The Supreme court was included in all processes
The Supreme court (SC) has proposed a major procedural reform. The amendments, which are designed to reduce the burden on judges and make it easier for them to rule on disputes, will affect civil, arbitration and administrative proceedings. Decisions on many cases the courts will be able to motivate, elbows on economic disputes will be challenged to consider themselves judge, the appeal will become the sole, and the citizens will have to learn about meetings with his participation. In addition, it is supposed to decipher the code of Criminal procedure, the concept of entrepreneurs who are not subject to arrest for economic crimes, and strengthen requirements for judges and investigators in the extension of preventive measures.
The Plenum of the armed forces approved submission to the state Duma the bills on amendments to the Civil procedure (CPC), Arbitration procedure (AIC) and the Criminal procedure codes (CPC) and the Code of administrative procedure (CAS).
The documents contain more than 120 pages and involve large-scale changes of the process of consideration of cases in courts of General jurisdiction and arbitration courts, which will affect both judges and parties to a dispute.
In the explanatory Memorandum to the bills the necessity of amendments of the sun explains the purpose of “facilitating protection of the rights of citizens and organizations, improving the quality of justice, the optimization of the case load”. According to the sun, it is intended “to ensure the rights of applicants for judicial protection of individuals to a fair trial within a reasonable time”. In confirmation of the sun cites statistics: in comparison with 2014, the number of civil and administrative cases in courts of General jurisdiction (first instance) increased by 23%, in arbitration courts — 14%. The increase in the number of disputes entails a higher financial cost: from 2014 to 2017 the volume of budgetary funds on maintenance of activity of vessels increased on average by 26%.
The most important change is the rejection of compiling the reasoning of judicial decisions in most cases. Thus, the court will be sufficient to indicate the satisfaction or denial of claim, without explaining the reasons for the decision.
Exceptions are made only for several categories of cases in which motivation will have to unsubscribe and that sun apparently considers important. For the Arbitrazh courts is the case for the recovery of funds from budgets and disputes from public relations, business bankruptcy disputes, intellectual property and corporate litigation, class actions and cases involving foreign parties and States. For courts of General jurisdiction is in addition to the above, disputes about children, about compensation of harm of life or health, on reinstatement, the rights to housing, protection of the pension rights or interests of an indefinite circle of persons.
Lawyers, supporting the objective to decongest the courts, take a dim view of the proposal rejection of the reasoning part of the decisions. “Without motivation, in fact, there is no justice. This is acceptable in some cases for small claims, but to transform this into a General rule undermines the process. Without a full court decisions we cannot speak about the prevailing practice, it is unclear how to identify similar cases and how to install prejudicial facts,” says the managing partner of AB “Bartolius” Yuliy Tay.
In his opinion, it is difficult to talk about the appeal of judicial decisions, not knowing the motives of the court, and the availability of detailed and logical motivation, on the contrary, to get the parties to abandon the appeal against the decision.
“In the Russian judicial practice motivation has always been a complex issue. We do not motivate acts as do the English courts or arbitration. Sorry, we have no tradition of such a profound interpretation. In this situation all the more impossible to abandon the reasoned decision and the more and more in appeal. This causes even more misunderstanding of the parties why they had rejected the complaint. The motivation should convince the party that the decision is correct, and the lack of explanation of the decision will not lead to stability of judicial acts, on the contrary, it will increase the number of appeals of decisions of the courts,” — says the Advisor of the Federal chamber of lawyers of the Russian Federation Eugene Rubinstein.
To make the motivation in the remaining cases the court shall at the request of the parties.
If the claim was denied because of the Statute of limitations passes or the defendant acknowledged the debt and the claim was satisfied, in the reasoning of the decision, the court can only point to it and you can’t understand the arguments of the parties. The appellate court also will be able to unsubscribe motives of the decision, if he leaves the judicial act unchanged, and the parties are not asserted new arguments and evidence. Moreover, by default, appeal is reviewed by arbitration by a single judge, and not in a collegiate, as it is now. “When the sole consideration it reduces the quality of justice, because three minds are better than one. And the right not to unsubscribe motivation will serve as an additional incentive to reject new evidence and appeal are reluctant to accept”, says Yuliy Tay. Eugene Rubinstein agrees with him: “When reviewing a judge — there is no guarantee of impartiality, which provides peer review”.
Another significant innovation of the armed forces is due to the fact that the arbitration judges are able to consider applications on their allotment — this rule applies in courts of General jurisdiction.
In arbitrations, these statements are the responsibility of the Chairpersons of the judges or the courts themselves.
“In world practice there is a well-established rule that nobody can be judge in his own case. And if a judge claims and doubts in its objectivity, to consider them should the President of the court, Board, but not the judge himself,” — says Eugene Rubinstein. The same backward step, he believes, and the resolution of individual consideration of cases on appeal. “There is no such guarantees of impartiality, which provides peer review,” he said.
It is expected to change and the rules of notification of the citizens by the courts of General jurisdiction. In addition to personal service of summons proper notice will be deemed to transfer any adult person who resides with the participant, and if a citizen failed to appear for receipt of the summons or mail notified absence of the addressee at the specified address. Moreover, the fate of their dispute and appeal of decisions in higher instances, individuals will need to follow themselves.
“The courts are littered with cases of the spouses on the division of property, — said present at the plenary session the representative of the government of the Russian Federation in the higher courts Mikhail Barshchevsky.— In this case, there is no assurance that the other party will want to notify your opponent. We should at least establish administrative responsibility in case the agenda will not be transferred”. But the judges did not change the proposed amendment. “We live in the age of the Internet, — said the Chairman of the armed forces of the Russian Federation Vyacheslav Lebedev.— And the parties can learn about the beginning of the process and from the announcement on the website of the court.”
Special attention was paid to the Plenum of the practice of courts of criminal legislation in the sphere of entrepreneurial activity.
In this regard, was made to two documents: recommendation the decision the armed forces and the draft law on amendments to article 108 and article 109 of the code of criminal procedure. In the first the judges was once again recommended for complaints of the decision to Institute criminal cases in the sphere of entrepreneurial activity “checking the legality and validity of procedural actions and operative-investigative activities.” And to stop the prosecution, if the investigation used inadmissible evidence (article 75 of the code of criminal procedure), and “strictly follow” the provisions of part 1 of article 108 of the criminal procedure code, prohibiting the arrest of businessmen.
In this article, sun proposes the refinement in accordance with which the arrest may not be applied against the suspect or the accused, if the offense “committed by an individual entrepreneur in connection with the implementation of its business activities and (or) management of property belonging to it, used for such activities.”