The history of the judicial system in Russia. The effectiveness of the exercise of judicial power by justices of the peace Judicial power relations and criteria for the effectiveness of justice
Any branch of authority. any institution is of practical importance if it functions effectively. However, the functioning of any system is possible only under the condition of the interaction of its components. Within the framework of the problems touched upon in this manual, one should talk about the presence of judicial-power relations, which are the basis of the interaction.
And if we take it more broadly - the whole legal procedure and justice in general.
The judiciary is manifested in a specific form of state's imperious intervention in a conflict situation in society, in a special power influence of the state on the participants in the conflict, the relationship between them. In the process of such intervention (influence), the state enters into numerous and varied power relations with the parties to the conflict, as well as with third persons. Submitting the majority of these power relations arise and exist as legal. They give rise to the state (including in the person of the court), other participants in the process of a state associated with their rights and obligations.In the framework of this state, the state is in the limelight of the court, independent and independent members of society, their associations, as well as legal entities (including which includes the state) strive for the civilized achievement of their interests
The relations that develop under this power, as a rule, acquire a legal form, their content is concretized, they become judicial-power relations, a legally fixed interconnection of the behavior of the court and the parties. The basis of the judicial-power relationship in most cases is the idea that the vital needs of the parties, the society, are captured by the means of judicial proceedings. the state.
Judicial-power relationship is a usual power-based attitude of command of subordination to resolve a conflict, only regulated by a set of legal norms. Judicial-power relations, as relations of command-submission, as well as legal relations in general, can be reduced only to the legal side (legal form), since they are determined not only by the norms of law, but by the laws of physics and psychology, the norms of morality and ethics, have their own theory, statistics, history. At the same time, judicial-power relations cannot exist outside a properly arranged community. Only in it they are determined by the general obligatory rules for all, are protected from violations, and are restored in case of violation. The value of the judicial-power relationship lies in the fact that it is predictable, since it is clothed in a legal form and is the result of the implementation of the rule of law. Judicial-power relations are not only regulated by legal norms from the state, but are also ensured by the threat of state coercion, and, if necessary, by its force. Consequently, the essence of the judicial-power relationship is that. that it plays a certain role in the process of settling social conflicts, through it, the rules of law regulate individual relations between the conflicting parties. With this, the forensic relationship can be viewed as just a tool through which the implementation of the life of what is already alive among the people is achieved.
The state intervenes in the relations of the parties, firstly, only when the dispute between them has already arisen, develops, and becomes aggravated.
Secondly, the resolution of this dispute without the intervention of the state, for some reason, is either impossible or undesirable. At the same time, both the parties to the dispute themselves and society, as well as the state, and other social forces may not be interested in resolving the dispute by other, extrajudicial means. Thirdly, as practice shows, in some exceptional cases, judicial-power relations arise at the initiative of the state in the court, which in this case operates ex officio, that is, under the obligation
For judicial-power relations, in our opinion, the following signs are characteristic:
1) arise in the prophesy of realnzapine by the judicial authorities (courts, judges) of their functions;
2) have judicial power as an obligatory subject - one (or several) of its carriers - an organ of judicial power - a court, courts, a judge, judges;
3) are always public, since all types of legal proceedings are carried out only on behalf of the state;
4) are relations of power and subordination, and therefore are characterized by legal inequality of the court and the parties involved in the case:
5) their purpose is to resolve conflicts by applying the norms of law by courts, judges:
Taking into account the above, judicial-power relations can be given the following definitions.
Firstly, the simplest and shortest, it is sustained in the spirit of classical normativity: the judicial-power relationship is a type of legal relationship that arises in the process of resolving conflicts between subjects of law and special subjects - courts
Secondly, if we recognize the fact of separation of judicial law into an independent branch of law, then the definition of the analyzed object can be stated in the following edition. Judicial-power relations are social relations regulated by the norms of judicial law, which develop in the process of performing the functions of the judicial authorities cc.
Finally, thirdly, the most capacious and accurate definition, according to which judicial-power relations are social relations arising in the process of implementation by courts in cases established by law and in the form of state power established by law when resolving conflicts arising in the process of interaction between subjects of law ...
The circle of participants in judicial-power relations is extensive. There is no complete list of them.
The subject of judicial-power relations is characterized by an appropriate legal status: a set of rights, obligations, restrictions, prohibitions, responsibility In this case, the subject is:
1) legal capacity in the field of judicial-power relations, that is, the ability to have the rights and obligations established in the norms of judicial law;
2) legal capacity in the field of judicial-power relations - the ability to acquire and exercise rights, to fulfill duties. comply with restrictions and prohibitions established by the norms of judicial law, as well as be liable for their violations.
The object of judicial-power relations and in the broad sense of this concept is the activities of the parties to the conflict, the resolution of which is attributed to the competence of the judiciary.
The object of judicial-power relations In the narrow sense of this understandable is a specific social conflict, for the resolution of which the participants in the legal relationship turned to the court.
Along with the general features characteristic of all types of legal relations, judicial-power relations have their own characteristics
Unlike civil law and a number of other legal relations, judicial-power relations are built on the basis of "power - subordination", in which there is no legal equality of the parties, since the court (judge) is an obligatory participant in each of them - the bearer of independent, independent state power ... In this connection, the sign of equality between the court, on the one hand, is not possible with the participants in the court-power relationship, on the other hand, even if the head of state is on their list, even the state itself cannot be put.
In the mass media, in various sociological studies, the courts, often mistakenly referred to as the judiciary, are very often accused of poor quality of work. At the same time, the results of their work are judged mainly only by the number of logical errors, that is, the discrepancy between the conclusions of the court and the requirements of substantive and procedural legislation, less often moral standards.
True, there are other approaches to assessing the quality of judicial activity. Judges (usually unfounded) are accused of corruption, red tape, rudeness. An analysis of such assessments of judicial activity shows that to a large extent they are of a tasteful nature, for scientifically grounded criteria for the results of judicial activity, its effectiveness, currently exist.
In addition, is it correct to argue about the quality of the work of the courts, the effectiveness of the judiciary in a particular state at a specific period of time, if the state at a given moment in its history is ineffective in itself, since both it and the society it controls are affected by a systemic crisis? Of no small importance are the n management theory n questions: what exactly should be understood by the effectiveness of the state n as a whole, individual branches of state power in particular?
Taking into account the chosen topic, the question becomes of paramount importance: in what categories, which are backward for most members of society, can the effectiveness of justice as an independent type of state activity be expressed?
In order to correctly answer the above questions, let us remember that both the state and the elements of its mechanism are systemic phenomena in themselves, therefore, the rules of the theory of social and legal systems apply to them in full measure. It is well known that. that "the system in the process of functioning acts as an integral formation, in which there is a relationship and interdependence between its structure and functions." In this regard, we should agree with Yu.G. Markov, who asserts that "a function is realized by a structure and is explained with the help of a structure."
In this case, what happens is that A.A. Bogdanov was called "the addition of activities." It has long been established that the activities of the elements of a social system "add up", but not arithmetically, but systemically, under the influence of system-forming factors. Special attention should be paid to the fact that the work of the system is a constant reproduction of a functional effect, which is reduced to the ability of the system to do what, in principle, each of its individual elements can not send. The functional effect is based on the relationship and differences in the properties of elements, on the variety of interactions between them, their integration.
In other words, the functional effect of the public administration system can be due to both the effective work of all elements of the system at once, and the ability of some elements of the system to compensate for the relatively low efficiency of others.
On the one hand, the state as a system as a whole can easily implement what its constituent elements cannot achieve. On the other hand, the elements of the whole can be completely independent, and the efficiency of one structure easily compensates for the inefficiency or complete absence of others. To make sure B vol. that it really is. Suffice it to recall the period from our recent history, when the executive branch of the society led by it "got in bast shoes", and after just a decade later, Opo began to claim the status of a superpower!
The foregoing means that neither individual judges, nor individual courts, as well as their systems, the government, society and society have the right to demand more than what individual judges, courts are capable of at the moment as elements of the state administration apparatus. At the same time, society, its leaders, as well as individual citizens for the daily assessment of the results of judicial activity must possess certain criteria for the effectiveness of their activities.
Obviously, in solving the problems of increasing the efficiency of judicial systems, a significant role belongs to legal science, primarily its leading branch - the theory of the state and ripaea. It is she who is obliged to arm both the "creators" of the judicial systems, as well as their leaders with specific recommendations on rational ways of organizing the judicial sector, judicial construction. methods of improving all types and forms of judicial activity. Characteristic feature of research carried out in this direction is that they find the widest application of a systematic approach to the study of socio-legal phenomena, as a result of which not only the relevant legal provisions governing the functioning of judicial systems, the work of specific legal formations, but also the socio-legal environment of their existence.
From what has been said, an unambiguous conclusion should be drawn that the definition of the concept of "efficiency" of the functioning of such a social and procedural institution as justice must be approached from a systemic position, in which the organizational and procedural activities of the judicial system, which regulate all norms, are considered as a single whole establishment , functioning in the interests of achieving a pre-planned socio-political goal. For "power can only be effective when it is connected with its people by a common origin and ideas about law and lawlessness."
When developing criteria for the effectiveness of justice, to begin with, it is important to understand the etymological and philosophical meaning of the term "efficiency" itself. This word originates from the Latin concept of effectus (effect, result), which translated into Russian sounds like "efficiency", "effectiveness". In other words, efficiency is not the effect itself, the result of an action, but a property of the system. The presence of this quality in its characteristics indicates the ability of the system to achieve a certain goal. With regard to the court as a way of resolving social conflicts, Russian legal scholars traditionally also understand by "effective" only that activity of the system that guarantees the achievement of the result, previously conceived as a goal, the solution of the tasks assigned to it by the system. If we follow this simple logic, then the maximum correspondence of the achieved result to the set goal is what is sought - the highest efficiency of the analyzed system.
At the same time, it should be avenged that the concept of "efficiency" in relation to judicial activity is not always interpreted in this way and not by everyone. For example, A.M. Larin understood under the effectiveness of legal proceedings not only the ratio of goal and result, but "the quality of activity in itself, its productive nature." Of course, there is a rational kernel in this reasoning, since sometimes, especially in justice, it is not only the result that is important, but also the way in which it was obtained. So, for example, a confession of a guilty person obtained under torture is unlikely to be equally positively welcomed by all members of our society.
However, is it always true that even 100% achievement of the set goal by the subjects of judicial activity testifies to the effectiveness of the system?
Let's consider this problem with a specific example. As you know, the basis of criminal proceedings is an algorithm consisting, as a rule, of only three actions carried out by state authorities - first, the crime is registered; secondly, the person who committed it is identified by the preliminary investigation authorities; thirdly, it is condemned by the court for committing a specific crime to imprisonment.
However, a completely natural question arises: have the goals of justice been achieved in this case?
Even admitting that there were no violations of substantive and procedural law in a criminal case, a researcher of state activities still does not have the right to assert about the high, especially 100%, effectiveness of criminal proceedings as an independent type of state activity, tsm boles achieved tslsіі justice Answer to the above questions, it can be positive only in one case: when criminal proceedings are viewed as a closed system, completely isolated from society.
If we continue to abstract from the realities of life in this vein, then only within the framework of the above-mentioned scheme (convicted for a crime - the goal has been achieved) is it easy to come to the most widespread conclusion: crime is exorbitant, for most people it is enough to bring the number of those convicted of crimes closer to the number of persons who committed them. The idea of the importance of the inevitability of punishment in criminal policy has been surprisingly widespread in legal science since the time of Charles Beckarn. Persons who are confident in an imminent victory in the fight against crime, at times, it is even included in the number of basic principles of criminal justice. Together C tcm, back in the 19th century. the famous German criminologist Franz von List quite rightly noted that "a criminal sentence gets its content and meaning only through the enforcement of the CGO," but modern societies are still not able to boast of achievements in this area of activity. On this occasion B.H. Kudryavtsev quite rightly noted that the cost of isolating a person who committed a crime from society is unjustifiably high, the deprivation of the guilty person's freedom has long been not an end in itself, it has nothing to do with the task of correcting the criminal, and generally contradicts modern moral concepts.
Indeed, the state, having set itself a high goal - the resolution of a social conflict, the occurrence of which is due to the unlawful behavior of only ONE 113 members of the society it controls, spending significant human and material resources of temporary isolation of the criminal from society, in fact, not only does not resolve the conflict, but generates a number of new conflict situations due to the severance of social ties between society and the convict. We have to admit that the state's goal before the court was most likely set incorrectly, and the achievement of this false goal by it led to the emergence of a whole complex of new conflict situations
Thus, before talking about specific criteria for the effectiveness of justice, one should determine the content of the concept of the effectiveness of state activities in general. In this regard, GV Atamanchuk writes that "objective criteria are needed, on the basis of which it would be possible to measure the effectiveness of public administration, to express reliable and well-grounded judgments on this matter." "Criteria are a feature on the basis of which a fact, definition, classification, measure is assessed."
Efficiency criterion - signs, facets, sides of the manifestation of management (management system), through the analysis of which it is possible to determine the level and quality of management, its compliance with the needs and interests of society. Atamanchuk also n his classification of performance criteria. According to his opinion. the criteria for overall social performance are of paramount importance. We believe that this circumstance was clearly demonstrated in the above example. It's no secret that HCT Russia has a clear and precise criminal policy. To make sure that this is really so, it is enough to analyze the changes made to the domestic criminal legislation in the last two decades. Over the years, the courts of general jurisdiction Russian Federation more than 20 mln people were convicted, of which about 7 million were sentenced to imprisonment for a certain period of time. then the mers have been achieved. On the other hand, we must not forget that a significant part of those convicted before 2000, including in Russia, were amnestied. However, this was not enough to restore social justice engendered by formal justice.
In 2002, a "secret" amnesty was carried out, which made it possible to exclude from the number of convicts in 1996-2002. many persons who have committed theft of someone else's property in the amount of less than five times the minimum wage.
The next stage of democratization of criminal proceedings began on December 8, 2003. Since then, the courts have corrected more than 3 million sentences. Hc it would be an exaggeration to state that the aforementioned explicit and "shadow" mass amnesties are nothing more than an admission of mistakes in the organization of criminal proceedings at the official level.
Thus, we can conclude that the effectiveness of justice directly depends not on the quantitative indicators of judicial activity, but on the achievement of socially significant goals by them.
Since the courts may strive to achieve deliberately false goals, then even 100% achievement of these goals completely affects the effectiveness of the judicial policy of the state as a whole. Before we begin to relate the performance of the judicial systems to the goals they once faced, the rationale and validity of setting specific goals in front of the courts should first be analyzed. It is also important to study whether the courts (judicial systems) have real opportunities to achieve their goals. Thus, the analysis of the effectiveness of justice should begin, as is customary, not with an assessment of the statistical results of judicial activity, but with a study of the rationality and validity of giving the courts one or another subject jurisdiction.
Subject jurisdiction is a variable category, its changes occur both in the historical plane and in the geographical one. For example, courts in the United States at the beginning of the 20th century. were able to effectively resolve those types of social conflicts that the Russians had thought for several decades to be referred to the competence of the courts.
Unfortunately, in modern books, specially devoted to the problems of the judiciary, the issue of its effectiveness over the past three decades, not a single independent chapter, or a single independent paragraph, is devoted. The last ns means that the effectiveness of justice has not been investigated by domestic science in general. On the contrary, studies of judicial activity have always been carried out, in certain periods of our history, even quite intensively. The problems of the effectiveness of law in general, justice in the Soviet period were dealt with, in particular, by A.B. Vengerov,
V.P. Kazimirchuk, M.P. Lebedev and V.I. Nikitinsky, A.S. Pashkov. I.S. Samoschsnko, D.M. Chechot, E.P. Shikina N.
In the late 1960s, the problem of the effectiveness of justice became the subject of study by the Academy of Sciences of the USSR. B 1967-1972 on this topic, a comprehensive, full-scale study was carried out, the result of which was the emergence in 1975 of a collective monograph in two parts: "The effectiveness of justice and the problem of eliminating judicial errors." The solidity of this study is evidenced by the composition of the author's team of the monograph. It included such prominent specialists in the field of law as M.I. Avdeev, V.B. Alekseev, G.Z. Anashkip, A.D. Boykov, Yu.A. Lukashov, K.C. Makukhin, T.G. Morshchakova. The team of authors was headed by I.L. Pstrukhin, V.N. Kudryavtsev was the executive editor.
For the first time in Soviet literature, the authors of the monograph thoroughly studied some criteria and indicators of the effectiveness of justice. On the basis of extensive sociological research and forensic statistics, they were able to determine: 1) prevalence, 2) structure, 3) the dynamics of judicial errors, outline ways to eliminate them. The influence on the effectiveness of justice was studied: 1) socio-psychological factors, 2) the scientific organization of labor in courts, 3) the state of judicial personnel, as well as the main trends in criminal policy, the practice of higher courts, the prosecutor's office and the legal profession.
One can only regret that this monograph was not only published in a relatively small circulation (l500 copies). but it was also intended solely for official use. In other words. outside of some "special" institutions almost no one knows about its existence.
Unfortunately, this is not the only drawback of an undoubtedly solid work as a whole.So, despite the fact that it was devoted to the effectiveness of justice in general, its authors for ideological reasons were forced to reduce the study of the most important problem mainly to the analysis of the causes of judicial errors in criminal proceedings
The team of authors, firstly, had to abandon the analysis of the goals of the judicial policy of the CCCP - an integral part of the Soviet state as a whole, because in those years the analysis of this level was in the exclusive competence of the leadership of the CPSU. They practically didn’t discuss the actual state of legislation governing judicial activity, the work of the prosecutor’s office, the legal profession, the goals pursued by the legislator. In those years, it was considered a priori: the legislator is always right.
Thirdly, in terms of its social significance, the justice of the Soviet period is incomparable with the importance of the complex of judicial-power legal relations characteristic of a modern developed state. Since the judicial power in the CCCP in the l960-l970-x years was considered, and for ideological reasons could not be considered as an independent power of power, then cc, naturally, did not exist as an object of scientific research.
Fourth, the research team focused on analyzing the effectiveness of justice was limited in the choice of research methods.
Fifth, for Soviet society as a whole, for the intelligentsia in particular, completely different social, economic and legal values were significant than we are today. The Bcc confirms the above: the problems of the effectiveness of justice in particular, the judiciary as a whole are still awaiting their investigation.
At the same time, it is necessary to give the dojnos to I.L. Petrukhin, who penned the first chapter of the first part in the monograph - "The Science of the Effectiveness of Justice - the Theoretical Basis for the Study of Judicial Errors". Despite the aforementioned obstacles, he started researching the problem by analyzing the general principles of the effectiveness of judicial activity, writes about “the importance of the goals of justice for determining its effectiveness,” and even devotes the entire first paragraph to this issue.
It is difficult to argue with I.L. Petrukhin. when he. speaking about the goals of justice, he suggests not to forget about their (a) epistemological and (b) managerial nature. Referring to B.X. Baghdasaryan, I.L. Petrukhin. Reflecting on the essence of the goal of any type of social activity, he notes the following: “The goal is a phenomenon of the material world, which: a) does not exist in the present, but it is assumed that it can exist in the future, therefore, b) is reflected in the consciousness of a person, and, of course, reflected in advance, that is, taken into account in advance; c) is considered as a possible result of a possible activity; d) is desirable for a given person; e) a person seeks to practically achieve it. "
Further I.L. Petrukhin quite rightly emphasizes that "the goals of justice are the goals of the entire Soviet people." Even lower, he cites the statement of G. Klaus, who defines “cybernetics as the science of non-linear achievement of goals by adjusting systems for such goals.” ".
In addition, there is an independent science that allows you to tune the judicial systems for the systematic achievement of certain specific songs put forward by the majority of the population of a particular state. I.L. Pstruhnn also quite correct conclusion that the nature of the goal predetermines the choice of means. However, this thought of I.L. Petrukhin interprets it in a completely different way: “the means determine the end”, in other words, the absence or lack of means significantly affect the choice of the goal. And vice versa. the availability of forces and means allows you to customize systems, including judicial ones, to achieve truly ambitious goals. Let's not forget that there is not one goal in the justice system, but their hierarchy. It is even more important to remember that the hierarchy of goals is characteristic not only of judicial activity, but also of state activity in general.
What can be attributed to the criteria for the effectiveness of justice of a general social orientation?
Undoubtedly, the most nerve-racking issue is the ability of the courts to guarantee the observance of the principle of social justice when considering the overwhelming majority of cases resolved by them.
Secondly, it makes sense to talk about the ability of courts to regularly provide an increasing positive result in the field of resolving social conflicts.
Finally, thirdly, the effectiveness of legal proceedings in a certain viepe is evidenced by the correlation of labor productivity levels in our courts with world standards.
In any case, shipping should be organized in such a way that the creation of a new quality in social relations (for example, the deprivation of millions of people of freedom) would not lead to a deterioration of the previously existing quality of social relations. At the same time, the everyday correlation of the results of justice with the criteria of general social efficiency allows one to see the meaning and significance of judicial activity, its social value and relevance.
It seems that the concept of "efficiency" of justice, and even more its criteria should be constructed on the basis of the tasks defined by the law on the judiciary. As a rule, the law assigns to the judicial system the task of resolving social conflicts. Tasks of this kind are resolved by the courts when they consider specific cases. At the same time, we must not forget that novnivio their consideration on the judiciary as a special form of social relations is entrusted with other tasks, and therefore, other goals are set before the judiciary. To achieve them, not only the activity of courts considering specific cases is directed, but also of the entire state mechanism, many other legal and social institutions.
Therefore, when defining the concept under consideration, it is necessary to distinguish between the effectiveness of justice in its narrow sense, when it comes to the performance of tasks by courts to consider and resolve specific cases, and the concept of the effectiveness of justice in the broad sense of understanding this term, when it comes to the contribution of the judiciary to the achievement of goals. the state as a whole.
An analysis of the works of Russian authors testifies that, unfortunately, the study of the effectiveness of justice in a broad sense seems to them to be a very unproductive exercise. Most of them believe that with the modern development of science, it is impossible to measure the contribution of the judicial systems to the achievement of the global goals of the state. At the same time, they usually refer to the statement of F. Engels that in the science of society such a variety of relationships and causal connections reigns that not only each individual issue under HllMilCT is a huge set of new issues, but each separate issue can be solved in most cases only by parts, through a series of studies that often take centuries.
Since the mechanism of the state considers the judiciary as a whole, and not the activity of any particular judicial system, especially one specific court (group of courts), TO this manual considers the problems of both the effectiveness of the judiciary as a whole, as well as such related establishments. as a judicial system, its basic element is the court.
Since the analysis of the performance of specific government agencies is outside the scope of the issues raised in this study guide, we will dwell only on the technical aspects of the problem, the correct resolution of which will allow us to choose the right course in understanding the effectiveness of the judiciary as a whole.
Starting to solve this problem on the basis of system analysis, first of all, we note that the concept includes the following elements
Tasks of Justice;
The activities of the courts to achieve them;
Results of this activity.
Moreover, the achievement of the results of justice is associated not only with the activities of courts (judges). In this activity, the parties take part (the plaintiff, the defendant in civil proceedings; the prosecutor and lawyer - in the criminal; the applicant and the state - in the constitutional and administrative). At the same time, the basis of justice is not their activity, but the activity of the court (judge) as the central figure of legal proceedings.
Power is a form of relationships between people. It has many faces, the judicial power of the state is nothing more than one of its unique manifestations. Judicial-power legal relations at the dawn of human civilization originated along with other power relations, including state-power relations, within the framework of natural selection they withstood fierce competition with them, are very common today, which have already proven their effectiveness
At the same time, this competition is far from complete; in general, it makes sense to talk about the prospects for completing the selection of relationships between people. History irrefutably testifies that the proportion of judicial-power legal relations, together with this and the salvation of the power of the courts, the role of justice in resolving social conflicts are іkѵpіchny essence psrsmsnnys. In this regard, the analysis of the criteria for the effectiveness of justice as one of the main directions of state activity should begin with an understanding of the place and role of judicial-power legal relations in a particular state.
The main purpose of the judiciary as a whole, its bearer of the court, is to resolve conflict situations in society. The resolution of conflicts by the judiciary can be carried out in various ways, how and forms. Moreover, the ways and means of achieving the goals facing the judiciary can be very far from traditionally recognized justice. However, ns msiss, if the parties to the conflict made a choice in favor of the judicial method of resolving, it is in the interests of the state as a whole, the judiciary, in particular, to ensure the maximum possible restoration of the violated character of all participants in the process in each specific case.
Summing up the results of the chapter, we draw the following conclusions.
The basis of the functioning of the judiciary, the judicial system is the interaction of its components, which manifests itself in judicial-power relations
Judicial-power relations are social relations arising in the process of being registered by the courts in cases established by law and in the form of state power established by law when resolving conflicts arising in the process of interaction between subjects of law.
The signs of a judicial-power relationship are as follows:
1) arise in the process of exercising by the judicial authorities (courts, judges) of their functions;
2) have as an obligatory subject judicial power - one (or several) cc carriers - judicial authorities - court, courts, judge, judges;
3) are always public, since all types of legal proceedings are carried out only on behalf of the state;
4) are relations of power and subordination, and therefore are characterized by legal inequality of the court and the parties involved in the case;
5) their purpose is to resolve conflicts by applying the norms of law by courts, judges;
6) are distinguished by a special procedural form;
7) are characterized by a specific legal regime for ensuring legality and legal protection.
Without the ngpichiya of judicial-power relations, it is impossible to administer justice. A complex of the main essential characteristics of justice can be distinguished.
1. The resolution of social conflicts is carried out by specially authorized bodies of state power - courts (judges, judicial panels).
2. Social conflicts are resolved on the basis of legal norms (both substantive and procedural).
3. Judicial is distinguished from non-judicial forms by that. that the state in this case agrees to the fullest possible satisfaction of the needs of each iu parties - to justify before the independent- HbLM. by an independent and behaviorally predictable court (judge) the correctness of the chosen position
4 The state, represented by a court (judge), independently and publicly makes a generally binding decision in a dispute between the parties who turned to it for help.
5. The state, administering justice, guarantees the parties to the dispute, as well as the entire society, the execution of the judgment.
6. The judicial method of resolving social conflicts allows hundreds to avoid unjustified use of force and arbitrariness.
7 The presence of a court is economically beneficial for the parties, since in this case the costs of resolving the conflict are largely distributed among all members of society.
The administration of justice in society must be effective. It is clear that the criteria for the effectiveness of justice are dynamic in time and diverse in space. At the same time, the following criteria for the effectiveness of justice can be distinguished
Judicial-power relations are effective already because, despite their inherent complex of shortcomings, the Court is effective in resolving certain types of conflicts, alternative to them, when other methods of conflict resolution are ineffective. The court guarantees the achievement of those goals, the achievement of which is obviously impossible by other methods.
It is believed that the court is expensive. This judgment is incorrect, because judicial procedures are ultimately much cheaper than other forms of conflict resolution. The court is effective because it is acceptable when it is impossible to determine the price of the claim in any other way, for example. when recovering in favor of the victims the amounts of compensation for non-pecuniary damage in the murder.
The court is effective because the decisions it makes meet social expectations.
The court is effective because it removes the conflict from everyday reality into the sphere of time-tested stable social postulates such as law.
The court is effective because, if necessary, OH is able to supplement the law with the norms of morality, ethics, substantiate the need for this supplement, convince the parties and society of this.
The court is effective because, unlike other bodies, B is able to operate with a complex of categories such as legality, validity and fairness.
The court is effective because this instance is the last one.
Introduction
CHAPTER 1. general characteristics efficiency of justice as a guarantee of protection of violated rights and freedoms of the individual 12
1.1. Fundamental human and civil rights and freedoms and the duty of the state to protect them 12
1.2. The concept of effective justice and its place in the system of guarantees for the protection of human and civil rights and freedoms 41
1.3. The state of justice in modern Russia 74
CHAPTER 2. Problems of increasing the efficiency of justice 94
2.1. Factors affecting the effectiveness of justice 94
2.2. The role of the bailiff service in the protection of violated rights and its place in the judicial system 136
2.3. The role of the European Court of Human Rights in the mechanism for the protection of human and civil rights and freedoms 151
Conclusion 173
List of used literature 175
Appendix 1. Draft federal law "On Amendments to the Arbitration Procedure Code of the Russian Federation and the Civil Procedure Code of the Russian Federation" 206
Appendix 2. Explanatory Note to the Draft Law on Amendments and Additions to the Arbitration Procedure Code of the Russian Federation and the Civil Procedure Code of the Russian Federation 208
Introduction to work
The relevance of the topic of the dissertation research.In the early 90s of the last century, Russia proclaimed the path to building a rule-of-law state, which, as world experience teaches, can exist only if the country has a strong, independent judiciary that effectively protects rights and freedoms personality.
The most reliable way to protect the violated rights and freedoms of the individual is judicial protection, but given the inability of the court to fully exercise such protection, it was necessary to start reforming it. As V.M. Savitsky, “with the proclamation of the course towards building a rule of law and the implementation of the principle of separation of powers, an urgent need arose to radically change the previous humiliating position of the court. People want to see in him not a bureaucratic institution, long for investigation and quick for reprisals, but a real guarantor of their rights, a reliable protector of their interests.,. " ...
The guarantee of proper judicial protection of violated human and civil rights and freedoms is one of the obligatory attributes of the rule of law. Therefore, in 1991, a judicial reform began in Russia, continuing to this day, the main task of which remains the creation of such a court.
Despite the increased attention to the issues of the judiciary and justice, as practice shows, in our country even now there is not always a real protection of the violated rights and freedoms of the individual. The established time frames during which the protection of the violated right should take place are often violated - Taking the right decisions
Savitsky V.M Organization of the judiciary // Formation of the judiciary in a renewing Russia.-M-, 1997.-S. 3-4,
imperfect legislation also hinders. Laws internally
contradictory, constantly changing and supplemented, including for reasons that are not objective and legal in nature. Hence, judicial errors leading to the adoption of illegal decisions. In this case, the search for illegal ways to protect their rights is not excluded, which should not be allowed in any case. This circumstance gives rise to a certain distrust of justice and, ultimately, of the state as a whole. Supplied by the President of the Russian Federation V.V. Putin's task of making the trial right, swift and fair still remains unfulfilled.
The degree of scientific elaboration of the topic. Many Russian and foreign scientists have studied the problem of increasing the efficiency of justice. For Russia, this problem is among the first, requiring an urgent solution, since, compared to other developed countries, the Russian justice system does not always protect violated rights and interests, and in some cases the courts themselves violate them (illegal denial of access to court, falsification of documents, illegal decision, etc.),
Throughout the history of the development of justice in Russia, attempts were made to radically reform the court. At present, the third judicial reform is underway, the main task of which is to create an effective justice.
However, it has not been possible to create a system for resolving legal disputes that would most effectively protect the violated rights and freedoms of the individual. The annual reports of the Commissioner for Human Rights in the Russian Federation testify to serious violations of human rights and ineffective state protection, including judicial protection. All this speaks of not fully understood problems in the justice system, of the presence of deeper reasons. Some of the provisions formulated earlier by scientists need a thorough rethinking.
In the Soviet and modern periods, a certain contribution to the study of the problems of creating an effective justice was made by V.B. Alekseev, GL. Baturov, CE. Vitsin, B.A. Zolotukhin, I.B. Mikhailovskaya, TT. Morshchakova, IL. Petrukhin, V.M. Savitsky, Yu.I. Stetsovsky, B.N. Topornin, V.F. Yakovlev, V.V. Yarkov and other scientists.
A detailed study and study of problems in the field of protection of human and civil rights was carried out by P.V. Anisimov, N.S. Bondar, KB. Vitruk, L. D. Voevodin, SI. Glushkova, E.A. Lukasheva, B.C. Nersesyants, VA. Chetvernin, KL Petrukhin, F, M Rudinsky, RA. Mullerson, B.S. Ebzeev and other scientists.
As for the topic of this dissertation research, the problem of the dependence of the protection of violated human and civil rights and freedoms on the effectiveness of justice is posed for the first time.
The object of dissertation research are social relations arising in the field of judicial protection of violated rights and freedoms of the individual.
The subject of dissertation research is the effectiveness of judicial protection as a guarantee of protection of violated rights and freedoms of the individual.
The purpose of the work is a general theoretical study of the effectiveness of justice as a guarantee of the protection of violated human rights and freedoms and
To achieve this goal, it is necessary to solve the following main goals:
Conduct a historical analysis of the development of justice;
explore the concept of "justice" and correlate it with the concept of "judicial power";
show the importance of creating effective justice in order to protect violated rights;
Determine the place of justice in the system of guarantees for the protection of rights and freedoms
person and citizen;
identify the main problems of the judicial system and procedural legislation and show their impact on the quality of justice;
to analyze the state of justice, taking into account scientific views on this issue;
to define the role of the bailiff service in the protection of violated rights and its place in the judicial system;
to analyze the ongoing judicial reform;
show the role of the European Court of Human Rights in the mechanism of protection of violated rights and freedoms of the individual;
to develop proposals for improving the judicial system and procedural legislation.
Methodological basis of the research are modern methods of cognition, identified by legal science and tested in practice. The work is based on the use of general scientific methods of historical, logical, regulatory and comparative legal analysis. When solving the tasks, a number of special methods were used, including specific sociological, statistical, systemic, structural-functional and modeling method. For the purpose of objective and comprehensive knowledge of reality in the dissertation work, the dialectical method of research was used.
The theoretical basis of the dissertation research appeared domestic and foreign literature on the theory of law and state, judicial power and justice, protection of human and civil rights and freedoms.
Used as a theoretical basis, the existing developments available in the works of scientists studying the issues of the general theory of state and law: S.S. Alekseeva, ShZ, Anisimova, VLS Babaeva, BJvl Baranova, E.V. Vaskovsky, V, D. Zorkina, B.R. Kartashova, O.E. Kutafina, MN. Marchenko, B.C. Nersesyants, B.I. Putinsky, V.B. Romanovskaya, V.G. Strekozova, V.A.
Tolstika, B.N., Topornina, YL-Tikhomirova, V.N. Khropanyuk, VL. Chetvernin and others.
In studying the problems of protecting violated human and civil rights, special attention was paid to fundamental works in the field of judicial power and justice, protection of human and civil rights and freedoms: P.V. Anisimova, E.M. Artamonova, SL. Batova, A.S. Beznasyuk "SV. Bobotova, A.D. Boykova, COP Bondar, SI. Glushkova, GL. Zhilina, V.M. Lebedeva, EL, Lukasheva, T.N. Neshataeva, IL. Petrukhin, I.V., Reshetnikova, VL. Rzhevsky, H.U. Rustamova, IL. Prikhodko, YN Stetsovsky, B.N. Topornina, A.M. Chepunova, JLM. Entina, V.F. Yakovleva, V.V. Yarkov and other scientists.
The tasks set for the study demanded the involvement and analysis of the works of foreign scientists: D. Brown, E. Bradley, R. Iering, R. Kay, L. Friedman and others.
Empirical and normative research base:
Russian Constitution of 1993;
federal constitutional laws;
federal laws;
Acts of the President of the Russian Federation, the Government of the Russian Federation, federal bodies
executive power of Russia;
practice of the Constitutional Court of the Russian Federation, The Supreme Court RF, the Supreme Arbitration Court of the RF, other judicial authorities;
legislation of the constituent entities of the Russian Federation;
legislation of foreign countries;
foreign constitutional and judicial practice.
The scientific novelty of the research lies in the fact that the applicant conducted the first in the general theory of law, a comprehensive monographic study of modern problems of protection of violated human and civil rights and freedoms in court and their elimination by creating effective justice.
The paper analyzes and generalizes theoretical and methodological approaches to studying the causes of these problems, their impact on the effectiveness of justice, analyzes the categorical apparatus of research in this area, identifies signs and proposes its own definition of the concept of "effective justice", and also elaborates proposals for the creation of justice. able to effectively protect the violated rights and interests of citizens.
The following main conclusions and provisions are put forward for defense, which reflect the novelty of the study:
1. Currently in Russia there is no effective mechanism for the protection of violated rights. After the entry into force of a judicial act, the court does not participate in ensuring real protection of the violated right. As a result, only 52 percent of the adopted judicial acts are actually executed, including in a compulsory manner.
Z The author's definition of the concept of "effective justice". Effective justice is the consideration and resolution by the court of disputes referred to its competence in the procedure established by the procedural law, in compliance with the procedural deadlines, based on the correct establishment of the reliability of the facts and the precise application of the law to them, meeting the principles of justice, equality, legality and ensuring real protection of violated rights and the legitimate interests of the person who applied to the court.
3. Judges should be exempted from consideration of small and uncontroversial cases that could be considered by other public authorities. The courts should be involved in deciding the issue of bringing to administrative responsibility only when it comes to such types of administrative punishment as administrative arrest, compensated seizure or confiscation of an instrument of committing an administrative offense, deprivation of a special right granted to an individual, administrative expulsion for borders of the Russian Federation
a foreign citizen or stateless person, disqualification and administrative suspension of activities, In other cases, cases should be considered by the executive authority that exercises control in the relevant area, especially since in many cases violations are obvious and not disputed by violators.
Expanding the powers of a notary by making an executive inscription on documents in cases where there is no dispute, and giving the executive inscription the force of an executive document will help unload the judicial system, and therefore increase the efficiency of justice.
A proposal to transfer the bailiff service to the subordination of the judiciary. This will create additional guarantees that the will of the court set forth in the decision will not be distorted in the process of its execution. Moreover, bailiffs-executors, in our opinion, should be involved only for the execution of judicial acts. Concerning compulsory execution acts of other bodies, it is advisable to assign this responsibility to a separately formed compulsory enforcement body, leaving it with the status of an executive power body.
The creation of a unified register of real estate of individuals and legal entities in Russia would greatly simplify the procedure for tracing property, and also reduce the percentage of cases when the debtor would have time to carry out fictitious transactions on the re-registration of property rights to other persons.
In order to avoid the possibility of using the granted procedural rights for the purpose of deliberately delaying the trial, amendments should be made to Articles 143 of the Arbitration Procedure Code of the Russian Federation and 215 of the Code of Civil Procedure of the Russian Federation, which provide for the obligation of the court to consider interrelated cases in one process if they are within the jurisdiction of one court.
In order to more promptly resolve a legal dispute on which an illegal decision was made in the court of first instance, it is necessary
supplement part 3 of Article 361 of the Code of Civil Procedure of the Russian Federation with a paragraph with the following content: “In the event of repeated cancellation of the decision, the court of cassation shall consider the case on the merits according to the rules of the first instance”; and supplement subparagraph 3 of paragraph 2 of Article 287 of the APC RF with a paragraph with the following content: "In case of repeated cancellation of the decision of the court of first instance and (or) the ruling of the court of appeal, the court of the cassation instance shall consider the case on the merits according to the rules of the first instance",
9. Draft federal law "On Amendments to the Arbitration Procedure Code of the Russian Federation and the Civil Procedure Code of the Russian Federation",
The theoretical and practical significance of the dissertation research. The proposals formulated as a result of the dissertation research can be used:
In the process of legislative activities to improve
judicial system and procedural legislation;
in the research work of scientists, graduate students and students;
in the educational process when teaching the theory of state and law, constitutional law, civil and arbitration process, as well as special courses "Judicial Power" and "Justice".
As a result of the study, proposals were formulated to improve the current legislation on judicial power and justice, to correct its individual provisions concerning the subject of this branch of legislation, its basic principles, concepts, principles and signs of the effectiveness of justice.
Approbation of research results. The main theoretical provisions of the work were discussed at the Department of State and Legal Disciplines of the Nizhny Novgorod Legal Academy (Institute), and are also reflected in 5 scientific publications of the author.
On the basis of scientific developments outlined in the dissertation research, the author has prepared a draft law on amendments and
additions to the Arbitration Procedure and Civil Procedure Codes, which is registered with the Legal Department of the Office of the State Duma of the Federal Assembly of the Russian Federation.
The structure of the thesis. The dissertation consists of an introduction, two chapters, including six sections, a conclusion, a list of references and applications.
Fundamental human and civil rights and freedoms and the duty of the state to protect them
The relevance of the topic of scientific research can be determined by various circumstances, In one case, the existence of an acute social problem that requires scientific understanding or rethinking. In the other - the uncertainty, inconsistency, confusion in the solution of certain issues in the scientific literature, which in most cases gives rise to serious practical problems. In the third, the need to comprehend certain aspects of the phenomenon, which until now have not been the subject of independent scientific research and, due to this, are insufficiently or not developed by science at all. Fourthly, we can talk about the emergence of a new scientific methodology, the use of which will expand and deepen the existing ideas about the analyzed phenomenon - It is quite obvious that the above circumstances are far from an exhaustive list that can determine the relevance of studying a particular topic.
At the same time, speaking about the relevance of the topic "protection of the violated right" in general and "judicial protection of the violated right" in particular, it should be noted that it is in one way or another determined by all the above circumstances. from our point of view, it is the fact that the state of judicial protection of the violated right in any state, due to the general laws that govern the development of society, in principle cannot be ideal. Bobotov noted: "So far, no country has created an ideal system for resolving legal disputes, not a single judicial system works without failures: mistakes occur that cannot always be corrected. But since the law performs not only regulatory, but also protective functions, the human mind will always strive to create a dispute resolution system that is close to the ideal ",
As a result, the problem of effective protection of violated rights is in the center of scientific attention. Moreover, the actualization of such attention is associated with a change in the policy of the Russian state aimed at creating the priority of human and civil rights and freedoms over other issues. As S. A. correctly put it, Ivanov “Scientific interest in the problems of human rights protection is conditioned, on the one hand, by the established and functioning system of human rights protection at the international level, and, on the other hand, by the increasingly asserting public desire to direct the Russian state along the path of democracy and pluralism. , along the way of building the rule of law115.
Determining the effectiveness of judicial protection as the subject of his dissertation research, the dissertation student proceeds from the fact that the protection of individual rights and freedoms in all developed countries is the most important task of the state, and as follows from reality, it is the effectiveness of justice that can provide this protection to a greater extent.
This also applies to Russia, especially since we have taken a course towards the creation of a democratic, rule-of-law state, and this is possible only with respect, recognition and observance of human rights. As indicated in textbooks on the theory of state and law, it is the reality of individual rights, ensuring its free development - is one of the features of a rule of law. One of the first thinkers - a representative of German philosophy of law of the first quarter of the 19th century. R. von Mohl, who introduced the category of the "rule of law" into scientific circulation, wrote that the basis of the rule of law is the freedom of the individual, the desire for a possible all-round life and life with all his being7. At the same time, this thinker saw the greatness of the rule of law in the fact that it allows one to combine, on the one hand, the free self-determination of the individual and, on the other hand, the powerful assistance of the state, aimed at developing human abilities,
Spinoza, who was one of the first to give a theoretical basis for a democratic state, wrote that it must be bound by laws, to ensure real human rights and freedoms. He argued that the state is powerful only when it guarantees every citizen not only the preservation of life, but also the satisfaction of his interests, and warned the rulers against encroachments on property, security, honor, freedom and other benefits of subjects.
Consequently, the rule of law in its activities, in the implementation of its state functions should be guided by the observance of human rights, stand under the law, and not outside and above it.
The concept of effective justice and its place in the system of guarantees for the protection of human and civil rights and freedoms
In order to propose new approaches to the creation of effective justice that can protect human and civil rights and freedoms, it is necessary to conduct a historical analysis of the development of justice in order not to repeat the mistakes of the past, treat them critically and use historical experience to make optimal decisions.
The scientific literature notes that the idea of the right to trial is linked to the idea of the rule of law. The idea of the rule of law over the state, power, society was first embodied in the Torah. According to the principles of Judaism, a fair trial is considered obligatory not only for people, but also for the Most High, for God. The creator of the law himself must obey the law that he created.
According to P.N. Barenboim, who substantiates the doctrine of separation of powers by the provisions of the Old Testament, the judiciary has a divine nature. In support of his views, he cites a number of arguments, including those taken from the Bible, various scientific treatises, which set out the relevant provisions and conclusions.
The need for the emergence of justice arose long before the emergence of civilization. The need for people to protect their personality and free disposal of property appeared before the emerging rules of behavior began to be fixed first in customs, and then in law. Obviously, in order to establish whether the law was violated or not and what is the punishment for the committed tort, a special conflict resolution body was needed.
In our opinion, E.V. Vaskovsky that the existence of courts was caused by the need to concretize abstract norms of law for application to particular cases. Judges are thus mediators between law and life, mediators necessary because laws cannot apply themselves. Through the mouth of the judges, the law reads. At the same time, as T.N. Neshataeva, "in a decision on a specific case, a judge ... is always guided not only by the norms of law, but also by the norms of morality - mercy, justice, and conscientiousness."
The development of justice took place in stages. I.L. Petrukhin notes that history knows three types (types) of judicial proceedings: 1) early accusatory, which grew out of the primitive communal; 2) medieval inquisitorial; 3) civilized (humane and competitive). All these types of legal proceedings replaced each other with historical necessity in the sequence indicated above. The reasons for the change in the types of each trial were economic, political, social and ideological in nature. The transition from one type to another sometimes took more than one century.
Let's start with the study of the first type of judicial process - the accusatory one (it is also called private litigation), which arose at the dawn of civilization in the Ancient World. Its essence was that the disputing parties did not turn to the state for help, but sorted out their relations themselves. Later, however, the court was involved in resolving the dispute, but its role was passive: to monitor the observance of the rules of the duel by the parties and to record the victory of one of them and the defeat of the other. As indicated by I.L. Petrukhin, “the preliminary investigation, at the request of the prosecutor, was carried out by the praetor, who, if the accusation was confirmed, drew up a protocol and referred the case to the court. from senators, later from horsemen. Their number reached 60. The proceedings were open, oral, adversarial "71.
The above findings indicate that during this period there was no possibility of defending the accused in court. In most cases, the accusations made by government officials became decisive in determining the fate of a person. In considering civil cases, the court did not provide assistance in collecting evidence, did not determine what circumstances must be proved in a particular dispute.
In a later period, the judiciary passed to the emperor, who acted through his magistrates. The prosecution, as I. Ya. Foinitsky, gradually becomes a function of the state. It is permissible to torture slaves in order to obtain evidence against their masters. Detailed logging of interrogations is introduced. In a word, the prerequisites are being created for the transition to an inquisitorial structure of legal proceedings.
Factors affecting the effectiveness of justice
The main task of factor analysis of the effectiveness of justice is to understand the nature of the dependence of the state of justice on the presence of problems in it.
From the standpoint of systems theory, systems analysis, the term "problem" can be characterized as a discrepancy between the existing and the desired state.
From the previous paragraph, in which a detailed assessment of the state of justice was given, both by Russian scientists and by the author himself, it can be stated that justice in our country is far from perfect. However, the creation of an ideal judicial system is impossible: solving some problems creates other problems and this process is endless.
According to T.N. It is very difficult for Neshatayeva to create "a true judicial procedure ... The most difficult point is not so much the legislative consolidation of the principles of the court's operation, but the ideological, psychological attitude to this activity, both of the judges themselves and of the social environment around them" 170.
When we talk about the effectiveness of justice, we mean the "speedy, just and fair" court. These are the words that were said back in the 18th century by Emperor Alexander II during the judicial reform, and exactly the same words were uttered by Russian President Vladimir Putin, speaking at the VI All-Russian Congress of Judges on December 2, 2004.
Today we are well aware that one of the urgent tasks for our state is the creation of effective justice, without which the normal development of the country in many directions, primarily in the economy, is impossible.
In this paragraph, the dissertation student examines some of the factors in the judicial system and procedural legislation that affect the effectiveness of justice.
1. Degree of increased workload on judges to consider litigation. As statistics show, every year there is a tendency towards an increase in disputes considered by the courts, which indicates an increase in confidence in the judicial system, in the ability of courts to resolve cases on the merits and to protect violated rights and interests.
However, by providing citizens and organizations with practically unlimited access to justice, the state was unable to fully ensure the normal functioning of the courts. There is a heavy load on the judges, who sometimes consider five or six, or even more cases every day. At a meeting with the President of the country held in June 2005, the Chairman of the Supreme Arbitration Court of the Russian Federation A.A. Ivanov noted that a catastrophic situation is developing with an increase in the increase in the workload on judges: almost 40 percent in 2004 and 40 percent in the first five months of 2005. That is, over the past three years, the workload has doubled with the same number of judges. Obviously, such a colossal load cannot but affect the quality of the judgments... As for justices of the peace and federal judges of courts of general jurisdiction, the tendency to increase the workload is observed there as well. At the same time, the right to judicial protection guaranteed by the Constitution of the Russian Federation is violated.
Thus, a paradoxical situation arises in which, on the one hand, citizens and organizations have an unlimited opportunity to apply to the judicial authorities, and on the other hand, as a result of the increase in cases considered by the courts, leading to overloading of courts, obstacles are created to the exercise of this right. At times, judges are simply physically unable to resolve the case on the merits within the time limit prescribed by law: cases are appointed out of time, decisions are made outside the established time limit, etc. Meanwhile, paragraph 1 of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms171 refers to the hearing of cases "within a reasonable time". The provision of paragraph 1 of Article 6 of the Convention is found to be violated when the hearings of the case are postponed or the preparation of the texts of decisions is too late due to the overload of judges; when the delay is caused by the actions of an expert institution, etc. Structural deficiencies (eg shortage of judges) are considered not to be justified, as the European Convention "imposes an obligation on Contracting Parties to organize their legal systems so that their courts comply with the provisions of Article 6, including the requirement to conduct trials within a reasonable time" ...
The role of the bailiff service in the protection of violated rights and its place in the judicial system
We agree with V.I. Radchenko that the judiciary can properly perform its functions only if three conditions are present: completeness of competence, independence of courts and independence of judges, and an effective mechanism for the execution of court decisions.
Thus, the protection of the violated right in court is preceded by several stages, the last of which - the execution of judicial acts - is extremely important. As V.N. Romanov, the activity of the judicial authorities in the administration of justice loses all meaning when the decisions they make remain unfulfilled.
Only the real execution of the court decision can ensure the protection of the violated rights of the person who applied to the court237. The Concept of Judicial Reform also notes: "The value of even objectively correct judicial decisions is nullified by the ineffectiveness of their implementation - it does not guarantee either a quick and complete restoration of violated rights, or deterring criminal behavior in the future."
Indeed, ”the enforcement of judicial acts is a very important part of the mechanism for the protection of the violated right. The impossibility of implementing a court decision that has entered into legal force deprives the entire preceding process of meaning. As Ibrahim Shikhata aptly noted, "if the enforcement of court decisions is not ensured, judicial activity can turn into an academic scientific discipline." "After all, persons defending their rights do not need a declarative court decision or a statement of the fact of violation of their rights, but their real protection" 240.
Only the actual execution of the judicial act will testify to the judicial protection of the violated right.
Meanwhile, as noted in the legal literature and follows from real everyday life, the weak point of the Russian justice was and to a large extent remains the poor execution of court decisions.
IN AND. Radchenko also emphasizes that “one of the hard-to-solve problems is the execution of court decisions. , owned by citizens on the right of personal property or in their use, passed with great difficulties.
T.N. Neshataeva even points to the need to create a special insurance fund for enforcement proceedings, since the implementation of a judicial act is associated with the right to a court. "A court decision must always be ensured. The absence of specialized funds that ensure this function of the rule of law indicates only the inability of the state to protect the interests of its citizens, which leads to the involvement of international justice in a private conflict."
In the ECtHR judgment in Hornsby v. Greece of 19.03.1997, Reports 1997-11. p. 510 40 the court indicated that the execution of a decision taken by any court should be considered as part of a "trial" within the meaning of Art. 6 of the Convention, This position was reaffirmed in the Burdov v. Russia judgment (Burdov v. Russia application no. 9498/00 ECHR 2002 - III 34)
Representatives of English science, giving great importance the role of the court in enforcement proceedings, also in most cases consider the execution of the judgment as an integral part of civil proceedings, emphasizing that "public confidence in the legal system would be destroyed if the court did not have the power to enforce the decision"
Justice represents independent view state activities carried out in a procedural form by judicial authorities aimed at considering and resolving various social conflicts associated with actual or alleged violation of the rule of law, which is a form of exercising judicial power and a means of its manifestation.
It belongs to the most important area of the state
When considering the cassation appeal of the First National Management Company CJSC against the Decree of the Appellate Instance of the Arbitration Court of the Saratov Region, it was established that during the proceedings of the case in the appellate instance, two of the judges considering it took part in the consideration of another case. In support of this, a copy of the decree was submitted. The decision of the appellate instance was canceled, and the case was referred for new consideration to the appellate instance (Archive of the Arbitration Court of the Saratov Region for 1998. Case No. 2977/98. See also: Archive of the Supreme Arbitration Court of the Republic of Tatarstan for 1998. Case No. A65-7884 / 98 -S1-16-12 / 93-C1-21-12 / 1; Archive of the Arbitration Court of the Ulyanovsk Region for 1999. Case No. A-72-2754 / 99-SK116). 2 See, for example: Petrukhin I.L., Baturov G.P., Morshchakova T.G. Theoretical basis efficiency of justice. M., 1979.S. 17; Constitution of the Russian Federation. A comment. M, 1994. S. 499-500 (commentary author - V.M.Savitsky); Savelyeva T.A. Judicial power in civil process. Saratov. 1997.S. 15; Strogovich M.S.Checking the legality and validity of court verdicts. M., 1956.S. 19.
activities and is designed to protect the rights and legitimate interests of not only individual subjects of law, but also the entire system of public relations existing in the country 1. This activity is carried out by considering criminal, civil, arbitration and other cases in court sessions. The high efficiency of the activities of arbitration courts is one of the guarantees of the legal order in the economy 2.
Only state bodies administer justice. The system of arbitration courts is part of the judicial system of the Russian Federation. This conclusion follows from the content of paragraph "e" of Art. 83, item "g" of Art. 102, art. 127, art. 128 of the Constitution of the Russian Federation, as well as the FKZ of the Russian Federation "On the Judicial System", which classifies arbitration courts as federal courts. At the same time, there is a certain incompleteness in the normative constructions. Part 2 of Art. 118 of the Constitution of the Russian Federation stipulates that "the judicial power is exercised through constitutional, civil, administrative and criminal proceedings." No arbitration proceedings specified. This gap must be closed, since there is a system of arbitration courts with their own competence, there is the Arbitration Procedure Code of the Russian Federation, which regulates the activities of these courts and establishes a procedural form that has significant specific features.
To characterize justice as a specific activity, the concept of "efficiency of justice" is used. Until recently, there was a discussion about the definition of this concept. According to some scientists, efficiency was defined as the effectiveness of norms and
See: A. T. Bonner. Justice as a type of state activity.
M., 1973, p. 3.2 See: Program for increasing the efficiency of the arbitration courts in the Russian Federation in 1997-
2000 ... // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 11. P. 11.3 SZRF. 1997. No. 1. Art. 1.
institutions of law, and it should be measured as the ratio between the goal and the achieved result 1.
The second direction includes in the concept of efficiency, in addition to efficiency, also: 1) utility, which is understood as the difference between the result of the action of a rule of law and various kinds of unforeseen side effects of such an action, some of which are positive, others have a negative effect on adjacent ones that are not regulated by this rule public relations (to determine the usefulness, a comprehensive assessment, "weighing" the benefits and harms is necessary); 2) the economy of the norm, that is, the amount of material costs required for its functioning; 3) value of law, etc. 2.
Supporters of the third approach recognize the correct definition of efficiency as efficiency, but, they believe, it is not enough for a comprehensive assessment of state-legal phenomena and their management. A broader category of "optimality" is introduced, the content of which is: 1) efficiency; 2) utility; 3) profitability of the norm 3.
The comprehensiveness of the assessment of legal phenomena cannot serve, in our opinion, as a sufficient basis for the concept of "efficiency" to unreasonably expand, to put new content into it, thereby changing the original meaning of the term. Should not be absolutized
See: Veremeenko I.N., Popov L.L., Shergin A.P. Concepts and conditions for the effectiveness of administrative sanctions // Jurisprudence. 1972. No. 5. S. 33; Popov L.L., Shergin A.P. Research of the effectiveness of administrative and legal sanctions for violation of public order // Soviet state and law. 1974. No. 8. S. 18-22; Kuragin G.G., Popov L.L. Factors of the effectiveness of administrative and legal sanctions // Jurisprudence. 1974. No. 4. S. 37-45. 2 See: V.V. Lazarev. The effectiveness of law enforcement and ways to improve it // XXIV Congress of the CPSU and the problem of increasing the effectiveness of Soviet law / Ed. D.I.Feldman, V.P. Malkov. Kazan. 1973.S. 25; Shikin E.P. Basic conditions for the effective application of law. Abstract of the thesis. diss. ... Ph.D. Sverdlovsk. 1971, p. 4, etc.
See: I.S.Samoshchenko, V.I. 1969. No. 8. S. 3-12; Samoshchenko I.S., Nikitinsky V.I., Vengerov A.B. To the method of studying the effectiveness of legal norms // Soviet state and law. 1971. No. 9. S. 70-78.
a comprehensive assessment of a particular phenomenon. Sometimes the practical necessity or the need for the theoretical study of a particular phenomenon can indicate the importance of studying some aspect, properties, quality of this phenomenon.
The term "efficiency" comes from the Latin word "effect", that is, the result, the consequence of any reasons, actions. Effective means giving effect, but not any, but pre-planned, useful, leading to the desired results; hence, efficiency is the effectiveness of purposeful action 1.
In our opinion, optimality and efficiency are different but interacting categories. Optimality is a broader category that includes both the achievement of goals, efficiency, and material costs, organizational efforts to ensure the achievement of these goals.
We support the concept of efficiency as efficiency, which is currently shared by most scientists 2.
The effectiveness of justice depends on a number of factors that determine it and contribute to the realization of the goals of justice.
In the procedural theory, there are many similar conditions related to various spheres of public life:
1) organization of work of judges (workload, specialization). Overloading the judge leads to a superficial study of the case materials and the issuance of a “quick
1 See: TSB. T. 49. 1957. S. 284, 296. See: Tsikhotskiy A. V. Theoretical foundations of the effectiveness of justice in civil cases. Novosibirsk. 1997.S. 149; Effectiveness of legal norms. L., 1977. S. 36 (the author of the paragraph - E. A. Fomin); The effectiveness of legal norms / Kudryavtsev V.N., Nikitinsky V.I., Samoshchenko I.S., Glazyrin V.P. M, 1980. S. 22; Fokov A.P. Problems of accessibility and efficiency of justice in arbitration and civil proceedings // Russian judge. 2001. No. 4. P. 4; Petrukhin I.L., Baturov G.P., Morshchakova T.G. Decree. op. S. 174-175.
3 According to I.A. Prikhodko, in 1999 in 14 commercial courts there were 35-45 court cases per judge per judge (See: A.P. Fokov Problems of accessibility and efficiency of justice in arbitration and civil proceedings // Russian judge. 2001. No. 4. S. 3).
solutions". The likelihood that such a decision will be wrong is certainly increasing. The well-known Soviet physiologist I. Ye. Vvedensky noticed that they get tired and exhausted not so much from the fact that they work a lot, but from the fact that they do not work well 1;
2) selection of personnel (legal preparedness, moral and ethical qualities, psychological characteristics, worldview, legal consciousness). We should agree with MI Kleandrov, who proposes to establish for candidates for the position of a judge, first, special checks by the relevant state services; secondly, to establish by law a ban on holding the office of a judge for medical reasons, as well as a mechanism for the implementation of this ban. M.S.Shakaryan proposes to introduce postgraduate training of future judges in conjunction with testing to improve the quality of the courts' work. Such an innovation would, of course, be useful, but it requires time, organizational, financial costs, since it is necessary to develop a teaching methodology (taking into account the specialization of judges), to staff a staff of teachers, to find premises for conducting classes, etc .;
3) financial and logistical support of courts (buildings, vehicles, office equipment, legal literature);
4) a system of guarantees for judges. The list of guarantees for judges is established by the Federal Laws "On additional guarantees of social protection of judges and employees of the apparatus of the courts of the Russian Federation" 4 of 08.12.1995 (as amended by the Federal Law of 21.07.1997 and the Federal Law of 05.08.2000 (revised on 24.03.2001 g.), the Law "On the status of judges in
1 See: N.E. Vvedensky. Conditions for the productivity of mental work. M., 1952.S. 580, 590.
2 See: M. I. Kleandrov. The status of a judge. Novosibirsk. 2000.S. 56-57, 82-85; He's the same. Essays on the Russian judicial system. Problems of the present and the future. Novosibirsk. 1998.S. 18-21, 26-27.
Cit. Quoted from: Trishina E. G. The problem of judicial control in civil proceedings. Diss. ... Ph.D. Saratov. 2000.S. 93.4 SZ RF. 1996. No. 3. Art. 144; SZ RF. 1997. No. 30. Art. 3587; SZ RF. 2000. No. 32. Art. 3341; SZ RF. 2001. No. 13. Art. 1147.
RF "1 dated 26.06.1992 (as amended by the Law of the RF dated 14.04.93, the Decree of the President of the RF dated 24.12.1993, Federal Law dated 21.06.95); Federal Law "On Weapons" dated 13.12.1996. 2 This list is quite wide and includes guarantees of inviolability, material and social security judges, measures of their legal protection;
5) the level of development of the material branches of law (the degree and detail of the regulation of social relations, the simplicity and consistency of normative structures). If, in the process of applying a material law, it is established that it has ceased to meet the requirements of life, it is necessary to adopt a new or change the law. Otherwise, the law becomes a brake on social development, causing a whole chain of unfavorable consequences 3. In this regard, it should be noted that the generalization of judicial practice on certain categories of economic disputes, in the resolution of which arbitration courts experience the greatest difficulties 4;
6) procedural law 5, which establishes the goals to be pursued by justice, as well as procedural means and possibilities for achieving these goals. In other words, the procedural form established by procedural law is a condition for achieving or not achieving procedural goals. It all depends on procedural rights, the presence or absence of control stages;
1 Vedomosti SND and RF Armed Forces. 1992. No. 30. Art. 1792; Vedomosti SND and RF Armed Forces. 1993. No. 17. Art. 606; SAPP. 1993. No. 52. Art. 5086; SZ. 1995. No. 26. Art. 2399.
2 SZ RF. 1996. No. 51. Art. 5681.
3 See: Tolstoy Yu. K. Improvement of civil legislation // Soviet state and law. 1969. No. 11.P. 49.
4 See: Elizarov N.P. Prevention and elimination of violations of civil legislation by the regional (regional) court. M., 1977.S. 5.
5 The importance of this condition was noted by P.E. Nedbailo (See: Nedbailo P.E. On legal guarantees of the correct implementation of Soviet legal norms // Soviet state and law. 1957. No. 6. P. 22).
7) the theory indicates the need for social responsibility of the law enforcement officer for the mistakes made 1. Such a requirement arises from the extremely harmful consequences of law enforcement errors for the interests of strengthening the rule of law 2. The question of exactly what this responsibility should be is currently under discussion. So, A. V. Tsikhotskiy proposes to supplement Art. 8 of the Federal Law Code of the Russian Federation "On the Constitutional Court of the Russian Federation" 3 with the following norm: "Judges are irreplaceable until they commit defamatory offenses or turn out to be professionally unsuitable" 4. VF Yakovlev 5, 3. I. Korneva 6, SV Podkopaev 7 advocate the introduction of disciplinary responsibility for judges. E.G. Trishina also comes to the conclusion that the imposition of disciplinary sanctions on judicial employees by the control bodies (in particular, by the president of the court) 8 will contribute to the benign and timely fulfillment of the duties assigned to them by judges, as well as the prevention of their committing mistakes.
VS Anokhin notes that an institute for testing the qualifications of judges at regular intervals is needed. At the same time, it should be provided that in case of failure to pass the certification, obtaining negative results, the powers of the judge are terminated 9.
See, for example: Voplenko N.N. Errors in law enforcement: concept and types // Soviet state and law. 1981. No. 4. S. 41; Trishina E. G. The problem of judicial control in civil proceedings. Abstract of the thesis. diss. ... Ph.D. Saratov. 2000.S. 15.
2 See: Voplenko N.N. Decree. op. P. 41.
3 SZRF. 1994. No. 13. Art. 1447.
4 See: Tsikhotskiy A.V. Decree. op. S. 230. See: Yakovlev V.F. The status of judges in the conditions of new democracies: independence in relation to other branches of government. Report at the VTI International Judicial Conference // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1999. No. 7.P. 32.
6 See: Interview Z. I. Root to the magazine "Russian Justice" // Russian Justice. 1996. No. 1.S. twenty.
7 See: S. V. Podkopaev. Disciplinary Responsibility of Judges: Yes or No? // Russian judge. 2001. No. 4. S. 21-22.
See: E.G. Trishina. The problem of judicial control in civil proceedings. Abstract of the thesis. Diss .... Ph.D. Saratov. 2000. S. 15.9 See: Anokhin V.S. Arbitration procedural law of Russia. M, 1999.S. 83-84.
It seems that one of the conditions for the effectiveness of justice should be the possibility of early termination of his powers by a judge if he does not cope with his duties. RF Law "On the Status of RF Judges" 1 in Art. 9 contains guarantees for the independence of judges, but there are no guarantees of impartiality in this law. Independence is not an absolute guarantee of lawful and well-founded decisions. Meanwhile, the organic connection between the concepts "impartial" and "fair" is obvious, because impartial is alien to bias, that is, impartiality is an important prerequisite for justice 2. All this allows, albeit theoretically, to assume the possibility of manifestation of judicial subjectivity. And if the material support of judges is at a low level, then the likelihood of such a manifestation increases. Judges, as representatives of state power who are in official relations with the state, should be accountable to it for the decisions they make. Within a certain period of time, the judge issues a number of judicial acts (R). Some of them will subsequently be canceled or changed (Pp). A strict limit on the maximum number of canceled judicial acts (Px) for a certain period (for example, for 1 year) should be established normatively. If this limit is exceeded, the issue of terminating the powers of this judge should be considered by the High Qualification Collegium of Judges. If the authority is exceeded again, the referees should be terminated automatically 3. Corresponding changes will need to be made to Art. 14 of the Law of the Russian Federation "On the Status of Judges in the Russian Federation" and clause 13 of the Regulation "On Qualification Collegia of Judges" 4.
1 See: Russian Justice. 1995. No. 11. S. 56-63. See: V. Lebedev. Judicial impartiality and social control over the court // Russian Justice. 2001. No. 7.P. 2.
3 This idea was expressed by us in the most general form. It certainly needs discussion and detailed elaboration. We do not do the latter only because of the nature of our research.
4 See: Vedomosti SND and VS RF. 1993. No. 24. Art. 856.
True, such a situation can contribute to staff turnover. To prevent this from happening, it is necessary to have high material support for judges.
It should be emphasized that the implementation of this condition should take into account other conditions (specialization, workload, recruitment, etc.), as well as the organization of the appellate instance as an independent link in the judicial and arbitration system.
Under the existing legislation, it is hardly possible to say that the higher courts (with the exception of the supervisory one) in any way form the arbitration practice 1. The lower court can theoretically make a decision as many times as it wants, which, from the point of view of the higher instance, is erroneous 2. The formation of a unified law enforcement practice would be facilitated by the above provision on the possibility of early termination of judicial powers if the permissible level of erroneousness of judicial acts is exceeded. Thus, a kind of hierarchy of instances would be formed, in which each higher instance acted as a guideline in the field of law enforcement for the lower one.
MI Kleandrov believes that there is no caste isolation in the judiciary, that it is capable of self-purification in full accordance with the current legislation 3. As proof MI Kleandrov cites statistical data indicating the number of judges dismissed from office; judges who are prosecuted
1 In some cases, the higher instances commit violations of the rules of procedural law, which completely negate both the work of the lower instance and their own. The appellate instance of the Arbitration Court of the Irkutsk Region considered the appeal of the Manager of the Liquidation Commission of the Russian-Asian Bank. The complaint was upheld and the decision was canceled. However, instead of the signature of Judge P. I. Buyanover, who is a member of the judges considering this complaint, the decision contained the signature of Judge Ibragimova SJ. Even without touching on the merits of the case, it can be argued that court practice should not be formed by such decisions (Resolution No. 8897/00 of January 16, 2001 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2001. No. 5. P. 48-49).
2 See: Petrukhin I.L., Baturov G.P., Morshchakova T.G. Decree. op. P. 215.
3 See: M. I. Kleandrov Judge Status. Novosibirsk. 2000.S. 67.
the qualification collegiums agreed. It seems to us that such statistics are not enough to substantiate this conclusion, especially since there is nothing to compare it with. Perhaps the indicators cited by M. I. Kleandrov would have been much higher if the consent to initiate a criminal case and termination of powers were expressed by a body that did not consist of judges.
Art. 2 of the Arbitration Procedure Code of the Russian Federation, as the tasks of arbitration proceedings, fixes: 1) protection of violated or disputed rights and legitimate interests of enterprises, institutions, organizations and citizens in the field of entrepreneurial and other economic activities; 2) assistance in strengthening the rule of law and prevention of offenses in the field of entrepreneurial and other economic activities 1.
In fact, the above tasks are also the goals of arbitration proceedings. Procedural legislation determines the very emergence of a process, first of all, by the need to protect violated or disputed rights, freedoms or interests protected by law. All procedural activities of the participants in the process, starting from its initiation, are aimed at achieving precisely this main goal 2.
Judicial errors, sometimes made in the resolution of economic disputes, exclude or significantly complicate the achievement of the set goals. In addition to negatively affecting the effectiveness of justice, miscarriages of justice reduce its credibility. In this case, it does not matter, by virtue of what
AT Bonner and GA Zhilin correctly point to the semantic similarity of the concepts of "goal" and "task". In the Russian language, a task is understood as something that requires implementation, resolution, and a goal is something that they strive for, want to achieve. The goal is an ideal, mental anticipation of the result of an activity that, as a direct motive, directs and regulates human activity ... . The goals of civil proceedings and their implementation in the court of first instance. M, 2000. S. 15-16; Bonner A. T. Justice as a type of state activity. M., 1973. S. 7-8; see also: Matuzov N I. Personality. Rights. Democracy. Saratov. 1972. S. 228; Chulyukin L. D. The nature and meaning of the goal in Soviet law. Kazan. 1984. S. 14-15). 2 See: G.A. Zhilin, Decree. op. P. 17.
reasons for a miscarriage of justice: insufficient qualifications, dishonesty of the judge, complexity of the case, etc.
Criminal, civil and arbitration proceedings are carried out in different procedural forms, but each of them provides for a kind of "protective block", a set of proceedings for the revision of judicial acts. Without this, judicial errors would be ignored and not corrected. The level of efficiency of justice with such a structure of the procedural form would certainly decrease, since the judicial errors made remained uncorrected. The procedural form, including the system of revising judicial acts, not only allows for the possibility of a miscarriage of justice, but also provides for means of eliminating them. At the same time, the very existence of the system for reviewing judicial acts should discipline the judges making decisions, stimulate them to improve their professional level, to be more attentive to the case under consideration; deter from various abuses. Thus, the very form of administration of justice is a condition for its effectiveness.
In the arbitration process, the most effective form of revision of judicial acts is the appeal procedure, since it establishes the broadest possibilities for checking judicial acts. The procedural procedure for appeal proceedings has a number of advantages over other forms: 1) the persons participating in the case are given the right to appeal the judicial act "in full"; 2) the appellate court, when reviewing the case, considers both questions of fact and questions of law, that is, it has the right to check both the legal and factual aspects of the case to the same extent as the court of first instance when resolving a dispute. The cassation proceedings contain a limitation in this respect. Art. 165 of the Arbitration Procedure Code of the Russian Federation establishes that the reference in the cassation appeal to the lack of evidence of the circumstances of the case or to the inconsistency
the conclusions about the actual relationship of the persons participating in the case set out in the decision or the decision, the circumstances of the case are not allowed; 3) the inspection is not made dependent on the discretion of officials, as is the case in supervisory proceedings. E. A. Borisova is considering the question of which type of appeal is more acceptable for the Russian appeal proceedings: the appeal is complete or incomplete 1. The solution of this issue is more theoretical than practical. In our opinion, the main criterion in choosing one or another type of appeal should be its ability, in conjunction with other conditions, to achieve the maximum level of efficiency of justice. If, however, each of these types of appeal has positive aspects, we fully admit the emergence of a kind of "mixed" appeal proceedings. There is no need to unconditionally follow the forms of revision that have arisen historically. Substantive law, institutions of procedural law are not in a static state; the practice of considering and resolving economic disputes is developing and improving, sometimes outstripping legislation and identifying gaps.
In this regard, it is necessary to note the positive aspects of both full and incomplete appeal.
As a general rule of incomplete appeal, it is not allowed to make new references to facts or evidence during the proceedings in the court of appeal, but under certain conditions, references to new evidence or circumstances may be allowed 1.
Since the main function of the appeal proceedings is the review and verification of a completed judicial act, and not the resolution of an economic dispute, new evidence should not be accepted as a general rule. If the party in the first instance deliberately failed to submit
1 See: E. A. Borisova, Appeal in civil (arbitration) proceedings. M., 2000.S. 59-64.
any evidence, and from the point of view of the available evidence, the judicial act is lawful and justified, it is illogical to give this party the right to submit this evidence to a higher court, which, in fact, does not resolve the dispute, therefore, does not examine the evidence. Moreover, enshrining the rule allowing new evidence to be submitted to the court of appeal may help the parties retain the most compelling evidence pending the appeal of the case. The proceedings in the court of first instance will become a kind of "rehearsal" of the appeal proceedings, which will take the place of the main stage of the process. The fact that this situation diminishes the authority of the court of first instance, and simply replaces the nature of the appeal proceedings, was indicated in pre-revolutionary publications. The question should be resolved in a different way when it is objectively impossible to present evidence to the court of first instance. This can happen due to the fact that the party simply did not know about the existence of this evidence, or the arbitral tribunal rejected the motion to request it, attach it, etc. or an error that has arisen due to objective reasons.
Another rule of incomplete appeal allows the case to be returned to the trial court for a new trial and decision 3. A number of violations that are committed by the courts of first instance can only be corrected by the court that made such a mistake. E. A. Borisova gave an example of such an error - the absence of a signature of the decision by the judge
1 Ibid. S. 59. See: A.K. Richter. About complete and incomplete appeal // Journal of the Ministry of Justice. SPb., 1907. No. 3. S. 17; Gonyaev M. On the right of litigants to present new evidence to the court of appeal // Journal of civil and criminal law. SPb., 1884. Book. 6, p. 41.
3 See: E.A. Borisova Decree. op. P. 59.
presiding over the meeting 1. Although referral of the case for a new examination is a power not characteristic of the appellate instance, but, as an exception, represented by a clear list of cases, the power of the appellate instance should be given to transfer the case for a new trial. This is due to the specifics of the violations. The task of the higher court is only to identify them.
The lack of this authority was justly criticized in the procedural literature 2. One should agree with the proposal of E.A. Borisova that in certain exhaustive cases it is necessary to establish a normative basis for the compulsory referral of the case to the court of first instance (these are cases of violation of the norms of procedural law, appeals against the rulings of the court of first instance) 3.
At the same time, the proposal to grant the right to the appellate court to send the case for a new consideration cannot be supported, depending on the petitions made by the persons participating in the case to supplement the proceedings on the case. The fact is that the procedural means provided to the court of appeal will make it possible to independently compensate for certain omissions in the proceedings of the court of first instance (the procedure for the appeal proceedings only slightly differs from the proceedings in the court of first instance). In the case when certain gaps in the collection of evidentiary material were admitted through the fault of the persons participating in the case themselves, a normative limitation was established to compensate for this deficiency in the appellate instance. Other shortcomings and omissions can be corrected either by filing a new claim,
See: E. A. Borisova Appellate proceedings in the arbitration process // Reference
information system "Garant".
See, for example: Borisova E. A. Appeal in civil (arbitration) proceedings. M., 2000.
S. 126-133. She's the same. Appellate proceedings in the arbitration process //
Reference and information system "Garant"; Engelman I. E. Course of civil
legal proceedings. Yuriev. 1912. S. 392. 3 See: E. A. Borisova Appeal in civil (arbitration) proceedings. M., 2000.S. 132.
This idea was adopted by the Draft APC RF (part 2 of article 240).
either the issuance of an additional judgment, or an appeal proceeding.
A full appeal also has at least one positive feature. The Court of Appeal examines the factual side of the case in full. The person participating in the case, who has decided to file an appeal, may not indicate all the violations committed in the first instance, or point out the alleged violations, which in reality are not. By reviewing the case in its entirety, the appellate court reduces the likelihood of a missed miscarriage of justice, thereby contributing to an increase in the efficiency of justice.
The appeal proceedings are, as noted above, the most optimal form of review. But it is not without its drawbacks. In particular, among those indicated in the procedural literature, the following are most significant: 1) the slowness of production; 2) irresponsibility of the first instance, believing that it can resolve the case "somehow" because there is a second instance; 3) additional costs and troubles of the litigants, often in vain for themselves, because the court of appeal in a number of cases only confirms the decision of the lower court; 4) the question is also raised about the competition of judicial acts: if the judicial act issued in the appellate instance is opposite in content to the judicial act of the court of first instance, the question arises which of them is correct, since an error is possible in any instance 4.
The indicated disadvantages do not seem to be significant. The first two can be eliminated by establishing liability measures for judges for violating the terms of the review and making illegal and unreasonable
1 See, for example: Kleinman A.F. Civil process. M., 1940.S. 253; Kurskiy D.I.Proletarian law // Selected speeches and articles. M, 1958.S. 85-86; Yablochkov T. M. Textbook of Russian civil legal proceedings. Yaroslavl. 1912.S. 172-173.
2 See, for example: Kleinman A.F. Decree. op. P. 253.
See, for example: Malyshev K.I. Course of civil proceedings. Saint Petersburg, 1874, p. 190.4 See, for example: K.I. Malyshev, Ibid.
solutions. As for the additional, often in vain, costs of the litigants, this situation is quite natural, since it acts as a kind of deterrent from filing unfounded complaints. The issue of competition of judicial acts can be resolved as follows. A mistake is indeed possible in any instance, but the likelihood of its occurrence in the court of first instance and the appeal should be different. This can be achieved by imposing more stringent requirements on candidates for the position of a judge of a higher court.
Consideration, resolution of the dispute, as well as re-examination of the case cannot continue indefinitely. Otherwise, the instances will simply start duplicating each other. Unfortunately, this situation is observed in the arbitration process of the Russian Federation. Three instances have been created to review judicial acts. At the same time, the cassation instance largely duplicates the appeal instance 1. This is evidenced by similar grounds for canceling or changing judicial acts (Articles 158, 176 of the Arbitration Procedure Code of the Russian Federation). The discrepancy is observed in the case when the judicial act is recognized as unfounded. If this happens in the appellate instance, then in fact the appellate court has the right to either cancel the decision in whole or in part and make a new decision, or change the decision. If groundlessness is found in the cassation instance, then in accordance with paragraph 3 of Art. 175 of the Arbitration Procedure Code of the Russian Federation, the court of cassation must cancel the decision of the court of first instance and the ruling of the appellate instance and refer the case for new consideration to the instance of the arbitration court, the decision or ruling of which was canceled. This action will undoubtedly drag out the proceedings. With this approach
E. A. Stepanova notes that the cassation proceedings were introduced into the arbitration process not in order to duplicate the appeal proceedings. As an argument confirming this conclusion, she points to the independence of its tasks: checking the legality of the decisions of the appeal instance and decisions (see: Stepanova E.A. . Yekaterinburg. 1998.S. 231-232). This conclusion does not correspond to reality, since in
the legislator to the problem of increasing the efficiency of justice, it would be advisable to create five, six, etc. instances, since in each subsequent one may reveal more and more errors. But this path seems to be incorrect, since the issuance of conflicting judicial acts by various instances does not contribute to the formation of a uniform judicial practice and the strengthening of the rule of law. The problem of the optimality of such a judicial system arises. An increase in the number of courts will entail an increase in the links of the judicial system, and hence additional costs for its maintenance. In addition, with an increase in the number of control bodies that recheck each other, not only the possibility of eliminating a miscarriage of justice increases, but also the likelihood of canceling a legal decision with an erroneous one instead. It is necessary to improve the efficiency of justice, but this should be done not by increasing the number of instances, but by creating a set of conditions that ensure a high level of efficiency. In addition, we emphasize once again that it is necessary to introduce the responsibility of judges for their decisions. In France, for example, there has long been a procedure for bringing judges to civil liability. Russian legislation provides for the property liability of private notaries (Article 17 of the Fundamentals of Legislation on Notaries). The application of civil liability to judges of arbitration courts in Russia is currently impossible because the cost of claims brought before arbitration courts is usually very high. There remains a way to bring judges to official responsibility. The principle of the independence of judges will not be affected by this provision, since the judge will resign at the direction of legal norm, and not a specific subject of law enforcement.
the appellate instance also checks the legality of the judicial acts of the lower court.
1 See: A. Kozhemyako. Supervisory authority - an extra link in the arbitration process // Russian Justice. 2001. No. 7.P. 5.
2 Vedomosti SND and RF Armed Forces. 1993. No. 10. Art. 357.
The fact that one link in the system of arbitration courts both resolves economic disputes and revises judicial acts also speaks in favor of reducing the number of courts. This provision has been criticized in the procedural literature. VM Sherstyuk rightly noted in this regard that the judges of the first instance and the appellate instance work in one work collective, under the leadership of one chairman of the court and his deputies. Such a procedure for considering cases on an appeal allows persons involved in the case to doubt the impartiality of judges, especially when an unfavorable decision is made. Such doubts, even if there are no factual grounds under them, are not groundless, and it is difficult to dispel them 1. According to MK Yukov, the number of cases considered in arbitration courts is constantly growing. In the cassation instance, it increased by 50%, and in the appeal, the growth was much less - some lawyers skip the appeal instance. To this we can add that a single functional orientation of the activities of judges of one level will create conditions for a narrower specialization.
The theory notes the merits of combining in one link of two instances:
1. The appellate instance becomes geographically closer to the participants in the disputed legal relationship, and therefore more accessible.
2. There is an opportunity to create a unified judicial practice through joint discussion and resolution of the most controversial issues of law enforcement.
1 See: Sherstyuk V.M. New provisions of the APC RF. M., 1996. S. 77. See: Yukov M. K. Improvement of the arbitration procedural legislation // State and law at the turn of the century. Civil law... Civil procedure. M., 2001. S. 147. Statistical data, cited by I.O. Podvalny, testify to the same. In the North-West Judicial District in 1999, the percentage of cases considered in stages in the first, appeal and cassation instances amounted to only 55.68%, and in 1997-1998. this indicator reached the level of 64.58 and 66.16%, respectively (see: Podvalny I.O. Appeal and cassation in the arbitration process of the Russian Federation. Author's abstract dissertation .... Ph.D. St. Petersburg, 2001, p. fourteen).
3.The appellate instance was created with a minimum of costs 1.
However, the statistical indicators of the work of the courts of appeal indicate that such a combination of instances cannot be called quite successful. According to the reports on the work of the Federal Arbitration Court of the Volga District for 1999, 2000 and the first half of 2001, the level of cancellations in the cassation instance of the decisions of the appellate instance is 37.7, respectively; 37.4; 37.7%. For the instance that reviews judicial acts, these are very high rates. It is no coincidence that the Appendices to the work reports for 1998 and 1999. It was concluded that in a number of cases, the appellate courts of the arbitration courts of the constituent entities of the Russian Federation of the Volga District cancel the lawful and well-founded decisions of the arbitration courts of the first instances and adopt judicial acts that contradict the substantive and procedural law 2.
The following statistics also testify to the need to transfer the appeal instance to the district courts: in the appeal instance, the number of canceled or amended acts of the first instance court in 1998 was 2.4%; in 1999 2.4%; in 2000 2.5%, and in cassation, respectively: 1.8; 1.9; 2.3%. With the existing structure of the judicial system, the appellate instance is gradually becoming superfluous. This is despite the fact that, as a form of review, the appeal is the most effective.
The number of links in the system of arbitration courts should remain the same. Geographic, climatic, national, scientific and educational, transport, economic and other conditions contributed to the originality of economic relations arising in a particular group
See: Mitina M.G. Principles of Arbitration Court System. Abstract of the thesis. diss. ... Ph.D. Ekaterinburg. 2000.S. 15-16.
2 See: Information on the activities of the Federal Arbitration Court of the Volga District for 1998, 1999.
3 See: The main indicators of the work of the arbitration courts of the Russian Federation in 1998-1999. // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2000. No. 3. S. 8; The main indicators of the work of the arbitration courts of the Russian Federation in 1999-2000 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2001. No. 4. P. 14.
subjects of the Russian Federation. Consideration of a case by a higher court not only helps to increase the confidence of the persons involved in the case in the judgment and the court itself, but also increases the responsibility of the judges of first instance when making decisions 1.
E. A. Borisova expresses the idea that as a result of the stabilization of the judicial system, substantive and procedural legislation, and judicial practice, the need for supervisory proceedings will disappear, since the existence of an appeal and cassation appeal of court decisions will fully guarantee the right to judicial protection to interested parties. A. Kozhemyako, I. O. Podvalny also believe that supervisory proceedings should be excluded from the arbitration process 2. At the same time, A. Kozhemyako calls the actual dubbing of the cassation instance one of the main arguments in favor of this. In this we agree with the indicated author. But, in our opinion, in order to determine the advantages of any form of revision over the others, it is necessary to compare their qualitative characteristics 3.
Cassation proceedings have one indisputable advantage over supervision proceedings: they are initiated at the initiative of the interested parties themselves, and not at the initiative of authorized officials. The disadvantage of cassation proceedings is that it does not verify the validity of the judicial act. I. G. Arsenov and S. Zagrebnev, for example, point to the limitations of a strictly formalized
See: Borisova E. A. Appellate proceedings in the arbitration process // Reference and information system "Guarantor". 2 See: A. Kozhemyako. Supervisory authority - an extra link in the arbitration process // Russian Justice. 2001. No. 7. S. 5-7; Podvalny I.O. Appeal and cassation in the arbitration process of the Russian Federation. Abstract of the thesis. diss. ... Ph.D. SPb., 2001. S. 10. In this regard, the judgments of IO Podvalny are contradictory. While advocating the elimination of the supervisory proceedings, this author at the same time notes that the cassation court should not limit itself to checking the legality of the judicial act (See: Podvalny I.O. Decree. Author. P. 8). However, the latter is aimed at introducing an element of supervisory (or appeal) proceedings into the net cassation. A little further I.O. Podvalny points out that pure cassation allows to a greater extent to implement the principles
approach to the administration of justice in the cassation instance, related to the framework of the audit of the legality of judicial acts. The functioning of the system of arbitration courts should presuppose the effectiveness of the work of each stage of the proceedings. The exclusion from the competence of the cassation instance of checking the validity of judicial acts will not allow ignoring the public need for the promptness of legal proceedings, but will shift this responsibility to the supervisory instance 1.
The supervisory procedure provides for the activities of certain officials to identify violations. At the same time, it is not ruled out that an official may bring a protest to own initiative... We consider this position to be quite correct. A judicial error affects not only the interests of stakeholders, but also state interests, since they reduce the authority of the judiciary 2. Therefore, we do not agree with the opinion of the authors, who exclude the possibility of revising the judicial act against the will and desire of the person against whom the judicial act was adopted. We share the opinion of M.K. Yukov that in the event of the elimination of the cassation instance, it is necessary to change the approach to the supervisory instance, namely, to move away from the subjective element in bringing a protest 4.
It is possible to significantly expand the circle of officials who have the right to lodge a protest, and then the problem of limiting the right to appeal will be overcome to a certain extent. However, to completely get rid of
adversariality and discretion and proposes to establish it at the level of the Supreme Arbitration Court of the Russian Federation (see: Podvalny I.O. Decree. author. p. 8.13). 1 See: I. G. Arsenov. The ratio of legality and validity in judicial acts of the cassation instance // Russian legal journal. 1998. No. 1. S. 102-103; Zagrebnev S. Appellate and cassation instances of arbitration courts // Economy and law. 1997. No. 2.P. 103.
For the same reason, we cannot approve the rule proposed in Part 4 of Art. 238 of the Draft APC RF, since it leads to self-elimination of state power from protecting its own interests.
3 See: Arbitration process / Ed. V.V. Yarkova. M., 1998.S. 344 (chapter by B. Ya. Polonsky).
4 See: Yukov M.K. Civil law. Civil procedure. M., 2001.S. 147.
a subjective element does not follow, since in this case the Supreme Arbitration Court of the Russian Federation will be overloaded with complaints (statements), including unfounded ones.
Therefore, the conclusions of E. A. Borisova and A. Kozhemyako on this issue are considered premature. According to A.A. Arifullin, the number of supervisory complaints in last years is constantly increasing. In 1998, there were 10,000 applications for protest, in 1999 - 11,500, in 2000 - 14,500 applications 1.
Based on the foregoing, we propose the following instance construction. The court of first instance, which corresponds to the link, is the arbitration courts of the constituent entities of the Russian Federation; Courts of Appeal — Circuit Arbitration Courts; supervisory authority - the Supreme Arbitration Court of the Russian Federation. Then Art. 151 of the Arbitration Procedure Code of the Russian Federation must be supplemented with one more ground for returning the appeal: "... if the appeal is filed with an arbitration court that is not authorized to consider it."
See: Fokov A.P. Problems of accessibility and efficiency of justice in arbitration and civil proceedings // Russian judge. 2001. No. 4. S. 5. The arguments of I.O. Podvalny that supervisory proceedings should be eliminated, since the number of protests brought in by way of supervision, as well as the number of attributed and amended judicial acts, cannot be adopted (see .: Podvalny I. O. Decree. Abstract. P. 23) .. Such data indicate the need to improve the order of supervisory proceedings, and not replace it with cassation proceedings.
- this is the competent activity of authorized state bodies (courts), consisting in the consideration and resolution of civil, criminal, administrative, as well as arbitration cases, carried out in a special procedural procedure prescribed by law. Justice must be fair and objective, and decisions made by the court must be well-grounded.
The main signs of justice include:
- implementation by a court (special state body);
- special legal status judges guaranteeing their independence;
- implementation in the form of civil, constitutional, criminal, administrative and arbitration proceedings;
- the generally binding nature of the decisions and rulings of the court.
Purpose and main objectives
A goal is a set of tasks. Today, the main tasks of justice are as follows:
- timely and objective consideration of the case;
- realization of the right to judicial protection of the violated or contested right;
- maintaining the rule of law and a minimum level of law and order;
- building respect for the law;
- prevention of the commission of offenses through the application of substantive and procedural legal norms.
No other authorities or organization can exercise powers that are attributed by the Constitution and other federal laws to the competence of the court. Likewise, the Constitution does not allow for the existence of special or emergency courts “for quick execution”.
Remark 1
The court is an independent and independent source of the judiciary - one of the three branches of government in the state, along with the executive and legislative. The existence of a fair court guarantees the maintenance of a high level of legal culture in the country.
Functions of justice
Any function of justice is performed by a single entity, that is, by the court.
The function of justice is essentially the activity of the judicial authorities as subjects of this power, which takes place within the boundaries of the judicial system and is a set of organizational and procedural actions provided for by law and performed by courts in special forms. The function of justice has an independent social significance for society.
The main function of justice is to resolve the dispute (case) on the merits. This activity of judges as bearers of power may include:
- administration of justice (in civil, criminal, administrative, arbitration and constitutional order);
- control over the activities and decisions of state bodies and officials;
- guarantee of execution of court decisions;
- clarification of the law on the existing judicial practice;
- formation of the judiciary and assistance to other bodies of the judicial system.
Justice must be administered in accordance with legal principles. Sometimes such principles are called constitutional.
The principle of justice is a worldview idea that underlies the activities of state bodies of justice.
The principles are enshrined in a variety of legislative acts: the Constitution of Russia, the law "On the judicial system of the Russian Federation", and procedural codes. It is impossible to find the consolidation of principles in bylaws, since such acts cannot have the necessary legal force for this.
The resolution of the case on the merits can take place in one of five forms of justice: civil, criminal, arbitration, administrative or constitutional proceedings.
O.I. CHEPURNOV, Candidate of Legal Sciences, Associate Professor of the Civil Registry Office under the President of the Russian Federation The article attempts to comprehend the category of "effectiveness of the judiciary". The author defines the criteria for the effectiveness of both the judiciary and the justice system, as well as the judicial system of the Russian Federation.
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O.I. CHEPURNOV,
Candidate of Legal Sciences, Associate Professor of the Civil Registry Office under the President of the Russian Federation
The article makes an attempt to comprehend the category of "effectiveness of the judiciary". The author defines the criteria for the effectiveness of both the judiciary and the justice system, as well as the judicial system of the Russian Federation.
Key words: justice, judiciary, system, branch of government, process, efficiency.
Questions of judicial authority efficiency.
In the article the attempt at understanding of such category as "judicial authority efficiency" is made. The author defines the criteria of efficiency as justice, and also judicial system of Russian Federation.
Keywords: justice, Judicial authority, authority branch, system, efficiency.
A special role and place in the system of state power bodies of any democratic rule of law belongs to the judiciary. This is due to the fact that the main function of the judiciary is the administration of justice, which cannot be performed by other authorities except the courts; this is the guarantee of the independence of the court to ensure the democratic principles of legal proceedings, the guarantee of the rights and freedoms of citizens.
Interest in the problems of the formation of the judiciary in the Russian Federation is the subject of discussion by many specialists and researchers and scientific and practical conferences.
The concept of "court" and "justice" in Russian legal science was studied much earlier than the concept that unites them into a single whole - "judicial power", but Russian legal science is currently only approaching the understanding of the phenomenon of "judicial power" in all its depth , complexity and variety. According to the fair opinion of L.A. Voskobitova: "... all the indicated approaches express only the external aspect of the characteristics of the judiciary, and therefore, of course, they are insufficient, since they do not explain why this activity is power, what is its imperious nature" ...
We must agree with M.N. Marchenko that “... among the unsolved problems of the judiciary at the present time there are still questions concerning the general concept of the judiciary, the definition of its legal nature and nature, the establishment of the inherent judicial power as a generic phenomenon and the corresponding concept signs and traits, questions of determining the nature and characteristics of the relationship between the judiciary and other branches of government. "
The current Russian legislation defines the concept of "judicial power" as a "judicial system" (Article 118 of the Constitution of the Russian Federation), which is carried out through constitutional, civil, administrative and criminal proceedings. Power is exercised through legal proceedings, i.e. the activity of the court in a specific case regulated by procedural law, consisting of resolving the case on the merits, as well as in resolving other legal issues arising in the course of procedural activities. And it manifests itself in a specific form of the state's imperious intervention in a conflict situation in society with a special imperious influence of the state on the participants in the conflict, the relationship between them. In the process of such interference (influence), the state enters into numerous and varied power relations with the parties to the conflict, as well as with third parties. The overwhelming majority of these power relations arise and exist as legal relations. They give rise to the state (including in the person of the court), other participants in the process, a state of relationship associated with their rights and obligations.
The essential characteristics of the judiciary are:
One of the components (branches) of state power;
Possesses the characteristics of power in the management of society;
Is of a private and public law nature;
It manifests itself in the law enforcement and lawmaking sphere;
It is mediated in justice (processes), its results (judicial acts).
The properties of the judiciary are:
a) independence - when considering specific cases, the judiciary is guided only by applicable laws and does not depend on the subjective influences of individual citizens and groups of citizens, including representatives of other branches of government;
b) the procedural order of activity - the procedures for considering specific cases, making decisions on them are determined only by laws and only before the start of court proceedings;
c) equality before the law and the court - equality of citizens and other subjects of legal proceedings ensures fair and non-biased application of laws;
d) certainty of the process - in any case, a final and unambiguous decision can always be made.
The constitutional foundations of the judiciary can be considered in the form of two groups fixed in the Constitution of the Russian Federation:
First, these are general constitutional provisions on the organization and activities of state power, including its judicial component (Articles 1, 2, 4, 8, 10, 11, 15, 71, 72, 76, 104 of the Constitution of the Russian Federation );
Secondly, in the constitutional provisions (Chapter 7 of the Constitution of the Russian Federation) concerning the specifics of the organization and functioning of the judicial component of state power.
The judiciary can be characterized as a systemic set of special state bodies, endowed with constitutional and legal powers to resolve issues within their competence, arising from the application of law and their implementation by the courts through constitutional, civil, criminal, administrative and arbitration proceedings, in compliance with the procedural order and terms , creating a guarantee of the legality and fairness of judicial decisions, and the exercise of other legally established powers.
The concept of "the effectiveness of the judiciary" in the legal literature is rather controversial. In the fair opinion of N.A. Kolokolov, “as a characteristic of the judiciary, initially we have, as it were, the initial material legal substance“ court ”embodied in specific government bodies - courts, and a procedural legal substance of a material nature“ justice ”derived from this as one of many forms of state regulation of public relations ".
In the legal literature, controversy continues about the essence of justice, various authors consider it necessary to include in the definition of justice a different number of characteristics, the totality of which reflects, in their opinion, the essence of justice. Signs, one way or another, helps to reveal the essence of justice, but the list of signs can always be expanded with a number of details. Since there is no general definition of justice, then, therefore, we can only talk about the presence of general targets of justice in specific categories of cases. Justice is an activity aimed at achieving results and goals. One can agree with the opinion of I.L. Petrukhin, that without a clear definition of justice, it is impossible to investigate the problem of the effectiveness of judicial proceedings, since efficiency is an assessment of the effectiveness in achieving the goal. There is no single point of view on the issue of defining the concept of “efficiency of justice” among legal scholars; municipalities, government bodies and local government bodies, other bodies and officials. These target attitudes of justice, reflecting its functional purpose, predetermine the specifics of the essential characteristics of judicial acts in which justice is objectified.
In our opinion, A.V. Tsikhotsky expressed an acceptable interpretation that the effectiveness of justice ... is the ability (property) of justice as a type of state activity carried out by the court in the procedural form established by law to consider and resolve specific court cases with the issuance of legal, substantiated and fair regulations to ensure, under certain conditions, the achievement of socially significant goals. This ability is characterized by the ratio of the actually achieved level of goals by justice to the level normatively established by the law of social justice. The measure of the effectiveness of justice is organically linked to its main functions. It seems that the concept of "efficiency of justice", and even more so its criteria should be constructed on the basis of the tasks defined by the Basic Law. In order for the state to ensure the comprehensive implementation of the right to judicial protection, justice must meet the requirements of fairness, competence and efficiency, as well as comprehensively cover the area of legal reality in which an offense may be committed.
From the foregoing, it should be concluded that the definition of the concept of "efficiency of justice" must be approached from a systemic position, in which the organizational and procedural activities of the judicial system, which regulate its norms, are considered as a single whole institution, functioning in the interests of achieving a pre-planned social and political goal. Since the "system" in the process of functioning acts as an integral formation, in which there is an interconnection and interdependence between structure and functions. In this regard, one should agree with Yu.G. Markov, who asserts that "a function is realized by a structure and is explained with the help of a structure."
Speaking about the effectiveness of justice, it should be noted that, first of all, the concept of the effectiveness of justice includes the following elements: tasks of justice; the activities of the courts to achieve them; the results of this activity. Moreover, the achievement of the results of justice is associated not only with the activities of courts (judges). The parties also take part in it (the plaintiff, the defendant in civil proceedings; the prosecutor and lawyer - in the criminal; the applicant and the state - in the constitutional and administrative). At the same time, the basis of justice is not their activity, but the activity of the court (judge), as the central figure of legal proceedings.
The effectiveness of justice is considered in its narrow sense when it comes to the performance of tasks by courts to consider and resolve a specific case. And about the concept of the effectiveness of justice in a broad sense, when it comes to the contribution of the judiciary to the achievement of the goals of the state as a whole. The effectiveness of judicial activity in the administration of justice can be assessed, first of all, by the level of compliance by the courts with the procedural form in the process of legal proceedings.
It should be noted that recently, evaluative characteristics have been set not for the judiciary, but for justice, especially this is reflected in the decisions of the International Court of Human Rights and the Resolutions of the Constitutional Court of the Russian Federation. As rightly noted by A.V. Tsikhotsky and A.K. Chernenko, "... justice is carried out in accordance with the general political system of the state, ... that is why the principles of the organization of justice are closely related to the general principles of state structure and are their logical continuation." At the same time, we must not forget that other goals have been set before the judiciary. Not only the activities of the courts considering specific cases are aimed at their achievement, but also the entire state mechanism, many other legal and social institutions. It follows from this that the category of "judicial power" is a much broader concept than "justice", since the former is called upon to perform in society functions not only to administer justice, but also other functions aimed at increasing the efficiency of the judiciary, as well as the judicial system. ... These areas include the availability of justice and the enforcement of court decisions, as well as the interaction of the judiciary in the system of public authorities.
The effectiveness of the judiciary can be viewed from the perspective of the effectiveness of state power - as one of its branches. In our opinion, we can talk about the effectiveness of the judiciary, where efficiency is a function of the effectiveness of justice or ensuring the regime of legal relations that meet constitutional and legal democratic standards for the protection of the rights and freedoms of citizens and legal entities, public and state law and order. And the criteria for assessing the effectiveness of the judiciary is the ratio between the actual social result and the goals that reflect the objective needs of the social order of society with a minimum expenditure of time, funds, efforts and conditions for minimizing negative phenomena.
The judicial system is considered as a set of judicial bodies and institutions that directly support their activities, united by the unity of principles and tasks, guided by a single legal framework, including constitutional (statutory) courts in the unified judicial system of the Russian Federation, operating on the territory of the Russian Federation. The legal basis for the construction and functioning of the domestic judicial system is formed by the Constitution of the Russian Federation and the Federal Constitutional Law of December 31, 1996 No. 1-FKZ "On the judicial system of the Russian Federation", in which (Article 3) the unity of the judicial system is proclaimed.
The judicial system is tasked with ensuring a balance in the implementation of the effectiveness of justice by all judicial authorities (courts) in accordance with the target settings of the social and public order.
In other words, the effectiveness of the system of judicial authorities is determined by the subject-functional indicators of ensuring the administration of justice, if justice is effective, then the system of the judicial branch of government is also effective.
Criteria assessments of justice can be different, they can be classified:
a) determination of the effectiveness of justice by means of statistical data;
b) the effectiveness of justice is determined by society itself, international organizations through the media;
c) assessment of the effectiveness of justice based on a set of expert assessments.
The broad formulation of the goal of justice does not allow determining its effectiveness with great precision, since not only the court, but also other state bodies, is involved in achieving these goals. An excessively narrow definition of the goals of justice can remove from the court some of the "social burden" that justice is obliged to carry, and, therefore, also carries the danger of a distorted understanding of the degree of its effectiveness. Summarizing scientific works in this direction, and analyzing the evaluative options for the effectiveness of justice, one can come to the conclusion that with the modern development of science it is impossible to determine the exact contribution of the judicial subsystems to the effectiveness of the system of public authorities, but at the same time, the fact that this value is one of the fundamental there is no doubt ...
According to V.P. Lukin, “ensuring the constitutional right of citizens to judicial protection largely depends on the effectiveness of the courts, on guarantees of access to justice for those persons whose rights have been violated or challenged. The right to judicial protection is realized through a set of procedural means that ensure fair justice and effective restoration of violated rights. Thus, the most important direction for improving the justice system is measures to ensure public confidence in the judiciary ”.
In conclusion, we can conclude that the assessment of the effectiveness of specific courts is carried out, first of all, by assessing the performance of the functions of justice. Consequently, the effectiveness of justice is an indicator of striving for the final result, but not the result itself, but the correctness, accuracy of the direction towards it. It is necessary to abandon the usual understanding of it as a simple relationship or coefficient. The meaning of the effectiveness of justice is expressed in the confidence of every member of our society for the obligatory, accessible, qualified, democratic, fair, as soon as possible, prompt consideration of his issue by the court.
In our opinion, the effectiveness of the activity of the Russian judicial system can be determined by the stability and trust in the regime of legal relations in the functioning of the totality of judicial bodies and institutions as a unified judicial system of the Russian Federation.
The following blocks can serve as evaluation criteria in determining the effectiveness of the judicial system:
a) independence of the judiciary: the independence of the court as an institution of power, and the independence of judges as bearers of power;
b) accessibility of the judicial system (implying the existence of conditions for the unhindered, as quickly as possible, citizens' access to justice services);
c) fast, fair and high-quality consideration of cases;
d) strict adherence to the procedural form.
The effectiveness of the judicial system cannot be considered in isolation from the system of state authorities in Russia. The criteria for its effectiveness are the implementation of the tasks of uninterrupted and high-quality justice, as well as its compliance with citizens' ideas about the democratic principles of organization.
Bibliography
1 See, for example: V.M. Savitsky Organization of the judiciary in the Russian Federation. - M., 1996; The Formation of the Judiciary in a Renewing Russia / Ed. B.N. Topornin. - M., 1997; Rzhevsky V.A., Chepurnova N.M. Judicial Power in the Russian Federation: Constitutional Foundations of Organization and Activity. - M., 1998; Boykov A.D. Third Power in Russia: Essays on Justice, Legality and Judicial Reform 1990-1996. - M., 1997; Stetsovsky Yu.I. Judicial Power: Textbook. allowance. - M., 1999, etc.
2 See for example: Judicial Reform: Results, Priorities, Prospects: Conference Proceedings (scientific report). No. 47. - M., 1997; Skvortsova Yu.V. Towards a solution to the issue of the application of civil and land law in the regulation of relations arising over land // Judicial reform in modern Russia and its impact on strengthening the judiciary: Scientific and Practical Conference. February 6, 2004 - SPb., 2004; A.V. Vystropova Development of constitutional justice in the Russian Federation // Materials of the All-Russian conference "Constitutional foundations of the judiciary" - M., 2004; Reshetnikova I.V. International trends in the development of courts // Judicial power in the Russian Federation: problems and development prospects: Materials of a scientific-practical conference. - Yekaterinburg, 2005, etc.
3 See, for example: Kolokolov N.A. Judicial power: about the existence of the phenomenon in the Logos. - M., 2005.S. 84: Foinitskiy I.Ya. Criminal Procedure Course. - SPb., 1996.S. 7; Lenin V.I. Full collection op. T. 36.S. 197; Vyshinsky A.Ya., Undrievich V.S. The course of criminal procedure. T. 1. - M., 1936.S. 22; Court and Justice in the USSR / Ed. B.A. Galkin. -M., 1981.S. 15.
4 Voskobitova L.A. Essential characteristics of the judiciary. - Stavropol, 2003.S. 83.
5 Marchenko M.N. Judicial lawmaking and judicial law. - M., 2007.S. 8.
6 Quote from: Baykin I.M. "Judicial Branch", "Justice" AND "Legal Proceedings" as legal categories// World judge. 2008. No. 9.P. 12.
7 Petrukhin I.L., Baturov G.P., Morshchakova T.G. Theoretical foundations of the effectiveness of justice (in criminal cases). M., 1979.S. 17.
8 See: A.A. Melnikov. The legal status of the individual in the Soviet civil procedure. M., 1969.S. 21 - 25; He's the same. Constitution of the USSR and problems of judicial law // Problems of improving civil and criminal law legislation in the light of the decisions of the XXV Congress of the CPSU and the new Constitution of the USSR. Vilnius, 1979, p. 126; Semenov V.M. Court and justice in the USSR. 2nd ed. M., 1984.S. 20.
9 See: A. V. Tsikhotskiy. Theoretical problems of the effectiveness of justice in civil cases. - Novosibirsk, 1997.S. 152-154.
10 Markov Yu.G. The functional approach in modern scientific knowledge. -Novosibirsk, 1982.S. 20.
11 See: A. V. Tsikhotskiy. Decree. slave. P. 143.
12 Tsikhotskiy A.V., Chernenko A.K. The judiciary under the new Constitution. - M., 1995.S. 24.
13 Cit. Quoted from: Fokov A.P. Commissioner for human rights on the tasks of the judicial system and on the protection of human and civil rights // Russian judge. 2006. No. 9.P. 3.
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