PROBLEMS OF THE JUDICIAL SYSTEM AND THE JUDICIAL PROCEDURE
IN A LAW-GOVERNED STATE
Discussing the problem of accessibility and effectiveness of justice, we shall inevitably go beyond the scope of individual types of the judicial procedure, since these are principles of a universal nature. Besides, from the viewpoint of a person resorting to justice, it is unimportant (and very often unclear, as well) which sphere of justice he should resort to.
It should be noted that the principle of accessibility of justice is a principle whose realization indicates the level of democracy in a society, development of legal fundamentals in a state. It cannot be denied that lately the people prefer to resort to justice, although not long ago they preferred to apply to district, city, regional committees, or the Central Committee of the CPSU.
Accessibility of justice actually depends on solution of two problems related to the spheres of the judicial system and the judicial procedure. These problems are interconnected.
Speaking about the judicial system, one has to note, unfortunately, that the system of courts in this country is far from the ideas that existed when the Concept of the Judicial Reform approved by the Parliament on 24 October 1991 was being worked out.
The matter is that if one proceeds exactly from the principle of accessibility of justice, i.e. the possibility for every individual to exercise his/her right of court, then the judicial system should not be formed similarly to the system of an executive or legislative powers. Thus, the interests and objectives of the executive authority are oriented to the optimal ways of realization of its functions in the conditions of the formed administrative and territorial, and public and national division. Under the circumstances of the present-day Russia, as well as of the former Soviet Union, the characteristics of these structures were extremely diverse. If one turns to the history, one may remember that such subjects of the Union as Moldavia or Estonia could not be compared with such regions as Sverdlovsk, Gorky, Donetsk and others which surpassed the above union republics by all parameters. In the present-day Russia there is such Federation subject as Moscow which by its scale may be compared with a large European country, and there are also subjects of the Federation where only several tens of thousand people live. The judicial system cannot follow such structure. The idea of the judicial reform consisted just in establishing the judicial system which would meet the interests of individuals and could maximally facilitate their recourse to a court. I am not saying that this idea is not being realized. As soon as the Law On the Justices of the Peace was passed, this principle has been implemented on the lowest level of the judicial system. As is known, pursuant to the above Law court localities are formed according to the norm of 15-30 thousand people per one judge.
The next level should be judicial districts, but here the system of common courts is formed according to the system of executive authorities. A judicial district should comprise 100-300 thousand people, then follow circuits with the population of half a million or a million people and, finally, the Supreme Court. Such structure would be a reliable factor ensuring accessibility and independence of the judicial power from regional authorities that very often try "to administer their courts".
Not long ago I heard the President of one of the Republics complaining that he "could do nothing with the President of the Supreme Court". If one turns to the history, one may recollect that not long ago Kirsan N. Ilyumzhinov "dismissed" the President of the Supreme Court of his republic, and it took a lot of time to reinstate the status quo and persuade him that nowadays, in contrast with former times, the head of a republic cannot dismiss a judge.
Before the revolution the jurisdiction of the Moscow circuit court covered several provinces, and never a thought could have occurred to any head thereof to influence the court one way or another. Similarly, it would be impossible to influence a court if, presumably, a circuit had jurisdiction over three regions. Unfortunately, this idea included in the Concept of the Judicial Reform has not been completely realized, but the good thing is that there are circuits (ten) in the system of arbitration courts.
Speaking about interconnection of the problems of the judicial system and the judicial procedure, one may explain why the Code of Civil Practice and the Code of Criminal Practice have been developed since early nineties, whereas the Code of Arbitration Practice was adopted already in 1995. The matter is that the problems of the judicial system and the judicial procedure in the system of arbitration courts were being solved concurrently. As a result, arbitration courts of the subjects of the Federation, circuit courts, and the High Arbitration Court were established. Allow me to remind that in the circumstances of liberal reforms of the fifties the problem of the judicial system reform was solved similarly. During one day - 25 December 1958 - a number of laws on the judicial system and the judicial procedure were enacted, as well as the Fundamentals of the Law on the Judicial System, the Fundamentals of Civil and Criminal Procedures. Evidently, one cannot expect to eliminate the time gap in drafting of laws on the judicial system and the judicial procedure unless and until these problems are not solved concurrently.
Let us remember that already in 1996 President Eltsin signed the Decree on drafting the Law On Common Courts. In January 1998 this law was submitted to the State Duma, but has not been enacted yet. It turns out that the main part of the judicial system represented by common courts has not been legally regulated, and in certain cases the Law On the Judicial System of RSFSR dated 1981 is still applicable.
By the aforesaid I would like to underline that the issues connected with the structural organization and functioning of the system must be solved concurrently, the leading principle being the principle of orientation to a certain type of the judicial procedure. Let us leave aside such special type of the judicial procedure as the constitutional judicature, but other types of the judicial procedure are not connected with types of courts at all. At the All-Russian conference of judges V.F.Yakovlev reported that more than 46 per cent of arbitration awards are delivered in administrative proceedings. The justices of the peace adjudicate administrative, civil, and criminal cases; the Duma is currently considering the draft law on administrative courts, and it is supposed that there will be already 21 circuits in the system of administrative courts. One may imagine how mixed the judicial system will be: 10 arbitration circuits, 21 administrative circuits, 89 subjects of the Federation having common and arbitration courts. Naturally, it will be difficult for an ordinary person to understand which court he should apply to.
As one may see, preparation of suggestions on formation of the optimal judicial system is a very difficult task. It stands to reason that the Law On the Judicial System of the Russian Federation that was considered by the legislative bodies from 1994 through 1997 and was eventually enacted should be a reference point. It is necessary to find an optimal combination of the types of the judicial procedure and courts, otherwise it may so happen that the judicial system will be extremely complicated and similar to a disunited medieval state.
When drafting laws on the judicial procedure, one should proceed from the uniform principles underlying the criminal, civil, and administrative judicial procedures. These are the principles of independence of courts, contentiousness of parties, and option in exercise of the rights by the latter.
At the V-th Conference of judges, President V.V. Putin reminded that 50 percent of criminal cases are tried without a public prosecutor's involvement. At the same time, the Office of a Public Prosecutor insists on a public prosecutor's participation in civil proceedings, although in this event the balance of the rights of the parties to a case is upset: why should one party enjoy the support of a public prosecutor while the other is deprived of it?
Lately it is very often pronounced that the Concept of the Judicial Reform needs radical reworking. Let me doubt the accuracy of the assertion. There is nothing to be altered in principle. It may be partially improved, but in no case those fundamentals on which a law-governed state and its judicial system are based should be rejected.