Federal judicial authorities in the Russian Federation as objects of public control

Goncharov Vitalii Viktorovich PhD in Law Associate Professor, Dean of the Faculty of Higher Education, Polytechnic Institute (branch), Don State Technical University in Taganrog 347900, Russia, Rostov region, Taganrog, Petrovskaya str., 109a niipgergo2009@mail.ru Other publications by this author

The most important type of objects of public control in the Russian Federation are the judicial authorities, which are a fairly numerous variety of public authorities in Russia.

In accordance with part 3 of Article 118 of the Constitution of the Russian Federation, the judicial system of the Russian Federation consists of: the Constitutional Court of the Russian Federation; The Supreme Court of the Russian Federation; federal courts of general jurisdiction; arbitration courts; justices of the peace of the constituent entities of the Russian Federation. At the same time, in the earlier version of Part 3 of Article 118 of the Basic Law of the country, the constituent elements of the judicial system of the Russian Federation were not listed.

An analysis of the system of courts of the Russian Federation shows that the Constitution of the Russian Federation in part 3 of Article 118 did not indicate another type of courts existing in modern Russia - constitutional (statutory) courts of the constituent entities of the Russian Federation. This circumstance is also confirmed by part 4 of Article 4 of the Federal Constitutional Law of 12/31/1996 No. 1-FSL "On the judicial system of the Russian Federation", where the courts of the constitutional entities of the Russian Federation include constitutional (statutory) courts of constitutional entities of the Russian Federation, as well as magistrates who are judges general jurisdiction of the constituent entities of the Russian Federation.

In Russia, constitutional (statutory) courts are currently not formed in all constituent entities of the Russian Federation. In some regions (for example, in the Krasnodar Territory), they have never been. Moreover, their creation in the Russian regions was a right, not an obligation of the state authorities of the constituent entities of the Russian Federation.

Perhaps this flaw in the authors of the 2020 amendments to the Constitution of the Russian Federation was caused by the fact that the President of the Russian Federation in 2020 voiced the idea that Russia should move away from the institution of constitutional (charter) courts of the Russian Federation, moving to the institution of constitutional (charter) councils under the legislative (representative) authorities of the constituent entities of the Russian Federation, which was skeptically perceived by a number of academic constitutionalists. ^{[1, pp. 92-97; 2, pp. 66-72]}

The head of state initiated the adoption of amendments and additions to the legislation on the judicial system, according to which, from January 2023, constitutional and statutory courts in the constituent entities of the Russian Federation will be abolished. Instead of these public authorities, constitutional and statutory councils will be formed under the legislative (representative) authorities of the constituent entities of the Russian Federation.

Thus, the judicial system in the Russian Federation, starting from 2023, will be represented mainly by federal courts only. An exception will be made by justices of the peace, who are judges of general jurisdiction of the constituent entities of the Russian Federation.

However, in the case of justices of the peace, the situation is not excluded that justices of the peace will be attributed in the near future to the lower variety of federal courts of general jurisdiction, and the powers of the regions to participate in the procedure for their appointment will be excluded from the current legislation of the Russian Federation, since these powers are based on a very streamlined formulation of the subject of joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation, enshrined in clause "l" of part 1 of Article 72 of the Constitution of the Russian Federation, - “cadres of judicial and law enforcement agencies; advocacy, notary ".

Consequently, the system of federal judicial authorities as objects of public control consists of the following elements:

1) the Constitutional Court of the Russian Federation - the only public authority authorized to administer constitutional justice (since 2023);

2) the Supreme Court of the Russian Federation, the uniqueness of the legal status and powers of which is determined by the fact that it crowns two subsystems of the judiciary at once - federal courts of general jurisdiction and commercial courts;

3) the federal courts of general jurisdiction, which are represented by several levels of courts (district courts, courts of constituent entities of the Russian Federation, cassation courts of general jurisdiction, appellate courts of general jurisdiction);

4) arbitration courts, which are also represented by several levels (arbitration courts of the constituent entities of the Russian Federation, arbitration courts of appeal, arbitration courts of districts, a court for intellectual rights).

Earlier, the Constitution of the Russian Federation also provided for the institution of the Supreme Arbitration Court of the Russian Federation, which was abolished in the course of the judicial reform.

The system of military courts of the Russian Federation, on the basis of Article 1 of the Federal Constitutional Law of 23.06.1999 № 1-FCL "On Military Courts of the Russian Federation", refers to federal courts of general jurisdiction, which exercise judicial power in the Armed Forces of the Russian Federation, other troops, military formations and bodies in which the law provides for military service, and other powers in accordance with federal constitutional laws and federal laws.

In modern Russian educational and scientific literature, there is no consensus on the need to organize and exercise public control over the activities of courts in the Russian Federation (primarily federal courts).

Thus, a number of authors believe that public control over the judiciary should be exercised, however, the nature and exceptional importance of the powers exercised by the courts requires that they be classified as special objects of public control. ^{[3, pp. 35-41]} This approach deserves understanding in the part that, indeed, the courts, having enormous powers to administer justice, have a direct impact on the rights, freedoms and legitimate interests of legal entities and individuals, state authorities and local self-government bodies participating in court proceedings as plaintiffs, defendants, third parties, applicants, etc. However, this does not mean that civil society should either get rid of public control over the judiciary, or in any way restrict or narrow the measures of public control in relation to courts of any kind.

On the contrary, the nature of the powers of the judiciary, which can significantly change the fate (or legal fate) of any subject of Russian law, requires the organization and implementation of particularly careful, comprehensive, constant and effective public control over both the activities of the judiciary in general and over activities of individual judges, as well as civil servants working in courts of all types and levels (assistant judges, court clerks, etc.).

According to other authors, although the current legislation on public control does not prohibit the organization and implementation of public control over the activities of judges, the special nature of their powers does not allow the subjects of public control to interfere in their activities, which in practice means the practical impossibility or limited implementation of public control for this type of public authority. ^{[4; 5, pp. 186-188; 6, pp. 194-196]}

However, it is difficult to agree with this point of view for a number of reasons. First of all, the judicial authorities in the Russian Federation, in our opinion, are somewhat excessively protected by law from the possibility of exercising state control over them. In fact, it is limited only by the possibility of bringing judges to administrative or criminal liability if committed by the latter. In addition, criminal and administrative prosecution of judges is carried out by the judicial authorities themselves.

Only in 2020, with the adoption of amendments to the Constitution of the Russian Federation, another effective possibility of state control over the activities of judges appeared - the termination, on the proposal of the President of the Russian Federation, in accordance with the federal constitutional law of the powers of the Chairman of the Constitutional Court of the Russian Federation, Deputy Chairman of the Constitutional Court of the Russian Federation and judges of the Constitutional Of the Court of the Russian Federation, the Chairman of the Supreme Court of the Russian Federation, Deputy Chairmen of the Supreme Court of the Russian Federation and judges of the Supreme Court of the Russian Federation, chairmen, deputy chairmen and judges of cassation and appellate courts in case they commit an act defaming the honor and dignity of a judge, as well as in other stipulated federal constitutional law cases, testifying to the impossibility of the judge exercising his powers.

The third group of authors believes that the organization and implementation of public control over the activities of federal judges and courts should be carried out on a continuous basis and with particular care due to the special importance and significance of the powers of the courts in terms of the implementation, observance, protection and protection of rights, freedoms and legitimate interests. individuals and legal entities, as well as the rights of public authorities. ^{[7, pp. 15-21; 8, pp. 99-103; 9, pp. 98-103]}

A direct confirmation of the importance of organizing and exercising public control over the activities of the judiciary is the fact that these public authorities are included in the number of objects of public control on the basis of Federal Law of 21.07.2014 № 212-FL "On the Foundations of Public Control in the Russian Federation".

However, the organization and implementation of public control over the activities of both the judicial authorities in general and the activities of individual judges of federal courts are associated with a number of problems that, according to some authors, are objective and subjective. ^{[10, pp. 108-110; 11, pp. 41-46]}

Firstly, a significant problem in the organization and implementation of public control over the activities of judges is the conflict of the need to interfere with the activities of judges in the exercise of public control (in the form of a request for documents, information, explanations, if the public control bodies have reason to assume that the actions or inaction of judges the legislation of the Russian Federation was violated, as well as the rights, freedoms and legitimate interests of citizens of the Russian Federation) with the principle of inadmissibility of interference in the activities of a judge. So, according to Article 10 of the Law of the Russian Federation of 26.06.1992 № 3132-1 "On the status of judges in the Russian Federation", it is not allowed to appeal to a judge in a case in his proceedings, or to the chairman of the court, his deputy, the chairman of the judicial composition or to the chairman of the panel of judges on cases pending before the court.

At the same time, an extra-procedural appeal is understood to mean a complaint received by a judge in a case in its proceedings, or to the chairman of the court, his deputy, the chairman of the judicial composition or the chairman of the judicial collegium in cases that are in the proceedings of the court, an appeal in writing or orally by those who are not participants in the proceedings state body, local self-government body, other body, organization, official or citizen in cases not provided for by the legislation of the Russian Federation, or an appeal in a form not provided for by procedural legislation of the participants in the proceedings.

Information about extra-procedural appeals received by the judge in the cases in his proceedings, or to the chairman of the court, his deputy, the chairman of the judicial composition or the chairman of the judicial collegium in cases in the proceedings of the court, must be made public and brought to the attention of the participants in the proceedings by posting this information on the official website of the court in the information and telecommunications network "Internet".

Due to the fact that neither the Federal Law of 21.07.2014 № 212-FL "On the Foundations of Public Control in the Russian Federation", nor in the Law of the Russian Federation of 26.06.1992 № 3132-1 "On the Status of Judges in the Russian Federation" a mechanism for organizing and exercising public control over the activities of judges has been determined, which will not fall under the category of "non-procedural treatment", it is not at all clear what forms and methods of public control and types of its activities are recognized as permissible and do not contradict the principle of inadmissibility of interference in the activities of a judge.

Secondly, despite the fact that the current legislation on public control does not regulate the organization and implementation of public control over the judicial authorities in the Russian Federation, referring it to the competence of special federal laws, today there is no separate federal law dedicated to the organization and exercising public control over the judiciary. Moreover, the Federal Constitutional Law of 31.12.1996 № 1-FCL "On the Judicial System of the Russian Federation" does not contain a separate chapter or article regulating the possibility of conducting public control measures in relation to certain judicial authorities.

Certain federal laws and federal constitutional laws regulating the legal status of certain judicial authorities, for example, Federal Constitutional Law of 21.07.1994 № 1-FCL "On the Constitutional Court of the Russian Federation", Federal Law of 17.12.1998 № 188-FL "On justices of the peace in the Russian Federation" also do not contain provisions on the organization and implementation of public control in relation to these types of judicial authorities.

The opinion of a number of authors that the public control of the activities of the judiciary can be attributed to the principle of openness enshrined in the current legislation,  ^{[12, p. 56; 13, pp. 127-130]} according to which the proceedings in the courts, as a rule, are open, and interested citizens may be present at court sessions, seems unfounded.

As noted earlier, the public control of the authorities in the Russian Federation should be understood as a set of principles, norms and public institutions, clothed in a legal form, which are associations of citizens, whose mass and voluntary activities are aimed at exercising control over the formation and functioning of public authorities and local self-government bodies, as well as for the activities of authorized legal entities and individuals who are endowed by the current legislation with a certain set of powers exercised by them independently, or jointly with state authorities and local self-government bodies, or on their behalf and (or) on their behalf, in order to ensure the implementation rights, freedoms and legitimate interests of a person and a citizen, the formation and functioning of public authorities in accordance with applicable law and the prevention of the appropriation of power or its usurpation by individual authorities and their officials by persons.

The principle of transparency in the activities of the judiciary means only that the activities of the judiciary within the framework provided by law are open. This is expressed both in the possibility of the presence of citizens at open court sessions, and in the publication of materials of court cases, as well as excerpts from judicial acts on the official websites of the judicial authorities, in the speeches of the heads of the judicial authorities in the media on the state of affairs with the organization and poisoning of justice. in the Russian Federation, etc.

This circumstance creates a situation when the possibility of carrying out public control measures in relation to the judiciary, formally enshrined at the level of federal law, does not have a detailed legal mechanism for implementation.

Moreover, the legal status of the aforementioned federal constitutional laws, both regulating the organization and functioning of the judicial system in the Russian Federation as a whole, and dedicated to certain types of judicial authorities, is higher than the legal status of the Federal Law of 21.07.2014 № 212-FL "On the foundations of public control in the Russian Federation".

Consequently, the possibility of organizing and exercising public control over the judiciary must and can be enshrined directly in the Federal Constitutional Law of 31.12.1996 № 1-FCL "On the Judicial System of the Russian Federation".

The issues of conducting public control measures in relation to certain types of Federal judicial authorities can then be detailed in federal and regional laws governing the organization and functioning of certain types of judicial authorities.

Thirdly, when consolidated in the current federal and regional legislation regulating the organization and functioning of the judiciary, it is necessary to work out in detail the forms, methods and limits of public control.

In particular, according to Article 5 of the Federal Constitutional Law of 31.12.1996 № 1-FCL "On the judicial system of the Russian Federation", the courts exercise judicial power independently, regardless of anyone else's will, obeying only the Constitution of the Russian Federation and the law, and judges, jurors and assessors involved in the administration of justice are independent and subject only to the Constitution and the law. At the same time, laws and other normative legal acts that cancel or diminish the independence of the courts and the independence of judges cannot be issued in the Russian Federation. Moreover, illegal influence on judges, jurors and assessors involved in the administration of justice, as well as other interference in the activities of the court, entails liability provided for by federal law.

At the same time, on the one hand, the special status of the powers of the judiciary, their independence and subordination exclusively to the law should not be considered as a kind of taboo on the possibility of organizing and conducting public control measures, and on the other hand, the content and limits of public control should not pose a threat implementation of the principle of independence of the judiciary and their subordination exclusively to the Constitution of the Russian Federation and federal legislation, influencing the process of administering justice.

Fourthly, it seems that the specificity of the activities of the judicial authorities requires the development of certain types of measures of public control, which, on the one hand, would not interfere with the administration of justice, and on the other hand, would allow the subjects of public control to promptly respond to violations of the current legislation by judges.

At the same time, one should not forget that judges in the Russian Federation are not directly elected by the population, as was the case, for example, in the USSR, where people's judges of the district level were elected by the population locally, and, therefore, their powers can and should be checked and rechecked. subjects of public control on a continuous basis.

Otherwise, the constitutional principles of democracy and the participation of citizens of the Russian Federation in the management of state affairs, which are the cornerstones of Russian democratic statehood, will be violated.

Fifthly, the possibility of organizing and exercising public control over judges of the highest judicial bodies in the Russian Federation - the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation-is significantly limited due to the special nature of the principle of their inviolability in the federal constitutional laws "On the Constitutional Court of the Russian Federation" and "On the Supreme Court of the Russian Federation.

In particular, according to Article 15 of the Federal Constitutional Law of 21.07.1994 № 1-FCL "On the Constitutional Court of the Russian Federation", a judge of the Constitutional Court of the Russian Federation cannot be held liable, including after the termination of his powers, for the position , expressed by him during the consideration of the case in the Constitutional Court of the Russian Federation, unless a court verdict that has entered into legal force establishes the guilt of this judge in a criminal abuse of his powers.

At the same time, a disciplinary sanction may be imposed on a judge of the Constitutional Court of the Russian Federation only by a decision of the Constitutional Court of the Russian Federation itself and only in the form of a warning and termination of the powers of a judge.

Sixthly, a rather large problem is the organization and implementation of the institution of public control in relation to the military courts of the Russian Federation in connection with the specifics of the activities of this type of Russian courts. In particular, judges of military courts, in the course of their activities, often have access to information constituting a state secret, which prevents free access to this information for persons who do not have appropriate access, formalized in accordance with Russian legislation. In addition, public control over the activities of military courts in certain cases may jeopardize the defense capability of the Russian Federation and the might of the country's Armed Forces. The solution of these problems in order to ensure the optimal organization and implementation of public control over the activities of both the judicial authorities in general and the activities of individual judges of federal courts requires the organization and implementation of a system of measures, among which the following can be distinguished.

Firstly, due to the fact that the activities of the judicial system of the Russian Federation as a whole, as well as certain types of federal courts of Russia, are regulated both by the Constitution of the Russian Federation directly, and at the level of federal constitutional laws that we mentioned earlier, and the institution of public control is not institutionalized in the Basic Law of the country, but is enshrined only in individual federal laws, for example, in the Federal Law of 21.07.2014 № 212-FL "On the Basics of Public Control in the Russian Federation", it seems necessary to consolidate the legal regulation of the organization and implementation of public control in regarding the activities of the courts not at the level of the Federal Law, but through the adoption of the Federal Constitutional Law "On Public Control over the Activities of Courts in the Russian Federation." In this federal constitutional law, it is necessary to determine the limits of the exercise by citizens of the Russian Federation of their constitutional right to public control, regulating in detail the powers of the system of subjects of public control in organizing and conducting public control measures in relation to the activities of the judicial authorities in the Russian Federation.

Particular attention should be paid to the forms and procedure for the implementation of these public control measures, having developed and consolidated special forms of public control measures (in addition to those mentioned in the Federal Law of 21.07.2014 № 212-FL "On the Foundations of Public Control in the Russian Federation"). For example, as one of the types of measures of public control in relation to the activities of judges, it is possible to consolidate the duty of the heads of the judiciary to make public reports on their activities to representatives of civil society. Alternatively, the chairmen of the Constitutional and Supreme Courts of the Russian Federation, as well as the heads of the appellate, cassation, and district courts can deliver public reports to the Public Chamber of the Russian Federation, and the heads of other federal courts - to the public chambers of the constituent entities of the Russian Federation.

Another type of specific measures of public control in relation to the activities of the courts can be the possibility of the mandatory presence of representatives of the subjects of public control at court sessions, if there is reason to doubt the possibility of an objective and impartial court decision, or in cases that have significant public resonance. If the court hearings are declared closed on the grounds provided for by the current legislation (for example, in the case of ensuring the protection of state secrets), then representatives of the Public Chamber of the Russian Federation who have duly issued access to state secrets should be granted the right to participate in such hearings.

Another important type of public control measures may be the introduction of centralized monitoring of court decisions (including sentences in criminal courts) under the leadership of the Public Chamber of the Russian Federation, as well as public chambers of the constituent entities of the Russian Federation.

According to a number of authors, a comprehensive analysis of court decisions in various categories of cases will reveal signs of a corruption component in court decisions made by certain judges, ^{[12, p. 104; 14, pp. 199-202; 15, pp. 196-200]} which will make it possible to promptly prevent and suppress cases of corruption in the judicial system.

This will make it possible, on the one hand, to eliminate the conflict in terms of the difference in the legal statuses of federal constitutional laws governing the organization and activities of federal judicial authorities in Russia, as well as federal laws on the organization and implementation of public control over them, and on the other hand, it will allow to form a unified system of legal regulation of the organization and implementation of public control over the entire judicial system of the Russian Federation.

Alternatively, it is possible not to adopt a separate Federal Constitutional Law "On Public Control over the Activities of Courts in the Russian Federation", but to introduce separate chapters on the organization and implementation of public control into federal constitutional laws dated Federation", of  21.07.1994 № 1-FCL "On the Constitutional Court of the Russian Federation", of  05.02.2014 № 3-FCL "On the Supreme Court of the Russian Federation", of  28.04.1995 № 1-FCL "On arbitration courts in the Russian Federation ", of 23.06.1999 № 1-FCL "On military courts in the Russian Federation", of 07.02.2011 № 1-FCL "On courts of general jurisdiction in the Russian Federation, Law of the Russian Federation of 26.06.1992 № 3132-1 "On the status judges in the Russian Federation".

In these chapters, it will be necessary to fix specific types of public control measures in relation to specific types of federal courts, specific forms, methods of public control both in relation to the activities of the judges themselves, and in relation to the activities of certain judicial bodies, as well as civil servants who ensure the work of the courts. of all kinds.

Secondly, it is necessary to consolidate in the current legislation of the Russian Federation specific measures of legal responsibility (criminal, administrative, disciplinary) of officials of the judiciary for counteracting the legitimate activities of representatives of the subjects of public control in the implementation of the latest measures of public control in relation to the activities of the courts. In addition, as an option, it can be enshrined in the legislation as one of the measures of responsibility of officials of the judiciary for opposing the legitimate activities of representatives of public control entities in the implementation of the latest public control measures in relation to the activities of the courts, the possibility of dismissing judges. This will be the most important guarantee preventing judges from ignoring, on far-fetched pretexts, the legitimate activities of representatives of the subjects of public control.

Thirdly, it seems necessary, as a number of authors rightly point out, to use the experience of organizing and exercising public control over the judiciary, developed and implemented in a number of foreign states, especially the Scandinavian countries. ^{[16, pp. 79-92]} At the same time, the experience of implementing public control measures in these states has shown that public control has significantly reduced the volume of corruption in the judiciary, made it possible to maximally protect the rights, freedoms and legitimate interests of both individuals and legal entities, acting as an important guarantee of the realization of the rights of citizens of the country. to participate in the government.