“We need the political will of the first person”
An independent judiciary could make Russia a safer, more stable and richer. Why doesn’t he need power?
These days there is a good reason to remember the fate of the judicial reform in Russia. October 24, 1991 was adopted the decree “On the concept of judicial reform in the RSFSR”. It was assumed that by the time the Russian judicial system will become a real third branch of government, a model of fairness and law. Nearly 30 years have passed and Russia is still living, in fact, under the previous court system of the totalitarian past. Why the judiciary has not become independent, why today it becomes possible to “punching” political Affairs, is something the government finally reformed, what are the prospects for the independence of the judiciary? This was told in an interview Znak.com honored lawyer of Russia, Federal judge, Professor of the Department of judicial authority, the HSE, the main initiator of introduction of jury trial in Russia Sergey Pashin.
“The judge has three options: to accept, to make a career or to go”
Recently, he was sentenced to the participants of the “Moscow business” in mid-October there are new detainees. From your point of view, as far as professional acting judges? You can often hear assessments that their decisions are biased and so on.
— Sentences motivated. From the point of view of punishment, the Moscow city court appeal something reviewed. The punishment was considered too severe. But in speed of decision-making these sentences is questionable. Usually this kind of case isn’t considered. In addition, there is no confidence in the fairness of decisions rendered. All this ambiguity has disappeared, if these things were apart of the jury.
— In your opinion, what options judges have in the current environment? I remember the case of a judge of the Dorogomilovskiy district court Irina Devevey. In particular, it has mitigated the measure of restraint for two figurantok case of the extremist organization “the New greatness”. Then was hacked her phone, where was discovered the photo of an intimate nature. After authorities insisted on its dismissal. Isn’t this the typical fate of the judge who decided to play in independence?
— If you are in the system, you have a choice: to either leave or follow the rules of the game. Of course, the relationship between decision authorities and the hacking of the phone of the subordinated difficult to establish, but it is safe to say that today in the justice system prevail KGB manners. I cite the example of a case where the Supreme court found that the arbitration court of Kostroma monitored by the judges, in the offices of the cameras and the President of the court has access to these videos. It is clear that although formally the law prohibits the operational-search activities against a judge actually judges adopt experience from their suppliers — security forces. So judges is hard enough in these conditions to maintain independence.
— That is still to come to terms with this situation?
— The judge has three options: to accept, to make a career, including going on other people’s heads, or leave. Another option is to pretend accept, and actually work in good conscience. In our conditions, when practically no acquittals, honest judge or rely on the jury, or apply probation, punishment limits served. It is, in fact, such a euphemism in this system, when it can not be justified, because then you will be bad, but to assign lenient punishment possible. Some judges do.
— Tell, even if there was a certain independence of judges, what can they do if the state Duma adopts laws? Even in the current environment unless the judges do something crazy? They are just following the law.
No law without a judge is not running. When I tried, I mainly asked their people’s assessors to resolve the matter as they think is right. And when they said that this decision probably will not work, I told them they decided, and I will write to cancel. It is impossible to think that the law determines the activities of a judge 100%. The law can interpret the law a certain way to apply. And there is always the opportunity to interpret the law in accordance with the interests of the law. Right above the law. There are laws cannibalistic, and judges refuse to apply them. By the way, this was in the US with anti-Communist legislation. Almost no judge America these terrible laws did not apply, because from the point of view of judges, freedom of speech, freedom of Association is much above the will of Congress. So no terrible repression of the Communists was not followed.
If our judges are imbued with the idea that they are the guardians of the law and not the letter of the law, then everything would be fine.
Then, take the criminal code, it involves the application of different penalties. You can always punish the lower limit and not necessarily everything has to end with imprisonment. So the judge has a huge scope for the application of the law. And the main question here is this: if judges become independent, how they use this independence? The problem lies in the fact that judges are willing to consult with his superiors that the sentence is not canceled to guarantee that the judge will not be on account of poor. So if a highly educated and cultured our judges that the conditions of independence to show the real justice? Here is another question.
“The system rejects the jury precisely because it is more difficult to conduct”
— From September 1, the courts have moved to the widespread audioproduction and automated distribution of cases among judges. It is expected that this will increase transparency of proceedings and impartiality of verdicts. Do you think this will change something?
— Blessed are those who believe. If this is honestly implemented, then, of course, vary. But here’s what the problem is: actually we have a lot malosolone courts. This means that any allocation of cases between the two judges and cannot occur. The Chairman will allocate the case to himself. Yes and the courts have learned to cheat the system. In particular, learned to implement in the jury of its people, although it seems they have to pick up the automated system. So our judicial figures is much more subtle than any computer program.
One hundred percent logging by means of audio is great. It gives very good results in the West. But in the West the court clerk and the judge does not. This stranger, who leads the transcript of the proceedings and simultaneously, the audio, and make it something impossible to fake. We depend on Secretary of the President of the court and its chief judge. And the second is the law nowhere says that the lack of audio makes the trial invalid. Enough paper Protocol. And then you can make the report that broke the computer system. That is, something happened that caused the loss of audio recordings. So, will the Dodgers, who will get rid of the unwanted audio.
From 1 October have earned appeal and cassation courts in extraterritorial mode. How do you evaluate this step from the point of view of the judiciary as a whole? Can it be regarded as a first step to large-scale judicial reform?
— The creation of districts is not a step of judicial reform. This redistribution of power. Because the power of the presidiums of regional courts by the decision of the appeal cases were disposed of. And thus the Supreme court was strengthened. However, he threw off the burden of appellate review. The Supreme court has kept the number and reduced his workload, as he since 2010 and is seeking. So it’s a hardware solution, it is the judicial reform is remote.
— Not complicated by such extra-territoriality of the courts of the lives of citizens who do not get close to them?
— Of course, the main question of judicial reform — was people better and more convenient. And since in this case they got worse, and most of the processes in the higher courts will now go to the best in videoconferencing, it is rather bad. To call it a reform is impossible.
— Another changes, effective from October 1, require that the representatives of natural and legal persons in court proceedings can only be lawyers and other professional lawyers. What danger do you see in this step, not monopolizirovany any defence in courts of law environment, which, in turn, can be controlled by the Executive?
— The Ministry of justice is trying to reform the legal profession. The bar also tries to incorporate professional lawyers for obvious reasons. This power over the larger community. And these processes may affect the rights of citizens, especially for civil cases. At the time the constitutional court even in criminal cases considered that the interests of the victim in criminal proceedings may claim any of the chosen person and not just a professional lawyer. This is due to the fact that we have many cases, and professional lawyers little. And the less you have, the more the price is set for services in court. So it is more beneficial to corporations lawyers than the citizens. Russia in General is far behind in the number of lawyers per capita from the standard which is adopted in European countries.
Can this step be attributed to judicial reform? Whether citizens will have the opportunity for reasonable prices to protect your rights in court? It’s show time. But if this does not happen, then, of course, is not reform, but rather the collapse of the system at the expense of the citizens who will suffer from all of these innovations. But the law on this Corporation will win.
— You are a supporter and one of the initiators of the introduction of trial by jury. The Institute from time to time exposed to changes in the modern history of Russia. The last such change occurred June 1, 2018: the jury was entitled to consider not only regional, but also district courts. More than a year. This measure changed the quality of judicial decisions?
— The number of acquittals handed down by a jury, has increased slightly. By the end of 2018 is more than 18%. In the ordinary judicial system, i.e., when the jury courts were the regional courts acquittals make up about 12-14%. But at the same time decreases the number of courts without a jury. But the number of cases disposed of by jury trial is negligible. In 2018 was 518 the defendants, who appeared before the Grand jury, and in 2017 they were 499. Interestingly, the new 2180 district courts gained the right to hear cases with a jury, and the number of defendants increased by 20 people. Can this be considered reform? I think not.
The system rejects the jury precisely because it is more difficult to conduct. The system does not want an unpredictable court decisions, she needs to keep a hand on the throat of the court. If not for the will of the President, he has shown twice, that would be really bad. The Supreme court would have destroyed trial by jury. But the President ordered to introduce a jury at the district level. Then began some progress in this direction. And before that the jury is strongly limited. Some time ago, was denied the right to a jury trial women, the elderly, minors. Some of these innovations are endorsed by the constitutional court. For example, in the case of Vadim Filimonov.
In short, today the jury never became an effective instrument of justice. When the king, in the beginning of XX century there were 40 thousand cases a year with the participation of a jury. And we have a little more than 200 cases. Is it allows the jury to influence? Jury duty is such an adversarial model of justice, which is clocking the FSB and the interior Ministry and, of course, the Supreme court. And while it is, the prospect of him weak.
— Today, one of the principles that implements power — digitalization. Can digitalization help to modernize the judicial system?
— Digitalisation of courts is also the kickbacks. That is, people investing in justice, and in the outward direction in the movement of cases in the work unit in the technologies that do not directly create justice. The document, which is good to accelerate in arbitration courts, when suing a legal entity, it is not necessary to hasten in the Affairs that concern human lives. People, usually the poor, the poor are able to use the computers, you can’t restrict the Garden ring, there is also another Russia. And besides, the judge needs to see alive plaintiff and defendant, not only to read the pleadings. And, finally, to create different digital system, it’s good and expensive, and kickbacks, but to feed all, without exception, the defendants in the courtroom and to provide them with human conditions while waiting for a court decision — that for this reason there are no resources. But it would enhance the quality of justice. Despite the fact that this practice is cheaper than the digitalization.
— The judiciary is known for its privileges in relation to the rest of society. For example, there are cases when the traffic police catch the judges behind the wheel in an alcohol intoxication. And then these “cops” fired, judges remain in their seats. Do I need to change something in the position of judges?
— Now in Russia the privilege of officials is a privilege of access to the public trough. Main of privileged class is the class of officials and the class of privatizers. They are spared the many troubles faced by the common man. With regard to the tenure of judges, and that, for example, their improper persecution, I guess, many of these safeguards could be minimized. A judge shall not, while driving drunk, on formal grounds shirk responsibility. Moreover, I believe that the operational-search activities to combat corruption in the judicial environment needs to obtain a “green light”. The judge is an ordinary citizen, and for all sorts of disgrace he should be liable, as an ordinary citizen.
“Judges don’t want to fight with the security forces. After all, those are, in fact, define career judges”
The concept of judicial reform was formally approved by the Council at the suggestion of Yeltsin in October 1991. Today she still has a chance of implementation in Russia?
Its main provisions are almost not implemented mainly because of the resistance of power structures. The main problem that the court remains largely an appendage of the punitive machine. And the first violin plays the secret police — the FSB. Judges do not want to quarrel with the security forces. After all, those are, in fact, define the career of a judge. Not least because members of the presidential Commission, when the judge of the nomination of judges for a promotion, transfer to a higher court and so on.
So we need political will, and the first person, as it was during the reforms in 1864. Also need to create an independent structure within the Executive branch, but rather in the presidential administration, on carrying out the will of the President in life.
Without this, nothing would be, by the way, under Yeltsin. When it was done, so we have a jury trial, judicial control over arrests, the new status of judges and so on. And now, unfortunately, it all collapsed and the reform of the trust in the hands of the enemies of reform. For example, the Supreme court tried to reform the jury by its complete destruction. Thank you, Mr President stood up and at the Congress of judges explained what a jury trial, and they pretended that he enlightened.
This will be done if an independent structure within the presidential administration to implement. Because the Ministry of justice, Ministry of internal Affairs and the Supreme court focused not on the development system, and the functioning of the system. And here it is necessary to be creative, to invest in projects that would not necessarily be successful, it is necessary to feedback — that is a special work to reform.
— What are the main provisions were incorporated in the concept of reform?
— Main idea: the judiciary should be independent from the legislative and Executive. This goal is not reached. Was the idea of creating a trial by jury. This goal is partially achieved. Next — the establishment of court control over arrests. On paper it happened. And the courts do consider such issues since 1992. In addition, there was the distribution of judicial jurisdiction in many civil cases. To the concept of judicial reform, for example, the foreman could not complain to the court if he is fired. He could only complain to their superiors. There were proposals with a change in the judicial statistics. Unfortunately, the judicial statistics related to the number of cases and the number of undo changes. It is dangerous for judges, because their quality of work consider these strange numbers. Unfortunately, these ideas have been vulgarized by the bureaucracy.
For example, was the idea of the irremovability of judges. The idea is correct, but if appointed worthy men who have in mind the legal content. And now we see that the judges were mainly occupied ladies who just got the experience of secretaries in the judicial environment, or officials of law enforcement agencies. From here, accusatory, signing sentences a blueprint, falsification and so on.
They obey the hardware rules and not the rules of justice.
And in addition, have non-removable heads. Since 1996, the presidents of the courts have come to occupy their positions for life. In the beginning of the century this principle was revised, but life remained the Supreme and constitutional courts. The judicial system is suspended to the “immortal” people who have more Soviet consciousness. So how can there be reform?
— Most often the need for an independent court is justified by political motives. Even we start our conversation with “the Moscow business”. But if you remove the political component, then what would be the results of the introduction of an independent court for the country as a whole?
— While the idea of an independent judiciary in the agenda. Is the idea of a strong court, the idea of the firmness of the sentence, wanted the court served the interests of power and was its a linking. If we have an independent court, that is the stability of social relations — people will believe that they can achieve justice in the courts. This means that street protests will come to naught. This is the path to civil peace when ordinary people will be able and even against the tycoon to win, to defend their property, to which claim and “prihvatizatory”, and power structures. It’s called “the red roof”. Now a normal person in court is almost powerless.
And besides, is the improvement of the investment climate. If you can take away property at any time, or you have to pay not only taxes, but also setbacks, and even to unfasten the security forces, no one in this economy does not want to work. So an independent judiciary is a guarantee of stability, security and economic development.
© 2019, paradox. All rights reserved.