Russian judges to the judicial authority
I write these notes on the eve of the V All-Russian Congress of Judges. This event is not only important, but also significant in the life not only of all judicial community, but of the whole country. I do not think that such high and sumptuous appreciation of our all-Russian meeting would provoke any objections or replica type: “the crow thinks its own bird fairest”. Contrarily, I rationally appreciate my possibilities, the possibilities of my colleagues of judicial gild, the heads of the federal courts and bodies of judicial community. But the fact remains – our country has changed, and the tribunal occupies rightful place between the highest authorities.
Of course, the concept of judicial reform was born with the participation of Russian politicians, deputies, scientists, leaders of the country at last. Leaders of the supreme courts made a significant contribution to the construction of the judiciary. V. Lebedev, V. Yakovlev, M. Batai and V. Tumanov (Chairman (retired) of the Constitutional Court of the Russian Federation). But this work would not bring significant results without active participation in it of representatives of the judicial community from the Councils of Judges and qualification boards. I also dedicate my pre-Congress notes to them.
I All-Russian Congress of Judges
In 1989, the Law “On the Status of Judges in the USSR” was passed. Article 14 of the Law provided for the annual convocation of judges of the subjects of the Soviet Union and the subjects of the republics at the conference.
The competence of the conferences included: the discussion of the issues of application of legislation in judicial practice, the appealing to higher courts with proposals to give guidance explications, the explication of Laws, the election of qualification boards of judges.
However, the judges did not limit themselves by these issues; they began to discuss other questions accumulated by that time, in particular, questions of resource support, social protection of judges, and relations with judicial authorities. The process of self-organization of judges in the community begun.
In 1991 the First All-Russian Congress of Judges was convened on the initiative of the Chairman of the Supreme Court of the Russian Federation V. Lebedev, the Minister of Justice of the Russian Federation N. Fedorov and a group of judges. The judges of courts of general jurisdiction of all subjects of the Federation became its delegates. Among other decisions the Congress decided to establish a Council of Judges of the Russian Federation. In each constituent entity of the Federation there were conferences that elected one member of the Council. In March 1992, the Council met in Moscow for its first meeting. A Chairman and a Presidium of the Council of 9 persons were elected.
Thus, the judges of Russia united in a community (corporation) and created their own representative body, which was called upon to promote judicial reform in Russia, to protect the interests of judges, and to represent them in other state authorities. Thus, the tasks of the Council were formulated by the All-Russian Congress of Judges.
The judges already realized that the success of the judicial reform is in their own hands, that it depended on their active position whether the judiciary would take place in Russia. Therefore, along with the realization of the internal needs of the judicial community, the practical assistance in implementation of the decision of the Supreme Council of the RSFSR “On the Concept of the Judicial Reform in the RSFSR” was placed in the field of vision of the Council.
The birth of the Law on the Status of Judges
I recall that by the time the Council convened for the first meeting, the Russian judicial system was in deep crisis, the judiciary was on the verge of collapse. In Russia there were dozens, and there were hundreds of judicial applications for dismissal, and there were practically no people wishing to become a judge. Therefore, the first thing with which the Council began its work was the drafting of the draft law "On the Status of Judges in the Russian Federation".
It should be said that the Ministry of Justice of Russia has prepared the draft law "On the Status of Judges in the Russian Federation", but it was harshly criticized on the Council because it did not guarantee the independence of judges, did not solve social issues, it was essentially empty. As a result, the Council of Judges developed a fundamentally new project, which was submitted to the parliament for consideration, and it was adopted in June 1992. This became the final result of the activity of the Council of the first convocation,
I note that during the preparation of the project a kind of record was set: from the day of writing the first line to signing it by the President of the Russian Federation less than three months passed. It is significant that the draft law was signed not only by the Supreme Court of the Russian Federation, but also by the President of Russia, as well as by the Committee on Legislation of the Supreme Council. I do not remember any more such cases. Although by that time there was already a break in the relationship between the legislative and executive branches, but they joined forces to help the judiciary.
Judicial Power is From God
There is a version of the Moscow Club of Lawyers that the judicial power comes from God, and all other authorities are from the judicial branch . Indeed, in the Bible presidents, ministers, deputies are not mentioned, while judges are Meanwhile we seldom manage to ascend to heaven, we have to walk more on earth. Therefore, every year since 1992, the year of adoption of the Law on the Status of Judges, it is necessary to beat off many attempts “to improve” it. Till now this is possible, the changes to the Law were made only on the initiative of the judges. The Council of Judges adheres to the position that the Law still remains relevant today, it remains one of the main guarantors of the independence of judges and should be carefully guarded.
Last year, the status of judges was discussed at the Presidential Council of the Russian Federation oOn the Issues of Improvement of Justice. We took there a following position: "It is better not to touch the Law". And the Council supported us.
Now the issues of "improving the status" of judges are actively discussed at different levels. In particular, there are proposals to eliminate the principle of irremovability, to establish the term of office for judges; to streamline the procedure for dismissing judges from office (supposedly,, there is no logic thet the RF President appoints, but the Qualification Board removes from office); to establish the age limit for office; to create independent state and public institutions for the analysis of judicial practice and the mechanism of its influence on the career of judges; to introduce to the qualification boards representatives of the legal community, deputies, representatives of the prosecutor's office, etc .; to seriously revise the social and material guarantees of the independence of judges; to establish office for chairmen and deputy chairmen of courts.
Some of the proposals seem at first sight to be reasonable, but in the context of others, they raise great doubts in their expediency. It is not difficult to see that most of the proposals are aimed at reducing the guarantees of independence of judges. This becomes especially noticeable if we compare the attempts of revision of the status with the proposals of the new "young reformers" about the cardinal structural reorganization of the judicial system.
When proposals to audit the provisions of the status come from representatives of the executive power, of the prosecutor's office, legislative assemblies - it is understandable, we are already accustomed to this, because the judicial reform from the very beginning was accompanied by attempts of counter-reforms. But, when they sound from the lips of the judges, and very respectable and respected in the judiciary community, it is difficult to understand.
The Law on the Status of Judges legislated the procedure for the formation, competence and powers of the bodies of the judicial community. The term "Judicial community" was first introduced in it.
I note that even when the Council of Judges was not mentioned in any law, all the officials and state bodies, to which it addressed, looked up to it. This is evidence of the authority of the judiciary power in the state. The Supreme Court of the Russian Federation always provided support to the Council of Judges.
Art. 17 of the Law "On the Status of Judges in the Russian Federation" lists the bodies of the judicial community. They include the All-Russian Congress of Judges, the Council of Judges of the Russian Federation, regional congresses, conferences, assemblies of judges of higher courts, regional councils of judges. The bodies of the judiciary community, of course, include qualification boards of judges.
From Idea to the Draft Law
More detailed the structure, procedure of formation and powers of the bodies of the judiciary community are described in the draft federal law "On the Bodies of the Judiciary Community in the Russian Federation". But this draft law, adopted in the first reading by the State Duma of the Russian Federation and prepared taking into account the received comments to the second reading, has been left there for more than a year.
Legislative work plays an important role in the activities of the Council. The Council itself develops draft laws or initiates their development, accompanies projects when they pass through the chambers of the Federal Assembly, gives opinions on draft laws passed by the State Duma in the first reading.
None of the projects relating to the judicial system is left without attention of the Council of Judges. A permanent section of the Council has been formed to preliminarily prepare the issues related to the improvement of legislation.
In total, there are six standing sections in the Council: financial, on the status of judges and the legal status of employees of court apparatus, on organizational and personnel work, on judicial practice and the improvement of legislation, on informatization and automation of work of courts, on liaison with the bodies of the judicial community of regions, state bodies and officials, public organizations, international legal organizations.
The next set of issues that are constantly on the Council's attention is the financial, resource and personnel support of the courts. It is no accident that the first permanent sections created in the Council was a financial one.
For several years the judicial system was in crisis because of underfunding.
There were two reasons for the shortage of financing - insufficient funds planned in the budget, and misuse of funds intended for courts by the Ministry of Justice of Russia. The Council of Judges put a lot of effort into establishing order here and has achieved certain results.
Some of our colleagues said that the financial situation of the judiciary depends not on who allocates resources, but on how much they are allocated in the budget. This is a false notion. The practice has shown that the Ministry of Justice of Russia was unable to defend the interests of the courts at the formation of the budget. This is due, first, to the fact that it is a part of the Government, and a part can not go against the whole, secondly, because the Ministry is not interested in this issue.
As for the misuse of judicial funds, the Council of Judges did not have sufficient power to control the budget, but without regard to this situation, we organized inspections both on our own and by addressing to the control and audit bodies. Summing up one of such inspections, the Council expressed distrust to the then Minister of Justice of Russia V. Kovalev.
During the preparation of the draft law on the status of judges, a number of problems aroused that needed to be resolved in connection with the judges’ dissatisfaction with the activities of the Ministry of Justice of Russia in providing courts and judges, certain courts' dependence on the executive, excessive load on judges, an increasing number of unuttered judgments , ensuring the safety of judges.
The ideas of the creation of the Judicial Department, the Service of the court bailiffs, the system of the magistrate’s courts were born in the Council of Judges. Thus, less than a year after establishment, the Council became an informal center, accumulating experience in the implementation of judicial reform, the ideas of judges expressing the interests of the judiciary community, communication with all structures involved in judicial reform.
II All-Russian Congress of Judges
In June 1993, the II All-Russian Congress of Judges was held. Together with the judges of the courts of general jurisdiction, judges of arbitration and military courts took part in it for the first time. One more step was taken to unite all judges of the country in one community.
The Congress elected a new composition of the Council of Judges, which included judges of courts of general jurisdiction, arbitration and military courts.
The number of members of the Council increased up to 112 persons, and the Presidium up to 15 people. Somewhat later, the Judge of the Constitutional Court of the Russian Federation became a member of the Council.
Thus, the Council became the only body in the country uniting judges of all courts of all levels and all subjects of the Russian Federation. The unifying and coordinating role is one of the most important functions of the Council.
The Congress adopted the "Regulations on the Bodies of the Judiciary Community", in which it determined the powers, order of formation, structure, governing bodies of the Council, the periodicity of the plenary sessions. In the period between congresses of judges, the authority of the supreme body of the judiciary is entrusted to the Council of Judges of the Russian Federation. In practice, it is empowered to resolve all issues referred to the competence of the bodies of the judiciary, with the exception of issues falling within the competence of the qualification boards.
The Honor Code of a Russian Judge
The work of the Council is organized within the framework of the sections formed from general, arbitration and military courts, and in plenary sessions. The meetings of sections of the Council and plenary sessions are held at least once a year. In practice, most issues are resolved in plenary sessions, which are held twice a year. The Council elects the Chairman, his three deputies, who are, at the same time, the chairmen of the sections, and a part of the Presidium.
In the event of the retirement of a member of the Council, a regional conference or a meeting of judges may delegate to it another representative with the right of an advisory vote.
On the instructions of the II All-Russian Congress, the Council of Judges adopted the Honor Code of a Judge of the Russian Federation which established the rules for the conduct of judges in professional and non-official activities, obligatory for each judge, regardless of the post. According to the practice of the Supreme Court of the Russian Federation and Qualification Collegiums the Code has received mandatory character.
The adoption of the Honor Code underlines that the Council of Judges is concerned not only with the issues of the social protection of judges, the preservation of benefits and privileges, but also with the state of the judiciary of the country, bringing order in his own house.
The following major tasks put before the Council by life itself were: the preservation of the integrity of the federal judicial system and the unity of the status of judges, the separation of the judiciary from the executive by transferring functions for organizational, resource and personnel support to courts of general jurisdiction from the Ministry of Justice of Russia to the Judicial Department - body fully accountable to the judiciary.
It is possible to write a whole book about the stages of a long struggle with numerous opponents for solving these problems, maybe this will be done someday, I would just say that the Council fulfilled both these tasks despite the resistance of some influential official persons and state bodies.
December 31, 1996 the Federal Constitutional Law "On the Judicial System of the Russian Federation" was adopted as the concept, which was defended by the Council of Judges and the Supreme Court of the Russian Federation.
The main thing that the Council of Judges upheld in this law was the preservation of all the courts operating at that time (apart from statutory ones) as federal ones that are part of the unique judicial system, the formation of the Judicial Department was not in the depths of the executive power, but within the judicial system, the powers of the higher courts and the Council of Judges in the formation of the budget of the judicial system and the authority to control the execution of the budget; the introduction of the institution of magistrates. All this issues were defended.
The Council did not allow the judicial system to be separated by local apartments, thus preserving the unique legal space that provides citizens with legal protection in the whole country and is one of the guarantees of the integrity of the state, and provides judges with guarantees of a unique legal status.
IV All-Russian Congress of Judges
On October 18, 1995 the Council of Judges passed a resolution on the need to establish a Judicial Department at the Supreme Court of the Russian Federation. Disputes between the judges ended and practical work began on the implementation of this decision.
This decision was then supported by the All-Russian Congress of Judges, at which the draft law "On the Judicial Department", prepared by the Council of Judges, was discussed and approved. In Art. 31 of the Law states that the Judicial Department at the Supreme Court of the Russian Federation ensures the activity of courts of general jurisdiction, and its head is appointed to the post and dismissed by the Chairman of the Supreme Court with the consent of the Council of Judges of the Russian Federation, i.e. this body is fully accountable and under the control of the judicial community.
The Council of Judges has received new legislative powers.
The format of the article does not allow us to speak about all the vicissitudes of the difficult process of passing the draft law in the chambers of the Federal Assembly, nevertheless, a year later, in December 1997, the Federal Law "On the Judicial Department at the Supreme Court of the Russian Federation "has been adopted. The Council, jointly with the Chairman of the Supreme Court of the Russian Federation, started the creation of a new federal body. Since that moment, a significant part of the attention of the Council has been paid to the establishment of the Judicial Department and the organization of its activities. Thus, another major step has been taken to strengthen the self-authority and the independence of the judiciary power.
In accordance with Art. 33 of the Federal Constitutional Law “On the Judiciary system of the Russian Federation”, the Council of Judges has received powers to form a budget of the judicial system. It is stated there that the Government of the Russian Federation develops a draft federal budget for financing of courts in cooperation with the supreme courts and the Council of Judges, and in the event of disagreement, attaches to the draft the proposals of the relevant courts and of the Council of Judges.
The amount of the budget allocated for the financing of the courts in the current financial year may be reduced only with the consent of the Russian Congress of Judges or the Council of Judges. This norm of the Law has been used by the Council of Judges in the fight against the Ministry of Finance, which in 1998 illegally reduced the budget of the judicial system.
Further development of the powers of the Council of Judges in monitoring the budget was given in the Law “On Financing of Courts of the Russian Federation ", adopted in January 1999.
In 1997, the Law on Bailiffs was adopted. The idea to create this service was born in 1992 in the Presidium of the Council of Judges and was due to the problems of execution of judicial decisions and the problems of the security of courts and judges.
The first draft of the law was prepared, but then we focused on the draft law "On the Judicial Department", and the draft law on bailiffs was taken up by the Ministry of Justice of Russia.
The time passed after the adoption of the Law, and the bailiff service was not established to ensure the established procedure for the activities of the courts. This service does not fulfill its tasks today. After repeated negotiations with the chiefs of the bailiff service, the Council of Judges concluded that this service should be transferred to the jurisdiction of the Judicial Department. The Supreme Court of the Russian Federation has supported this idea and, by way of legislative initiative, introduced a corresponding draft law into the State Duma. We are supported in this matter by the Council of the President of the Russian Federation for the improvement of justice, the Interior Ministry and the General Prosecutor's Office of the Russian Federation.
The practice shows that ideas born in the judicial community, even not at least, even after a long disputes, even after overcoming the opposition of opponents, find the way and are implemented in real affairs.
The Council has a lot of problems ahead of it: creating a system of magistrate’s justice, improving judicial procedures, bringing the load of judges in line with scientifically based norms, developing international relations. The encouragement and support of the creative initiatives of judges is one of the main tasks of the Council.
2000 Yu. Sidorenko
Chairman of the Council of Judges of the Russian Federation,
Judge of the Supreme Court of the Russian Federation