The role of acts of the judicial community in the development of ideas about the moral and ethical status of judges

Klement'eva Veronika Igorevna ORCID: 0000-0002-9606-6324 Lecturer; Department of Civil Procedure Law; North-Western Branch of the Russian State University of Justice 197046, Russia, St. Petersburg, Alexandrovsky Park, 5 veronicka08@mail.ru

One of the tools for building a rule of law, implementing the principle of separation of powers and, as a result, the independence of courts and the independence of judges are the bodies of the judicial community. Their unique legal status is due to the provision by law of the authority to adopt legal acts covering various aspects of the organization of judicial activities and the status of judges.

Acts of the judicial community bodies as a separate legal phenomenon in Russian legal science have been left without due attention. At the same time, they represent an independent value, acting as a regulator of legal relations arising both in the areas of realization of the status of a judge and in the organization of judicial activity in general.

Despite the fact that at present the issue of the legal nature of the acts of the judicial community remains debatable, they are the result of the exercise of their powers by these bodies, from which their purpose and essence are reduced to the following.

1. The vast majority of acts contain prescriptions of a normative nature and are non-personalized rules (norms) designed for repeated application.

2. They act as an individual regulator of legal relations.

3. They are both informative and permissive in nature.

Thus, E.V. Burdina notes that acts of judicial self-government are an expression of the will of judges, adopted in accordance with the established procedure by the judicial community and enclosed in formally expressed prescriptions, through which the goals and objectives of their activities are achieved ^[1].

It is impossible not to agree with the opinion of M.I. Kleandrov, who draws attention to the binding nature of the acts under study for various subjects, including judges, court chairmen, court staff, citizens, etc. In his writings, he concludes that "these acts are not legislative, not judicial, especially not acts of application of the norms of law. The form of the act is important; it makes sense to call it judicial and legislative in order to emphasize its independent variety, and that is, it will be enshrined in the Constitution of Russia, such an act will be self-sufficient" ^[2].

At the same time, legal positions formed by judicial practice, according to which codified acts of the judicial community, for example, (codes) of judicial conduct are designated as corporate, can provide a certain guideline as an answer to controversial questions. Thus, in one of its rulings, the Constitutional Court of the Russian Federation stated: "The Bangalore Principles of Judicial Conduct provide that judges in their professional activities should devote themselves not only to the performance of judicial and official duties in court proceedings and in making decisions, but also to other tasks related to the activities of the court as a whole, including the organization of its work the device (clause 6.2). The requirements of Russian corporate norms operating within the judicial community are also consistent with international standards" [Resolution of the Constitutional Court of the Russian Federation No. 3-P dated 02/28/2008 "In the case of Checking the Constitutionality of a number of Provisions of Articles 6.1. and 12.1. of the Law of the Russian Federation "On the Status of Judges in the Russian Federation" and Articles 21, 22 and 26 of the Federal Law the law "On the bodies of the judicial community in the Russian Federation" in connection with the complaints of citizens G.N. Belyusova, G.I. Zimina, H.B. Sarkitova, S.V. Semak and A.A. Filatova" // Collection of legislation of the Russian Federation. – 2008. – No. 10 (2 hours). Article 976].

A similar position has been substantiated in the scientific literature that, by their legal nature, acts adopted by the bodies of the judicial community can be considered normative (as a corporate act), but they should be distinguished from normative acts in the generally accepted interpretation of this concept ^[3]. Returning again to judicial practice, an illustrative example of this approach is the definition of the Constitutional Court of the Russian Federation, which refused to accept for consideration a complaint from a citizen challenging the provisions of the Code of Judicial Ethics, focusing on the criterion of inadmissibility, in accordance with current legislation, of appealing such regulations [Definition of the Constitutional Court of the Russian Federation dated 07/18/2006 No. 310-O "On the refusal to accept for consideration the complaint of citizen Margarita Mikhailovna Zhelybintseva for violation of her constitutional rights by paragraph 2 of Article 3 and paragraph 1 of Article 12.1 of the Law of the Russian Federation "On the Status of Judges in the Russian Federation", Article 3 and paragraph 1 of Article 8 of the Code of Judicial Ethics" // SPS "ConsultantPlus". URL: https://www.consultant.ru / (date of access: 08/01/2024)].

It should be noted that in all the positions discussed above and other points of view presented in the literature, the incompleteness in the study of the legal nature of the acts of the judicial community bodies seems to manifest itself in an attempt to generalize various types of acts of these bodies. At the same time, attention should be paid not only to the act (document) itself, but also to the totality of such aspects as the target orientation and the body that adopted it (the All-Russian Congress of Judges, the Council of Judges of the Russian Federation, the Higher Qualification Board of Judges of the Russian Federation, the Higher Examination Commission for the admission of the qualification exam for the position of judge, etc.).

It is important to note that each body of the judicial community, by virtue of its independence, has the exclusive right to form and approve its procedural rules and regulations. Such rule-making powers are not subject to delegation to other subjects of judicial activity and consist in the implementation of tasks assigned to these bodies.

There is no doubt that the modern realities of state life give rise to a new look at the acts of the judicial community as a legal regulator of the moral and ethical status of judges in the Russian Federation. In this regard, the relevance of the study of the progressive development of ethical standards on the example of the activities of the judicial community bodies is seen.

As the scientists note, "the subject-oriented source of ethical principles is written internal acts, where ethical rules are structured and set out" ^[4].

The first single act uniting ethical rules of conduct, both in professional and off-duty activities, is considered to be the Code of Honor of a Judge of the Russian Federation adopted on October 21, 1993 by a resolution of the Council of Judges of the Russian Federation [Resolution of the Council of Judges of the Russian Federation of 10/21/1993 "On the adoption of the Code of Honor of Judges of the Russian Federation" // SPS "ConsultantPlus". URL: https://www.consultant.ru / (date of access: 08/01/2024)].

The second set of moral principles and norms is the Code of Judicial Ethics, approved on December 2, 2004 by the VI All-Russian Congress of Judges of the Russian Federation.

The Code of Judicial Ethics, approved by the VIII All-Russian Congress of Judges of the Russian Federation on December 19, 2012, is currently in force.

Along with the recognition of the Code of Judicial Ethics as the basis of ethical norms and rules of conduct, the Advisory Council of European Judges focuses on the active role of professional associations. Such associations should become a platform for discussing specific cases of judge behavior from the point of view of compliance with professional ethics and deontology, ensure wide dissemination of rules of conduct in judicial circles and their implementation.

The Council of Judges of the Russian Federation plays an important role in this process, which actively contributes to the development of ethical rules and, consequently, to the formation of ideas about the content of the moral and ethical position of judges ^[5]. One example is the recommendations of ethical standards of judges' behavior in social networks developed by him [Resolution of the Council of Judges of the Russian Federation dated 12/07/2023 No. 29 "On recommendations of ethical standards of judges' behavior in social networks" // SPS "ConsultantPlus". URL: https://www.consultant.ru / (date of access: 08/01/2024)]. The recommendations provide for the regulation of common standards for the use of the Internet by judges, the capabilities of other information and communication systems, ensuring the safety, independence, and impartiality of judges when using their professional powers.

As V.V. Ershov notes, "The Council of Judges of the Russian Federation and the councils of judges of the subjects of the Russian Federation provide valuable recommendations through the interpretation of the principles and norms of law" ^[6]. By adopting acts, they actively participate in overcoming gaps in the law, offering constructive solutions and directions for the further development of judicial activity and ensuring constitutional guarantees of the status of judges.

In this aspect, their activities are systemic in nature, in which individual regulation of legal relations prevails ^[7].

The Ethics Commission of the Council of Judges of the Russian Federation (hereinafter referred to as the Ethics Commission) sets one of the main tasks to implement the provisions of the Code of Judicial Ethics aimed at establishing standards of conduct for judges in professional and non-judicial activities that correspond to the public legal status of a judge. At the same time, the norms of the Code of Judicial Ethics assign her the advisory function of judges of courts of all levels and competencies in difficult ethical situations.

Of course, these tasks should also be solved by the regional councils of judges of the subjects of the Russian Federation and the specialized commissions created by them. The councils of judges of the courts, established by the general meeting of judges of the relevant court, also contribute.

Thus, it seems advisable to dwell in more detail on the legal nature of the acts of the Ethics Commission of the Council of Judges of the Russian Federation.

First of all, its quantitative performance indicators should be noted. So, in 2023, 43 appeals were received, 13 conclusions were prepared, 28 responses were prepared, and two appeals were withdrawn.

The key act is the conclusions. Despite their recommendatory nature, it is worth noting that it is in them that the position of the body of the judicial community is formed, developing the doctrine and practice of judicial ethics.

Interestingly, in the text of each conclusion, the Ethics Commission draws the applicant's attention to the need to independently give an objective assessment of his actions in terms of their compliance with the requirements of legislation regulating the status of a judge and the requirements of the Code of Judicial Ethics,

The research conducted by the author on the results of the work of the Ethics Commission for 2023 made it possible to identify the following areas of its work.

1. Consideration of issues on the possibility of engaging in certain types of activities in accordance with paragraph 4 of Article 3 of the Law of the Russian Federation dated 06/26/1992 No. 3132-1 "On the Status of Judges in the Russian Federation" (hereinafter – the Law on the Status of Judges).

2. Attribution of the judge's activities to creative, scientific and teaching.

For a judge, the opportunity to engage in pedagogical, scientific and other creative activities, including on a paid basis, is not limited. An important factor is the source of financing for a particular type of activity.

Since the Law on the Status of Judges and the Code of Judicial Ethics do not specify the semantic content of the concepts of "pedagogical", "scientific" and "creative" activities that a judge is allowed to engage in, the Ethics Commission relies on definitions enshrined in legal acts regulating the relevant sphere of legal relations. For example, these are Federal Laws dated 12/29/2012 No. 273-FZ "On Education in the Russian Federation", dated 08/23/1996 No. 127-FZ "On Science and State Scientific and Technical Policy", Fundamentals of Legislation of the Russian Federation on Culture dated 10/19/1992 No. 3612-1, approved by the Supreme Council of the Russian Federation, etc.

Thus, as one of the guidelines for classifying activities as creative, the Ethics Commission refers to normative acts regulating professional activity in a specific area of labor relations. Considering each individual appeal, the Ethics Commission applies qualification reference books, professional standards and the all-Russian classifier of types of economic activity, which allow determining the content of a particular professional activity based on the description of the work performed.

In one of the conclusions, the Ethics Commission expressed a position on the expediency of a retired judge to refrain from taking photographs on a paid basis, since the photographer's activity cannot be classified as creative due to systematic profit-making [Conclusion of the Commission of the Council of Judges of the Russian Federation on Ethics dated 02.10.2023 No. C/CE-10 "On the right of a judge staying in retired, carry out the activities of a photographer using a special tax regime "Tax on professional income" // Official website of the Council of Judges of the Russian Federation. URL: http://ssrf.ru / (date of access: 08/01/2024)]. A similar point of view was adopted for interior design [Conclusion of the Commission of the Council of Judges of the Russian Federation on Ethics dated 05/24/2023 No. C/CE-6 "On the right of a retired judge to work on a paid basis as an interior designer or interior decorator" // Official website of the Council of Judges of the Russian Federation. URL: http://ssrf.ru / (date of request: 08/01/2024)].

In 2023, the Ethics Commission considered an appeal related to the judge's ability to post his scientific and legal publications in the Yandex and Telegram web applications [Conclusion of the Commission of the Council of Judges of the Russian Federation on Ethics dated 05/24/2023 No. C/CE-4 "On the judge's ability to post scientific and practical publications on legal issues on the Web-Yandex and Telegram applications // Official website of the Council of Judges of the Russian Federation. URL: http://ssrf.ru / (date of request: 08/01/2024)]. In conclusion, it was concluded that writing articles on legal topics by a judge in his spare time with their subsequent publication, including on non-prohibited Internet sites, is an activity related to the development of law and legislation, and is permissible from the point of view of the Law on the Status of Judges.

3. The presence or absence of a conflict of interest.

The Ethics Commission consistently adheres to the position that the impartiality and objectivity of a judge involved in the consideration of a case, in the absence of formal circumstances precluding his participation due to the requirements of procedural legislation, is presumed and should not be questioned in the absence of strong evidence to the contrary. In each specific situation, the existence of a judge's personal interest should be confirmed not by abstract assumptions, but by real facts and relationships that can influence the judge's performance of his official duties.

In one of the appeals, the question was raised whether judges considering cases should inform the participants in the case that relatives work for the chairman of the court in an organization that participates in court sessions on cases with judges of the relevant court. The principle of independence of judges is manifested not only in external relations, but also in relations in court, including independence from the chairman of the court, other colleagues in the consideration and resolution of the case. Therefore, in the opinion of the majority of the commission members, judges do not have such an obligation.

The generalization showed that the issues of the legal nature and the role of acts of the judicial community in the system of legal regulation of the legal status of a judge and, in particular, judicial ethics, are poorly researched and debatable ^[8].

The presence of the features of the acts of the councils of judges indicated in the article indicates that in the current conditions they increasingly play the role of a regulator of public relations in the field of judicial activity, becoming a necessary and integral element of the judiciary and one of the signs of the proper administration of justice. These aspects require a deeper analysis, which should be carried out in the context of the content of judicial self-government and the legal nature of the judicial community, since the former are derived from the latter.

The author sees the prospects for the development of the issue under study in the need to differentiate the acts of the judicial community into normative and individual ones. Accordingly, each of them requires legislative consolidation of its legal nature. The first ones are like by-laws, giving them formal certainty and their inherent binding nature. The latter should be attributed to law enforcement acts, taking into account the peculiarities of the authority of their prescriptions and legal force.

Each act adopted by the judicial self-government bodies is a clear example of the involvement of the judicial community in the implementation of the principles of ensuring the independence of the court and the independence of judges. At the same time, the results of the activity of the councils of judges have a significant impact on the formation of uniform law enforcement practice in the context of normative and individual regulation of judicial activity.