Composition of judges: problems of definition, classification and legal consolidation

Kartsevskaya Ol'ga Aleksandrovna Judge; Second Court of Cassation of General Jurisdiction 29 Vereyskaya str., p. 34, Moscow, 121357, Russia olgakartsevskaya@yandex.ru Other publications by this author

There is no agreed position in the legal science regarding the definition of such definitions as "composition of the court" and "judicial composition". Thus, M.P. Kulenkova traces a direct connection between the composition of the court and the collegial and individual consideration of cases: "One of the grounds for differentiating the forms of consideration of criminal cases in court is the composition of the court (collegiality and uniqueness)" ^{[1, p. 232]}. As an internal structural organization of the court, the composition of the court is revealed in the work of E.S. Yurova: "The Court of the Eurasian Economic Union: composition, competence, practice", understanding the composition of the court as its internal structure, notes: "The court has a rather complex structure. It consists of a Large Collegium of the Court, the Collegium of the Court, the Appeals Chamber, the Judicial Corps, the Judge's Adviser and the Secretariat" ^{[2, p. 474]}. A similar opinion is shared by E.A. Ageeva, who has studied the specifics of the formation of the composition of the Supreme Court of the United States ^{[3, pp. 60-62]}. Researcher O.P. Antonova comes to the conclusion that the categories "composition of the court" and "judicial composition" are synonymous ^{[4, pp. 342-348]}, with which A.A. Mikhailova associates herself: "failure to comply with the condition of the immutability of the composition of the court is one of the significant violations of the rules of civil, arbitration and criminal proceedings, entailing the cancellation of judicial acts by a higher court" ^{[5, p. 65]}. Y.V. Fedorova understands the composition of the court as judges directly considering the case: "the immutability of the composition of the court during the consideration of a criminal case is the best guarantee of the correctness of the verdict" ^{[6, p. 29]}. A similar position is found in A.V. Shilov: "The principle of the immutability of the composition of the court is closely related to the principle of the immediacy of judicial proceedings. It can be defined as a rule according to which a judge must personally perceive the evidence in a case and make a decision based on this evidence" ^{[7, p. 112]}. The topic of the correlation of the concepts under consideration remains relevant in the legal research environment ^{[8, pp. 29-37; 9, pp. 39-49; 10, pp. 39-44; 11, 460-463; 12, pp. 161-162; 13, pp. 26-31, etc.]}. An attempt to develop its own concept regarding the correlation of the categories "composition of the court" and "judicial composition" an attempt was also made by the author of this article ^[14]

In this regard, it seems advisable to bring the conceptual framework to uniformity. It is proposed to define the term "composition of the court" as an internal structural division of arbitration courts or courts of general jurisdiction at various levels, which may include such divisions as boards, presidium, plenum. The proposed understanding of "composition of the court" in this sense is due to its textual expression in Federal Constitutional Laws No. 1-FKZ dated 04/28/1995 "On Arbitration Courts in the Russian Federation" and No. 1-FKZ dated 02/07/2011 "On Courts of General Jurisdiction in the Russian Federation" and is intended to bring into the system a doctrinal and normative understanding of this institution.

At the same time, the "judicial staff" is understood as a group of judges designated for the consideration and resolution of certain court cases, and the "composition of judges" includes several judges or a single judge considering a particular case. Hence, the composition of judges is one person or a certain group of persons who administer justice in a particular case. The same judge may simultaneously be a member of various structural divisions of a court, but this fact does not contradict our proposed concept, since the concepts of "composition of the court", "judicial composition" and "composition of judges" are not in conflict and do not exclude interpenetration.

In this regard, it seems advisable to identify the following features of the composition of judges.

1. Variability of the structural organization. A team of judges or a specific judge investigating a relevant case may vary from one trial to another. This ensures, among other things, the impartial nature of justice, since the judicial teams that consider cases periodically change and are not set initially.

2. Situationality. The stable staff is maintained only within the framework of specific cases, but with the change of cases, the team is often reformatted. Situationality is particularly evident in the context of the introduction of digitalization in justice, when there is no subjective factor in the formation of the composition of judges at all. We are talking about the formation of the composition of judges through the use of special software.

3. Specialization. It should be noted that this feature unites the composition of the court, the judicial staff and the composition of judges. In this case, it should be said that the judicial staff and the composition of judges, as a rule, include judges specializing in certain categories of cases. Following this rule makes justice more effective.

4. An organic combination of collegiality and singleness. If the composition of the court in our proposed understanding, being a certain branched structure, by its nature does not imply sole decision-making, then the composition of judges can be either collective or individual when it consists of one judge. Most cases in the first instance are considered by a judge alone, with the exception of cases established by law, while the consideration of cases by courts of higher instances is most often collegial.

5. Combining the participation of professional judges and the possibility of administering justice through the involvement of jurors and arbitrators. Thus, the professionalism of judges is complemented by the democracy of the administration of justice. Legal issues, therefore, are proposed to be resolved by professionals, and the assessment of factual circumstances can be carried out by representatives of the people – jurors and arbitrators.

Characterizing this feature, it should be noted that there is a widespread and, in our opinion, reasonable opinion about jurors and arbitration legislators as non-professionals. The German experience of the Scheffen court, the selection of which includes two stages – the nomination and the actual selection stage, would help to somewhat smooth out this effect and increase the professionalism of the people's representatives while preserving the institution of assessors. At the first stage, candidates are elected by municipalities, and at the second stage, committees of district courts are elected from the nominees of non-professional judges. This procedure, according to researcher V.N. Rudenko, "is explained by the desire of the German legislator to create a barrier against the lack of professionalism of the judicial presence with the participation of citizens" ^{[15, p. 421]}. Another rule that increases the professionalism of decisions made, on the development of a final decision by a professional judge, is applied, including in Russia.

6. Dynamism. If the composition of the court is a kind of static structure established for a particular long time, then the composition of judges is a mobile structure that changes from one case to another through lots or decisions of the chairman of the court.

Regarding the relationship between the composition of courts, judicial structures and the composition of judges, it should be noted that, guided by the philosophical categories of general and special, the concepts studied are interconnected by such a common feature as specialization. Both the structural elements of the composition of the court and the judicial structures, as well as the composition of judges, both collegial and individual, have specific tasks and the ability to implement them.

At the same time, despite a certain area of intersection, the differences are more significant. So, if the composition of the court is characterized by a fairly clear structure, then the judicial structures and the composition of judges are marked by a variable structural organization. The composition of the courts is systematic, and the judicial composition and composition of judges are variable. The composition of courts and judicial structures are collegial in nature, and the composition of judges can include both several judges and one judge and, therefore, be characterized by both collegiality and singleness. If the composition of the court and the judicial staff are formed on the basis of professionalism, then the composition of judges can combine both professional judges and jurors and arbitrators – representatives of the people. In addition, the composition of the court is stable, it is formed for a certain long period, the judicial composition is less stable, the composition of judges is the most dynamic unit, which can change from one court case to another through lots, an automated system, or a decision by the chairman of the court.

The introduction of these definitions into scientific circulation in the future could lead to changes in the relevant procedural codes. This would make it possible to achieve unification, unity of understanding of the meaning of the concepts "composition of the court", "judicial composition" and "composition of judges", harmonization of ideas about the optimal ratio of collegiality and singleness in the organization of justice, bringing into line the actual existing organizational relations in the field of justice, their doctrinal embodiment and normative legal expression.

In our opinion, in all procedural codes it would be advisable to align the legislator's understanding of certain legal categories with their textual expression.

The wording of article. 15 of the Civil Procedure Code of the Russian Federation "The procedure for resolving issues by a collegial court" defines that "1. Issues arising during the consideration of a case by a collegial court are resolved by the judges by a majority vote. None of the judges has the right to abstain from voting. The Chairman votes last. A judge who does not agree with the majority opinion may express in writing his dissenting opinion, which is attached to the case, but is not announced when announcing the court's decision on the case." Accordingly, the legislator, by regulating the procedure for making a decision on a case, thereby logically justifies the correctness of our proposed concept of "composition of judges" instead of "composition of the court", which is formally defined in the title of Chapter 2 of the Civil Procedure Code of the Russian Federation.

It seems that in most codes, the legislator actually means by the term "composition of the court" precisely the composition of the judges considering a particular case: "Unless otherwise established by this Code, the consideration of cases in cassation or appeal is carried out by a court consisting of a presiding judge and two judges" (paragraph 1, part 2, art. 14 of the CPC RF). The higher courts are also following the path of using this term in the meaning we have proposed. Here are some examples in this regard. So, in the definition of the Supreme Court of the Russian Federation dated 02/06/2014 N APL13-605 it is specified: "If circumstances are established that cast doubt on the impartiality of judges whose acts have been annulled by a higher court, the possibility of sending the case for a new hearing by a different panel of judges is not excluded." A similar wording is contained in the appellate ruling of the Appellate Board of the Supreme Court of the Russian Federation dated 08.08.2023 N APL23-7D: "... this circumstance does not indicate the legality of the decision not to assign cases to E.G. Khomyakov as a reporting judge (presiding judge), since according to the Arbitration Procedural Code of the Russian Federation, cases in the arbitration court of the appellate instance are considered collectively by three judges." The resolution of the Presidium of the Supreme Court of the Russian Federation dated 09/25/2024 N 18P24 states that "the composition of the judges indicated in the minutes of the court session who participated in the consideration of the criminal case against Ivanov V.I. in the cassation procedure does not correspond to the composition of the judges indicated in the cassation ruling."

In accordance with the author's approach to understanding and correlating the concepts of "composition of the court", "judicial composition" and "composition of judges", we believe that Chapter 2 of the Civil Procedure Code of the Russian Federation should be called "Composition of judges. Taps". It would be more correct to define the title of article 14 of the same Code as "Composition of judges" and to state the third and fourth parts of this article in the following wording: "3. The composition of judges for the consideration of each case is formed taking into account the workload and specialization of judges through the use of an automated information system. If it is impossible to use an automated information system in court, it is allowed to form the composition of judges in a different manner, excluding the influence of persons interested in the outcome of the trial on its formation.

4. A case initiated by one panel of judges must be considered by the same panel of judges." The proposed reduction of part 4 of Article 14 of the Civil Procedure Code of the Russian Federation is justified by the fact that the definition of "composition of judges" proposed by us means both the sole judge considering the case and the collective of judges.

In the context of the relationship between the concepts of "composition of the court" and "composition of judges", in our opinion, it is also advisable to formulate part 2 of Article 16 of the CPC RF as follows: «2. The judges considering the case may not include persons who are related to each other." For the same reason, we propose the following wording of paragraph 2 of Part 2 of Article 20 of the CPC RF: "When considering a case by the court collectively, the issue of recusal is resolved by a ruling issued in the conference room. A challenge filed against a judge is resolved by the same panel of judges in the absence of the dismissed judge. A challenge filed against several judges or the entire composition of judges is resolved by the same court in its entirety by a simple majority vote. If there are an equal number of votes cast for and against the challenge, the judge is considered dismissed."

Also, in our opinion, parts 2-4 of Article 21 of the Civil Procedure Code of the Russian Federation need to be adjusted, which are proposed to be stated as follows: «2. In the event of the recusal of a judge or the recusal of the entire composition of judges during the consideration of a case in a district court, the case is considered in the same court by another judge or another composition of judges, or is referred to another district court by a higher court if it becomes impossible to replace the judge in the district court in which the case is being considered.

3. In case of recusal of a judge or recusal of the entire composition of judges, when considering a case in the supreme court of the republic, the regional, regional court, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district, the court of appeal of general jurisdiction, the court of Cassation of general jurisdiction, the Supreme Court of the Russian Federation, the case is considered in the same court by a different composition of judges..

4. If, after the applications for challenges have been satisfied or for other reasons, it is impossible to form a new composition of judges to consider the case, the case must be transferred to another court in accordance with the procedure provided for in paragraph 4 of the second part of Article 33 of this Code." At the same time, the content of part 1 of Article 21 of the Civil Procedure Code of the Russian Federation does not contradict the author's concept.

In our opinion, similar changes should also be made by the APC of the Russian Federation, the CPC of the Russian Federation and the CAS of the Russian Federation. The Code of Administrative Offences of the Russian Federation, in turn, does not require appropriate amendments, since it lacks separate provisions on the composition of the court. This is due to the fact that the courts do not consider cases of administrative liability and do not review decisions on administrative offenses in a collegial manner.