OBJECTIVES OF PROCEEDINGS AND ACCESS TO JUSTICE
Objectives of Proceedings and Access to Justice. How the access to justice should be interpreted? Lately a question is raised more and more frequently that it is necessary to ensure solution of the above issue. Sometimes the access to justice is interpreted as a problem of purely material nature, related to a high cost of justice for indigent persons, as well as to observation of the time limits of proceedings. In our opinion, the access to justice is a multi-aspect problem comprising a variety of elements. The access to justice should be rightly considered as a principle of procedural branches of law and the basis which threads the normative texture of law on judicature and proceedings. In this respect the access to justice has a legal substance and concerns organization of justice and functioning of the «legal infrastructure» of the society as a whole.
Does the identification of justice objectives affect the access to justice? We assume that it does, and very directly. Only proceeding from the objectives of justice we may define the whole chain of juridical facts and their aggregates composing the causes and determining the dynamics of the proceedings development and motivation of undertaking certain procedural actions. In defining the objectives of justice two approaches have been historically formed. The first approach is that the justice is a service rendered for value on behalf of the state to all those who can afford it. The second reflects the presence of the society’s and state’s interest in a uniform law enforcement, of the state’s obligation to ensure the justice functioning mechanism to which all interested persons could resort.
Both the above approaches can be singled out for this country at the level of legal regulation. In late 80-ies – early 90-ies of the twentieth century much was destroyed in the course of denying the old paternalistic system of the Soviet state structure. However, excessively extreme measures, as we deem it, were taken, including in the course of formulation of attitude toward the objective of justice. In particular, in the Concept of judicial reform in the Russian Federation approved by the Supreme Soviet of the Russian Federation in 1991 the civil process is regarded as a service rendered to the parties by the state. In such approach the problem of access to justice is simply non-existent, since the courts are considered as a system of services to resolve the disputes for solvent consumers. Such approach does not only seem to be disputable, it is erroneous in its essence. The goals of justice should reflect the social designation of the judicial system to defend the rights and preserve law and order, ensure stability and strength of civil and public relations. Exactly thus they have been formulated in the procedural law which has not accepted the erroneous approach of the Concept of judicial reform in the Russian Federation in, for instance, Art. 2 of the Code of Arbitration Practice, Art. 2 of the Code of Civil Procedure (the version of Federal Law dated August 7, 2000). Hence, it is bewildering that such dubious provision is still preserved in the document concerned which, apparently, has certain legal meaning. In our opinion, it is necessary to determine the goals and content of the civil jurisdiction system reform as a whole, including by way of drafting a new Concept of reform of the whole sphere of civil jurisdiction; however, substantiation of the thesis concerned is not included in the subject of this article.
Hence, formulation of the proceedings goals leaves no doubt in their comprehension as a necessity to ensure the protection of rights of legal entities and natural persons, and in this connection arises a whole set of extremely varying issues of the access to justice requiring solution. Only proceeding from the justice objectives we can solve all important theoretical and applied problems of the improvement and development of justice in civil cases.
Basic factors determining the access to justice are as follows. Let us enumerate these in brief, since they are well-known and have been discussed mainly in the literature: these are the duration of court proceedings, higher cost of the whole «legal infrastructure», including the sphere of representation, change of the economic conditions of operation of the bar and notaries, complicating of organization of the judicial system and rules of the proceedings, inadequate development of public institutions ensuring legal protection of various groups of the population, etc.
Besides, in society, science, among the judges, other lawyers and decision-makers exists inadequate evaluation and insufficient comprehension of the importance of the problem concerned for the protection of the human rights, formation of an independent and effective judicial power. Special legislative acts pertaining to the above problem have not been adopted yet.
Only the latest recommendation documents point out that it is necessary to solve the problem concerned. The main reason of such attention on the part of authorities – admission of the Russian Federation to the Council of Europe, recognition of the jurisdiction of the European Court of Human Rights and ensuing obligations of this country to ensure certain standards of access to justice.
Basic ways of solving the problem of access to justice. The problem of accessibility of justice and legal assistance needs scientific comprehension in order to elaborate a uniform concept taking into account the existing social-economic and political realities, as well as concrete legislative acts. The initial premises of work over the problems of accessibility of justice and legal assistance, as well as general analytical approaches are as follows: first of all, we should proceed from the justice objectives determining the conditions of its accessibility. Second, the issue of accessibility of justice is not a purely legal matter, and should be resolved in the context of social politics aimed at reduction of the number of privileges. Procedural privileges should be granted only to those who really need them rather than on the basis of a person’s profession, category of case, as well as at the judge’s discretion. Third, it is necessary to define the competence in legal regulation of the issues of accessibility of justice and legal assistance as these matters are simultaneously within the competence of the Russian Federation and its subjects. Fourth, in the current conditions it is important to substantiate economically the suggested model of ensuring the access to justice and legal assistance, otherwise, it would be hardly possible to speak about its implementation. Any project should be computed from the viewpoint of economic expediency of various models of justice accessibility.
Let us single out the most significant, in our opinion, trends of ensuring access to justice, which are used or may be used for solving the task.
Search of investment. Any reform requires investment to reach its objectives. Direct investments in the judicial sphere are limited in view of the impossibility to finance comprehensively all the needs of the public system of civil jurisdiction to hire more personnel, develop the logistics, etc.
Hence, it is necessary to use «indirect investments» in the judicial system, which are effective at the expense of rationalization and optimization of judicial procedures, change of the jurisdiction rules, development of out-of court settlement of disputes. Such innovations do not require a direct financing from the budget, but, vise versa, make it possible to save the funds and direct them to solving the most urgent problems. Thus, the development of the alternative forms of dispute settlement (courts of private arbitration are primarily meant here) makes it possible to levy all expenses on dispute settlement on the parties. The institute of notaries in the countries of the continental law facilitates the lack of disputes between those involved in the business turnover, who bear the related expenses themselves.
Further on, in order to introduce streamlined proceedings, it is necessary to improve the arbitration process, since the arbitration courts mainly work with written documents frequently of an irrefutable nature due to their qualified form. Hence, a relative irrefutability of a certain written proof already is (in the writ proceedings, for instance) and should be in the future one of the criteria of justice differentiation.
Another important trend of improvement of procedural remedies and an «indirect investment» is the search for ways of judicial protection of large groups of individuals and organizations whose rights have been infringed by the same person. In contemporary society there arises many situations when the actions of one person, for example in the sphere of products manufacturing, service provision, environment protection, may infringe the rights of an undefined circle of persons. A traditional model of the civil and arbitration process is intended for resolution of disputes between two persons and does not specify special procedures which allow to take into consideration the rights of all persons who have found themselves in identical juridical and factual situation. Therefore, here it is possible to improve the procedure of consideration of claims seeking protection of an undefined group of persons and to develop the class actions system as a whole. Significant will become indirect claims, as well, which allow the members of legal entities to defend their property rights infringed by their managers.
Provision of qualified legal assistance to individuals. Currently and in the nearest future the problem of access to justice encounters primarily the search for resources in order to ensure professional representation to all those who need it, and this is possible to achieve using different options and models. The most real would be creation of the so-called municipal bar ensuring representation by a counsel at law paid at the expense of the budget; encouraging representation of the poor on the part of public and professional associations; inclusion in the counsel’s costs missed profit when rendering legal services either free of charge or at certain discounted tariffs; change in procedure for recovery of legal costs; rendering of qualified legal assistance in small towns and rural areas of Russia that lack professional lawyers who prefer to work in big cities in which the most potential «consumers of legal services» are concentrated.
Finally, it would be hardly reasonable to resolve this problem uniformly throughout the whole country. It can be resolved at the level of subjects of the Russian Federation, since the bar falls under the joint jurisdiction of the Russian Federation and its subjects. From the viewpoint of the prospects, the society will hardly be able to allocate enough funds to solve the problem concerned. Hence, important is restructuring of the system of free legal assistance to the indigent people from the viewpoint of current priorities of the social reform – assistance only to those who truly need it. It is also necessary to solve the questions of payment for expert examination, since it can be carried out only if the experts are paid by the parties.
An important issue for discussion is payment to the counsel, which may be quite a burden for the parties. Here several models of payment to the counsel can be discussed. Thus, Professor P. Gotwald of the Regensburg University (Germany) singles out a German model under which the counsels’ rates are fixed and specified by law, and an English model which permits free price formation in payment for the counsel (based on hourly rates), and in this connection the expenses on representation in the U.K. are 8-10 times higher than in Germany. At the same time, as P. Gotwald notes, the increase in the number of lawyers entails no reduction of their rates, the society’s expenses on payment for representation in the conditions of free price formation go up alongside with the increase in the number of lawyers.
Another model may be discussed, which is more typical for Russia, such as payment to counsel according to the outcome of the case, when the bulk of the fee is paid to the counsel after the court renders a favorable judgement or after the judgement is actually enforced. P. Gotwald writes about the advantages of the rates fixed by law, and it seems to us that one should agree with his opinion. Such system allows to leverage the lawyers’ demands with the society’s ability to pay for these. Besides, in the event of fixed rates it is much simpler to arrange provision of free assistance of a representative in court or on preferential terms through the system which has been successively implemented by notaries, who, in accordance with the Fundamentals of the Law of RF On Notaries are entitled to increase their expenses in proportion to the profit missed due to notary acts performed free of charge or on preferential terms. Such system is beneficial for the society and can be easily controlled by the public, since notary’s tariffs, same as the grounds for applying preferential terms, are set forth by law.
For instance, Georgia was the first among CIS member-states to partially resolve this issue in its new Code of Civil Procedure of 1997 prepared with technical assistance of Germany. The code stipulates that if a party is unable to hire a counsel, the court, against such party’s application, invites the counsel at the expense of the state. The counsel’s expenses on the case are compensated in the amount of 4% of the cost of the subject of the dispute out of the state budget.
Beside provision of legal assistance to all those who need it, the issues of the criteria of reduction of payment, deferred payment and exemption from payment of the statutory duty should be resolved, as well. The current Law of the Russian Federation On the Statutory Duty specifies various privileges in the statutory duty payment with no account for the criterion of needs of those who apply for court protection, nor with the account for the interests of the budgets to which the duty charged is entered. For instance, in 1999 every fourth statement of action filed with the arbitration courts was accompanied by the application to have the duty payment deferred, and 89% of such requests were granted for the amount of 822 mln Rbls. The amount of the duty charged by arbitration courts in 1999 made up 782 mln Rbls. A part of deferred payments of the duty is explained by a difficult financial position of commercial entities and entrepreneurs – the claimants; however, whatever the case may be, such frequent exercise by the arbitrators of their right to permit the deferred payment exceeding the duty recovered testifies to a too liberal discretion of the judges in this sphere.
Privatization of individual enforcement activities. This is also one of the options of solving the problem of access to justice. Despite the lack of outward popularity of this thesis from the viewpoint of the current political situation in Russia, in our opinion, solution of many problems of access to justice can be found here.
There are several reasons for that. First, the state is unable to provide an overall financing of the civil jurisdiction agencies, since this requires the increase of taxes or change in the structure of state expenses. Second, many legal activities may be successfully carried out on a private basis, certain functions are discharged by public servants in a way far from the most efficient, and it would be more rational to transfer these to private persons under the public control.
What has been privatized in the enforcement sphere? First, private arbitration proceedings and commercial arbitration have always historically been the forms of private enforcement under the public control.
Second, in 1993 the organizational basis of the notaries’ work changed when the notaries ceased to be public servants and their profession became liberal under the public control. All this has resulted in the qualitative change in the system of notaries and in solution of the problem of access to legal assistance of notaries for individuals and organizations.
Third, the sphere of executory process has been privatized to a certain extent, since the functions of the attached property evaluation, storage and disposal in the executory process are practically completely discharged on a private basis.
Fourth, privatization is hardly possible in the judicial sphere, since justice is one of the most important state functions. However, even here many activities are carries out on a private basis, particularly expert examination, representation of persons involved in the proceedings.
What are the subsequent limits and possibilities of privatization in the enforcement sphere, with due regard for the limited resources and the fact that the state judicial system is unable «to digest» a huge amount of cases it faces. There always exists the danger that in the situation when the state is unable to create the conditions for public justice, there may appear private forms of compulsion to keep the agreements, which may be of a criminal nature, as well.
Hence, the most correct would be development of alternative forms of justice under the public control in which, as N. Rulan justly notes, preference is given to the category of agreement rather than to the category of compulsion. Of course, the state should preserve its prerogatives as regards resolution of the most complicated and important, from the viewpoint of public interests, cases; however, nothing prevents to share a part of jurisdictional functions with other agencies and persons from the non-public sector of justice, at the same time preserving public control.
First, the role of the arbitration court as a private court capable to resolve a greater number of disputes in business sphere should be enhanced. However, a requisite here would be provision of assistance on the part of the state in resolution of a number of organizational and legal matters. Alongside with arbitration courts, the institutes of reconciliation and mediation which facilitate closing of the parties’ positions may be developed.
Second, a gradual privatization is possible, as soon as the necessary prerequisites are created (first of all, qualitative renewal of the bailiffs’ corps) in the sphere of executory process. Thus, apart from public agencies, private companies are quite capable of finding a debtor and his property. In the future, the system of enforcement should be arranged similarly to the system of notaries.
Third, significant is the subsequent development of the institute of notaries as the most economical form of settlement of relations between those involved in the business turnover, facilitating prevention of conflicts at the stage when the contract terms and conditions are agreed upon. «Privatization» of notaries under the public control has already resulted in complete satisfaction of the need in notaries, who complain that they have not enough work.
Development of the institute of notaries facilitates solution of the problem of access to justice at least along three trends: A. to prevent the disputes at the stage of closing the deal in the course of negotiating its terms and conditions, thus decreasing the number of civil disputes in the future. B. Making consideration of disputes and proving in court easier, since notaries’ acts have a special evidentiary force. Notaries’ acts are written proof created in advance in a calm situation in cooperation of the parties, when there is no question of any disputes. C. By making certain notaries’ acts enforceable, for instance by notarization of an alimony payment agreement. In this respect the concept of the new Civil Code causes perplexity, since its ideology specifies only the judicial protection of the civil rights (Art. 11 of the Civil Code), without singling out notarization as a means of civil rights protection (Art. 12 of the Civil Code). At the same time, the certification procedure in Art. 163 of the Civil Code is construed as notarization, which is a factual error, since the rules of notarization put forward broader requirements to the certification.
As a result, this directly affects the problem of access to justice under review, since the development of the institute of notaries may facilitate the reduction in filing of civil cases with the courts.
Hence, privatization of individual enforcement trends will make it possible to decrease the work load on the courts and become one of the options of indirect investment in the judicial system. In this case the access to justice may become broader, since the judges will have time for consideration of other cases. Besides, by developing non-judicial civil jurisdictions, we ensure stability of the judicial system.
Development of specialization in the judicial system. Stability of legal and judicial systems. Suggestions to combine two judicial systems – common and arbitration courts, proceeding from a simplified understanding of a unity of the judicial system provoke objections. If a linear unity is based on the existence of a unified judicial center – one highest governing body, then improvement of the judicial system on the basis of the functional unity would be more reasonable and justified practically. Such unity based on fundamental principles defined for the judicial system in the Federal Constitutional Law On Judicial System of the Russian Federation ensures, in our opinion, good results of the civil jurisdiction system operation for the society. As a rule, the existence of several judicial systems of civil jurisdiction is typical for the countries whose private law is of a dualistic nature. In Russia, in the course of drafting the latest Civil Code prevailed the viewpoint of the uniformity of the subject of the civil regulation, and in this connection the majority of specialists do not support the idea to single out business law. However, it is our opinion that even if the private law is uniform, it is objectively necessary to keep dualism of the judicial civil jurisdiction for a number of reasons.
First, there are certain limits of manageability of any system which becomes ineffective in case of too many components.
Second, the absence of a unified center has resulted in a so-called «competition» between the systems of arbitration and common courts, since the improvement of judicial procedures within the framework of one judicial system is more complicated than in two various systems. As an outcome, such «competition» is useful for the society, since it gives incentives to judicial systems to develop.
Sometimes it is useful to discourse from the opposite. Let us consider whether the judicial reform in the sphere of civil jurisdiction would develop quicker if it was carried out under the auspices of one highest judicial body. In our opinion, the answer would be negative. The Supreme Court of the Russian Federation both from the viewpoint of the ratio between the numbers of judges in boards, employees, and the priorities in activities seems to be more likely a criminal court that a civil court. The system of arbitration courts is a court system of civil jurisdiction set up for resolution of disputes in business only, and this cannot but affect their activities.
Third, specialization of civil jurisdiction bodies, courts included, is objectively necessary in view of differentiation and complexity of relations which are subject to legal regulation.
Fourth, the opinion on the necessity to include arbitration courts in the common judicial system is based on identification of civil process with civil proceedings. In this connection, a number of specialists (M.S. Shakaryan, V.M. Zhuikov, G.A. Zhilin and others) point out that since the Russian Constitution does not mention arbitration proceedings, hence, arbitration courts have no theoretical prerequisites for their independent existence. In our opinion, the ratio between the above and other legal categories is absolutely different. Art. 118 of the Russian Constitution singles out civil and administrative proceedings. Both proceedings are accomplished by means of civil or arbitration process. Hence, currently there is no direct dependence between the terms ‘civil process’ and ‘civil proceedings’, since the latter is accomplished in the framework of arbitration process, as well (same as administrative proceedings). The term ‘arbitration proceedings’ is legally doubtful and can be hardly used either in research literature or in normative acts.
Finally, a legal and judicial systems of any country is not only a rational, but also a historically formed structure whose creation is governed by a variety of reasons. Frequent transformations are harmful for the courts. It is necessary to reveal and use to the maximum extent possible the potential of the existing judicial system. Therefore, it may be concluded quite categorically that the stability of the judicial system is one of the most important condition of its efficiency and accessibility, since frequent transformations are dangerous and harmful for justice. The same condition of the access to justice in a broad sense is the stability of law, since in this case the results of the court processes can be predicted, and the court rulings on a uniform enforcement are accumulated.
Legal forms of solving the problem of access to justice. The multi-aspect nature of the justice access problem governs its solution in the rule-making. The whole system of civil and arbitration process, as well as the civil jurisdiction as a whole, guarantees the access to justice. Hence, improvement of procedural rules defining the access to justice should be accomplished in the course of drafting the new procedural laws and amending the existing ones.
In order to solve economic and legal problems of the access to justice related to the possibility to use the assistance of a representative, delay of the statutory duty and other legal costs payment or payment of the same by installments, a special federal law should be drafted under the following title, for instance, On Guarantees of Legal Assistance in Court Cases of Indigent Persons. Such federal law, in our opinion, may serve as an act integrating all separate provisions on legal assistance to indigent persons, introduce new provisions, and also stipulate the forms of solution of the problem concerned. It is our opinion that from the viewpoint of organization, the problem may be solved by delegating the above functions to the justice authorities (which, unfortunately, have no local subdivisions), or courts, or judicial departments. A number of issues as regards representation by a counsel at law may be resolved in the federal law on the bar being drafted; however, this solution would be incomplete, since the issues of assistance in the event, for example, a party is unable to pay for expert examination, will be left out. We would suggest, provided it is financially tangible, to adopt respective legislative acts ensuring access to legal assistance at the level of the subjects of the Russian Federation.
Is there any progress in solution of the problem concerned, since its importance is evident? Unfortunately, in two drafts of the Code of Civil Procedure, the first one prepared under the guidance of Professor M.K. Treushnikov and the second – by the Union of Right Forces faction, there is not a word about the problem under review. Art. 62 of the new Code of Arbitration Practice prepared by the High Arbitration Court of the Russian Federation allows appointment of representatives from among the members of the bar by the arbitration court for individual entrepreneurs, proceedings from their financial status. However, this measure can be implemented, judging by the explanatory note to the draft concerned, only after adoption of the law on the bar.
Therefore, there is no comprehensive solution of the problem at present. The reasons for this are different. In the rule-making in all spheres in early 90-ies there appeared a number of moments which cannot but cause concern. First, this is what we call an ‘instrumental’ approach, when the right is interpreted as an instrument of a certain department which tries to make it unilaterally convenient for itself only.
Second, this results in lobbying of interests, when the law appears not as a certain socially useful and needed by the society outcome of coordinated work, but as a result of agreement of the lobbyists on a certain issue.
Third, rule-making, like many other things, has become a business in this country. It involves huge amounts of money, in many cases – from foreign and international sources, it provides the opportunity to accomplish one’s ambitions and to manifest lobbying capabilities. Hence, the sphere concerned becomes more and more monopolized by certain groups close to the sources of money allocation for law-making. Monopolism for this sphere is extremely harmful, since it depletes law-making process.
How it affects the problem of law-making in the sphere of access to justice – very directly. Unfortunately, indigent persons have no lobby of their own in those authorities which declare protection of their rights and interests.
The fact that the problem of access to justice has become ‘fashionable’ arouses concern, too: in speeches of the majority of the court chairmen and other legal authorities the references to the necessity to ensure access to justice have become a ritual. Hence, there is a great risk that the topic of the access to justice will be drowned in words, like many other new legal categories and notions, which have been introduced only in science, but not in real life.
Limits of access to judicial protection. The issue is comparatively new in the current conditions, though it was traditionally discussed in our classical literature of XX century, though most frequently from the viewpoint of interest as a prerequisite for accrual of the right to apply to the court. A number of experts regard interest as a prerequisite for accrual of the right to apply to the court. A number of scholars, first of all M.A. Gurvich, were categorically opposed to the choice of interest as a prerequisite of the right to apply to the court. The same debate was conducted in the procedural doctrine as regards the legal nature of the requirement to apply to the court – from support to complete negation.
In present-day conditions it is necessary to return to this issue with due regard for the existing social realities. Our society, as we deem it, has gradually passed the period of «judicial romanticism» which began in late 80-ies – early 90-ies of the last century. It seemed at that time that by lifting any restrictions on the application to a court the majority of problems, which the Russian society faced, could be solved. One can discuss the reasons at length, but one thing may be stated precisely, and this has been already discussed – the objective inability of the judicial system to ‘digest’ the amount of cases which poured over it. Certainly, we do not negate the value of the judicial protection and the right to apply to a court as a general permission granted to everyone. However, there should exist certain restrictions related to the absence of the subject of a dispute, its non-legal nature, absence of interest, in other words, the old discussion is revived.
In such circumstances it would be reasonable to pose a question about extent of the judicial protection - since not all the claims of individuals and entities are subject to legal and, respectively, judicial protection, a peculiar system of ‘filters’ should be arranged at the case initiation stage in order to avoid overburdening of the courts with excessive cases. There already exist precedents of this kind, for instance, in cases of establishment of juridical facts both in the civil and arbitration processes: the judge refuses to accept the application if the fact concerned has no juridical meaning for the applicant. The same issue is resolved similarly as applicable to Art. 42 of the Code of Civil Procedure subject to which the governmental and local authorities can file with the court an action seeking protection of other persons only at such persons’ request and in cases specified by law. In absence of such juridical facts the judge refuses to accept the statement of action pursuant to Art. 42 of the Code of Civil Procedure.
How the limits of access to justice cane be defined? In our opinion, by establishing certain restrictions for application to the court in connection with the absence of interest in the outcome of the case. First, in individual cases the federal laws define a special proper subject to apply to the court, e.g. in para 3, Art. 53 and para 2, Art. 166 of the Civil Code, para 5, Art. 71 of the Federal Law On Joint- Stock Companies, para 5, Art. 44, para 5, Art.45 and para 5, Art. 46 of the Federal Law On Limited Liability Companies. Therefore, in case it is established that the subject applying to the court is an improper one, which has no interest in the case concerned, we deem it possible to refuse to accept the statement of claim. Since in this instance there is the right to file an appeal, such refusal would be hardly considered as a refusal of justice.
Second, the obligation to prove the interest is established for the individuals’ complaints filed with the courts in compliance with the Law of the Russian Federation On Court Appeals Against the Actions and Judgement Infringing the Rights and Freedoms of Individuals. Subject to part 2, Art. 6 of the above Law an individual is obligated to prove the fact of violation of his rights and freedoms. Attention should also be paid to the amendments of para 5, part 1, Art. 126 of the Code of Civil Procedure in compliance with the Federal Law of 7 August 2000, in accordance with which the previous wording of the form and contents of the statement of action «5) the claimant’s claim» is substituted with another «5) wherein lies infringement or the danger of infringement of the rights, freedoms or protected by law interests of the claimant and his claim». Such amendment is not incidental, it reflects the requirements of the judicial practice and judges encountering a lot of complaints of interested persons challenging normative and other legislative acts.
Attention to the above provision is also paid in a number of judgements of the Supreme Court of the Russian Federation, in particular in the judgement of 21 January 1998 rendered on appeal against the normative act of the Ministry of Social Security of the Russian Federation. The Supreme Court pointed out in the motivation part of the judgement that an individual is obligated to prove the fact of infringement of his rights and freedoms. In another ruling of the Judicial Board for civil cases of the Supreme Court of RF the claimant’s argument that the appealed resolution of the Mayor of St. Petersburg has infringed his right to receive a notary’s assistance at the time other than that specified in the resolution was found ungrounded, i.e. the fact of the claimant’s rights infringement by the appealed resolution has not been proved.
A similar provision is contained in the judgement of the Supreme Court of RF of 22 June 1999, which stresses that the claimant’s obligation to prove infringement of his rights by a challenged normative act is specified in para 1, part 1, Art. 4 and part 1, Art. 50 of the Code of Civil Procedure.
Hence, the claimant should first specify in the statement filed with the court and then prove at the court hearing the fact of infringement of his rights by the normative act appealed against or by another legislative act.
A question arises: what should the court do in the event the claimant failed to prove infringement of his rights by the challenged act? In answering this question one should proceed both from provisions of the civil procedural law and the existing court practice of its interpretation. Since the fact of infringement of the claimant’s rights by the challenged act is a material fact established in the course of proceedings, the failure to prove this fact may be the cause for refusal to uphold the claim. In particular, as regards the quoted example from the ruling of the Judicial Board for civil cases of the Supreme Court of RF on the claim seeking recognition of the St. Petersburg Mayor’s resolution as invalid, the claimant’s failure to prove the fact of his rights infringement by the challenged act was one of the causes for refusal to uphold his claim on its merits.
In another quoted example (the judgement of the Supreme Court of RF of 22 June 1999) it was pointed out that the adoption and enforcement of the challenged resolutions of the FCSM and the Provisions approved by these resolutions that regulate the relations in the sphere of professional activities at the securities market do not infringe the rights and freedoms of an individual who is not involved in these relations, nor do they create any obstacles for their implementation, these acts did not impose (illegally) any obligation on the claimant, nor was he made liable. Consequently, being unrelated to the claimant the above normative acts do not pertain to his rights and freedoms, and in this connection his claims seeking recognition of these acts as invalid (ineffective) are subject to no satisfaction.
Hence, it may be concluded that the claimant’s failure to prove infringement of his rights by the challenged act or by another legislative act is the cause for rendering the judgement to refuse to satisfy his claim on its merits. However, we suggest to amend the law and establish the obligation of the claimant to prove infringement of his right at the time of initiation of the case. Such procedure would be a peculiar filter restricting application to court in those cases when the claimants have no legal interest in the outcome of the case.
Final conclusions. The existence of the problems of access to justice per se shows that the people most frequently apply to the court for resolution of the disputes and conflicts, which attests their faith in the judicial system, inter alia.
When estimating the options of the solution of the justice access problem, one should proceed from principal differences between two major legal systems and, respectively, two models of the civil process. Much depends on what kind of legal system will be formed in this country. The institute of the so-called official proof, which means written proof, is typical for the countries of continental law. The existence of written law, recognition of official documents as privileged and reliable means of proof, the existence of public registers and the system of notariat in these countries significantly reduce the society’s expenses on up-keeping the legal system. Thus, according to the data of one of the researches carried out in the USA, the expenses of the public in the Anglo-Saxon legal system for up-keeping the legal system exceed the same expenses in the system of countries of continental law approximately 3-7 times. Hence, much in solution of the problem of access to justice depends on the model of Russia’s legal system development. If it is oriented at the development of the system of civil jurisdiction in its various forms existing in the countries of the continental law system and ensuring creation of qualified written proof, the legal system will be less expensive and more accessible to public.
Hence, solution of the problem of access to justice is far from simple and one-time. Many of the noted factors hindering access to justice (e.g. logistics and financial ones) will be effective for a fairly long time. Their solution depends both on the availability of funds and rationalization of court procedures. The problem of investment in the judicial sphere is permanent and can be overcome along with improvement of the economic situation in Russia.
A part of the problems related to the judicial system reform will be overcome in the course of improvement of law, for instance, the issue of preservation or modification of review proceedings, mainly on the initiative of the highest judicial authorities.
Many factors, for instance the role of a judge in society and respect for judicial authorities may be resolved only in the course of evolution of the society itself. At the same time, new problems requiring solution will arise, for instance setting up of specialized courts, increase of the number of court personnel alongside with the increase of the number of court cases. It is important to find an optimal ratio between the adversary origin of the process and its procedural forms, as well as not only to proclaim the equality of parties, but also to ensure its actual implementation. Hence, in solving the problem of access to justice we cannot find a ‘philosophical stone’ which will help to solve the problem. At every convolution of the society and legal system evolution, alongside with solution of certain problems, new ones will arise governed by logic and the society evolution contents. The task of the society, juridical science and legislator is to foresee these factors and to try find legal means to cushion their negative effect, since their complete elimination is hardly possible. The main reference point should be the justice objectives governing models of civil and administrative proceedings.
  See V.M. Semyonov, Demokraticheskiye osnovy grazhdanskogo sudoproizvodstva v zakonodatelstve i sudebnoi praktike (Democratic Fundamentals of Civil Proceedings in Law and Court Rulings). Sverdlovsk, 1979, pp.59-65.
  The Concept of judicial reform in the Russian Federation. Moscow, 1992, p.98.
  It should be noted as applicable to the Concept of judicial reform in the Russian Federation that the title of the document concerned does not correspond to its contents. In general, the Concept is dedicated to the reform issues of judicature, investigation system, and criminal justice. Only a little attention is paid there to the reform of the civil process and civil jurisdiction system as a whole.
  A detailed and convincing study of the justice objectives was carried out by G.A. Zhilin. See: G.A. Zhilin, Tseli grazhdanskogo sudoproizvodstva i ikh realizatsii v sude pervoi instantsii (Civil Proceedings Objectives and Their Implementation in the First Instance Court). Moscow, Gorodets, 2000.
  See few publications on the topic: V. Lebedev, Rasshirenie dostupa k pravosudiyu – odna iz tselei sudebnoi reformy (Widening of Access to Justice – One of the Judicial Reform Objectives), in: Rossijskaya Yustitsiya (Russian justice), 1999, No. 9, pp.2-4; V.V. Yarkov, Dostupno li grazhdanam pravosudiye? (Is Justice Accessible to Individuals?) ), in: Rossijskaya Yustitsiya (Russian justice), 1999, No. 2, pp.25-26; I.V. Reshetnikova, V.V. Yarkov, Grazhdanskoye pravo i grazhdanskii protsess v sovremennoi Rossii (Civil Law and Process in Contemporary Russia). Ekaterinburg-Moscow, 1999, Ch. 6 Problemy dostupnosti pravosudiya i yuridicheskoy pomoshchi (Problems of the Accessibility of Justice and Legal Assistance).
  See, e.g.: Resolution No. 4 dated March 12, 1997 of the Council for Judicial Reform under the President of the Russian Federation On Ensuring Accessibility of Justice and Its Speedy Administration, Resolution of the Council of Federation, Federal Assembly of the Russian Federation, dated December 24, 1998, No. 569-SF On Parliamentary Hearings of the Course of Implementation of Conceptual Provisions of the Judicial Reform in the Russian Federation, Resolution of the Council under the President of the Russian Federation on justice improvement issues dated may 13, 1999 On the Draft Federal Law On the Bar in the Russian Federation.
  For example, in accordance with Art. 303-316 of the Code of Civil Procedure of France, the lack of correspondence between the authentic (first of all, notarial) act and the reality is established in special proceedings. At the same time, if the person claiming forgery turns out to be wrong, such person has to pay a fine. See Jean Yaigre Jean-François Pillebout. Droit professionnel notarial. Quatrieme edition. Paris, Litec, 1996, pp. 88, 89. Also see interesting suggestions of I.G. Medvedev concerning establishment of a lawful system of proof: I.G. Medvedev, Printsip prioriteta pismennykh dokazatelstv (The Principle of Priority of Written Proof) in: Sistema grazhdanskoi yurisdiktsii v kanun XXI veka: sovremennoe sostoyanie i perspektivy razvitiya. Mezhvuzovsky sbornik nauchnykh trudov (The System of Civil Jurisdiction on the Eve of the XXI Century: Present-Day Condition and Prospects of Development. A collection of scientific works). Ekaterinburg. 2000, pp. 396-412.
  See in greater detail: G.O. Abolonin, Gruppovye iski v grazhdanskom protsesse (Class Actions in Civil Process). Doctoral Thesis Abstract, Ekaterinburg, 1999.
  See P. Gotwald’ report at the conference «Reform of the Civil and Arbitration Procedural Law in CIS Member-States» held in the Institute of law of Eastern European countries (Kiel, Germany, 15-20 October 2000).
  The judicial system of Georgia is uniform, disputes involving businessmen are resolved within the framework of a uniform judicial system.
  See: N. Khoperia’s report at the conference «Reform of the Civil and Arbitration Procedural Law in CIS Member-States» held in the Institute of law of Eastern European countries (Kiel, Germany, 15-20 October 2000).
  See V.F. Yakovlev, Ukreplenie pravoporyadka i zakonnosti v ekonomike – vazhneishaya zadacha arbitrazhnykh sudov (Strengthening of Law and Order in Economy – the Most Important Task of Arbitration Courts) , in: Vestnik Vysshego Arbitrazhnogo Suda Rossiiskoi Federatsii (Bulletin of the High Arbitration Court of the Russian Federation), 2000, No.4, p.8.
  See in greater detail: M.I. Kleandrov, Vid suda – treteiskii, raznovidnost – kriminalnyi (The Type of Court – Private Arbitration, the Variety – Criminal) in: The System of Civil Jurisdiction on the Eve of XXI Century: Current Condition and Prospects of Development. Collected Scientific Works, Ekaterinburg, 2000, pp. 93-107.
  See N. Rulan, Yuridicheskaya antropologiya (Legal Anthropology), Moscow, Norma, 1999, p.280.
  Jean Yaigre, Jean-François Pillebout. Droit professionnel notarial. Quatrieme edition. Paris, Litec, 1996, p.87.
  See V.M. Zhuikov, Sudebnaya zashchita grazhdan i yuridicheskikh lits (Judicial Protection of Individuals and Legal Entities), Moscow, Gorodets, 1997, p.p. 193-194; Grazhdanskoye protsessualnoye pravo Rossii (Russian Law of Civil Procedure). Textbook, 2nd edition, ed.by M.S. Shakaryan, Moscow, Bylina, 1998, pp.7-9 (a chapter by M.S. Shakaryan); Tseli grazhdanskogo sudoproizvodstva i ikh realizatsiya v sude pervoi instantsii (The Goals of Civil Proceedings and Their Implementation in the First Instance Court). An abstract from the Doctoral Thesis, Moscow, 2000, pp. 20-27.
  See various alternatives and their detailed substantiation: V.V. Yarkov, Yuridicheskie fakty v mekhanizme realizatsii norm grazhdanskogo protsessualnogo prava (Legal Facts in Implementation of the Rules of Law of Civil Procedure), Doctoral Thesis, Ekaterinburg, 1992, pp.483-490; W. Bernam, I.V. Reshetnikova, V.V. Yarkov, Sudebnaya reforma: problemy grazhdanskoi yurisdiktsii (Legal Reform: Problems of Civil Jurisdiction), Ekaterinburg, 1996, pp.104-111.
  E.g. A.N. Kozhukhar, Pravo na sudebnuyu zashchitu v iskovom proizvodstve (The Right of Relief in Action Proceedings), Kishinev, 1989, pp.69-84; V.N. Shcheglov, Isk o sudebnoi zashchite grazhdanskogo prava (An Action Seeking Judicial Protection of a Civil Right), Tomsk, 1987, pp. 62-68; E.G. Pushkar, Konstitutsionnoe pravo na sudebnuyu zashchitu (Constitutional Right to Judicial Protection), Lvov, 1982, pp. 42-46; M.A. Vikut, Predpolylki prava na uchastie v grazhdanskom protsesse (Prerequisites of Right to Participate in a Civil Process), Pravovedenie, 1967, No.3, p.103; V.M. Semyonov, Konstitutsionnye printsipy grazhdanskogo sudoproizvodstva (Constitutional Principles of Civil Proceedings), Moscow, 1982, pp.111-112.
  See, for instance, E.G. Pushkar, ditto, p.51.
  See: Bulletin of the Supreme Court of the Russian Federation, 1998, No.6, p.3; Court rulings on civil cases ed. by V.M. Zhuikov, Moscow, Gorodets, 2000, p.344.
  Court rulings on civil cases. 1993-1996, ed. by V.M. Zhuikov, Moscow, Gorodets, 1997, p.77.
  See: Bulletin of the Supreme Court of the Russian Federation, 2000, No. 10, p.3
  Court rulings on civil cases. 1993-1996, ed. by V.M. Zhuikov, Moscow, Gorodets, 1997, pp. 75-77.
  Bulletin of the supreme Court of RF, 2000, No. 10, p.3.
  See H-Ya. Putzer, Notariat in the Private Law System, in: Contemporary Notariat: Structures and Tasks, Cologne, 1993, p. 173; See also suggestions of I.G. Medvedev: I.G. Medvedev, ditto.
  See H-ya. Putzer, ditto, p.179.
  See Tort Cost Trend: an International Perspective, Tillinghast, 1989. Quoted from : Contemporary Notariate: Structures and Tasks, Cologne, 1993, p.179.