Russian judges for the judiciary
Yury I. Sidorenko
Chairman of the All-Russian public organization Russian Association of Judges, retired judge of the Supreme Court of the Russian Federation
In the year of the X anniversary of the All-Russian Congress of Judges, I would like to recall how the self-organization of the judicial community began, how the Council of Judges of Russia was formed, what issues of the judicial system were the priority. Over the years, hundreds of the best representatives of the judiciary have taken part in the work of the bodies of the judicial community. I 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 adopted. Article 14 of this Law provided for the annual convocation of judges of the subjects of the Union and the subjects of the republics at a conference.
The competence of the conferences included: discussion of issues of the application of legislation that have arisen in judicial practice, appeal to the higher courts with proposals to provide guidance, interpretation of laws and election of qualification boards of judges.
However, the judges did not restricted themselves to considering only these issues, they began to discuss other problems that had been accumulated by that time, in particular, the issues of resource provision, social protection of judges and relations with the justice authorities. The process of self-organization of judges into the community has begun.
In 1991, on the initiative of the Chairman of the Supreme Court of the Russian Federation Mr. V.M. Lebedev, Minister of Justice of the Russian Federation Mr. N.V. Fedorov and a group of judges, the First All-Russian Congress of Judges had been convened. The judges of courts of general jurisdiction from all constituent entities of the Russian Federation were its delegates. The congress discussed and supported the concept of judicial reform in the Russian Federation, adopted a decision to establish the Council of Judges of the Russian Federation. In each subject of the Russian Federation conferences were held, which elected one member of the Council. In March 1992, the Council met in Moscow for its first meeting. The Chairman and the Presidium of the Council of 9 people were elected.
Thus, the judges of Russia united into a community (corporation) and created their own representative body, which was called upon to promote the implementation of judicial reform in Russia, to protect the interests of judges, and to represent them in other governmental bodies. This is how the tasks of the Council were formulated by the First All-Russian Congress of Judges.
Then the judges already realized that the success of the judicial reform was in their own hands, that it depended on their active position whether the judiciary takes place in Russia, therefore, along with the implementation of the internal needs of the judicial community, the Council turned out to be practical assistance in the implementation of the resolution of the Supreme Soviet of the RSFSR "On the Concept of Judicial Reform in the RSFSR”.
Birth of the Law on the Status of Judges
Let me remind you that by the time when the Council was convened for the first session, the Russian judicial system was in deep crisis, the judiciary was on the verge of collapse. In each region there were dozens, and in Russia - hundreds of judicial applications for dismissal, and there were practically no people willing to become a judge. Therefore, the first thing the Council began its work with was the preparation of a draft law "On the Status of Judges in the Russian Federation".
The Council of Judges instructed the Presidium to prepare a corresponding bill. In March 1992, its first lines were written.
The task of the bill was to consolidate the high status of judges, to strengthen social guarantees and the prestige of the judicial office. Initially, members of the Presidium of the Council of Judges and representatives of the Supreme Court of the Russian Federation worked on the draft law. Then, representatives of the State Legal Administration of the President of the Russian Federation and the Committee on Legislation of the Supreme Soviet of the RSFSR joined the work on it.
On June 26, 1992, the Law of the Russian Federation No. 3132-1 "On the Status of Judges in the Russian Federation", developed by this group, was adopted, in which such concepts as "judicial community" and "judicial power" were first formulated. If before the adoption of this law the term “judicial power” still existed in the legal literature, it did not exist in any normative act. Some of the basic principles of the functioning of the judiciary, enshrined in the new law, were then included to the Constitution of the Russian Federation.
The uniqueness of this Law consists in the fact that, as a legislative initiative, it was submitted to Parliament simultaneously by the President of the Russian Federation, the Supreme Court of the Russian Federation and the Committee on Legislation of the Supreme Soviet of the RSFSR. That means that there were three subjects of legislative initiative from all three branches of government on its origins. In my opinion, this did not happen again. The speed of adoption of the Law was also impressive: only three months passed from the moment of writing its first line to its adoption and signing by the President. This is also its uniqueness. Although by that time a crack had formed in the relationship between the legislative and executive branches, they joined forces to help the judiciary.
This Law is a law of a transitional period - with some norms it was turned into the future, while other norms grew out of the past. Thus, the main principles of the court's work were formulated - independence and self-sufficiency, which at that time sounded somewhat declarative, because even most of the buildings in which the courts worked did not at all correspond to the declared high position of the court. On the other hand, the Law has largely become a reflection of the country's recent past and present: for example, it included provisions on the right of a judge to install a telephone out of turn, to book hotel rooms, and to book tickets (air and rail). However, any law reflects the realities that it is intended to regulate.
There is a version that the judiciary comes from God, and all other powers from the judiciary. Indeed, the Bible does not mention presidents, ministers, deputies, but judges are mentioned. But we rarely managed to soar to heaven, we had to walk more on the ground. Therefore, every year since 1992, the year of the adoption of the Law on the Status of Judges, numerous attempts to "improve" it had to be repulsed.
For a long time we succeeded to resist attempts to include in this law the amendments aimed to limit the independence of judges. But then a number of amendments were made to the Law "On the Status of Judges", which eroded the guarantees of independence of judges.
The life showed the rightness of judges who objected against these changes, some of these innovations were subsequently canceled, and some softened.
Military and arbitration judges did not participate in the work of the First Congress. Then the Soviet Union still existed. But the Congress itself was all-Russian, i.e. the judges of the Russian Federation participated, and military judges were part of the union system. There were simply no republican military courts, and the union courts were subordinated directly to the Supreme Court of the USSR and to the Ministry of Justice of the USSR, so their representatives did not participate in the Congress. Russia was the first country to hold such a congress. There were no arbitrators either, there was state arbitration, but it was a system of quasi-judicial bodies. The USSR Law of May 17, 1991 No. 2170-1 "On the Supreme Arbitration Court of the USSR" was put into effect only in July, so by the time of the Congress, the arbitration courts had just begun to be created (and in fact they had not yet existed at all). On the other hand, they and the military courts had already participated in the Second Congress. The USSR, unfortunately, had already ceased to exist by that time. Military courts became part of Russia, figuratively speaking, under the wing of the Supreme Court of the RSFSR, in which a military collegium was formed, and became part of the judicial community of the Russian Federation. Naturally, we invited them to participate in the Congress. The arbitration judges themselves came to us: by that time their system of courts had already been formed, and the judges expressed a desire to participate. We accepted them and assigned a quota. 15 people of them entered to the Council of Judges. They elected delegates in accordance with the norms that the Council determined for them and hadveparticipated in the work since the Second Congress.
II All-Russian Congress of Judges
In June 1993, the Second All-Russian Congress of Judges was held. Along with judges of 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 in the country into a single 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 quantitative composition of the Council increased to 112, and the Presidium - to 15 people. A little later, a judge of the Constitutional Court of the Russian Federation joined the Council.
Thus, the Council became the only body in the country that united judges of all courts, all levels and all subjects of the Russian Federation. A unifying and coordinating role is another one of the most important functions of the Council.
The Congress adopted the "Regulations on the Bodies of the Judicial Community", which determined the powers, the procedure for the formation, structure, governing bodies of the Council, the frequency of plenary sessions. In the period between the congresses of judges, the powers of the highest body of the judicial community are entrusted to the Council of Judges of the Russian Federation. In practice, it is empowered to resolve all issues within the competence of the bodies of the judicial community, with the exception of issues within the competence of the qualification boards.
The Congress elected a new body of the judicial community - the Higher Qualification Board of Judges.
On behalf of the Second All-Russian Congress, the Council of Judges adopted the Code of Honor of a Judge of the Russian Federation, which established the rules for the conduct of judges in professional and non-official activities, mandatory for every judge, regardless of the position held. The practice of the Supreme Court of the Russian Federation and the qualification boards has given the Code a normative character.
The adoption of the Code of Honor testifies the fact that the Council of Judges was concerned not only with the issues of social protection of judges, the preservation of benefits and privileges, but also with the state of the country's judiciary, with the establishment of order in its own house.
In 2012, the VII All-Russian Congress of Judges adopted the Code of Judicial Ethics, which replaced the Code of Honor.
III Extraordinary Congress of Judges
An Extraordinary Congress was convened in 1994 at the initiative of the President of the Russian Federation B.N. Yeltsin. After the tragic events of 1993, a new Federal Constitutional Law of July 21, 1994 No. 1-FKZ "On the Constitutional Court of the Russian Federation" was adopted, which increased the composition of the Court to 19 people. As a result, 6 vacancies were formed at once, and the President turned to the judicial community with a proposal to nominate 12 candidates (i.e., 2 per seat), so an Extraordinary Congress was called.
The Congress identified 12 candidates for the Constitutional Court with the majority of votes and sent this list to the President.
From this list, 2 judges became members of the Constitutional Court of the Russian Federation
This is a good result, which testifies the fact that over the two years of its existence the Council has won a certain prestige not only among judges, but also in other government bodies.
However, the Extraordinary Congress was not limited to solving only this issue. At that time, other problems also accumulated. For example, we discussed the concept of the Judicial Department. This idea appeared during the development of the Law on the Status of Judges. It quickly found universal understanding and support; in the judicial community, no one argued that a body was needed that would only be engaged in ensuring the activities of the courts. There were many areas of activity in the Ministry of Justice - notaries, advocacy, legal propaganda, etc., so ensuring the activities of the court was not the main one. We thought that there should be a body that would deal only with the courts, and all the judges agreed with this. There was no agreement only on the question of what this body should be. Some judges, including myself, said that it should be autonomous from the Ministry and act within the judicial system. Others were afraid to leave the Ministry of Justice into the unknown. As a result, those who believed that the Department should be in the system of the Ministry of Justice won with a slight advantage. The Congress made this decision and instructed the ministry to create a Judicial Department. However, the Ministry did nothing, and already at the next Congress, the judges unanimously voted for the Department to be outside the executive authorities.
IV All-Russian Congress of Judges
On October 18, 1995, the Council of Judges adopted a resolution on the need to create a Judicial Department at the Supreme Court of the Russian Federation. The disputes between the judges ended, and practical work began to implement this decision.
This decision was then supported by the IV All-Russian Congress of Judges, at which the draft law “On the Judicial Department” prepared by the Council of Judges was discussed and approved. Article 31 of the Law states that the Judicial Department under the Supreme Court of the Russian Federation ensures the activities of courts of general jurisdiction and its head is appointed 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 controlled by the judicial community.
The Council of Judges received new legislative powers.
The format of the article does not allow talking about all the vicissitudes of the difficult process of passing the bill 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" was adopted.
The Council, together with the Chairman of the Supreme Court of the Russian Federation, began to create a new federal body. From that moment a significant part of the Council's attention was and is paid to the formation of the Judicial Department, the organization of its activities. This was another major step towards strengthening of the self-sufficiency and the independence of the judiciary.
This congress was called "emergency" due to the fact that for a number of years the judicial system was in crisis due to insufficient funding. There were two reasons for the lack of funds - the lack of funds planned in the budget, and the misuse of funds allocated to the courts by the Russian Ministry of Justice. The Council of Judges had made a lot of efforts to put things in order here and has achieved certain results.
Some of our colleagues said that the financial position of the judicial system does not depend on who would distribute resources, but on how much will be allocated in the budget. This is a false premise. Practice has shown that the Ministry of Justice of Russia was unable to protect the interests of the courts when forming the budget. This is due, firstly, to the fact that it is a part of the Government, and the part cannot go against the whole, and secondly, the fact is that the Ministry was not interested in this issue.
As for the misuse of judicial funds, the Council of Judges did not have sufficient powers to control the budget, but we, in spite to look to this situation indifferently, organized inspections both on our own and referring to the control and audit bodies. Summing up the results of one of such inspections, the Council expressed distrust to the Minister of Justice of Russia V. Kovalev.
A few years later, the Council of Judges of the Russian Federation and the Supreme Court of the Russian Federation had to enter into a struggle against the Ministry of Finance of the Russian Federation on the financing of the judicial system in 1998.
The Ministry of Finance of the Russian Federation sequestered the budget of the judicial system due to the economic crisis in the country, although this was directly prohibited in the Federal Constitutional Law of December 31, 1996 "On the Judicial System of the Russian Federation": The Government has no right to reduce the budget of the judicial system in comparison with the previous year without the consent of the Council of Judges. We informed about this the Ministry of Finance, but there was no response. Then the Supreme Court appealed to the Constitutional Court, which considered that in this case the Government exceeded its powers and violated the requirements of the Constitutional Law. The Ministry of Finance did not react again. The Council of Judges appealed to the Prosecutor General of the Russian Federation with a request to initiate a criminal case against the Minister of Finance for failure to comply with the decision of the Constitutional Court and abuse of power. We know that behind the scenes there were disputes for a long time about what to do with this appeal, but finally the Ministry of Finance has recognized that it was wrong, and the budget of the judicial system has been restored. We, in turn, informed the Prosecutor's office that we did not insist on initiating a criminal case. In general, everything ended peacefully. A few years later, these twists and turns were forgotten, and we received information that the Ministry of Finance was again going to sequester the budget of the judiciary. The Council of Judges, without waiting for official documents from the Ministry, addressed directly the President, described the situation, listed normative acts, including the decision of the Constitutional Court of the Russian Federation, rendered on this matter. As a result, the Ministry did not cut funding.
Another major task that the Council of Judges was engaged in jointly with the Supreme Court was the development and adoption of the Federal Constitutional Law "On the Judicial System of the Russian Federation" in the wording, which made it possible to preserve the integrity of the federal judicial system and the unity of the status of judges, separation of the judiciary from the executive body by transferring the functions of organizational, resource, staffing of courts of general jurisdiction from the Ministry of Justice of Russia to the Judicial Department - a body fully accountable to the judicial community.
The main thing that the Council of Judges and the Supreme Court defended in this Law: preservation of all courts operating at that time (except for statutory ones) as federal, included in a unified judicial system; the formation of the Judicial Department not within the executive branch, 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 powers to control the execution of the budget; introduction of the institute of magistrates.
This law was adopted at a very troubling time both for the judicial system and for the whole of Russia. Then we were literally one step away from breaking the unified judicial system into many regional ones.
It should be remembered that 1994 - 1996 was the peak of the “parade of sovereignties”. The main slogan of those years was to take as much power as you can carry. And everyone took maximum power in their region and encroached also on the judiciary. Some leaders of the constituent entities of the Russian Federation said so: “What kind of sovereignty is without a court? The court is a necessary attribute of statehood. And at the level of our region, all branches of government should be represented - executive, legislative and judicial ”.
- As an argument, they referred to the weakness of the central federal government, to the fact that it had no money. They said: "Now the courts are in poverty, the central government is not able to provide them with normal conditions, and we will build palaces of justice and properly finance judicial activities."
But the most striking thing is not the fact that the leaders of the constituent entities of the Russian Federation wanted to tear the judicial system apart and each get his share. The most striking thing is that both the Government of Russia and the Presidential Administration supported them in this. They wanted to keep only three federal courts - the Constitutional, Supreme and Supreme Arbitration, and make all other courts local. They referred to the United States, where the judicial system is mixed, and were already preparing appropriate changes to the codes. By the way, some Caucasian republics have already adopted laws on the status of judges, which lowered both the level of independence of judges and other basic judicial guarantees. In fact, the judges were turned into clerks. And this would have happened if the judicial community did not make some efforts. The most important thing, that we have succeeded in, is to establish in the law that the judicial system of the Russian Federation is composed of federal courts.
Literally at the last moment the Chairman of the Supreme Court of the Russian Federation Mr. V.M. Lebedev managed to convince our opponents that it was necessary to adopt the law "On the judicial system of the Russian Federation", and precisely in the wording that we have proposed.
But we must give the senators their due. The leaders of the Caucasian republics, Tatarstan and Bashkortostan, however, could not be persuaded, but everyone else was able to rise above their ambitions, above their sovereignty: they realized that the loss of the unity of the judicial system threatened Russian statehood and was fraught with the collapse of the country. They realized that the judiciary is one of the bonds that hold the integrity of the state.
On December 31, 1996, the Federal Constitutional Law "On the Judicial System of the Russian Federation" was adopted in the concept defended by the Council of Judges and the Supreme Court of the Russian Federation.
The Supreme Court and the Council of Judges did not allow the judicial system to be pulled apart into local apartments, thereby preserving a single legal space, which provides citizens with legal protection throughout the country and is one of the guarantees of the integrity of the state, and guarantees a single legal status to judges.
V All-Russian Congress of Judges
In the year of the 5th Congress, which took place in November 2000, opponents of the judicial reform became more active, publications appeared in which it was argued that the judicial reform was stalled and failed. It was argued that it is necessary to develop a new concept of judicial reform.
This is what the President of the Russian Federation Mr. V.V. Putin told at the V Congress of Judges:
“Speaking about the main result of the judicial reform, I would like to emphasize: an independent judiciary in Russia, in spite of any problems, still took place. We can and must state this. In the basic parameters, the concept of judicial reform has been implemented. It is necessary to accelerate judicial reform. But only in those parameters in which it was stated earlier. I think it is wrong to say that we must now start again a radical restructuring. We must at least finish what we have planned. "
The head of state summed up the efforts of the judicial community and the state to form an independent judiciary in the country in the nine years that have passed since the adoption of the Concept of Judicial Reform by the Supreme Soviet of the RSFSR.
In the final resolution of the V Congress of Judges it was noted that: "In the process of judicial reform, a huge reform has been carried out, as a result of which a simple and understandable system of courts has been built in Russia, an efficient judiciary has been formed, consisting of the most qualified lawyers."
Over the years, the basic foundations of the judiciary have been laid and there are opportunities for development and improvement, but it is necessary to move exactly in the direction in which the judicial reform has developed all these years, and not to break and rebuild everything anew, as some "experts" suggest. The bodies of the judicial community are also developing, the increasing number of judges take part in their activities.
Now, when the Russian Association of Judges has appeared, each judge, if desired, can participate in any events of the judicial community. When there is only one organization - the Councils of Judges, the involvement of judges may be slightly limited, even though the composition of the Councils is constantly changing, there is a rotation of personnel. I must say that many judges have passed through the Councils. This is a useful work that broadens the horizons and allows you to see some issue not one-sidedly, but on the scale of the region, the country. This is important and interesting, first of all, because our country is large, regions are different and approaches to them are also different. When judges from different regions of the Federation come together, it is interesting to listen to even their simple conversation among themselves. What can we say about the cases when they discuss some pressing issues!
When the Russian Association of Judges (RAJ) was created, there were concerns that the Councils of Judges would compete with it. The initiators were sure from the very beginning that there would be no competition, because the Council of Judges deals with issues of professional activity of judges and courts, and the Association - with what trade unions and public organizations (Komsomol, youth, etc.) were previously engaged in, i.e. legal outreach, charity, help to patients in trouble. Within the framework of the Association, the RAJ paid for expensive medicines and treatment. In addition, life does not consist of the job only, and therefore we hold sports competitions, creative competitions, including among children, organize round tables, scientific and practical conferences. Together with the Supreme Court of Tatarstan and the Russian State University of Justice, they held a conference on jury trials, and before that - a conference in Stavropol dedicated to the 15th anniversary of world justice. In 2014, a number of regions held conferences commemorating the 150th anniversary of the Judicial Reform of 1864. As a rule, Councils of Judges and Russian regional associations interact and organize events together. RAJ has extra-budgetary funds that can be spent on what the Council, for example, has no money for. RAJ has only membership fees, but they are enough to carry out these events.
Despite all the difficulties, sometimes opposition, the judicial system has developed successfully due to the fact that a large number of judges involved in the work of the bodies of the judicial community took part in the preparation of draft laws and various decisions.
To encourage and support creative initiatives of judges is one of the main tasks of judicial self-government bodies.