Reforming the justice process as a basis for combating corruption

Madatov Oleg Yakovlevich General adviser, Interregional Public Movement for the Protection of the Rights of Servicemen and Their Families "Conscience of the Law" 350072, Russia, Krasnodar Territory, Krasnodar, Moskovskaya str., 61, sq. 32 oleg_madatov@rambler.ru Other publications by this author

Introduction

One of the tasks of a democratic state is to ensure the equality of rights of all citizens without any discrimination ^[1]. However, despite the consolidation of this constitutional provision, there remain cases in the judicial system of the Russian Federation when judges make court decisions based not on "strict compliance with the law, relying on internal conviction and not being influenced by anyone" (Part 3 of Article 8 of the Code of Judicial Ethics, approved by the VIII All-Russian Congress judges on 12/19/2012), but based on personal interest and other material benefits, which leads to the appearance of lawlessness and injustice ^{[2, p. 21]}.

Thus, the study of open sources showed that some of the servants of Themis use the powers entrusted to them for personal material enrichment ^{[3, p. 86]}. As an example, a former judge of the third qualification class of the Krasnodar Regional Court, E. V. Khakhaleva, who arranged her daughter's wedding in 2017 at a cost of about 2 million dollars, while Russian pop stars such as Baskov, Meladze, Kobzon and Brezhnev performed at the wedding (Komsomolskaya Pravda, 07/16/2017). At the same time, according to the property declaration for 2016, the judge's income was only 2 million 641 thousand rubles, that is, significantly less money spent.

After the start of the proceedings, the former judge flew out of the Russian Federation, and therefore was not brought to an appropriate measure of responsibility.

Another striking example is the former deputy chairman of the Rostov Regional Court – deputy chairman of the Council of Judges of the Rostov region T. Yurova, who during the searches on April 3, 2023, "200 million rubles in cash, Swiss watches, branded clothing (Gucci, Louis Vuitton), exquisite perfumes" (Arguments and Facts, 04/05/2023).

Thus, such prominent scientists as N. N. Boyko, N. A. Petukhov, Yu. N. Tuganov and others dealt with issues of corruption in the judicial system.

According to N. N. Boyko: "corruption in the judicial sphere is a systemic phenomenon, often generated by the judiciary itself," while his research reflects that about "20% of all cases in courts are resolved through corruption" ^{[4, p. 156]}.

At the same time, one cannot agree with this statement, since the judiciary is not aimed at forming a corruption component, and the existing manifestations are mainly related to the individual desires of specific judges, which cannot indicate the systemic nature of the phenomenon.

According to N. A. Petukhov and Yu. N. Tuganov, the final prevention in the judicial system of "the corruption factor by methods of legal influence is unlikely to be achieved precisely because of the a priori impossibility of regulating ethics and morality by the norms of law" ^{[5, p. 831]}.

However, this statement is controversial, since legal influence is an obligatory component for controlling and suppressing possible corruption manifestations. If the measures taken do not give the desired result, then, therefore, the approach itself needs to be changed. At the same time, the complete eradication of corruption cannot really be considered possible, since the main factor is the person himself, and every measure aimed at countering corruption manifestations loses its relevance over time due to the use of increasingly new methods for illicit enrichment ^[6].

Thus, scientists generally believe that it is impossible to completely suppress corruption manifestations due to the systemic nature of these phenomena.

The solution to the problem of combating corruption in the judicial system, especially if there are signs of its systemic nature, is seen in the development of proposals aimed at reforming the existing system in order to ensure fair and lawful judicial proceedings, which determines the relevance of the research.

In the course of the work, the following methods were used: dialectical, logical, systemic, functional, formal-legal, comparative-legal research methods.

Statistical analysis of judicial accountability in Russia

According to statistics, in 2021 187 judges were brought to disciplinary responsibility, 24 powers were terminated, in 2022 208 were brought to disciplinary responsibility, 17 powers were terminated, in 2023 242 were brought to disciplinary responsibility, 22 powers were terminated.

The primary reason for bringing to justice was a violation of paragraph 1 of Article 9 of the Code of Judicial Ethics, namely, the manifestation of bias and impartiality of the judge in the administration of justice, as well as paragraph 5 of Article 6 of the Code of Judicial Ethics – the commission by the judge of actions that cast doubt on his independence and impartiality ^{[7, p. 622]}.

Figure 1 shows a diagram of the percentage of disciplinary penalties imposed depending on the judicial instance (review of the results of the activities of the Higher Qualification Board of Judges of the Russian Federation for 2023).

As can be seen from the diagram, the main percentage of disciplinary penalties falls on district courts, which indicates negligent adherence to the Code of Judicial Ethics and Part 2 of Article 3 of the Law of the Russian Federation dated 06/26/1992 No. 3132-1 "On the status of judges in the Russian Federation", mainly at this court instance.

At the same time, despite the violations, bringing a judge to criminal responsibility as an official is more problematic due to the fact that a judge has immunity (Part 1 of Article 16 of the Law of the Russian Federation "On the Status of Judges in the Russian Federation").

Moreover, the decision to institute criminal proceedings against a judge is made only by the chairman of the Investigative Committee of the Russian Federation and only with the consent of the Higher Qualification Board of Judges of the Russian Federation (paragraph 4, part 1, Article 448 of the Code of Criminal Procedure), which in most cases allows judges to avoid appropriate liability, as was the case in the above example ^[8].

Measures to combat corruption in the judicial system

According to paragraph 2 of Article 1 of Federal Law No. 273-FZ dated December 25, 2008 "On Combating Corruption", anti-corruption is the activity of authorized persons to prevent corruption, including its identification, elimination of causes, prevention, disclosure, investigation of corruption offenses, minimization and elimination of consequences.

Thus, such scientists as R. M. Usmanova, O. V. Solovyova and others were engaged in the study of anti-corruption measures.

According to R. M. Usmanova, "great hopes in the fight against corruption are placed on the institute of public control. Information is publicly available on where and how to contact when cases of corruption are detected. However, everything closes on the fact that these messages are received by persons who cannot or do not want to respond to them appropriately" ^{[9, p. 56]}.

The author of the study agrees with this position, since the participants in the trial, whose representatives are persons with higher legal education (Part 1 of Article 55 of the CAS of the Russian Federation, part 2 of Article 49 of the CPC of the Russian Federation, part 3 of Article 59 of the APC of the Russian Federation), are able to see and justify the judge's unbiased behavior towards one of the parties, which in In turn, it allows you to apply to the Qualification Board of Judges (if a magistrate or district court) or the Higher Qualification Board of Judges to initiate appropriate proceedings. At the same time, the problem is caused by the fact that if you apply to the Qualification Board of Judges, then the board will include a representative from the court against whose judge the complaint is received, which in some cases allows the judge to avoid responsibility by "acquaintance".

The chairman of the Arbitration Court of the Tambov region, Candidate of Law O. V. Solovyova, believes that "anti-corruption for acting judges is mainly concentrated in two directions: compliance with the principles and rules of professional conduct of a judge, consideration of cases and other official work, as well as the behavior of a judge in extrajudicial activities" ^{[10, p. 453]}.

Consequently, anti–corruption is divided into an internal aspect related to official activity and an external one, in other words, an internal one – when the judge himself performs active actions, which is included in the range of his powers, in particular, countering the direction of suppression on the issuance of an unlawful judicial act ^[11], and an external one - when the judge performs active actions on the issue is not directly related to him, but through a person whose functions included resolving the existing issue ^[12].

According to sub-clause "a" of clause 1 of Article 1 of the Federal Law "On Combating Corruption": "corruption: abuse of official position, giving bribes, receiving bribes, abuse of authority, commercial bribery or other illegal use by an individual of his official position contrary to the legitimate interests of society and the state in order to obtain benefits in the form of money, valuables other property or services of a proprietary nature, other property rights for oneself or for third parties, or the illegal provision of such benefits to the specified person by other individuals." The same is provided in the Methodological Recommendations on the implementation by the qualification boards of judges of the norms of the legislation of the Russian Federation on combating corruption, approved by the decision of the Higher Qualification Board of Judges of the Russian Federation dated January 26, 2017.

It should be noted that obtaining the status of a judge is voluntary, including the fulfillment of imposed obligations ^[13]. In particular, the obligation to provide information on income, expenses, property and property obligations, posting them on the Internet information and telecommunications network on the official websites of courts, which is regulated by Part 6 of Article 8 of the Federal Law "On Combating Corruption", Part 4 of Article 8 of Federal Law No. 230-FZ dated 03.12.2012 "On control over the compliance of expenses of persons holding public positions and other persons with their incomes" and paragraph 1.1 of Part I of the Methodological Recommendations on filling in certificates of income, expenses, property and property obligations by judges and employees of the court apparatus, approved by the decree of the Presidium of the Supreme Court of the Russian Federation dated 02/17/2021.

Despite this, the vast majority of judges refuse to disclose information about income and property. In particular, 88 out of 131 judges (67.18%) of the Krasnodar Regional Court did not fulfill this obligation (Komsomolskaya Pravda, 05/25/2022). Moreover, they were not held accountable at all for this. This phenomenon has not bypassed the military courts.

In order to establish the reasons why the judges do not fulfill the obligations imposed on them, which they voluntarily accepted, an appeal was sent to the Southern District Military Court. According to the response received from the chairman of the judicial staff of the Southern District Military Court V. A. Togubitsky dated 01/13/2022 No. 8-1: "I inform you that in accordance with Article 8.1 of the law "On the Status of Judges in the Russian Federation" judges are required to submit income information annually, but have the right to refuse to publish them on the official website of the court. The publication of information on the income of judges is not the duty of a judge and can only be carried out with the written consent of the judge to post information on income and expenses on the official website of the court on the Internet.

Thus, there are no grounds for conducting an audit on the fact of not publishing information on income, as well as bringing judges of the Krasnodar Garrison Military Court to disciplinary responsibility."

Having analyzed Article 8.1 of the Law of the Russian Federation dated 06/26/1992 No. 3132-1 "On the status of Judges in the Russian Federation", it was not established that judges "have the right to refuse to publish income information on the official website of the court."

Consequently, there is a situation described by R. M. Usmanova, when the persons who should exercise control refuse to take appropriate measures, apparently pursuing an interest in continuing non-publication of mandatory information.

In practice, in solving the issue of corruption, it is seen in digitalization and automation of individual processes ^[14]. For example, the courts introduced a system of automated distribution of cases between judges, which was supposed to prevent the very possibility of sending an incoming claim to a judge interested in its consideration ^[15]. At the same time, information has appeared in some sources that there is a real possibility, in case of waiting for the receipt of a claim, to send it to the appropriate judge. This is achieved through manipulation of the appeals distribution program itself, including by temporarily excluding judges from it, for example, due to illness, short-term vacation or other reason, as well as the addition of judges considering similar categories of cases.

The identification of facts of corruption manifestations related to the illegal demands of the chairmen of the courts has further aggravated the problem of combating corruption ^[16].

In fact, at present, the case can only be considered in a certain court, based on the principles of jurisdiction and territoriality. In cases where the chairman of the court himself, especially of the appellate or cassation instances, is involved in a corruption scheme, it becomes impossible to achieve justice at all.

Thus, at the moment there is a problem with the implementation of anti-corruption measures in the courts, since controlling officials refuse to carry out appropriate measures, the automation of individual trials is subject to internal manipulation ^[17], and the procedure for holding judges accountable is complicated to such an extent that a limited number of persons have the right to involve them (mostly located outside the region where the offense was committed), which, without the approval of the Higher Qualification Board of Judges, does not have the legal capacity for appropriate implementation.

Digitalization of trials

In the legal system of the Russian Federation, justice can be carried out exclusively by the courts (Part 1 of Article 118 of the Constitution of the Russian Federation) ^[18]. Consequently, Russian citizens who want to protect their rights and defend their legitimate interests turn to the courts to issue a lawful judicial act on their issue. Thus, citizens who have applied to the court are interested in the fact that the presiding judge is impartial, fair and objective ^[19]. In other words, citizens have a kind of dependence on the judicial system, which can deprive them of their property by issuing an appropriate judicial act (Part 3 of Article 35 of the Constitution of the Russian Federation) ^[20].

Despite the fact that everyone is equal before the law and the court (Part 1 of Article 19 of the Constitution of the Russian Federation) ^{[21, p. 117]} and everyone is guaranteed judicial protection of his rights and freedoms (part 1 of Article 46 of the Constitution of the Russian Federation) ^[22], and one of the basic principles of justice is the adversarial nature of the parties (Article 14 of the CAS of the Russian Federation 12 of the CPC of the Russian Federation and Article 9 of the APC of the Russian Federation), currently there are situations when one side of the dispute has more rights than the other, which is observed in relation to the judge himself to the participants in the trial.

Scientists such as S. M. Kurbatova, M. E. Kubrikova, T. N. Khalbaeva and others have been studying the issues of digitalization of the judicial body.

According to S. M. Kurbatova, the information technology process in the courts makes it easier to ensure the appearance of participants in the process ^{[23, p. 35]}.

Indeed, taking part in a court hearing by videoconference (Articles 142 of the CAS of the Russian Federation, Articles 155.1 of the CPC of the Russian Federation and 153.1 of the APC of the Russian Federation) through a selected court or web conference (Articles 142.1 of the CAS of the Russian Federation, Articles 155.2 of the CPC of the Russian Federation and 153.2 of the APC of the Russian Federation) allows not only to simplify this process, but also significantly reduce the cost of arrival especially if the court is in another city.

M. E. Kubrikova noted in her research that digitalization makes it possible to automate the distribution of cases between judges ^{[24, p. 145]}.

At the same time, this event, although it facilitates the work of the court staff, since it is not necessary to calculate which of the judges had how many cases considered in order to maintain an average balance of the number of proceedings, and also, a priori, it was supposed to reduce corruption manifestations associated with "custom-made" cases that were distributed to specific judges, in practice, the computer operator and the responsible for the maintenance of the information database, he could make changes (carry out appropriate manipulations) by oral order of the chairman of the court or his deputies.

In turn, T. N. Khalbaeva believes that the digitalization of judicial practice is achieved through the introduction of an electronic signature, which allows documents to be certified electronically without personal arrival in court ^{[25, p. 665]}.

This method simplifies the submission of documents where originals are required. At the same time, in order to provide the issued judicial acts, an additional request should be made with the assurance of an enhanced qualified electronic signature of the judge presiding over the case.

Thus, the study of their scientific works showed that the main digitalization measures are aimed at automating and facilitating the existing processes in the courts, while the issues of countering corruption manifestations are applied only in terms of the independent distribution of computer cases, which is confirmed by various kinds of manipulations, both external (chairman and deputy chairman of the court, computer operator, court staff and etc.), and external (hacker attack, remote connection, etc.).

Consequently, the solution to the existing problem related to corruption manifestations is seen in reforming the existing system by digitalizing individual processes.

The study of corruption-related cases involving judges has shown that, for the most part, bribing a judge occurs after registration of the application and when the party to the process knows the identity of the judge, namely the person who will administer justice in the case ^[26].

In this regard, we consider it necessary to consider the possibility of preventing participants in the process from obtaining the identification data of a judge, which will more enable participants in the process to achieve justice and legality when considering their issues.

In modern realities, there is a practice when judges are guided not by the principles of legality, but by their inner conviction (Part 1 of Article 84 of the CAS of the Russian Federation, part 1 of Article 67 of the CPC of the Russian Federation and Part 1 of Article 71 of the APC of the Russian Federation), which in some cases leads to an unfair trial and distrust among citizens of the judiciary due to "the lack of a sense of legal security" ^{[27, p. 108]}.

The analysis of this phenomenon shows that unfair court decisions are often made as a result of financial incentives for a judge of one of the parties, the high official position of the opponent in the region of the court, as well as due to other possible interests of the judge (resolution of the Plenum of the Supreme Court of the Russian Federation dated 16.10.2009 No. 19 "On judicial practice in cases of abuse of office") and interpersonal connections that allow you to get to the judge.

The measures taken to counter corruption in the judicial sector did not give the proper result ^{[28, p. 100]}.

Part 1 of Article 120 of the Constitution of the Russian Federation establishes that "Judges are independent and obey only the Constitution of the Russian Federation and federal law." Consequently, behind all unfair court rulings are only the judges themselves who issued them.

Thus, to solve this problem, it is enough to perform a number of actions that will not allow not only to bribe (bribe) a court official, but also to reach him through various administrative connections.

We consider it necessary to reform the judicial system in terms of concealing the identity of a judge, because you can't negotiate with someone you don't know yourself, you can't reach out to someone you don't know.

The current legislation does not regulate anywhere that the parties to the trial must know the identity of the judge, which makes it possible to implement the specified provision in the proposed part.

At the moment, the judicial system of civil and administrative proceedings is divided into 4 parts: the courts of the first (district courts), the second (appellate), the third (cassation) and supervisory instances. At the same time, the cassation instance is divided into cassation courts and the Supreme Court of the Russian Federation, and each of the following instances has a large number of courts.

In this regard, it is proposed to combine the courts of the 1st instance into one system, the courts of appeal into the second, and the cassation courts into the third. Each judge of a different system will be assigned an ordinal number that allows him to be identified and will be known to the parties to the process, while other information about the judge that allows him to be identified (full name, place of work, etc.) will be attributed to personal data in accordance with the Federal Law of 07/27/2006. No. 152-FZ "On Personal Data" and will not be available to the parties to the process.

In the context of the pandemic, videoconferencing is widely used in courts, which allows remote participation in most processes, even through an ordinary smartphone, without visiting the court itself. At the same time, the identification of a person takes place through the state portal of services (Public Services).

Thus, the economic costs of introducing this proposal will be minimal, since videoconferencing is already present in almost all courts of the Russian Federation, starting with district courts.

The use of videoconferencing technologies makes it possible to conceal the identity of the judge, thereby reducing the corruption component. For example, cases related to Krasnodar territoriality will be considered by a randomly selected judge from all over the Russian Federation, with the exception of the region where the parties to the dispute are located.

This approach will also make it possible to evenly distribute court cases among judges, preventing a judge from having more assigned court cases in one region than in another due to the small population in the region of location ^[29].

It will make it easier to ensure the appearance of participants in the trial, as well as information about the date of the court session, which will reduce cases of abuse of the right of a certain category of citizens who, knowing about the court session, intentionally do not attend it, and after the issuance of a judicial act not in their favor, appeal it referring to a procedural violation of their rights by not properly informing them about the date and time of the court session, which in some cases makes it possible to delay the trial ^[30].

Moreover, the court costs of staying at the court session will be reduced, especially with regard to arrival in other cities. Considering that state bodies are also participants in lawsuits, the positive aspect of this introduction will be the absence of the need to send representatives and pay related expenses (food, accommodation, travel, etc.) ^[31]. A positive aspect for citizens will be the opportunity to exercise all their rights remotely, and in case of loss of the case, court costs will be significantly reduced as a result of similar remote participation of the opponent.

The study of statistical data showed that the higher the judicial instance, the more problematic and difficult it is to resolve the "issue" with the judge in their favor outside the framework of the judicial process, but on the corruption component.

In this regard, it is advisable to entrust the control and maintenance of this system to the Supreme Court of the Russian Federation, which will act as a guarantor that the parties to the process will not be able to identify the judge. Thus, in accordance with Part 3 of Article 12 of the Federal Constitutional Law No. 3-FKZ dated 05.02.2014 "On the Supreme Court of the Russian Federation", the Chairman of the Supreme Court of the Russian Federation performs functions to ensure "the organization of the activities of the Supreme Court of the Russian Federation, the system of courts of general jurisdiction and the system of arbitration courts".

Highly qualified specialists sit in the Supreme Court of the Russian Federation, therefore, when adopting and implementing the proposed concept, if a citizen or another person decides to bribe a judge of the first instance to make a court decision in his favor, then this citizen will initially need to find a way out to officials of the Supreme Court of the Russian Federation, who I assume will immediately inform the competent authorities based on the principles of non-violation of the law. At the same time, as statistics show, it is almost impossible for most citizens to find a way out to resolve the issue in the Supreme Court of the Russian Federation. At the same time, at the present moment, a citizen who has decided to bribe a judge in his favor in the first instance, it is enough to find a way out to the judge of the district court, as the practice of testimony shows, is not a sufficiently problematic case.

Even if a citizen can find a way out and find out the personal data of a judge outside the framework of the law that is considering his case, then this citizen will also need to find a way out to start interacting with the judge in his case, which again creates difficulties in the corruption component. The judge in the case of the said citizen, when trying to get in touch with him, also understands that he will bear personal criminal responsibility for the actions committed, even for simple interaction with a citizen outside the framework of the judicial process.

Therefore, in such a situation, this judge will have to recuse himself in connection with the disclosure of his identity, which prevents further impartial justice and immediately inform the competent authorities to conduct pre-investigation measures and initiate criminal proceedings against a citizen, in fact, that the specified person collected information about the judge, contacted him and obstructed justice. The evidence in this case will be the very fact of a personal appeal to the judge and the receipt of his personal data in the framework of this case.

As can be seen from the example shown, with this concept, we actually create a layer in which anyone who decides to bribe a judge will actually be obliged to go through it, and therefore, the risk of disclosure of this event and generally refusal to commit an illegal action increases.

Since the judge will be appointed from all courts of the Russian Federation, depending on the instance, citizens should be given the opportunity to submit an (administrative) statement of claim, private complaints and other procedural documents to the court at their place of residence, which will register documents according to the general instructions and upload them to the subsystem where the judge is already appointed.

At the same time, a large number of courts of the 1st and appellate instance leads to the fact that citizens of the Russian Federation do not know which court to apply to in case of violation of their rights ^[32], and often miss procedural deadlines (within part 1 of Article 219 of the CAS of the Russian Federation for 3 months), as a result of which their rights are not restored, that is, this proposed concept will ensure guaranteed state protection of citizens' rights, which is directly enshrined in Part 1 of Article 45 of the Constitution of the Russian Federation.

Concealing the identity of the judge from the parties to the process also makes it possible to increase the safety of the judge and impartiality in making a court decision, since the judge will not worry about possible consequences from the parties involved. Any attempts to obtain information about the judge's identity, as well as attempts by the judge to contact the participants in the process outside the framework of the trial, should also be prosecuted under Article 294 of the Criminal Code of the Russian Federation "Obstruction of justice and preliminary investigation".

To monitor the implementation of this concept, it is periodically necessary to conduct comprehensive inspections involving employees of the departments of the Economic Security Service of the FSB of Russia and Economic Security and anti-Corruption of the Ministry of Internal Affairs of the Russian Federation, who, as part of operational investigative measures, will conduct inquiries, removing information from technical communication channels, operational experiments and obtaining computer information (paragraph 2, 11, 14 and 15 of Articles 6 of the Federal Law "On operational investigative activities" ^[33]).

Conclusion

The analysis of the conducted research has shown that at the moment there are cases of corruption in the judicial authorities of the Russian Federation, and the measures taken to combat corruption do not give proper results due to the temporary obsolescence of the methods used. In this regard, there is a need to reform the judicial processes themselves.

In our opinion, this proposal will not only reduce the corruption factor in the judicial system, but also ensure the protection of the rights of citizens of our homeland, where judges will not be interested in granting additional preferences to one of the parties involved in the process. We believe that this approach to solving the voiced problem contributes to the normalization of the legality of the judicial system and will make justice more fair, based on the principle of legality and equality of participants in judicial processes. In particular, where the rights of men and women will be equal (gender equality), and the rights of citizens – the rights of state organizations in the judicial process.

In this regard, I consider it necessary:

1. On the basis of the GAS "Justice" portal, enter information about all judges and pending cases within the framework of the CAS and the CPC of the Russian Federation, divided by each instance. To create an automated system that, upon receipt of applications, selects a judge of the appropriate instance with a minimum number of cases to appoint him to consider the received application. At the same time, the judge's personal data is hidden, and a temporary number corresponding to the case number is assigned for the duration of the case. The control and organization of the concept should be entrusted to the Supreme Court of the Russian Federation.

2. Supplement the CAS And the CPC of the Russian Federation with the following provisions:

2.1. Administrative, statements of claim, private complaints, appeals, etc. are filed with the court at the place of residence of a citizen or through the GAS "Justice" system. The court is obliged to accept the documents and enter them into the portal of the GAS "Justice" for the subsequent appointment of a judge.

2.2. Upon disclosure of his identity by a participant in the judicial process, the judge is obliged to recuse himself and inform the competent authorities about obstruction of justice, indicating a specific citizen.

2.3. When organizing video conferencing, the judge's identity is depersonalized, as is his image.

3. Add Article 294 of the Criminal Code of the Russian Federation "Obstruction of justice and preliminary investigation" with a part providing for criminal liability for any attempts to obtain information about the identity of the judge in question, as well as attempts by the judge to contact the participants in the process outside the framework of the trial.