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V.M.Sidorenko,
SENIOR LECTURER OF THE URAL STATE ACADEMY OF LAW


PROBLEMS OF ACCESSIBILITY OF JUSTICE AT CERTAIN STAGES OF CIVIL AND ARBITRATION PROCEEDINGS


      The Constitution of the Russian Federation proclaimed unrestricted access to justice for all interested persons, both natural and legal (Art. 46). The Constitutional Court of the Russian Federation has repeatedly stated in its judgements that access to justice cannot be restricted. It implies that the possibility to have a free recourse to courts (both common and arbitration) must not be restricted in any way by hindrances of the financial or procedural nature. It would seem that the judicial system is called to be a guarantor of this constitutional provision. But, unfortunately, there exists the problem of access to courts stemming from courts activities. It is suggested to discuss briefly within the scope of this article those problems of accessibility of justice which, in our opinion, are so evident that the majority of us have got used to their existence and, hence, do not even regard them as a hindrance to free access to relief at law and consider them to be quite a natural feature of the judicial system.

      First of all, the problems of accessibility of justice at certain stages of the civil and arbitration procedures may be divided into two types:

1)       restrictions stemming from the prevalent court practice (these are mostly the problems arising at the stage of a case institution in a court);
2)       restrictions on accessibility of justice expressly stipulated by the procedural legislation (issues of appeal against arbitration determinations).

      Here are some of the examples.

      Problems of accessibility of justice at the stage of a civil case institution in a common court.

      There exists, in the direct sense of the word, the problem of unhampered possibility to hand over a statement of claim or complaint to a judge.

      The Code of Civil Practice of RSFSR (the CCP of RSFSR) does not regulate this matter at all. Pursuant to Articles 126-129 of the CCP a statement of claim is submitted to a court in a written form, and a judge solely decides whether to accept the statement in a civil case. That is, the law regulates only a judges actions connected with institution or rejection of a civil case and the procedure thereof. The theory of the civil process considers that it goes without saying that the absence of stipulation of the time of a civil case institution in the CCP of RSFSR implies a judges duty to institute the case on the same day he/she receives a statement of claim, provided there are no grounds for rejecting or shelving it[1]. Any sane person would never imagine that a court may evade accepting statements of claim and complaints.

      Nevertheless, every person who has taken, at least once, a legal recourse to either an arbitration or common (district) court of the Sverdlovsk Region is aware of the shocking difference in methods of resolution of this problem by these courts. Any interested person may freely file his statement of claim with the arbitration court during working hours of every working day. It does not mean that a statement of claim will be accepted by the arbitration court for subsequent institution of proceedings. However, the mere fact of an unrestricted possibility to file a statement of claim (complaint) with a court is of great importance, since it is the matter of the time spent on a journey to the court; and this is the working time during which a person is absent from work, which is compensated neither by anything or anybody. And this is not the time spent on participation in court proceedings but on performance of mere technical actions.

      The following is the procedure of acceptance of statements of claim in district courts of Ekaterinburg. There are 10-20 rooms with plates indicating the names of the judges. On every door or a special stand there is a time-table ... not of reception days, but of hours when the judge receives statements of claim and complaints. Besides, the number of hours does not exceed, as a rule, four hours a day, and the number of reception days does not exceed two days and more often it is one day a week only. However, it is not a problem yet. Judges are, after all, human beings and pursuant to Art. 37 of the Constitution of the Russian Federation and the Labor Code of RF they also have the right to rest, i.e. to an annual leave, temporary disability leave, and unpaid leave. And since judges are, as a rule, well versed in laws, they are very well aware of the fact that the time of temporary disability during a leave is not excluded from the time thereof (Art. 70 of the Labor Code), thus the latter is very often prolonged. And as a result, long corridors of a court where every third-fourth door has an announcement tacked on it: Judge (full name) is on leave. Acceptance of documents will not be resumed till (date). As to the chancellery, its door has a tacked note with a stern announcement: The chancellery does not accept documents. There is a stand nearby where the information about specialization (according to a territorial principle or certain categories of cases) of judges is placed, making it clear unequivocally that a judge will not deal with another judges cases.

      There is still one more way of making a judge receive a persons application - to mail it. But even here problems cannot be avoided.

      First, such method will not do in cases an applicant seeks measures to be taken for securing his action, in which case the time is calculated in hours, if not in minutes. Second, even 2-3 years ago there existed the district courts practice (I cannot ascertain it persists at present, but it is quite probable), when an employee of the chancellery came once a month to a post office to fetch the correspondence addressed to the court. And, for example, the employee of the chancellery of the Zheleznodorozhnyi district court refused flatly to accept registered letters with declared value addressed to the court, explaining that nothing valuable can be sent to a court (a registered letter with declared value is the only kind of posting which is accompanied by a list of the content).

      And so there is a situation when crowds of people are hunting for judges in district courts, the latter sooner resemble the debtors hiding from creditors than persons administering justice.

      Such actions, in my opinion, do not facilitate accessibility of justice. This is not the problem of a protracted court proceedings in civil cases, but the problem of courts evading discharge of their duties to administer justice which are imposed on them by the Constitution of the Russian Federation (Art. 118). There are no obstacles to follow the example of arbitration courts and commission the employees of the chancellery to accept formally the documents submitted to courts with subsequent decision of a judge on acceptance or rejection thereof.

      The next problem of accessibility I would like to dwell on is the problem of restricting the principle of court proceedings publicity. Arbitration courts succeed here.

      All principles constitute a uniform system and in totality determine the nature of a civil process. They are closely interconnected and interdependent. The interconnection of some of the principles reveals itself differently: some of them develop and supplement provisions of the others; in other cases some of the principles serve as guarantors of the others, facilitate their actual implementation[2].

      In this connection, I think that the principle of accessibility of justice implies also a free possibility to watch and hear the process of justice administration not only by interested but any other persons. Therefore, the principle of publicity (Art.9 of the CAP of RF) is a guarantor of the principle of accessibility of justice.

      However, all kinds of traps and ambushes lie in wait for inexperienced persons on their way to a court session room. For example, in the doorway of the arbitration court of the Sverdlovsk Region they are inevitably met by a cordial doorman asking in a friendly way, Where are you going to?. - To the arbitration court. Immediately after follows the answer of the doorman in a peremptory tone, Show me your statement of claim or a court determination.

      Persons intending to attend a court session of the Federal Arbitration Court of the Ural Circuit will face the system of sifting of persons not participating in the case, which consists already of two stages. At first, they will be met by a similar doorman with kind eyes, but less talkative, and then they will be stopped by dashing guys from the service of bailiffs. After short contacts with them, one starts to doubt that he has come to a court and not to an institution where admittance is permitted by a pass ordered beforehand

      Are these measures necessary to ensure security of courts? Or is it a struggle against terrorists and hooligans conducted in the country? Then why not check the individuals with metal detectors? Why not ask them if they have some kind of arms, alcohol, or drugs? And why not at least explain that to-day the court building has no rooms adapted for public court proceedings, but there will be such rooms in five-ten years and then people may come and be admitted. In my opinion, it is a struggle with certain manifestation of publicity of court proceedings. I suppose that if the practice of gentle restriction of access to arbitration courts continues, the judges will have no moral right to complain of prejudicing rumors about unlawfulness of many awards and judgments, since persons will have no chance to make sure of the contrary personally.

      Problems of appeal against arbitration court determinations.

      Although this issue concerns a very narrow sphere, namely, appeals against arbitration court determinations, in my opinion, the situation here has become scandalous.

      The requirement that a law should set forth the procedure of reversal of unlawful and ungrounded judicial acts seems to be a gospel truth. In connection with expansion of the principle of option in the civil and arbitration processes, the matter of reversal of unlawful awards and judgments depends mostly on the will and wish of the process participants. Besides, the Constitutional Court of the Russian Federation has rather sternly clarified that restriction of the right to appeal against judicial acts signifies restriction of accessibility of justice. An erroneous award or judgment cannot be recognized as lawful, and the state is obliged to guarantee protection of human rights and freedoms against a miscarriage of justice. The lack of possibility to review an erroneous judicial act minimizes and restricts everybodys right of relief, which is inadmissible[3].

      In the Ruling dated May 28, 1999, No. 9-P, in the case of verification of constitutionality of Part 2, Art. 266 and para 3, Part 1, Art. 267 of the Code of RSFSR On Administrative Offenses, the Constitutional Court of the Russian Federation again stressed that the right of relief implies protection of rights and lawful interests of a person not only against arbitrariness of legislative and executive powers, but also against erroneous judgments and awards, an efficient guarantee of such protection being a possibility of case review by a higher court, which should be ensured by the state in one or another form (depending on peculiarities of each kind of the judicial procedure). This legal position of the Constitutional Court of RF, as having a general character, extends onto all kinds of the judicial procedure.

      However, rulings of the Constitutional Court of RF are rulings of the Constitutional Court of RF, and arbitration courts continue applying rules of the current Code of Arbitration Practice of the Russian Federation violating roughly the requirements of Article 46 of the Constitution of the Russian Federation.

      The possibility to appeal against determinations of an arbitration court in the appellate instance pursuant to para 1, Art. 160 of the CAP of RF and in the cassation instance pursuant to para 179 of the CAP is provided only for cases stipulated in the CAP of RF. For example, the determination on dismissal of a challenge to a judge is not appealable. However, the drafters of the CAP of RF had evidently in view that such determination may be contested by including respective objections in an appeal or cassation. In particular, the circumstances that have served as grounds for a challenge but were disregarded, may be taken into account along with other motives in the case consideration by higher instances[4].

      However, an arbitration court delivers a considerable quantity of determinations out of the framework of court proceedings, after delivery of an award in a specific case and even after its coming into effect. The following determinations are included in the above category:

      - determination on refusal to impose a penalty on a bank or any other credit institution for a failure to execute a judicial act of an arbitration court (Art. 206 of the CAP);
      - determination on refusal to clarify an award and to correct slips of a pen, misprints, or arithmetic errors (Art.139 of the CAP);
      - determination on delivery of a writ of execution following an award of a private arbitration court.

      Pursuant to the rules of the CAP of RF no violations of the law committed by a court in delivery of such determinations can be a ground for reversal of the latter, since such grounds simply do not exist. And arbitration courts issue determinations without notification to an interested party thereof, not worrying about possible consequences of delivery of unlawful judicial acts, for example, they deliver a writ of execution following an award of a private arbitration court, and the respondent has been unaware that the case was entertained there[5]. And why worry about it when there is even no theoretical possibility to reverse a judicial act issued in exercise of supervisory power by the High Arbitration Court of RF? Pursuant to Part 1, Art. 191 of the CAP of RF determinations of arbitration courts that have come into effect may be appealed and reviewed in exercise of supervisory power separately from an award in those cases when the CAP provides for such appeal or when they hamper the progress of court proceedings. That is, determinations cannot be appealed against because the Code does not provide therefor, and they cannot be challenged because they cannot be appealed against. Such determinations by their nature cannot hamper the progress of court proceedings since they are delivered after the award has already been issued. Meanwhile, unlawful determinations are quite capable to annihilate the significance of the earlier award or to prejudice irremediably the rights of individuals and organizations.
      The appellate and cassation instances deliver determinations on refusal to accept complaints against such determinations, pointing out that appeal against this determination is not provided for by the rules of the Code of Arbitration Practice of the Russian Federation. Besides, the judges do not even go into the root of the complaint written on several pages and enumerating the rough violations of the rules of the substantive and procedural laws. Most likely they do not bother to think about the blunt unconstitutionality of these rules of the CAP of RF.

      The court should be a bulwark of justice and an example of impeccable morals. A law... should serve as the visible fence installed in a dangerous place, and not a trap placed on a highway (an extract from the speech of the panel attorney V.N.Yazykov pleading the case of prince Obolenski in 1833) [6]. In conclusion, I would like to point out that problems of justice accessibility lie not only outside of the judicial system (such as court financing), but also inside it, generated by courts themselves. The judicial power should be logical in its actions. One must not be exigent to others without being exacting to himself.



[1]  Grazhdanski protsess (The Civil Process). A text-book, 3-d edition. Edited by V.V.Yarkov. Moscow, Bek, 1999, p.264.
[2]  Osnovnye printsipy grazhdanskogo protsessa (Basic Principles of the Civil Process), edited by M.K.Treushnikov, Z.M.Cheshki. Moscow, 1991, pp.3-5.
[3]  The Ruling of the Constitutional Court of the Russian Federation dated February 3, 1998, No. 5-P, in the case of verification of constitutionality of Articles 180, 181, para 3, Part 1 of Art. 187, and Art. 192 of the Code of Arbitration Practice of the Russian Federation.
[4]  Kommentariy k arbitrazhnomu protsessualnomu kodeksu Rossiiskoi Federatsii (Comments on the Code of Arbitration Practice of the Russian Federation). Edited by V.F.Yakovlev and M.K.Yukov. Moscow, 1996, p.43.
[5]  Sudebnaya sistema Rossii (The Judicial System of Russia). Moscow, 2000, pp. 256-257.
[6]  A.Medvedev. Rossiysskiye zakonodateli i normy russkogo yazyka (Russian Lawmakers and the Rules of the Russian Language), Hozyaistvo i pravo (Economy and Law), 1999, No.6, p.76.


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