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27.05.2008

 

                                     Attention of Mr. Leandro O. Despouy 

      the U.N. special reporter overseeing the independence of judges and
                                                                  lawyers

   Some Facts on Independency of Judges in Sverdlovsk Oblast, the Russian
     Federation: phenomenon of "curators," "telephone law" (telefonnoe
        pravo), Regulations by the Plenum of the Supreme Court, and
    responsibility of judges for not following the mentioned instruments

   On  the  course  of  conducting  fieldwork  (interviews  of judges and
   advocates)  for  a PhD thesis on domestic application of international
   law,  particularly  of  the  European Convention for the Protection of
   Human  Rights  and Fundamental Freedoms the following facts of lack of
   independency  were  identified.  The thesis is not particularly on the
   issue  of  independency  of the judiciary and advocates. Nevertheless,
   there are two major issues of independency of judiciary in Russia that
   were identified during the research, particularly during interviews.

   First  of  all,  I shall admit and appreciate the openness of district
   court  judges  and  especially  advocates.  All 17 advocates and staff
   attorneys  of  different organizations expressed no reservations about
   being  interviewed.  With  some  exceptions,  most  of the interviewed
   judges  (12  out  of  15) were happy to meet for an interview and give
   their  comments.  There  were instances when judges refused to talk as
   soon as they heard the name of the topic of the would be interview. In
   particular,  the  Chief Justice of Zheleznodorozhnii District Court of
   Yekaterinburg   Olga   Arkadievna   Gavrilova  and  Chief  Justice  of
   Verkh-Isetskii  District  Court  of Yekaterinburg Nikolai Michailovich
   Miroshnichenko  refused  to  answer any questions after they heard the
   topic  for  the  interview  -  domestic implementation of the European
   Convention   for  the  Protection  of  Human  Rights  and  Fundamental
   Freedoms.  This  fact  in  itself  is  not  of a concern. However, the
   following  reaction of chief justices is remarkable and rises concerns
   about independecy of judiciary from chief justices.

   Both  chief  justices  mentioned above not only refused to talk on the
   issue  of  domestic  application of the Convention but also refused my
   request to talk to other judges by saying that they would not grant me
   access  to  other  judges.^ This fact - that the chief justice decides
   whether   a   district   court  judge  could  give  an  interview  (be
   interviewed)   -  says  a  great  deal  about  the  state  of  judges'
   independence from the chief justices of district courts.

   Another  form  of  dependency  was  identified. The same dependency of
   district  courts  on  a  higher  court  (Sverdlovsk  Oblast Court) was
   observed  in  interviews  with  other judges. Chief Justice Rudenko of
   Ordzhonokidzevskii District Court of Yekaterinburg said that any judge
   could  be  telephoned by a judge of Sverdlovsk Oblast Court, in regard
   to  a particular judgment or district court judges telephone Sverdlovs
   Oblast Court for consultations. Chief Justice Valter of Serov District
   Court (Sverdlovsk Oblast) also admitted:

   There  is  a close connection with the oblast court in the form of the
   telephone.  Our  court  [Serov  District  Court]  has  a  curator from
   Sverdlovsk  oblast  court.  If  we have an arguable question about the
   application  of  legislation  we  refer  it  to  the  oblast  court by
   telephone.^

   The roots of the reasons for "the telephone law" and the phenomenon of
   "curators"  to  work  very efficiently in Russian courts are hidden in
   the  history of the legal system of the Russian Federation. During the
   Soviet period (and it is true for today) the quality of administration
   of  justice  is  measured by the stability of decisions (ustoichivost'
   reshenii). Todd Foglesong explained this situation:

   A   judge's   performance   rating,   potential   bonus,  professional
   reputation,  and  future  career  depended  closely  on  his  rate  of
   reversal,  or  on  its observe, "stability of sentences" (stabil'nost'
   prigovorov).  Stability  of  verdicts and sentences served as the main
   measure of the quality of a judge's work. [...] There were also a host
   of  "organizational  conclusions"  which  might  be drawn about judges
   reversed  too  often  - such as disciplinary proceedings, a "grilling"
   (razbor) at the presidium of the regional court, and occasionally even
   a  recall  (otziv). The prospect of reversal in Soviet Russia thus was
   inherently  coercive.  It  created  strong and tangible incentives for
   trial  court  judges  to  both  anticipate  and  abide by the regional
   court's view of the law.^ [emphasis added]

   The  "anticipation"  is  what  causes  the  lack  of independency. The
   responsibility  could  be  of  different  levels.  Their decisions are
   likely  to  be  quashed  by  higher  court if judges did not take into
   account  legal positions expressed in Regulations by the Plenum of the
   Supreme  Court  (see  below)  or  by  curators.  There  is a system of
   curators  which  is  not established by any of the Federal statutes on
   judicial  system  of the Russian Federation. Judges of regional courts
   (Sverdlovsk  Oblast  Court) who work as cassation judges of Sverdlovsk
   Oblast  Court are assigned to supervise over particular district court
   of  a region (oblast). Sverdlovsk Oblast Court "curators" for district
   courts  will  telephone  or meet at the next visit to district court a
   particular  judge  and warn that next time such decision will not pass
   cassation  if  a judge does not pass the decision in the way described
   by  curator.^ The more of such reversals, the more likely a judge will
   not be promoted or even will be stripped of the judicial authority.

   The  consequences  of lack of the knowledge of Regulations (see below)
   are  concisely  expressed  by  Chief  Justice  Valova  of  Oktiabrskii
   District   Court   of  Yekaterinburg:  "Judges  must  know  and  study
   Regulations.  If  judges  are not familiar with Regulations, then they
   simply cease being judges."^

   Thus,  judges  are dependent not on the Constitution and statutes, but
   on  the  opinion  of higher courts represented by curators and special
   non-judiciary  acts  of the Supreme Court called Regulations. First of
   all   "Regulations"   (postanovleniia)   or   "guiding   explanations"
   (rukovodiaschie  raziasneniia)  passed  by  the  Plenum of the Supreme
   Court  and the Plenum of the Supreme Arbitration (Commercial) Court of
   the  Russian  Federation are the most unusual element of the machinery
   for  implementing  domestic  law  within  the  Russian  legal  system.
   Regulations  are explanations of judicial practice issues based on the
   overview  and  generalization  of  the  lower  courts' and the supreme
   courts'  jurisprudence.  They  are  abstract opinions that are legally
   binding  on  all  lower  courts,  summarizing the judicial practice of
   lower  courts and explaining the way a particular provision of the law
   should be applied. Regulations are administrative acts (not judge-made
   law)  due to the fact that they are issued by the Supreme Court judges
   not in the course of administering justice (administrative acts issued
   by judges).

   One  example of responsibility of judges for not following Regulations
   will  be provided here. It is about disciplinary charges put down upon
   arbitrazh  court  judges for not following Regulation by the Plenum of
   the  Supreme  Arbitrzh Court (not of the Supreme Court). Although this
   example reflects legally binding force of by the Plenum of the Supreme
   Arbitrzh  Court (not of the Supreme Court), it is quite representative
   for  the  courts  of general jurisdiction for a number of reasons. The
   Supreme  Arbitrazh  Court  and  the  Supreme Court have similar status
   under  the  Constitution.  It  is not rare that Plenums of both courts
   issue   joint   Regulations.   In   addition,   regional  and  federal
   qualification collegiums of judges consider cases on responsibility of
   judges of both systems, general and arbitrazh jurisdiction. Therefore,
   the  decision  by  Sverdlovsk Oblast Qualification Collegium of Judges
   (the  Collegium) which will be discussed below is illustrative for the
   issue.

   The  decision  of  the Collegium of 29 June 2005 is of an interest for
   two  reasons.  First  of  all,  it  demonstrates  that judges could be
   disciplinary  punished  for  not  following  explanations contained in
   Regulations.  Second of all, Regulation under issue of the decision of
   29  June  2005  exemplifies  legislative activity of the Plenum of the
   Supreme  Arbitrazh  Court (quite often Regulations substitute statutes
   by  State  Duma).  By  the  decision  of  29  June 2005 four judges of
   Sverdlovsk  Oblast Arbitrazh Court were called to disciplinary account
   in  the  form  of  "warning"  (preduprezhdenie) for delivering interim
   decision  on  security measures^ without taking into account Section 5
   of  Regulation by the Plenum of the Supreme Arbitrazh Court No 11 of 9
   July  2003  on Arbitrazh Courts Practice on Implementation of Security
   Measures on Prohibition of Holding Common Meeting of Stakeholders.

   Sverdlovsk  Oblast  Arbitrazh Court composed of one judge Fedorova was
   considering  a dispute between a limited liability company (obschestvo
   s ogranichennoi otvetstvennostiu) "Firma Kross" and public joint stock
   company  (otkritoe  aktsionernoe obschestvo) "Uralelektroset'stroi" on
   the  issue  of lawfulness of stakeholders' meeting of the public joint
   stock  company. In order to secure future judgment the plaintiff asked
   the  court  to issue a security measure in the form of prohibiting the
   respondent  to  hold  special  stockholders' meeting. The court banned
   forthcoming meeting of 13 February 2005. The judge has an authority to
   do  so  under  Subsection  2  Section  1  of Article 91 of the Code of
   Arbitrazh  Procedure.  This  subsection contains only two lines on the
   issue  of  rendering  security measures: the court has an authority to
   forbid  the  respondent  or  other  persons  to commit certain actions
   concerning  the  subject  of  the  dispute. The judge interpreted this
   provision  as  an  authority  to  ban the meeting of stakeholders. The
   appellate  division  of  Sverdlovsk  Arbitrazh Court composed of three
   judges  upheld  the  interim  decision. The defender complained to the
   Chief  Justice  of  the  Sverdlovsk  Oblast  Court  Irina Reshetnikova
   stating  that  Justice Fedorova of the court of first instance did not
   take into account Section 5 of Regulation by the Plenum of the Supreme
   Arbitrazh  Court  No  11  of  9  July 2003 which provides that interim
   measures  must  not  make  impossible  fulfilment  of  activity of the
   company.  Regulation  in  question not just interprets but supplements
   Article  91  of  Arbitrazh  Procedural  Code  with the provision which
   contains exception from the basic norm.

   Chief  Justice  Reshetnikova  initiated  proceedings,  and the Head of
   Board  of  Judges  (Sovet Sudei) of Sverdlovsk Oblast and Deputy Chief
   Justice  of Sverdlovsk Oblast Court Alexandr Demen't'ev intervened and
   supported,  before  the  Collegium against four judges involved. It is
   interesting to note that the proceedings were continued even after the
   respondent   dropped  charges.^  The  proceedings  resulted  into  the
   decision  of  the Collegium of 29 June 2005 on disciplinary punishment
   in the form of "warning" in regard to four judges involved.

   There  are two issues which follow from the text of the decision of 29
   June  2005.  Firstly,  the  Collegium  considered  non-application  of
   Regulations  as  perpetration  of  disciplinary  offence  which  under
   Article  12^1 of the Law of the Russian Federation on Status of Judges
   in  the  Russian  Federation  may  lead  to disciplinary punishment of
   warning  or  early  cessation  of  authority  of  judge. Moreover, the
   Collegium concluded that non-application of Regulation not only causes
   interference  into  the  commercial dispute but also "causes damage to
   the  entire  judicial community." If it was not for previous excellent
   reputation  of  judges,  they  were  likely  to  be  stripped of their
   judicial authority.^

   Secondly,  apart  from  the responsibility of judges for not following
   Regulations,  the Collegium put observation of Regulations on the same
   footing as adherence to the statute by stating that:

   Judges  ignored  guiding  explanations,  which  led to passing clearly
   unlawful security measure and their execution... ^

   Therefore,  lack  of  implementation  of Regulations equals to lack of
   implementation  of  law  (statutes).  At some point in the text of the
   decision  the  Collegium  directly  states  that the judges "broke the
   provisions of law" meaning the provisions of Regulation.^

   This  piece is an extract from the PhD thesis "Domestic Application of
   the  European  Convention on Human Righnts and its Case-law in Russian
   courts"  and  findings  in  the  book  "The  Impact  of  the  European
   Convention for Human Rights on Russian Law"
   http://sutyajnik.ru/bal/ibidem

   For more detail please contact:

   Anton Burkov

   LLM (Essex)

   PhD candidate in law

   Wolfson College, University of Cambridge

   ab636@cam.ac.uk

   mobile: +44(0)7722204553

   land line: +44(0)1223762429

   w-page: www.law.cam.ac.uk/phd/view_phd.php?profile=8

   recent book: http://sutyajnik.ru/bal/ibidem

   ^My personal interview with Nikolai Michailovich Miroshnichenko, Chief
   Justice  of  Verkh-Isetskii District Court of Yekaterinburg (30 August
   2007).Same  answer  was  given  by  Chief Justice of Zheleznodorozhnii
   District  Court  Olga  Gavrilova.  My  personal  interview  with  Olga
   Arkadievna  Gavrilova,  Chief  Justice  of  Zheleznodorozhnii District
   Court of Yekaterinburg (28 August 2007).

   ^My  personal  interview  with  Alexandr  Gerbertovich  Valter,  Cheif
   Justice of Serov District Court (4 September 2007).

   ^Todd  Foglesong,  The  Reform  of  Criminal  Justice and Evolution of
   Judicial  Dependence  in  Late  Soviet Russia, in Reforming justice in
   Russia,  1864-1996:  power,  culture,  and  the  limits of legal order
   (Peter H. Solomon ed., 1997). P. 287.

   ^My personal interview with Ludmila Nikiforovna Rudenko, Cheif Justice
   of  Ordzhonikidzevskii  District  Court  of  Yekaterinburg  (29 August
   2007).  My personal interview with Alexandr Gerbertovich Valter, Cheif
   Justice of Serov District Court (4 September 2007).

   ^My  personal interview with Marina Alexandrovna Valova, Chief justice
   of Oktiabrskii District Court of Yekaterinburg (12 September 2007).

   ^Security   measures   are  urgent  temporary  measures  taken  by  an
   arbitration  court  on  the application of a person participating in a
   case,  and in the instances provided for by this Code, likewise on the
   application  of  another person, that are aimed at securing a claim or
   property  interests of the applicant (Part 1 of Article 90 of the Code
   of Arbitrazh Procedure).

   ^Letter of public joint-stock company "Uralenergos'et'stroi" of 9 June
   2005  to  the  Collegium  on  recall  of the complaint against Justice
   Fedorova.

   ^The  materials  of the proceedings were drawn from the archive of the
   Sverdlovsk Oblast Qualification Collegium of Judges.

   ^The  decision  of  9  June  2005  by  Sverdlovsk Oblast Qualification
   Collegium  of  Judges.  Available on the web-cite of Sverdlovsk Oblast
   Court    www.ekboblsud.ru/kvalkol_det.php?srazd=5&id=13&page=2   (last
   accessed on 8 May 2008).

   ^Ibid.

   5


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15.05.2015. "" .