How did this turn out and how to find a compromise between the citizen's right to protection in court and protection from the virus?
On March 18, 2020, the Presidium of the Supreme Court of the Russian Federation together with the Presidium of the Council of Judges of the Russian Federation issued Resolution No. 808, according to which “in connection with the threat of the spread of a new coronavirus infection (2019-nCoV) in the Russian Federation”, it was decided:
The decree expired on April 10, 2020. However, many courts still adhere to these guidelines.
A resident of Moscow, Roman Savenkov, told how for 9 months he has not been able to get his inheritance case examined in the Bassmanny District Court.
- Many procedural violations were committed in my case, and this is largely due to the fact that there is no access to the courts. Previously, I could have come to the court and in the office or on an expedition to receive a ruling (resolution) of the court and, if necessary, come to an appointment with the chairman, but Resolution No. 808 ruled out this possibility, completely separating the court from the people, ”he says. - Perhaps the highly respected court cannot do its job in person, for fear of infection, but remote work is also worth it. Appeals are not processed within the timeframe provided by law, interim decisions are posted to the site retroactively, and paper mail from the court does not go. I want quite a bit: I just want my inheritance case to be at least put in motion. Since October I have been trying to figure out how to return the court to its direct duties. No answer…
The interlocutor told Novy Izvestia that he had sent a statement of claim to court in October 2020. The Russian Post confirmed the delivery, but the registration notification came only in December, and the information about the admission to the court was displayed on the court's website only after the holidays - in January.
20 days after the submission of the documents - the time allotted for the court's appointment of the date of the hearing - the man began to call, write to the judge's office and to the court itself to find out if the proceedings had begun. But calls and letters were not answered. Information on the court's website regarding his case also did not appear.
It was also not possible to get to the judge in the waiting room. The uncompromising security just silently showed visitors to a notice posted on the wall: in connection with the covid, all documents and applications are submitted to the court only through the Internet reception or the Russian Post.
According to Savenkov, the assistant judge first got in touch on January 15 and announced the need to clarify the claim, although such messages should be sent to the plaintiff's home address by paper mail and within 5 days from the receipt of the claim!
The man, as he says, rushed to collect the missing data, namely: the address of the object - the apartment to which the inheritance rights were declared. In reality, the text of the statement of claim contained the address - however, in relation to the deceased sister, whose heir was the plaintiff, and the judge wanted - so that it was linked to the property to which the plaintiff claims.
- The judge lacked the competence to connect the obvious things and she asks me to bring the corrections. Although this clarification could have been quietly introduced at the beginning of the consideration of the case. Nevertheless, I completed the documents, immediately took them to the post office, they managed to put the stamp on the 15th number, the post office has all the confirming receipts and records about it. How surprised I was when the next day, January 16, I went to the court's website and saw there a note stating that I had missed the deadline for making clarifications, and therefore the consideration of my case was terminated.
Now Roman Savenkov is trying to challenge this strange verdict because of which he cannot access his inheritance. But with higher authorities - the trouble is exactly the same. He filed a private complaint with the Moscow City Court against the actions of the judge of the Basmanny District Court, but even there they do not answer his letters.
Moreover, in order to appeal the ruling on the termination of the case, you need to obtain the original of this ruling with a blue signature and seal from the judge of the Basmanny Court himself, but, as already mentioned, it is impossible to get into the building - the guards are not asleep.
“Covid did an amazing thing. Many judges hide behind them to justify red tape, their own laziness and incompetence. The basis of the state - law enforcement - was completely covered. Morally, I was already determined to go to the Supreme Court, the Higher Qualification Collegium of Judges, the Constitutional Court. I don't know how many years it will take for my case to be considered, I hope that this will happen before the Moscow City Property Department takes my inheritance and sells it at auction, - comments Roman Savenkov.
The interlocutor raises the question of vaccination of judges. Mass vaccination has been launched in the country. In the list of the government of July 15, 1999 N 825 "On the approval of the list of works, the performance of which is associated with a high risk of contracting infectious diseases and requires mandatory preventive vaccinations", there are many professions whose representatives are considered to be more at risk of infection. Among others, doctors, teachers, agricultural workers. There are no judges. But, if in our country such an important institution as the administration of justice is frozen for fear of infection in court, wouldn't it be right to at least raise the issue of vaccination of judges. At the moment, the decision to vaccinate the judiciary is left to the mercy of the judiciary itself.
Indeed, how, in a pandemic, can we find a compromise between the guaranteed right of a citizen to judicial protection, to open court hearings and reasonable measures to combat the virus?
We asked experts.
Kirill Titayev, Research Director of the Institute for Law Enforcement Issues at the European University at St. Petersburg:
- In this matter, it is important to understand that there are several fundamentally different contexts of the work of Russian courts. Even before the pandemic, simple cases were solved, one might say, remotely. The plaintiff sues, the defendant does not appear, the decision is often made in the absence of the parties, and the parties themselves are not against such an outcome. The share of such processes is significant. This category, for example, can be attributed to almost all courts for the collection of rent.
In contrast to them, there are, let's call them conditionally, substantive disputes. There are several categories here - criminal cases, cases of administrative offenses and a small number of civil disputes, and the situation with them during the pandemic was different.
In criminal cases, as we can see, at the beginning of the pandemic, the courts had some shifts, but in general, according to statistics, we do not record significant changes in the annual context - they were both considered and are being considered. Roughly the same, a little more complicated, with cases of administrative offenses. With civil cases, there is certainly an incentive for judges to postpone the consideration of disputes. It is clear that the courts prioritize cases in different ways, and, relatively speaking, where a person is in a pre-trial detention center and an urgent decision is required on him - a high priority, where property disputes are a relatively low priority, and this is normal.
However, it is important to understand that disputes between people are statistically not a very large category, despite the fact that there are really adversarial processes there. This can include, for example, the confusion that has arisen in the real estate registry, and the citizen goes to court with a claim to establish the fact in order to correct the registry error.
The first problem is that in this category very often disputes arise - not as an objective necessity, but as an artifact of the fact that officials are trying to shift their responsibility to the court. For example, in a recent interview, the judges gave an example: in general, they considered several tens of thousands of claims in a year to recognize that an actor and an artist are one and the same, because one category was entitled to benefits, and the other was not. If the officials of the Pension Fund, who can work remotely, in this case would use their discretion more widely, and not shift their responsibilities, then there would be no need to gather in large crowds in court at all.
Further, the dilemma is not that the judges are re-infected (here they themselves chose their profession, as they say), and let's oblige them all to be vaccinated without fail. Then it will be necessary to create and such separate professions as "plaintiff", "defendant", "witness", "expert" and vaccinate them all.
The next really important problem is that other participants in the court session will also be reinfected. A really serious trial is always a fairly large gathering of people: the parties themselves, defenders, experts, in criminal trials - plus a convoy, and so on. Our courtrooms are usually quite compact, poorly ventilated, many people are in confined spaces for a long time, that is, if you went to a court session where you had a chance to get infected, you are most likely infected. The issue of compliance with security measures for society as a whole in the case of courts is not far-fetched.
The solution to substantive disputes, disputes that matter to citizens, could be the search for remote means, or alternative systems for holding meetings. In addition, it is necessary to create effective tools for pre-trial appeal and remote appeal.
Lawyer Irina Biryukova:
- It seems to me that it is generally difficult with us with reasonable decisions in favor of ordinary people, to be honest. In this case, in my opinion, it would be nice to send copies of procedural decisions at the request of people, to allow appealing copies, without the need to obtain original documents. I don’t understand at all why paper copies with blue stamps are needed in the digital age. All procedural documents are filed in the case file. Upon appeal, the case is referred to a higher authority. Therefore, there is no need for unnecessary bureaucracy. The European Court, for example, or the UN Committee against Torture and other international bodies work exclusively on copies of documents. Only if necessary can the originals be requested.
I see no need for mandatory vaccination of judges. The point is that the judges do not contact a large number of people. Reception and trials are still carried out with the required distance - that is, the contact is minimal. The processes are frozen not because the judges are afraid of getting infected, but because in some processes there are a large number of participants who are not at such a distance as the judge from the rest of the participants. Crowds of people can gather in the corridors of the court at normal times, especially if the court is over a large area.
Some court employees are now honestly admitting that it is very convenient to refer to covid: unnecessary people do not go. A great reason, under which you can now customize anything.
Lawyer Ivan Yezhikov:
- The answer is very simple, it was found and successfully applied by the system of arbitration courts - decisions and rulings on paper are not needed at all, almost all procedural documents can be submitted in electronic form, just having an account on State Services. The case file is available online. In some courts and in the session, you can participate online. The result - the system of arbitration courts, if it encountered difficulties, they were not fatal. Moreover, it was during the coronavirus crisis that the courts began to massively scan cases and provide online access to them, and this turned out to be very convenient.
The problem with the courts of general jurisdiction is not at all in the fear of judges of infection, but often in their extremely low qualifications (both judges and technical personnel), overload, lack of leverage on them for violations of terms and procedures.
The courts of general jurisdiction have an electronic system, similar to the system of arbitration courts - "GAS Justice", but not all documents can be submitted through it. The administrative process is completely excluded, for example. I am not even talking about online familiarization or even getting legal acts in a normal form.
Well, and where without the human factor. I went to court in a pandemic in district courts, in the Moscow City Court, and in the cassation instance, everything worked, but how it worked - in each case depended on a particular judge.
And it's not about vaccination - the judge doesn't kiss the participants in the process, everything is ok with social distance. So this issue does not even need to be discussed, there are a lot of other problems in the judicial system, because of which justice suffers, and this is not a coronavirus at all.
Judge of the European Court of Human Rights Dmitry Dedov:
- In a pandemic, the courts should be accommodating to the applicants, taking into account the existing difficulties in obtaining the necessary documents for the purpose of appeal and access to the case materials. In such cases, the time frame for going to court can be increased or restored if there are objective reasons.
In many countries, the judiciary is also a priority category of professions for vaccination.
With regard to the use of compulsory vaccination for public health purposes and the achievement of herd immunity, incentive measures are recognized as legitimate from the point of view of the European Convention for the Protection of Fundamental Rights and Freedoms. The European Court of Human Rights in the case "Vavrychka and Others v. Czech Republic" recognized possible such measures as an administrative fine or denial of admission to a public institution (the issue concerned the admission of children to kindergarten). Of course, there are many nuances. For example, denial of access to school could be considered a violation if compulsory vaccination interfered with the right to education. Nevertheless, in my opinion, suspension from work pending vaccination is in line with the achievement of legitimate goals, since the situation is really critical and forcing the Government to take more decisive measures.
Nikolay Rybakov, Chairman of the Yabloko Party, Deputy of the State Duma of the Russian Federation:
- The right to judicial protection cannot be limited by anything. The courts, by imposing restrictions, themselves impede access to justice and condone lawlessness. And the question is not only about complicating the procedure for filing complaints in court, but also about artificially limiting citizens' access to justice, to open trials. And now, under the guise of combating the pandemic, it is another attempt to make the court more closed. By itself, the high alert regime, which has been introduced in the regions today, is not based on the law. In fact, officials limit the constitutional rights of citizens by their orders. And they do this not for the safety of citizens - they do it in order to take this opportunity to once again step on the rights of citizens in our country.
I do not support the introduction of compulsory vaccination, including in relation to judges. A person, based on his state of health, may have contraindications. But this is precisely the responsibility of those who can be grafted - to do it and thereby protect those who cannot afford it.