. The executives of the municipality may be: a) the Head of Municipality; b) the Chairman of the Council; c) the Head of Administration; d) other officers of the municipality.

      Municipalities Statute may provide for the following variants of organization and competence of local authorities and their executives:

      a)  unless the post of the Head of Municipality is provided for, the Council
       elects the Chairman of the Council and appoints the Head of Administration;

      b)  if the post of the Head of Municipality to be elected by the Council members from amongst themselves is provided for, the Chairman of the Council is not elected, the Head of Administration is not appointed, and the powers of the Chairman of the Council fixed herein and in the Statute of the municipality are exercised by the Head of Municipality;

      c)  if the post of the Head of Municipality to be elected by the members of the local community is provided for, and pursuant to the Statute of the municipality the Head of Municipality is a member of the Council with the casting vote, the Chairman of the Council is not elected, the Head of Administration is not appointed, and the powers of the Chairman of the Council fixed herein and in the Statute of the municipality are exercised by the Head of Municipality;

      d)  if the post of the Head of Municipality to be elected by the members of the local community is provided for, and pursuant to the Statute of the municipality its Head is not a member of the Council, the Council elects the Chairman of the Council, and the Head of Administration is not appointed.

      Pursuant to Art. 20 of the aforementioned law the Head of Municipality:

      a)  directs the activities of the local government in the territory of the municipality;

      b)  exercises all powers of the municipality apart from those referred to the competence of the Council by federal laws and laws of the Moscow Region, and the Statute of the municipality;

      c)  directs the activities of the Administration pursuant to the Statute of the municipality;

      d)  sings resolutions of the normative nature passed by the Council in cases provided for hereby.

      The Head of Administration carries out executive and administrative activities within the powers, conferred by the Statute of the municipality pursuant to the federal laws, the laws of the Moscow region, and other normative acts.

      The Chairman of the Council:

      a)  organizes the work of the Council;

      b)  signs resolutions of the Council;

      c)  ensures control over execution of the Councils resolutions;

      d)  exercises other powers defined by the Statute of the municipality.

      The powers of other executives of the local government are established by the Statute and other normative legal acts of the municipality.

      Pursuant to Art. 7 of the Statute of the Lyubertsy District of the Moscow Region the local government of the Lyubertsy District comprises the following:

      -  a representative body - the Council of Deputies of the Lyubertsy District;

      -  the Head of the Lyubertsy District;

      -  an executive and administrative body - the Administration of the Lyubertsy District.

      Pursuant to Art. 9 of the Statute, the Administration of the Lyubertsy District is a legal entity, and pursuant to Art. 17 the Head of the Lyubertsy District is an elective executive directing activities of the local government in the territory of the District.

      The Head of the Lyubertsy District is a member of the representative body of the district and directs the activities of the Administration of the Lyubertsy District, ensures concerted functioning and interaction of the bodies of the local government of the District, acts as a guarantor of the provisions of the Statute of the Lyubertsy District.

      The Head of the Lyubertsy District has a wide scope of powers, including the right of possession, enjoyment, and disposal of the municipal property; decisions on the submissions of the Committee on Land Resources and Land Use related to selection of a plot and agreement on location of objects under construction; signing of contracts and agreements on behalf of the District; other powers pursuant to the current laws and the Statute of the Lyubertsy District.

      But in courts the cases of organizations (legal and other persons) are conducted by their bodies acting within the powers granted to them by law, other normative acts, or the constituent documents, and by their representatives. Therefore, indirect participation and double (sometimes, triple) representation - such is the nature of participation of municipalities in a process. It is impossible to ensure their participation in a civil process otherwise.

      Pursuant to Art. 54 of the draft CCP, in court the cases of municipalities are conducted by executives of the local authorities authorized in the statutory manner. It is evident from the foregoing that the Head of the representative body of the local government and the Head of Administration (of the executive body) of the local government are such executives. However, they are entitled to delegate their powers to executives of other bodies of the local government according to the established procedure. Besides, in a number of cases the law expressly determines the body which must act on behalf of a municipality and thus determines a specific executive who, pursuant to the draft CCP, will conduct a case of the municipality in court.

      Thus, for example, municipalities become respondents in claims for damages incurred by an individual or a legal entity as a result of unlawful acts (omission to act) of the local authorities or their executives (Art 16 of the CC). However, in such proceedings the respondent will be represented by a respective financial or another authorized body (articles 1069-1070 of the CC). If the claim is met the recovery of sums of money is effected from the local budget, and in lack of money - at the cost of other property comprising the respective treasury.

      It seems that this rule of the draft CCP cannot be regarded as abolition of the institute of the legal representation of municipalities. A respective executive may conduct the case both personally or through a respective judicial representative, since Para 3, Art. 58 of the draft CCP establishes a possibility to issue a power of attorney on behalf of the local government by a person authorized respectively by a resolution of the local government. Among such bodies are representative and executive bodies of the local government, and the latter may be both collective and sole, but each functions within its competence.

      The aforesaid equally concerns arbitration proceedings. Ensuring access to justice is deemed to be the main purpose of improvement of the legislation of arbitration procedure[4].

      And accessibility of justice is usually regarded as one of the conditions of its effectiveness.[5]

      Drafters of the CCP of RF were intent to reveal the obstacles that impeded an adequate relief, and in their efforts they took into account the standards of the Council of Europe and, in particular, the provision of the European Convention On Protection of Human Rights and Fundamental Freedoms[6] on the right of every individual to fair public case trial within reasonable time by an independent and impartial, statutory established court .

      The first obstacle, most gravely complicating the activities of arbitration courts, diminishing accessibility and effectiveness of a relief, is considered to be the irregular working load on judges, which results from a stable growth of the quantity of cases in arbitration courts and insignificant increase of the number of judges and arbitration courts staff.[7]

      In 1999 about 5 million cases were tried in common courts.[8] Arbitration courts have considered about 600 thousand cases for the same period of time, out of about 500 thousand having been considered by the first instance; thus, taking into account the peculiarities of the system of arbitration courts the load per a judge there was also rather considerable.[9]

      The problem of optimization of the number of cases is supposed to be solved by measures of both the strategic and tactical nature. The first group includes extension of possibilities to use different reconciliation procedures, arbitral disputes trial, enhancement of the quality of the legal assistance, and strengthening the role of professional counsels (their accreditation at the arbitration courts and appointment by court as legal representatives for persons who are unable to pay themselves for the services of a legal representative).

      Planned measures connected with extension of possibilities to compromise a dispute at any stage of the process and obliging the judge to take measures for settlement of a dispute between the parties prior to a trial; introduction of new ways of reconciliation of the parties (possibility to settle a conflict between the parties with a mediators assistance); release of judges from technical functions (keeping of records in arbitration courts), etc. may be attributed to the second group of measures.

      Great significance is attached to the problem of time optimization of civil cases consideration by establishing streamlined trial procedures of certain cases. In common courts this trend was revealed long ago in numerous rules of the CCP which stipulated the following deviations from the general requirements of the procedural form: sole consideration of cases in the first instance, reduced time of trial of cases arising out of the so called public relations, introduction of a procedure of judicial writs and warrants, etc.

      Today the system of arbitration courts faces the necessity to introduce similar changes. At the same time, introduction of a streamlined trial procedure of the so called indisputable actions is reasoned somewhat unusually. Thus, T. Andreeva writes that from the viewpoint of the parties to the proceedings, a court may adjudicate a case either rightly or wrongly, the defeated party will always be unsatisfied with a judgment. But the court should at least adjudicate a case quickly, determine the position of the parties, and only then it will be possible to speak about effectiveness of justice.[10]

      This phrase unambiguously shows that a decisive turn is made to a formal truth and orthodox and adversarial nature of a civil process. The phrase surprisingly repeats the theses of V.Habscheids report made at the International Congress on the Procedural Law held in Ghent in 1977. Speaking on behalf of 16 countries he declared the following: The world we live in was, is, and will always be imperfect. That is why we shall never manage to create such justice which judgments would always correspond to the actual truth. But what we are able to do is to guarantee every individual that he will be treated with respect and equity, and that both parties to a dispute will be treated as legally equal persons. They must have equal possibilities and chances. The principle of equality should govern in a process.[11]

      The aforesaid unambiguously reveals the modern, corresponding to the current CAP of RF understanding of the problem of the objective truth establishment in an arbitration process. However, one should not think that this conception is incontestable and will raise no objections. As D. A. Fursov rightly remarked: There is no reason to speak about any objective truth as the purpose of arbitration proceedings. The current law of arbitration procedure fixes a construction of a formal truth which, depending on circumstances revealed, may coincide with or differ from the objective truth. On the basis of the formal truth, recognized as lawful and grounded is not a judicial act corresponding to the actual circumstances of a case, but that corresponding to the case materials gathered exclusively on the initiative of persons participating in the case.[12]

      Hence, availability of several judicial acts opposite in their legal qualification of parties relations is not contrary to the law: in one case the court, proceeding from the adduced evidence, recognized the contract as concluded, in the second - as invalid, in the third - as not concluded.[13]

      In order to issue an opposite judgment in another case, a court does not have to reverse a previous judgment which qualifies the transaction differently.[14]

      The more successively the principles of an adversarial nature and formal truth are realized in the procedural law and its application, the more frequently the above mentioned situations will occur. The authority of justice and the extent of lawfulness in this case will suffer no less than from an excessive activity of a court and domination of review instances interfering with administration of justice in civil cases.[15] The history shows that the civil procedure has been developing under the constant pressure of these two polar forces. The problem is to ensure the balance between them.

      To reduce the time of cases trial, a special significance is attached to reconciliation procedures, where a judge is responsible for taking specific measures. Development of reconciliation procedures is especially actual for arbitration courts, since it allows to avoid the break of partnership in business and furthers stability of economic relations.
      At present, however, there are no trial procedures of conflicts arising in the course of exercise of public powers by local authorities, from improper exercise of powers by the local government, in redistribution of the public property, in determination of the share of the taxes payable to the federal budget, and in the course of use of resources granted in the form of subsidies, subventions, and grants, etc.

      A pragmatic, although contestable idea to restrict application of a relief at law in cases with participation of municipalities is expressed in the respective literature. This idea is based on perception of the limited nature of powers of a court in delivery of a fair judgment. Developing the viewpoint on a law as a minimum of morals, we must unavoidably admit that a judgement realizes a minimum of fairness. From this viewpoint, transfer of a municipalitys dispute to the administrative sphere, including by way of establishment of a special administrative instance composed of representatives of interested parties, is not devoid of attractiveness.[16] At the same time, another viewpoint is known that goes back to the antic Greece, and according to it lawful and fair mean the same (Socrates). Aristotle wrote that the notion of fairness is connected with the idea of a state, since the law as a criterion of fairness is a regulating rule of political relations.[17] Even in the medieval Europe a law was still regarded as a perfect moral way of life rather than an order of authorities.[18]

      Decentralization of judicial instances was considered to be an obligatory feature of accessibility. At least this was how that feature was interpreted as applicable to peculiarities of the Soviet system of proceedings in a court of cassation.[19] This circumstance per se cannot be decisive for ensuring accessibility of a relief in the form as we view it. It should always be kept in mind that apart from geographical remoteness and a number of controlling judicial instances, observance of the principles of justice underlying the work of these instances plays an important role.

      In this connection the arguments of the drafters of the CCP supporting the idea of preservation of the formed appeal procedure in the system of arbitration courts seem to be unpersuasive. T. Andreeva ascertains: The practice has shown that availability of an appellate instance in the same court facilitates access to justice (there is no need to send a case for examination to another court; hence, transportation and postal costs are reduced, etc.), since such appellate instance is brought closer to the parties to a process[20]. These words cannot serve as an argument, because the most important principle of justice, i.e. nobody can judge his own case is undermined. At least, this has always been well understood in the system of common courts. Judgments issued by a regional court in civil cases will never be reviewed either by the Presidium or, more over, by the judicial assembly for civil cases. By leaving this institute unchanged, the drafter risks to bring down the an arbitration court again to the level of a public arbitration.[21]

      Therefore, in our opinion, enhancement of accessibility and effectiveness of a relief at law today must not be aimed at the removal of the former procedural obstacles and reduction of the cost of proceedings, but at establishment of a well thought-over decentralized system ensuring access to a court for the cases which really need justice, with a simultaneous increase of the cost of a court procedure and a number of exemptions at the stage of a case institution.



[1]  A.T. Tsikhotsky, Teoreticheskie problemy pravosudiya po grazhdanskim delam (Theoretical Problems of Justice in Civil Cases). Novosibirsk, 1997, p. 136.
[2]  V.F. Yakovlev, O povyshenii roli arbitrazhnuh sudov v sferah pravoporyadka i economiki, v: Khozyaistvo i pravo (Increase of the Significance of Arbitration Courts in the Sphere of Rule and Order and Economy, in: Economy and Law). 2000, No. 3, pp. 4-5.
[3]  See: Istina rozhdaetsya v spore. A pravogo nazyvaet sud. (The Truth is Born in a Dispute. A Court Determines Who is Right). The interview given by M. Yukov to The Russian Gazette. October 11, 2000.
[4]  T. Andreeva, Obespechenie dostupa k pravosudiyu - glavnaya zadacha sovershenstvovaniya arbitrazhnogo protsessualnogo kodeksa Rossijskoj Federatsii (Ensuring Access to Justice is the Main Purpose of Improvement of the Code of Arbitration Practice of the Russian Federation), Khozyaistvo i pravo (Economy and Law). 2000, No. 9, p. 23.
[5]   ... all mentioned reasons, which caused the necessity to introduce amendments and addenda to the Code of Arbitration Procedure of RF, are interconnected by one common purpose - the purpose of ensuring access to justice in the sphere of business and other economic activities, enhancement of effectiveness of a court protection of businessmen (T. Andreeva., ditto, p. 24).
[6]  The Convention has become effective in the Russian Federation as of May 5, 1998. From the moment Russia has become the subject of the jurisdiction of the European Court of Human Rights.
[7]  T. Andreeva, ditto, p. 26.
[8]  V. Lebedev, Ot kontseptsii sudebnoj reformy k novym ideyam razvitiya sudebnoj sistemy (From the Concept of the Judicial Reform Towards New Ideas of the Judicial System Development). Rossijskaya Yustitsiya (The Russian Justice). 2000, No. 3, p. 2.
[9]  V.F. Yakovlev, O povyshenii roli arbitrazhnyh sudov v sferah pravoporyadka i ekonomiki (Enhancement of the Significance of Arbitration Courts in the Spheres of the Law and Order and Economy). Khozyaistvo i pravo (Economy and Law), 2000, No. 3, pp. 4,5.
[10]  T. Andreeva, ditto, p. 26.
[11]  W.J.Habscheid, Les principes fondamentaux du droit judiciaire prive (The Fundamental Principles of the Private Law), in: Towards a Justice with a Human Face. The First International Congress on the Law of Civil Procedure, Antwerpen/Deventer 1978, p.48.
[12]  D.A. Fursov, Predmet, sistema i osnovnye printsipy arbitrazhnogo protsessualnogo prava (problemy teorii i practiki) ( The Subject, System, and Main Principles of the Law of Arbitration Procedure (Problems of Theory and Practice) . Moscow, Infra-M Publishing House, 1999, p.381.
[13]  See: I.A.Prikhodko, Nedeistvitelnoct sdelok i arbitrazhnyj sud: protsessualnye aspekty (Invalidity of Transactions and an Arbitration Court: Procedural Aspects), in: Khozyaistvo i Pravo (Economy and Law), 2000, No. 5, p.106
[14]  See: ditto.
[15]   Under the circumstances, when commodity and money relations and the economy, in general, are unstable, there can be no long process, no perpetual check-ups. In this sense, an efficient and quick process which is the aim of the code reform, must become common practice (V.F. Yakovlev, the mentioned work, p. 28)
[16]  See: V.V.Kulikov, Reforma mestnogo samoupravleniya v Rossii: teoriya i realnost (The Reform of the Local Government in Russia: Theory and Reality), Gosudarstvo i Pravo (State and Law), 2000, No. 11, pp. 15, 17.
[17]  Aristotle, Politika (Policy), 1253 a 35.
[18]  I.Yu.Kozlikhin, Pozitivizm i estestvennoye pravo (Positivism and the Natural Law), Gosudarstvo i pravo (State and Law), 2000, No. 3, p.6.
[19]  The characteristic features of the Soviet system of appeal are as follows: decentralization of instances of appeal which facilitates possibility of interested persons to participate personally in sessions conducted by a court of appeal... Sovetskij grazhdanskij protsess (The Soviet Civil Process). The text-book edited by M.A. Gurvitch, Moscow: 1975, p.237.
[20]  T. Andreeva, ditto, p. 28.
[21]   For example, the CCP preserves incompleteness of the appellate instance which, being unwilling (and not always able) to perform the work of the first instance, will uphold obviously unlawful judicial acts. - V. Portnov, Kto v sude glavnee: sudjya ili zakon? (Who is more Important: a Judge or a Law?), Rossiiskaya Gazeta (The Russian Gazette), 2000, June 29.


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