by Dr Anton Burkov, PhD (Cantab), LLM (Essex)
Transparency of the Judiciary in Russia
On 1 July 2010 the Federal Law on Transparency of the Judiciary in the Russian Federation came into force.
From the moment that the President of the Russian Federation, Dmitry Medvedev signed and promulgated the Federal Law 262-FZ of 22 December 2008 “On Securing Access to Information on the Activity of Courts in the Russian Federation” (the Law), the Russian courts began preparing for its entry. Russian courts had been preparing for the Law from the moment it was originally signed and promulgated by the President of the Russian Federation in 2008. This article discusses the substance of the Law and the readiness of courts to publish judicial decisions on the internet.
The main aim of the law is to make information on the activity of courts more open to the public, as well as addressing trends in society such as advances in computer technology and the internet. The law would allow access to information on court activity via the following means (Article 6 of the Law):
1. presence of citizens and representatives of legal persons, and state and municipal organs, at public court hearings;
2. publication of information (including courts decisions) on courts activity in mass media, Internet, and courts premises;
3. familiarisation of citizens and representatives of legal persons, state, and municipal organs with archived information of courts activity.
The publication of court decisions is not characteristic of a country with the continental legal system, where statute is main basis of law,. Additionally, it might be thought impossible for a country with such large territories and a high number of courts . Access to the practice of Russian courts has always been a difficult process. With a few exceptions, there had been no mechanism for the publication of courts decisions prior to 1 July 2010. Previously, the Constitutional Court of the Russian Federation had published all of its judgments according to merit and selectively admissible decisions. The Supreme Court published selected judgments and limited extracts from judgments of lower courts in the Bulletin of the Supreme Court. These selected practices had been unofficially published on a number of web-sites and commercial databases. Insight into the practices of the lower courts are largely only available from lawyers and advocates.
Article 15 of the Law on publication of judicial acts online is of greatest interest when considering the publication of judicial acts.
On 23 June 2010 the Chief Justice of the Supreme Court, Viacheslav Lebedev, stated that the Supreme Court had launched its own website, without waiting for the 1 July Law, which gives access to full information on the Court’s activity, including its judgments.
Effective implementation of the Law, particularly Article 15, is yet to be monitored and assessed. However, journalists and representatives of non-governmental organisations have already made attempts to clarify the difficulties with the publication of judgments.
On 24 July 2010, representatives of civil society and the judiciary discussed the readiness of justices of the peace, courts of general jurisdiction, and arbitrazh courts for the new Law, which was yet to come into force. They met at a round table, “Access to Justice through Access to Information on Courts Activity” in Yekaterinburg, Sverdlovsk oblast, Russia. Among the participants were representatives of civil society (NGO lawyers, advocates, journalists), the judiciary (Sverdlovsk oblast court and the Arbitrazh court of Sverdlovsk oblast), the Ombudsman of Sverdlovsk oblast, and representatives of the regional legislature – the Commission of Oblast Duma on the preliminary preparation of materials for the consideration of judicial candidates at the sittings of Oblast Duma of Legislative Assembly of Sverdlovsk oblast.
There were representatives of courts at the round table that already function under the Law, as well as courts that are yet to start publishing their judgments. Head of staff and administrator of the Arbitrazh court of Sverdlovsk oblast, Chukavina Tatiana Viacheslavovna, in her report “On Ensuring Access to Information on Activity of Arbitrazh Court of Sverdlovsk Oblast” highlighted the fact that judges in the Arbitrazh court of Sverdlovsk oblast had seen organisational preparation to allow the publication of judicial acts before 2005 – the year when judgments of the arbitrazh court first appeared online. According to Ms Chukavina, open resistance on the part of judges did not characterise the period of transition to online transparency, but it did lead judges to acquire Russian language dictionaries and textbooks on spelling and punctuation. Therefore the online publication of judgments influenced not only the linguistic quality of judgments but also the quality of legal decisions.
Also of interest was a speech by Head of the Department of legal information of Sverdlovsk oblast court, Livshits Arkadiy Afanasievich. In his report “On Ensuring Access to Information on Activity of Sverdlovsk Oblast Court” Mr Livshits expressed dissatisfaction with the Law because it creates “the game of the openness of justice.” The major problem was amending personal data (mainly names) in judgments: high labour costs and the absence of a “consumer” in amended judgments (cases heard in closed hearings are not published under the Law). In Mr Livshits’ opinion, there is little interest in judgments on cases of “NAME 1 v. NAME 2.” On 1 July 2010, there was an amendment to the Law where judgments are published as they enter into force.
It was argued that the Law will not solve the problem of openness and, more importantly, will not lower the number of applications before the European Court of Human Rights, which will inevitably increase due to the amendment of procedures for the consideration of cases European Court of Human Rights cases resulting from Protocol 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The procedure for the publication of judicial acts in the system of State Automatic System “Justice” (GAS “Pravosudie”) is constructed in such a way that Sverdlovsk oblast court is only responsible for the publication of judgments on its own website. For instance, the district court of Ivdel (situated 500 km north from Yekaterinburg) will deal with the publication of its own judgments.
Justices of the peace have not yet adopted the relevant regional law, not to mention publication of their decisions. Some round table participants noted that it takes longer for a justice of the peace to prepare an online publication than it does to issue a decision.
At the end of the round table, participants unanimously voted for the creation of a Discussion Club to review the question of judicial reform in Russia, and the improvement of cooperation between the judiciary and civil society. The first document was adopted with a resolution from the Governor of Sverdlovsk oblast, Legislative Council of Sverdlovsk Oblast, Council of Judges of Sverdlovsk oblast, Civic Chamber of Sverdlovsk oblast, and other interested parties who put forward a proposal to support an initiative to hold regular public discussions on the problems of cooperation between civil society and the state on the issue of reforming the Russian judiciary and improving the openness of the courts . By itself, the initiative to hold public discussions on reforming judicial system is unique. Judicial reform has underway since 1990, but only in 2004 did representatives of civil society get involved in monitoring judicial reform when the institute of civic representatives in qualification collegiums of judges was established.
The next meeting of the Discussion Club will take place on 22 July 2010, when it will tackle the issue of the implementation of Federal Law of 30 April 2010 N 68-FZ “On Compensation to Citizens for Violation of the Right to a Fair Trial within a Reasonable Time or the Right to Execution of a Judgement within a Reasonable Time.” This new Law was drafted in order to stop applications before the ECHR where there was a lack of an effective domestic remedy to secure adequate and sufficient redress for non-enforcement or the delayed enforcement of domestic judgements. We will review this law in future columns.
Published at EU-Russia Center
See in Russian