"Honest Law Court is the People's Court of Justice". Legal Information Agency, 10 August 2017
Human Rights Council took the initiative to carry out a micro reform of the legal system. It is proposed to re-establish people's jury persons, publish audio records of all cases and also to invite human rights defenders as "friends of the court" in order to guarantee independence, publicity and transparency of the activity of the servants of Themis.
Experts suppose that the legal system suffers because of its closed nature: the public cannot participate in appointment of the judges and take part in the proceedings which draw much attention, chairpersons influence consideration of certain cases, and the majority of petitions of the investigation for arrest is satisfied almost automatically.
Recording is switched on
Measures to develop civil society and human rights proposed by the Council for the President of Russia, are not "revolutionary" and often coincide with the frequently declared position both of the Head of State and high authorities. For instance, human rights activists insist on the obligatory introduction and publication on the Internet of audio recordings of all meetings: "It is a proper guarantee of the effective public control over the courts and is meant to guarantee not only independent judgement for citizens, but independence of the judges as well", - the CHR (Council for Human Rights) explains.
The current procedural legislation allows audio recording and it is even obligatory in the Arbitration Tribunal and administrative proceedings, while in the opinion of the majority of the dispute participants, written proceedings records of complicated criminal cases are often nothing but "a free essay of a secretary". Many advocates carry out dictaphone recording by themselves and demand making amendments to the official record on its bases. The Supreme Court of Russia also insists on audio recording. Moreover, according to the Highest Authority, corresponding technical equipment of all court rooms is not only financed, but provided in reality. But the CHR states that many servants of Themis "are not going to follow the policy of the Supreme Court of Russia on obligatory introduction of audio recording ". In their turn, human rights activists are sure that audio recording should be obligatory and if it is not carried out, the court decision must be cancelled.
Igor Borisov, member of the CHR and Chairman of the Council of the Russian Public Suffrage Institution, is critical about the proposal to place records on the Internet. In his opinion, such publications may lead to infringement of the right to protect personal data, for at present, only disputing parties have the right of access to audio records of proceedings even in the Arbitration Tribunal. Nevertheless, nobody can prohibit any of those who is present during an open hearing, to make a record using an ordinary dictaphone (smartphone or any other gadget) and place it in the public domain.
The CHR also proposes to re-establish the institution of the people's jury persons - the so called schoffens. Unlike the jury, they pass a decision together with the professional judge. Human rights activists think that it is necessary to use representatives of the society in consideration of the cases about choosing keeping in custody as a preventive measure. The Council is sure that this "will provide correction of the established negative practice of arrest application - without a proper check of its reasonability as an exceptional measure of restraint". "Citizens' participation in decisions about arrest is an additional guarantee of the judges' independence and impartiality, and also prevents corruption in courts and law-enforcement", - states the CHR. It is also planned to engage people's jury persons in the certain categories of civil and administrative cases (annulment of parental rights, reinstatement, protection of honour and dignity, driving ban, etc).
The CHR has made a row of proposals about the judges' organization of work and control after their activity. First of all, it is necessary to exclude the court chairpersons' authority in distributing cases and delegate the function of making a random choice to a non-biased computer. Such an approach is successfully practiced in the Arbitration Court in order to decrease corruption costs, although experts point out to possible problems of implementation of this technology in the courts of general jurisdiction. After all, hundreds of people scattered around dozens of divisions specializing in certain kinds of disputes, work in the Arbitration Tribunal, whereas only two or three servants of Themis are engaged in many district and city courts. As a rule, each judge works in a specific area (criminal cases, family disputes and so on), that is why random distribution will cause decrease in quality of the court decisions.
The CHR is also critical of the existing system of the court work quality assessment based on the cancelled acts percentage. "Such practice counteracts administering of independent and fair justice and makes a judge find out position of the authority beforehand, co-ordinate a future decision with it in order to avoid criticism and cancellation of the decision", - is emphasized in the published programme. Also, human rights activists think that it is necessary to deprive chairpersons of the right to bring the servants of Themis to disciplinary responsibility and make decisions about additional payment.
If a friend has suddenly turned out to be ...
The CHR thinks that the so cold friends of the court (amicus curie - Lat.) - human rights organizations and Commissioners for Human Rights, should help to make forensic research more objective and full. In order to achieve it, their right to present their conclusions on the cases should be stated in the Procedural Law.
The institution of amicus curie is actively used by the High Courts in different countries , fist of all, for exercising constitutional Justice. Conclusion of de facto independent experts provides additional information about a legal problem. The Constitutional Court of Russia also welcomes "friends" - members of the CHR itself, ombudspersons, ANCO "Institution of Law and Public Policy", authoritative representatives of the juridical science and so on, who often declare their positions on its meetings. And these experts not always support an applicant. For instance, during the discussion of the Ildar Dadin case who was convicted of repeated breaking of the Law on meetings, Commissioner for Human Rights in Russia Tatiana Moskalkova pointed out that introduction of criminal responsibility for such "recidivists" is justified.
Actually, apart from ordinary disputes and criminal cases, Constitutional Courts estimate not a conflict or guilt of a specific person, but resolve a meaningful public problem together with the other participants. It can't be eliminated that some unconscientious public activists may abuse the "friends' " rights and "foreign agents"(human rights non-commercial organizations which are sponsored from abroad and caught in political activity) are unlikely to become amicus.
The CHR estimates court control over the Investigation and the Law-Enforcement as inefficacious, for it is most often carried out by the servant of Themis who will definitely treat the criminal case on its merits later on. The Council thinks that it is necessary to introduce additional measures for independent professional estimation of the doubtful situations in order to resolve such contradictions. Experience of Austria, Italy, Canada and other countries where independent commissions, Special Public Prosecutors or commissioners are established to reveal and tackle corruption practices inside closed systems inaccessible for public control, is given as an example.
Besides, it is planned to use "independent specialists out of juridical public" in consideration of disciplinary responsibility of the servants of Themis. Igor Borisov also expressed his special opinion on this idea: "I consider that thus pursuit of the guarantee of the judges' independence may turn into intrusion into independence of the court system on the part of the juridical public."
In 2016 courts considered 134 thousand petitions for choosing detention as a preventive measure, 122 thousand of them were satisfied (91%). In 98 per cent of cases arrest was prolonged.
Vladimir Avilkin, Attorneys at Law Pen & Paper
The idea of a chairperson's exclusion from the process of the case distribution between judges will increase objectivity, but may also cause negative consequences. A judge often gets a case of a certain kind for the first time and despite all the efforts to be unbiased sometimes makes bad mistakes. That is why the automatic distribution system is unlikely to work in small courts - in that case, in my opinion, specialization of the servants of Themis is more important than "randomness" in their selection.
Proposition for participation of the jury persons in choosing a prevention measure also deserves attention. Unfortunately, now many judges don't consider a case thoroughly but literally "stamp" arrest decisions while working with the same prosecutors. Opinions of ordinary citizens will be also important in dispute consideration of patronage, reinstatement, defense of honour and dignity cases, and so on. Jury persons won't become "nodders" in the right approach.
At present a secretary most often records not more than one fifth of what was said and that makes the parties submit comments. Moreover, often records of all the criminal cases hearings are made after passing a decision. Audio recording makes both the work of the courts and the participants of a process much easier. I don't think that the servants of Themis themselves will object while realization of this idea is being slowed down probably only because of financial and technical problems.
Alexander Peredruk, lawyer of the NCA "Soldiers' Mothers of Saint-Petersburg"
The institution of amicus curie can and should be developed. Participation of that kind should be possible in social and political issues where a "friend of the court" can provide information which the court cannot receive from the parties or by itself, and the necessity of it is obvious.
At present, this more or less actively works only in the Constitutional Court of Russia in the whole native legal system, where non-governmental organizations (for instance, Institution of Law and Public Politics) are also invited as "friends of the court".
I presume, that the right understanding of what a "friend of the court" is - is an exclusively expert estimate which should not make arguments of either party stronger and thus bring inequality into the process. Therefore, criteria for the selection of those who will estimate should be thoroughly worked out, and the selection procedure itself should become as transparent, as possible.