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I.V.Reshetnikova,
DOCTOR OF LAW,
PROFESSOR OF THE CHAIR OF CIVIL PROCESS,
THE URAL STATE ACADEMY OF LAW



A COURT RECORD IN LIGHT OF ACCESSIBILITY OF A RELIEF AT LAW


      Accessibility a of relief at law is not always identified as a principle of the civil and arbitration procedures. However, both the existence and substance of the above principle stem from a number of the constitutional provisions:

      1)  protection of rights and freedoms is guaranteed to everybody (part 1, Art. 46 of the Constitution of RF);

      2)  resolutions and actions (or omission to act) of public and local authorities, public associations, and officials may be appealed against in a court (part 2, Art.46 of the Constitution of RF);

      3)  pursuant to international treaties entered into by the Russian Federation everyone is entitled to apply to intergovernmental bodies of protection of human rights and freedoms in case all domestic means of legal protection have been exhausted (part 3, Art.46 of the Constitution of RF);

      4)  nobody can be deprived of the statutory right to a trial of his case by that court and that judge to whose jurisdiction the case is attributed by law (part 1, Art. 47 of the Constitution of RF);

      5)  the right to receive a qualified legal assistance is guaranteed to everybody. In cases provided for by law, the legal assistance is rendered free of charge (part 1, Art.48 of the Constitution of RF).

      All the above provisions of the Constitution of RF in aggregate attest to the existence of such principle of the court procedure as the accessibility of a relief at law. Branch laws develop provisions of this principle. For example, Article 107 of the Code of Arbitration Practice of RF (hereinafter - the CAP of RF) gives a complete list of grounds for rejection of an action, Article 108 of the CAP lists grounds for return of an action to the claimant, by law the judicial acts may be appealed or protested against, etc. Therefore, the accessibility of a relief is not only a proclaimed right of access to courts, but also a procedural law mechanism allowing to get an actual relief at law. The accessibility of a relief need not be reduced to the moment of recourse to a court, a wide view of accessibility of all kinds of relief more corresponds to protection of rights and interests of various persons. With such wide approach, the accessibility of a relief covers all stages of the process: from the access to courts, through accessibility of means of personal interests protection, to the accessibility of the executory process.

      Many institutes of the arbitration procedural law contain the rules guaranteeing all persons seeking relief the real possibility to use it.

      In this article I would like to dwell on the accessibility of a relief in light of trial recording. Somebody might think that this is an unusual aspect of the problem of court proceedings accessibility, but a court recording, like any other procedural means, may make protection of interests either real or fictitious.

      The role of a court record consists in that it is one of the most important procedural documents having an evidential significance[1]. The evidential significance reveals itself in that the parties may refer to a record to substantiate their appeals, the court uses the data of a record to ground its judgment, a higher instance may verify the lawfulness of a case trial by the original instance using a court record. If a court record is missing from the case file, or it is not signed by the court president, these facts are deemed an absolute cause for reversal of the arbitration award on appeal (Art. 158 of the CAP).

      Participants of an arbitration process are entitled to get acquainted with a record of a court session or a procedural action and submit their comments on its completeness and correctness.

      The specific nature of court recording in an arbitration court (as distinct from common courts) consists of two aspects. First, a record does not reflect all actions performed in a court proceedings, but only the circumstances indicated in Art.123 of the CAP are subject to recording. Second, a record is kept by a court president or another judge of the tribunal entertaining the case. As soon as the current CAP was adopted, this provision was challenged by certain scholars. In particular, V.M.Sherstyuk noted three essential deficiencies in such approach to court recording. He writes that keeping a record by the court president diverts the latters attention from the trial and there is a danger of making the record deliberately fit the award, besides, the quality of the record is affected[2].

      If a court record is regarded in the light of the accessibility of a relief at law, then violation of participants rights should be especially noted. If a court record is a documentary proof, it should be complete and reliable. The CAP construes completeness of a record narrowly, namely, it does not provide for recording all actions that take place in legal proceedings, but only circumstances stated in Art. 123 of the CAP. Pursuant to Art.123 of the CAP only oral statements and motions of the case participants and witnesses testimony, oral explanations and clarifications of experts opinions are attributed to the evidence examined in the courts, i.e. to what conveys the content of court proceedings or reflects performance of separate procedural actions out of court. Such narrow approach to court recording stems from the nature of the arbitration procedure where examination of documentary evidence prevails. However, by virtue of the verbal nature of court proceedings, documentary evidence should also be examined, and if any questions arise in the course of this procedure, they remain unrecorded. Examination of explanations of the parties and third persons also remain out of record. In consequence, a court record as a documentary evidence does not reflect completely even all points of oral evidence. The fact that a court record is kept by a judge makes reliability of the documentary evidence doubtful, especially since comments on completeness and correctness of the record are made by the same judge.

      If a record is recognized as a documentary evidence, it is to meet the requirements made to all other kinds of evidence, in particular, to reflect objectively the course of a legal process.

      The system of recording in common courts is also far from being perfect. It cannot meet all legal requirements to complete reflection of all essential points of court proceedings. For example, pursuant to Article 227 of the Code of Civil Practice (hereinafter - the CCP) a court record should reflect the content of pleadings and the public prosecutors opinion. If the parties speeches and the public prosecutors opinion are not presented in a written form, it is actually impossible to record them. As a result, a judgment may be unlawful, an appeal may turn out to be ungrounded, etc. Judicial records in common courts lack not only the completeness of statement of the examined evidence, but they also distort the parties positions, since a clerk of the court, lagging behind a speech, renders pronounced phrases as he has heard and remembered them.

      Furthermore, it is actually neither possible to record, nor to put down without corrections all explanations, testimony of the civil process participants, since their speeches may be either fast or slow, excessively emotional, spontaneous, with elements of dialects, profane words, etc. Hand recording slows down court proceedings, breaks the rhythm of interrogations. A judge has to interrupt a case participant not because of the procedural reasons, but only because a clerk of the court fails to keep pace with a speaker. As a result, the adversary nature of proceedings is prejudiced. The procedure of consideration of comments on a court record is far from reflecting objectively the events that have taken place in court, since the judge adjudicates from memory, there is no complete trial record.

      Finally, the technique of court recording both in arbitration and civil processes adversely affects its quality as the documentary evidence. Hence, the judgment based on such records fails to be always lawful and grounded. Appellant, cassation, supervision reviews of judgments and awards are unable to protect the interests of individuals and organizations, either. Consequently, the purposes of justice may appear unattainable.

      Why is it necessary to achieve completeness of court records and to what extent may it be brought? Completeness of a court record is necessary for having complete information on all facts that take place during court proceedings in order to be able to reproduce them correctly. Besides, evidence, motions, and other materials in writing may be regarded as case materials. Therefore, completeness of a court record means that it is full of the information that was disclosed in the process verbally.

      To make the court records complete special technical facilities may be used that have long been known and used in other countries.

      The most widespread are the special facilities for taking down the court proceedings in shorthand with subsequent deciphering and narration of the court proceedings in the form of a record (the USA, Great Britain, etc.) To introduce such procedure, it is necessary to have additional funds for acquisition of the equipment and training of the staff, as well as recruitment of additional court personnel.

      Two eventual models of court recording are used by the Arbitration Court of the New York Stock Exchange: first, the use of the stenographic equipment with further deciphering and drawing up a record; second, the use of a combined technique with the parties consent and at their expense. The stenographic device is connected with a PC. The clerk of the court takes down the proceeding in shorthand, and simultaneously a special program deciphers the shorthand notes, the result being seen on the monitor of the PC as a text of a ready record.

      The Supreme Court of the USA rejected the stenographic technique and introduced tape recording at the appellate stage of cases review[3]. Besides, it should be noted that in the Supreme Court of the USA speeches of the counsels made in the appellate instance are strictly limited in time and shorter as compared to those made in original courts. The deficiency of such method consists in that a tape recording is not always of a good quality. To eliminate this deficiency, American courts have lately started using the method of dictating the material for tape recording. A special person repeats everything said during the process and his speech is taped. The possibility to dictate the material for tape recording with its subsequent typing is extensively used in the medical practice, where a case history is written down from a tape recording. This method may be used in the court practice, for example, for determinations in a record.

      Any of the above methods of record keeping ensures completeness of a court record. Is it possible to use the technical facilities instead of a handwritten method for court record keeping in Russia? There are no legislative restrictions in this respect. If taping of a process on parties motion is possible, why not introduce the same procedure for court recording or for performance of certain procedural actions?

      Moreover, the CAP sets forth the time limits for a record compilation - not later than the day following a case trial end. This time could be spent on deciphering of shorthand notes, tape-to-printer conversion of a tape recording.

      In the science of the civil, arbitration procedural law no comparative study of the methods of court record keeping in different countries of the world has been made.

      The Code of Economic Practice of the Republic of Belarus (hereinafter - the CEP of Belarus) (adopted in 1998) has introduced an innovation concerning court recording.

      Court recording has been introduced to the CEP of Belarus for the first time as a guarantee of protection of a process participants rights. Pursuant to the general rule, keeping a court record is optional with exception of a number of cases (Art. 149 of the CEP of Belarus). Court recording is compulsory in the following six cases:

      -  recording of a procedural action performed out of the economic court session;

      -  participation of an interpreter, an expert, a specialist in the economic court session;

      -  oral challenge to a judge (a tribunal) or to participants of the case during the court session;

      -  fulfilment of court commissions;

      -  abandonment or recognition of an action, change of the cause and subject thereof in the court session;

      -  when it is deemed necessary by the economic court.

      The CEP of Belarus, same as the CAP of RF, does not reflect the whole judicial process. A court record should statutorily reflect all essential points of court proceedings or a separate procedural action performance. Apart from the circumstances subject to recording by virtue of Art. 123 of the CAP of RF, the law of Belarus requires that a court record contain explanations of persons participating in a case, results of evidence examination, the content of court pleadings, information about announcement of judicial acts, and clarification of the procedure and time periods of appeal against the latter. A court record may be made using technical facilities and subsequently committed to paper. It is possible to use audio- or video tape recording as the technical means[4]. A court record is drawn up by a clerk of the economic court and signed by the court president within five days thereafter.

      The Code of Arbitration Practice of the Kyrghyz Republic has provided for a court record keeping in the original, appellate, and review instances, and during performance of certain procedural actions out of a court session (Art. 62 of the CAP of KR). A record is kept by a judge or a clerk of the court (Art.64 of the CAP of KR). Completeness of a court record implies recording of the information essential either for a case trial and adjudication or performance of procedural actions. In particular, the parties pleadings and experts oral opinions are recorded in the scope significant for a case adjudication. The content of a record is brought to knowledge of and is signed by a respective person during a court session. By the courts approbation, the record is amended according to participants objections. Written objections are attached to a court record. On the courts order explanations of case participants, experts oral opinions, witnesses testimony may be shorthanded and audio- and video-recorded. Tape recordings and shorthand notes are attached to the case materials, which fact is entered in the court record (part 5, Art.64 of the CAP of KR).

      The aforementioned examples of court record keeping in arbitration (economic) courts of Belarus and Kyrghyzstan show the tendency of recording oral evidence and using the technical facilities.

      Completeness as a quality of a record of an arbitration court session implies, evidently, that the essential points of proceedings, especially those oral ones, should be reflected in the court record.

      It would be useful if the new CAP of RF provided for the possibility to use technical facilities for court recording. It will not entail any heavy financing since it is possible to use technical facilities against the parties motion, simultaneously charging them with equipping the proceedings with audio- and video recording. It would be rational to transfer the duty of court record keeping to a clerk of the court.



[1]  Kommentariy k Arbitrazhnomu protsessualnomu kodeksu Rossiyskoi Federatsii (Comments to the Code of Arbitration Practice of the Russian Federation) edited by V.F.Yakovlev, Moscow: 1998, p. 297.
[2]  V.M.Sherstyuk, Novyye polozheniya Arbitrazhnogo protsessualnogo kodeksa Rossiyskoi Federatsii (New Provisions of the Code of Arbitration Practice of the Russian Federation), Moscow, International Center of Financial and Economic Development, 1996, pp.64-65.
[3]  In the USA an appellate procedure by its features corresponds to a cassation in the Russian court proceedings.
[4]  Comments on the Code of Economic Practice of the Republic of Belarus. Minsk, Amalfeya, 1999, p.280.


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