Among numerous problems currently acute for the present-day Russian State and legal systems is the problem of ensuring their effectiveness. This is also completely true for the judicial authority, including those its branches that are responsible for civil and arbitration proceedings^[1]. That is why today acute is not only the problem of ensuring access to justice at large, but access to an effective justice.

      It is with due regard for the above that currently it has become very important to give a meaning to the operation of the courts from the viewpoint of implementation of the tasks set by the legislator in respective normative acts. Only thus we will be able to obtain a more or less objective picture of the status of the civil and arbitration proceedings in Russia, i.e. actually to determine the degree of their effectiveness.

      And still: is it really so important today? We have no doubts about it. Hardly any serious practicing lawyer or scholar would ascertain that the justice administered in the civil and arbitration proceedings is really effective, that the existing judicial systems fully implement the tasks set by the legislator. If we still acknowledge that this is not so (though, possibly, to a various extent for different branches of the judicial authority), apparently a purpose-oriented efforts are needed for, first of all, real evaluation of the effectiveness of the current Russian civil and arbitration proceedings, second, for planning measures to increase their efficiency and, third, for the consecutive implementation of the plan of actions adopted. This is more so important that up to 5-6 mln of individuals are being involved in the sphere of civil and arbitration jurisdiction, excluding the judges, prosecutors, members of the Bar. In other words, the problem is very important socially.

      Possibly, all this would seem a too arrogant and hardly implemented task in view of the apparent shortage of these or those resources, primarily financial ones, the reference to which has lately become customary, and not without reasons. This is understandable, too, because today, without financial resources, it is really difficult to involve another potential, from the organizational one and to the human, professional potential. This is all true. However, one cannot disregard the existing positive, in our opinion, aspect.

      First, the efforts of the court administration supported by the Government resulted in setting up in 1999 of the Russian Academy of Justice which concentrates a significant intellectual potential formed at the expense of practicing lawyers (judges included) and jurists-scholars. The efforts of the Academy should be aimed, not in the last instance, at the study of real effectiveness of the Russian justice. Moreover, this should be one of the strategic objectives of the Academy and its implementation should be supported by respective cadres, conditions of their work, etc. And all Academy’s efforts in this respect should be supported, in our opinion, by a system of common and arbitration courts as regards, for instance, sociological studies in the judicial system, participation in summing up of the court rulings, analysis of relations coming into existence in common and arbitration courts, etc.

      One should not forget a significant professional potential concentrated in other profile scientific and educational institutions (the Institute of State and Law of the Russian Academy of Science, the Institute of Law and Comparative Jurisprudence under the Government of RF, the Moscow State University, the Moscow State Academy of Law, our traditional centers of jurisprudence and education in St. Petersburg, Ekaterinburg, Saratov, etc.). And it should be used to a full extent.

      Another positive aspect is that the necessity to increase the effectiveness of justice, for instance in the system of arbitration courts, is not just recognized as an urgent problem, but a special Program of effectiveness increase for 1997-2000 was elaborated and approved (it was officially published in No. 3 of the Bulletin of the High Arbitration Court of RF,1997)^[2], as well as the Plan of actions (unfortunately, not published), though the current system of arbitration courts is a fairly modern judicial system, and this is secondly.

      Thirdly, in the national juridical literature there is a certain backlog which should necessarily be taken into account in subsequent work to increase the effectiveness of justice^[3]. In this respect special works dedicated to the effectiveness of justice of such well-known scholars and representatives of the judges’ community should be singled out as I.L. Petrukhin, T.G. Morshchakova, A.V. Tsikhotsky, M.I. Kleandrov, I.V. Reshetnikova, V.V. Yarkov and certain others. This is also a significant positive aspect.

      However, the circle of justice effectiveness problems, which at present warrant study and resolution, is fairly impressive. These involve the work along numerous trends. Let us consider some of these which, in our opinion, are the most important.

      The first problem is, naturally, an adequate comprehension and formulation of conceptual, theoretical issues of the effectiveness of justice in the sphere of civil and arbitration proceedings. These are multiple, let us dwell only on some of them.

      First of all, one should get to the core of the notion «the effectiveness of justice». In our case, without going into details and nuances, but trying to single out what is essentially important, one should stress that the effectiveness of any activities is determined by the fact to what extent the tasks and goals set for the activities concerned are implemented in the course of such activities. This is fully true for administration of justice in the framework of civil and arbitration proceedings. The aims and objectives of these proceedings, as is known, have been formulated in respective normative acts: Art.2 of the Code of Civil Procedure, Art. 5 of the Federal Constitutional Law On Arbitration Courts in the Russian Federation, and Art. 2 of the Code of Arbitration Practice. Hence, the extent to which respective judicial systems achieve these aims and implement these objectives, and only to this extent the justice administered by these judicial systems should be acknowledged as effective. This is the principal criterion and essence of the effectiveness of civil and arbitration proceedings.

      Consequently, the first step to increase the effectiveness of justice would be to facilitate an express legislative wording of the aims and objectives of arbitration proceedings. «Express» in this case would mean that the aims and objectives correspond, on the one part, to objective needs of regulation in this sphere and, on the other part, to actual opportunities available in the society: primarily this means a professional, cadre potential, as well as other resources which should be mobilized – organizational, financial, etc.

      Hence, the struggle for effectiveness of justice starts with conceptual comprehension and adequate legislative wording of the aims and objectives of civil and arbitration proceedings.

      After the aims and objectives of civil and arbitration proceedings have been worded adequately to the Constitution and real needs of social development, begins the next stage of struggle for the effectiveness of justice – a maximum full implementation of legislatively defined aims and objectives of proceedings. This presupposes implementation of another set of tasks – those relating to judicial system, procedural ones, etc. And the principal state and public interest here is that the judicial authority in the sphere of civil and arbitration proceedings, with strict observation of its inherent procedural form (in which a significant social value of the court as a jurisdictional body lies) should ensure implementation of the objectives set by the legislator.

      In this connection the following should be additionally noted. Naturally, one can only welcome adoption by the High Arbitration Court of RF of its Program to increase the effectiveness of the arbitration courts in 1997-2000. However, one can hardly fully agree with the thesis contained therein: «The level of effectiveness of the arbitration courts shows how the arbitration judicial system implements its principal social task – maintenance of law and order in the sphere of economic activities»^[4].

      In our opinion, the principal social role of the arbitration courts, upon which their evaluation as efficient (or inefficient) structures depends, is expressly stipulated in Art. 5 of the Federal Constitutional Law On Arbitration Courts and in Art. 2 of the Code of Arbitration Practice and, in a nutshell, is as follows: a) protection of infringed and challenged rights and lawful interests of enterprises, institutions, organizations, and individuals in the sphere of business and other economic activities, and b) facilitation of strengthening of the law and order and prevention of crimes in the sphere of business and other economic activities. That means that the legislator has set a much lesser scope of tasks for the arbitration system. If the point were that the arbitration courts themselves assumed certain «increased obligations» as compared to those defined by the legislator, this would hardly deserve any criticism.

      However, there is another aspect, as well, namely the necessity of express formulation of the criterion of the effectiveness of justice administered by arbitration courts and based on the legislator’s requirements, on the one part, and real capabilities of the arbitration system, on the other part. If the measure of its effectiveness and the «responsibility zone» is maintenance of the law and order in the sphere of economic activities, any violation of this legal order would be a minus to the arbitration system. This is erroneous in essence. Besides, this disorients the arbitration system, scatters its already limited financial, human, and other resources.

      Therefore, in our opinion, the phrase contained in another part of the Program of the arbitration courts effectiveness increase is much more precise and realistic, since it says that «a high effectiveness of the arbitration courts’ operation is one of the guarantees of the law and order in economy»^[5].

      The next circle of problems of the justice effectiveness is related to the quality of law, not only substantive law, but that regulating the judicial system and, especially, the procedural law. In this connection, it should be stressed that the efficiency of justice depends, not in the least, on what specific procedural mechanisms which make administration of quality justice easier and quicker are stipulated by law for the courts dealing in civil and arbitration proceedings. There are quite a few problems which, in our opinion, seriously restrict the effectiveness of justice. Let us single out one of them, which would probably seem a particular one, to somebody but whose solution, in our opinion, seems to be undoubtedly topical.

      In order to ensure a real effectiveness of justice, it is necessary for the courts, in application of law, «to work» with rules of law regulating respective public relations sufficiently fully and systematically. This is, naturally, true of not only the substantive, but also of the procedural law, because imperfection of the latter frequently seriously hinders effective resolution of the collision being the subject of the court’s consideration. In this connection it seems possible to specially single out application of the procedural analogy. Having this important legal instrument available, the courts are capable to overcome the existing gaps in the procedural regulation. A lawful and quick overcoming of the latter is, in our opinion, an important reserve of the increase of the justice effectiveness.

      The issue of admissibility of the analogy in the procedural law was not always unequivocally resolved in the national juridical science. There were and are the advocates of the analogy application and its adversaries, as well, though one cannot say that the problem has been studied sufficiently.

      The traditional arguments of the analogy application adversaries are as follows: a) nobody, the court included, is entitled to change the established procedural form, one can only adapt oneself to it; b) the subjective right of those involved in the proceedings is much «poorer’, as certain scholars write, than the rights of the subjects of the civil relations, the disputes over these arise seldom and there is no necessity to search for the means to settle these; c) all issues arising in the course of consideration of the case will be settled by court in any case. It seems that one would hardly agree with the above arguments in view of at least the following reasons. First, the disputes about the rights of the parties to the proceedings are not infrequent in the course of the current proceedings. Moreover, the jurisdiction of the courts is expanding. Consequently, there will be more and more gaps in the procedural law and, hence, the importance of express and clear mechanisms of settlement of such disputes will increase.

      Second, if the mechanism of the analogy of the procedural law and right is envisaged in the procedural form itself, it need not be subsequently changed, and the so-called adjustment of the court to the specifics of the procedural form concerned will be less painful, and the court will be more efficient in resolution of complicated procedural dilemmas it frequently faces.

      Third, in the conditions of public relations, which become more and more complicated and which are the subject of the judicial jurisdiction, the procedural means which ensure a fair, unbiased and objective judicial settlement of such relations should equally become more diverse. It is very important that the mechanism concerned should become most flexible. And application of the procedural analogy here inevitably becomes urgent.

      Fourth, introduction of the procedural analogy by no means runs contrary to the rules of the Russian Constitution, Russia’s international obligations; moreover, in our opinion it will enhance the protection of the rights of interested persons.

      Apparently, not all the procedural situations which arise in real judicial practice may be in principle settled at the level of a procedural law. Consequently, the court finds itself face to face with a procedural gap. At the same time, it has no such instrument available to overcome the gap as a procedural analogy. Those infrequent cases when the highest judicial instances in their comments on the court rulings point to the necessity to resolve a particular procedural collision «as applicable to paragraph such and such, article such and such», in essence pointing to the necessity to apply a procedural analogy, are far from exhaustive for all similar situations.

      Consequently, very frequently a particular judge is forced to spend the time irrationally in order to find a lawful, rather than a reasonable, way out of a «procedural impasse». For instance, it is apparent that the counterclaim or a third party’s application with independent claims in action is a variety of claim in the arbitration proceedings. The Code of Arbitration Practice do not contain regulation of special issues related to their acceptance or refusal to accept, or appeal against such refusal. How the court entertaining these matters should behave in such situation? Currently, it is driven to proceed from its own understanding of expediency, which, as a rule, is not in favor of the applicants filing the above special claims.

      If the analogy of the law were admissible, the court could and would have proceeded from the rules of the CAP regulating the same relations as applicable to ordinary claims. And this would be right.

      Nevertheless, currently these problems have to be considered by the court entertaining the case instead of spending respective time on a deeper comprehension of the substantive aspects of the dispute. And this, in its turn, results not only in the violation of the procedural time limits, but also in rendition of essentially erroneous awards, their subsequent annulment with all the ensuing consequences which, eventually, come to the absence of effectiveness in the protection of the rights and interests of the persons seeking judicial protection.

      Naturally, needed is an express formulation of the conditions and rules of application of the procedural analogy both in law and in respective explanations given by the highest judicial instances. Otherwise, one would not apparently avoid an unfounded strengthening of subjectivism in this sphere.

      In this connection it is necessary for the procedural laws to contain an express answer to the question about application of the procedural analogy in exercising the civil and arbitration jurisdiction. Therefore, one can but welcome incorporation by Federal Law dated 07.08.2000 of the rule of the procedural law and right analogy in Article 1 of the Code of Civil Procedure^[6]. This rule is preserved in the known draft CCP. Unfortunately, neither the current CAP, nor its draft submitted to the State Duma contain the rule on admissibility of the procedural analogy in the arbitration proceedings. In our opinion, this seriously diminishes the effectiveness of justice administered by the arbitration courts.

      The next important group of problems on whose correct resolution the effectiveness of civil and arbitration proceedings depends is the group comprising the problems of formation and functioning of respective branches of judicial authority. Let us single out some of these.

      The first one, seriously affecting the effectiveness of the civil and arbitration jurisdictions is the selection of judicial cadres, i.e. the persons who in the course of their professional activities implement the objectives and tasks set before the justice. As was noted by A.F. Koni, «however good were the rules of activities, they can lose their force and meaning in inexperienced, rough or unfair hands»^[7]. Since many important criteria of selection of the persons to take up the office of a judge have not been elaborated yet, there are quite a few problems here. The formal criteria, such as the age, citizenship, etc., which are stipulated by law can hardly be deemed sufficient. The most important, in our opinion, is a real introduction of competition, which, incidentally, is already normatively fixed as applicable to public servants as a whole in the Decree of the President of RF dated 29.04.96 No. 604^[8], and to judges – in the Federal Constitutional Law On the Judicial System^[9]. However, in respect of the judges it is not being actually implemented.

      It is also important to create such a mechanism of periodic qualification of the judges which, on the one hand, would completely ensure the professional growth of judicial cadres, «sieving» of judges who are obviously not ready to implement the objectives and tasks of justice and, on the other hand, would guarantee the judges against any attempts to illegally influence them in connection with their professional activities.

      Study of the problems of transparency in relations using such a chain, for example, as ‘the judge – the tribunal – judicial assembly – the head of the court’, seems to be quite topical. Such a chain presents sufficient number of problems visible from the outside, to say nothing of from the inside: guarantee of an actual independence of a judge from possible influence of the court administration, setting of time limits for occupation of a certain office in the court administration (e.g. maximum two terms 5 years each at a stretch, because irremovability in this respect has not been stipulated by law, moreover, it can, apparently, be harmful), legal, and not clandestine (as currently practiced by the court administration) measures of disciplinary influence on the judges, who sometimes interpret their independence and irremovability as a life-time indulgence for frequently occurring unprofessional conduct, rudeness, arrogance masking the same unprofessional conduct, etc.

      These negative manifestations cannot be concealed in modern information society and, moreover, they can be inadequately reflected by the mass media. According to a precise comment of D.S. Mill, «qualities of good proceedings equally depend on the dignity of people sitting in courts and on the dignity of public opinion under whose influence and control they are^[10]». Hence, one, of course, can blame the mirror in this case, though one does not always have a good reason and, besides, this is counter-productive. Obviously all this as an aggregate undermines the court’s authority. The measures of lawful influence on respective judges available today are insufficient, moreover legal is only one of them, an extreme measure – dismissal of the judge, termination of his authorities. In our opinion, this is far from being enough, especially in view of the fact that a resort to it is not always necessary and possible.

      The practice shows that it frequently happens that incorrect actions of a certain judge do not warrant extreme measures. In such circumstances the judge concerned just takes a slight fright which quickly passes. Consequently, he will commit such incorrect actions again and again, which would hardly facilitate the effectiveness of justice. Therefore, elaboration of certain «interim» measures of lawful influence by judicial community on respective judges is obviously necessary. At the same time, any application of such «interim» measures should be effected in those forms in which the judge could unequivocally defend himself, should it be proved that he is right.

      Apparently, for instance, if every month, and maybe every week, applications are filed challenging a particular judge, or seeking collective consideration of the case, etc., this is not incidental. Here concrete measures of the judges’ community’s reaction are needed. Unfortunately, the legal community is in general unaware of the statistics (if these are conducted at all) of the number of complaints filed with the courts in connection with an unworthy conduct of the judges both in the course of procedural and other activities. If such statistics were conducted in respect of every court (and every judge) and on its basis the judges’ community could take respective measures, the effectiveness of justice would be much higher.

      In our opinion, the effectiveness of justice would be facilitated, if the qualification boards comprised not judges alone, but also reputed representatives of the juridical science – experts in the field of justice problems. On the whole, participation of legal community in consideration of the judicial system problems is extremely important. The community of the judges should more and more become the judicial community. This would enhance the transparency of the judicial system, which is a factor of trust on the part of society. Independence of judges at the current stage of the development of the Russian judicial authority should be protected, same as their irremovability, but without public compensatory mechanisms preventing transformation of these irremovability and independence into a social evil, the judicial system may turn out to be ineffective.

      Another problem related to the effectiveness of functioning of the civil and arbitration proceedings is the operation of the court assessors institute. In connection with the latter’s incorporation in the rule of the Federal Constitutional Law On the Judicial System (Art.8), the court assessors have become the participants in, inter alia, the arbitration justice. Therefore, the issue whether this facilitates the effectiveness of the arbitration proceedings is topical.

      In our opinion, a three-year experiment conducted in the arbitration court in 1997-2000 can hardly be assessed as positive (though the representatives of the High Arbitration Court who have probably summed up the results of the experiment, will substantiate another position). The experiment has revealed a lot of problems which are difficult, if at all possible, to solve at the current stage of the judicial reform.

      First, administration of justice involving the court assessors has shown that the arrangement of their participation in consideration of concrete cases results, as a rule, in enormous protraction of the proceedings, essential infraction of the proceedings time limits.

      Second, the arbitration proceedings which, as a rule, entertain the cases of legal entities have shown that the professional experience in a narrow specialization of potential and actual arbitration assessors in the capacity of persons administering justice alongside the arbitrator would hardly add anything positive. This is due to the fact that, on the one hand, the tribunals specialize in the most significant categories of cases and, on the other hand, and even that happens infrequently, it is quite sufficient to invite specific experts, which is usually petitioned by the interested parties (and according to the draft new version of the CAP the right to set up the expert assessment is vested with the arbitration court itself).

      Third, it is hardly reasonable to admit to the arbitration proceedings as those participating in administration of justice the persons who do not know the procedural rules. This weakens them as a factor of «public influence» on professional judges. At the same time, currently there are neither the funds (with the State), nor the time (with the assessors) to teach the assessors the rules of the procedural law, and nothing is expected to improve here in the nearest future.

      One could continue listing of negative aspects, but, in our opinion, those already listed are quite enough. Participation of assessors in the civil proceedings on the whole will hardly contribute to the effectiveness of justice: their participation will hardly a) facilitate a deeper judicial study of the fact issues; b) improve the judicial activities related to precise application of respective substantive rules to the contested relations; c) improve the quality and time periods of the administration of justice.

      Therefore, as regards the civil and arbitration proceedings, democratization of justice through participation of assessors will not serve the effectiveness of justice. Consequently, there remains the following way out of the existing situation: it is necessary to make every effort to efficiently implement the rules of law concerning the court assessors in the civil and arbitration proceedings, on the one hand, and on the other – despite the fact that it would be hardly easy, also due to the institute of court assessors being introduced by a constitutional law - it would be reasonable, in our opinion, for the Supreme Court of RF and/or the High Arbitration Court to initiate respective amendments thereof. However, the foregoing applicable to the arbitration and people’s assessors does not mean that the negative estimate is also true of the jurors in the criminal proceedings.

      Another important factor of the effective functioning of justice is the efficiency of the court instances system as regards implementation of the legislatively defined tasks and objectives of the civil and arbitration proceedings. Currently the lack of serious special analysis of the existing instance system as a whole is obvious. The point is that, as a rule, only its separate elements (appellate, cassation, etc. instances) are analyzed. Meanwhile, a comprehensive analysis of the instance system is extremely important for achieving the aims of the civil and arbitration proceedings. It is also very important to carry out a consecutive systematic analysis of every instance in order to find out to what extent the procedural forms inherent to every judicial instance within the limits of its competence and time periods allocated to it ensures an effective protection of violated or challenged rights and lawful interests of respective interested persons.

      In all this work related to the problems of functioning of the judicial authority it is necessary to make a complete use of the capabilities of the Russian Academy of Justice, in which respective departments and services should be set up and fully operate (including, for instance, those responsible for representative sociological study of the judicial system), and be admitted without any bureaucratic delays to the work in courts (this is especially true of the arbitration courts operating in an extremely closed regime) and judicial community agencies on the basis of their certificates of employment.

      There is another set of problems that warrants special attention. The problem of the influence of such external (in relation to the civil and arbitration proceedings) institutes as the Constitutional Court and the European Court of Human Rights on the effectiveness of justice administered in the civil and arbitration proceedings has not been seriously studied yet. Meanwhile, it is very important, in our opinion, since such influence is already significant (though to a various extent yet) and in the future it will probably grow.

      Influence of the Constitutional Court is possible because, on the one part, the rules of the Constitution are the rules of direct effect and should be applicable by the common and arbitration courts directly in the course of consideration of concrete cases and, on the other part, it is exactly the Constitutional Court that by virtue of Art. 3 of the Federal Constitutional Law On the Constitutional Court of RF is the sole body authorized to resolve the cases of compliance of federal laws with the Constitution of RF, to verify against the courts’ inquiries the compliance with the Constitution of the law applied or to be applied in a concrete case, to construe the Constitution of RF. At the same time, the grounds for consideration of the case by virtue of Art.36 of the Federal Constitutional Law On the Constitutional Court of RF are «a revealed vagueness in the issue whether a law… is in line with the Constitution of the Russian Federation or the vagueness revealed in comprehension of the Constitution of the Russian Federation».

      Since the status of the judicial authority, as well as a lot of substantive and procedural rights of the participants of the civil and arbitration proceedings are directly specified in the Constitution, the Constitutional Court, as a result of consideration of particular cases, formulates the conclusions which seriously affect the practice of law application by common and arbitration courts, interpretation by the latter courts of the constitutional, substantive, and procedural rules. And this is done with due regard for the tasks and objectives of the civil and arbitration proceedings and, consequently, affects the effectiveness of justice administered in these proceedings. Today we have enough examples of such modification by the Constitutional Court of the judicial rulings of the common and arbitration courts. In the majority of cases, in our opinion, such modification undoubtedly served to increase the effectiveness of the arbitration and civil proceedings.

      After ratification in 1998 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, its rules, as well as the jurisdiction and judgements of the European Court of the Human Rights, have become mandatory reference points for the Russian Federation and its judicial authority. Naturally, it is understandable that the ideology of the European Court does not admit voluntary interference in the results of the Russian judicial authority’s activities. However, it became apparent in 1998 that the justice administered in Russia in the civil and arbitration proceedings would be subjected to critical assessment, provided the rules of the European Convention on the Protection of Human Rights and Fundamental Freedoms dated 4 November 1950, as well as the provisions formulated by the European Court and aimed at protection of rights of individuals and legal entities, including the right of access to a fair, unbiased justice administered within reasonable time periods, which eventually determines the effectiveness of justice, are infringed.

      In our opinion, this peculiar finalization of our national justice with the European jurisdictional superstructure will play an important positive role in ensuring the effectiveness of the Russian civil and arbitration proceedings, its ingrowth to the uniform European legal space.

      The jurisdictional resources of the Constitutional Court and European Courts of Human Rights, as regards the influence on the effectiveness of the civil and arbitration proceedings, are far from being fully used. With time, apparently, we will feel them more and more, including the lower judicial instances where, unfortunately, even today the direct references to the constitutional and European Convention rules are perceived by certain judges as the lack of professionalism on the part of the proceedings participants or the absence of a concrete substantive or procedural position in the cases under consideration.

      That is why the trends and limits of the influence of the Constitutional Court of RF and European Court of Human Rights on the effectiveness of justice administered in the civil and arbitration proceedings require a serious and detailed study by the jurists-scholars. This will be the first stage. And the second stage will be account of respective scientific results in training and re-training of judges who, either due to an enormous work load, or due to their belief that they are professionally perfect, or just because they are appointed to the offices of independent and irremovable judges, do not pay sufficient attention to such account.

      Naturally, the acute problems of the effectiveness of justice are much larger in number than those discussed above: the role and limits of the court’s capabilities in securing enforcement of judicial acts, the influence of the quality of organizational arrangements of the court activities, the role of the Department of Public Prosecutions in present-day conditions, the problem of the so-called class actions which becomes more and more acute, to name but a few. Even listing of these would take a lot of time. Correct formulation of respective scientific tasks and their adequate solution are, undoubtedly, among the urgent problems of national juridical and, primarily, procedural science. And implementation of respective scientific recommendations is the most important task for our political and state and legal system.