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.
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