PARTICIPATION OF A PUBLIC PROSECUTOR IN CIVIL AND ARBITRATION PROCEEDINGS AS A FACTOR ENHANCING EFFECTIVENESS OF JUSTICE
The problem of accessibility and effectiveness of justice is extremely actual and meaningful, especially nowadays when people's distrust towards courts brings the majority of them to resort to the shady criminal justice which is known to adjudicate not according to a law but to "notions".
It is no secret that the main drawbacks of our "domestic Themis" is, first of all, non-observance of the time limits of cases trial when they are delayed without sufficiently valid excuses or adjourned without appointment of a new trial date and in consequence the people awaiting the results of their disputes adjudication give way to despair. On February 2, 2000 Rossijskaya Gazeta (Russian Gazette) reported that because of the official circumlocution the court in Essentuki during six years had been unable to divide a house. Five judgments had been reversed as a result of violations of the rules of the substantive and procedural laws. During the period the parties nearly killed each other, and one of the parties was convicted of the above action and had already served the adjudicated term of imprisonment, but the court trial was still going on and there was no end to it. It should be noted that the parties to the contentious legal relations are retirees and two disabled workers of the second category.
Very often judicial officers intentionally protract delivering copies of a judgment, thus
depriving the parties of timely familiarization with court records which, in its turn, reduces the time for filing appeals including a motion to a public prosecutor for bringing a qualified cassation protest before the higher judicial instance.
Besides, the lack of the required professional qualification of a part of the judicial corps, especially in the circumstances of the constantly changing law and complication of the rules of the substantive law, adversely affects the quality of their judgments.
The fact that the number of judicial errors revealed by the courts of cassation and resulting in subsequent reversal and change of the judgements was about 100 thousand in 1999 only. At the same time, no less worrying is the fact that unlawful judicial rulings are very often issued in cases affecting constitutional rights of citizens - the right to work, to housing, to compensation of damages, etc.
Furthermore, such inadmissible factor in justice administration as engagement of some of the judges, makes individuals motion for their cases trial in other regions, since they perceive the judge's evident interest in the outcome of the proceedings (first of all, it concerns the cases connected with violation of individuals' lawful rights by public authorities). Thus, the citizens of Karachayevo-Cherkesiya motioned for change of the territorial jurisdiction and removal of their cases trial to the neighboring regions, including the Stavropol Region, because they are distrustful of the local judicial bodies. The motion was accompanied by vigils and destruction of courts buildings, recourse to higher instances, submission of numerous complaints signed by thousands of people. Such indignation of the population was provoked by unlawful judgments and illegal persecution. (Rossijskaya Gazeta (Russian Gazette), 16.06.2000). Such facts are absolutely inadmissible in a law-governed state.
Very often most judges repulse any criticism forgetting that any self-respecting power must aspire for its purity by dismissing unscrupulous officers.
We should not, of course, ignore objective reasons for violation of cases trial time limits, in particular, annually increasing number of civil cases, lack of judicial officers resulting in overloading of judges, as well as inadequacy of logistics necessary for normal functioning of courts.
Introduction of the institute of justices of the peace intended for relieving district courts of their overwork and for adjudicating simple administrative, civil, and some of the criminal cases is hampered because of the lack of funds for the purpose in the budget.
Nor should be ignored the fact that for the majority of individuals a recourse to a court is an inadmissible luxury, since an attorney's services are very expensive and the statutory duty levied for filing the statements of claim is very high. The above factors adversely affect the accessibility and effectiveness of justice. An office of a public prosecutor is very often the only place where individuals may get a free competent legal assistance.
It proceeds from the above that a public prosecutor's participation in civil and arbitration proceedings enhances accessibility and effectiveness of justice.
At the All-Russian conference of public prosecutors President of Russia V.V.Putin rightly noted that "the judicial reform cannot be effective without active involvement of the public prosecutor's office in the judicial procedure".
One of the forcible arguments in favor of the above assertion is a huge number (more that 2 million in last year only) of applications for protection of violated or challenged rights submitted by individuals to the offices of a public prosecutor. Now imagine all these individuals making recourse to already overloaded courts of RF - just to file their statements of claim they would stand in a queue similar to that to the Mausoleum in former times.
During 1999 350 thousand civil cases were tried in common courts with participation of a public prosecutor, judicial rulings in nearly 97 percent thereof were issued pursuant to the opinions of public prosecutors, which fact attests to their lawfulness and justification.
During the last 2.5 years nearly 21 thousand public prosecutors' claims (applications) in protection of economic interests of the state and society were considered in arbitration proceedings, as a result the sum for which the public prosecutors' claims were allowed made up at nearly 30 billion Rubles; about 800 judicial acts were appealed against in the courts of appeal and review, more than 300 protests were lodged, the majority of which were allowed.
Study of the practice of claims submission to the arbitration courts and support by public prosecutors of the majority of the subjects of the Federation showed that the right of action was exercised by many public prosecutors as an efficient means of actual remedy for violation of lawfulness in the sphere of economy, compensation for the prejudice caused by these law violations, protection of public and state interests including the rights and lawful interests of organizations and individual entrepreneurs. High degree of redress of the claims (85%) clearly attests to the effectiveness of a public prosecutor's intervention. Relying only on supervising public authorities is not always justified, since they are not as specifically qualified as is the office of a public prosecutor. A public prosecutor usually files an action before an arbitration court as a result of his study of the materials of inspections of law enforcement in the sphere of economy carried out in the exercise of supervisory powers and, in a number of instances, of criminal cases materials.
Therefore, legal experts and practitioners pronouncing for limitation of public prosecutors' powers in civil and arbitration proceedings seem to disregard real needs of the society and existence of those adverse factors which govern these needs.
The experience of foreign countries with stable economic systems shows that successful functioning of their economies is furthered by the state. Acting currently as a single federal centralized system of bodies exercising supervision over compliance with the Russian Constitution and laws, the office of a public prosecutor pursues the policy set forth in laws and aimed at transformation of the society, getting the state out of the crisis, and proceeding from its law enforcement function it safeguards the rights and freedoms of a man and a citizen. The office of public a prosecutor facilitates interaction of the legislative, executive, judicial powers, their coordinated functioning as a single public power interested in strict abidance by the law.
With due regard for the above, I would like to highlight the suggestions aimed, as it seems, at enhancing accessibility and effectiveness of justice.
1.      To preserve in the draft new Code of Civil Practice the provision stipulating a public prosecutor's participation in any civil case trial and joining proceedings at any stage thereof, even in the event he has not filed an action in protection of the state and public interests, or the interests of a specific person. To preserve a public prosecutor's right to suspend the enforcement of a judgment if he lodges a protest (not a cassation appeal as stated in Art. 343 of the draft CCP), as well as to apply for a judgment review upon new circumstances discovery irrespective of his participation in a case. In the event of individuals' recourse to the office of public prosecutor to entitle the public prosecutor to participate in review of the judgments delivered by justices of peace in an appellate court, regardless of his participation in the case trial, since this will contribute to thorough and complete facts finding and cancellation of unlawful and ungrounded judicial rulings.
2.      Outlining the sphere of a public prosecutor's participation and determining the scope of the public interest, it would be logical under the circumstances to confer on a public prosecutor a greater authority to defend his position not only in cases initiated as a result of his action, but also to join the on-going proceedings at any stage thereof, regardless of whether the action has been filed or not, either on his own or the court's initiative (as provided, for example, in the CAP of the Ukraine). To name a public prosecutor's application to an appellate, cassation instances "a protest" and not an appeal, since the latter equates him with an ordinary claimant who unlike a public prosecutor has a proprietary and legal interests in the outcome of a case adjudication.
In our opinion, any additional guarantee of lawfulness in a judgment delivery benefits the justice and the persons asserting their rights in court, and to reject this benefit would be at least unreasonable and untimely.
In our opinion, the release of the court from the duty to establish the truth in a case stipulated in the new draft CCP and CAP is fairly disputable. As we deem it, the role of a court in facts proving should be principal among other factors ensuring effectiveness of justice. The principle of contentiousness does not imply a complete passivity of a court in facts finding, since a law prescribes that a court should determine the subject of proving, evaluate the evidence and, hence, deliver lawful and justified judgments. The failure to follow this prescription will diminish the effectiveness of justice that will be manifested in reversal of a judgment as a result of the failure to investigate all juridical or evidential facts provided for by the rules of the substantive law, whose availability or absence affects the results of a tried case considerably.
We are convinced that implementation of the suggestions in no way diminishes the role of the judicial system and, on the contrary, will further enhancement of its effectiveness and strengthening of lawfulness to a greater extent. The judicial system must be saved from such negative phenomena as circumlocution, regionalism, priority of local interests, "telephone right", suppression of public criticism, lack of responsibility, etc.
In conclusion, I would like to emphasize that the judicial reform should undoubtedly be conducted exactly to ensure accessibility and effectiveness of justice. But we should not follow blindly the western norms, since the European countries do not have uniform standards of organization and activities of offices of public prosecutors. The Russian office of a public prosecutor is a public legal institute created by the objective needs of the Russian society exactly. Although Russia has joined the Council of Europe and undertaken obligations to enact new laws regulating organization and activities of the office of a public prosecutor, which would be in line with the standards of the Council of Europe, we should take into account the peculiarities of this country and its geographical location, mentality of its citizens, the lack of a formed habit to abide by the law, the traditions which have been developing for centuries, the complex economic situation that has brought about the radical social stratification, vulnerability of public and personal interests.
As a conduit of lawfulness, the office of a public prosecutor is vitally interested in strong and independent judicial power. And since it is just the court that concludes on lawfulness or groundlessness of a public prosecutor's opinion, a public prosecutor's participation in civil and arbitration proceedings may become a guarantor of lawfulness only to the extent it relies on and is supported by the judicial power.
The main thing is to avoid the situation described to the point by the well-known Russian lawyer A.F. Koni: "in aspiration to purge a forest, an oak-tree was cut down which guarded this forest".
  Rossijskaya Gazeta (Russian Gazette). 13 January 2001, No 7-8.