How to evaluate justice quality with regard to economic cases? Is it possible to appeal against the biased and preconceived opinion of the judge? What is judge’s code of honor? Do the parties pressure on the economic court and are judges well paid?

These and some other questions were answered within the frames of “Letter of the Law”, author program of Denis Aleinikov, Senior Partner of Law Group “Argument” by the guest of the program – Oxana Mikhnuk, chairman of the qualifications court panel of the economic courts of the Republic of Belarus, judge of Supreme Economic Court of the Republic of Belarus.

How to evaluate justice quality with regard to economic cases? Is it possible to appeal against the biased and preconceived opinion of the judge? What is judge’s code of honor? Do the parties pressure on the economic court and are judges well paid?

These and some other questions were answered within the frames of “Letter of the Law”, author program of Denis Aleinikov, Senior Partner of Law Group “Argument” by the guest of the program – Oxana Mikhnuk, chairman of the qualifications court panel of the economic courts of the Republic of Belarus, judge of Supreme Economic Court of the Republic of Belarus.

By the way, I have read an interesting thing that in case of examination of the issue on appointment of the candidates for a position of the judge the automatic identifying tools for such candidates shall be applied. What do you identify and what are the tools you are making use of?

О.М.: Yes, the candidates for the position of a judge are coming through exclusively voluntary psycho-physiological testing. The judge is a sophisticated profession. Testing helps us to identify whether the future judge is able to make proper decision; what affects taking decisions; how quickly he or she is getting tired and how quickly he or she is getting reinstated. It is these individual characteristics of a person which are especially important for the profession of a judge that the testing is allowing to determine.

Are we making use of “Lie detector" when the candidate is going through the qualification testing?

О.М.: No. The lie detector has not been used in the economic courts system so far. To my mind, such suggestions have not arrived by now.

This year is considered to be The Year of Quality. Along with that everybody is aware today what is quality of goods, quality of works and quality of services. And what is quality of justice? What criteria shall be applied for the assessment of the judge’s work quality?

О.М.: Quality of justice is the main indicator of courts activities. In particular, accessibility of justice, case consideration efficiency may be considered as quality criteria. If we are talking in general about the quality of administration of justice this is the quality of the process and the quality of the court decision in each particular case.

The economic court is the body to be applied to by the entities and the individuals for protection and restitution of the violated rights. That is why judges can not afford working poorly. The goal of the qualification panel is to attest the judge and suggest giving him the next class, to appoint for the position of the judge for a new term, etc.; it also takes into account such criteria as complexity of the case under the judge’s consideration, and case consideration efficiency, e.g. whether the judge violates the terms of the case consideration and whether there are any unreasonable suspension of proceedings upon the case, etc.

Tell me please, shall the correct or incorrect application of the law be the quality criterion of the particular judge’s work in making the court decision?

О.М.: Absolutely, legality and validity of decision made by the judge is the basic criterion in the judge’s work, that is why it is the key task in consideration of a particular case. The correct application of the norms of material law und all the more the laws of procedure in which the procedural laws regulate the judge’s conduct during the procedure, determine the judge’s work quality and the quality of the court decision.

Are there any criteria in figures for the quality assessment for this indicator? How many decisions made by the judge during five years may be reversed by the higher instances so that his work could be generally recognized as qualitative?

О.М.: I can not give you an absolute number of reversals which makes the judge’s work poor. Everything is relative, so the qualification panel tries to assess each judge’s work substantially and specifically taking into account not only quantities but also complexity of the considered cases.

What rough percentage ratio do we have today in general in the economic courts system today between the decisions made and the reversed ones?

О.М.: In regard to the ratio of reversed court decisions in relation to those considered by all the courts of the system, this percentage, to my mind, is insignificant and amounts to 0.5%. Along with that economic courts have considered almost 115 thousand applications by today.

Among 115 thousand applications such a low per cent of the revered ones?

О.М.: Yes. If take another figure and look at the number of reversed decisions to the procedural complaints which have been considered upon the court decisions, the number is certainly greater – 11% of complaints shall be satisfied. The matter is modification and reversal of previously made court decisions.

According to other countries’ statistics, 11% of complaints and 0.5% in relation to the considered cases, is it a good figure?

О.М.: This is a good figure in relation to the considered cases. As far as it goes to the complaints, there is a lot of work there. This is one of the issues which is always topical und which is always of special attention of the courts in order to minimize that percentage.

How is it possible to minimize it? If we tell the courts that they are to reduce the percentage of satisfied complaints, won’t it result in covering-up of any facts or appearance of unreasonably unsatisfied complaints?

О.М.: Absolutely not, no figures are being brought and shall be brought to notice, this is generally impossible in the justice system. Unfortunately, we shall admit that the part of reversals of the court decisions takes place just due to the reason of non-observance by the judge or by the court of the procedural law regulations. And these are the violations that are committed by the court, but they shall in no way be committed by the court. For example, it is failure to notify the person participating in the case of the time and the place of the court sitting. All these facts shall be excluded and the rate of valid complaints and reversals may be reduced. This is what we are bringing to notice of the courts.

What is the way to deal with the other reversal grounds?

О.М.: There is such a reversal ground as invalidity of the court decision. It is frequently connected with the court’s wrong subjective estimate of the actual circumstances of the case. This reversal ground may be also reduced by efforts of the judge, as far as we are talking about the work. Thorough analysis of the objective circumstances of the case shall be carried out plus a definite work on examining the court practice shall be done, plus return to the theory if needed.

Major efforts to help judges are made by Supreme Economic Court of the Republic of Belarus. These are judicial reviews, Rulings of the Plenum being adopted upon the results of such reviews. We are trying to reveal the typical errors in application of the norms of material and procedural law in specific situations in order to draw the judges’ attention and to explain them the common errors and the ways of correcting them.

Certainly, it is difficult for the judge. Application of material law regulations are tightly connected with the certain circumstances of the certain case. So, that’s absolutely true: there are no two identical cases. Even if you find two similar decisions in the base with different outcomes – that does not mean that the court is wrong.

As the famous advertisement says: “I understand you…”. There is an interesting question: can anyone else, apart from the members of the qualification panel, assess the quality of the judges’ work, for instance some citizens, entities, actual participants of the legal process?

О.М.: They just not only may, they actually do. Supreme Economic Court and other courts regularly get applications from the representatives of the entities, from the citizens with the assessment of each certain judges’ work quality. All these applications are taken into account: they have both positive and negative assessments. The citizens and representatives of the entities participating in different arrangements with Supreme Economic Court also express their opinion.

Let’s be honest: are there many complaints in relation to the judges which are being submitted to the qualification panel?

О.М.: The complaints are being made. I think, after today’s program the complaints shall be submitted more frequently. Not everybody is aware whom and in what way to apply in order to correctly initiate the issue on responsibility of the judge, if the question is being raised in such a way. You should not apply the qualification panel but the head of the court, because it is the head, i.e. the chairman of the economic court of the region or the City of Minsk and the Chairman of Supreme Economic Court of the Republic of Belarus who have right to institute and to make decision on institution of disciplinary proceeding.

The qualification panel shall consider this representation and make its statement, whether there is a reason for bringing to disciplinary responsibility as stipulated by the Code of the Republic of Belarus On Judicial Organization and the Status of the Judges, and shall recommend administering disciplinary measures to the judge or does not recommend doing so.

What are the reasons for that?

О.М.: The first reason is violation of the laws by the judge in administration of justice. The second reason is violation of the code of judge’s honor and the standards of ethics. And the third reason is, being a normal employee and the civil-service employee - violation of the internal labor order and some other offences. But the qualification panel is considering the issue just in accordance with the first and the second reasons. The implementation practice is prerogative of the judge’s head.

By doing so I would like to note that reversal of the court decision is not the reason for claiming the violation by the judge of the laws as the reason for bringing him to the disciplinary responsibility. It is directly stipulated by the code. The judge makes decision being governed by the laws and by his inner conviction. Everybody has right to mistake – such mistakes, whether we want it or not, sometimes happen – but bringing that judge to the disciplinary responsibility is not possible by virtue of the code. And this is one of the guarantees of the independence of the court.

They are writing sometimes that the judge is bad, one-sided and not objective, etc. but there is actually a wish standing behind it which is to defend the interests in the essence. Is that true?

О.М.: Unfortunately, such arguments are being often produced in the complaints. In the cases with no legal arguments for disputing the court decision, it comes to mind that the judge was biased, non-objective and was listening to one party only and failed to listen to the other.

Unfortunately, complaints against the judge are being written even when the case is under consideration, and it doesn’t matter, whether at first instance or while reconsideration of those court decisions. Such complaints may be regarded as pressure upon the court, because it actually turns out that the appealing party is asking to take measures towards the judge who, to its opinion, processes the case incorrectly and makes incorrect decision. Where is the independence of the judge making decisions?

The economic process may involve not only the interests of commercial entities and that of the citizens. Interests of state authorities and regulatory bodies may be involved either. Is there any pressure? Are there any complaints against the judges?

О.М.: Certainly, procedural complaints are being received in case the decision made is not in favor of the state authority representing governmental interests. The number of such complaints is actually big. I cannot say that non-procedural complaints are being received, as we have mentioned earlier.

Civil service employees are more prepared for the processes, so, taking into account that they are civil service employees, probably, they better understand the status of the court and that of the judge who can afford being strict towards everybody, and they do not assess such a strict treatment towards them as biased, in comparison to the representatives of the private entities. By some reason they regard it to be a negative treatment in relation to themselves. In effect it’s impossible.

Some Internet-users mention that if the state authority is coming out against any commercial entity in the legal process, the court’s sympathy shall rather be for the state authority. So, their representatives have it easier in the process…

О.М.: The Economic Procedure Code presumes equality of the parties and the court is proceeding from that assumption while considering the case. Unfortunately, the first argument we can hear after the decision has been pronounced not in favor of the economic entity is the argument about the unequal conditions between the representatives of the state authority and the economic entity. But actually it is not so. There were times when decisions of the state authorities were recognized illegal in 50% cases.

I would like to mention that the state authorities do work and do not repeat their mistakes twice. Yes, they are going by the end and appeal against the court decision for resolving the legal situation. Having failed to receive the final decision, they try not to repeat their mistakes. That is why we may talk today that the claims filed to the state authorities through the court shall be satisfied more rarely than it was a few years ago. But this is their work.

Has it been predetermined by the better quality of the state authorities’ work?

О.М.: Well, to my mind, it is so. Furthermore, it is not a secret. Supreme Economic Court is interacting with the state authorities. But it certainly does not take place within the frames of a certain case. There are working groups which conduct meetings in order to determine interpretation and application of material law regulations.

A lot of countries discuss the issue on the necessity of the judge to be first of all materially independent i.e. financially well-to-do person, in order to comply with the independence approach, so that it serves as the barrier in front of any corruption efforts from the party. Is our today’s judge a well-to-do person? If talk about the salary, how much does the judge earn today?

О.М.: The salary is good. You know that the salaries were increased in November, so was the salary of the judge. My today’s salary is about 4 mil Rubles. I had a million less a month ago. Surely, the regional judges earn less. In general, the salary depends on the qualification class and the record of service.

Economic courts consider property cases of millions of USD amounts today. Do you think this is a sufficient salary for the human, and the judge is a human being, first of all, to be a barrier against any temptations while considering the cases of millions of dollars amounts?

О.М.: I believe, apart from the salary, the judge shall have some other barriers which are immaterial. It is respect for the law, personal high level of compliance with the standards of ethics, morals and professional ethics. Our judges do have such qualities; that is why they work in the economic courts system. Immaterial barriers are much more significant. And the salary we have is also worthy, though the work is hard.

The work is hard… Is the work well balanced with the salary or not?

О.М.: (laughing. - Auth.)

We may take that issue off the table.

О.М.: Let’s take the issue off the table, actually everything is relative.