Bringing judges to criminal liability in the Criminal Code of the Russian Federation

Who are the judges?

How does the law “on the status of judges” characterize the judge himself?
According to its first article, judges are persons who have the authority to administer justice under the conditions of obtaining a special professional certificate. Judges are independent and are subject only to the Constitution and other regulations. Requirements or orders received from judges are binding on all officials, government organizations, public associations, etc. The law establishes the unity of the status of judges. At the same time, there is a certain qualification division, depending on the position held. For example, a justice of the peace must be at least 30 years old, and a judge of the Constitutional Court must be at least 40 years old, coupled with fifteen years of experience as a lawyer.

Who can become a judge?

Only a Russian citizen who has a higher legal education with a Master’s qualification can become a judge. A candidate for judge should not have a criminal record and foreign citizenship.

The following age restrictions are also established for judges:

• employee of the Constitutional Court – age over 40 years; work experience should not be less than 15 years;
• a judge of the Supreme Court must be at least 35 years old, and his work experience cannot be less than 10 years;
• a judge of a regional court of general jurisdiction must be at least 35 years old and have at least 7 years of work experience;
• An arbitration court employee must be over 25 years of age.

The total work experience may include work as a teacher of legal disciplines, a lawyer, a notary, or a civil servant in certain positions.

Rights and obligations

The rights and obligations of guardians of the law are prescribed in Federal Law 3132-1. There is also a “Code of Judicial Ethics” of 2012. A judge is subject to the Constitution and is not accountable to anyone.

At work, a government representative has the right:

1. Examine case materials, evidence, interview the defendant, victim and witnesses.
2. Accept or reject applications and petitions. Make decisions and sentences.
3. Request evidence, make requests to government agencies and other organizations.

Also, citizens with power have serious responsibilities :

1. Strictly follow the law.
2. Protect the rights and freedoms of citizens, bring justice and humanism.
3. Thoroughly study the practice of legal proceedings.
4. Do not commit actions that are detrimental to justice, discrediting the honor and dignity of the judicial system.
5. Keep the investigation and other information confidential.

Judges have no right:

• work other jobs;
• to do politics;
• engage in business activities.

Requirements for a judge

The Law “On the Status of Judges,” in particular its third article, states the need to fulfill certain requirements, without which judicial professional activity would be impossible. Thus, every judge is obliged to honor and comply with the fundamental law of the state, federal and federal constitutional laws. Regional judges must comply with the charter or constitution of the entity where they work. Otherwise, it will likely be that judges who did not comply with the law will be held accountable.

What other requirements does the Federal Law put forward?

1. A court employee must perform his duties in a manner that does not undermine the authority of the judicial branch of government.
2. A judge must competently resolve conflicts of interest.

In this case, the judge has no right:

• fill any other positions in the civil service;
• belong to movements or parties of a political type;
• publicly express their attitude towards a particular political party;
• engage in entrepreneurial or any other paid activity, except for judicial work;
• disclose restricted information.

Is it possible to hold judges criminally liable for violating the above requirements? The law says no. This refers, rather, to disciplinary type responsibility, which will be discussed below.

What are the statute of limitations for criminal prosecution?

The statute of limitations is the period during which criminal prosecution for a crime is possible. It depends on the severity of the illegal act:

• 2 years for minor crimes;
• 6 years - for acts of moderate gravity;
• 10 years for serious offenses;
• 15 years - for especially serious cases.

Limitation periods are determined based on the category of crime. If the maximum sanction does not exceed 3 years of imprisonment, the act is considered to be of minor gravity. If the offender can receive a maximum of 5 years in prison, the act falls into the category of medium gravity. This also includes crimes committed through negligence, the maximum penalty for which exceeds 3 years in prison. Serious crimes are those that carry a maximum sentence of 10 years in prison. Particularly serious offenses include those with a maximum sanction of more than 10 years.

About immunity

The process of bringing judges to criminal liability was slightly changed in 2010 by amending Article 16 of the Federal Law “On the Status of Judges.” Article 16 states the immunity of all judges. What is included in the concept of immunity? Personality, office premises, official vehicles, luggage, documents, correspondence and various government property - all of this has the status of inviolability according to the law.

If the court does not establish that the judge has abused his powers, then the judge cannot be held accountable for any decision made or for any opinion expressed. A similar rule has also been included in the law.

Does immunity status somehow affect the prosecution of judges? According to the bill, it has no effect.

Concept of immunity

The immunity of courts in our country is a rule that is enshrined in various articles and laws. The fundamental definitions are enshrined in Article 122 of the Constitution of the Russian Federation:

1. Judges are inviolable.

2. A judge cannot be held criminally liable except in the manner determined by federal law.

And also we are told about immunity in Article 16 of the Federal Law No. 3132-1, Article 16 1-FKZ. Integrity primarily means personal integrity and also implies independence in decision-making. Even after leaving office, according to the law, they cannot be held accountable for their decisions.

There are several types of legal families:

• Anglo-Saxon;
• Romano-Germanic;
• Scandinavian, etc.

Judicial systems are distinguished by the type of these families. The UK judicial system is precedent-based. This means that decisions should be based on judicial precedent. This is especially common in criminal proceedings.

And in Russia there is a Romano-Germanic family. Judicial decisions in criminal and other cases are based only on a comprehensive study of the circumstances.

Can a judge be held criminally liable? Yes, attraction is possible, but in compliance with special procedures and procedures. The judge is responsible:

• administrative;
• disciplinary;
• criminal.

Antonova Marina Alexandrovna

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A lawsuit is not the most pleasant thing that can happen to a person. It is difficult to find a good lawyer or lawyer. But our organization employs highly qualified professionals. We will help determine the evidence base, draw up documents for the court, and, at the request of the client, we will directly represent the interests and protect the rights.

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Requirements

Article 3 of the law states that a judge must fulfill a number of requirements, without which his professional activity is impossible. In addition, he is obliged to comply with all laws of the Russian Federation. Judges who do not comply with the law will be held accountable. In addition to compliance with the law, a number of other requirements are put forward:

• a member of the court is obliged to carry out official duties in such a way as not to implicate the authority of the judiciary. In simple terms, he must make informed decisions that will satisfy the public. At the same time, he should not follow her lead. The second point follows from this;
• A court employee is obliged to take a balanced approach to solving any problem. A specialist of this level should not be an expert in absolutely all spheres of life in modern society. In this regard, he has the right to receive assistance from specialists in highly specialized areas. All opinions are also taken into account, but the final decision is made solely at their discretion.

Along with the rights, there is a certain list of restrictions. The judge has no right:

• hold any other position;
• be a member of any political party;
• express your attitude towards any political force;
• engage in business;
• disclose classified information, including from closed hearings.

Are judges subject to criminal liability for violating the above requirements? The law says no. Disciplinary liability is provided for such actions.

Characteristics of the official

In order to more accurately characterize the position of the guardian of justice, one should recall the formula of the three “Ns” (independence, irremovability, inviolability).

Features of the status of a judge:

1. A strict taboo for the intervention of any citizen in establishing genuineness (punitive measures for intrusion into the work of the priest of righteousness - Article 294 of the Criminal Code).
2. A special regime of suspension and termination of powers. The activities of the guardian of truth are suspended or terminated at the discretion of the Qualification Board (QCC).
3. The prerogative to resign (to retire with honor. Remains a member of the community, a pension or 80% of the monthly salary is paid, social guarantees are retained - transport tickets, severance pay).
4. Inviolability (acts as a manifestation and guarantee of independence).

Untouchability is not a personal privilege, but a preservation of public interest in the administration of justice. By endowing the servants of defending violated privileges with significant competence, the country is obliged to provide boundaries of defense (security of person, housing, vehicles, privacy of correspondence, conversations, etc.).

A system of community bodies (formed to express the interests of community members). Material, social security (official salary, additional payments for qualifications, academic degree, title of “Honored Lawyer of the Russian Federation”, payment of road tickets during vacation, provision of housing, monetary compensation for renting housing , places in preschool institutions, schools for children, sanatorium-resort treatment for families).

Freedom and inviolability are the key to independence. It is possible to carry and store service weapons, which will ensure personal safety.

The irremovability of the guardian of the law (without his consent he cannot be transferred to serve in another temple of truth). But this does not mean at all that the tenure in office will be indefinite. Guided by the established rules, the work of a guardian of the law may be terminated or suspended.

Centumvirs have an exalted position, ensured by the norms of current law. Independent, unaccountable.

Grounds for punishment

The retribution for the enterprise of crime is twofold. Positive means the servant of justice implements all regulations. Negative behavior occurs when he violates forbidden norms.

The execution of a criminal atrocity by a minister of justice while carrying out his professional activities causes a public outcry and is the most dangerous for society, since they are endowed with the duty to preserve and restore the rights and freedoms of people, and not to violate them.

Criminal liability of judges is assigned for the following crimes:

1. Receiving a bribe.
2. Negligence. A striking example is the failure to comply with the deadlines for satisfying the convicted person’s request. Sidorov was convicted of manufacturing and storing desomorphine without the purpose of distribution. After serving his sentence for several months, the act was decriminalized. Sidorov filed a motion under jurisdiction. However, the result of his petition came four months later. Due to the negligence of the arbiter of truth, the individual spent an extra four months behind bars.
3. Making a deliberately illegal decision. Under the chairmanship of Petrenko A.E. the case was considered against Nechaev E.N. in committing fraud. According to the indictment, he was sentenced to five years in prison, with the recovery of 500 thousand rubles from him in favor of the victim K.B. Askalov. After reviewing the case materials, Petrenko demanded two thousand US dollars from the plaintiff for the conviction. He refused. Then the keeper of the Themis, bypassing federal legislation, made an unfounded decision in advance to terminate the enforcement proceedings in the case, and the property of the accused was withdrawn from auction. Askalov filed a lawsuit against Petrenko and won the case.

The most common lawlessness of centumvirs in the implementation of duties is corruption, negligent attitude to job descriptions, issuing truly unfounded conclusions and determinations.

How is liability regulated?

The main law aimed at regulating relations with the participation of a judge is the Law of the Russian Federation of June 26, 1992 No. 3132-1 “On the Status of Judges in the Russian Federation” (hereinafter referred to as the Law on the Status of Judges), the provisions of which have changed many times, but even today it cannot be said that it is logically verified and easy to understand. It has many shortcomings.

Let us dwell on some of them and give them an appropriate legal assessment.

There is no clear list of grounds for liability.

As a result, to determine specific offenses, one must be guided by the following.

• Firstly, proceed from what duties are assigned to the judge, non-fulfillment or improper fulfillment of which, in theory, should entail liability. Another option will no longer have the character of legal, but of moral and ethical obligations.
• Secondly, as grounds for liability it is necessary to mean acts for which the measures of liability specified in the law - disciplinary - can be applied to a person.
• Finally, thirdly, the grounds for liability should include those grounds for early termination of powers, which, although not named as grounds for liability specified in the law, however, due to their application as a result of improper behavior of the judge, have the force of punishment.

There were violations in the formulation of specific grounds for liability.

Thus, one of the duties of judges is to comply with current legislation. In particular, it is stated that a judge must comply with the Constitution of the Russian Federation, federal constitutional laws and federal laws, and a judge of the constitutional (charter) court of a subject of the Federation, a magistrate must comply with the constitution (charter) of a subject of the Federation, the laws of a subject of the Federation (clause 1, article 3 Law on the Status of Judges). Thus, a restrictive formula for the principle of legality is given. But a judge of a court at any level is obliged to comply with laws, including regional ones (Part 2 of Article 15 of the Constitution of the Russian Federation).

The mechanism for bringing to justice is distorted.

The existing procedure for holding judges accountable indicates that they do not fully retain their rights to autonomy and independence, which are named as the leading principles of a judge’s activity not only by the Law on the Status of Judges (Articles 1, 9, 10, 12), but by the Constitution of the Russian Federation (Articles 120 - 121).

• Firstly, by the bodies of the judicial community - the Qualification Board of Judges and the Disciplinary Board of the Supreme Court of the Russian Federation - judges are held accountable due to violations of not only purely professional duties, but also moral and ethical standards (Article 12.1 of the Law on the Status of Judges).
• Secondly, there is difficulty in appealing decisions made by bodies of the judicial community. On the one hand, it is indeed possible to appeal decisions, actions (inaction) of qualification boards of judges (clause 4, part 2, article 1 of the Code of Administrative Justice of the Russian Federation); on the other hand, the law leaves room for “revenge” on the part of the judicial community, such as an increase in qualification class, transfer to another place of work, promotion, etc. are left to the discretion of the chairmen of courts and qualification boards of judges (Articles 6, 6.1, 20.2 of the Law on the Status of Judges).
• Thirdly, the representatives of the judicial community themselves, holding positions in the highest judicial authorities, remain beyond the reach of responsibility.

There is a gap in defining the type of responsibility not covered by the concept of disciplinary offense.

If we return to the previously listed grounds for the early termination of a judge’s powers, which act as grounds for his responsibility, we will notice that only one of them is associated with the onset of disciplinary liability.

How to attract a judge: grounds and procedure

Bringing a judge to criminal liability or otherwise is a complex procedure for which there must be a compelling reason. Even after resignation, they are subject to immunity - Article 15 of Federal Law N 3132-1.

Important!

Personal searches are not permitted, with the exception of security reasons in cases established by federal law.

Appealing decisions in criminal cases

As we found out earlier, the law generally prohibits prosecution for decisions. Decisions are appealed in accordance with the procedure established by law. File appeals and cassation complaints against decisions in criminal cases. Article 389.1 of the Code of Criminal Procedure of the Russian Federation establishes such a right for all participants in the process. The supervisory authority reviews decisions in criminal cases that have entered into legal force - article. 412.1 Code of Criminal Procedure of the Russian Federation.

Sample application Sample appeal against the verdict of a magistrate in a criminal case

Appealing decisions in civil proceedings

It is not customary to argue with the judge during the consideration of the case on the merits. Disputes and debates are allowed only between the parties. And in civil matters, all decisions can also be appealed in accordance with the procedure established by law to higher courts. Child support and court orders are often appealed.

Example

Anatoly received a court order to collect the debt. But he knew the laws well and managed to file an objection within 10 days to the same court. Now his case is being considered in ordinary lawsuit proceedings. And Anatoly now has the opportunity to present his evidence and defend his rights.

The procedure for holding judges accountable

If a criminal case is initiated against a judge, his powers are suspended - Article 13 of Federal Law No. 3132-1. If he was detained on suspicion of a crime, but his status was not determined during the detention itself, then immediate release is due.

A good reason for initiating a criminal investigation and bringing to justice is considered to be murder when it was possible to catch the crime at the scene. And in any case, it attracts the court. Let's look at the stages of this special procedure.

And all this applies to criminal proceedings. We remind you that the injustice of verdicts and decisions is not a basis for initiating criminal prosecution, unless there was personal interest, which was caused by the need to hide one’s criminal acts. But in this case, the prosecution will already be in a criminal case, in compliance with the above procedure.

Important!

The position of the Plenum of the RF Armed Forces on the issue of errors is as follows: it is believed that even disciplinary measures cannot be applied for an error made during the examination.

What happens in practice

The criminal liability of judges in the Russian Federation in theory and in practice is very different: actual prosecution is a very rare situation, almost isolated. How many reports have we heard in the media that nepotism is thriving in the regions and republics, where all law enforcement agencies are closely connected, and there is no talk of any independence.

Even when publicly convicted of acts discrediting the honor of the judicial robe, there were no disciplinary consequences.

And all criminal sentences against citizens for the most part are of an accusatory nature, which affects the general atmosphere in the life of the country.

Injustice is especially felt when some segments of the population can simply be brought to justice, while others cannot be brought to justice for decades.

Antonova Marina Alexandrovna

Leading lawyer for alimony recovery • 11 years of experience

If an unfair verdict is passed against you or your loved ones, then you can and should appeal it. Contact our organization, where professional criminal lawyers will help you cope with a difficult situation and will defend you.

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The procedure for bringing a judge to criminal liability

The Code of Criminal Procedure of Russia expresses the procedure for the occurrence of reprisals by guardians of imperatives in criminal cases. Centumvirs belong to a group of persons for whom special regulations for criminal proceedings are provided (Article 447 of the Code of Criminal Procedure of the Russian Federation).

The verdict on the commencement of the investigation is rendered:

1. Regarding the judge of the Constitutional Court - the chairman of the Investigative Committee (Investigative Committee) with the permission of the Constitutional Court.
2. The Supreme Court, constituent entities of Russia, federal arbitration, military courts - by the same entity with the permission of the Higher Qualification Board.
3. Other judges - by the same person with the permission of the qualification commission.

The intention to begin criminal persecution of the priests of Themis is made in agreement with one or another body with the Chairman of the Investigative Committee. Guardians of justice captured for fear of committing a tort, excluding those caught at the scene of a crime (murder, detention with a knife next to a corpse), should be released immediately upon recognition of their identity. In other words, these people are detained for the purpose of identification; a detention report cannot be issued on them.

Upon completion of the preliminary investigation, the lawsuit is sent to court. The verdict on the case is accepted. If the type of suppression is chosen - imprisonment, on the organization of a search, the KKS or the Constitutional Court shall accept and send within five days after the extraction of the court resolution and the presentation of the chairman of the Investigative Committee a reasoned resolution on giving consent to carry out sanctions against the accused.

A disciplinary offense must result in a negative result. Misdeeds vary in the nature of the damage caused and imply different penalties (reprimand, warning, early termination of activities).

Example: Failure by a guard to ensure the accuracy of the work schedule can lead to an obvious outcome. P. allowed himself to leave for lunch an hour earlier, come later, every Friday he arranged a short day for himself - he worked until eleven in the morning, then left for the weekend, all of which together led to delays in the consideration of cases. The result was early termination of competence.

Compensation for moral damage

If a judge made a decision in a criminal case, and it was later overturned, then the unjustly convicted person will have the right to compensation for lost income and moral damage.

An application for such compensation can be submitted to the court that terminated the criminal case, or to the court at the place of residence of the applicant. There is a detailed explanation from the Supreme Court about receiving compensation.

For example, in 2022, by a court decision, a Muscovite was put under house arrest: he could not leave his house or use the Internet. 6 months passed, and the criminal case was dropped, finding the man not guilty. He demanded compensation of 4 million rubles for moral damage. The court, however, compensated only 50 thousand.

You can also seek compensation for an unlawful court verdict in the European Court of Human Rights. How to apply for compensation is described in detail on the court’s website.

You can demand compensation from the European Court not only in criminal cases. For example, one citizen of the Russian Federation was banned from traveling abroad for 5 years because before his dismissal he had access to state secrets. The man unsuccessfully tried to appeal the refusal in the Russian courts, and then went to the European Court and sued the state for 5 thousand euros.

The Constitutional Court recalled that immunity does not exempt judges from criminal liability

On September 27, the Constitutional Court issued Ruling No. 2333-O on a complaint from a judge who considered that certain provisions of the Law on the Status of Judges and the Code of Criminal Procedure do not correspond, in particular, to the constitutional principle of the immunity of judges.

Reason for contacting the Constitutional Court

As stated in the ruling, the first and appellate instances recognized as legal the inspection of the home of Vladimir Starodubtsev, who holds the position of a judge of the district court, as the scene of the incident, carried out in an urgent situation.

We note that on October 8, 2022, the Investigative Committee of the Russian Federation announced the initiation of a criminal case against the judge of the Anapa District Court of the Krasnodar Territory, Vladimir Starodubtsev. He is suspected of committing a crime under Part 3 of Art. 30, part 4 art. 159 of the Criminal Code of the Russian Federation (attempted fraud on an especially large scale).

According to investigators, the suspect, together with two other persons, demanded money from the entrepreneur in the amount of 64 million rubles, allegedly to transfer it as a bribe to the judges of the Krasnodar Regional Court for making a decision on an administrative case in which the victim represented the interests of land owners.

As indicated on the ICR website, in February 2022, when transferring funds to judge Vladimir Starodubtsev at his place of residence, “the criminal actions of the judge and his accomplices were stopped by officers of the Russian FSB.”

Applicant's position

Vladimir Starodubtsev appealed to the Constitutional Court, believing that certain provisions of the Law on the Status of Judges and the Criminal Procedure Code do not comply with the Constitution.

In his opinion, paragraph 7 of Art. 16 of the Law on the Status of Judges and Part 5 of Art. 450 of the Code of Criminal Procedure allow for the possibility of carrying out investigative actions against a judge (if a criminal case has not been initiated against him or he is not brought as an accused) related to the restriction of his civil rights or violation of his immunity, without first obtaining a decision from the relevant panel of judges. The applicant believed that such enforcement violated the constitutionally guaranteed rights to the inviolability of home and judicial protection, as well as the principle of the immunity of judges.

Vladimir Starodubtsev also challenged the constitutionality of Part 5 of Art. 165 of the Code of Criminal Procedure, which regulates the judicial procedure for obtaining permission to carry out an investigative action and allows for an inspection of a home before initiating a criminal case without an order from the investigator or inquiry officer in urgent cases. The applicant considered that this rule also violated his right to the inviolability of his home.

The court clarified the purpose of the principle of judicial immunity

Refusing to accept the complaint for consideration, the Constitutional Court noted that the Constitution in Part 1 of Art. 22 proclaims the immunity of judges as the principle on the basis of which specific issues of the immunity and responsibility of judges are resolved. Part 2 of this article establishes that a judge cannot be held criminally liable except in the manner determined by federal law.

As noted in the definition, detailing the provisions of Art. 122 of the Constitution, paragraph 1 of Art. 16 of the Law on the Status of Judges determines that the inviolability of a judge includes the inviolability of his person, residential and official premises, personal and official vehicles used by him, documents belonging to him, luggage and other property, as well as the secrecy of correspondence and other correspondence.

Paragraph 7 of the same norm establishes that if a criminal case has not been initiated against a judge or he has not been brought as an accused, then the implementation of operational investigations and investigative actions against him related to the restriction of his civil rights or violation of his integrity is allowed only on the basis court decision.

The Constitutional Court recalled that the criminal procedure law classifies judges as persons in respect of whom a special procedure for criminal proceedings is applied, which provides additional guarantees when initiating a criminal case, arrest, selection of preventive measures and carrying out certain investigative actions (Articles 448–450 Code of Criminal Procedure). Such guarantees also include the requirement to obtain the consent of the court to carry out investigative and other procedural actions carried out in accordance with the Code of Criminal Procedure on the basis of a court decision, in the event that a criminal case was not initiated against the judge or he was not brought as an accused ( Part 5 of Article 450 of the Code of Criminal Procedure).

The Constitutional Court once again reminded: judicial immunity, being a certain exception to the principle of equality, does not mean exemption from criminal or other liability. It is not a personal privilege of a citizen holding the position of judge, but a means of protecting public interests, primarily the interests of justice. A similar position was expressed in the decisions of the Constitutional Court of March 7, 1996 No. 6-P, of February 19, 2002 No. 5-P and of February 28, 2008 No. 3-P.

The court indicated that the contested paragraph 7 of Art. 16 of the Law on the Status of Judges and Part 5 of Art. 450 of the Code of Criminal Procedure are aimed at implementing the principle of immunity of judges; moreover, they are its guarantees, and therefore cannot be regarded as violating the rights of the applicant.

The Constitutional Court considered it necessary to draw the applicant’s attention to the position expressed by him in Resolution No. 12-P of June 9, 2011. As stated in this act, the power of the court to decide on the issue of conducting investigative actions against a judge related to the restriction of his civil rights or his judicial immunity is one of the forms of expression of judicial power, exercised through the types of legal proceedings listed in the Constitution, which in In this case, it is criminal proceedings that come into play.

“Accordingly, the court’s decision on this issue must be carried out according to the rules of criminal proceedings, mandatory for all its participants, on the basis of clause 7 of Art. 16 of the Law of the Russian Federation “On the status of judges ...” in connection with the general principles and norms of criminal procedure law,” the Constitutional Court concluded.

Regarding the appeal of Part 5 of Art. 165 of the Code of Criminal Procedure, the Constitutional Court noted that, contrary to the arguments contained by Vladimir Starodubtsev, it directly provides for the possibility, in exceptional cases when an inspection of a home is urgent, to carry out this investigative action on the basis of a decision of the investigator or inquiry officer without obtaining a court decision.

According to the Court, the reference to the unconstitutionality of this provision is connected with the applicant’s disagreement with the court decisions taken in his case. The Constitutional Court recalled that the assessment of such decisions requires an examination of the factual circumstances of the case and is beyond the powers of the Court.

Expert opinion

Associate Professor of the Department of Criminal Procedure Law of the University. O.E. Kutafina Artem Osipov pointed out that the definition does not contain legal positions that are “any significant” for Russian law enforcement practice. “We can only regret that the Constitutional Court did not take the opportunity to give a detailed interpretation of “urgent cases” in relation to Part 5 of Art. 165 of the Code of Criminal Procedure of the Russian Federation in the aspect indicated by the applicant. This legal structure, for all its public legal value, leaves extremely wide limits for arbitrary interpretation and application by employees of investigative bodies, which may affect not only judicial immunity, but also other types of constitutionally significant values ​​(client privilege, confidentiality of personal life, the right of the accused to protection),” explained Artem Osipov.

According to him, at the moment, standards for judicial control over the validity of urgent investigative actions have not been developed, despite the short list of grounds for their implementation in paragraph 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of June 1, 2022 No. 19.

According to Dmitry Kravchenko, head of the constitutional practice of the Asnis and Partners Law Firm of the Moscow State Civil Court, this definition is “another evidence of the inadequacy of the protection of constitutional rights in ordinary judicial control.” “Applicants, even judges, are faced with situations where their basic guarantees directly provided for by law are limited, and, not finding support in the courts of general jurisdiction, they turn to the Constitutional Court. But in the case where one-time enforcement directly diverges from the law, the Constitutional Court can (but should not) only consider the norm in the context of this practice. As a rule, for this, practice must be formed and yet not directly contradict the norms of the law,” noted Dmitry Kravchenko.

The lawyer believes that constitutional control in a particular case should be carried out by courts of general jurisdiction, however, in his opinion, they do not always cope with this function.

Criminal liability of a judge

If the judge knew that he was making a deliberately illegal decision, then he could be prosecuted under the Criminal Code of the Russian Federation under Art. 305 A fine of up to 300,000 rubles is imposed for this. The fine is paid to the state, not the victim. They may also be subject to forced labor for up to 4 years or imprisoned for the same period. Initiating a criminal case against a judge is an exceptional case; the decision on this is made by the chairman of the investigative committee and a special body - the Qualification Board of Judges.

In 2022, a judge from the Volgograd region made a decision without holding a court hearing. He did not summon the accused, his lawyer, or the prosecutor to court, but simply drew up a false protocol in which he indicated that there had been a meeting and that all participants in the process were present. The judge was fined 200 thousand rubles. True, they were later released from punishment under an amnesty in honor of the 70th anniversary of the victory in the Great Patriotic War.

Any victim, that is, anyone whose rights this decision violated, can declare that a judge has made a deliberately illegal decision. To do this, it is enough to write a letter to any law enforcement agency involved in the fight against corruption: the investigative committee, the prosecutor's office or the FSB.

Knowingly false denunciation is also subject to criminal liability under Art. 306 of the Criminal Code of the Russian Federation.

FAQ

How to hold a judge criminally liable?

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A citizen cannot do this on his own. But for this there are bodies of the prosecutor's office and the investigative committee. You can write an appeal to these authorities with a request to conduct an investigation.

Where can I complain about a judge?

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Complaints are sent to the Higher Qualification Board (hereinafter referred to as the HQCC) or to the appropriate board of the court of the region where the court is located, observing the rules of competence: arbitration courts, courts of general jurisdiction.

Is it possible to involve a prosecutor?

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The involvement of a prosecutor also has a special procedure. According to the law on the prosecutor's office, the competence to verify the fact of an offense belongs exclusively to the prosecutor's office. And upon a report of a crime - to the Investigative Committee. According to the procedure, the prosecutor is suspended from service during the investigation into the case.

Who can arrest a judge?

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If there is a reasoned decision of the Higher Qualification Committee that it is necessary to prosecute, then preventive measures are chosen in accordance with this decision according to the algorithm specified above in the article.

Disciplinary responsibility of judges

The procedure and grounds for bringing a judge to disciplinary liability are determined by the Law of the Russian Federation “On the Status of Judges in the Russian Federation” and the Federal Law of March 14, 2002 N 30-FZ “On the Bodies of the Judicial Community in the Russian Federation” (hereinafter referred to as the Federal Law “On the Bodies of the Judicial communities in the Russian Federation") and also apply to a judge whose term of office has expired due to his reaching the age limit for holding office, who continues to exercise his powers until the end of the consideration of the merits of the case begun with his participation, or until the appointment of a new judge to this court.

A judge can be punished by bringing him to justice as enshrined in Article 12.1 “Disciplinary Liability of Judges” of the Federal Law “On the Status of Judges in the Russian Federation”, in most cases these are violations of a procedural nature, substantive law, incorrect interpretation of the law and errors in the analysis of material evidence.

General procedure for attraction

According to the law on the status of judges, a judge can be punished through disciplinary action through filing complaints and criminal charges, but also through disciplinary action followed by deprivation of the status of a judge.

A judge cannot be brought to disciplinary liability for the very fact of adopting an illegal or unfounded judicial act as a result of a judicial error resulting from an incorrect assessment of evidence in the case or incorrect application of substantive or procedural law.

“a judge cannot be brought to disciplinary liability for the very fact of adopting an illegal or unfounded judicial act” if the error resulted from an incorrect assessment of the evidence in the case.

Practice of bringing to responsibility

In 2022, judges were held accountable less often—172 times versus 231 in 2022. 22 judges of general jurisdiction and one arbitration judge received early termination of the powers of a judge, as the most severe disciplinary measure.

Types of disciplinary sanctions against judges

For committing a disciplinary offense, that is, a guilty action (inaction) in the performance of official duties or in extra-official activities, as a result of which the provisions of this Law and (or) the code of judicial ethics approved by the All-Russian Congress of Judges were violated, which resulted in a derogation of the authority of the judiciary and causing harm damage to the reputation of a judge, a disciplinary sanction may be imposed on the judge, with the exception of a judge of the Constitutional Court of the Russian Federation.

Only one judge from among those brought to disciplinary liability in 2022 ultimately managed to avoid punishment. In 2022, 172 judges were disciplined. Of these, 47 judges (27%) were reprimanded, 101 judges (59%) were given warnings, and the powers of 23 judges (13%) were terminated.

Notes

It can be imposed on a judge if the disciplinary offense committed by him is insignificant, if the qualification board of judges comes to the conclusion that it is possible to limit himself to verbal censure of the actions (inaction) of the judge. In particular, a disciplinary offense may be considered insignificant, the consequences of which did not entail a significant violation of the rights and freedoms of citizens, the rights and legitimate interests of organizations (for example, the violated rights of a citizen or organization were restored or the possibility of their restoration was not lost, etc.);

Example: The judge’s husband and his mother work in leadership positions in an organization that was a participant in the process under consideration by the full name of the judge, the CCJ expressed doubts about the impartiality of the judge. According to the panel, such actions by the judge are unacceptable - and therefore the KKS brought her to disciplinary liability in the form of a reprimand.

Warnings

(for example, a disciplinary offense committed by a judge is not considered insignificant by the panel). May be imposed on a judge for committing a disciplinary offense if the qualification board of judges comes to the conclusion that it is impossible to apply a disciplinary sanction to the judge in the form of a remark or if the judge has previously been subject to disciplinary action;

Example: Judge Full Name committed unacceptable actions that in any way could cast doubt on the objectivity and impartiality of the judge when considering cases: he shouted, swore, insulted the accused and his representatives. Since this did not work, the regional commission recognized the violations and punished the full name with a warning.

Downgrading in qualification class (from 01.09.2019)

The guilty KKS judge will be returned to the qualification level where he was before the assignment of the current class.

At the same time, it is clarified that a penalty in the form of early termination of the powers of a judge may be imposed in exceptional cases for a significant violation of the provisions of substantive law or procedural legislation, the Law on the Status of Judges or the Code of Judicial Ethics in the Administration of Justice, incompatible with the high rank of a judge.

It can be applied to a judge who has previously been subject to disciplinary action, and only if there is a complaint from a participant in the process about the violation of his rights by the illegal actions of the judge, which are systematic or gross in nature, which resulted in a distortion of the principles of legal proceedings and were established by a judicial act.

As Chairman of the Federal Assembly of the Russian Federation Lebedev noted, this measure is expected to be a very effective means of influence, “since it directly affects the size of the judge’s monthly remuneration.”

Early termination of powers of a judge

May be imposed on a judge in exceptional cases for a significant, culpable violation of the provisions of the Federal Law “On the Status of Judges” and (or) the Code of Judicial Ethics, incompatible with the high rank of a judge, including for violation of these provisions in the administration of justice, if such a violation entailed a distortion of the principles legal proceedings, a gross violation of the rights of participants in the process, indicates the impossibility of the judge continuing to exercise his powers and is established by a judicial act of a higher court that has entered into legal force or a judicial act adopted upon an application to expedite the consideration of the case or to award compensation for violation of the right to trial within a reasonable time .

Example: Judge Full Name had 50 criminal cases pending, of which four cases were over one and a half years old, six cases were over one year, 13 cases were over six months. At the same time, the data from judicial statistics on the progress of cases was not confirmed by the content of their materials. In some criminal cases there were no decisions to accept proceedings and schedule a court hearing, there were no protocols, the defendants were not put on the wanted list, and the deadlines for serving sentences were violated. The full name explained the violations by an unevenly distributed workload and changes in court staff. She believed that after the internal audit she had corrected the shortcomings and eliminated the violations. Nevertheless, the file cabinet contained information about all the meetings. The Primorsky Territory CCJ was not satisfied with this explanation - the board terminated Kotelnikova’s powers ahead of schedule and deprived her of the seventh qualification class as a judge. The Disciplinary Board of the Supreme Court confirmed the legality of this decision.

Previously bringing a judge to disciplinary liability and imposing a disciplinary sanction on him in the form of a remark or warning does not in itself entail the mandatory imposition of a disciplinary sanction on him in the form of early termination of the powers of the judge.

When thinking about the type of punishment, qualification boards must take into account both the nature of the offense and the personality of the judge, including moral qualities, and the circumstances of family life. Judicial status obliges you to maintain high standards of behavior everywhere - both in the courtroom and outside of working hours. Drunkenness, family scandals and the like are unacceptable for a judge.

Termination of retired status

If violations are detected on the part of a retired judge (pension), the panel may deprive her of this status. For example: Ex-judge of the Ustinovsky District Court of Izhevsk Elena Artemicheva obtained loans from different banks. 10 enforcement proceedings were initiated against her, but she refused to pay the money, citing her judicial status.

Judge

By the decision of the Qualification Board of Judges of the Udmurt Republic dated January 26, 2022, the resignation of the judge of the Ustinovsky District Court of the city of Izhevsk of the Udmurt Republic Elena Rudolfovna Artemicheva was terminated in accordance with subparagraph 3 of paragraph 6 of Article 15 of the Law of the Russian Federation of June 26, 1992 No. 3132-1 “On the status judges in the Russian Federation" in connection with a significant, guilty violation of the provisions of this law and (or) the code of judicial ethics, incompatible with the high rank of a judge, discrediting the honor and dignity of a judge, and belittling the authority of the judiciary.

This decision was upheld by the Supreme Court: Text of the decision.

Chairman of the Regional Court

The former chairman of the Novosibirsk Regional Court, Rimma Shatovkina, was brought to disciplinary liability after an appeal from the Council of Judges of the Russian Federation to the Higher Qualification Court. The reason was the events of the summer of 2018. At that time, the FSB began investigating a criminal case about fraud with government contracts in the Novosibirsk department for supporting the activities of justices of the peace. We were talking about the supply of office equipment worth more than 9 million rubles. for management needs.

Others

In modern Russia, judges are subject to influence from the FSB, the police, and officials. But even in these cases, judges bear responsibility. A good example of this is the dismissal by the full composition of the Molchanovsky District Court of the Tomsk Region. The judges do not comment on the reasons for their voluntary collective resignation.

Local media have suggested that the reason for the resignations could have been the recent acquittal of two police officers, which was overturned on appeal, and the case was returned for a new trial in a different court.

Limitation period for imposing a disciplinary sanction

A decision to impose a disciplinary sanction on a judge cannot be made after 6 (six) months from the date of discovery of the disciplinary offense, with the exception of the period of temporary incapacity for work of the judge, while he is on vacation and during an official inspection, and after 2 (two) years from the day the disciplinary offense was committed.

Theoretical and practical aspects of holding judges criminally liable

In the legislation of the Russian Federation, one can highlight the peculiarities of criminal proceedings in relation to special categories of persons. Moreover, these features may relate to both pre-trial proceedings and the conduct of the case in court. This is stated in Chapter 52 of the Criminal Procedure Code of the Russian Federation [5]. In addition, it also enshrines additional legal and procedural guarantees for these persons provided to them by the legislator.

All these measures are necessary, first of all, to ensure the protection and protection of the rights of these categories of persons from any violation. But this also ensures the impossibility of any interference in their activities, exerting influence or pressure on them, which is especially important in the implementation of justice.

But, despite these provisions, it is necessary to remember that a person holding a certain official position in society should not assume that his actions, which do not comply with the requirements of the law, will go unpunished. It is impossible to create arbitrariness in judicial activities either. Thus, illegal prosecution is a significant violation of the rights and freedoms of a person and a citizen, disrupts his life, leaves a negative imprint on him and his family, and forces these individuals to experience moral suffering. Therefore, the law must provide for a special procedure for bringing to justice persons belonging to persons with certain guarantees and legal status.

Article 447 of the Criminal Procedure Code of the Russian Federation [5] specifies categories of persons who have the specified legal guarantees and special legal status. These persons include judges:

— Constitutional Court of the Russian Federation;

— federal courts of general jurisdiction or federal arbitration courts;

— magistrates or statutory court of a constituent entity of the Russian Federation [7, p. 75–79].

In addition to judges, such persons should also include jurors, but only at the time of their participation in the trial in a specific case.

Attention should be paid to the fact that, despite the strictly established legal basis for bringing judges to criminal liability, in practice, the implementation of this possibility is practically impossible due to the complexity of the procedure and process of proving unlawful and illegal actions of judges. Also, many legal scholars, both theorists and practitioners, based on this problem, have a large number of questions about how to resolve it.

Some difficulties in carrying out procedures for bringing judges to criminal liability are created by the obligation to take into account the provisions of legislative acts containing the conditions and measures to protect this category of persons from unfounded accusations. Such legislative acts include the following:

— Constitution of the Russian Federation [1];

— Federal Constitutional Law “On the Judicial System of the Russian Federation” [3];

— Federal Constitutional Law “On the Constitutional Court of the Russian Federation” [2];

— Law “On the status of judges in the Russian Federation” [6];

— Federal Law “On jurors of federal courts of general jurisdiction in the Russian Federation” [4].

Based on the provisions of the Criminal Procedure Code of the Russian Federation [5], it is established that proceedings in cases of this category take place according to general rules, unless otherwise provided by law.

Speaking about the procedure for bringing judges to criminal liability, it should be noted that it, of course, begins with the initiation of a criminal case and the conduct of investigative and operational search activities.

So, in order to get this kind of event carried out in relation to judges, it is necessary to obtain a decision on this, either from a judicial panel consisting of three judges of the Supreme Court of the Russian Federation, or from a judicial panel consisting of three judges, respectively, of the supreme court of the republic, regional, regional court, court federal city, autonomous region court, autonomous district court, depending on the type of judicial body.

But, despite the above-mentioned first difficulty in implementing the procedure for bringing judges to criminal liability, the most difficult part of it is initiating a criminal case against a judge and bringing him as an accused.

This decision can be made:

— Head of the Investigative Committee of the Russian Federation with the consent of the Constitutional Court of the Russian Federation;

— Higher Qualification Board of Judges of the Russian Federation;

— Qualification board of judges, depending on the type of court and level of the judicial system.

The said decision must contain the reasons for the decision made, indicating the provisions of the law that confirm the presented arguments.

As is known, a positive result in a preliminary investigation in criminal cases directly depends on the speed of discovery and recording of evidence in the case. In the case where the accused in the case is a judge, it is impossible to talk about the speed of obtaining evidence. After all, first you need to obtain permission to carry out these actions, comply with all the requirements of the law, and double-check the possibilities of unfounded accusations. That is, in fact, it is almost impossible to obtain reliable and complete evidence in the case we are considering. This really creates a threat to the existence of persons in Russian justice who can violate the law with impunity.

As for the detention of judges, the legislator for judges of federal courts and magistrates provides for the possibility of their detention only in cases where they were caught in the act of committing a crime, or immediately after it was completed.

If, nevertheless, it was possible to initiate a criminal case against the judge, then further investigative actions are carried out according to the general rules established by the Criminal Procedure Code of the Russian Federation [5].

This rule does not apply to the procedure for placing a judge in custody. This preventive measure against a judge can be chosen on the basis of a decision:

- a judicial panel consisting of three judges of the Supreme Court of the Russian Federation at the request of the Head of the Investigative Committee of the Russian Federation in relation to a judge of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, the supreme court of the republic, a regional court, a court of a federal city , court of the autonomous region, court of the autonomous district, military court, federal arbitration court;

- a judicial panel consisting of three judges, respectively, of the supreme court of a republic, a regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, at the request of the Head of the Investigative Committee of the Russian Federation in relation to a judge of another court [8, p. 508–511].

As you can see, the procedure for bringing judges to criminal liability is quite complex and takes a lot of time. All this contributes to the avoidance of responsibility on the part of persons who themselves administer justice. Difficulties associated with initiating a criminal case and conducting investigative and other activities most often lead to the loss of significant evidence in the case, concealment of information and witnesses. Of course, all this ultimately affects the results of consideration of such criminal cases in court.

There are very few sentences that were handed down based on the consideration of these categories of cases. If you turn to judicial practice, you will practically not find such judicial acts. I would like to hope that their absence is due to the fact that judges in the Russian Federation take a responsible approach to the performance of their duties, respect the law and the rights and freedom of citizens, and in administering justice they rely only on the law and their personal convictions.

Of course, in spite of everything, the procedure for bringing judges to criminal liability should be simplified. Although they are bearers of a special status, this does not deprive them of the obligation to follow the requirements of the law and protect and protect the rights and freedoms of citizens of the Russian Federation.

I would like to believe that over time the legislator will be able to create conditions under which there will be a balance between the possibility of a simpler method of applying liability to judges and, at the same time, preventing damage to the rights of those judges who carry out their activities in good faith.

Literature:

1. The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) (taking into account the amendments introduced by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation dated December 30, 2008 N 6-FKZ, dated December 30, 2008 N 7-FKZ, dated February 5, 2014 N 2 -FKZ, dated July 21, 2014 N 11-FKZ).

2. Federal Constitutional Law of July 21, 1994 N 1-FKZ (as amended on June 4, 2014) “On the Constitutional Court of the Russian Federation” (as amended and supplemented, entered into force on August 6, 2014).

3. Federal constitutional law of December 31, 1996 N 1-FKZ (as amended on February 5, 2014) “On the judicial system of the Russian Federation.”

4. Federal Law of August 20, 2004 N 113-FZ (as amended on December 29, 2010) “On jurors of federal courts of general jurisdiction in the Russian Federation.”

5. Criminal Procedure Code of the Russian Federation dated December 18, 2001 N 174-FZ (as amended on March 30, 2015).

6. Law of the Russian Federation of June 26, 1992 N 3132–1 (as amended on April 6, 2015) “On the status of judges in the Russian Federation.”

7. Lebedev V. Judicial power in modern Russia. St. Petersburg, 2011.

8. Criminal procedural law of the Russian Federation: Textbook / Rep. ed. P. A. Lupinskaya. - M.: Yurist, 2010. - 800 p.

Who makes the decision

The decision to bring a judge to disciplinary liability is made by the Qualification Board of Judges. You must complain to the collegium of the region where the judge works. Contacts of the required board can be found on the website of the High Qualification Board of Judges.

The complaint is drawn up in free form, but it must contain personal information: last name, first name, patronymic of the person filing the complaint, his postal address, description of the violation committed by the judge, signature and date of filing. An anonymous complaint will not be accepted.

clause 2.2 of the resolution of the Council of Judges of the Russian Federation No. 354

Judicial practice: prosecution under article of fraud

Case No. APL20-128. A criminal case has been initiated against the arbitration judge of the Saratov region under Article 159 of the Criminal Code of the Russian Federation. Prior to this, several crimes under the article of fraud were solved. During the audit, solid data were obtained indicating the involvement of a judge in this crime. Bribery also occurred: he took money under the guise of bribes for others to settle issues in court, but kept it for himself.

Kulakhmetov Sh.B received funds in the amount of 4 million rubles under the guise of their further transfer as a bribe to the Arbitration Court.

By a positive decision of the Higher Qualification Board, the procedure for initiating a case was initiated. The judge filed an administrative claim for cancellation with the RF Supreme Court. But his complaint was left unsatisfied.

If the judge delays the deadline

In Russia there is a law on compensation for violation of reasonable deadlines for legal proceedings. It is used when a judge takes too long to make a decision or when his decision has been repeatedly overturned and sent back for revision.

The maximum period for consideration of a civil case is 2 months. In the arbitration court - 3 months. But often this period is renewed due to the entry of new persons into the case or, conversely, is suspended - for example, due to the appointment of an examination. The period may be extended due to the particular complexity of the case. Therefore, the validity of exceeding the deadlines is assessed individually each time. The participant in the process, who himself delayed it, loses the right to compensation.

In cases the consideration of which has been delayed by magistrates and district courts, an application for compensation must be submitted to the court of the relevant entity. It can be called regional, regional, etc. If the arbitration court has delayed the consideration of the case, then you must contact the district arbitration: Federal Law No. 68-FZch. 2 tbsp. 3

It is not the judge who allowed it to pay for the judicial red tape, but the Ministry of Finance: Federal Law No. 68-FZch. 2 tbsp. 5

For example, in November 2015, one entrepreneur from Moscow tried to return his printing equipment through the court. The case was not complicated, but the arbitration court considered it for more than a year. All this time, the entrepreneur could not fully run his business. In September 2022, the plaintiff won the case, but did not stop there: in January 2022, he additionally recovered 40 thousand rubles from the Ministry of Finance because the court took a long time to consider his claim.