Midkhat Kurmanov – Chairman of the Permanent Commission on the Legislation, Lawfulness, Regulations and Deputies' Ethics, State Council of the Republic of Tatarstan

Judicial System in Russia: a Perspective from Tatarstan

The Federal Constitutional, and the Federal Law touching upon the judiciary system have been passed quite recently and cannot be called procommunist. Thus, the Federal Constitutional Law ``Concerning the Judiciary System In The Russian Federation``, for example, was passed in the year 1996, the Federal Law ``Concerning the Judges’ Status in the Russian Federation`` - in the year 1992, five amendments have been brought in since then, and now – with the year 2000 amendments – it is in power. And the Federal Law ``Concerning the Judges of Peace in the Russian Federation`` was passed only in the year 1998.

The above-mentioned laws also determine the powers of the representative organs of government in the Russian regions in the area of forming the judiciary power of the Russian Federation. The powers of the State Council in the Republic of Tatarstan and the representative organs of government in the Russian regions are determined with reference to both federal judges and judges of peace. In appointing candidates to the position of federal judges of cities and districts and the judges of the Supreme Court in the Republic of Tatarstan, the function of the State Council is determined by the Federal Law ``Concerning the Status of Judges in the Russian Federation``, in which it is said that ``Judges are appointed in accordance with the opinion of the representative organ of government in a Russian region``, and the federal constitutional law ``Concerning the judiciary system of the Russian Federation`` has consolidated the right of the State Council ``in giving consent`` to appointing the judges. The coordination procedure is reflected in the standing orders of the State Council of Tatarstan and consists in the following: the candidatures of judges are put forward to the State Council of Tatarstan by the chairman of the Supreme Court of the Republic; the candidatures are preliminary debated at the sitting of the Permanent Legislation, Lawfulness, Standing Orders and Deputies’ Ethics Commission of the State Council, and later on – following the recommendations of the Commission – the candidatures are debated at the sitting of the State Council. The latter determines its attitude towards a candidature with the help of voting.

You might ask me whether there have ever been cases where the State Council hasn’t submitted a candidature to the approval of the permanent Commission. True, there was just one case in five years. In other federal subjects the refusal cases are far from being a solitary instance. Thus, in the Republics Bashkortostal and Komi for instance, judges with ten-year experience haven’t got the consent to their life-long approval. As one of the ‘victims’ has appealed, the Constitutional Court of the Russian Federation has considered the precedent. On December, 21 by decision ¹252-0 “Concerning the consideration refusal to S.A. Iurkin’s complaint about the violation of his constitutional rights by part 6, article 13 of the Federal Constitutional Law “Concerning the Judiciary System in the Russian Federation”, and article 6 of the Russian Federal Law “Concerning the Status of Judges in the Russian Federation”, the Constitutional Court decided that the Chairman of the Supreme Court of the Russian Federation and the President of the Russian Federation, even in the case of the coordination refusal by the representative organ of the government in a subject of the Russian Federation, are in power, accordingly, to recommend and appoint the given candidate as a judge. A question arises: do we need the coordination procedure at all? True, there might be such cases where a deputy votes against the recommended candidature coming from some personal motivation, unfairly (the judge hasn’t complied with the deputy’s application, or for example the deputy is acting as a social defender and thinks that his client has been unfairly condemned). As far as the problem is concerned, still one shouldn’t ignore the opinion of the representative organs of the government in the subjects of the Russian Federation. Furthermore, the latter shouldn’t be deprived of the coordination function since there has been the process of the judiciary system reformation.

It is planned to include several candidates from the representative organs of the government of a subject of the Russian Federation into the qualified collegium, but if you ask me, the statement seems to be in controversy with the Constitution of the Russian Federation, in point “d”, article 72 of which it is clearly said that “The cadres issues of the judiciary, law-defending organs” are domain of the Russian Federation and of its subjects.

After the coordination procedure the Chairman of the Supreme Court passes on the materials about a candidate to the President of the Russian Federation for appointing the candidate by the President’s Decree. Up to 6% of the recommended candidates are generally not appointed. There has never been such a case in Tatarstan. This proves the fact that the recommended candidatures do meet the requirements of the law.

I would like to dwell on two points connected with our practical work. The candidatures of the federal judges of the city and district courts are coordinated at the sitting of the so-called “small parliament” – 28 deputies elected for the permanent work at the State Council of the Republic of Tatarstan. When amending the Constitution of Tatarstan it was suggested by me that the candidatures should be coordinated during the plenary session – the sitting of 130 deputies – in order to take into consideration the opinions of all the electors in the republic.

The second point. When should the candidate start administrating the law? The answer to the question is obvious: he/she should start administering the law after the President of the Russian Federation has signed the Decree. Nevertheless, our judiciary experience demonstrates that there have often been cases where some candidates start administering the law right after the coordination procedure has taken place. The criminal and civil cases considered by these candidates have been later submitted for reconsideration.

The Judges of Peace play an important role in the republic. On the grounds of the Federal Law “Concerning the Judges of Peace in the Russian Federation” the State Council has passed its own one. The judges of the Peace form part of the judiciary system of the Russian Federation and are judges of the general jurisdiction of the subjects of the Russian Federation. There are 168 subjects in this country and 149 Judges of Peace have been elected by now. After having been elected by the State Council, they are allowed to administer the law, and there is no necessity of approval by the Decree of the President of the Russian Federation. The financial stimulation of their activities is carried out on the basis of the federal budget, but the office building, secretaries, consultants, and the technical staff are financed at the expense of the republican budget. The institution of the Judges of Peace has been introduced in 6 subjects of the Russian Federation.

A question is bound to arise: do we need the Judges of Peace? Or we should have solved the problem of judges’ overworking in some other way – by increasing the number of the federal judges, for example? The judge of a district court, who usually considers 3 cases a day, is certainly not able to provide to the utmost an objective and fair consideration, but at the same time the simultaneous introduction of all the new Judges of Peace in the republic will definitely affect the quality of the cases being considered.

Some words on the inviolability of the judges. The judges shouldn’t certainly be endowed with the administrative inviolability. He/she can’t be relieved of the administrative responsibility for the violation of the traffic, hunting, fishing rules. We should all be equal in front of the law. The jurist and moreover, the judge who is called up for providing lawfulness mustn’t be endowed with inviolability. The endowment would be equated with saying to the judge: “You are allowed to violate the law and you’ll take no responsibility”. Is that fair?

In the judicial reform much attention is paid to the criminal procedure code, which has been passed after two readings. It is the arrest problem that causes quite a number of heated discussions. I have carefully studied the decision of April, 2, 2001 ¹91-0 by the Constitutional Court of the Russian Federation “Concerning the Consideration Refusal to S.V. Posokhov’s Complaint About the Violation of his Constitutional Rights by Articles 90 and 122 of the Criminal Procedure Code”. S.V. Posokhov is arguing the right of the counsel for the prosecution to sanction the arrest. S.V. Posokhov points out that according to the Constitution of the Russian Federation only the court can be endowed with this right. It is said in the decision that the court can be endowed with the right only after the federal constitutional law has been passed. Unfortunately, the Constitution of the Russian Federation was passed 8 years ago, thus, the law should have already been passed within this time. Referring to some conclusive and transitional points, the counsel for the prosecution reserves this right, whereas the citizens are not allowed to realize what is guaranteed by the Constitution.

I would like to say some words on bringing into line the legislation in the subjects. I would rather name this process in some other way. Is this a ‘one-way’ process? I would rather call it a process of conformation of the legislation. There are some people in this conference-hall who have been part of the coordination commission of the Republic of Tatarstan and Privolzsky Federal District, and who can confirm that our local and federal legislation conformation procedure brings great benefits even without judiciary decisions, without the protests of the counsels for the prosecution.

I would also like to comment upon the procedure of calling to account subjects of the Russian Federation for violating the federal legislation. The calling to account is provided by the Federal Law “Concerning the General Principles of the Organization and Functioning of the Representative (Legislative) and Executive Organs of the Government of the Subjects of the Russian Federation”. As I see it, when the bill was being debated, one didn’t take into account the situation with the organs of the government in the subjects of the Russian Federation. Please, imagine that there is the decision of the Supreme Court of Tatarstan proclaiming the law of the republic to be in controversy with the federal legislation and, thus, invalid. The representative organ of the government in a subject of the Russian Federation has to bring the burden law into line with the federal law in 6 months. This point, by the way, contradicts article 239 of the civil procedure code of the Russian Federation, which says that even in the case of the decision to acknowledge a bill to be invalid, it is one month that is given for the execution of the decision. I think that the bringing into line procedure makes the representative organs of the government in the subjects of the Russian Federation unequal in their positions. There is no necessity in making any decisions by the representative organ of the government. Neither the law, nor decision functions. This is certainly a new theoretical problem, and thus, it would be possible to express some other viewpoints.