Source: HRO.org (info), 10/11/11

· The Courts

· Human rights defenders

Moscow Helsinki Group, in a joint endeavour together with lawyers from the best known Russian human rights groups, has studied the work of civil society representatives in the Qualification Colleges of Judges (QCJ). The human rights defenders have concluded that the public plays a nominal role in the QCJ, and civil society representatives co-opted onto these bodies are in the main those law school faculty who train the judges, and former officers of law enforcement agencies. It all suits the judges, but in the view of the civic activists, human rights defenders and barristers, the principles of work of the QCJs need changing.

The human rights defenders studied in detail how the civil society representatives actually work in the QCJs. The result proved unexpected: the work of these commissions in most cases has a superficial and formal character and does not result in a more open judicial system. The report - The Role of Civil Society Representatives in Raising the Independence and Effectiveness of the Justice System in the Russian Federation - has been prepared by the Moscow Helsinki Group with the participation of lawyers from a number of human rights organizations, including Agora Human Rights Association, Movement For Human Rights, Baikal Human Rights Centre and Kazan Human Rights Centre.

There is a QCJ in each Russian region. The membership of these bodies, which decide key issues on the work of the courts, is made up of judges and civil society representatives. The QCJs review the candidates for appointment as judges, evaluate the work of serving judges, dismiss judges, and extend their terms in office. The representatives of civil society have a voice equal to that of the judges in the QCJs, as provided for by the law ‘On the Bodies of the Judicial Community in the Russian Federation’ of 14 March 2002.

Moreover, as the human rights defenders found out, the status of a representative of civil society is poorly established: in the legislation it is not defined.

According to the federal law, the civil society representatives on the QCJs must be Russian citizens of at least 35 years of age, with a higher education in law. They cannot be civil servants, holders of public office, barristers or notaries. The regions in their secondary legislation interpret the letter of the federal law in different ways. For example, in 38 regions of Russia members of the QCJs can be deputies of legislative assemblies; in 33 regions they can be representatives of the executive branch of government, both regional and federal; in 17 regions they can be representatives of municipal self-government. The laws of 61 regions state that candidates to the QCJs can be put forward by ‘public associations’, and in 31 regions by ‘work collectives’. However, these laws do not define what a ‘public association’ is. As the report notes: ‘Since there are a great many different kinds of “work collective”, and these are not fully defined in law, practice shows that this view of “civil society” serves the interests of those who do not want to allow people truly independent of government (including of the judicial bodies and their leadership) to become members of the QCJs.’

For example, in one region a candidate was put forward who was a representative of the ‘work collective of the regional court’. Human rights defenders believe that such an individual would clearly take the side of the judicial community.

In addition, according to some regional laws, before their confirmation candidates from civil society must be reviewed by committees and commissions of the legislative assembly (37 regions), by the official representatives of the president or the Duma (4), by the governor (3), or by the judicial department (1). Regions also establish additional demands on candidates. For example in Volgograd region during the selection process a candidate must provide a certificate of recommendation from a deputy of the legislative assembly or the head of the administration. And in St. Petersburg candidates must provide information about their income and property, and about those of the family members with whom they live.

According to the regional surveys conducted for the report, in the main civil society representatives in the QCJs are from the legal community, including the staff of higher education institutes (37,6%); businessmen and women (34,4%), and pensioners (13,7%).

However, most of the pensioners (86%) are former judges, prosecutors, officers of the police ministry (the Ministry of Internal Affairs) or of the Federal Penitentiary Agency. The report also notes that retired judges cannot be civil society representatives on the QCJs, since they retain the status of judge. Only 1,6% of the members of QCJs are from civil society organizations. The report says: ‘Results of the analysis show that there are very few real representatives of civil society on the QCJs, let alone individuals engaged in human rights work. Since the establishment of the QCJs, we know of only five people who are active in human rights organizations who have been members of QCJs (in Bryansk, Krasnoyarsk, Nizhny Novgorod, Perm and Sakhalin regions).’ The human rights defenders believe that the multi-faceted selection process for membership of the QCJs allows for real candidates from civil society to be effectively excluded.

The compilers of the report sent a letter to 74 regions requesting information about the civil society representatives in the local QCJs and about the work of these bodies as a whole. Of the 18 that responded, only Samara region provided information. The other 17 that responded said that all the information was on their website. On most of these websites the human rights defenders found that there was no information of this kind, or it was very limited. According to the compliers of the report, this practice says nothing positive about the openness of the courts.

The human rights defenders conducted an opinion survey about the work of the QCJs and the role of civil society representatives on them, among judges, lawmakers, barristers, teachers in law schools, civic activists, representatives of non-governmental, non-profit organizations and media.

According to this survey, the judicial community is satisfied with current legislation and the quality of work of the QCJs.

‘It is not interested in change of any kind and sincerely believes that the rights of citizens are protected. For example, in answer to the question whether judges should take additional steps to raise the level of public trust in their work, only 18% of judges answered positively’, the report states. The opinions of judges are radically different from those of other respondents. Thus 86% of representatives of civil society, in response to the question whether, after the introduction of civil society representatives into the QCJs, information about the work of these bodies became more accessible to the general public, answered ‘no’; 61% of judges said ‘yes’. Among civil society representatives, 75,5% considered that their representatives on the QCJs should publicly account for the work done by this body, but 66,7% of judges considered that they should not. Moreover, both judges (61%) and civil society representatives (90,8%) agreed that the demands made of candidates for membership of QCJs were too strict.

‘The results of the report, on the one hand, are clear. There was a hypothesis that the representatives of civil society do not change anything in the work of the QCJs, and most likely this has been confirmed. However it was interesting to see the reaction of the regions,’ says Pavel Chikov, head of Agora Human Rights Association. ‘They completely ignored several requests for information by prominent lawyers and human rights defenders.’

In Pavel Chikov’s opinion, the make-up of civil society representatives on the QCJs shows the lack of objectivity of these bodies.

Pavel Chikov commented: ‘How can there be representatives of commercial organizations on the QCJs? It is after all obvious that they will do all they can to use their position in pursuit of their business interests, here there is an evident element of corruption.’ He believes that the law school faculty, who are also members of QCJs in all regions, ‘represent the training schools for personnel of all the law enforcement agencies.’ Pavel Chikov said: ‘Their lack of independence, and their dependence on personal relationships, is also obvious.’

Pavel Chikov emphasised that this Moscow Helsinki Group project was funded by federal government money and expressed the hope that the authorities would pay attention to its conclusions.

‘Today there is some movement in the direction of judicial openness, but this is at the level of official declarations, this tendency can be seen in political rhetoric’, Pavel Chikov said.

Judges confirm the conclusions of the researchers. Ludmila Maikova, ex-chair of the Moscow District Federal Commercial Court, explained to Gazeta.ru: ‘In my view, civil society representatives are really not able to fulfil the role which has been given them. Formerly it was said that QCJs were in essence a corporate body: they were bound up with one another and would not do anything against their fellow members. Therefore it was decided to introduce representatives of civil society as a balance between judges and the public. But all the same, these individuals come under the influence of the court chairmen, who in practice control the work of the QCJs. Moreover, the share of civil society representatives in the QCJs is insignificant. One or two lone individuals can have no impact.’ Ludmila Maikova added that in her experience, the representatives of civil society on the QCJs really were mostly law school faculty and other academics, and representatives of groups such as the Union of Afghan Veterans. ‘Of course, there were no human rights defenders,’ Ludmila Maikova added.

Source: Gazeta.ru

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