Creating a Unified Supreme Court in Russia: Expectations and Consequences

Vladimir V. Yarkov, Doctor of Law, Professor, Head of Civil Procedure Department,Ural State Law Academy, Yekaterinburg, Russia

The article is devotel to the analysis of some particular aspects of creating a unifi ed supreme court in Russia with the emphasis on issues of ensuring uniformity of judicial practice, implementation of the right to judicial protection within a unifi ed court system.

Key words: a unifi ed supreme court in Russia; courts of general jurisdiction; commercial courts; uniformity of judicial practice; the right to judicial protection.

The  issue of a structure of the judicial authority has been the subject for discussions since the early 1990s, when in 1991 the three-link judicial system was formed in Russia. It included the RF Constitutional Court, general jurisdiction courts, and  commercial courts. That period demonstrated a gap between the actual state of the judicial system on the one hand, and the demands of the society and new economy, on the other hand. Its consequences are still being overcome now. I regard the creation of an independent system of commercial courts  as a answer  to the questions raised by the economic and political reforms of that time. Various authors from the very beginning spoke ambiguously on the question of an ideal judicial structure, which is confirmed by the documents of discussions.[1]  

As we know, the uniformity of the judicial system may be linear and functional. Linear uniformity implies a common  unified center; and functional uniformity is based on general principles of the judiciary and judicial proceedings, a uniform status of judges and their judicial acts, and other common characteristics.

The three-link judicial system in Russia helped to complete several tasks. First,  there was a specialization of judges and courts. Second, there was some sort of competition between courts that identified different level of their development, depending upon how their heads understood the alternatives for accomplishing the objectives of a corresponding judicial authority. Third, different levels of the development of various judicial systems made it possible to find the best solution to a  problem, test it, check it empirically , and then  introduce it within another system.

In 2013, a decision was taken to unify the judicial system by way of merging the Supreme Court with the Supreme Commercial Court, while the RF Constitutional Court remains independent. On 21 June 2013, Russian President V.V. Putin came up with this proposal at the plenary meeting of St. Petersburg International Economic Forum:

“In order to ensure uniform approaches to the resolution of disputes involving both individuals and organization, as well as disputes with state authorities and local governments, we propose to combine the Supreme Court of the Russian Federation and the Supreme Commercial Court, and to achieve that it would be necessary to amend the Russian Constitution. That is a serious issue, and we must consider and analyse all aspects carefully.

I am asking the Presidential Executive Office, representatives of the judiciary and the Parliament to join efforts in this work. I am asking you to prepare this issue in time for consideration during the autumn session. The draft law will be submitted to the Parliament in the near future”.[2]

Evaluating the creation of the unified Supreme Court of the Russian Federation, we should stress that the main stage here is that  of implementation of a particular idea in the sphere of the judicial structure that may lead either to positive results or negative consequences. Such reorganization should retain the separation of the commercial courts within the limits of the unified judicial system and all positive experience over 22 years of their independent  operation. The specialization of the economic jurisdiction is necessary, and it exists nearly everywhere in various forms. Judicial organizations in different countries are also different.

As to common interpretation and implementation of the legislation, ensuring the  uniformity of court practice is an ongoing process, and  not a result. Hegel wrote that in private law, the “so-called ‘completeness’ is a perennial approximation to completeness …”[3] The uniformity of court practice cannot be reached by the mechanical merging of two higher judicial bodies. Social administration is rather complicated. First, an organizational and judicial system can hardly be 100% efficient. Second, the effects of such decision, positive or negative, will be seen only after a certain period of time.

 

Initial factors and directions for further development of the judicial system. 

1. Some scholars (including me)  stated that there is no equality before the courts in Russia now, as there are, in fact, two subsystems of justice in civil cases – commercial courts and general jurisdiction courts – that function according to different rules and have different levels of access and convenience for “consumers”. The first system is more modern and convenient. It adjudicates disputes with the participation of entrepreneurs. The second system “provides services” to all other people in more modest conditions. There is a Russian saying: if it were not for bad luck, I would have no luck at all. So, there is a motive to even out the development level of all the courts within the limits of the uniform judicial system, mainly in information technologies and a number of other matters. This is a complex task as the systems of general jurisdiction courts and commercial courts differ in the number of courts, judges, types of “consumers”, and some other factors.   The high level of “e-filing” in the commercial courts should be retained and expanded to  the general jurisdiction courts as well.

2. Over the last years, substantial  changes have been made to the RF Commercial Procedure Code and the RF Civil Procedure Code. These changes  have  led to some  modernization, mainly of the RF Commercial Procedure Code, on the one hand, but on the other hand, they have resulted in  the growth of imbalance and contradictions in the procedural legislation. The improvement of the two Codes is almost    parallel, with incorporation of some institutions from each other. In the 1990s, some of the institutions were borrowed by the Commercial Procedure Code from the Civil Procedure Code , and in the XXI century, the Civil Procedure Code incorporated some institutions from the Commercial Procedure Code. This process gives grounds to ask a practical question on reasonability of having two parallel procedural codes that uniformly regulate  similar matters. The drafting of a theoretic model of the Civil Procedure  Code^[4] is desirable, though there is no need to do it right now.  

Such a uniform Civil Procedure Code could regulate the rules of adjudicating all civil cases irrespective of their subject-matter jurisdiction (general jurisdiction courts or commercial courts). There are a lot of  positive aspects in this  recommendation of E.V. Slepchenko whether there is will to put it to  practice or not. The results of academic  research held during the last years prove that incorporation of traditional procedural institutions into the normative material of commercial procedure law shows their inter-branch character, as they coincide in their basic components. The institutions of judicial acts^[5], establishment of legal facts[6], challenge against the activities of court bailiffs[7], jurisdiction, court expenses, evidence and many others[8] were characterized as inter-branch ones.

Many other institutions of civil procedure and commercial procedure legislation are inter-branch institutions. They are similar in many aspects. Sections VII of the Civil Procedure Code and the Commercial Procedure Code; Chapters 46, 47of the Civil Procedure Code and Chapter 30 of the Commercial Procedure Code; Chapter 45 of the Civil Procedure Code and Chapter 31 of the Commercial Procedure Code are similar to a great extent. Basic principles of the structure and the judicial procedure of  commercial courts and general jurisdiction courts are inter-branch as to their names and contents. The logics of law-making process, and the need to guarantee the equality before the law and the court determine the reasonableness of uniform approaches to the same institutions of civil judicial procedure.  

Another important fact is that the project of the Administrative Procedure Code is being discussed by the State Duma. Its approval will raise a question about separation of judges, composition of judicial panels or courts that try cases arising from public legal relationships. Such specialization has been considered in the system of commercial courts, which include collegiums on cases arising from private and public law on all levels.

3. The reform will hardly stop with creating the unified Supreme Court of the Russian Federation.  The models of appeal, cassation, and supervision in the system of commercial courts and general jurisdiction courts do not coincide. So, the model of the systems of reviews in the newly formed unified Supreme Court of the Russian Federation is under question. This can result in reconsidering the system of review in lower courts. Besides, the RF Supreme Court will also serve as a trial court. But, the models of civil and administrative civil procedure differ in these courts. The merger of the supreme courts will not solve problems of the subject matter  jurisdiction. They will be transformed into the matters of competence among courts within the limits of one judicial system. The matter of approach taken as the basis for the merger of judicial proceedings and other procedures of case movement is very important. There may be two approaches: the approach of the Civil Procedure Code and that  of the Commercial Procedure Code.

4. The outlines of the new judicial organization and “the case flow capacity” of the RF Supreme Court. As it is seen from the structure of the new RF Supreme Court, the competence of the RF Supreme Commercial Court will  go over to the judicial collegiums on economic disputes and possibly to the judicial collegiums on administrative and civil cases. According to Art 10 of the Federal Constitutional Law “On the Supreme Court of the Russian Federation,” the judicial collegium will have cassational authority which corresponds to the model of the RF Civil Procedure Code (it provides for two cassations) but not to the model of the Commercial Procedure Code. The new Supreme Court of the Russian Federation contains a certain relative  analogy to the French judicial structure as each chamber of the French Court of Cassation exercises judicial authority, which is exercised by plenary meetings of judges (l’assemblée plénière) in the Court of Cassation in exceptional cases.

Thus, the system of commercial courts will have the second cassation over the judicial acts of commercial courts of okrugs that will help to form the uniform court practice on economic disputes through independent court panels. Only Presidium of the RF Supreme Commercial Court exercised judicial powers. Other judges in judicial panels acted as “a filter” to solve the issue of admissibility of the supervisory appeal and possibility of submitting it to the Presidium of the RF Supreme Commercial Court.

Consequently, the new system of  case movement in economic disputes will include not four but five instances, as it follows from the new legislation:

first instance (Commercial Court of the RF constituent entity) –

appellate instance (Commercial Court of Appeal) –

first cassational instance (Commercial Court of okrug) –

second cassational instance (Judicial Collegium of the RF Supreme Court) –

supervisory instance (Presidium of the RF Supreme Court).

The second cassational instance will be an additional filter between the Commercial Court of okrug and the Presidium of the RF Supreme Court. Is it reasonable to have two cassations for the commercial courts? Here we see the same approach that is used in connection with judicial acts of general jurisdiction courts.

In fact, cassation in the RF Supreme Court is supervision. Cassational appeal is accepted in the system of general jurisdiction courts because there is a principle of acceptability.[9] Thus, judicial collegiums, such as the second cassational instance in the RF Supreme Court, will act as supervisory bodies regarding judicial acts of the commercial courts. The RF Supreme Court accepts a cassational appeal only after the Court  decides that it is admissible. Two judicial supervisory bodies appear in the new RF Commercial Court  in regard to the acts of commercial courts. All the said will possibly favor the increase in the number of economoic cases tried by the new RF Supreme Court.

5. Some  judicial statistics. This is statistical data of the work of the Presidium of the RF Commercial Court and judicial collegium on civil cases, and the Presidium of the current RF Supreme Court over the first six months of 2013. The statistics is interesting because it shows the civil cases workload of two independent judicial systems before the decision on merging two supreme courts.

According to the information from the RF Supreme Commercial Court, the RF Commercial Court recorded 11968 supervisory appeals,  refused 9365 appeals, and the Presidium of the RF Supreme Commercial Court tried 249 cases  in the exercise of the supervisory power.[10] The Justice Department notes that the RF Supreme Court examined 296 civil cases on appeals and submissions.[11]

The civil cases workload of the Presidium of the RF Supreme Court turned out to be at the lowest possible level. The Report on the work of the RF Supreme Court examining civil cases in the exercise of supervisory power over the first half of 2013 shows that the RF Supreme Court recorded 359 appeals and submissions, though the Presidium of the RF Supreme Court considered only one civil case.[12]

The said can be possibly explained by the following facts: first, the RF Supreme Court is the supreme body of the judiciary on civil, criminal, and administrative cases, and second, the Judicial Collegium on Civil Cases of the RF Supreme Court tries the majority of cassational appeals.

6. Conclusions. The judicial statistics shows that the role of the Presidium of the current RF Supreme Court in forming judicial practice on civil cases is far from being obvious. The Presidium of the new RF Supreme Court, which will be the highest judicial authority for the two former independent judicial systems, will be able to give guidelines on judicial practice in economic disputes and in civil cases if its “case flow capacity”  is wider. This is not possible without changes in its work.  Whether it is possible  is the matter of work organization in the RF Supreme Court. The legislation does not limit the number of sessions of the Presidium. The Presidium may meet once a month, once a week, or even more often.[13]

Only Judicial Collegium on Economic Disputes in the new RF Supreme Court will be able to perform the basic function of providing the uniformity of judicial practice. The Collegium will possibly be able to do it together with the collegiums on civil and administrative cases, depending upon the division of powers between them. Active work of various court panels within judicial collegiums of the RF Supreme Court will also be necessary for widening the “case flow capacity” of the new RF Supreme Court.

The judicial statistics proves that  such an approach can be implemented. The number of the civil cases tried by the Judicial Collegium on Civil Cases of the RF Supreme Court (296) and by the Presidium of the RF Supreme Commercial Court (249)[14] over the first half of 2013 is nearly the same.

The Presidium of the RF Supreme Commercial Court tried fewer cases than the Judicial Collegium of the RF Supreme Court. However, an advantage of the Supreme Commercial Court  is that it has a great amount of “negative” decisions, which are available to public. They also form and direct the judicial practice on economic disputes. “Negative” cassational and supervision decisions of the RF Supreme Court judges should also become publicly available. This will contribute to the transparency of justice and encourage the uniformity of judicial practice.

7. What would come next? Integration and/or separation of two highest courts does not cancel the movement towards main directions that have been the subject of program documents and discussions over the last years. 

There are cases that overload courts, at the same time positively showing the growth of the judicial statistics though in fact they  do not contain real  disputes to consider. The most important thing (not to miss the wood for the trees) is to exclude them from the judicial field. The judicial system, as well as the judges, encounter an increased caseload, and the quality of justice may worsen. 

Many cases should not be taken to courts at all. They can be incorporated in the sphere of justice system only in the form of subsequent, and not of preliminary, control. Judicatory civil orders and summary proceedings fall within the system of preliminary judicial control. How justified is the movement along this direction, in any case preserving the system of preliminary (not subsequent) judicial control, i.e. preserving the current level of caseload on judges and on the judicial system as a whole?

8. What are the ways guaranteeing the uniformity of the judicial practice? They include various legal and organizational  means. We shall speak about three of them. First, the uniformity of the judicial practice can be guaranteed if the legislation is stable. Constant non-systematic changes of substantive and procedural law  during  previous years make the solution of this task impossible as they create differences in the approaches of the first, appellate and cassational instances in various regions of our country.  The regions differ in culture and mentality. The higher judicial instances need years to form their positions on a particular matter of judicial practice, as it takes long for the case to be taken to that instance. 

The changes in the legislation must be predictable and transparent. They should be made on the basis of concepts that have been developed in the  constituent entities of the Russian Federation, expert and scientific communities. Meantime, many legislative innovations are nonsystematic, and as a result,  the enacted laws are unenforceable. They are amended before enforcement to correct the mistakes made during their enactment.

Second, the organization of the judiciary must contribute to the uniformity of the judicial practice. Meanwhile, this is not possible within the limits of the existing  organization. There are 20 appeal courts and 10 cassational courts in the system of commercial courts. Sometimes their practice may differ. At the same time, its publication and informational availability creates good  prerequisites for  practices in similar cases. 

Besides, the new system of the commercial procedure based on five instances, four of which are  review instances, will hardly contribute to the stability of judicial practice. Low case flow capacity of the second cassation and the supervision will “save” the situation because the time for filing cassational and supervisory appeals is limited. 

The situation is more complex in the system of general jurisdiction courts. There is no cassational tier of interregional level, and 83   Russian Federation subjects (constituent parts) have their own practice in the regional courts performing appeal and cassation functions

The situation with appeal practice regarding judicial acts of justices of the piece is more complicated. There are 2198 district courts in Russia where 16331 judges work.[15] So 2198 district courts and several thousands of judges of district courts can be said to exercise appeal functions in regard to  justices of the peace judges (many of them conduct criminal proceedings; and only one judge can examine appeals in the courts with a low caseload). Is it possible in such conditions to speak about the uniformity of the appeal practice (regarding the decisions taken by the justices of the piece) of 2198 Russian courts that work relatively independently from each other? This problem needs special and thorough examination. The possibilities to solve  it are within the limits of organizational and structural spheres.

Third, in order to ensure stability and smooth transition from two highest courts to the unified Court, the right thing to do would be to give explanation  (as one of the first  Decrees of the new Supreme Court Plenum) on retaining  the practice  of the former highest courts in the form of Resolutions of the Plenum and the Presidium and informational letters before the new practice of the new RF Supreme Court is formed. In 1992, the explanations of the Plenum of the USSR Supreme Court were  gradually replaced by new explanations of the Plenum of the RF Supreme Court.

9. The top-priority steps. There are many top-priority steps, but the most  important are the four ones. First, as there is an additional cassational instance (Judicial Collegium on Economic Disputes of the RF Supreme Court) in the commercial procedure, then there is a need to regulate the process of applying to that instance by interested parties and of considering the cassational appeals. Chapter 35 of the Commercial Procedure Code is used for trying cases in the okrug commercial court and can hardly be used for examining cassational appeals in the unified RF Supreme Court. So, there is a need to introduce a special chapter into the Commercial Procedure Code, with this  new chapter dealing with the examination of cassational appeals in the Judicial Collegium on Economic Disputes of the new highest court. The direct reference to Chapter 41 of the Civil Procedure Code will hardly be acceptable. 

Second, the model of the supervision hearing in the new RF Supreme Court is not clear (the model of Chapter 41.1 of the Civil Procedure Code or the model of Chapter 36 of the Commercial Procedure Code). The said chapters differ in a number of important characteristics, including the initiation of proceedings. Chapter 36 of the Commercial Procedure Code needs reforming as the new RF Supreme Court will start its work on 6 June 2014. Its activities should be procedurally regulated.

Third, similar questions will arise during the examination of economic disputes in the RF Supreme Court as a court of first instance (at present – Part 2 Art 34 of the Commercial Procedure Code). It  will be more correct to try economic cases in the RF Supreme Court acting as the first instance according to the rules of the Commercial Procedure Code, and all other cases – according to the rules of the Civil Procedure Code.

Fourth, in connection with the establishment of the Unified Commercial Court of the RF, the questions of competence differentiation between the courts of general jurisdiction and commercial courts are likely to become questions of jurisdiction. In this respect, we can hardly say that the existing practice of refusing  to take a case for consideration by general jurisdiction courts (para 1 Part 1 Article 134 of the Civil Procedure Code) or to cease the proceedings (Article 220 of the Civil Procedure Code, para 1 Part 1 Article 150 of the Commercial Procedure Code) because the court found itself incompetent is positive. The interpretation of para 1 Part 1 Article 129 of the Commercial Procedure Code on the return of a claim because the commercial court has no jurisdiction over the case while the court of general jurisdiction does is unlikely to be the right interpretation.

It would be more reasonable to apply provisions of Article 39 of the Commercial Procedure Code and Article 33 of the Civil Procedure Code (after some changes made) which, according to the existing legislation, provide for a possibility to refer a case from one court to another within each of the judicial systems. But since the court system becomes unified, this gives another opportunity to solve the dispute when it does not fall within the jurisdiction of either general jurisdiction courts or commercial courts.

The most important thing in such an approach is to answer the question: what is the nature of the right to a legal remedy under Article 46 of the RF Constitution have? Is such a right universal and non-divisible or  are there  separate remedies in a commercial court, in a court of general jurisdiction and the Constitutional Court of Russia, depending on a judicial body?

We think that the meaning of constitutional and legal regulation is to establish a universal right to a legal remedy irrespective of the type of a judicial body, and the rules for applying to this body must be clear and certain. Therefore,  the right to a legal remedy is an absolute right of a  person and it does not depend on the type of a judicial body existing in our country as well as on the problem of competence differentiation among different courts. Thus, the rules concerning the jurisdiction differentiation between courts of general jurisdiction and commercial courts were repeatedly reformed during the first decade of the XXI century: in 2002 - when the new Civil Procedure Code and the new Commercial Procedure Code were adopted; in 2009 – when there was an anti-raiding reform of corporate legislation (Federal Law No.205-FL dated July 19, 2009). Article 29 of the Commercial Procedure Code has recently been changed three (!!!) times (in 2010, 2012 and 2013) and concerned the jurisdiction in the sphere of compliance control and the challenge of non-standard regulatory enactments. As to the constitutional compliance control, the rules of its jurisdiction have been changed more often under the influence of the acts of the RF Constitutional Court which, beginning with Ruling No.19-P[16] dated June 16,  1998, determined the spheres of activities in accordance with Article 125 of the Russian Constitution.

The inadmissibility of legal purism in the matters concerning Russian courts competence was highlighted by the European Court of Human Rights, for example, in the ECHR Ruling dated  July 23, 2009 in the case Sutyazhnik vs the Russian Federation (claim No.8269/02), in the ECHR Ruling on Dec  22, 2009 in the case Bezymyannaya vs the Russian Federation (claim No.21851/03).

Within this reform, it is more sensible to reflect  an approach which is aimed at the content and essence of the right to a legal remedy rather than at the formality of such a right, because we can hardly achieve absolutely “distinctiveness” between activities of commercial courts and general jurisdiction courts. This problem is accounted for by the complexity of the legislation, the  lack of consistent practice and some other objective and subjective reasons. If a party goes to the court but the claim cannot be considered due to  lack of jurisdiction, there might be the following disadvantages for the party: the party can  face the problem of statute of limitations; the party may bear significant legal costs and waste personal time and the time of judges, etc.

We need such a mechanism of solving jurisdiction conflicts which would ensure the protection of plaintiffs’ rights in case of the wrong choice of a competent court but, at the same time, which would prevent abuse of the procedural right to go to court and abuse of the constitutional right to a legal remedy as a whole. Taking into account the uniformity of the legal protection and differences in interpretation of competences of courts, we should make courts –  state power bodies which provide the implementation of this right , rather than the plaintiff, bear all the costs.

Therefore, under the new circumstances, when a case is initiated and when the court has no jurisdiction to try the case, it is possible to empower either a court of general jurisdiction or a commercial court to direct the applicant to another competent court which has a corresponding jurisdiction (at the stage of filing a claim)[17] or with the consent of the applicant to refer the case to another court of general jurisdiction or a commercial court due to the ex officio powers.

We should mention that such an approach was already applied when the rules concerning the jurisdiction of courts were legally differentiated. In particular, pursuant to Article 7 of the Federal Law No.96-FL on July 24, 2002, courts of general jurisdiction had to transfer all the cases - which were already started in courts of general jurisdiction at the time when this law came into force and which, according to the Commercial Procedure Code, fell within the jurisdiction of commercial courts - within 2 weeks after paragraph 1 “Jurisdiction” Section 4 of the Commercial Procedure Code came into force and with the consent of an applicant to commercial courts  under  the rules of jurisdiction stipulated by the Commercial Procedure Code and effective on the day of the case transfer. If the applicant did not agree for his case to be transferred by a court of general jurisdiction to a commercial court, the court of general jurisdiction should stop the proceedings due to the lack of jurisdiction by the court of general jurisdiction.

Besides, pursuant to Part 4 Article 30.2 of the Code of Administrative Offences, if a claim is not within the competence of a judge or an official who appealed against the administrative offence decision, the claim is transferred within three days. We see that such practice of referring cases from courts of general jurisdiction to commercial courts does exist[18] while the reversed order is found impossible by many commercial courts[19].

In conclusion, we may say that a judicial organization and a judicial system by their character do not accept revolutionary ideas; therefore, to gradually introduce changes extremely important and reforms following the principle “not to harm”. Besides, any reform depends on sources of finance, therefore, this is also an important restriction in improving the judicial system. In any event, the judicial organization should fulfill the demands of society and economy, providing guarantees of admissibility and convenience of legal remedies for  whoever  it has been created and is functioning.

 Bibliography:

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8. Shiryaeva T.V. Proisvodstvo po delam obzhalovaniya deistvii (bezdeistviya) sudebnovo pristava-ispolnitelya [Proceeding on the Cases on Appealing Actions (Omissions) of the Judicial Bailiff-E].Candidate’s Dissertation Abstract. Yekaterinburg, 2007. p. 7.
9. Slepchenko E.V. Grazhdanskoye sudoproizvodstv: problemy edinstva i differentsiatsii [Civil Legal Proceedings: Problems of Unidormity and Differentiation]. Saint Petersburg, 2011. pp. 462, 463.
10. Zagainova S.K. Sudebnye akty v mehanizme realizatsii sudebnoi vlasti v grazhdanskom i arbitrazhnom protsesse [Judicial Acts in the Mechanizm of Realisation of the Judiciary in Civil and Commercial Procedure]. Moscow, 2007. pp. 198–212.