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M.S. Shakaryan,
HEAD OF THE CHAIR OF CIVIL PROCESS,
THE MOSCOW STATE ACADEMY OF LAW,
DOCTOR OF LAW,
PROFESSOR



ISSUES OF ACCESSIBILITY AND EFFECTIVENESS OF JUSTICE IN COMMON COURTS


      Accessibility and effectiveness of justice are urgent and topical issues for both common and arbitration courts. In this sphere there are many common problems for both the judicial systems. At the same time, they have certain differences and peculiarities. And although the arbitration process is attributed to the civil procedure already by many authors and, what is especially pleasant, by Professor V.F.Yakovlev in his interesting book Rossiya: ekonomika, grazhdanskoe pravo (voprosy teorii i praktiki) (Russia: Economy, the Civil Law (Issues of Theory and Practice), Moscow, 2000, p.159, nevertheless, I would like to dwell on the issues of accessibility and effectiveness of justice in civil cases considered by common courts, taking into account that this is exactly the system where cases concerning the interests of millions of individuals are tried and adjudicated.

      Accessibility and effectiveness of justice are interrelated, though not identical concepts. These problems have a multifold nature affected by both objective and subjective factors, at the same time the situation being complicated by the fact that the effectiveness of justice depends mostly on the activities of bailiffs rather than on courts activities.

      Both accessibility and effectiveness of justice must be provided with a proper legislative basis.

      It implies the necessity to have internally coordinated procedural and connected therewith substantive legislation corresponding to the needs of public relations, as objective prerequisites of accessibility and effectiveness of justice. As to the subjective prerequisites, they presuppose availability of qualified executors, not only judges and bailiffs, but all other officers of the court and bailiffs department.

      Are all conditions of accessibility of justice provided for the individuals in our legislation; is the of right of relief guaranteed in full to them, in other words, is the law accessible?

      What are the criteria of accessibility of justice; what should be first and foremost provided for by law?

      It seems that accessibility of justice is determined, above all, by the following conditions:

      -  a guaranteed right of court exercised following a clearly established procedure which excludes subjectivism in law enforcement;

      -  proximity of a court to the population;

      -  reasonable legal costs with the right of a poor to be exempted therefrom;

      -  reasonable time limits for consideration and adjudication of civil cases;

      -  scientifically substantiated rates of judges work load;

      -  simplicity and clearness of a trial procedure;

      -  guarantee of the legal assistance, which is granted to the poor free of charge.

      It seems possible to single out some other aspects, but we shall dwell on the aforementioned.

      Are all conditions of accessibility of justice provided for the individuals by our law, is the right of relief guaranteed in full? In other words, is justice accessible for the citizens of Russia?

      At first sight, it seems that the answer to the above question would be positive. The Constitution of RF of 1993 has actually proclaimed guarantees to everyone of the judicial protection of human rights and freedoms, the right of appeal against judgments and actions (omission to ac) of public and local authorities, public associations, and officials. Pursuant to the international treaties of RF every person is granted the right of recourse to intergovernmental bodies protecting human rights and freedoms in case all domestic means of legal protection have been exhausted (Art.46).

      The Constitution also provides for the basic principles of justice, which guarantee exercise of the right of relief.

      The Constitution has the highest validity, direct effect, and is enforced throughout Russia (Art.15).

      Elaborating the constitutional provisions concerning the right of relief, the whole branch legislation of the last decade (the Civil Code, the Family Code, the Tax Code, the Federal Law of 27 April 1993, the environment protection legislation, the consumers right protection legislation, etc.) proceeds from the priority of the judicial protection of rights and freedoms of individuals and organizations.

      It would seem that there exists the legislative basis ensuring accessibility of justice. But is it really so? Have all constitutional provisions been realized and does everybody have an actual access to justice?
      Unfortunately, this question must be answered in the negative. What I mean is Article 48 of the Constitution guarantees everybody the right of a qualified legal assistance, and in cases provided for by law it is granted free of charge.

      It is a common knowledge that this constitutional guarantee has not been realized. Ways of solution of the problem are being sought. However, the legal assistance in civil cases is rendered very rarely. According to the data of the Legal Assistance Department of the Ministry of Justice of RF, in 1999 just as in 1998 the work load in civil cases per one attorney was less than one case per month: there were fulfilled commissions in 419,532 cases (Rossiyskaya Yustitsiya (The Russian Justice), 2000, No.7, p.61). If we take into account that 5,100.4 thou. civil cases were filed before Russian courts (ditto, p.58) in 1999, then it is easy to estimate that attorneys rendered assistance in about 8% of civil cases. Hence, a considerable number of persons do not apply to attorneys for assistance, including in those cases when the other party is represented by an attorney. It is no wonder, since the fees payable to attorneys are very high and the majority of persons cannot afford them.

      Thus, pursuant to the recommendations of the Guild of the Russian Attorneys an attorneys advice costs from 100 to 150 USD per hour (see: A.A.Vlasov, Problemy sudebnoi zaschity chesti, dostoinstva i delovoi reputatsii (Problems of Judicial Protection of the Honor, Dignity, and Business Reputation), Moscow, 2000, p.157).

      It stands to reason that if the interests of one party to a case are represented by an attorney, while the other party represents itself, the principles of equity of parties and equality of all persons before the law and court are violated, although formally the law provides the parties with equal opportunities.

      Implementation of the constitutional rule urges adoption of the law on the Bar and possibly establishment of the municipal bar, but the discussions of this issue have so far produced no results.

      Accessibility of justice must be also ensured by other laws, including the Code of Civil Practice (the CCP) and a number of others. The whole legislation implementing the judicial system and the judicial procedure was and is still in great need of improvement in connection with the judicial legal reform. In this respect, along with certain success mainly in the sphere of the substantive law (the CC, the FC, etc.), some of the laws are passed with slowness while certain other laws are passed precociously; certain adopted laws are not implemented because of lack of finance and other objective reasons.

      An example of precocious adoption of a law is the Federal Law On the Executory Process passed without wide discussion and participation of the CCP drafters. As a result, a draft of amendments of and addenda to this law, in fact its new version, was introduced in less than a year after its coming into effect.

      The law on assessors is rather unsuccessful, too, its implementation offers big problems.

      Many questions arise and will arise in connection with renascence of magistrates. It is assumed that only minor and simple cases fall within jurisdiction of magistrates, which is contrary to the fact. A magistrate is the only judge in the district and his competence embraces civil, administrative, and criminal cases. Taking the load off the district courts, it may happen that the legislator will burden magistrates with cases the latter will fail to specialize in. According to the approximate estimate, over half of the civil cases tried by district courts are to be referred to magistrates. Suffice it to say that 548,000 out of 5,100,400 cases filed before district courts in 1999, concerned a writ issue (Rossiiskaya yustitsiya (The Russian Justice), 2000, No.12).

      The basic law designed to ensure accessibility of justice must be the Code of Civil Practice. In compliance with the judicial legal reform, the Ministry of Justice of RF resolved in May 1993 to prepare a new CCP, and the working group established for the purpose prepared a draft by the fixed time (1995). The draft was published in Yuridicheskii Vestnik (The Juridical Bulletin ). It was repeatedly discussed by judges and scholars and in the Council on the Legal Reform under the President of RF. In spite of the approval thereof at all levels, its adoption was postponed from 1995 to 1997 and 1998. As a result, the CCP of 1964 as substantially amended in 1992, 1995, and 2000, is still in force.

      It should be noted that the CCP of 1964 was the standard, it met completely the requirements of the time when it was adopted. Even now there are many rules which should be retained. In particular, Art. 3 of the CCP of 1964, in essence, provides for the democratic right of every interested person to take recourse to court according to the established procedure, and this should hardly be rejected. The CCP of 1964 was internally coordinated. Hence, it should not have been changed in parts, but only supplemented in connection with introduction of new institutes (a writ, judgment in absentia, the appellate procedure, jurisdiction of magistrates, etc.) or with the change of the substantive law (protection of suffrages, the judicial adoption procedure, etc.). As to the other part of the CCP, it would have been enough to change the wording or to cancel the out-of-date articles, as it was suggested by the Chair of the Civil Process of the Moscow State Academy of Law, being aware that otherwise the adoption of the new CCP might be protracted (and it has been protracted, in fact) because of the necessity to adopt the legislation on the judicial system, common courts, etc. In general, to avoid contradictions and non-coordination, it would be better to conduct the work related to law drafting by packages. In fact, the work on the laws On The Judicial System, On the Executory Process, On the Bar, the Code of Arbitration Practice, and the CCP, etc. should have been conducted concertedly and simultaneously.

      Meantime, the law drafting is conducted separately. Having preserved RSFSR both in the title and in certain articles, in spite of all amendments and addenda, the CCP has become a patch-work quilt of the non-existent state. And the main point is that it is contradictory. There are many non-coordinated and out-of-date rules and terminology, namely: in para 3, Art.4, articles 8, 29, 26, para 5, Art.129, part 4, Art.208, para 6, 7 Art.219. There are many contradictions between the rules of the cassational and review procedures. Unfortunately, some of the amendments introduced to the CCP are unsuccessful, for example, parts 1 and 2, Art.1, articles 13, 208, etc. (For more details see: M.S.Shikaryan, Prinimat novyi GPK ili podpravlyat staryi (To Adopt the New CCP or Amend the Old One), in: Rossiiskaya Yustitsiya (The Russian Justice) , 2001, No. 2, 3).

      The Code of Administrative Practice of RF is known to be drafted without participation of experts in the procedural issues, which is hardly right. Since 1938 common courts have been trying cases arising from administrative relations. The jurisdiction of courts over such cases has considerably changed. At present, administrative proceedings are conducted both within the framework of the civil and arbitration processes. It is a common knowledge that the civil procedural form is adapted to protection of any subjective rights. Why is it necessary to have a code of administration practice? And in what will it differ from the CCP or the CAP? Why is there no publicity in the matter? Do the drafters of the mentioned code (the second CAP) take into account that the Supreme Court of RF has taken the initiative in submission to the State Duma of a draft law On Amendments of the Law On the Judicial System, which provides for establishment of administrative courts in the system of common courts? The draft suggests establishing interregional courts as the first instance, 21 circuit courts as the appellate instance, and a judicial board for administrative cases in courts of the subjects of the Federation and the Supreme Court of RF. Besides, the draft provides for the possibility to appeal against judgments of magistrates in administrative cases (it is not indicated in which ones) in an interregional court. There will appear two appellate instances with respect to a magistrate. As is clear from the explanatory note to the draft law, the establishment of administrative courts will require considerable funds, which is rather burdensome for the budget of Russia.

      And the main point: the judicial system will become more complicated, which will hamper access to justice. Many disputes arise with respect to determination of the jurisdiction over civil cases even now, when, at first sight, the jurisdiction of common and arbitration courts over civil cases is clearly delimited according to the sphere of persons activities. It is easy to presume that establishment of the suggested judicial instances for administrative cases will render the solution of the problem even more complicated, since the notion of administrative cases or cases arising from administrative relations is ambiguous.

      The explanatory note to the mentioned draft law states that in 1999 the courts of Russia considered over 350,000 cases arising from administrative relations.

      Hence, the so called administrative cases make up about 7% of all civil cases (over 5,100,000) filed before common courts.

      Hence, is it necessary to establish such a complicated court structure for such quantity of cases?

      Moreover, as mentioned above, cases arising from administrative relations include various cases which could hardly be attributed to administrative ones.

      Thus, the published statistical data for 1999 informed that the total number of complaints in cases arising from administrative relations had increased from 275,200 to 331,900, or by 20% including:

      -  seeking recognition of legal acts as unlawful - from 3,100 to 3,170;

      -  against unlawful actions of officials and collective bodies infringing the rights of individuals - from 111,500 to 140,700, or by 26.2%;

      -  arising from tax legislation violations - from 62,800 to 84,500, or by 34.5%;

      -  arising from violation of the election legislation - from 822 to 1,739, or by more than twice. (Rossiiskaya yustitsiya (The Russian Justice) , 2000, No.7).

      In essence, all the aforementioned cases may be only conventionally attributed to administrative ones, since the latter include only cases arising from complaints against administrative sanctions, but the data thereon is not cited. A small arithmetic estimate shows that these cases constitute less than 30% of the total number. It is evident that cases arising from the tax legislation violation may be attributed to cases arising from administrative relations, but only if the complaints concerned are against actions of tax authorities; and the claims of the latter to taxpayers are considered in adversary proceedings, and in absence of a dispute the taxes arrears are recovered by virtue of a writ (para 5, Art. 1252of the CCP).

      Therefore, establishment of interregional and circuit courts is unnecessary and burdensome. Implementation of the draft will complicate the judicial system, give rise to many disputes about jurisdiction and cognizance. Existence of district and interdistrict courts, circuit arbitration courts (10) and circuit common courts (21) and, in addition, areas of magistrate courts may perplex not only an ordinary person but even a lawyer. The simple and clear judicial system of common courts should not be complicated and the access to justice should not be hampered.

      Hence, one of the reasons of inaccessibility of justice is imperfection of the law. Along with this, the following factors are deemed to be objective reasons of inaccessibility of justice:

      -  overloading of judges (on average, a district judge adjudicates 8-10 cases a day; judges have to work during weekends (to write judgments and determinations));

      -  lack of judges (less than half of the needed staff number work in some of the courts);

      -  maladjustment of court buildings for judicial proceedings, etc.

      The aforementioned and some other circumstances entail inaccessibility of a process, which is manifested in its slowness, expensiveness, actual inequality of parties, inaccessibility of the qualified legal assistance.

      Suffice it to say that the time for preparation and trial of civil cases provided for by the CCP has not been observed since long ago. The published data shows that the period of up to 3 months is deemed normal for a case trial. Thus, in 1999 287,000 civil cases were tried during over 3 months, and 72,000 cases - over a year. Out of 553,500 cases which have not been finished proceedings in 148,700 cases lasted for over 3 months, and in 67,000 over a year. At the same time, it is indicative that judicial writs were included into the number of tried cases.

      Lengthy civil cases trials and very often threats on the part of respondents make claimants waive judicial protection. However, one of the amendments of the CCP (Art.34) introduced in 1995 with the idea to extend the principle of option, concerned acceptance of a claimants abandonment of an action by a court without finding out the reasons therefor.

      There are subjective along with objective reasons for inaccessibility of justice, and this predetermines its ineffectiveness.

      Effectiveness of justice implies achievement of objectives of the judicial protection, of the purposes of justice. For a particular individual or organization justice is accessible and effective if his/its subjective rights, freedoms, and legally protected interests are defended by a court, the case is tried timely and justly, i.e. a lawful and grounded, substantiated and fair judgment is delivered. A mere delivery of a judgment does not always mean that the objective of justice is achieved and the right is protected. The objective is achieved when a judgment is executed or enforced. At the stage of the executory process effectiveness of justice is attained by a bailiffs lawful actions. Of course this stage of the process also needs a proper legal basis. It is evidently necessary to determine the scope of bailiffs work, etc. But a lot depends on subjective factors, including the following:

      -  judges unconscientious attitude towards the case, non-observance of law, violation thereof. In practice, there are multiple cases of actions rejection, shelving thereof on the grounds not provided for by articles 129, 130 of the CCP, etc.; setting a case down for hearing without preparation thereof for court proceedings, etc.;

      -  many judges fail to stick to the procedure of reception of individuals: during reception hours they invite the parties for interlocution or consider administrative cases (attachment, fines, etc.);

      -  low qualification of some of the judges and bailiffs.

      It is evidently necessary to think over the system of training and retraining of judges and bailiffs. The Academy of Justice is called to solve the matter with respect to judges, the main task being postgraduate education of judges according to special programs and not education of students. It would be desirable if an office of an assistant judge be introduced, which would allow to form staffs of qualified judges.

      In conclusion, the following suggestions may be advanced:

      I. In the sphere of law:

      1.  To adopt interconnected laws in one package. This also concerns amendments of and addenda to laws.
      With respect to accessibility of justice the above suggestion concerns the CCP, the CAP, and issues of the CCP common for the judicial procedure, as well as the laws On Common Courts, On the Bar, the new version of the Law On the Executory Process.

      2.   It is necessary to analyze the rules of the mentioned draft laws from the viewpoint of accessibility and effectiveness of justice, taking into account the real situation in the country in the sphere of the judicial procedure.

      II. To eliminate the objective reasons of inaccessibility of justice, in particular:

      1.  To bring the staff number of judges and other officers of courts of all levels into compliance with their work load according to the scientifically grounded workloads for a judge and other staff members.

      2.  To improve working conditions of courts and judges (premises, logistics, equipment, technical facilities, legislative base, etc.).

      III. To eliminate the subjective causes of inaccessibility and non-effectiveness of justice, in particular:

      1.  To conduct a proper selection of qualified judges and bailiffs (testing, the content of exams).

      2.  To ensure postgraduate education, the system of training of judges.

      3.  To improve organization of reception of individuals.

      4.  To organize regular upgrading training of judges (seminars, courses, practical studies, a day for creative work, etc.).


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