ACUTE ISSUES OF RELATIONS
BETWEEN THE DEPARTMENT OF PUBLIC PROSECUTIONS
AND THE JUDICIAL SYSTEM
Ensuring of accessibility and increase of justice effectiveness in the civil and arbitration proceedings in present-day conditions is the problem closely related to economic and social transformations in this country, vitally important interests of an enormous number of people.
Proceeding from the data of the arbitration statistics, only in the first half of the year the share of economic disputes arising from civil relations made up over 52%of the total number of the cases resolved, i.e. about 105 thousand.
In the same period the prosecutors forwarded to the arbitration courts over 5 thousand of the statements of claims, of which 4.4 thousand were entertained with participation of prosecutors, and the courts upheld about 86% of such claims. At the same time, the prosecutors studied over 4.3 thousand arbitration cases for which 567 appeals to the appellate and cassation instances, as well as reports on supervisory protesting, and supervisory protests have been brought.
Hence, participation of prosecutors in the arbitration proceedings facilitates ensuring of lawfulness in implementation of law, protection of lawful interests of individuals and entities, improvement of the quality of court rulings.
Further optimization of the relations between the Department of Public Prosecutions and courts warrants a balanced approach which would take into account both the legal experience of foreign countries, historical experience of the Russian legal system, and the present-day conditions of the society and the State.
Such balance formation process is inseparable from subsequent development of the procedural law, the code of civil procedure, and the code of arbitration practice.
Naturally, the activities of the Department of Public Prosecutions in ensuring the lawfulness can be accomplished only in the framework of the judicial authority and with its express support. At the same time, all efforts to attribute the Department of Public Prosecutions to one of the branches of the authority, including the judicial authority, seem quite unproductive, in our opinion. The analysis of the Constitution of RF, the Federal Law On the Department of Public Prosecutions of the Russian Federation makes it possible to regard the said Department as a legal mechanism for implementation of the powers of the Head of State as a guarantor of the Constitution of RF, human rights and freedoms, sovereignty, independence, and state integrity of the Russian Federation.
The present obvious criminalization of economic relations in this country affects not only the criminal proceedings, but civil and arbitration proceedings, as well.
It should be acknowledged that the activities of arbitration courts in resolution of numerous cases of insolvency as one of the forms of property redistribution acquires a special public importance. The scope of such cases and the importance of economic and social consequences sometimes affect the interests of national security of this country. It is precisely in this sphere that a high level of the evidentiary basis of the claims and active involvement of prosecutors in their consideration in the interests of justice should be especially important for the courts.
Inadequate evaluation of these circumstances and of the role of a public prosecutor in protection of the State and public interests is one of the reasons of opposition to an active involvement of prosecutors in consideration of respective cases.
In this connection, it seems necessary to supplement the Code of Arbitration Practice with the rule of the mandatory participation of public prosecutors in the arbitration proceedings in cases involving protection of economic interests of public and municipal enterprises and institutions.
Such an approach may facilitate the effectiveness of justice in cases of illegal privatization, prohibited activities, transactions with the aim adversary to the fundamentals of law and order, and morality, the failure to discharge the obligations toward the State, inconsistency between the constituent documents of legal entities and the law, etc.
The practice attests the subjectivism of a number of adversaries of the active involvement of the prosecutors in civil and arbitration proceedings. Referring to foreign experience, and in a number of instances making a fetish of it, they, to some reasons, keep silent of the information, which is unfavorable for them, on the status of prosecutors in the developed foreign countries to whose experience the references are usually made.
Thus, in the USA an attorney may represent executive authorities in the civil and criminal courts, being an advisor of the US President in criminal police matters. The Attorney’s General competence comprises counter-intelligence, political police; he is responsible for prisons and immigration matters.
In France the prosecutor is completely independent, including in respect of the court, he is subject to no challenge, unlike judges and jurors.
Proceeding from the realities of the Russian practice, it seems that optimization of cooperation between the Department of Public Prosecutions and courts should, in the interests of the judicial authority strengthening and respect of its complete independence, organically include recognition of the necessity of the prosecutor’s active involvement in the proceedings, including the arbitration proceedings, in order to improve their quality.
The analysis of the arbitration statistics testifies that in the first half of 2000 over 32 thousand judicial acts were appealed in the appellate instance, which is by almost 13% higher than in 1999. The appellate instance set aside or changed the judicial acts in 6.5 thousand cases due to the infraction of rules of the substantive law (2.1 thousand), procedural law (1.3 thousand), and also due to incomplete clarification or failure to prove the circumstances (1.7 thousand). About 20 thousand judicial acts were appealed in the cassation instance which set aside or changed over 5 thousand judicial acts. Besides, 8 thousand judicial acts were appealed in exercise of the supervisory power. This confirms the necessity to improve the quality of judgements and governs the expediency of promotion of a greater interaction between the courts and the Department of Public Prosecutions, including in respect of the obligations arising from the provisions of the European Convention on the Protection of Human Rights.
This being so, the principal objective is to create real guarantees for ensuring the law and order, as well as for efficient protection of the rights and freedoms of a man and a civil society being formed.