Morshchakova biography

HBR: Does there any obligations that imposes the status of a constitutional judge on you? Morshchakova: Yes, of course. He assumes that the judge continues to remain a member of the judicial community, all the prohibitions regarding the possible conflict of interests, prohibitions to engage in activities that are not compatible with the judges, that is, everything related to earnings except teaching and creative work, extends to him.

Is this status important to you? This is primarily the basis of the financial situation of the judge. Because the judge, retiring, receives a lifelong content replacing a pension. And besides this, he continues to comply with the rules that I have listed, and can participate in the activities of the judicial community. Why did you resign? According to the law establishing the age of the judge's resignation.

Although in our history there have been cases when those who really did not want to leave, pierced the law for themselves, which allowed them to stay for some time in their posts. Such a case occurred almost simultaneously with my resignation. The person achieved the adoption of the law that allegedly extended to all judges, but only he fell under the action of this law alone. After some time, this law was changed again.

You didn't want to stay the same? What does it mean "did not want"?! It's wrong! The work of the judge is a very interesting professional activity, the largest professional expression that you can imagine, the crown of the legal profession. It is not customary for us to evaluate the position of the judge, but all over the world this is exactly the way. I really liked this work and like it now.

And, if one could not resign by law, I would, of course, not leave on my own initiative. You said that under the current government, the court cannot be independent. This is not a completely accurate presentation of my position. I spoke and continue to say that the independence of the court can only be ensured only if the authorities agree to recognize this independence.

What measures, in your opinion, will allow the independence of the judicial system? The set of these measures is limited and known all over the world. First of all, it is necessary to solve the issue of judicial immunities. Immunes are often scolded, they believe that they violate the principle of equality when holding accountable, for example. But this, in fact, is not quite the correct interpretation.

The main immunity of the judge is that the judge cannot be held accountable for the creature of the decision made by him in the case. If the decision is incorrect, it is canceled - but this cannot be considered the basis for holding a judge accountable: official, disciplinary - any. This is possible only if it is proved that the judge has committed a criminal offense, and a special property is a crime against justice, the issuance of a deliberately unjust judicial act.

In all other cases, the judge cannot meet the position for the quality of his work. The second problem is insufficient guarantees when bringing the judge to disciplinary liability and in deprivation of his status. A very large protective function should belong to the bodies of the judicial community, which should proceed from one immutable thesis: it is possible to hold a judge liable only when this randomment is not aimed at getting even to get to the judge for his previously decisions or put pressure on him so that he will make decisions that are expected from him in the future.

This is a mandatory measure without which the independence of the judge is impossible. Today, power allows itself, figuratively speaking, order certain court decisions, and when she does this, she shows that she does not recognize the independence of the court. And any reprisal, even the softest, with the judge - for example, forced to resign - there is a means of pressure on the court.

And it eliminates the independence of the judge. And, of course, the procedures for the selection of candidates and the appointment of judges for the position should also be oriented to create a corps of independent judges. Now these procedures have a return focus. Whether the one who claims to be a judge will really be appointed, depends on the qualification collegium, which, being the body of the judicial community, itself depends on the chairmen of the courts, since it consists of the same judges who does not guarantee their independence.

Today, without the recommendation of the chairman, the president - and this is his authority - does not appoint the judge for the position. I believe that the appointment should be the result of an objective audit - there should be exams, they should be accepted by an independent commission in which judges can participate and - most importantly - representatives of the legal profession, legal science in a broader sense.

The decision of this commission plus the opinion of an independent body of the judicial community is what should be the basis for appointment. And here is the recommendation of the chairman of the court?!After all, a person who only claims to be a position has never met this chairman before, the chairman does not know him and may choose the wrong candidate who passed the exams better than others and received the best characteristics.

Here is such a small, seemingly link, but it is like a needle ear to the judicial estate - you can crawl through this needle ear only in a certain way. In general, the chairman of the court is assigned a lot of the functions of an ordinary manager, the manager of everyone and everything, including finances. He determines the size of the judge’s bonus, the re -certification of judges depends on him.

And this is also wrong. Can the judicial community affect the situation? No, because all members of the judges are judges, all of them are in an dependent position. They have to follow the instructions of the chairman of the court, which he transfers from power at different levels. If they refuse, the consequences can be terrible - up to deprivation of the status of a judge.

That is, this issue should be resolved at the political level? At the level of legislation. Systems for the selection, preparation, appointment of judges for the position should be changed. For many years, proposals have been put forward to eliminate the organizational and managerial functions of the chairman in relation to judges to make the position of chairman of the elective, because now the chairman has been appointed six years, then once again for six years.

And already this one prospect of re -appointment, which depends on the behavior of the chairman of the court, determines its existence in the judicial system. As a result, the chairman turns out to be a clear ranger of any instructions from above: he can violate them only at the cost of his own position. How is the state of affairs in the judicial system reflected in society?

An independent court is the main condition for development in all areas. All legal conflicts arising in society can be divided into two large categories. The first is the area where the rights of all people are realized; The second is the field of professional activities of all members of the company, this can be labor relations with the employer, their own business, etc.

All conflicts fall under judicial control. If it is independent, a fair decision will be made and all relations will develop normally. If not, then this can be called a corruption mechanism. Because corruption is not only receiving bribes, this is a matter of influence. If the influence - administrative, economic, inside the judicial community - is possible on the judge, then he is weaned to act according to the legal standard.

The standard that he begins to be guided is called the instinct of self -preservation. And then it doesn’t matter whether it will be addressed with a recommendation to resolve the case in a certain way, because even without this recommendation, the judge knows: if he makes a decision that will not like a higher court, there will be negative consequences. And in order to like this instance, you need to do as it does, wants or indicates.

That's all. The algorithm is changing. It turns out that all the judges have already studied to act according to the legal standard? The judicial corps consists of a very large number of worthy people, but they are placed in the conditions under which they must either leave or obey the rules. I think the latter is very painful for them. Because the selection of people who can engage in judicial profession should, in fact, involve the most independent in nature who can independently make strong -willed decisions, not be afraid of decisions, threats, public opinion.

But the conditions of activity form other qualities.

Independent judges are persecuted. Can society influence the situation in court? The most effective means is the jury. But his competencies are narrowing all the time - although experts constantly propose to expand them. Why prevent the court of jury in the field of criminal prosecution of the business? According to the current legislation, it is possible to pursue for economic crimes, in cases where there are no victims and often there is not even causing damage.

The basis of responsibility may be to receive a large income - and not profit, but income, that is, the total amount of working capital from which it is necessary to subtract the costs to make a profit. All this is understandable to people who consider their debit and loan in ordinary life every day. They would not unreasonably condemn for actions that do not represent a public danger.

When the jury court in our country was only introduced at the beginning of x, the judges burned with the judges. They said: the jury will ensure our independence, there will be no more complaints about us: what decision the jury will make, we will issue this! And now the judicial corps is sharply opposed to the jury. And there are quite explained reasons for this. Even when the court hearing is with the participation of the jury, the judge still receives the requirement to ensure a certain decision.

He has to dodge, use different methods of jury removal.Here, of course, the prosecutor’s office, and our secret services, which begin to look for compromising on these jury, help him, to put pressure on them. The process as a result lasts endlessly, the jurors are replaced - and when replacing the jury, the case should be started first. And all this very rarely ends calmly and safely.

Therefore, the judge has to manipulate even how he asks questions. Practices are very common when the question is raised only about the fact, and not about the criminal law content of this fact.