Current Judicial Reform and Harmonization of Procedural Law in Russia

Irina V. Reshetnikova, Chair of the Commercial Court of the Urals District, Doctor of Law, Professor, Honoured Lawyer of the Russian Federation, Yekaterinburg, Russia

The article provides insight into the directions for the current judicial reform beginning from 1991, in judicial system, and the problems of the upcoming harmonization of the procedural law: objective possibility of the said process and possible perspectives.

Key words: harmonization of the procedural law, establishment of the new Supreme Court of the Russian Federation, judicial reform.

2014 is the year of 150^th anniversary of the 1864 Judicial Reform that fundamentally changed Russian legal procedure. The main features of that great reform were the following: the judicial branch was separated from the legislative and administrative branches; judges acquired an independent status; adversarial system was introduced; proceedings became oral and public; the appeals procedure was changed. 

The current judicial reform in Russia is undergoing certain steps. The Concept of Judicial Reform in the Russian Soviet Federative Socialist Republic was published in 1991[1]. It outlined main directions in the development of Russian legal procedure. The Federal Constitutional Law “On the Judicial System of the Russian Federation” was adopted on 26 December 1996. This law divided the uniform court system into two groups:

-  federal courts that include the Constitutional Court of the Russian Federation; courts of general jurisdiction (the Supreme Court of the Russian Federation, courts of the constituent entities of the Russian Federation, rayon (city) courts, and military courts); commercial courts;

-  courts of the constituent entities of the Russian Federation that include constitutional (charter) courts of the constituent entities of the Russian Federation and Justices of the Piece[2].

Specialised economic courts were then formed in Russia. That was the  state arbitration (commercial) court system on the basis of the federal authorities (state arbitration):

• in 1992, the Supreme Commercial Court of the Russian Federation was established;
• in 1992, commercial courts of the constituent entities (as trial and appellate courts) were formed;
• in 1995, federal commercial courts were established in 10 districts[3];
• in mid-2000, 20 appellate courts were established, so the commercial courts of the constituent entities no longer tried cases on appeal;
• in 2013, a specialised court for intellectual property rights (the IPR Court) was instituted  in Russia;
• in 2014, after the accession of Crimea and Sevastopol, commercial courts  and 21 commercial appellate courts were established in these new constituent entities;
• in August 2014, the Supreme Commercial Court of the Russian Federation ceased working, and the Economic Collegium in the unified Supreme Court of the Russian Federation was instituted. Two cassation instances (at the level of commercial district courts and the Economic Collegium) have appeared in Russia for the first time.

      In terms of procedure, a significant step forward was the adoption of new THE RF CivPC^[4]  and the RF ComPC.^[5] Their quality level corresponds to the level of the best legislative acts in Europe.

After the Supreme Commercial Court of the Russian Federation had been liquidated and all types of legal procedure had been united within the Supreme Court, the question about the future of the procedural law came to the forefront.  As is known, there are three codes of procedure (the RF CivPC, the RF ComPC, the RF CrimPC[6]), and there is also a draft of the fourth procedural code (the RF Administrative Code of Procedure[7]). There is certainly a possibility for the existence of legal procedure with each of its types being regulated by its own procedural legislation. We would like to remind that according to Art. 118 of the RF Constitution, all judicial power in Russia is exercised by means constitutional, criminal, civil, and administrative proceedings. In other words, the RF Constitution states that there are four types of the proceedings. Therefore, the Federal Constitutional Law on the Constitutional Court of the Russian Federation regulates constitutional proceedings. Civil proceedings are regulated by the RF CivPC with regard to administration of justice by the courts of general jurisdiction. The RF ComPC regulates the administration of justice by commercial courts. The regulation of administrative proceedings is contained both in the RF CivPC and the RF ComPC (proceedings arising out of public relationships), partly in the Code of Administrative Offences, and is specified in the draft code of the RF administrative  procedure .

There are certain arguments in favor of the unification of procedural legislation:

• similarity in the subject of regulation. The subject of regulation has much in common: in the law of civil procedure - it is civil procedure, in the law of commercial procedure – it is commercial procedure, in the law of criminal procedure – it is criminal procedure, in the administrative procedural law – it is administrative procedure. Common features in the subject of legal regulation classify the abovementioned branches as procedural despite a number of differences among them. Criminal procedure is the only one that covers the activity of the court and preliminary investigation bodies  in relation to trying and resolving criminal cases;
• similarity in the method of legal regulation. As far as court proceedings are concerned, the method of legal regulation is characterised as imperative and dispositive. It is imperative as there is mandatory participation of the court as a subject of procedural legal relationships considering its nature as that  of a  public authority. It is dispositive as the parties are equal in court proceedings and bear equal responsibilities despite the fact that relationships of authority and subordination (e.g. administrative legal relationships) may exist in substantive relationships;
• the uniformity of constitutional and interbranch principles: independence of judges being subject to the federal law alone, orality, publicity, and adversarial nature of proceedings, language of proceedings, etc;
• the uniformity in the structure of the codes of procedure, which are divided into general and special parts. Most of their institutions are similar if not in content but at least in their titles (excluding the RF CrimPC as its subject of legal regulation is wider);
• uniform sources of law. One specific feature of the sources of procedural law is their dispersal in various branches of legislation. In the branches of substantive law, there are special norms specifying the provisions of branch institutions. Practically, the major part of the rules of evidence in certain categories of cases is concentrated in substantive branches of law: the subject of proof, legal presumptions, admissibility of evidence, specific features of some means of proof, etc. Procedural legislation regulates only general rules of delineating jurisdiction and its types. The question about jurisdiction of certain cases is decided on the basis of substantive laws. The same situation is applicable to most procedural law institutions of the general part of the law of procedure.

In other words, there are objective prerequisites for forming a unified procedural branch of law, with criminal procedure being an independent branch which includes activities of judicial and investigative bodies.

Many procedural institutions of general and special parts of the RF ComPC, the RF CivPC, the draft of the RF AdmPC are identical (procedural representation, jurisdiction, etc.). Some peculiarities, if any, may be taken into consideration in the course of legal regulation (proof, specific features of certain categories of cases, etc.).

It is recognised that a certain unification in procedural branches of law existed before the reform but it had a hidden character without trying to unify procedural codes. Thus, reconsidering judicial acts under new or newly discovered evidence, court proceedings in cases of compensation for late adjudication and late enforcement of judicial acts, class actions, introduction of appeal procedure, etc., have similar mechanisms in their regulation, though placed in the RF ComPC and the RF CivPC.  The draft AdmPC practically repeats the structure of the RF CivPC and the RF ComPC and some other rules of law. For example, the draft AdmPC borrowed the rule on agreement about the facts, a comprehensive list of evidence, etc., from the RF ComPC.

However, there are and will be differences that may be reflected in specific features of adjudication in certain cases ( corporate litigations, class actions, etc), types of proceedings (special proceedings, proceedings arising from public relations), types of summary judgment (mandative proceedings and proceedings in absentia in courts of general jurisdiction, summary proceedings in commercial courts), etc.

What exemplifies the advantage derived from the unification of the procedural (civil, commercial and administrative procedure) legislation?

First, the unification can eliminate the differences between two branches of procedural law (civil procedure and commercial procedure) and the RF AdmPC if the differences do not concern specific nature of cases and peculiarities of the subjects. This is especially true for interbranch legal institutions (jurisdiction, etc.). 

Second, unification may lead to creating new procedural rules. For example, as far as the institution of jurisdiction is concerned, there is a rule of undisputable court jurisdiction. According to this rule, a court to which a case was committed by another court must take it for consideration even if it is not within the jurisdiction of this court. The questions of the subject-matter jurisdiction are also controversial. There is a possibility to introduce the rules for adjudication when the subject-matter jurisdiction is disputable and for referral of cases according to subject-matter jurisdiction within the court system.  These rules can protect the interests of persons participating in the proceedings.

Third, unification must retain the best practices of the current RF ComPC and RF CivPC, e.g. the possibility to submit a claim (claims) in electronic form (commercial court procedure) and to use a writ (civil procedure).

Fourth, unification may be used to strengthen alternative and conciliatory methods of dispute resolution, and the types of summary proceedings (mandative proceedings, proceedings in absentia, and summary proceedings). 

Fifth, unification must retain the peculiarities in the adjudication of specific categories of cases (class actions, corporate litigations, etc). Besides, it is necessary to retain the possibility of different regulation of certain institutions based on specific features of subjects in procedural relationships. For example, the procedure of judicial service and electronic submittal of claims is well regulated in the commercial procedure. However, such an approach cannot be fully applied to the citizens-participants of current civil legal relationships. Unification of legislation will not (and must not) undermine reasonable differences in adjudication of particular cases and the regulation applied only to a particular type of court. 

Sixth, unification will allow correcting some “cosmetic” defects in the regulation of procedure, including the groundless terminological difference (e.g. the term “judicial acts” is used as a generalizing term in commercial procedure, and the term “judgments” is used in civil procedure, etc.). In this case, according to the rules of logic, if judges make decisions, rulings, and judgments, then the generalizing term must not coincide with the listed terms. Therefore, it would have been more logical to speak about judicial acts that comprise decisions, judgments, and rulings. Another terminological difference which was always very evident is the following: in the RF CivPc when a judge acts alone, the law says “the judge” and the RF ComPC uses the term “the court” in all cases. The reference to court is better in this situation irrespective of whether it is a collegium of judges or a judge alone. Such a conclusion can be made due to the fact that both the judge sitting alone and three judges act on behalf of the court, as Art. 1 of the Federal Constitutional Law “On the Judicial System of the Russian Federation” of 26 December 1996 states:

Judicial power in the Russian Federation shall be administered solely by courts as represented by judges and jury members, as well as by people's and commercial courts’ jurors summoned in accordance with the procedure established by the law.

The outlined approach to possible unification reflects only the author’s view. All judges and lawyers whose practice is connected with participation in court proceedings have their own vision of the procedural legislation unification. It is difficult to say whether the unification will lead to revolutionary changes or will be more of a soft merger of procedural branches of law according to their specific features. What matters is reasonableness of the changes, consideration of Russian and international experience. Today the science of procedural law is highly developed, and there is a lot of comparative jurisprudence and historical legal analyses that can be used in law-making. Moreover, Russian courts and professional representatives know and respect procedural law.

We would like the unification to help the Russian procedural legislation achieve a higher quality level and lead to the improvement of the justice system as a result. It is vital that we retain the best practices in application of the abovementioned codes over the twelve years of their existence, so that  the unification will become a step forward.