Ways to improve the Institute of World Justice in Russia

Losev Sergei Gennadevich PhD in Law Associate Professor; Department of Criminal Law and Procedure; Federal State Autonomous Educational Institution Tyumen State University 38 Lenin St., office 406, Tyumen, Tyumen region, 625003, Russia klop561@mail.ru Other publications by this author

Morozov Viktor Ivanovich PhD in Law Professor; Department of Criminal Law Disciplines; Tyumen State University 38 Lenin St., office 406, Tyumen, Tyumen region, 625003, Russia v.i.morozov@utmn.ru

The Institute of World Justice in modern Russia traces its history back to December 1998, when the law "On Magistrates" was adopted. This branch of the Russian judiciary carries a fairly high burden on the consideration of criminal, civil cases, as well as cases of administrative offenses. Thus, according to statistics from the Judicial Department of the Supreme Court of the Russian Federation, up to 50% of criminal cases, up to 75% of civil cases and up to 95% of cases of administrative offenses in Russia are considered by magistrates. Meanwhile, it can be stated that justices of the peace in their work face problems that, in our opinion, are systemic, generated, among other things, by the content of the legal norms underlying this institution. These include, firstly, the overburdening of magistrates with cases, the dependence of magistrates on the federal court system, primarily on district courts, as well as the detachment of society from the formation of this level of the judicial corps. One of the main problems in the work of magistrates is their overload. A Russian judge, including a justice of the peace, can rather be likened to an employee of a "legal pipeline" who adjusts the "blanks" of cases to the necessary standard cliches of court decisions.

The Higher School of Economics conducted research commissioned by the Judicial Department of the Supreme Court of the Russian Federation. Its purpose was to study the distribution and duration of the workload of judges and judicial staff during the consideration of cases. As a result of the study, the authors concluded that "judges adapt to the increased workload by increasing labor productivity and reducing the time required to consider a single court case. Justice is consistently turning into a conveyor production. Instead of protecting or restoring violated rights, courts are increasingly pursuing the goal of completing the process as soon as possible and making a decision according to a proven template"^[1].

Such a system of organizing the work of the courts, it seems, only undermines the authority of the judiciary.:

- participants in the proceedings from among the citizens, being eyewitnesses of the rush to consider cases, often perceive this as a disregard for their interests;

- The judges' workload obviously leads to the fact that judges often make mistakes in their decisions – no matter how experienced and able-bodied a person is, he still has a certain limit beyond which it is impossible to achieve a high-quality result.

It can be assumed that the problem of overloading magistrates is even more acute than the problem of overloading judges of the federal level of courts of general jurisdiction. This assumption is based on the fact that the number of justices of the peace is smaller, and the caseload is quite comparable to their workload. In particular, V.U. Khatuaev points out that magistrates have to consider 19 court cases per day, while citing the recommendations of the Ministry of Labor of 1996, according to which the time for consideration of one case should be 7 hours. 40 min.^{[2, p.9]}

It seems that the reason for the overload of the justice of the peace system is the inflexible implementation of the settlement principle of burden distribution between judges of the Justice of the Peace enshrined in the law "On Justices of the Peace".

In accordance with Part 4 of Article 4 of Federal Constitutional Law No. 188-FZ of December 17, 1998 "On Justices of the Peace in the Russian Federation" (hereinafter FKZ "On Justices of the Peace"), judicial districts where justices of the peace perform their duties are created based on the population living in one area from 15 to 23 thousands of people. If the population is less than 15 thousand, then one judicial district of the justice of the peace is created on this territory. Unfortunately, the norm governing the distribution of the burden on magistrates is far from perfect – part 6 of Article 4 of the law "On Magistrates" only governs, and does not oblige the chairman of the district court to distribute the burden among magistrates. It seems that the distribution of workload among judges is by no means an insignificant issue that can be left to the private discretion of the chairman of the district court.

Thus, the settlement principle has several disadvantages.:

- it does not take into account the real workload in the form of the number of cases in a particular area. At the same time, their number depends not only on the number of people, but also on the infrastructure facilities on the territory of the magistrate's precinct. Meanwhile, the office of an insurance company or bank, the presence of bars, restaurants and other crowded places can "generate" a considerable number of cases, significantly increasing the burden on one justice of the peace.;

- the settlement principle does not allow the formation of a "reserve" of judges who would perform the duties of reviewing cases during the absence of a judge who holds a position at a particular judicial site for the period of his vacation or illness. Therefore, there is a practice according to which the duties of reviewing cases are assigned to a judge of another precinct. As a result, a situation arises where an additional burden is placed on an already overloaded judge. Since the duration of the leave of magistrates is about 60 days, the judge is absent from his place for about 1/6 of the working time, even if he does not go on vacation for the entire period.;

It is also necessary to take into account the reform implemented in the system of courts of general jurisdiction, within the framework of which the courts of appeal and cassation were established. It is quite obvious that this system implements a fairly simple principle: one judicial link is one judicial instance. However, there remains an "anomaly" in the system of general jurisdiction courts - district courts, which combine the functions of both first and appellate courts: on the one hand, this link of the judicial system performs the functions of the first instance for a significant number of criminal, civil and administrative cases, on the other hand, it performs the role of the appellate instance for magistrates.

The dependence of magistrates on district judges is manifested in the following:

- performing the function of an appellate instance for magistrates, district courts can obviously influence the law enforcement practice of magistrates;

- in the existence of the institute of supervisors, when each of the magistrates is assigned to a specific judge from the district court, who actually turns into a superior.

Another disadvantage of the world justice system is that it is virtually completely closed to regional and equivalent courts of general jurisdiction, which enhances the effect of the so-called "regional justice", which consists in the fact that judicial authorities at the level of courts of territories, regions, and republics within the Russian Federation in some cases interpret the current legislation differently. As a result, significant discrepancies in law enforcement practice in various Russian regions are accumulating, which contradicts the principle of equal rights for Russian citizens regardless of their place of residence.

Thus, the justice of the peace of the judicial district of magistrates No. 56 of the Nerchinsky district of the Trans-Baikal Territory, E. Zaitsev, had to make decisions on administrative cases initiated under Article 20.25 of the Administrative Code of the Russian Federation, specifically stating that he did not agree with the legal position of higher authorities, but had to follow it. Thus, in the case of E., under Part 1 of Article 20.25 of the Administrative Code of the Russian Federation 06.02.2014, he issued a decision to terminate the proceedings in the administrative case due to the expiration of the time limit for prosecution, based on the three-month period of the proceedings. However, the Nerchinsk District Court, by its decision of 04/03/2014, overturned this ruling on the grounds that the statute of limitations for this category of cases is one year (case No. 12-11/2014)^[3].

Based on this decision of the higher court, on 05/08/2014, the justice of the peace nevertheless issued a ruling on the imposition of administrative punishment, however, specifically stating that "the justice of the peace is forced to accept the position of the district court and the explanations of the regional court, but does not agree with them" ^[4].

Having shown perseverance, the justice of the Peace appealed to the Constitutional Court of the Russian Federation and, at his request, he checked the rules governing the statute of limitations under Part 2st.20.25 of the Administrative Code of the Russian Federation, and on November 17, 2014, published definition No. 2323-O, where he indicated that there were no uncertainties in them, but it was possible to bring to justice no later than three months after the commission of the offense, and this issue has already been dealt with by the Supreme Court of the Russian Federation.

It seems that the creation of a system of cassation courts will help to correct such distortions, since willy-nilly the lower courts will obey the legal positions of the cassation courts if they do not want to "receive" a systematic cancellation of their decisions in the second instance. However, with regard to the current subsystem of world justice, it can be argued that the justice of the peace is still controlled by the federal courts of general jurisdiction. If control over the judicial activities of magistrates is transferred to the courts of appeal of general jurisdiction, they will be interested in adhering to their legal positions.

It should also be noted that the procedure for selecting candidates for the position of judge and appointing/electing justices of the peace to the position is undemocratic. The procedure for appointing justices of the peace is regulated by both the Federal Law on Justices of the Peace and the Federal Law on the Status of Judges.

In accordance with Article 6 of the Law "On Justices of the Peace", justices of the peace must either be appointed by the legislative body of state power of the subject of the Russian Federation, or be elected by the population of the relevant judicial area. However, to what extent are these provisions observed? In no region of Russia are magistrates directly elected by the population^[1]. All powers to appoint justices of the peace are concentrated in the representative bodies of the subjects of the Federation. The usual procedure for appointment to the post of justice of the peace includes the presentation of candidates for the position of judges by the chairman of the federal court of the subject of the federation^[2]. As A.S. Vrazhnov quite rightly noted, such an order of appointment of magistrates calls into question the principle of vertical separation of powers, leading to a mixing of the powers of federal and regional authorities^{[5, p. 18]}. It should be noted that this method of appointing magistrates actually turns the provisions of the federal constitutional law into fiction. It is not surprising that such an order of formation of the corps of magistrates destroys their connection with the region in which they work. According to N.A. Kolokolov, the justices of the peace interviewed in 2004 state that world justice is an exclusively formal institution, the federal judicial system is sufficient ^{[6, pp.6-7]}.

Thus, we can propose two directions for reforming the justice system.:

- Move towards federalization and democratization of the magistrate's court system

- move in the opposite direction towards further centralization of this system.

If we move towards federalization and democratization, then in this case it is appropriate to refer to the experience of Alexander II's reforms, thanks to which justices of the peace appeared. As you know, the result of these reforms was the creation of a justice of the peace system, which, in addition to the justices of the peace themselves, included honorary justices of the peace who could perform the duties of a justice of the peace during his absence, as well as congresses of justices of the peace who performed the functions of appeal.

If we move in this direction, it is necessary to remove magistrates from the system of federal courts of general jurisdiction, which requires the creation of an independent appellate instance for them.

As an option for implementing this proposal, a congress of justices of the peace of a constituent entity of the Russian Federation should be established, which should include all justices of the peace. It will be a periodically operating judicial authority of a constituent entity of the Russian Federation, and may perform elective, supervisory and other functions. In order to free the system of magistrates' courts from procedural control by city/district courts and complete the reform of the system of federal courts of general jurisdiction in the light of the "one link, one instance" principle, the functions of the appellate instance should be transferred to the permanent body of the Congress of Magistrates – the criminal, civil and administrative collegiums of the Congress of Magistrates, which should to form from among the most experienced and qualified judges who exercise their powers for more than one term. Such an organization of the world justice system will enhance its credibility and strengthen the relationship of magistrates with their own region. In addition, this will make it possible to relieve the burden on district courts and make the Russian court system more complete and logical based on the principle of "one link, one instance."

It may also be proposed to form a presidium of the Congress of Justices of the Peace, headed by the chairman, his deputies and other judges, who will direct the activities of all justices of the peace, organize their professional development, provide methodological support for the activities of justices of the peace, etc.

In our opinion, the functions of the cassation instance for magistrates should be transferred to the cassation courts of the Russian Federation, which will ensure the unity of law enforcement practice in many regions of the Russian Federation and independence in decision-making.

It is also necessary to introduce, along with the justices of the peace of judicial districts, the position of "reserve" judges for use as a reserve during the absence of a judge at his main place of work. Based on the approximate time of absence of judges at their workplaces, it is necessary to appoint such a number of them that 4-5 permanent judges come to one substitute (reserve). Thus, it is possible to reduce the burden on current magistrates by 20-25%.

What are the expected results from the implementation of these measures? We can expect a reduction in the workload of magistrates and district judges, an increase in the time to consider each case, an improvement in the quality of trials and judicial acts, an increase in uniformity in law enforcement practice by taking into account the decisions of federal cassation courts in the activities of magistrates, as well as an increase in the authority of world justice among the population.

And finally, if we follow the path of centralization, it is more appropriate to level the justices of the peace in jurisdictional rights with district courts, transferring the functions of appealing their decisions to regional courts of general jurisdiction and courts equivalent to them, or completely eliminate the institution of justices of the peace, increasing the number of federal district judges.

^[1]A.S. Vrazhinov came to the same conclusions, see Vrazhinov A. S. On the issue of the election (appointment) of magistrates//"Justice of the Peace". -2017. - No. 9.-pp. 16-19

^[2] The exception is the city of Sevastopol, where candidates for the position of magistrate are represented by the chairman of the district court, whose jurisdiction includes the judicial district of the justice of the peace.