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The judicial system of the Russian Federation: the current state
Section 7. Judicial power
Prizhennikova Alena Nikolaevna, assistant professor of the department of “Civil and arbitral process", candidate of jurisprudence, associate professor FSEBI of HE Financial university under the Government of the Russian Federation Moscow, Russia E-mail: [email protected]
The judicial system of the Russian Federation: the current state
Abstract: Subject matter of the study was the issue concerning prospects of constitution of specialized courts in Russia. The court reform carried out in Russia is oriented to the creation of the quality court defense of constitutional rights and freedoms of individuals and legal entities. The Federal Constitutional Law dated from 31.12.1996 № 1-FKZ «On the Court System of the Russian Federation» stipulates constitution of specialized federal courts (art. 26).Specialized courts are unique institute and have special place and power in hearing of specific cases between define subjects. There is an opinion that specialization of courts can be explained with the following number of reasons: firstly, their creation will favor strengthening of the judicial system; secondly, review and resolution of a certain category of cases secures a higher professionalism of judges; thirdly, courts of special jurisdiction will secure the appropriate rate of the trial.
The issue of specialization of courts is urgent question; firstly, specialization occurs in many areas of activity, in this context the specialization is also possible in judicial activity. Disputes are becoming more puzzled. They can be labor, corporate, administrative and others. In these instances it is essential to call attention to the consideration of individual peculiarities of each dispute. Firstly, as practice has shown, sophistication of disputes leads to transformation of judicial system. But frequent transformations are harmful. In the long all countries create their judicial systems.
In this juncture the author has come to the conclusion that the legal result depends on how duly the judicial system works. In terms of international experience author suggests the conception of organization of freestanding specialized courts and give reasons for it.
Keywords: judicial system, specialized courts, judicial reform, specialization of judges, administrative procedure, commercial courts, civil procedure, labor courts, justice, juvenile justice.
The court reform carried out in Russia is oriented to the creation of the quality court defense of constitutional rights and freedoms of individuals and legal entities. The right to judicial protection announced in Article 46 of the Constitution of the Russian Federation is basic as related to all other rights and freedoms of a person and a citizen. The European Convention of November 4, 1950 “On Protection of Human Rights and Basic Freedoms” vests the title of each person and citizen for just
court proceedings performed by an independent and unprejudiced court in its Article 6.
According to p. 3 art. 118, p. 3 art. 128, art. 83 and art. 102 of Constitution of the Russian Federation judicial system is provided by the Constitution and Federal Constitutional Laws.
Foreign experience demonstrates that the judicial system of Germany includes five subsystems: general courts, administrative, financial, labor and social courts [23].
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Judicial systems of Canada and Australia include two levels of courts: the federal courts and the courts of subjects of federation. In Australia there is a big amount of specialized courts which are not included in system of courts of general jurisdiction [9]. The principle of federalism is reflected in judicial system of Canada, there are two types of courts: Federal court of Canada and provincial courts.
In France there are two independent systems of general and administrative courts. There are civil, criminal and specialized courts in the system of general courts of the first instance. State Council is the highest instance in the system of administrative courts.
In Italy there are two systems of courts: civil and administrative.
The legislation of USA is a bright example. Federal judicial system consists of three levels: county courts, courts of appeal and the Supreme Court. All civil cases, which are not tried in state courts, are in competence of courts of appeal and the Supreme Court. Federal Specialized courts are also operating [2, 160-161].
In the area of specialized courts, the Russian Federation obtained positive result in the integration of the principles of specialization in development of the judicial system. Commercial courts were established in 1992 «as specialized government courts for settling economic disputes between organizations and individual entrepreneurs» [16, 36].
Under art. 28-29 of The Commercial Procedure Code of the Russian Federation from 24.06.2002 № 95-FZ (hereinafter CPC) commercial courts consider economic disputes and other cases, related to the exercise of entrepreneurial and other economic activities arising from civil relations administrative and other public relations. Specialized courts for settling economic dispute were also established in the CIS countries.
Analysis of the situation in the CIS countries shows that the title «commercial court» is perceived differently. For example, the arbitration courts are in the Republic of Georgia, Kyrgyzstan, Armenia. In the Republic of Armenia, Azerbaijan, Kazakhstan, Moldova, Tajikistan — Economic courts, commercial courts are located in the Republic of Belarus, Ukraine, Uzbekistan, Turkmenistan.
How should this government body be called in the Russian Federation — Commercial court or Economic court? Firstly, this expression «commercial proceedings» is synonymous with the «arbitra-tion proceedings» and «economic proceedings» because in all procedure codes of the republics, term «commercial proceedings» implies all economic disputes. Secondly, commercial courts are able to use all of four existing forms of proceedings under the legislation for considering economic disputes and other cases within the scope of competence of a commercial court. Thirdly, Federal Constitutional Law from 05.02.2014 № 2-FKZ, the Federal Law of05.02.2014 № 16-FZ entered into force in 06.02.2014 according to which the competences of the Supreme Commercial Court move to the Supreme Court of the Russian Federation. The Supreme Court of the Russian Federation is going to be sole highest judicial body for civil, criminal, administrative and other cases and also for economic disputes.
An actual problem was the lack of a clear delineation between jurisdiction of commercial courts and jurisdiction of general courts and problem concerning «administrative court proceedings». Thus, the issue of uniting civil and commercial procedure remains legitimate. Therefore, it would be necessary to pass consolidated procedural code (this point has been earlier made [22]), the contrary view has been also expressed [13; 19].
The Court for Protection of Intellectual Rights is specialized commercial court.
There are different views on the issue of constitution ofJuvenal courts [7; 21]. This way, the Franco-Russian Roundtable on the reform of the penal system was held in the Embassy of France in Moscow on 15 April 2015 [25]. During the round-table discussion it was said that the decision not to establish Juvenile Court in Russia was made at the State level, the reason for this issue is the fact that our country is not currently prepared for the launch of juvenile justice. It was also explained that The Programme, on the basis of which juvenile courts were established, was discontinued from Government control. Although, in the speech of the representative of the Supreme Court of the Russian Federation it was indicated that established Juvenile Courts in several test regions will continue to operate.
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The actual issue is to create the juvenal justice in Russia.
It should be noted that the establishment of a specialized juvenile justice system is obligation of the Russian Federation under existing the UN Convention on the Rights of the Child since 1990. In September 2005 40th session of the Committee on the Rights of the Child which again indicated that in spite of several legislative attempts, no juvenile courts have been established at the federal level in Russia that is one of the issues of concern to the international community because the juvenile wrongdoers’ cases should be heard separately due to the system of justice [26].
For example, in 2011 elements of juvenal technologies are being used by general courts in Rostov, Irkutsk, Leningrad, Bryansk, Lipetsk, Kamchatka, Vladimir, Ivanovo, Saratov, Orenburg, Volgograd and Moscow regions, the Jewish Autonomous Region, the Perm Region, Republics of Khakassia and Karelia, the city of St. Petersburg and Moscow [24] in the Republic of North Ossetia — Alania, Kabardino-Balkaria and Ingushetia.
We believe that we must increase the number of special correctional institutions for adolescents; develop the network of institutions for minors in need of social rehabilitation; use a plan of the mediation, develop the restorative justice and improve the efficiency of securing the rights of children.
Discussions are ongoing regarding the possible reason of constitution labour courts, however, there are distinct perspectives on issue of the developing labour justice: “labour courts as other federal courts must be in engaged in judicial system of the RF”; “there is a need to create the Code of Labour Procedure ... and not to create new legal bodies such as labour courts”; “one of the most efficient ways for resolving labour disputes is the arbitration court”; more attention needed to be paid now on the future work of putting rules of the LC in accordance with universally recognized principles and standards of international law and The Constitution [4; 5; 6].
There are specialized courts in Germany, Finland, Great Britain, France, Austria, Belgium, Denmark, Luxembourg, Spain, Portugal, Switzerland, Sweden, Norway and Canada (Quebec), New Zealand and Israel. There are specialized administrative
bodies performing judicial functions in the United States, Japan, Canada (at the federal level and in the English-speaking provinces).
The individual labor disputes of a legal nature, the collective labour disputes concerning with implying of tariffs agreements and legal issues concerning activity of company’s Counsels are in competence of labour court in Germany. In the first place these are individual labour disputes commonly related to the conclusion, implementation and termination of the employment contract, compensation of the caused harm to parties, as well as legal collective labor disputes, for example, relating to the status of trade unions or employee representative at the company, workers and trade unions participate in the management of the enterprise.
The activity of labour courts is regulated by «Law on Labour Courts» of1953 (amended).
Labour courts of first and second instance are subject to the ministers of labor of the relevant federal lands. (except State of Hesse).
The activity of The Federal labour court is controlled by The Federal Ministry of Labour and the social order in Germany [11].
Thus, exploring the procedural peculiarities of consideration and resolution of labor disputes in Russia and analysing foreign experience it can be concluded that it is possible to constitute Judicial Boards for settlement of disputes arising from labour retaliations in general courts. The judicial board would be guided by the Code ofLabour Procedure. Disputes arising from individual and collective agreements must be in special competence of the Judicial board for settlement of disputes arising from labour retaliations. The examination procedure of these cases must have its own specificities.
In the context of administrative courts the only approximate date of occurrence of administrative justice in Russia is the XVIII century — the first half of the XIX century.
Administrate courts were established in Europe countries (Germany, France, Austria, Poland, Spain, Holland, Belgium, Bulgaria, Greece, Italy, Latvia, Lithuania, Estonia, Czech Republic, Ukraine and others). Absolutely different system of administrative justice operates in these countries. Thus, in some courtiers specialized administrative courts
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are included in the system of general courts (Mexico, United Kingdom, USA, Australia, New Zealand). In other courtiers, judicial boards on administrative matters were constituted in general courts (Georgia, Estonia, Spain, Bolivia). In other countries, administrative courts are separated from general courts and have independent system (Germany, France, Italy, Austria, Finland, Sweden, Poland, Israel).
Analyzing foreign experience of formation of administrative justice can be concluded that:
1) Two major models of control over administrative can be distinguished. The first model: states where there is no system of administrative courts, which does not exclude the presence of other similar institutions, such as administrative tribunals (UK, USA, Australia, New Zealand).The second model: States, where administrative courts operate (France, Germany, Italy, Austria, Finland, Sweden, Greece, Spain, Poland, Israel, and others) [3, 1831];
2) The continental model (France, Germany) assumes the autonomy of administrative law and independent legal status of the judicial bodies of administrative justice; common law and anglo-american systems which lie in more or less consistent way of delivering the unite justice — where acts of management are under supervision of general courts [18, 4-21];
3) French; German; Anglo-Saxon; model administrative presence in the ordinary courts can be identified in organization of administrative justice
[30];
4) Also there are combined systems.
Studying the foreign experience of the administrative courts in other countries will help the Russian Federation to identify the best approaches for creating its own model of administrative justice.
The Federal Law the Code ofadministrative court proceedings of the Russian Federation enters into force on 15 September 2015 № 21-FZ (except certain provisions). The Code of administrative court proceedings regulates the procedure of administrative proceedings in the consideration and resolution of the Supreme Court of the Russian Federation; the protection of violated or disputed rights, the rights and legal interests of organizations, as well as other administrative cases arising from administrative and
other public relations related to the implementation of judicial review of the legality and validity of the state or other public authority.
Due to adoption of Code of Administrative Court Procedure of the Russian Federation, some legislative acts of the Russian Federation underwent corresponding amendments.
In particular, Law of the Russian Federation “On Mass Media”, Federa Law “On the Public Prosecution Service of the Russian Federation”, Law of the Russian Federation “On psychiatric care and civil rights guarantees at its application”, Law of the Russian Federation “On State Secrets”,: On Enforcement Procedures”, “On Contract systems in the sphere of procurement of goods, works and services for provisioning governmental and municipal needs”, in Tax Code of the Russian Federation, in the Civil Code of the Russian Federation, aimed at bringing the provisions of these laws into compliance with the Code of Administrative Court Procedure of the Russian Federation.
Also, in conjunction with the adoption of Code of f Administrative Court Procedure of the Russian Federation the competence of military courts and human rights commissioner in Russia were updated.
In particular it was specified that district (naval) military courts will among other things consider at first instance the administrative cases, related to the National Security Information, and also cases on administrative bills of complaint on award of compensation for breach of the right for court procedure within reasonable time or the right for execution of the court decree within reasonable time on the cases in subject to the jurisdiction of presidial military courts.
It has been clarified, that subsequent to the results of administration of citizens’’ complaints the Human rights commissioner has the right to go to court with the administrative bill of complaint (claim) in defense of rights and freedoms (including unlimited range of persons), violated by the decisions or actions (failure to act) of a governing institution, organization, invested with certain government or any other public authorities, public individual, a public officer or a local government employee, and also personally or through his or her representative take part in a process in proper legal manner.
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It has been also established, that the commissioner has the right to refuse witness testimony in a civil or an administrative case, administrative offence case or criminal case on the circumstances he came to know in relation to discharge of his or her duties.
The procedure of administrative proceedings is defined by the Constitution of the Russian Federation, the Federal Constitutional Law dated from 31.12.1996 № 1-FKZ «On the Court System of the Russian Federation», Federal Constitutional Law dated from 23.06.1999 № 1-FKZ «On military courts of the Russian Federation», Federal Constitutional Law dated from 07.02.2011 № 1-FKZ «On courts of general jurisdiction of the Russian Federation».
The matter of specialization (specialized courts) has been paid much attention to in national scientific literature [1; 12, 96-107; 14; 15; 17, 8; 20, 95; 27, 18; 28, 8]. It has been specified, that the court is the very specialization [29]; the court may be specialized.
Why do the specialized courts appear and what are they needed for? Creation of specialized courts is expediential for a variety of causes. In the first place, it will let the judges specialize in consideration of a certain category of cases; in the second place, it is designated for the quicker consideration of arguments in the light of specific features of the cases considered.
If we refer to history, we shall see that the specialization of courts has risen to unprecedented scale in Russia, turning by the XIX century into a complicated embroilment of court jurisdictions, which provoked great number of arguments On judicial jurisdiction and official knowledge. By the start of judicial reforms of Alexander II there had been an enormous number of all sorts of specialized judicial agencies with unclear and indefinite competence [10, 52].
Thus, there were specialized courts (state and и private ones), that were initially created depending on the subjective composition taking part in judgment of legal conflicts. In XVII century the specialization of courts had been for the first time thread due to a meritous attribute, that is the character of the argument had been made the corner stone, though up to 1917 the specialized judicial instances
were singled out and functioned using both of the said attributes, and also with the amalgamation of those.
Therefore, the matter of expediency of the specialized courts has been existing for a long time.
We agree with the opinion, that classical full-scale judicial specialization must meet two attributes: it must have a well-defined sphere of specialized jurisdiction and, correspondingly, embrace all the three constituents, procedural and institutional mechanism of justice — judicial, procedural and the one defining status of persons, directly executing justice [8].
The basis for emerging of specialized courts are the developing social relations in the society. The society is developing from the system of social institutes and represents a complicated assemblage of economic, political, legal, spiritual relationships, providing its integrity as a social system. And the stronger the social relations and the society itself are developed, the more accurate is the reaction of state towards the necessity of regulation of individual spheres of conflicts in special jurisdictions. An important point in creation of the courts of specialized jurisdiction is the necessity of establishing a special (in comparison with the usual for regular court) order of hearing of some category of cases, take into account the peculiarities of procedural regulations for the given category of cases having their own purposes, and also their own independent mechanisms and peculiarities of statutory regulation, unify the processes of law.
We believe that the implementation of the constitutional and legislative provisions on administrative proceedings would clearly improve the quality of the Russian justice system.
We would like to conclude by saying that the judicial system of the Russian Federation develops with the values of the judicial system enshrined in the Constitution of the Russian Federation, and also In the light of the legal position of international legal bodies. The Russian judicial system cooperates and adopts positive foreign experience constantly improving the quality and efficiency of the judiciary.
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