Translated material
Keys to Themis
The Constitutional Court will answer the housing question of the Supreme Arbitration Court
Yesterday the Constitutional Court began considering an unusual “housing issue” raised by another supreme authority - the Supreme Arbitration Court. The request that the Supreme Arbitration Court sent to the Constitutional Court states that the current legislation “significantly limits the independence and autonomy of the judiciary” and makes this branch of government dependent on the power of the executive. We are talking about the procedure for providing judges with housing, which is enshrined in two laws - on the general principles of organizing the power of the constituent entities of the Russian Federation and on the general principles of organizing local government bodies.If previously, for judges in need of improved living conditions, “a board and a house” were provided and transferred into ownership by local administration bodies, the new version of the law assigned this responsibility to the highest executive authorities: living space is purchased at the expense of the federal budget in the manner established by the government. At first glance, this state of affairs is quite consistent with the desire of the leadership of the Supreme Arbitration Court, and other higher courts, to achieve real independence from the benevolence of regional officials. After all, even in relatively prosperous Moscow, the servants of Themis were accused of partiality when considering claims against the mayor's office on the grounds that apartments were allocated to them by decision of local authorities. What can we say about other regions where free housing has not existed for a long time. However, as it turns out, non-tenant judges are also in no hurry to “under the wing” of the federal center, declaring that this threatens the third branch of government with even greater dependence on the state.
“In Art. 19 of the previous version of the law provided for three options for housing and financial support for judges, - Vladimir Yaroslavtsev, deputy chairman of the Supreme Arbitration Court, explained the position of the complainants at a meeting in the Constitutional Court yesterday. -- The first option is to provide the judge with housing by the local administration on an extraordinary basis, the second is to provide the judge with comfortable living quarters, purchased by the court at the expense of the federal budget (in the first and second cases, the premises were provided to the judge free of charge). In the third case, the judge was provided with an interest-free loan from the federal budget for the purchase or construction of housing, which was repaid subject to ten years of work as a judge.”
Now there is only one option left. By law, the government is given the right to determine both the mechanism for providing judges with housing and the amounts allocated to the courts for these purposes. However, according to the complainants, the judges are actually deprived of the opportunity to resolve their housing issue, since in the two years that have passed since the adoption of the new version of the law, the White House did not bother to adopt a resolution defining the procedure for its practical implementation. “The state’s refusal of previous guarantees has neither social nor economic justification,” says the statement of the Supreme Arbitration Court.
Representatives of the President, the State Duma and the Federation Council, who acted as respondents in this case, of course, did not agree that the contested norms contradict the Constitution. But two of them - plenipotentiary representative of the upper chamber in the Constitutional Court Elena Vinogradova and presidential representative Mikhail Krotov admitted that the procedure for the acquisition of housing by judges has not really been worked out. “The previous order does not apply, and there is no new legal regulation. The absence of a clearly regulated procedure for allocating housing to judges does not contribute to the proper implementation of constitutional provisions on the independence of judges and the independence of the judiciary,” Mr. Krotov agreed with the applicants’ arguments.
The “previous order”, which gave judges the right to free housing at the expense of the state budget, ceased to apply after the adoption of the law on the monetization of benefits. In order to somehow resolve this problem, in December 2005 the government gave the courts the opportunity to purchase housing for judges from a specialized housing stock. “In practice, this leads to the fact that the courts actually begin to perform functions of economic and financial activity that are unusual for them in terms of exploitation of the housing stock,” emphasized the presidential plenipotentiary envoy to the Constitutional Court. In addition, this living space cannot be privatized - the legislation does not provide for the transfer of service apartments to private ownership.
It is worth noting that the housing issue is the favorite hobby of the Chairman of the Supreme Arbitration Court, Anton Ivanov. The head of the Supreme Arbitration Court spoke about housing problems back in April 2005 at his first speech at the Council of Judges of the Russian Federation. Then Mr. Ivanov complained that the provision guaranteeing servants of the law the right to own free apartments “disappeared without a trace” from the law on the status of judges. The dissatisfaction of the Chairman of the Supreme Arbitration Court was caused by the fact that local authorities, guided by the Housing Code, began to register housing not as their own, but under social tenancy agreements. “In some constituent entities of the Russian Federation, arbitration judges have already applied to the courts of general jurisdiction with claims for the obligation to provide them with housing, but the claims were rejected,” the chairman of the Supreme Arbitration Court said then. Mr. Ivanov spoke about the same thing at a meeting with Vladimir Putin in March 2006. At the same time, the Supreme and Higher Arbitration Courts proposed amendments to the law “On the Status of Judges” and the Tax Code, which would allow a judge who has worked in his post for at least five years “to receive ownership of an apartment free of charge once during the entire period of execution of his powers "
In November last year, the leadership of the Supreme Arbitration Court made the first attempt to challenge the current legislation in the Constitutional Court - then the subject of the proceedings was the provisions of the law on the monetization of benefits, which, according to the “arbitration judges,” violated the principles of separation of powers and judicial independence. The application was then rejected. It can be assumed that this time the Constitutional Court will issue a similar verdict. At the same time, the executive branch expresses its readiness to resolve the long-standing problem. At yesterday's meeting, Mikhail Krotov said that the government had already developed and submitted to the State Duma a bill that concerns “the procedure for providing residential premises to judges in need of improved housing conditions,” including the provision of free housing.