In early September, Russia’s Supreme Arbitration Court was dissolved and the judicial matters previously under its authority were transferred to the jurisdiction of the Supreme Court. However, this reform uncovered various problems, the most pressing of which concerns personnel. IMR legal expert Ekaterina Mishina offers insight into yet another stage of Russian judicial reform.

 

During the dissolution of the Supreme Arbitration Court and the transfer of its functions to the Supreme Court, the problem of personnel shortage came to the fore: over the period of six months, a special qualification board could select only 110 candidates out of 223 applicants to occupy the 170 seats. Photo: ITAR-TASS.

 

As Mikhail Zhvanetsky, the Russian stand-up comedian and humor writer, once said about building renovations, there is no reason to believe that the current process of judicial reform can be completed—only stopped. Russian media have more than once announced the inevitably approaching but invariably successful completion of these reforms. In 2004, Chairman of Russia’s Supreme Arbitration Court Veniamin Yakovlev said that “the judicial reform is essentially completed and does not need any important structural adjustments.”

The judicial reforms were victoriously declared complete on August 6, 2014, when a body called the “new unified Supreme Court created on the basis of the former Supreme Arbitration Court and the Supreme Court” began operating. 

However, in order to put the icing on the cake—that is, to finalize the reforms—amendments needed to be made to nine articles of the Russian Constitution, as well as to other current statutes. 

In October 2013, the first fruits of the reforms appeared in the State Duma in the form of a bill for a constitutional amendment entitled “On the Russian Federation Supreme Court and Prosecutor General’s Office.” The bill proposed to form a single supreme judicial body for handling civil, criminal, and administrative cases, as well as resolving economic disputes and other cases. This body was to be formed in accordance with the federal Constitution “with a view to improving the judicial system of the Russian Federation and to strengthening its integrity.” Toward these ends, it proposed to abolish the Supreme Arbitration Court and transfer its functions to the Supreme Court. 

The bill was enthusiastically approved and passed all required stages of the legislative process. The proposed constitutional amendments received the approval of more than two-thirds of the subjects of the Russian Federation, and the law entered into effect on February 6, 2014. It was assumed that any remaining questions concerning the dissolution of the Supreme Arbitration Court and the transfer of its functions to the Supreme Court could be solved within the six-month transitional period. 

On February 5, 2014, the new federal constitutional law on the Supreme Court of the Russian Federation also entered into effect. Besides making significant changes to the jurisdiction of the Supreme Court, the law affected the location of the country’s supreme judicial authority, relocating it to St. Petersburg and leaving in Moscow only a representative office of the Supreme Court (see Article 22 of the federal constitutional law “On the Supreme Court of the Russian Federation”). 

At the same time, a special qualification board was established to oversee the selection of candidates for judicial positions on the Supreme Court. This board was supposed to begin operating during the transitional period that was set to expire on August 6, 2014. 

On March 12, a package of laws was adopted introducing several legislative changes. Amendments to the Russian Arbitration Procedure Code entered into effect in June. All told, considerable effort was put forth to ensure that the modified version of the Supreme Court could begin operating successfully within the time allowed by law. However, as the set date drew near, the problem of staff scarcity, which had always existed, now assumed center stage. In July 2014, the Federation Council approved the initial composition of the Supreme Court, but only 91 of the required 170 candidates received the approval of the upper chamber of Russia’s Federal Assembly. 

That is not to say, however, that the special qualification board did nothing. On the contrary, from March 17 to May 27, it was actively engaged in selecting candidates. Particular emphasis was placed on potential conflicts of interest. Many applications were rejected simply because candidates’ immediate family members (spouses or children) already held judicial positions in lower courts, meaning that the cases considered by them could become subject to review by the Supreme Court by cassation, through an appeal, or as a result of the court exercising its supervisory powers. Candidates whose relatives held the position of prosecutor or in-house lawyer struck members of the qualification board as the most suspicious. Some candidates were offered a choice between either abandoning the idea of holding a position on the Supreme Court or asking his or her relatives to resign from any positions that could discredit the reputation of a Supreme Court judge.

Russia’s current Supreme Court is not a new court, but simply a new version of the old one that swallowed the Supreme Arbitration Court and established a strict admission filter for its former judges seeking to hold judicial positions in the Supreme Court.

The 70-year age limit for a position on the Supreme Court set by the law was used as an additional filter. The selection of 110 candidates out of 223 applicants to occupy the 170 seats on the Court was the crown of the board’s labor. Among candidates who got the board’s recommendation were several former judges on the Supreme Arbitration Court and the Supreme Court, as well as several chief justices and lower-court judges. The Department of Public Office and Personnel in the presidential administration then rejected 19 out of the 110 candidates mostly because of potential conflicts of interest. 

It is worth mentioning that the majority of the rejected candidates were allies of former Supreme Arbitration Court chairman Anton Ivanov. It was the special qualification board itself that started the process of winnowing out Ivanov’s former colleagues from the pool of applicants, declaring it impossible to recommend them for judicial positions on the Supreme Court. Among the rejected candidates were former Supreme Arbitration Court deputy chairman Artur Absalyamov, Vladimir Slesaryov, and Tatiana Andreyeva. According to sources close to the selection process, the rejection of Andreyeva’s candidature was related to her criticism of the judicial reforms. The results of the selection process suggest that the selection criteria were too stringent: for example, the Judicial Board on Economic Disputes of the Supreme Court ended up with only 15 judges instead of the required 30. 

The course of events outlined here proves my initial point that in this particular case, the descriptions of “unified” and “created on the basis of the former Supreme Arbitration Court and the Supreme Court of the Russian Federation” are used incorrectly. Even the text of the law clearly reveals this error: “The Supreme Arbitration Court of the Russian Federation is being abolished and the judicial matters falling within its competence are being transferred to the jurisdiction of the Supreme Court of the Russian Federation.” There is not a word about the unification of the two supreme courts. On the contrary, the law states directly and unequivocally that one of the courts is to be abolished and the matters under its authority are to be transferred to the other one. Thus, Russia’s current Supreme Court is not a new court, but simply a new version of the old one that swallowed the Supreme Arbitration Court and established a strict admission filter for its former judges seeking to hold judicial positions in the Supreme Court.

Besides the personnel shortage, the format of the newly created Judicial Board on Economic Disputes is yet another negative but predictable outcome of the rapid reforms. Since the board is understaffed, the current number of judges may be insufficient to effectively fulfill the responsibilities of the Supreme Court with regard to resolving economic disputes. 

As is well known, the devil is in the details. The option of “electronic resolution economic disputes”—one of the greatest achievements of Ivanov’s team—is offered in large print on the homepage of the Russian Supreme Court’s website. However, electronic resolution is not offered for criminal, civil, administrative, and other cases falling under the jurisdiction of ordinary courts. Comment is probably needless in this case, despite the fact that on September 11, 2014, the Russian Ministry of Justice introduced a bill changing those procedural codes allowing the electronic submission of documents to courts. According to experts, the bill outlines much stricter requirements than are built into the effective My Arbiter system, which allows people to file commercial court documents electronically. Some experts have expressed concern that these changes might complicate the electronic filing process. 

In conclusion, it can only be said that Themis eyes are still open both on Russia’s Supreme Court building and on its updated website.

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