Accessibility of Justice in Civil and Arbitration Proceedings:
The concept of judicial reform elaborated and approved by the Russian Parliament in the early 90-ies proclaimed as its goal the formation of the judicial authority in Russia, development of organizational base of the same, provision of its cadres and financing, improvement of guarantees of the courts’ and judges’ independence and self-sufficiency. A task was set to expand the spheres of judicial protection of the rights and freedoms of citizens, to improve judicature, to reconcile Russian law with the present-day international standards, rules, and principles of international law.
Russia has constitutionally acknowledged the international acts to be a part of its legal system and announced that generally accepted principles and rules of international law contained in the treaties ratified by Russia prevail over local laws.
Reconciliation of Russian law with European rules occupies an important place among the conditions-recommendations for Russia to join the Council of Europe. This primarily means the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the decisions of the European Court of Human Rights setting precedents.
The European Convention for the Protection of Human Rights and Fundamental Freedoms was ratified by the Federal Law dated 30.03.98 No. 54-FZ. Para 1, Clause 6 of the Convention stipulates everyone’s right to a fair public trial of his case within a reasonable time by an independent impartial court set up on the basis of law.
As was noted by the European Court of Human Rights in the case of Golder v. The United Kingdom, it would be inconceivable if Clause 6 (para 1) of the Convention contained a detailed description of the guarantees provided to the parties in a civil case and did not defend, first of all, the access to court which makes a practical use of these guarantees possible. Such characteristics of the proceedings as justice, publicity, dynamism are rendered meaningless if no proceedings take place. All the foregoing points to the conclusion that the right of access to justice is an integral component of the right guaranteed by para 1, Clause 6 of the Convention.
In another judgement rendered in the case of Airy v. Ireland the European Court noted that a factual obstacle may violate the Convention same as a legal one. The Court having recognized violation of the Convention by Ireland, pointed out that the Convention was aimed at guaranteeing effective rights that can be exercised in reality, and not theoretical or illusory ones. Moreover, the discharge of obligations under the Convention requires not only that the State put no obstacles to the exercise of rights, but also undertake certain positive actions. The duty to ensure the effectiveness of the right of access to justice fits into the category of such obligations.
The V All-Russian Congress of Judges proclaimed ensuring of accessibility of justice and increase of its effectiveness as one of the most important tasks of the on-going judicial reform. The report made by V.F. Yakovlev, Chairman of the High Arbitration Court of RF, pointed out the following ways to ensure accessibility and effectiveness of justice: the increase in the number of judges and court staff with simultaneous reinforcement of cadres and improvement of efficacy and quality of work; development of substantive law which refers more and more new categories of cases, including those in which there is no dispute, to the courts; improvement of procedures, including implementation of alternative methods of dispute resolution: courts of arbitration, intermediary and reconciliation procedures, streamlining of proceedings in simple cases.
Indeed, ensuring accessibility of justice in civil and arbitration proceedings is a problem that has many aspects.
The most important element of the above problem is a procedural aspect which may be generally formulated as an adequacy of procedural law and the practice of its application by courts to public needs and expectations of everyone to receive an effective judicial protection. This is especially important in the conditions of the increased role of and demand for a court as a universal institute for legal settlement of any conflict, which ensures a real direct effect of the Constitution guaranteeing (Art. 46) everyone’s right to a judicial protection of his rights and freedoms and the right to defend his rights by any means not prohibited by law (para 2, Art.45).
As was justly noted in the literature, «in the process of procedural law drafting one should proceed from the fact that the level of legal protection of a person in legal proceedings should correspond to the notion of judicial authority and justice and their social functions in society. One should not forget about the most important thing: how effectively and rationally ensured are the interests of those persons who resort to the assistance of justice in civil cases in order to resolve legal conflicts, for whom the judicial system has been created and exists».
The Russian procedural law does not list the accessibility of justice among other basic principles of the court operation, such as lawfulness, publicity of proceedings, independence of judges and equality of all before the law and court, adversary nature of proceedings and equal rights of the parties.
It is acknowledged that if a principle is not fixed in a law rule, it should be attributed to the principles of the sense of justice rather than to the principles of law. Legal relations cannot be regulated by legal ideas; hence, the law principles cannot be only scholarly declarations, either. Implementation of the law principles, as well as the implementation means, are possible only in the manner and forms prescribed by law.
The procedural law principles should be interpreted as a system of fundamental provisions in effect in the arbitration procedural law, fixed in law rules and determining the most important characteristics of the law branch contents, prospects of its development within the limits of qualitatively defined system of public relations.
However, fixing of a procedural principle in a law rule is not necessarily expressed by a direct proclamation of the same principle in law (though by all means this is exceptionally important, since it «programs» subsequent construction by the law maker of specific procedural situations).
Fixing of certain procedural principle in a law rule may be also established through the analysis of specific procedural mechanisms reflecting the principle concerned. Moreover, it is the presence or absence of such mechanisms that eventually makes it possible to conclude whether the procedural principle declared or not directly declared in law has been actually implemented.
It is possible to speak about accessibility of justice as one of the principles of legal proceedings because it is implemented in a number of specific rules of the procedural law and substantive legislative acts which envisage the possibility of recourse to a court for the protection of rights and lawful interests and guarantee such possibility.
Both the Civil Procedural Code (CPC) and the Code of Arbitration Practice (CAP) stipulate, in particular, the right of any person to initiate a court case and the obligation of the court to accept a respective statement of action filed in a prescribed manner, the right of appeal against the court acts and the duty of the court to entertain a complaint within the period established, the possibility to provide a delay in payment of the statutory duty and payment of the same by installments in established cases, etc.
The principle of accessibility of justice is implemented in practice in the organization of the work of courts, circulation of the procedural documents in court, which is formalized in respective rules of arbitration courts.
Recognition of the importance of the accessibility principle is attested by the fact that the draft new version of the CAP, in formulating the objectives of arbitration proceedings names as a first-priority task ensuring of accessibility of justice in the sphere of business and other economic activities.
The accessibility of justice, however, is not limited to purely procedural rules of legal proceedings, but also includes conditions ensuring the same, e.g. adequate welfare of judges and court financing, since the current status of the judicial system makes it possible to speak at least about the difficulties in access to justice in a broad sense, interpreted as a possibility of recourse to a court without any hindrances and a quick, efficient, and professional consideration of a case with strict observation of procedural rules, first of all by the court, and a real guarantee of the right to appeal.
The effectiveness of the proceedings whose final goal is to defend the rights and interests of individuals and legal entities directly depends on the workload on the courts. Insufficient number of judges (16.7 thousand judges of federal common courts and 2.9 thousand arbitrators of arbitration courts), while the number of court cases increases and these become more and more complicated, results in excessive workload on the judges.
In 1999 one judge of a district court normally considered 10 criminal and 40 civil cases per month as an average.
As regards arbitration courts, the workload on one arbitrator is 28 cases per month, being much higher in many regions. This number includes bankruptcy cases, which are very complicated and voluminous, each of which, per se, represents a lot of «mini-cases» (consideration of the creditors’, debtors’ statements of defense, etc). In 14 arbitration courts an arbitrator’s monthly workload is 35-45 cases.
The excessive workload on the courts is clearly exemplified by the cassation instance of the common courts. The schedule of work of the instance is arranged so that only 10-15 minutes is allocated for consideration of a case. With such schedule the legal proceedings turn out to be a conveyor: the judges are not only unable to check the decision, but frequently fail to go into the heart of the appeal, especially when the cases are complicated. Only a reporting judge is more or less acquainted with the case, whereas two other judges in most cases do not interfere in the proceedings, wholly relying on the opinion of the judge who examined the case.
In such circumstances the collective nature of the court aimed at the maximum objective consideration of the case becomes its antipode and an actual obstacle in access to justice.
As we deem it, the task of ensuring a real accessibility of justice, which, if unsolved, renders the procedural law meaningless, may be solved, to a certain extent, within the framework of the existing number of judges.
For this purpose a general rule may be introduced to the new CPC and to the new version of the CAP, which annuls collective consideration of cases both in the courts of first instance and in the appeal and cassation instances of the arbitration courts and in the cassation instance of the common courts.
Collective consideration of cases should be allowed as a special exception and exercised by professional judges only, whereas consideration of the case by a sole judge should be a common practice, including consideration by the second instance. This would allow to considerably relieve the judges from participation in collective consideration of cases, to provide an opportunity for them to consider their cases more thoroughly, and to ensure quick consideration of cases in adversary proceedings.
On the other hand, it is necessary to introduce a three-instance system in the common courts (same as it exists in the arbitration courts) to create a possibility to fully consider a case in the supervisory instance and to reduce the number of supervisory instances in the common courts.
In principle, the rejection of collective consideration of appeals against the first instance judgements which have not been enforced yet alone could make it possible to form two full-fledged instances - those of appeal and cassation – at the expense of the judges of common republican, regional and area courts released, with simultaneous removal of supervisory function from the courts of the subjects of the Russian Federation.
The institution of people’s assessors in common courts is the greatest archaism.
Their existence is a tribute to a dead ideology in accordance with which the justice was administered by the people’s court, which could not be considered as such without participation of common people controlling the activities of a professional lawyer - a judge – and having the right (being a majority) to take a decision other than that proposed by the judge.
The institution of people’s assessors in the civil proceedings proved that it was unnecessary long ago (and, apparently, forever). Moreover, since in the major part of Russia the jury trials which are to consider the most serious offences have not been formed yet, the existence of assessors in civil cases looks as an unjustified luxury.
If the role of assessors in the criminal proceedings is to render a verdict whether the accused of the crime is guilty or innocent, in the civil proceedings they have the right to legally qualify the disputed relation and to render a judgement. At the same time, in the civil relations the question of guilt is fairly tentative and in any case does not require involvement of the assessors in its evaluation.
The remuneration of the people’s assessors, as stipulated by the Federal Law dated January 2, 2000, No. 37-FZ On People’s Assessors of Federal Common Courts in the Russian Federation, for the period of their participation in administration of justice, in the amount of the salary of a judge of the same court (which is not taxable, to the bargain) should be made at the expense of the federal budget. What are the real possibilities of this?
As was noted by the General Director of the Judicial Department at the Supreme Court of RF, the budget allocations in 1995-1998 wittingly did not make it possible to maintain operation of the common courts and the process of justice administration in the civilized framework, since these met the court needs for 31-44% only. Though the volume of financing in 2000 (as compared to 1999) increased by almost 1.7 times, still the computation shows that these funds provide for 46.1% of the real court needs only. The debt of the federal budget toward the courts is 964.6 mln Rbls, the condition of the buildings and engineering systems of the courts, as well as the number of judges remains unsatisfactory, the problem of security of judges has become extremely acute, the principal link in the judicial system – district courts – are not provided with legal information, codified laws, and the courts, due to a lack of the computer data bases, do not receive court rulings.
The amount of the statutory duty (which, ideally, should compensate the cost of justice administration) paid at the time the statements of action, applications, complaints are filed to the common court reduced in 1999 practically two times - from 1.290 mln Rbls to 466 mln Rbls, or recalculated per one case – from 270 to 91 Rbls.
But even these amounts are not received by the federal budget – in accordance with the Law On Statutory Duty the federal budget receives only the statutory duty payable for the cases entertained by the Supreme Court of RF, whereas the statutory duty payable for the rest of the cases entertained by common courts is received by the local budgets.
The situation with the statutory duty payable for the cases entertained by the arbitration courts is no better. In the first half of 2000 the statutory duty was paid only for 24% of the cases (in 1998 – 31%, 1999 – 26%). The amount of the statutory duty transferred to the federal budget in the first half of 2000 for the arbitration cases made up 319 mln Rbls, and enforcement of the awards on subsequent recovery of the statutory duty to the budget seems to be very doubtful. All attempts of the arbitration courts to analyze enforcement of such awards evokes no interest on the part of either the State Tax Inspectorate or bailiffs. But if in arbitration courts the actually paid statutory duty (disregarding writs for the amount of 550 mln Rbls issued to tax authorities with respect to additionally recovered statutory duty) recalculated for a year still practically covers the expenses on upkeep of the system of arbitration courts (809.6 mln Rbls specified in the budget for 2000), and judging by the outcome of 1999 even significantly exceeds these expenses (782 mln Rbls of the statutory duty actually transferred to the budget against 508.9 mln Rbls allocated to the upkeep of arbitration courts), then, as regards common courts, the burden of their upkeep is in fact a load, which is not compensated by the statutory duty, on the federal budget and, eventually, on the taxpayer, who is thus compelled to pay for someone else’s litigation.
Against such background an additional load on the budget in the form of financial security of and other guarantees to the people’s assessors cannot be called but irresponsible squandering aggravating an already difficult situation with an actual accessibility of justice. It is not hard to foresee that if the insufficient financing of the courts remains, they will have no funds to pay remuneration to the people’s assessors, which means that the latter’s involvement in legal proceedings is not guaranteed, which, in its turn, will result in delay in consideration of cases with their participation.
Even in the arbitration courts the experiment of the arbitration assessors participating in arbitration proceedings and who, ideally, represent business circles and, consequently, are materially independent, on the whole has not justified itself. The parties prefer that their case be considered by a professional judge, otherwise the dispute may be referred to a private arbitration.
Going back to the issue of the statutory duty, it is necessary to note that the accessibility of justice also comprises a statutory duty amount acceptable for litigators.
Simultaneously the statutory duty should cover the cost of maintenance of the court considering cases in the civil proceedings - it is exactly the purpose of the statutory duty charged for a respective public activities in administration of justice in civil cases.
Accordingly, both in determination of the statutory duty amount and privileges in its payment, one must correlate the sums which may be received from the statutory duty payment and the cost of financing of respective court activities.
It is obvious that the statutory duty amount in a number of categories of cases is apparently understated and absolutely inadequate to the expenses on the respective court activities in consideration of such cases, and that, eventually, only aggravates the situation with the accessibility of justice. For instance, as regards complaints against the decisions and actions (non-feasance) of authorities and officials violating the rights and freedoms of individuals, the statutory duty makes up 15% of the minimal labor remuneration rate (MLRR), and in ex parte cases – 10%. As regards cases of recognition of non-normative acts of public authorities in arbitration courts, the statutory duty amount is even symbolic: 20% of MLRR for natural persons and 10 MLRRs for legal entities; no differences in the amount of the statutory duty is stipulated for the arbitration cases establishing juridical facts – 5 MLRRs for all.
The most complicated and time-consuming bankruptcy cases entertained by the arbitration courts are paid for in the amount of 10 MLRRs, the statutory duty for the complaints against actions (omission to act) of a bailiff is not charged at all.
The existing and, in essence, symbolic amount of the statutory duty levied on the statements of claims of a non-property nature can hardly be found justified.
Even though the majority of population is poor, the payment for consideration of a civil case by a court should hardly be equated to a cost of a bottle of beer, or a pack of cigarettes, or two trips by underground. The accessibility of justice should have reasonable limits which presuppose, inter alia, respect for a judge and his work.
Though the examples may be continued, the principal conclusion is already evident.
Two approaches are possible in establishing the privileges in the duty payment.
The first one is preserved in the current Law On the Statutory Duty and in the draft Civil Procedural Code and proceeds from multiplicity and heterogeneity of grounds for privilege granting. Such grounds include the presumption of social vulnerability of certain categories of individuals, the necessity to ensure social justice toward the victims of offences (request to recover alimony, the claims seeking compensation of harm inflicted on the health or caused by death of the bread-winner, or damage caused by a crime, etc.), and a public interest (public prosecutor’s claims, as well as the claims of public authorities in defense of other persons, cases following from public relations, etc.), and budget financing of a party (cases involving tax, financial, customs, foreign exchange control and export control authorities), the existence of merit services (claims of war veterans or war invalids), etc.
The criteria for establishing the privileges being obscure, such an approach objectively leads to expansion of privileges in the statutory duty payment, reduction of court financing sources and, as a consequence, to insufficient financing of the courts and the resulting difficulty in access to justice.
Undoubtedly, the accessibility of justice is directly related to the person’s ability to pay the statutory duty. If the latter is too much for the most litigators, or incomparably high with respect to the claim amount, the situation with the accessibility of justice cannot be called normal.
But, on the other hand, the privileges in duty payment are justified, even if they only eliminate the obstacle for a concrete person in a concrete situation and at a concrete moment to apply to the court, i.e. when such person proves that he is unable to pay the statutory duty. Such inability should not be presumed by law a priori, for certain categories of cases or using any other characteristic features. And this is the essence of our suggested approach to the problem.
Furthermore, as regards the cases entertained by the arbitration courts, the statutory duty is entered to the federal budget, from which court financing is effected. Though the proceeds from the statutory duty payment become anonymous in the federal budget, still the amounts received by the federal budget from the arbitration courts (782 mln Rbls in 1999) are comparable to the cost of their maintenance (508 mln Rbls in the same year) and, moreover, significantly exceed the latter.
Unlike the situation with the statutory duty charged by the arbitration courts, which is more or less clear, the situation with the statutory duty charged by the common courts is drastically different.
In compliance with the Law On the Statutory Duty only the duty charged by the Supreme Court of RF is entered to the federal budget, the duties charged by other courts are entered to the local budgets.
In such situation the statutory duty charged by common courts actually loses its economic and juridical value as a source of covering the expenses on the courts maintenance, since the courts are financed from the federal budget. On the other hand, the local authorities unjustifiably receiving the statutory duty for the discharge of public functions by the federal courts are unable to use respective funds for partial financing, inter alia, of common federal courts (which is presented almost as a charity, since neither the budgets of the subjects of the federation, nor, moreover, the local budgets have a legal obligation to finance the federal courts) and, in so doing, receive serious financial levers of influencing the federal courts in the conditions of chronic insufficient financing of the courts from the federal budget.
The problem has another aspect, as well. The federal authorities establishing privileges in duty payment for the cases considered by common courts, do not bear any expenses, as respective sums do not enter the federal budget (the losses are incurred by local budgets), which does not facilitate evaluation of justification of respective privileges, thorough consideration of the privileges before establishing the same, and the consequences for the court maintenance.
The foregoing makes it possible to conclude that the issue of the statutory duty requires systematic regulation, proceeding, inter alia, from the basic principles of the budget structure. Since the federal courts are financed from the federal budget, the statutory duty charged for the cases these consider should be forwarded to the federal budget, as well; the amounts (rates) of the statutory duty and the total volume of the privileges granted from the federal budget should be computed proceeding from the sums required for maintenance of the common courts; it is possible to compare the effectiveness of the arbitration and common courts (as regards consideration of civil cases) only having deducted the cost of criminal proceedings from the total court maintenance expenses and having compared the balance to the amount of the statutory duty proceeds from civil proceedings.
Only using such systematic approach one may prove that the statutory duty and related privileges are justified and, consequently, determine whether it is excessive, presenting an insurmountable obstacle in the access to justice or, vise versa, insufficient to maintain respective courts and their full-fledged operation, without which the accessibility of justice, even with an insignificant duty amount or total exemption from it, is a fiction. Perfection of legal regulation of the issues of the statutory duty in civil proceedings is in finding such reasonable balance.
Another problem of the justice accessibility is related to implementation of the guarantee specified in Article 48 of the Constitution of RF of everyone’s right to receive a qualified legal assistance. In certain cases stipulated by law the legal assistance should be provided free of charge.
First of all, this is true of the civil process. In the situation when new cases of corporate disputes related to membership of individuals in business companies and partnerships, investment disputes, including those related to issue and floatation of securities, tax disputes, etc., become more and more widespread, rises the importance of the exercise of the individuals’ right to receive a qualified legal assistance.
Stratification of society according to financial means makes the issue of free legal assistance very acute. The current law specifies a very limited number of cases when legal assistance should be provided free of charge. This should be reconsidered toward widening of the range of cases in which free legal assistance is provided. Simultaneously compensation of legal costs should be tackled.
V.V. Putin, President of RF, spoke about the foregoing at the Fifth All-Russian Congress of Judges, and in his report he noted that «any judicial proceedings require money and, frequently, quite a lot… That is why not every individual can afford to seek truth in court. And the necessity has arisen to provide for a budget financing for organization of court counsel services for those who cannot afford to pay all legal costs. At least this obligation should be expanded».
This problem is not so acute within the framework of the arbitration proceedings. Despite this, it is suggested in the draft Code of Arbitration Practice to provide for a mandatory free legal assistance to individuals when they cannot afford a legal representative, as well as for the right of the parties to compensation of legal cost of a representative.
A common and fairly acute is the problem of a circle of persons having the right to be representatives in the common and arbitration courts and of the guarantee that a qualified legal assistance will be provided. It seems that from the viewpoint of accessibility and effectiveness of justice it does not matter whether a representative in court is a member of the Bar, or an attorney working in a law firm, or a businessman rendering legal services, if the qualification of the representative concerned is attested by the State.
In this connection a necessity has arisen to restore licensing of legal services rendered for value, spreading it onto the members of the Bar, which would facilitate establishing the rules of conduct common for all participants of the legal services market (which, actually, is the purpose and meaning of the state regulation in this sphere), also from the viewpoint of unified criteria of qualification of both the members of the Bar and law firm attorneys, and individual practicing lawyers. Undoubtedly, unapproved practice of law should be excluded. The situation when legal services as professional activities can be provided by anyone, including that who has no respective education, is not possible.
Besides, in legal communities of various countries a standard set of ethical rules and regulations mandatory for all practicing lawyers was developed long ago and has been in force for many years, which, unfortunately, is not applicable to this country. This issue also requires normative regulation which would expressly define the procedure for admittance of lawyers to a private practice, their relations with the clients, responsibility for professional infraction and prevarication.
Both rendering of a qualified legal assistance to individuals, and operation of the Bar, and organization of the market of legal services rendered for value require a comprehensive legislative regulation.
The law on the Bar cannot regulate all these issues. It seems that it is necessary to adopt a more general law – on private practice of law, which, alongside with general provisions relating to all legal entities and individuals rendering legal services in their professional capacity, could contain a section dedicated to the peculiarities of the Bar operation and to rendering of free legal assistance.
The possibility and degree of participation of a public prosecutor in civil proceedings widely discussed in public also warrants attention. Here two approaches are distinctly traceable.
The first approach reflected as a whole in the draft new CPC and the current CAP (also preserved in the draft new version of the latter Code) consists in a minimized participation of a public prosecutor in civil cases entertained by the court, which should be treated rather as an exception governed by either the necessity to defend a public interest or by impossibility or extreme difficulty for a person to resort to justice to defend his rights and to receive such defense.
Accordingly, as soon as the obstacles to justice are eliminated (which, primarily, will be connected with the professional legal representation in courts and qualified legal assistance in general becoming more available), the involvement of a public prosecutor in private law disputes should diminish, if such approach is used.
As regards arbitration proceedings, the prosecutor’s involvement should become a rare exception already now.
The other, quite contrary approach, is that regarding the involvement of a public prosecutor in civil proceedings, the new CPC should preserve at least all his powers stipulated in the current CPC, and the new version of the CAP should broaden the prosecutor’s powers to the extent stipulated by the current CPC, as well as grant him a special procedural status.
These two approaches to a particular issue – involvement of a public prosecutor in the civil and arbitration proceedings – actually reflect the struggle of two systems of views on the civil proceedings as a whole. «The fronts» of this struggle are the discussions about the objective and formal truth as a goal of judicial learning; about the existence of the prejudice with respect not only to the factual basis of a legal relation established by a judgement, but also about its juridical qualification; about adversary proceedings and judicial inquisition, the extent and degree of the court’s activity; about optional nature and control of the court over exercise of their rights by the parties, etc.
On a wider scale, one may talk about various viewpoints on the admissible extent of the interference of the State in private affairs, about the ways to resolve a conflict involving the State, including the cases when the latter is a subject of civil relations, and also about the possibilities and techniques of the sovereign, public authority used by the State when defending its subjective civil rights, i.e. in this respect – in private relations.
One cannot but notice what would be the outcome if the public prosecutor’s right to participate in the process is preserved and, moreover, expanded. One thing is when the action is brought by the prosecutor in the interests of the public or the person who cannot resort to justice himself in order to defend his right and receive such defense, and something else when this will be used in the interests of the Department of Public Prosecutions under the slogan of protection of the State and public interests.
Thus, on January 26, 2000, the Decree of the Government of RF No. 72 approved the Statute of the Fund of the Development of the Department of Public Prosecutions of RF aimed at implementation of the above Department’s right set forth in Art. 52 of the Federal Law On the Department of Public Prosecutions to assign to the Fund 10% of financial funds forwarded on the Department’s initiative to the revenue of the enterprises and organizations.
First of all, a question arises about the legal nature of such relations in favor of the Department of Public Prosecutions. As is seen from Art.52 of the above Federal Law and from the Governmental Decree, these allocations are not voluntary, these are not charity donations: the obligation of economic subjects to transfer these funds is actually set forth by a rule of law. Moreover, the above Decree charges respective prosecutors with the control over timely transfer by all businesses, irrespective of the property forms, of respective funds to the Department of Public Prosecutions. Consequently, these are not contractual relations, but something very resembling a duty. At the same time, after enactment of the Tax Code, the new taxes and levies should be set forth by the tax laws which do not include the Federal Law On the Department of Public Prosecutions. On the other hand, a possibility is created to unjustifiably exempt the claimants from the statutory duty and, consequently, all troubles and risks of subsequent statutory duty recovery are shifted to the tax authorities, actually – to the budget.
Probably, the provisions of the law on the statutory duty stipulating exemption from the statutory duty of the Department of Public Prosecutions and other authorities entitled to bring the claims in the interest of the public, in defense of other persons, should be reconsidered. The main argument underlying such exemption was that it was senseless to take money out of one pocket in order to place them into another. Currently, there are other realities.
There are a federal budget, budgets of the subjects of the Federation, budgets of municipalities. If a claim is brought in the interests of the subject of the Federation, and the claim concerned is dismissed, why should not the federal budget receive the statutory duty? If tax authorities made a breach of law and subsequently a respective act was found invalid against a taxpayer’s claim, whey the tax authorities should be exempt from the statutory duty payment? This facilitates situations when respective authorities do not feel any responsibility for their own breaches, shifting off their own work to the courts. Losing a case does not create for them any unfavorable consequences, even such as the statutory duty payment, and this is wrong.
Among the problems of procedural nature in the light of accessibility of justice, I would like to dwell on appeals against the judgements and the problems related to cases of the judge’s omission to act or to the damage inflicted by the judge’s actions.
The accessibility of justice is ensured also by the express, unequivocally interpreted procedural time limits for the court set forth in procedural laws. This is true not only of the time limits for the case entertainment, but also of the time limits within which the court should undertake a certain legally meaningful action (e.g. refer the case to a higher instance in the event of a complaint against a judicial act which may be appealed).
At the same time, neither the current CPC and CAP, nor the ones being drafted contain really adequate procedural mechanisms of protection of the interests of those who believe that the judge’s actions or omission to act create obstacles for them in their access to justice.
Procedural laws stipulate a single form of appeal against the judge’s actions – by appealing against the judicial act rendered by the judge concerned, whereas these laws do not provide for a procedural possibility to appeal against the judge’s omission to act and against the actions not legally implemented in respective court rulings.
Thus, in case the judge rules to refuse to accept the statement of action or to return it, such ruling may be appealed and, if it has not been sufficiently grounded, it can be revoked by the higher instance. In the latter case the obstacle to justice will be removed.
However, if the judge, refusing to accept the statement of action or returning it, does not make a respective ruling, it is impossible to appeal his actions (omission to act).
The procedure of initiation of the judicial inspection of the judge’s actions (omission to act) is actually non-existent, though the obstacle in the access to justice is evident.
In the situations which are disputable, obscure, including for the court, the judges have no motives to «press» the events.
As soon as the statement of claim is accepted (or a respective ruling is made), the statutory time period for the proceedings in such category of cases begins. When it is breached, the statistics for the court concerned and even for the region as a whole «deteriorates». On the other hand, when a judgement is delivered in a legally obscure situation, this may give rise to a judicial error and, consequently, subsequent reversal of a judgement, which, apparently, does not improve the quality of the court’s work. Finally, a ruling about refusal under a farfetched pretext also entails its possible revocation (though this may not necessarily entail any serious negative consequences as regards assessment of the judge’s and court’s work).
If no ruling is made, the period prescribed for entertainment of the case is not violated and the word which has not been put to paper, as is known, contains no error.
Having understood that they would not find a quick resolution of their dispute in a court, the parties would probably settle their disagreement out of court, or the dispute concerned will loose its urgency.
However, the judicial procrastination frequently devalues the right which the interested person seeks to defend in court and, sometimes, results in its complete termination.
The problem of protection of the individuals’ and legal entities’ rights violated as a result of illegal actions or omission to act on the part of the court cannot, naturally, be restricted to elimination of obstacles in initiation and normal development of the process by judicial appeal against respective court’s actions (omission to act).
The result of the judicial activities may be the property damage inflicted both on the persons involved in this or that specific case and on those uninvolved.
However, by virtue of para 2, Art. 1070 of the Civil Code of RF the damage caused in the course of administration of justice, which has not brought about the consequences specified in para 1, Art. 1070 of the Civil Code of RF (illegal conviction, illegal bringing to trial, etc.) is subject to compensation only if the judge is found guilty by the court.
Art. 53 of the Russian Constitution stipulates the right of everyone to compensation of the damage caused by illegal actions (or non-feasance) of public authorities or officials. The article concerned does not contain any exceptions from this provision depending on what authority exactly caused the damage. Meantime, by virtue of Arts. 10 and 11 of the Russian Constitution the courts are agencies of the public authority and, consequently, the state cannot be relieved from responsibility for the damage caused in the course of public activities of its agencies, with no exception for the judicial activities. Otherwise, such exemption would mean restriction of anyone’s right to a damage compensation guaranteed by Art. 53 of the Russian Constitution.
Para 2, Art. 1070 of the Civil Code of RF makes the right of the sufferer to compensation of damage dependent on the agency (of inquiry, of pretrial investigation, or the Department of Public Prosecutions, or the court) which has caused damage. If the damage caused by the agencies of inquiry, or pretrial investigation, or by the Department of Public Prosecutions is compensated at the expense of the budget on general grounds (Art. 1069 of the Civil Code), the State refuses to be liable for the courts’ actions at the expense of the budget on general grounds, thus having restricted the rights of its own citizens in absence of respective grounds specified in para 3, Art. 55 of the Russian Constitution.
The wording of para 2, Art. 1070 of the Civil Code – «the damage cause in administration of justice» – is fairly indefinite. What «administration of justice» means from the viewpoint of the above paragraph - whether rendition of a judicial act, or any other actions by the judge in connection with the case he entertains, or all his actions (non-feasance) as a whole, which he undertakes in his capacity of a bearer of judicial authority, including non-procedural ones, - and, consequently, to what extent the State is exempt from liability for compensation of damage in this sphere of activities? In my opinion, administration of justice should mean only the procedural actions which cannot be considered as having started earlier than rendition of a determination which initiates a case (on acceptance of the statement of action, application, etc. - one may talk about respective activities only as applicable to a specific case rather than to any official activities of the judge in general, such as reception of individuals, etc.), and such actions result in rendition of a judicial act which completes the proceedings in the case, i.e. the procedural activity of the judge as regards the case concerned is exhausted.
Clause 5.2 of the European Charter On the Law on the Status of Judges (Lisbon, 10 July 1998) stipulates as follows:
«Compensation for the damage wrongfully caused as a result of a judgement or conduct of a judge in exercise of his duties is guaranteed by the State. The Law may stipulate the right of the State to request that the judge compensate these expenses following a court procedure, but not exceeding the limits established, in case of a gross and unforgivable violation of the rules regulating exercise of the judge’s duties. Filing of a claim with a respective court is admissible by a preliminary agreement with the agency specified in Clause 1.3 of the Charter.».
Hence, unlike the possibility to charge the judge with the expenses of the State in connection with compensation payable to the sufferer as a result of judicial activities (which is admissible only in the cases specified by national law in the event of a «gross and unforgivable» dereliction of the judge’s duties), the right of the sufferer to receive from the State the compensation for the damage resulting from judicial activities by virtue of the above Charter is recognized as unconditional.
The problem has another aspect, as well.
Legislative provision for and practical implementation of the principle of the court’s independence (which is, undoubtedly, a legal value and the most important achievement of the judicial reform), of guarantees of such independence, including irremovability of judges, should, apparently, be accompanied by establishing of legal guarantees, also for the litigators, both against the judicial procrastination and, moreover, against the cases of undisguised arbitrariness. Though it may appear strange at a first glance, establishing of such guarantees is in the interests of the judges.
The absence of procedural possibilities to appeal against the actions (omission to act) of the court, without rendering of a determination in those case when such rendering is obligatory (and, moreover, when by law it can be appealed), results in the interested persons, having no other means of influence and protection of their interests, being forced to file complaints to the judges qualification boards, since they detect in the gross procedural violations the actions derogating the honor and dignity of a judge, though, actually, what takes place is, most frequently, an elementary overload on the judges and courts.
In the event of initiation of proceedings by the qualification board, it is the judge who finds himself/herself procedurally unprotected, because the qualification boards are certain quasi-judicial agencies acting, on the one part, without expressly prescribed procedures and, on the other part, charged with public functions to deprive the judges of their qualification grades and to terminate their authorities.
Thus, the Statute of the Judges Qualification Boards approved by the Decree of the Supreme Soviet of RF dated 13 May 1993 actually charges the above body simultaneously with the functions of an investigator, a prosecutor, and the judge.
At the same time, the judge, whose case is the subject of investigation by the qualification board, is deprived of elementary rights, such as the right to be represented by a legal representative, an attorney.
Termination of the judges’ authorities out of court by a resolution of a corporate body which is no legal entity into the bargain and consequently bears no responsibility for its resolutions, cannot but reduce, as it seems, in the absence of a procedure expressly prescribed by law, constitutional guarantees of irremovability and, finally, independence of a judge.
The current system of termination of a judge’s authorities and deprivation of status initially intended for ensuring the guarantee of a judge’s independence, primarily from executive authorities, in reality turns out to be its complete antipode – by virtue of the above reasons the judge has no guarantee of protection from such authorities neither in the qualification board, nor, subsequently, in court.
In any court dispute one party is a loser dissatisfied with the judgement rendered. The judge should not be a «hostage» of a possible slander of the loser party, nor should he/she be subject to a humiliating procedure of investigation of his/her private life.
In our opinion, the way out could be partly found in expansion of the possibilities of judicial checking of lawfulness of actions (omission to act) hindering administration of justice on the part of a judge against complaints of interested persons.
Subject to Art.46 of the Constitution everyone is guaranteed judicial protection of his/her rights and freedoms. However, the procedural law stipulate no mechanism of implementation of the above right in those cases when the obstacles to its exercise are put by the court itself, i.e. when the judge’s actions (omission to act) are not enveloped in a due procedural form, e.g. a respective determination which can be appealed in a respective procedural form.
Meanwhile, in accordance with para 2, Art. 46 of the Constitution, the decisions and actions (non-feasance) or governmental authorities can be appealed in court.
In our opinion, this constitutional provision is applicable to all branches of public authorities, judicial included, the actions (non-feasance) of whose individual units are, in principle, not exempt from judicial control, including that against applications of interested persons.
Hence, the right to appeal in court the actions (omission to act) of a court as a public authority body ensues directly from the Constitution, though no procedural mechanism of court appeals unrelated to an appeal against a judicial act is defined by law.
In our opinion, to improve the procedural law, the procedure of appeal to be provided for should be correlated with the procedure specified in Chapter 241 of the CPC.
This would facilitate, first of all, implementation of the constitutional right to judicial protection also in those cases when the obstacles to justice are put by the court itself, and, secondly, usher consideration of similar complaints against a specific judge in a civilized legal field of a full-fledged judicial process where both parties – the claimant and the judge whose actions (omission to act) are appealed – would have equal procedural possibilities for the defense of their legal positions.
As was justly noted, the complications in the course of conducting the judicial reform, strengthening of the independence of justice do not find an objective reflection in the public perception and mass media. Dissatisfaction of society with the functioning of the judicial system finds its vent in the appeals, which have been recently becoming more and more frequent, to abandon the principle of irremovability of judges. Acceptance of such proposals would have a destructive influence on the judicial authority system which has been built with such difficulties.
However, one cannot but acknowledge that a definite ground for public displeasure is created by closed nature of the above system, the absence of transparency in its activities, especially as regards checking of complaints against the judges undertaken by the qualification boards.
Meanwhile, such checks are far from being a purely internal matter of the judicial community. Every judge is a body of the judicial authority, and the reasons for termination of his/her authorities (or, vice versa, dismissal of the claims against the judge) affects the interests of the whole society and its every member. Nobody can be deprived of the right to have his case entertained by the judge and the court to whose jurisdiction the case is referred by law.
Independence of a judge as an unconditional legal value, as it seems, will be only reinforced in the event of an available and efficient judicial control over possible abuses of such independence exercised in open proceedings, with equal procedural rights and possibilities both for the person trying to eliminate the obstacles in administration of justice and for the judge whose actions (omission to act) are the subject of the complaint and, respectively, judicial checking.
Another guarantee of implementation of the accessibility of justice is imperative prescriptions in the CPC and in the CAP which oblige the court to implement its legally meaningful actions by rendering respective determinations in the cases specified by law. This allows to fix respective actions of the court in the documentary form, i.e. in judicial acts, and this is exceptionally important for the interested persons who subsequently will be able to refer to these, including in the event of appeal.
Both the CPC and the CAP contain rules on the possibility to appeal to the higher instance against the court determinations which obviously hinder subsequent progress of a case. This is applicable, for instance, to the determinations on the refusal to accept the statement of action, on its return, stay of proceedings, termination of proceedings, leaving the claim without consideration, etc. Such determinations hinder obtaining an efficient judicial protection by the interested persons and in this sense create the obstacle to the accessibility of justice; hence, the law allows to appeal against these, contrary to other determinations whose majority are subject to no appeal.
However, this ends the similarity in legal regulation of the possibility to appeal against the so-called «blocking» determinations contained in the above two procedural codes.
Thus, the CPC specifies in Art. 315 two groups of determinations which may be appealed separately from the judgement by the persons involved in the case: the determinations which can be appealed as stipulated directly in the CPC and the determinations which, though not mentioned in the Code, block subsequent progress of the case. Thus, the CPC allows to exercise the judicial discretion in determining whether a certain determination, whose appeal is not provided for directly by the Code, blocks the development of the case or not. This discretion is exercised by the judge whose determination, in the opinion of the person who filed a complaint against it, blocks the progress of the case. The rightness and substantiation of the conclusion made by the judge who rendered a respective determination cannot be checked by a higher court other than in the event of a check of the judgement: the judge disagreeing with the claimant’s arguments has neither the duty, nor procedural grounds to accept a complaint against a determination which, in the opinion of the judge, does not block the progress of the case. Art. 315 of the CPC only mentions that objections to the determinations which are subject to no appeal can be included in the appeal to the court of cassation or in the statement of protest. However, the appeal to the court of cassation may be filed only in case the proceedings in the case end in rendering of a judgement and only by a party to the case.
The determinations, whose appeal is referred to the discretion of the judge, comprise, for instance, the determination on leaving the claim without progress (Art. 130 of the CPC). Though there is no doubt that such determination is a blocking one, it is practically impossible to exercise the right to appeal it despite a different opinion of the judge.
Contrary to the CPC, the CAP (para 1, Art. 160) contains an exhaustive provision which leaves no room for judicial discretion – the arbitration determinations can be appealed only in the cases stipulated by the Code. Whether to accept an appeal against the determination of the arbitration court, which can be appealed or which cannot be appealed, – these matters are considered by the judge of the appellate instance, who renders a respective determination (Arts. 152, 151 of the CAP). The refusal to accept an appeal can be appealed in the court of cassation; a determination on return of the appeal to the court of cassation can be also appealed in the court of cassation.
Therefore, the possibilities of judicial checking in the higher instances of the arguments whether according to the CAP a certain determination is subject to an appeal, are essentially better provided for by the CAP as compared to the possibilities stipulated by the CPC, though as compared to the CPC, the CAP provides much fewer grounds for doubt whether a certain determination is subject to an appeal, since it contains no references to «blocking» determinations, but directly lists the determinations subject to an appeal.
Nevertheless, refusing to accept the complaint on the grounds that the existing determination is subject to no appeal, the court of a higher instance checks the applicant’s arguments that it should be subject to an appeal.
At the same time, in the course of analyzing the court rulings one cannot but make a conclusion that, despite the above differences, the approaches used by the common and arbitration courts, as regards the possibility of appeal against determinations actually hindering access to justice, mainly coincide.
These are the determinations on substitution of an improper party, procedural succession, refusal to accept counterclaims and claims of the third parties with independent claims to the contention.
The arbitration courts proceed from the fact that the above determinations cannot be appealed due to the absence of a respective express provision in the CAP, whereas the common courts proceed from the fact that such determinations are not «blocking».
Without debating the substantiation of such an approach to the current procedural laws, let us try to analyze the compliance of the laws, with due regard for their meaning as interpreted in the court rulings, with the constitutional provision on everyone’s right to judicial protection.
The determinations which cannot be appealed, but in essence hinder obtaining of a judicial protection by an interested person, may be subdivided into two groups:
-       the first group comprises the determinations removing the interested person from the proceedings;
-       the second group comprises determinations which do not admit the interested person to the proceedings in a respective capacity.
The determinations on the substitution of an improper party (Art. 36 of the CAP, Art. 36 of the CPC) and the determinations on the procedural succession (Art. 40 of the CAP, Art. 40 of the CPC) may be attributed to the first group.
The determinations on the refusal to admit procedural succession, refusal to accept a counterclaim (Art. 110 of the CAP, Art. 131 of the CPC) and a third party’s application with independent claims (Art. 38 of the CAP, Art. 37 of the CPC) may be attributed to the second group.
In compliance with Art. 36 of the CAP and Art. 36 of the CPC, the court, having established in the course of proceedings that the claim was brought by the person other than that who has the chose in action, may, with the claimant’s consent, substitute him with a proper claimant. If the court has substituted the claimant without the latter’s consent, a respective determination will be illegal. However, since the determination concerned is subject to no appeal, it will come into effect from the moment of its rendition and, consequently, the claimant is legally and physically removed from proceedings from this very moment. As was noted above, by virtue of Art. 315 of the CPC the objections to the determinations subject to no appeal can be included in the appeal against the judgement filed with the court of cassation, which by virtue of Art. 282 of the CPC may be filed only by the persons participating in the case, whose circle is defined in Art. 29 of the CPC. The person who has brought the claim and was later on substituted (even though against his will) with another person, whom the court deems a proper claimant, loses his procedural status of a claimant and altogether a person participating in the case. The person who has substituted the person who brought the claim is recognized as the claimant. Consequently, the initial claimant is deprived of the right to appeal against the judgement.
Besides, the proceedings in the case may end without rendering an award, e.g. when the claim is left without consideration by virtue of para 6, Art.,221 of the CPC (claimant’s default), or the proceedings terminate by virtue of para 4, Art. 219 of the CPC (release of a claim). The person who brought the claim and was removed from the proceedings by virtue of Art. 36 of the CPC will not be able to appeal against a respective determination which ends the proceedings in a case, either.
The situation with determinations on the procedural succession is far worse. By law, removal of a person from the proceedings by virtue of Art. 40 of the CAP and Art. 40 of the CPC does not require the person’s consent, nor the consent of the other party.
Neither the CPC, nor the CAP define the procedural mechanism to initiate the consideration by the court of procedural succession (against the application of the party removed from the disputable substantive relation; against the application of its legal successor who does not participate in the case; on the court’s initiative, when the legal succession is evident from the materials of the case). It seems that the wordings of Art. 40 of the CAP and Art. 40 of the CPC make it possible for the court to substitute a party to the case both against the petition of any person participating in the case and on its own initiative. The substitution, apparently, cannot be excluded if so petitioned by the person not participating in the case – the party’s legal successor, who is interested in joining the on-going proceedings instead of the party concerned, though this possibility is not procedurally regulated.
It seems that the determination on the procedural succession could be rendered only in absence of a dispute over the right to contention between the claimant and his expected legal successor (or the person positioning himself in such capacity) in a disputable relation; otherwise, a legal succession to the claimant should not be admitted and the accessibility of justice for the legal successor may be implemented only through joining the proceedings as a third party with independent claims in action or by bringing an independent action.
Settlement of the procedural succession issue seems (same as the refusal to admit the procedural succession) exceptionally important from the viewpoint of protection of the interested persons’ rights and the accessibility of justice for them.
If the determinations on substitution of an improper party and on the procedural succession remove a person from the proceedings, the determinations on refusal to admit the legal succession, on refusal to accept the counterclaims and the third party’s independent claims in action hinder joining of the on-going proceedings by the third party. Neither the CAP, nor the CPC expressly provide for appeal against such refusal; the current court rulings proceed from impossibility to appeal against respective determinations on the grounds that interested persons may file their claims independently.
Meanwhile, the possibility to bring an independent claim is not equal to participation in the on-going proceedings for a number of reasons. If an interested person has chosen this particular procedural form of joining the case with his/her substantive request to file a claim, and there are conditions under which a counterclaim or a third party’s statement of action with independent claims are to be accepted, they cannot be voluntarily refused, and ungrounded refusal actually means a refusal of justice.
The refusal of procedural succession puts an interested person in an extremely difficult procedural position.
The person who suffered from the failure to effect procedural succession (and, respectively, who is interested in such succession) is not the legal successor of the party to substantive relations uninvolved in the case – the claimant’s successor may lose the possibility of judicial protection due to statute of limitations in the event he subsequently files his own claim to the respondent, though the principal claim was filed within the limitation period, but, for instance, was left without consideration due to the default of the principal claimant, who has become an improper claimant because of legal succession, etc. The respondent’s legal successor substituted, for instance, at the executory process stage had no possibility at all to defend himself from the claim, since he did not participate in the proceedings, while the respondent, who became an improper respondent, had no interest in a proper defense against the claim.
The above examples show that the wording used in Art. 315 of the CPC «blocking of further progress in the case» is construed in the court rulings in a narrow sense, i.e. not as an obstacle in consideration of a substantive claim of the person who turned to the court for protection of his rights in the procedural form he has chosen, but as an obstacle in the progress of the case itself. The latter, following such logic, may progress «normally», but without a claimant, or contrary to his will, or with the claimant, but without his claim.
As regards determinations on refusal to accept an application of the third party to join the case with independent claims and on refusal to accept a counterclaim, the problem is that the current judicial rulings based on inadmissibility of appeals against determinations on refusal to accept (and also on return) of the so-called special claims – applications of third parties to join the case with independent claims and counterclaims – is legally dubious. Such practice, in our opinion, is repugnant to a number of constitutional rules, i.e. rules of the Articles 18, 45, 46, 47 of the Constitution of RF, as well as Articles 4, 107, 108 and 160 of the CAP. As we deem it, articles 38 and 110 of the CAP should be applied with due regard for the above rules of the Constitution and CAP. The determination on refusal to accept (on return) of the so-called special claims cannot be equated with, for instance, the determination on the stay in proceedings (Art. 120 of the CAP) and similar determinations, which essentially cannot affect substantive interests of respective persons.
Having chosen the way provided by procedural law, the person who has filed independent claims in action to the contention or a counterclaim (and not an independent action), in so doing exercised his right to choose procedural means of his interests protection. Since the right to such choice can hardly evoke and justifiable legal doubts per se, the refusal to consider the claim in the form it has been filed for reasons other than those specified in Article 38, part 1, Article 107, part 1, article 108 and Article 110 of the CAP seriously infringe (or may infringe) the substantive interests of a respective person (for instance, upon expiry of the limitation period by the time the claim is brought again, this time as an independent one, etc).
Articles 38 and 110 of the CAP contain no references as to the destiny of the third parties’ claims and counterclaims in those cases when the court found no reason to consider these in the on-going proceedings. However, it is important to note that neither Art. 38, nor Art. 110 of the CAP stipulate any separate (auxiliary to those specified in Articles 107 and 108 of the CAP) grounds for refusal to accept such claims. However, in absence of lawful reasons to refuse to accept these, as well as the grounds specified in Articles 38 and 110 of the CAP for consideration in the on-going proceedings, one, apparently, should draw a conclusion that in such case these claims are subject to acceptance as independent actions (Art.106 of the CAP).
In our opinion, there is no need to file such claims anew (this time as independent actions), since being brought as counterclaims or applications of a third party with independent claims in action, they do not have any defects which would require elimination and, secondly, there are no objective or subjective obstacles for their consideration by the given arbitration court as independent actions (naturally, with the exception of those cases when such actions as independent ones do not fall under the jurisdiction of the arbitration court concerned; however, in such case the statement of action is subject to return on general grounds – by virtue of para 3, part 1, Art.108 of the CAP).
In this case (i.e. if a special claim was accepted as an independent one), as we deem it, one can say that the claimant was refused not a judicial protection against his substantive claim (like in case of a refusal to accept or return of the statement of action), but rather a particular procedural form of protection he sought (i.e. within the framework of the on-going proceedings). Apparently, one can agree that within the framework of the current CAP the refusal to admit a third party with independent claims in action to the on-going proceedings, same as the refusal to accept the counterclaim, is subject to no appeal, provided such claims have not been returned to the applicant, but accepted as independent ones.
We would also like to draw attention to procedural problems which affect implementation of the principle of accessibility of justice indirectly, through the entirety of the procedural law principles.
Such problems comprise the lack of coordination between the procedural rules contained in substantive laws and the rules of procedural laws. This results in contradiction in the course of their application with fundamental principles of procedural law, such as the dispositive and adversary nature, the right to claim in their entirety with the principle of the accessibility of justice.
For example, the court is entitled to reduce the penalty on its own initiative if the latter is obviously disproportionate to the consequences of the obligation infringement, in other words, if the penalty is disproportionate to the losses incurred by the creditor. Though as regards the demand to pay the penalty, the creditor is not obliged to prove that he has incurred the losses and what they amounted too, respectively. Hence, the assessment by the court of the proportion of the penalty would mean going outside the limits of the claims in action, and this would entail infraction of the principle of option.
A similar example is application by the court on its own initiative the consequences of a void transaction. Such rule is applicable, though there are questions about its correlation with the procedural law principles.
On the whole, as it seems, the elimination of disagreement between the procedural rules contained in substantive laws and the procedural laws should be one of the trends of the development of the procedural law.
The problem of identity of claims should also be noted. The draft CPC and the draft CAP stipulate that the court will terminate the proceedings in a case of challenging the legislative normative acts, if the judgement that verified the lawfulness of the challenged act or its separate challenged provision has come into legal force.
As a result, a situation may arise when the claim is dismissed only in connection with the claimant being unable to prove that the challenged act infringes his rights and lawful interests, and other persons whose rights have really been violated by the act concerned will have no right to challenge it.
Despite the above, such an approach has been accepted by judges, primarily in the cases of recognition of acts regulating tax relations as invalid. Since all the claimants fall into the category of taxpayers, a conclusion is made that the case is subject to termination if compliance of a non-normative act has already been the subject of consideration, since there is a judgement which has come into a lawful force, which has been rendered in a dispute between the same parties, i.e. a taxpayer and the Ministry of Taxes and Levies of RF, about the same contention and on the same grounds.
It seems that such an approach does not take into account the multiple options arising in the course of consideration of every particular case and is contradictory to the principles of accessibility of justice and the right to claim.
Another matter we would like to discuss is a prejudice in a decision to dismiss a claim. Can the facts and relations in respect of which the court could not make a conclusion that these had been proved be considered as established by the court? It seems that they cannot, since this would run contrary to the principle of adversary nature of proceedings. The parties and other persons participating in the case cannot be deprived of or restricted in their right to achieve the court’s recognition of juridical facts material for the case by substantiating their position and adducing new evidence confirming such facts, despite the fact that these have not been recognized in another case. However, a certain practice of application of a «negative» prejudice does exist.
Also interesting is the correlation between recognition of a normative act as invalid and its non-application by court.
Recognition of an act of public authorities as invalid, same as non-application by court of an act of public authorities as repugnant to law is an independent means of civil rights protection.
However, the problem is that in case the act is recognized as invalid, it loses its effect as of the moment of its publication, non-application by the court of the act of public authorities in a specific case entails no such consequences. The court, having established in the course of hearing the discrepancy between the public or other authorities’ act and the Constitution or a federal law, should not apply the disputable act, but make a judgement in compliance with the Constitution of RF or a federal law. At the same time, the normative legislative act concerned is not recognized by the court in this case as running contrary to the Constitution and federal laws, it remains to be in effect and may be subsequently applied, thus violating the rights and freedoms of other individuals.
In this connection, elaboration of a legal mechanism seems to be necessary, which, on the one part, would exclude subsequent application of such acts without assessment of their compliance with law and, on the other hand, would facilitate reconciliation of these acts with the law by the authorities which adopted them.
Possibly, this may be solved by analogy with verification of compliance of a law applied or to be applied in a specific case with the Constitution, by referring recognition of such acts as invalid to the competence of the Supreme Court of RF and the High Arbitration Court of RF against the requests of the judges who adjudicated in a specific case not to apply the act concerned as repugnant to law.
 Sobraniye zakonodatelstva (Collected Laws), 1998, No. 20, p.2143
 Sobraniye zakonodatelstva (Collected Laws), 1998, No. 14, p.1514
 See: Evropeiskyi sud po pravam cheloveka. Izbrannye resheniya. (European Court of Human Rights. Selected Judgements) . Vol.1, p.39. Moscow, 2000.
 See: ditto, pp. 271-287
 I.V. Reshetnikova, V.V. Yarkov. Grazhdanskoye pravo i grazhdanskyi protsess v sovremennoy Rossii (Civil Law and Civil Proceedings in Contemporary Russia), p.19.
 D.A. Fursov. Predmet,sSistema i osnovnye printsipy arbitrazhnogo protsesual’nogo prava (problemy teorii i praktiki) (The Subject, System, and Fundamentalc Principles of the Arbitration Procedural Law (Problems of Theory and Practice)). Moscow, INFRA-M, 1999, pp.360-361.
 See V.F. Taranenko. Printsipy arbitrazhnogo protsessa (Principles of Arbitration Proceedings). Ed. by M.S. Shakaryan, VYUZI Publishing House, Moscow, 1988, pp.7-8.
 L.A. Fursov. Ditto, p.361.
 Rossijskaya yustitsiya (Russian Justice), No.9, 2000, p.6
 Ditto, No. 11, 2000, p.11
 Ditto, No. 9, 2000, p.6
 Vestnik Vysshego Arbitrazhnogo Suda RF (Bulletin of the High Arbitration Court of RF), No. 4, 2000, p.10
 Sobraniye zakonodatelstva (Collected Laws), No.2, 2000, p.158
 V. Chernyavsky. Problemy organizatsionnogo obespecheniya deyatelnosti sudov» (The Problems of Organizational Maintenance of the Courts’ Operation) Rossijskaya yustitsiya (Russian Justice), No. 9, 2000, p.5
 Rossijskaya yustitsiya (Russian Justice), No. 7, 2000, p.57.
 Rossijskaya yustitsiya (Russian Justice), No. 10, 2000, p.56.
 Rossijskaya yustitsiya (Russian Justice), No.10, 2000, p.56
 Vestnik VAS RF (Bulletin of the High Arbitration Court of RF), 2000, No.4, p.p.8 & 16.
 Report of V.V. Putin, President of RF, at the Fifth All-Russian Congress of Judges, in: Vestnik Vysshego Arbitrazhnogo Suda RF (Bulletin of the High Arbitration Court of RF), No. 1, 2001, p.6.
 See, for instance, I.A. Prikhodko, Nezvisimost sudji – eto blago dlya obshchestva i;i dlya samogo sudji (Independence of a Judge – a Benefit for Society or for the Judge). Legal Consultant.
 See Vedomosti Sjezda narodnykh deputatove Rossijskoj Federatsii i Verkhovnogo Soveta Rossijskoj Federatsii (Bulletin of the People’s Deputies Congress of the Russian Federation and the Supreme Soviet of the Russian Federation), 1993, No. 24, p.856.
 See Rossijskaya yustirtsiya (Russian Justice), No. 11, 2000, p.12
 See, for instance, Kommentarij k Grazhdanskomu protsessualnomu kodeksu RSFSR pod red. M.S. Shakaryan (Commentary to the Code of Civil Procedure ed. by M.S. Shakaryan), Moscow, Yurist