Enhancing and maintaining

transparency in the judicial system

Andrey Kashin, Avilon AG

Paper vs. Audio

The essential difference between what is declared in the operative part of the court hearing

The Judge with the straight and honest face announces the ruling that in future will look seriously different. Sometimes the financial outcome of the difference equals to millions.

and the decision in its entirety

Paper based protocol is always the winner in Russian courts !!!

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The discrepancy in the sum of the final version of the court’s ruling and the sum announced in the session ruling can be substantial and cause tensions between the lawyer and the client.

The exposure of the judge who committed the abuse leads to conflict between the lawyer and the entire judicial community

The lawyer will have to take some additional and sometimes costly steps to create grounds for cancellation of the written ruling (reviewing materials of the case, filing motions, procedural appeals)

Consequences for the lawyer (rather obvious)

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• Submission of the motion on the audio record of the session (indicating even the model of the digital voice recorder)

• Additional oral request to the court's secretary to make an indication in protocol that the motion is filed

• Practical problem: Nobody (except may be the judge) knows when exactly the protocol will be finalized and signed

• Solution: Party’s comments on protocol shall be filed with the court ASAP irrespective the date of factual readiness of the protocol signed by the judge (five days after hearing in general jurisdiction court, three days in commercial (“arbitrazh”) court)

Enhancing transparency during the court’s hearing

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Transparency in the “first” cassation instance

General jurisdiction(regional courts)

• There are no chances not only to enhance level of transparency there is no transparency at all on the stage of pre-selection of the complaint (sole consideration of the cassation complaint by a judge to decide whether to forward the complaint for consideration in session of cassation instance or not).

Commercial (“Arbitazh”)(courts of districts)

• The procedure of the first cassation is transparent and all instruments to maintain transparency are available (non-selective procedure, audio-protocol, paper based protocol, comments of the parties)

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Alert: Section 52.2 of the Concept of Civil Procedural Code proposes pre- selective cassation for both general and commercial courts. Sole consideration of cassation complaints in commercial courts leads to apparent degradation of commercial justice.

Transparency in the “second” cassation instance

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• There is almost nothing to discuss because pre-selection of the complaints via “one-judge-filter” solves the “problem of transparency” completely. Transparency just disappears. No transparency – no problem. Nothing to maintain and nothing to enhance.

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Answer: The most meaningful difference is that the left Refusal letter is signed by the “First” Deputy and the right one is signed by “simple” Deputy Chief Justice

Task: Please, spot any meaningful differences

Chief Justice of the Supreme Court as the last hope

The existing procedures in

Supreme Court of Russia do not allow to state that procedures

are transparent.

The proposed Concept of the unified Civil Procedural Code is

making the procedures in the courts of

cassation instance even less transparent.

Even simple return to the standards existed in Supreme Arbitrazh Court will be a great

step forward for Russian Justice.

Conclusions

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Hope springs eternal

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Corps of deputies gives hope and leaves concern for the quality of the forthcoming Civil

Procedural Code