Judicial counter-reform. Who would like to infringe the independence and inviolability of judges?

    Working Group on improvement of legislation on the judicial system in Russia, which was carried out by Deputy Head of the Administration of the RF President Dmitry Kozak, has completed its work by preparing a package of proposals for all key areas of the judicial reform. The judicial community generally supported in principle the most part of these proposals, it is not surprising. After all, the employees of the courts feel and know sharper than other authorities what we need to change in this field and, the most important, how to do it. They stood at the beginning of the reforms carried out in our country for about ten years. They were the authors of many ideas now successfully translated into specific legislative acts - recall the law "On the Status of Judges in the Russian Federation", adopted in 1992 and executed according to the highest international standards.

    During the last difficult ten years the corps of judges withstood many attacks from forces, concerned about its increasing role in the public life of the country. Today, however, the guarantees of the independence and inviolability of judges are once again threatened. Some of the proposals made by the Working Group and put on the basis of the draft law "on amendments and addenda to the law “On the status of judges in the Russian Federation”, evoke frank bewilderment. Alas, the prepared draft law suggests a sad thoughts that under the guise of correct phrases on the strengthening of the judiciary and increasing of the responsibility of judges for their decisions, сounter-reform is being prepared, which aims to establish the control of executive power over the judiciary.

    The Supreme Court of the Russian Federation already provided to developers of the document its opinion under this draft. It is worse to mention that it was the only draft law which was sent by the Working Group to the RF Supreme Court with a request to draw our official conclusion (to tell the truth,  the Working Group of Dmitry Kozak on the whole way of its activity did not often paid such attention to the  representatives of the judicial corps). The position of the Supreme Court is unambiguous and unanimous: we consider the draft law  directed to sharp decrease in the major guarantees of independence and immunity of judges, their legal protection and we believe that its acceptance can lead to loss of independence of the third branch of the power. Many regulations reflected in the draft law actually can serve as the tool of pressure upon judges that is unacceptable for implementation of impartial and objective justice.
    The proposals of the Working Group can turn judge from an independent arbitrator in the adversarial process directly in a sacramental Akaki Akakievicha. So, developers decided to legally enter the disciplinary responsibility of judges and revive administrative responsibility. But today there are mechanisms, incidentally, actually operating, which allow you to affect the negligent judges and improve self-discipline in the work of the courts. Over the past four years, the qualification boards dismissed 300 judges (including the regional level) who have committed misdemeanors, which defamed their honor and dignity. For more serious faults only in the period 1997-1999 36 criminal proceedings have been initiated against judges. However, the draft law assumes greater tightening of nuts, while allowing frank legal flubs. For example, it is proposed to revoke the judge his status if he committed within three years two disciplinary misconduct — say, late for meeting or did not presented the case. 
    For information: according to the Russian trade legislation the limitation period for disciplinary action is only one year.

Judge's powers may also be suspended in the case of criminal proceedings against members of his family. Strange, isn't it? A relative had not yet been sentenced, he has not yet been prosecuted, and they already propose the judge to withdraw the mantle.

Of course, the judge should be a model and an example. But is it logical to impose to judges such stringent requirements when they are not yet provided with appropriate working conditions? It is obvious that such radicalism is not justified by the current situation in the courts. Now every district judge considers on average about 500 criminal and civil cases per year and more than 150 materials on administrative offences - with such two-three times overload all is possible, the judges are also people. Moreover, the judges are often asked for something that does not depend on them. The cases are accumulated and are not considered not because of laziness or corruption of judges, but due to more trivial reasons: the delays in execution of expertise last for 5-6 months, the Institute of Bailiffs which has to ensure the execution of judicial decisions, does not work, the Ministry of railways refuses to transport prisoners as long as the State does not repay its debts. The attacks on judges have become more often, we receive dozens of complaints about wrongful actions against judges from the part of the law enforcement structures – and according to the new law we have no possibility to oppose nothing to such outrages.

     From this point of view rules of the draft law aimed at the resurrection of the administrative responsibility of judges which had been abolished during the Soviet period look even more dangerous. If it  will be adopted, police and secret services under the guise of checking signals on national legal and administrative misconduct by judges will have the legal possibility to collect compromising information on them. But courts often hear cases involving complaints against law enforcement officers.

    The draft law also proposes to change the order to attract judges to criminal liability. Even in old times of the total control only the General Prosecutor had a possibility to initiate a criminal case against the judge. Now according to the draft law the agreement of three judges of the higher courts will be enough (not even the Qualification board) to permit to any investigator or Prosecutor, without inform anyone, decide alone to arrest and present allegations to a judge.

   In brief, according to a new draft law the real opportunities for dismissal of the judge and application to it various other measures of punishment on the purely formal basis appear. The procedure of involvement of the judge to criminal liability becomes simpler that creates powerful levers of pressure upon it. Temptation to apply it will appear –as  in the  regions, both  in the federal center. It is mean that the principle of immunity of judges which is not so their personal privilege, but a security measure of interests of justice is actually liquidated. At the same time nobody guarantees to judicial staff of legal protection. Is it possible to talk about construction and improvement of independent judicial system in a similar situation?

   The prepared draft law offers other dubious, in our view, measures to strengthen the judicial authorities: restriction of powers of the judge on the age, limitation of period of empowerment of Presidents of courts and their Deputies, etc. We believe that the document requires serious improvement. In the form in which it exists, it is impossible to present it to the State Duma, on behalf of the President-or the judicial reform would be discredited, that is, in its main meaning.

    Yes, of course, the judicial reform is a package of measures. It is necessary to solve urgent material issues: return the salary of judges to the pre-crisis level and improve their living conditions, repair court buildings, increase the number of personnel of the judiciary, modernize technologies proceedings, document management and archiving-for all this in is necessary about 42 additional billion of rubles. It is important to engage seriously in the implementation of the already adopted but not yet in full force laws, per example, the law on Magistrates ' Courts, which, as our research shows, are capable to reduce to 20-40% the exorbitant burden on courts of general jurisdiction. It is necessary to consistently implement the constitutional principle of adversarial proceedings and equality of the parties in all three procedural laws - civil, criminal and arbitration, and for this finally pass from the prosecutors to the courts their constitutionally adopted powers to sanction arrests, search, the extension of period of detention, etc.
    Again, all this is extremely important and necessary. However, with the loss of guarantees of the independence of the judiciary, reform will be counterproductive. Moreover, it would be illegal, since Russian Federal Constitutional Law "On the Judicial System of the Russian Federation" (remember: Federal Constitutional Law is the second largest legitimate act after the Constitution) States that Russia cannot published laws and other regulatory legal acts, abolishing or diminishing the autonomy of the courts and the independence of the judiciary. So the debate in the Duma, succeeding on this draft law will be truly a litmus test society's attitude toward the very essence of judicial reform.

 

Yu. I. Sidorenko

published in «NG.ru»
№ 85 (2395)
for 2001-05-16

 

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