Valery Zorkin has sent the letter to Judicial council concerning carrying out of examination of resonant criminal cases
Yesterday the chairman of the Constitutional court Valery Zorkin on six pages has answered Judicial council presidium that he thinks of an independent expert appraisal of resonant criminal cases. Publishes the full text of performance of head KS.
the Letter of Presidium of Judicial council of the Russian Federation, directed to the address of the Chairman of the Constitutional Court and published on a site of Judicial council of the Russian Federation on February, 10th, 2011, - too serious document that I could evade from discussions of the problems put in it. I regard this document as the personal reference to me behind council, i.e. the reference to the constitutionalist, instead of to the Chairman of the Constitutional Court. In this sense my answer is only council to colleagues on the questions concerning to My competence as expert in constitutional law sphere.
The answer directed from approval of judges the Constitutional Court, I will begin directly with the put question. The Judicial council presidium asks me to inform judicial community on that, will how much be co-ordinated with the constitutional norms and is international - legal certificates “ the public organisation of expert work on ekspertno - to the legal analysis of criminal trial on affairs on which sentences have not entered validity, and whether is it the public form of influence on court by consideration of concrete affairs “.
Thus in the letter the following aspects of a problem causing concern (I quote literally) are noted: “ without challenging the right of each member of a civil society … to criticise lacks of legal proceedings sphere, … The presidium of Judicial council of the Russian Federation believes that control over judicial certificates should be carried out by exclusively constitutional bodies by means of criminal, civil and administrative legal proceedings “; “ any others bodies, except judicial, not are competent for an estimation of legality of the judicial certificate, including correct application of the material and remedial law. Other would mean illegal intervention in departure by justice court, would suppose an estimation of legality of the judicial certificate and its check, on a being, incompetent body “; “ the offer to enter a special procedure for test of judgements on separate, so-called “ resonant “ to affairs, contradicts a principle of equality of citizens before the law and court “.
Statement of these questions has been connected with the offer formulated by representatives of Council about development of a civil society and human rights, on monitoring carrying out on resonant affairs in the form of expert estimations of quality of consideration of concrete affairs. and possibility of carrying out of such monitoring is necessary for considering in a context of the legal nature of judicial authority and judicial independence.
Independence of judges, being fundamental value of any democratic state, does not assume full closeness of the judicial case. transparentnost the judicial system, chosen as one of directions of its development, means not only expansion of a file of the accessible information on an activity of the courts, and also decisions taken out by them, but also possibility of public reaction to them. Such reaction, proceeding from difficult structure of a social system, can proceed from various Social groups, including from representatives of legal community.
In the democratic state judicial authority, as well as other branches of the power, urged to serve a society. Judicial authority activity is directed on satisfaction of fundamental social requirement for fair and timely justice. Judicial authority investment - as well as other branches of the power in the state - powers on realisation of such major publicly - legal functions as functions of realisation of justice and judicial control, it is regulated by the whole set of principles (both hand-written, and unwritten), the lawful on maintenance lawful and fair court, guarantees of the rights of the parties of judicial dispute. An obvious consequence of investment of judicial authority such function is publicly - legal responsibility carriers of this power for infringement them of corresponding principles and norms.
Powers of judges are directly connected with their responsibility which means, first of all, the accountability of the judicial case to a society. Judicial authority, being allocated with powers on control of activity of all other branches of the power, needs special guarantees of non-interference to administration of justice. Owing to the lowered possibilities of lawful control from other branches of the power special value gets public control over justice. On the other hand, such control is an important guarantee from wrongful administrative influence on court. being one of forms “ feedback “ between a society and judicial authority, public reaction as on judgements on concrete affairs, and on developed practice on to separate categories of affairs, cannot be limited from the point of view of possibility of the analysis of such affairs and their estimation, including stated publicly.
the Constitutional Court, really, repeatedly expressed inadmissibility of intervention in realisation of justice and, especially, about inadmissibility of application of any sanctions to judges for the maintenance of the decisions taken out by them, for expressed by them during realisation of justice opinion. the same approaches are applied today in all civilised legal systems. At the same time, inadmissibility of influence on judges by means of the administrative methods incompatible with a principle of judicial independence, does not mean impossibility of public reaction to activity of judicial system - in the form of discussion, the analysis and an estimation as decisions on separate affairs, and the whole directions of judicial activity. Other would mean full elimination of judicial authority from dialogue with a society, delegating to it its powers, closeness of judicial authority, returning of a medieval principle of management “ the King cannot be mistaken “. In particular it concerns those loud, resonant affairs where the most important and at the same time most vulnerable human rights - the right to life are mentioned, the right to a personal liberty and physical inviolability. Historical experience shows that absence of feedback of judicial system with a society is fraught situations when the person appears in private with all power of the state retaliatory mechanism without possibility to involve any counterbalances with a view of protection of the rights.
it is unconditional, the authority of judicial authority means compulsion of judicial decisions which also directly follows from the Constitution, from the remedial law. The introduction of the decision into validity means acquisition of the status by it “ the private law for the parties “ as it was told in the Roman right. The given status assumes feasibility of the decision, impossibility of its appeal in ordinary procedures and etc.
However the introduction of the decision into validity does not mean impossibility of its discussion and an estimation as does not exclude possibility of a miscarriage of justice. Hence, the society in the name of various social groups making it always remains has the right to discuss judgements. As trust increase to judicial authority is one of the main conditions of its efficiency activity, it is necessary to realise that level of such public trust is in many respects connected with, how much to the population in whole (and it is professional - to legal community, in particular) decisions taken out by courts - both with formal - legal, and with substantial the points of view are clear. For judicial system an estimation of its activity in the public opinion, expressed in forms of discussions, publications, expert estimations and etc., should be an important indicator of level of trust and authority of judicial authority on a society. On it increase transparentnosti judicial system also is directed: its purpose is not in itself publication of the data about an activity of the courts (including about decisions taken out by them), but the report to a society of the information on motives and arguments in favour of acceptance of those or other decisions.
When we speak about control over judicial certificates it is necessary to distinguish two forms of such control: public control over justice and the state control over the judicial certificates, carried out within the limits of judicial system. It is obvious that with reference to Council about development of a civil society and human rights as advisory body at the President speech can go only about the public control which is carried out in the tideway of such fixed in Position about Council of directions of its activity, as “ Assistance to working out of mechanisms of public control in the field of maintenance and protection of the rights and freedom of the person and the citizen, preparation of corresponding offers to the President of the Russian Federation “ and “ regular informing of the President of the Russian Federation on a state of affairs in the field of observance of the rights and freedom of the person and the citizen in the Russian Federation “.
is clear also that any Council at the President, decisions which have recommendatory character, does not possess formally significant competence for an estimation of judicial certificates. Council can estimate an activity of the courts only within the limits of public control over justice. Thus as those have the right to select and consider the advisory body providing interaction of the President with a society on a certain circle of questions, Council about development of a civil society and human rights of cases which, in its opinion, have received the greatest resonance in a society, drawing to them attention of the President. similar activity cannot be treated as the special procedure for test of judgements breaking a principle of equality before the law and court. By the way, and councillors on development of a civil society and human rights at presentation of the offer as it is represented, have unambiguously specified that “ ekspertno - the legal analysis of such processes (on resonant affairs) cannot have direct legal consequences “. And as appears from their statements, speech in this case does not go about affairs on which the definitive judgement is yet accepted. And meanwhile, as we see, anybody on not complete affairs is not going to spend such examination.
Besides, owing to a fundamental principle of independence of court dialogue of judicial authority with a society can be carried out only voluntary. Judges cannot be forced to give comments of the decisions and the activity as a whole.
is not subject to doubt as it was noticed above, and that discussed socially - expert monitoring does not put (and cannot put) acceptance of any direct legal measures is would be incompatible by the purpose with the constitutional principle of independence of judges and guarantees of its realisation. The purposes offered monitoring are connected With formation in public opinion of an objective picture of activity of judicial system and, if necessary, with acceptance of measures for elimination of wrongful influence on it from other branches of the government with a view of justice realisation it is exclusive in the frameworks established by the Constitution of the Russian Federation and the law.
I understand that highly professional members of Presidium of Judicial council and understand in formal - a problem legal side. On - visible, their concern is caused by that circumstance that the situation, in their opinion, can for leave formal - legal frameworks and to lead to that corresponding advisory structures will get influence inadequate to their status on the head of the state. In this connection I can tell only that the President as the head of the state has lawful and an inalienable law to form any commissions of experts to develop the judgement on this or that question. It can generate for this purpose Council about development of a civil society and human rights. Can generate any commission of experts, and can consult to citizens, having met them during this or that trip. Who how and in what measure impact makes on its, operating thus in konstitutsionno - legal frameworks, - a question a choice most the President.
I Ask to consider this answer as my personal developed letter. For anything else it cannot be for the legal reasons, well clear my colleagues. To write this letter me have induced not professional obligations, and circumstances moral, civil and even spiritual property, inaliennable as I am convinced, from our high trade.
yours faithfully, V.D.Zorkin
the Text is published from a site of the Constitutional court of the Russian Federation.