Challenges of holding the presidents of general jurisdiction courts liable to disciplinary measures and termination of their powers in the Russian Federation

In this case, an individual act of legal regulation has been implemented, which covers the managerial activities of district and city court presidents. The act doesn't determine any new powers for court presidents regarding the organization of court work. However, it enforces the imperative to take action against judges' gross violations, including presidents of respective courts, to prevent such violations from happening in the future.

The issue at hand pertains to whether the court of appeal or cassation instance must directly hear the court president's explanations regarding violations of procedural and other legislation, specifically regarding his/her inaction or improper action as the leader. This implies that the court presidents may be deprived of their right to defend themselves.

Regarding this matter, there is a question of amending procedural codes to enable individuals subject to a special ruling (resolution) to voice their objections directly during a court session on charges of law violation and their authority.

It is noteworthy to mention that violations that may arise outside the court session of a specific case, such as the criminal case of the Smolensk Regional Court considered in cassation by the Supreme Court of the Russian Federation, were addressed in the special rulingThe Special Ruling No. 36-O11-1 of the Supreme Court of the Russian Federation (dated February 7, 2011) on Drawing Attention of the President of the Regional Court to the Violations of the Requirements of the Criminal Procedure Law Committed by the First Instance Court When Preparing the Protocol, Informing the Parties Involved and Submitting the Case to the Cassation Court.. The ruling acknowledged the unnecessary bureaucratic procedures in terms of preparing the protocol, informing the parties involved and submitting the case to the cassation court. In this instance, there were violations regarding the court mismanagement, and thus, the higher court conferred upon the court president the responsibility of addressing the violations in this aspect.

In specific cases, if it is specially ruled that the court presidents have breached their duties as leaders, there may be justification for taking disciplinary action against them.

One of the ways of influencing the actions of the court president in an individual procedural manner to organize his/her work in the court against the backdrop of the ongoing judicial reform is a specific ruling (resolution), which is gradually undergoing changes in terms of the scope and breadth of these violations and possible corrective actions against judges. However, the principle of independence limits the powers of the court president in this case.

As a special ruling is considered a court decision, there should be an opportunity to appeal it. Firstly, this is a consequence of the constitutional provision for judicial protection of rights and freedoms, as well as the right to appeal the decisions made by state authorities and officials to the court (Art. 46 of the Constitution of the Russian Federation). Among all procedural codes, only part 2 of Art. 200 of the Code of Administrative Procedure of the Russian Federation explicitly grants the right to challenge a special ruling (resolution). Other procedural codes only imply the possibility of appealing court decisions through a broad interpretation of the law.

It must be emphasized that, in accordance with the concerned judicial individual act reserved only for judges, the court president assumes the relevant oversight and supervisory powers.

Thus, the Order No. 161 of the Judicial Department at the Supreme Court of the Russian Federation on the Approval of the Instructions on Judicial Proceedings in the Supreme Courts of the Republics, Courts of Territories, Regions, Federal Cities, Courts of the Autonomous Regions and Autonomous Districts dated December 15, 2004 (Section 12 “Enforcing sentences, decisions, judgments and orders of the court”) stipulates that special rulings (resolutions) in criminal and civil cases must be logged accordingly (forms No. 31 and 32), with the inclusion of the control data on the addressee of the ruling, a reminder of its implementation, the receipt of a message about the measures taken, the check of its execution by the court, the removal from the register and, as a note, the fact that a case was initiated under Art. 17.4 of the Code of Administrative Offenses of the Russian Federation.

This order also mandates the maintenance of a statistical record card (annex to the order). Its paragraph 11 requires the card to record the number of special rulings (resolutions) made in the case along with other data. Therefore, if the court president fails to perform the aforementioned control and supervisory tasks, which also involves addressing any deficiencies or infringements in the special rulings and their execution, then they may be held liable to disciplinary measures as the court leaders.

Given that the court president is a judge, he/she is subject to all rules concerning disciplinary liability of judges.

Currently, there is a situation where the qualification boards of judges are holding court presidents liable to disciplinary measures. Practice suggests that this is possible in the following cases:

— failure to exercise his/her powers, including lack of control over the progress of cases, record-keeping, analysis of reasons for violating case consideration terms, uneven distribution of workload among judges, assigning cases to judges on vacation or sick leave and delay in transferring cases in the event of a judge's dismissal or resignation;

— breach of ethical obligations as the court leader, which includes creating a challenging psychological environment, harsh treatment of court staff, employing intimidation as the primary approach to monitoring reportsHigher Qualification Board of Judges of the Russian Federation. 2006. 1 (7)..

The disciplinary liability of the court president is objectively determined by the internal consistency between his/her proper management performance and corresponding disciplinary measures.

This necessitates an amendment to the Law of the Russian Federation on the Status of Judges, as it lacks provision for such a regulation. It is recommended that Art. 12.1 of this law be amended as follows: “10. The court presidents and court vice-presidents are liable for any failure to perform their duties or follow ethical requirements as leaders, in addition to the disciplinary liability imposed on them as judges”.

The objective nature of the disciplinary liability of the court president lies in the correlation between his/her management responsibilities and the relevant disciplinary actions. The notion of a disciplinary offense of the court president as the court leader is not exclusively tied to the measures of accountability that are enforced for non-performance or inappropriate execution of judicial duties. It has been suggested that the dismissal of a court president be combined with the continuation of his/her duties as a judge, as a distinct type of disciplinary liability.

Conclusions

The level of independence required for court presidents must be guaranteed through federal law, with grounds for removal from their leadership positions based on such legislation rather than judicial community acts. It is proposed to amend part 11 of Art. 6.1 of the Law of the Russian Federation on the Status of Judges in the Russian Federation by introducing a provision that permits the termination of the powers of court presidents and court vice-presidents upon their personal application without affecting their role as a judge in the court, where they served as president or vice-president.

The disciplinary liability of the court president is defined by the internal coherence between his/her efficient management performance and the relevant disciplinary actions. The notion of disciplinary offense of the court president as the court leader cannot be solely associated with the penalties imposed for neglect or inadequate execution of the judge's official duties. It has been proposed to combine the dismissal from the court president role with the preservation of the judge position as an independent form of disciplinary liability. It is recommended to amend Art. 12.1 of this law as follows: “10. The court presidents and court vice-presidents are liable for any failure to perform their duties or follow ethical requirements as leaders, in addition to the disciplinary liability imposed on them as judges”.

In light of the development of the internal system function of judicial management, it is imperative to provide further legal regulation for the position of the presidents of general jurisdiction courts.

References

1. Ermoshin, Grigorii T. 2016. “The status of a judge in the Russian Federation”. Dr. Sci. Thesis in Law, Rossiiskii gosudarstvennyi universitet pravosudiia. (In Russian)

2. Ermoshin, Grigorii T. 2017. “Development of constitutional principles of judiciary autonomy and judge independence at the present stage of judicial reform”. Rossiiskii sud'ia 1: 44-48. (In Russian)

3. Khabrieva, Taliia Ia., Iurii A. Tikhomirov, eds. 2015. Scientific concepts of the Russian legislation development. Moscow, Iurisprudentsiia Publ. (In Russian)

4. Kleandrov, Mikhail I. 2018. “On the defectiveness of the formula of a disciplinary offence of a Russian judge”. Journal of Russian Law 4 (256): 110-121. (In Russian)

5. Koroleva, Elena V. 2021. “Early termination of authorities of the presiding judge of a court by the federation council upon a recommendation of the president of the Russian Federation”. Rossiiskii sud'ia 10: 45-48. (In Russian)

6. Mashkina, Tamara I., Natal'ia A. Morozova. 2003. “Legal nature of the qualification boards of judges”. Rossiiskaia iustitsiia 12: 20-22. (In Russian)

7. Tuganov, Iurii N., Vladimir K. Aulov, Sergei Iu. Nekrasov. 2017. “Disciplinary liability of judges”. Izvestiia Baikalskogo gosudarstvennogo universiteta 27 (2): 211-217. (In Russian)

8. Vasiagina, Marina M. 2016. “Problems of the institution of the right of a judge to resign as a guarantee of the independence of judges”. Novaia nauka: Sovremennoe sostoianie i puti razvitiia 12 (4): 159-162. (In Russian)

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