A judge has to doubt

Yuri Ivanovich, why you haven’t given any interview for so a long time?You have decided to take a stand of a "silent judge"?

Probably, there was no occasion. But the position I have is just completely different: to communicate with the press is necessary. The fact is that we have founded the magazine "Judge" in order to the voice of judicial community was heard.

The magazine "Judge" will always have an occasion to appeal to you with questions. Please tell me how the judicial community apprehended creation of new body - the Judicial Disciplinary Presence?

Frankly, it was not our idea.We considered that the former system is effective enough, and the qualification collegiums manage with their tasks. And when something new is introduced, the question always arises: what for? What is the sense in this or that innovation?In this case, from initiators of creation of judicial presence we haven't heard powerful arguments. Actually, the argument was the one and only - the judges of courts of law take part in disposal of legal proceeding of judges of arbitration courts and judges of arbitration courts do not participate in it. But everyone has their own jurisdiction. Courts of law, for example, do not participate in cases of commercial disputes.

So did you have some doubts about the expediency of this step?

Were, and we have expressed them. Because the judicial system, like no other, needs stability and it's reformation needs to be extremely carefully. At this stage, as it seems to me, the judicial system does not require dramatic changes, but development and improvement.

Do you believe that the Federal Constitutional Law «Anout the Disciplinary Court Presence» makes cardinal changes in the activities of the judiciary?

I would not say so.This law is does not replace quilification collegiums with disciplinary courts, it changes the procedure for appealing decisions on termination of judicial powers. Instead of courts of law, copmlaints will be administered by disciplinary judicial presence, formed on a parity basis of the judges of the Supreme Court and the Supreme Arbitration Court. But the final decisions of that body are cast in stone, they can not be appealed.I consider that more logical would be to create system of disciplinary courts - the first and second levels.

But the law is accepted, it is performed, the body is created. I think the judicial community has quietly apprehended this law.

You have repeatedly said that the requirements to candidates for the judge must be enhanced. Moreover, not only to vocational training, but also to morally ethical, human qualities of the future judge. But how it is possible to glance into human's soul? Conduct psychological testing, or test the candidates on the lie detector?

Insistence growth to candidates and judges - of itself is a positive occurence and an indication of that the personnel recruitment system is continuously improved. Accordingly, such methods of check with the help of which it will be possible to glance into human's soul will be developed, created, implemented. Yes, this is a subtle point. No casually that in resolutions of the last two congresses of judges was noticed that "… the current legislation does not define morally-ethical requirements to candidates on positions of judges, does not establish organization-legal mechanisms for learning moral-valuable orientations of personality and candidate screening for judicial posts with their accounting. "

Therefore, first it is neccessary to define with what morally-ethical requirements we present to  judges and then look for mechanisms of revealing of personality traits.

I do not exclude that the polygraph will be involved. By the way, such experience was, while as experiment. I do not think it makes sense to force to pass candidates obligatory polygraph testing, but the fact of that the person is ready to undergo such tests, says a lot. Competition on positions of judges is, let, 100 people to place yet, but every year quntity of wanting to become a judge persons become more and more. Accordingly, there is a possibility to choose the best and the most worthy.

Work of the judicial community on the new Code of Judicial Ethics - is a step to the same direction? And what are the morally-ethical requirements to the judge now? What qualities the ideal judge should possess?

The new code should in more detail and more thoroughly regulate the ethical, moral and other restrictions for judges. We hope that the draft Code will be widely discussed by the judicial community, time for it - before following congress, where is planned to aссept the new code, is still almost two years.

Ideal judges, as well as ideal people do not exist. But the judge should neccessarily possess  such  qualities which are inherent in any decent person. The judge must be honest, fair, objective, and he should be able to listen to other people, to doubt, and at the same time be able to make decisions. It would seem, incompatible features - doubt and make a decision, but the judge simply must call at first put all in question, check everything and then take responsibility for the made decision. It is very uneasy. To listen two opposite opinions, two opposite positions, and to come to correct decision, to fair decision. Unfortunately, the society badly represents to itself, what a heavy burden the judge bear. Not seldom, when the judge makes a decision which does not suit neither one nor the other side, but he is forced to accept it, because it is lawful and proper.

The judge who is afraid to make unpopular decisions, even if the duty obliges him to make exact one - it is not a judge so far. As soon as the judge begins to look back on right and left, on the crowd, the press, the politicians, he ceases to be a judge.

First of all, a society is interested in that the judge was guided at decision making by one's own convictions, by letter and spirit of the law, instead of newspaper publications or other forms of public pressure. However, if you read newspapers or listen to comments of lawyers to judicial decisions, it seems that society needs dependent on gossip, and consequently, weak and sneaky court.

This is a very serious problem. The legal authority of the state judiciary should be very strong. It is notible that so often words of the Chief Judge of the High Court of England and Wales Gordon Hewart: "Not only must Justice be done; it must also be seen to be done". From the Russian mass media it is not visible. Why the mass media are set against so critical?

For me it is inexplicable.The overwhelming majority of court decisions even won't be appealed to the higher authorities. That means that participants of process agree with the decision. Whence there is so many dissatisfied in mass media?

Perhaps, the root of all evil is in insufficient legal culture of society? In legal nihilism, which is generated by misunderstanding purpose of law and court?

Certainly, and is therein, too. But this is not the only reason.

Among other reasons often name unwillingness of judges to go on contact with journalists. When the judge is silent, the main commentator of the court decision, indeed, become a lawyer. And, as a rule, the lawyer of losing side.

Judges of all countries don't aspire to get on TV screens and newspaper pages. They said all in their decision, it's their duty and purpose. But I can not say that the public and the press in particular tests   great interest in the daily work of courts. Whether so they aspire to receive information from  judicial bodies? Representation about the legal proceedings is scooped by majority from the numerous game shows on TV. But these performances have nothing to do with the judiciary.

I think, to raise the legal culture and instill law-abiding and respect for the court - is a business of the state. And of the civil society. For example, the Association of Lawyers of Russia could make a lot for this. You know, a few years ago I was on a business trip in the United States and was at a meeting of the American Bar Association. There was discussed the proposal to raise judicial salaries. The proposal to increase salaries was brought forward by lawyers, they also discussed how to lobby this law in Parliament. We were amazed: what's the difference for lawyers? Why should they defend the interests of judges? We were told that it is inconveniently for judges to lift this theme, and lawyers are interested in seeing that the judges were the best lawyers, most worthy citizens, but it is possible only on condition that their work will be paid properly. This is a normal, civilized and mature look at the requirments of society and at public interests, which above any corporate and personal interests.

The Association of Lawyers has been handing out the highest legal award "Lawyer" since the last year. Do you think there will be more judges than representatives of other legal professions among winners of award?

If to judge by the public's attitude to the courts - it is not assured that judges generally will be among the winners. But the fact is that there will be not much of them - it is exactly. God grant that I was wrong in my forecasts. I would be very happy. Becuase the majority of our judges are professional, competent and decent people. And they are worthy of the highest prizes and awards.

High rewards do not pass the representatives of the judicial community. And superfluous  confirmation to that - investing the Order «Of Merit for the Fatherland» of the fourth degree to the Head of the Judicial Department at the Supreme Court of the Russian Federation Alexander Vladimirovich Gusev. Agree, it is a very high evaluation of his activities.

Yes, the Department has done a lot for judiciary and judicial community has done a lot to the department that it has appeared. All was not simple, even among there judges was a lot of fluctuating and doubting. But life has shown that we were right defending the idea of transfering  functions of courts provision from the Ministry of Justice to the Department.

Alexandr Vladimirovich's remarkable quality is that he takes the needs and requirements of the judicial system very close to his heart, he lives with it. I remember that when he first took his position, I warned him that, despite all the complexity of our community, it is impossible not to take a fancy to it, it grasps entirely. Some years later, he remembered that our conversation. "Yes", - he said - "indeed, it so happened". Therefore, we have took effect. Alexander Vladimirovich has managed to create a good team, which has a very good friendly atmosphere. And not everybody succeeds in that. Frequently, employees toe the line, click heels, and there is no any sense, only vanity. But in the Department all is built on mutual respect, mutual trust and understanding own responsibility.

It is important that judicial community has never referred to the Department, as to auxiliary service, we always said: "You are our colleagues". We have only different competence. Competence of judges - to consider cases, and the competence of the department - to create conditions for work of judges. And all together we serve one goddess - Themis. The Department has taken a worthy place in the structure of judiciary. It hasn't turned to the Ministry of the courts, the dominant agency, but also it did not become a third-rate economic management. We managed to find that golden mean, which allows to interact constructively. This does not prevent us from arguing, defend our points of view, but this doesn't affect our business relationships. And the results of work of this body speak for itself. It suffices to compare those barracks in which were the courts in the early 90's, with those Palaces of Justice, which are built in recent years.

Having headed the Council of Judges in the difficult 90th, have you assumed something like that? Or maybe pessimistic expectations prevailed?

There was no pessimism, but frankly speaking we did not anticipate that we would reach such a high level so quickly. Though we aspired to it. The most important thing is that the relation of executive power to the courts has changed. There occured some understanding that without strong judiciary the state can't exist. And it is not enough to proclaim "independent judiciary" it is necessary to create conditions that it could be that.

And the last question: how would you want to see the magazine "The Judge"?

Interesting. First of all - to judges, but if it will be claimed by wider audience - even better. The quantity of subscribers - the best indicator. It is important, how the magazine will be perceived in the journalistic environment. If it will be refered, if its materials will be qouted by other publications, we can state that the magazine has succedeed.

 

(The magazine "Judge" 1'2011)



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