Composition of the court - Article 30 of the Code of Criminal Procedure of the Russian Federation (as amended on December 27, 2019, as amended on January 30, 2020)

The composition of the court when considering materials from legal cases varies. A certain number of judges are appointed for each trial.

A judge is a subject endowed with judicial power who administers justice. They take a judicial oath. In Russia, legal and civil procedural legislation (CCP) requires everyone involved in the process to address the court as “respected court.” The Criminal Procedure Code (Article 257, paragraph 3) additionally states that citizens should address judges as “Your Honor.”

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Article 30 of the Code of Criminal Procedure of the Russian Federation

Legal cases are considered by the court collectively or by one judge. The legal composition of the court in criminal proceedings is created based on the workload and judicial training of the servants of Themis.

The status of the chairman of the court implies the ability to make organizational and personnel decisions. He appoints and dismisses judicial employees, conducts inspections, manages legal proceedings and takes part in the proceedings. The deputy head of the court has functions related to the performance of the duties of a judge and the execution of special assignments of the head of the court.

The following specialists work in the court apparatus:

1. Assistant to the Chairman.
2. Assistant Judge.
3. Court administrator.
4. Consultant.
5. Chief Specialist.
6. Specialist category I.
7. Specialist of category II.
8. Specialist.

All employees of the apparatus with diplomas, titles and ranks according to the classification and tests passed.

The court of first instance examines legal materials:

• federal general judge. It considers all offenses, appeal materials, in addition to those noted in paragraph 2 of paragraph 4 of the current Article 30 of the Code of Criminal Procedure of the Russian Federation;
• federal judge and 12 jurors. The accused can file a motion to have his case heard under this scheme. Jury proceedings operate throughout the Russian Federation, except for the Crimean Republic and Sevastopol; in these territories, jury trials should begin in January 2018;
• a collegial court case at first instance can be considered by a panel of three judicial representatives;
• magistrate, whose principle of work is to examine criminal materials under Art. 31 part 1 of the current Code.

The panel, which includes three judges of the federal judicial body of general jurisdiction, has the right to deal with especially serious offenses, cases of terrorism against public and intellectual security. This panel also considers legal cases of cassation and appeal of supervisory cases.

Military courts do not have magistrate justice bodies, which is why offenses committed within the jurisdiction of the magistrate’s court by civilians or military personnel undergoing military training will be considered by the garrison military court.

Judicial power in our country is invariably exercised through judges, but there are situations when an application for the recusal of a judge is possible, after which a change in the composition of the judges will occur.

What do legal proceedings consist of?

First of all, let's figure out how cases are considered. Most often, ordinary people have to deal with cases that are considered according to the rules of civil procedure. So, for example, if you are suing a store, employer, management company, neighbors, car service center, etc. – these are all civil matters.

The hearing of the case takes place orally, and a mandatory component of the court’s work is the direct examination of evidence. It is for this purpose that testimony of witnesses, expert opinions and explanations of third parties are heard. Also during the proceedings, they may inspect physical evidence, view video recordings and study various written evidence.

Court proceedings are usually divided into the following parts:

• preparatory;
• consideration on the merits;
• debate;
• making a decision and announcing it.

It should be noted that very rarely all these stages are performed in one court session. As a rule, the consideration of a regular case takes up to 3-4 meetings. If any unforeseen circumstances arise or the case is very complex, the proceedings can drag on for quite a long time.

What is the preparatory part of the meeting?

The preparatory part is necessary so that the court can find out whether it is possible to consider the case at this hearing. For this purpose, they find out whether the composition of the court is acceptable, whether it is possible to examine the case taking into account those persons who came to the hearings, and whether it is permissible to begin the trial with the available evidence. The beginning of this stage is the opening of the meeting.

After the meeting is open, the secretary must report which of the summoned persons has appeared in court. In addition, the identities of those present are established, and rights and responsibilities are explained. Also in this part they decide what consequences the failure of any of the persons who have been summoned to the meeting will have. If a party fails to appear in court for a valid reason, the hearing may be postponed. If the reasons are not valid, the trial takes place without absent persons.

How is the case considered on its merits?

After all organizational issues have been resolved, the judge proceeds to report on the substance of the requirements, circumstances and existing objections. Next, they must find out whether the plaintiff (i.e., the one who filed the claim) supports his claims and whether the defendant in the case recognizes them. Also at this stage, the judge must clarify whether the parties have a desire to end the case with a settlement agreement. If the parties do not want to reconcile, then the parties begin speaking. The meeting is held in such a way that first the plaintiff is given the floor, and then the defendant.

After the plaintiff and defendant have spoken, the floor may be given to other parties (for example, witnesses). At the same stage, the evidence is analyzed and the results of the examination are heard. If the trial is held with the participation of a prosecutor or other official representing a government agency, he must also be given the floor.

Important! Persons participating in the case may ask questions to the speakers to clarify the circumstances. The judge can also ask clarifying questions to the speakers (and the judge can do this at any time during the speech).

What are legal pleadings?

Completion of the consideration of the case on its merits means the transition to judicial debate. How is this part of the proceedings going? The debate itself is a series of speeches by the participants in the case, based on the results of which conclusions are drawn based on the evidence presented. That is, judicial debates allow us to summarize and, accordingly, find out what facts can be considered established. Sequence of speeches at this stage:

1. The plaintiff and his representative.
2. The defendant and his representative.
3. Third parties making independent claims.

If the meeting is held with the participation of the prosecutor, then he must speak first in the debate. Third parties who do not make independent claims speak either after the plaintiff or after the defendant (the order of speaking is determined by which side they are on). It should be noted that in your speeches you cannot refer to evidence that has not been examined in the case that is being held in court. But, of course, sometimes it happens that in a debate the need to explore new evidence becomes obvious. In such a situation, a trial on the merits must take place again.

Important! Each of those participating in the debate can speak again (if he has something to say about what he heard from other people). In this case, the right of the last remark is given to the defendant.

How is the decision made?

The main outcome of the proceedings is the adoption of a decision. This stage is the final one, and it begins immediately after the debate takes place. In order to make a decision, the court announces a break (sometimes it takes several days). It should be noted that only those judges who took part in the consideration of the case can participate in making a decision.

If, when making a decision, the judge realizes that there is a need to clarify new circumstances, the court proceedings will resume. If there is no need for this, then after the decision is made, the judge (or judges) returns to the room in which the trial is taking place and announces the decision. This is done publicly. The exception is those cases when meetings are held behind closed doors (for example, the results of adoption cases are not publicly announced).

As a rule, after a decision is made, only the operative part is announced to those present. It contains information about whether the person’s claims have been satisfied or whether his claim has been denied. In this case, the court has the right to satisfy the requirements both in full and in part. In order to prepare the full text of the decision, the court will have 5 days.

Commentary to Art. 30 Code of Criminal Procedure of the Russian Federation

The new brief version of the commented article sets out and indicates the lack of uniformity in determining the number of those included in the court composition of the second instance.
The analysis of cassation materials is carried out by three judges. The appeal is conducted by one federal representative of the district court. The review of legal material of a supervisory nature is carried out by three federal representatives of the court.

Legal proceedings are carried out:

1. Federal court representative.
2. Collegially by three judges.
3. Judge and 12 jurors.
4. Justice of the peace.

In most cases, the composition of the court in criminal proceedings consists of one judge. When a case is heard by one judge, the process receives a more subjective assessment, which has a positive aspect.

The final verdict is made by one person - a federal judge, which is why all the strength of conviction, the eloquence of the accused, and the presentation of evidentiary documentation by his lawyer, is directed towards a specific person.

When a citizen is against having his material examined by one representative of Themis, he writes a petition about this. After this, the trial will be carried out jointly by three judges or considered by 12 jurors.

Three judges consider materials under clause 3, part 2, article 30 of the Code of Criminal Procedure of the Russian Federation and on the basis of a petition from the perpetrator. It is served:

• after reading the charges;
• at the stage of preliminary hearing in court;
• before setting a trial date.

When a defendant does not request that his legal papers be heard by three judges, it will be heard by one judge. The board deals with serious and especially grave legal offenses, for which sentences of more than 5 years in custody are imposed.

It is believed that three representatives of the court will be more competent in the analysis of legal materials, and then the permissibility of judicial errors is reduced to almost zero. When there are sufficient proof of guilt, it is extremely difficult to obtain relief from three judicial representatives.

When a federal judge and 12 jurors are included in a criminal trial, it is a jury trial. They have the authority to analyze the legal materials listed in clause 1, part 3 of Art. 31 Code of Criminal Procedure (Part 5 of Article 131, Part 5 of Article 132, Part 6 of Article 134, Part 1 of Article 212, Articles 275, 276, 278, 279, 281 of the Criminal Code of the Russian Federation are excluded). These are offenses with the most severe penalties, such as life imprisonment or the death penalty. Legal violations related to the economy are not included in this list.

In order for the case to be heard by a jury, the defendant files a petition for this, but for this the preliminary investigation must be completed. The advantage of such proceedings is that jury trials are considered democratic and objective due to the approach to resolving the issue from a human perspective. The disadvantage may be the complexity of trials of offenses by juries who do not know the intricacies of the criminal code. What composition of the court considers criminal cases on appeal? The trial takes place both individually and collectively.

Jurors are ordinary citizens who have difficulty understanding legal issues due to a lack of legal knowledge. Because of this, sometimes juries announce a more severe punishment than what the defendants deserve.

The magistrate examines the materials noted in Part 1 of Art. 31 of the Code of Criminal Procedure of the Russian Federation, according to which a maximum penalty is prescribed, not exceeding 3 years of imprisonment. This includes:

1. Fraud.
2. Mastery, waste.
3. Use of force to conclude transactions, refusal of them.
4. Illegal use of a product brand.
5. Environmental violations.

It’s not news to anyone when the accused, by coincidence, finds himself under suspicion from the investigative authorities and tries to prove his innocence on his own, but this doesn’t help much.

In such cases, the assistance of an experienced lawyer is required, who within a few hours or days will release the person on his own recognizance and will not allow the extension of the detention period, and then, if necessary, will represent the interests of the accused in court.

Everything about criminal cases

Go to the text of the Code of Criminal Procedure

Url Additional information:

— Part 1 30 Code of Criminal Procedure

formation of the court composition for a specific case

— Part 1 30 Code of Criminal Procedure

the formation of the court composition should exclude the influence

Composition of the court of first instance

— Clause 1 Part 2 30 Code of Criminal Procedure

cases heard by a single federal judge

— Clause 3 Part 2 30 Code of Criminal Procedure

cases heard by 3 federal judges

— Clause 4 Part 2 30 Code of Criminal Procedure

cases heard by a magistrate

Jury trial

— Clause 2 Part 2 30 Code of Criminal Procedure

regional judge and 8 jurors

— clause 2.1 part 2 30 Code of Criminal Procedure

district judge and 6 jurors

Composition of the court of second instance

— Clause 1 Part 3 30 Code of Criminal Procedure

on the verdict of the magistrate court 1 federal judge

— Clause 2 Part 3 30 Code of Criminal Procedure

usually 3 judges

— Clause 2 Part 3 30 Code of Criminal Procedure

cases of medium gravity and intermediate 1 judge

Composition of the court of third instance

— Part 4 30 Code of Criminal Procedure

composition of the court in the cassation court of general jurisdiction - 3 judges

— Part 4 30 Code of Criminal Procedure

composition of the court in cassation at the Supreme Court level - 3 judges

Composition of the supervisory court

— Part 4 30 Code of Criminal Procedure

composition of the court in supervision, majority of members of the Presidium of the Supreme Court

Presiding

- Part 5 30 Code of Criminal Procedure

when the court consists of 3 judges, one is the presiding judge

Magistrates' courts for military personnel

— Part 6 30 Code of Criminal Procedure

for the military, instead of a justice of the peace, 1 judge of the garrison court

Additional Information

— part 1 47

Constitutional right to a lawful composition of the court

- clause 2, part 2 389.17 Code of Criminal Procedure

illegal composition of the court, grounds for cancellation on appeal

Consistency of composition

Consistency of composition

court, violation entails cancellation of the court decision

Article 30 of the Code of Criminal Procedure. Composition of the court

1) Consideration of criminal cases is carried out by the court collectively or by a single judge.

The composition of the court for the consideration of each criminal case is formed taking into account the workload and specialization of judges through the use of an automated information system. If it is impossible to use an automated information system in court, it is allowed to form the composition of the court in a different manner, excluding influence on its formation by persons interested in the outcome of the trial.

2) The court
of first instance considers criminal cases in the following composition:
1).
a judge of a federal court of general jurisdiction hears criminal cases of all crimes, with the exception of criminal cases specified in paragraphs 2 - paragraph 4 of this article;
Url Additional information:

— Part 2 47

Constitutional right to trial by jury

— P.

Plenum No. 23 two opportunities to apply for a jury trial

2).
a judge of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court and a panel of 8 jurors, at the request of the accused, considers:
- criminal cases of crimes specified in
paragraph 1 Part 3 31 of the Code of Criminal Procedure ,
with the exception of criminal cases of crimes provided for in
articles Part 5 131 , Part 5 132 , Part 6 134 , Part 1 212 , 275 , 276 , 278 , 279 , 280.2 of the Criminal Code , 281 of the Criminal Code.
2.1) a judge of a district court, a garrison military court and a panel of 6 jurors - at the request of the accused:

- criminal cases of crimes provided for in articles:

Part 2 105, Part 5 228.1, Part 4 229.1, 277, 295, 317 and 357 of the Criminal Code, according to which life imprisonment or the death penalty cannot be imposed as the most severe type of punishment in accordance with the provisions of Part 4 66 Criminal Code and Part 4 78 Criminal Code,

- criminal cases of crimes provided for in articles:

Part 1 105 and Part 1 111 of the Criminal Code,

- with the exception of criminal cases involving crimes committed by persons under the age of 18;

3). a panel of 3 judges of a federal court of general jurisdiction considers criminal cases of crimes under articles:

— 205, 205.1, 205.2, 205.3

,
205.4
,
205.5, 206, part 4 211, part 1 212 , 275 , 276 , 278 , 279 , 280.2, part 2 - part 3 281 of the Criminal Code;
- and other criminal cases within the jurisdiction of the Far Eastern District Military Court, the Moscow District Military Court, the North Caucasus District Military Court and the
Volga District Military Court in accordance with paragraph 2 - paragraph 4 of part 6.1 31 of the Code of Criminal Procedure;
- and if there is a request from the accused, submitted
before the appointment of a court hearing in accordance with 231 of the Code of Criminal Procedure, considers criminal cases of crimes provided for in articles:
- part 2 105, part 3 126, part 3 - part 5 131, part 3
- part 5 132 , part 4 - part 6 134 , 208, 209, part 1, part 1.1, part 3 and part 4 210 of the Criminal Code, part 1 - part 3 211, 227 , part 5 228.1, part 4 229.1, 277, part 1 281, 295, 317, 353 - 358, part 1 - part 2 359, 360 of the Criminal Code;
4).
The magistrate considers criminal cases within his jurisdiction in accordance with Part 1 31 of the Code of Criminal Procedure.
3) Consideration of criminal cases on
appeal is carried out:
1).
in the district court by a judge of the district court alone;
Url Additional information:

- P.11

Plenum No. 26 composition of the court in the appeal

2).
in higher courts, consideration is carried out by a court consisting of 3 judges of a federal court of general jurisdiction, with the exception of;
— criminal cases of crimes
of minor and medium gravity;
- as well as criminal cases with appeals, submissions against interim decisions of a district court, garrison military court, which are considered by a judge of the supreme court of the republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military the court alone.

4) Consideration of criminal cases in cassation procedure
is carried out by:
- ​​the judicial panel for criminal cases of the cassation court
of general jurisdiction - consisting of three judges;
- a military court of cassation - composed of three judges;

— Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation consisting of three judges;

- Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation - consisting of three judges;

- by way of supervision
- by the majority of members of the Presidium of the Supreme Court of the Russian Federation.
5) When considering a criminal case by a court consisting of 3 judges
of a federal court of general jurisdiction, one of them presides over the court session.
6) Criminal cases
within the jurisdiction of a magistrate, committed by persons specified in Part 5 31 of the Code of Criminal Procedure, are considered by judges of garrison military courts individually in the manner established by Chapter 41 of the Code of Criminal Procedure.
In these cases, the verdict and decision can be
appealed.
Return to the text of the Code of Criminal Procedure
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Arbitrage practice

The courts carry out a tremendous amount of work analyzing the legal materials of the accused. Such as:

• cassation petitions are considered by the presiding judge and two judges, the secretary, lawyers, and prosecutor participate in the process;
• sentences relating to articles 30 part 3, 228.1 part 1, art. 228. 1 part 2 p. and decisions on jurisdiction are made by the magistrate, with the presence of the secretary, state prosecutors, and the lawyer of the accused;
• civil cases are considered by one judge with the presence of a secretary;
• appeal decisions are made by a judicial panel consisting of a presiding judge, a secretary, a prosecutor, and defense attorneys.

For example, the recent high-profile case of the former Minister of Economic Development A. Ulyukaev. He was accused of extorting and receiving a large bribe (2 million rubles) from I. Sechin, who is the head of Rosneft, for a positive decision to purchase shares of PJSC Bashneft. The court rejected the request filed by the defense to return the case to the prosecutor's office so that the violations could be eliminated.

The trial took place in the Zamoskvoretsky District Court, consisting of:

1. The presiding officer.
2. 2 Judges.
3. Secretary.
4. Prosecutors.
5. The defendant's lawyers.

The court imposed a sentence of 8 years in prison.

The European Convention for the Protection of Human Rights and Fundamental Freedoms in Article 6 states that every citizen has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established on legal grounds.

In this case, the formation of a collegial composition of the court is necessary. The appointment of presiding judges, judges and rapporteurs in the judicial bodies of cassation and supervisory authorities is determined in accordance with the rules established by the Code of Criminal Procedure of Russia.

Replacing the composition of the court “according to the Civil Procedure Code”: a gap that has become the nature of the process

Now only the Code of Civil Procedure of the Russian Federation, in contrast to the Arbitration Procedure Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation and the CAS of the Russian Federation (of all “purely” procedural codes, i.e. we do not take into account the Code of Administrative Offenses of the Russian Federation), does not regulate the issue of replacing the composition of the court in a manner that would correspond to the main idea of ​​Part 1 of Art. 47 of the Constitution of the Russian Federation, which, by its substantive meaning, guaranteed the personal immutability of the judicial composition back in 1993. And even the so-called “procedural revolution” of 2018-2019, which introduced into the Code of Civil Procedure of the Russian Federation new procedural rules on the consideration of civil cases in appellate and cassation courts of general jurisdiction, the mandatory presence of a higher legal education for a representative accompanying the case in a regional (equal) and higher court, mandatory audio recording and other innovations, did not eliminate the obvious practical gap of the “long-suffering” code - the Code of Civil Procedure of the Russian Federation still does not know the imperative norm that the consideration of a case begun by a certain composition of the court must be completed by it.

In our opinion, this gap is not just a gap - from a purely practical point of view, it is a callous and vile obstacle for an active participant in the case, vigorously defending the correctness of his legal position in the appellate court (in particular).

It has already become an objective truth that in the Moscow City Court, cases going through the appeal stage are considered not only in the list of “70-80 cases per day for one composition of the court in one room,” but also during several hearings on the case by different compositions of the court, Moreover, the persons of these compositions often change by 100%. The question arises: does this affect the quality of the consideration of the case, the hearing and assessment of the positions of the parties involved in this case, or is this phenomenon absolutely incapable of leading to an incorrect appellate ruling? Each colleague will answer this question in his own way, taking into account his own experience of working on cases in the Moscow City Court.

I dare to announce something from the practice of my participation in such enterprises. A very complex civil case for the recovery of unjust enrichment, coupled with the investigation of another complex case in scope and subject matter and poorly considered by one of the district courts of Moscow following an 8-month hearing, ended up in the Moscow City Court, where the first meeting was held by judges P., I. and M.

Our side was so determined to convey the shortcomings of the trial court and to direct the appellate court to make a decision on the case in a certain form, that the attitude towards the meeting in the person of the judiciary of adequacy, literacy and attentiveness acquired a fixed idea.

On August 12, 2019, during the hearing of the parties’ arguments, the court composition of P., I. and M. showed unprecedented attentiveness, immediately assessing the degree of complexity of the case and letting the participants in the process understand that the duration of its hearing will determine the quality of the consideration of this case and, as a result, the legality , validity and fairness of the court decision adopted in the appeal. At the end of the hearing, two judges from P. and I. even commented on the arguments of the appellant parties (the decision in the case was appealed by two disputing parties at the same time), from which it followed that the court was determined to take an extremely clear approach to resolving controversial issues.

Having received a boost of confidence and joy in the adequacy of the judicial composition, my client’s side carefully prepared for the next meeting in the case, practicing the arguments already voiced and strengthening its position. Knowing that the hearing on the case was scheduled for the morning of September 12, 2019, the first on the entire list for that day, my client and I gratefully appreciated the gift of fate.

But the morning of September 12, 2019 began to develop completely differently from the scenario that was expected by us and, perhaps, by the composition of the court. Having discovered that our case would be heard in another room and by a different composition of the court (E., K. and O.), the state of stable confidence instantly disappeared.

Having habitually reported the circumstances of the case based on his materials, presiding officer E. spared no time in asking questions to the parties and, to put it mildly, organized a quick questioning on the facts of the case right at the court hearing. From the nature of the questions and the accents of the presiding officer, one thing followed: the composition of the court is not oriented in the materials of the case, even despite their perfect formal report... Result: “the decision of the court of first instance is left unchanged.” No comments needed.

The apparently arbitrary replacement of the composition of the court that took place in this case, which was previously not so painfully perceived due to the lower significance (than the indicated case) of the cases being considered in our Moscow City Court, overnight radically changed the lives of the parties to this case, becoming for them a bomb exploding that no one waited.

And only on December 3, 2019, the Second Court of Cassation overturned the appeal ruling of September 12, 2019, indicating significant violations of the norms of procedural law by the courts of first and appellate instances in the case. However, the cassation court did not check the arbitrary replacement of the composition of the court (in the interests of legality as a whole).

In this way, the Code of Civil Procedure of the Russian Federation, with the absence in its content of an imperative rule that “the consideration of a case begun by a certain composition of the court must be completed by it,” played a cruel joke in the fate of the parties to the dispute.

Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 in paragraph 1 of Art. Article 6 states that everyone, in the event of a dispute regarding his rights and obligations, has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The principle of independence and impartiality of the court must be ensured, among other things, by the procedure for forming the composition of the court, including the grounds and procedure for replacing judges.

At first glance, it seems that these things are overly theorized and far from the judicial life of Russia, but it seems so until you see with your own eyes the enormity of the failure to implement this principle in practice, especially in the example of disputes like the one I told.

Failure to comply with the condition of the unchanged composition of the court is one of the significant violations of the rules of civil, arbitration and criminal proceedings, entailing the cancellation of judicial acts by a higher court. But again, this phenomenon is typical only for the Arbitration Procedure Code of the Russian Federation, the CAS RF and the Code of Criminal Procedure of the Russian Federation. The legislator probably decided to joke about the Code of Civil Procedure of the Russian Federation.

According to the Arbitration Procedure Code of the Russian Federation, a case the consideration of which was initiated by one judge or court panel must be considered by the same judge or court panel (Part 2 of Article 18). The same is provided for in clause 37 of the Rules of Arbitration Courts, approved by Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06/05/1996 No. 7. The Arbitration Procedure Code of the Russian Federation allows for the replacement of the composition of the court, not related to the challenge or self-recusal of a judge or one of the judges or the termination or suspension of their powers, only in case of a long absence of a judge due to illness, vacation, or study (clause 2, part 3, article 18). The replacement of the composition of the arbitration court in these cases is caused by the objective impossibility (due to the temporary absence of the judge) or practical inexpediency (due to the long delay in resolving the dispute) of considering the case by the original composition of the court.

The Code of Criminal Procedure of the Russian Federation, along with the Arbitration Procedure Code of the Russian Federation, also allows for the replacement of the composition of the court only if one of the judges is unable to continue to participate in the court hearing (Part 2 of Article 242).

And CAS of the Russian Federation in Part 2 of Art. 28 proclaims that an administrative case, the consideration of which was initiated by one judge or court panel, must be considered by the same judge or the same court panel.

Meanwhile, the Code of Civil Procedure of the Russian Federation, unlike the Arbitration Procedure Code of the Russian Federation, the CAS RF and the Code of Criminal Procedure of the Russian Federation, does not contain specific grounds on which the composition of the court may change, not related to the challenge, self-recusal of a judge or termination or suspension of his powers, and therefore, in the opinion of practitioners and legal theorists, actually allows for arbitrary replacement of the composition of the court, which, in fact, happened in the illustrated case. And it would be easier if there was only one case, but contrary to common sense, there are dozens, or even hundreds, of such incidents in the practice of the Moscow City Court.

At the same time, Part 2 of Art. 157 of the Code of Civil Procedure of the Russian Federation determines that “the hearing of the case takes place orally and with the same composition of judges.” And further stipulates: “if one of the judges is replaced during the consideration of the case, the proceedings must be carried out from the very beginning.” However, again, the code does not provide for a procedure for replacing a judge, does not directly answer the question of whether it is possible to change one judge or the entire composition, and unconvincingly conveys its meaning to the reader, creating even greater misunderstanding in his head.

It remains to cling to this expression, prescribed in Part 2 of Article 157 of the Code of Civil Procedure of the Russian Federation: “the trial of the case takes place with an unchanged composition of judges,” but it does not find support from the courts, even despite the fact that it represents a discreet rule of law.

As Savin K.G. writes, “at present, in courts of general jurisdiction in civil cases, a practice has been formed according to which replacing the composition of the court does not require the execution of any procedural document by an authorized official (chairman, deputy chairman of the court, chairman of the court panel ) and placing it in the case materials. Therefore, the absence in the case materials of a procedural document on replacing the composition of the court does not indicate the illegality of the composition of the court that made the decision, and therefore does not affect the legality of the decision itself” (for example: rulings of the Perm Regional Court dated April 2, 2012 in case No. 33-2644 /2012, dated 04.04.2011 in case No. 33-3156/2011; ruling of the Tomsk Regional Court dated 10.01.2012 in case No. 33-47/2012; ruling of the Saratov Regional Court dated 04.07.2012 in case No. 33-3733/2012).

He also notes that “there is numerous practice of the same courts, according to which the replacement of the composition of the court should not be justified by any valid reasons. The courts, which check the legality and validity of judicial decisions or only their legality, do not at all analyze the validity of the reasons for replacing the composition of the court and the possibility of considering the case by the original composition of the court, pointing out only that the norms of civil procedural legislation do not determine the range of grounds on which the replacement of a judge is possible "(rulings of the St. Petersburg City Court dated March 26, 2012 in case No. 33-3495/2012, dated July 25, 2012 in case No. 33-10197/2012, dated June 18, 2012 in case No. 33-7937 /2012; ruling of the Vologda Regional Court dated March 30, 2012 in case No. 33-1053/2012; ruling of the Voronezh Regional Court dated July 24, 2012 in case No. 33-3856/2012).

Only one exception was found by the author Savin K.G., after conducting a labor-intensive analysis of court practice on this issue - the theoretical reasoning of the Saratov Regional Court, set out in the ruling dated October 3, 2012 in case No. 33-5761/2012, considered that “replacement of judges is an exception to the rule about the unchanged composition of the court and is allowed only if there are good reasons (in case of recusal, illness, being on a business trip, removal from work in accordance with the procedure established by law, etc.) ... ". There are no more such positions.

It would seem that the composition of the court in the case has completely changed, and what to anger the Lord, the procedures, although formally, adhered to: the meeting was opened, the case was reported, the parties were interviewed... It is on these arguments that many regional (equal) courts “leave” - they say : once the procedure has been followed, the protocol states that the case was reported, the parties were heard, then we must assume that the case was considered by the new composition of the court “from the very beginning,” as it should be (ruling of the St. Petersburg City Court dated October 29, 2012 in the case No. 33-14165/2012, ruling of the Vologda Regional Court dated October 12, 2012 in case No. 33-4166/2012, ruling of the Moscow City Court dated September 26, 2012 in case No. 4g/9-5349/2012). Well, yes... (the author has deep doubts). But why then are prohibitions on such things provided for by the “relatives” of the Code of Civil Procedure - the Arbitration Procedure Code of the Russian Federation, the CAS of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, just like that?!

Even with the “pallor” of Part 2 of Art. 157 of the Code of Civil Procedure of the Russian Federation, which establishes the immutability of the composition of the court, the conclusion about the impermissibility of arbitrary replacement of the composition of the court does not evaporate anywhere - the regulatory meaning of Part 3 of Art. 14 of the Code of Civil Procedure of the Russian Federation (as amended on July 29, 2018) nevertheless presupposes that the composition of the court should be formed once to consider each case.

In addition, we forget that Part 1 of Art. 47 of the Constitution of the Russian Federation guarantees us: “no one can be deprived of the right to have his case considered in the court and by the judge to whose jurisdiction it is assigned by law.” Given the paucity of regulatory capabilities of the Code of Civil Procedure of the Russian Federation, this norm can be applied by the court in a specific case due to its direct effect (clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 No. 8 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice”) .

Once, the Constitutional Court of the Russian Federation, in its ruling dated April 3, 2014 No. 656-O, explained that “established in Part 2 of Art. 18 of the Arbitration Procedure Code of the Russian Federation, the procedure for replacing a judge serves as a guarantee against the arbitrary transfer of a case from one judge to another judge of the same court or against the arbitrary replacement of judges during a collegial hearing of a case. If a replacement in the composition of the court considering the case is made without the presence of grounds established by procedural law, then the composition of the court formed in this way must be recognized as formed in violation of Art. 18 of the Arbitration Procedure Code of the Russian Federation, i.e. illegal, which in any case entails the cancellation of the judicial act adopted by him (clause 1, part 4, article 270 and clause 1, part 4, article 288 of the Arbitration Procedure Code of the Russian Federation).” A similar position was held by the Presidium of the Supreme Arbitration Court of the Russian Federation in decisions dated July 17, 2012 in case No. A56-6180/2011, dated June 18, 2013 in case No. A40-108801/2011 and dated October 15, 2013 in case No. A10-3798/2012.

The logic of the prohibition of arbitrary replacement of the composition of the court in the Arbitration Procedure Code of the Russian Federation, the CAS of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, the logic of the position of the Constitutional Court of Russia is clear as day - changing the composition will simply lead to arbitrariness or poor-quality consideration of the case, so it should be prohibited. It was the second case that appeared in the case of my client, and, moreover, it is not so safe - the fates of both sides are crippled... One thing is unclear - if the legislator “crumbs” the Code of Civil Procedure so much, declaring a “procedural revolution,” then why is he missing the obvious thing?! Mystery…

In the meantime... for now it seems possible to use Part 2 of Art. 157 of the Code of Civil Procedure of the Russian Federation in systemic connection with Part 2 of Art. 47 of the Constitution of the Russian Federation, which has the property of direct action, which in its general meaning prohibits arbitrary changes in the composition of the court when considering a specific case. No matter how the courts and other overly experienced legal practitioners mock, the attention of the courts to the provisions of Part 2 of Art. 47 of the Constitution of the Russian Federation should still be “poked”, otherwise participants in civil proceedings will not have to hope for a legal, objective and exhaustive consideration of their cases by a trained court panel.

Will there be anything else with this Civil Procedure Code...