5.3.3. The judicial system and issues of self-regulation Judicial system Arbitration courts play a crucial role in bankruptcy rulings with respect to debtor enterprises and individual entrepreneurs. All the key decisions starting from the acceptance of the bankruptcy filing and up to the ruling on the termination of receivership proceedings that serves as the basis for a liquidation entry with respect to the debtor in the state register of legal entities are taken by the arbitration court that reviews the bankruptcy case. Within the framework of this judicial process, the court takes decisions that have a significant impact on the economic status of the participants of bankruptcy proceedings. In some cases, significant shortcomings and mistakes in the court rulings cannot be rectified. It is therefore of supreme importance that the numerous decisions taken within the bankruptcy process, such as the appointment and removal of arbitration managers, settling disputes among creditors and between creditors, the arbitration manager, and the debtor, including creditor claims in the register, removal of debtor management, the adoption of safeguard measures, the invalidation of debtor transactions and other such decisions should be taken by an independent court, be legally enforceable, be well grounded, and be implemented.
Otherwise the institution of bankruptcy cannot function effectively within the economy.
The above applies in equal measure to settling other disputes arising from economic and administrative legal relations where the rulings, in cases of noncompliance with the same, form the basis for initiating bankruptcy cases.
RUSSIAN ECONOMY IN trends and outlooks In practice the Russian judicial system, having inherited many of the traditions of the Soviet judicial system, continues to be significantly influenced by the executive power. It would be unfair to claim that all or most judges lack independence; however, rulings for legal cases “of special importance” are entrusted to those whose decisions follow the recommendations of the presiding judge who assigns the cases. According to the determination of the president of the Russian constitutional court V.D: Zorkin1, ensuring the independence of such presiding judges is a key issue.
Recent assessments of the judiciary system range from “a mockery of justice” and “a tool serving the executive branch” 2 to “a comprehensive judiciary system albeit riddled with numerous shortcomings” 3. These shortcomings arise from inadequacies in the legal mentality, including that of professional practitioners, in professional personnel training, in organizing the functioning of courts, including workload issues, in the selection criteria, selection mechanisms, and appointment mechanisms for judges, in receiving and improving professional qualifications, and in the degree of transparency in the system.
A widely known shortcoming of the Russian judiciary is the lack of enforcement of Russian court rulings. Statistically, half of the rulings by both general courts and arbitration courts in Russia are not enforced.. The most urgent issues related to the enforcement of court decisions are to do with the inefficient and illegal sale of arrested assets, as well as with staffing issues. The possibility of selling corporate assets to “designated” buyers at discount prices is a significant component of corporate takeovers. An analysis carried out by the Federal Court Bailiff service has revealed the following shortcomings of the present property sale mechanism5:
– lack of access to “closed” debtor property sale auctions – lack of information on property sales, which information in the majority of cases is published in low circulation periodicals dealing with unrelated subjects – the auctioning off of property at discounted prices.
Thus corporate takeovers still use the well established old practice involving the sale of arrested and confiscated property.
In order to deal with the above shortcomings, the Federal Court Bailiff service supports the development of the system of selling arrested property based on mixed auctions using global auction practices (Dutch and English auctions).
Such a system must combine various features aimed at attaining the full of sale of arrest and property at a maximum price. This will allow to minimise the issues related to the current system of valuing arrested property.
If the new property sale system is implemented, property valuation by the court bailiff or by a professional assessor will be mostly indicative, as necessary for determining commensu Speech by V.D. Zorkin, president of the Russian constitutional court, at the seventh Nationwide Congress of judges.- Russian Judiciary, No. 1 (2009), p. A. Pushkarskaia, The Constitutional Court loses its dissenting opinions – Kommersant, No. 225 (December 2, 2009) Here and further below, Yu. Kolesov, “Valeri Zorkin: each component of the judiciary system has its shortcomings”- Vremia Novostei, No. 105, June 16, Speech by the President of Russia D.A: Medvedev at the seventh Nationwide Congress of judges.- Russian Judiciary, No. 1 (2009), p. Here and further below, “The Federal Court Bailiff service on the liquidation of assets arrested, confiscated, and otherwise converted to state property” - http://www.fssprus.ru, June 28, Section Institutional Problems rate penalties. Such indicative values for arrested property will serve merely as initial auction prices that can then change during the auction (either grow under the English system or decrease under the Dutch system) to reach an equitable price. Some of the proposed innovations limiting the closed sales of debtor assets have been adopted, however, these have not yet been implemented in practice.
As regards staffing, the inefficiency and abuses of power by court bailiffs are widespread and have long been an urgent issue. In 2008, 522 criminal cases were initiated for the crimes committed by officials of the Federal Court Bailiff service. It must be noted, however, that the court bailiff service works diligently to uncover such breaches and crimes committed by its employees. 87.4% of the overall number of criminal cases was initiated based on the information provided by the Federal Court Bailiff service itself1.
The high level of abuse instances by representatives of the Federal Court Bailiff service is coupled with the very low proportion of court decisions to satisfy claims contesting the action or inaction of and rulings by the officials of the Federal Court Bailiff service, at 0.0063% (6.6%)2 and with the very low proportion of satisfied claims against the Federal Court Bailiff service itself, at 2.3%3. Such indicators, together with the practice of contesting the rulings and actions of Federal Court Bailiff service officials, are evidence that the creditors lack an effective mechanism of influencing the enforcement of court rulings and of receiving adequate compensation for losses incurred due to inefficient functioning of the Federal Court Bailiff service.
One of the contributing factors for the low quality of court case review and the long review duration is the unprecedentedly high workload of judges. The relatively reasonable workload per judge at an arbitration court in Russia is an average of 15.6 cases reviewed monthly.
Meanwhile, in the first half of 2009, the average workload in the arbitration courts had increased by 22% relative to the respective period of the previous year to reach 45 cases per judge monthly4.
Due to the above, the level of public confidence in the judicial system remains low. The number of complaints by Russian citizens filed with the European Court of Human Rights has been steadily growing: 2002 saw the first two rulings on complaints lodged against Russia, with five rulings in 2003, 15 in 2004, 83 in 2005, 102 in 2006, and 192 in 2007. Russia currently has the highest number of complaints lodged against it and the second highest number after Turkey in terms of court rulings that deem state authorities to be responsible for the infringement of at least one provision of the Human Rights Convention. By the beginning of 2008 there were 20,300 complaints against Russia waiting to be reviewed by the European Court, which amounts to 26% of the total number of such complaints (compared to 15,complaints at the beginning of 2007). Half of the total number of complaints to the European Court contested the non-enforcement of judicial decisions5.
On the results of measures aimed at identifying, stopping, and preventing illegal activities by the employees of the Federal Court Bailiff Service regional agencies in 2008 - www.fssprus.ru The “Key Indicators of Federal Court Bailiff service activities” contain both of the above percentages- www.fssprus.ru “Key Indicators of Federal Court Bailiff service activities”- www.fssprus.ru Speech by A.A: Ivanov, Chairman of the Supreme Arbitration Court of Russia, at the Federation Council on September 21, 2009 - www.arbitr.ru Speech by V.D. Zorkin, president of the Russian constitutional court, at the seventh Nationwide Congress of judges.- Russian Judiciary, No. 1 (2009), p. RUSSIAN ECONOMY IN trends and outlooks A number of laws were adopted in December 2008 that were aimed at combating corruption, including corruption among judges1.
Innovations made to the Law on the Status of Judges envisage a new procedure for submitting information on the income, property and property-related obligations of the candidates for the positions of judges, as well as the spouses and underage children of such candidates.
The law changed the appointment procedure and requirements for judges. Obvious shortcomings of the proposed edition include:
– The small number of persons whose property records can be verified in connection with the judge’s activities (spouse and children). In such situations, the bulk of abuse instances related to illegal payments (bribes) remains beyond the scope of application of the law.
– the impossibility of establishing legal liability for corruption for the judge so long as the illegal or unjustifiably high income is received by the judge’s relatives, spouse, or other related persons.
– the impossibility of establishing legal liability for corruption for the judge so long as the illegal income is received by a legal entity owned by the judge, his/her spouse, relatives, or other related persons.
– The provision for legal liability by judges for the failure to provide income and property information or for the provision of false or incomplete data is made using the wording “legal liability may arise”, which in practice leads to the routine practice widespread in Russia of the selective application of liability.
At the same time, the provision for the initial appointment of a federal court judge for a duration of three years was eliminated in July 20092, while the judge’s overall term of office was amended to be limited only by reaching the “maximum age of holding office”, i.e. years. Both amendments are aimed at raising the status of judges and increasing their independence.
The above issues are directly related to the issue of the judges’ accountability and setting the standards for judiciary ethics. This issue is being discussed throughout Europe as part of seeking to balance the judges’ independence and accountability. However, there is still a lack of unified standards for judiciary ethics and judges’ behavior. In December 2009, the Judges’ Council of Russia was presented with a new draft Code of Judiciary Ethics. The Chairman of the Supreme Arbitration Court A. Ivanov characterised the Code presently in force as a “statement of intent” that is of little help to judges in dealing with ethically complex situations. The new draft Code is considerably more detailed, dealing with the judges’ relations with court proceeding participants, court senior officials, administrative employees, family members and relatives, as well as extra-judiciary activities. For the first time in Russia, the Code prohibits court presidents from exerting influence on the adoption of rulings by judges for specific cases.
Federal Law On Amendments to certain legislative acts of the Russian Federation due to the adoption of the Federal Law on Combating Corruption, No 274-ÔÇ dated December 19, 2008 and On Amendments to certain legislative acts of the Russian Federation due to the ratification of the UN Convention against corruption dated October 30, 2003, and the Convention on criminal liability for corruption dated January 27, 1999, and the adoption of the Federal Law on Combating Corruption, No. 280-ÔÇ dated December 25, 2008.
Federal Law No 157-ÔÇ, dated July 17, 2009 On Amendments to Articles 6 and 11 of the Law of the Russian Federation Law on the Status of Judges and to Articles 17 and 19 of the Federal Law on Judiciary Bodies in the Russian Federation Section Institutional Problems The draft devotes considerable attention to the cases of conflict of interest where the judge is prompted to withdraw his candidacy or to inform the proceeding participants about such conflict of interest and obtain their written consent for the case being reviewed by the judge in question. The judges and their family members are prohibited from using their office for the acquisition of any material benefits. Limitations are also proposed that investment activities by judges, whereby such activities must not give rise to doubts concerning the independence and neutrality of judges. Furthermore, judges are cautioned against maintaining “lasting business relationships” with lawyers and other potential court case participants1.
The issue of ensuring true independence of judges as the necessary precondition for court rulings based solely on considerations of law and justice continu7es to command urgency.
Among the measures discussed recently and aimed at increasing the independence of courts are the introduction of elected office for court presidents who are currently appointed by the President, the strict legislative stipulation of the amount of financial support for the judiciary system, such as a fixed percentage of the GDP automatically assigned for such purposes within the state budget, and the creation of an autonomous logistical division within the judiciary system. This would absolve the courts of the need to seek help in locating buildings, apartments, etc. from the regional authorities, which gives the regional governors an opportunity to control regional courts.