Translated material
Requiem on Judicial Reform
Digest for the publications of the federal
retired judges
The judicial reform, conceived during the years of Gorbachev’s perestroika, was approved by the Supreme Council of the RSFSR on October 24, 1991. She proclaimed:
• Renaissance of the jury and the Institute of World Judges
• introduction of judicial control over the legality of detention
• irremovability of judges
• Review of the work indicators of the police, prosecutor's office and courts
The illusions of the authors of the concept were reinforced by visible successes. So, it was possible to achieve:
• the proclamation of the irremovability of judges and the introduction of the rule according to which they could not be held accountable without the decision of the qualification colleges elected by the judges themselves;
• financing and supply of courts of general jurisdiction has gone to the judicial department, the control of the authorities not by the executive, but the judiciary;
• The Constitutional Court and Arbitration Courts arose;
• the circle of conflicts expanded, for the permission of which citizens received the right to appeal to the courts;
• every detainee and arrested in mid -1992 could file a complaint with the judge, and approximately every fifth such complaint from 80 thousand annually was satisfied; The law on the “holy of holies”-operational-search activity appeared, which was thereby introduced into the framework of law and, partly, judicial control;
• prohibited the use of materials obtained in violation of the federal law as evidence of citizens;
• courts with the participation of jury began to operate;
• the application of the death penalty was limited;
• colonies and investigative isolators from the Ministry of Internal Affairs of the Ministry of Internal Affairs went into the subordination of the Ministry of Justice;
• new colleges of lawyers have formed;
• A private notary has appeared.
However, the development of events showed that the recognition of democratic slogans on paper does not mean their automatic implementation. Even if legal principles seem to be embodied in specific institutions and institutions. New structures and procedures looked completely like real ones, but did not work as they were conceived by their authors.
A quarter of a century has passed, and today the Russians see that in our monarchical state:
• instead of independent judicial power, there is a judicial enclave controlled according to the principles of Eastern despotism - Kaganate;
• the judge, who is dear to his career, does not dare to disobey the judicial authorities, giving direct instructions on the permission of specific cases in the interests of local authorities and sponsors;
• bribery flourishes in the courts;
• Any criticism is suppressed, complaints of citizens are ignored;
• The judicial system is trying with all his might to secret, fence off from the public.
Why did this happen? Unlike successful judicial reforms in the countries of East Asia, in Georgia and the former GDR, our judicial reform was not accompanied by either lustration or serious personnel transformations. It was supposed to implement the old Soviet cadres. The regrettable consequences of this are reaping to this day. Meanwhile, as world experience shows, it is the lustration of the old personnel that determines the success of judicial reform.
So, Alexander II, conducting his famous judicial reform in 1864, resolutely replaced the “Dyakov, in the orders of the gray -haired” young freethinkers, the most famous of whom was the prosecutor, and later Judge A.F. Horses.
The Bolsheviks, redrawing justice in their own way, kicked royal lawyers and already in the mid-1920s filled the courts adequate to their plan for people. No more than 8% remained judges with higher education, more than 70% of the judges had only the “lower” education, but the working and peasant origin. Until the judicial reform of the 50s, the tendency was preserved: the higher the court level was, the more it was the CPSU functionaries and fewer judges.
In Germany, when the five East German lands joined it, all socialist judges and prosecutors were dismissed. With the exception of party functionaries, everyone was allowed to take exams on the right of Germany, after which only half of the applicants were accepted for the public service with a decrease.
In Singapore, all the judges (according to the Chinese traditions accepted the offerings) were resigned. Their place was taken by the best lawyers who were appointed very high salaries. It was forbidden for them and their closest relatives to ensure independence to take bank loans and money. All of them were under the tight control of the Bureau for Combating Corruption.
Nothing of the kind was done in Russia. And it began ... The achievements of judicial reform were quickly corroded. Copied from democratic European samples, they have not changed much in the life of our people. So, the new institution of the criminal process - judicial control over the legitimacy of arrests - worked in accordance with the law for no more than six months . Then the Plenum of the Supreme Court by the Decree of April 27, 1993 ordered the judges to “not go into a discussion of the issue of guilt” of the arrested, but in the absence of materials confirming the legitimacy of the arrest, not to free the suspect from custody, but only to make such materials on his own initiative. The judge from the impartial arbitrator between the sides of the prosecution and defense turned into another prosecutor, in addition to the blind, obliged to turn a blind eye to the lack of evidence.
Meanwhile, it is known that the police and investigators often overstate the volume of the prosecution, turning arbitrariness into a robbery, beatings into malicious hooliganism, the destruction of property - into an act of terrorism. But the judge should be deaf to such abuse, although it is the severity of the accusation that determines the measure of restraint. The new Code of Criminal Procedure of the Russian Federation reproduced this cruel approach: the judge does not recognize the right to interrogate the witnesses of the incident; He provides the police with the opportunity to pour out recognition for another 72 hours - in addition to 48 hours, which our constitution takes to detain.
Arbitration courts, despite the statements of equality of ownership, continue to defend the so -called state interests, identifying them with state -owned enterprises. There are cases of the participation of employees of arbitration courts in meetings in executive bodies devoted to specific civil matters.
The courts of general jurisdiction today have become an indictment of the conveyor created to turn hundreds of thousands of free people into prisoners. The total number of citizens brought to criminal liability in the Russian Federation in 2016 exceeded one million people.
According to the FSIN, as of January 1, 2017, 630 155 people were in Russian prisons, pre -trial detention centers and colonies. In particular, almost 519.5 thousand people were serving a sentence in 717 correctional colonies, 107.3 thousand prisoners were contained in the pre -trial detention center, in colonies for convicts for life imprisonment - 2005 people, in educational colonies - 1655 adolescents.
About 10% (49.2 thousand) of prisoners of colonies and pre -trial detention centers last year were women. According to the FSIN, with female colonies there are 13 houses of a child in which 577 children live.
In addition, another 407 thousand citizens were sentenced to punishment not related to imprisonment, and another 5409 people are under house arrest.
The number of registration detained by the police is not amenable to. Basically, not seasoned villains are serving a sentence, but young people, in which protest energy is potentially concluded: almost half of the prisoners were convicted of theft, a tenth for the storage of drugs. There is reason to believe that a fair share of cases against drug addicts contains stretching and falsification, arose as a result of provocations of “proxies” and full -time law enforcement officials .
Our courts today justify only 0.38% of the defendants (in Stalin's times, acquittals were sentenced to every tenth defendant), and up to 40% of these acquittals are canceled by higher courts; About 0.05%is canceled from the convictions.
Illegal technologies used by law enforcement agencies and courts have been preserved. Torture are widely used. According to Sergei Pashin, when he worked as a judge, at least 80% of the defendants and almost 10% of witnesses declared beatings, and in half the cases there were certificates from emergency rooms or the testimony of disinterested persons. In the police premises, thousands of people annually die or end the life of suicide annually.
* * *
Today, no more than 1% of the defendants can appear before the jury. For comparison: the American Constitution gives a US citizen the right to consideration with the participation of a jury of any criminal prosecution and a civil case with a price of a lawsuit over $ 20.
The concept of judicial reform of 1991 provided for the much wider application of the jury in Russia: in all criminal cases, where the term of imprisonment of more than one year threatens, and even for civil cases, where the price of the claim exceeds a certain amount. Currently, the jury jurisdiction is only a few of the most grave corpus delicti. Many acquittals and soft convictions of the jury were canceled by the Cassation Chamber of the Supreme Court on openly far -fetched grounds: if the jurors recognized the crime committed in a state of strong emotional excitement - affect - or if the defendant mentioned in the presence of the jury about the torture applied to him.
Prosecutors and judges, admitting that the jury sent to the court is better investigated, developed techniques that narrow the availability of the jury and the verdicts meaning it. Accused by holy or by crook are trying to persuade to abandon the jury. This is done by a lawyer appointed to the poor defendant, who is not interested in working for a meager fee from the budget to work intensively in the jury.
If the accused continues to insist on his own right, the accusation simply changes (say, from the murder under aggravating circumstances they “do” serious harm to the health, which resulted in death) and the case is referred to the district court, where there are no jurors.
Recognition of the accused, made at the pre -trial stages of the process, are not considered permissible evidence if the defendant refuses them; However, these confessions are acceptable when made in the presence of a lawyer. Here the dog is buried. There are lawyers, in the past expelled by abuse, police officers and prosecutors who persuade their client "to admit at least something." Such a lawyer, even absent during interrogation, where confessions were received under torture, deceit or threats, certifies the protocol of interrogation with his signature and becomes “understood” under the investigator. This norm resembles the medieval rule of the Inquisition: those obtained under the torture of recognition do not have evidence, except when they are repeated voluntarily after torture.
One of the techniques of the accusatory conveyor was the falsification of the protocols of court hearings. The Code of Criminal Procedure makes it difficult for participants in the process and the public an audio recording of a legal agreement; The protocol, as before, is conducted by a secretary, completely dependent on the judge. For comparison: in the West, these are highly qualified civilian workers who are not dependent on the court, recording the said in court literally with the help of special technical means. There, five minutes after the end of the day of the court meeting, its participants and journalists receive a protocol in their hands. We have to wait for it for several days. And if you have comments on the protocol, you will have to contact the same judge who, most likely, ordered the testimony of witnesses to the testimony of witnesses.
* * *
To what extent did our mentality affect the failure of the judicial reform? In the huge. All people instinctively seek to preserve their previous skills and forms of their activities, opposing any reforms. The judges, prosecutors, and police officers were not exceptions. Legislative acts of judicial reform were mastered by them to the best of their ideas about their own purpose, about their interests, and even in the light of work learned from Soviet times. They agreed only to the absorption of signs and the use of new phraseology. But not on reforms on the merits.
In our market economy, bureaucracy, law enforcement officers and judges successfully combined the advantages of wild capitalism with the benefits of the distribution system. Not every judge can tell you what the size of his salary, but for any of them it is important whether he and his close places in the clinic closed for other workers will be able to dine in the dining room on the presidential side of Ilyinka, whether the apartment will receive the apartment, whether he will go to the exhibition.
Reformers should not turn a blind eye to the society that they intend to reform. It is characterized by the "injuries" of people to lack of freedom. At the same time, the main threat to the well -being of citizens in Russia has traditionally emanated and comes from the state, whether it is the zealous Chekists of the Stalin and Brezhnev times or the current masters to clean up their homeland, werewolves in police uniforms. The cheap and disenfranchised labor force of the camps is a sensitive vertebra of the national economy: the production potential of the colonies includes 750 different enterprises, the annual production volume there exceeds 9 billion rubles.
But the main thing is not even that. A comparison of rich and poor countries revealed a clear pattern: the standard of living is growing only in those countries where there is a fair and independent court, honest prosecutors and police, the rights of private property, freedom of speech and meetings, the right to unite in the party and NPOs are really guaranteed. Where people are equal before the law, where there are no “roofs” and tribute collected from citizens. Only in such countries leading companies invest their capital and build factories for the production of competitive products, only there the salary of workers is growing. Our citizens do not understand this simple reason for their poverty. Under the influence of television lies, they are ready to blame the West, America, but not their humility and not even self -interest of the authorities.
The habit of non -freedom leads to the unwillingness of most compatriots to get involved in the struggle for civil rights, to maintain genuine judicial reform, gives rise to hope on the “good king” and the hope that, since “my hut from the edge” will not be touched. The fact is sad. But he says that when the time of new restructuring comes, without judicial reform, without renewal of the judicial corps, without an honest police and the prosecutor's office we can not do. And your mentality must be changed now ...
We recommend:
http://www.ru-90.ru/node/1204
http://www.strana-oz.ru/2014/3/sudebnaya-sistema-rossii-perelicovka
http://l.index.org.ru/journal/18/18-pashin.html
http://ecsocman.hse.ru/data/2012/01/30/1269086056/2011_1_5.pdf