The principle of independence of judges and the issues of interrelation between the judiciary and the society in the context of the two Russian judicial reforms
The principle of judicial independence is the principle of justice in any state which accepted the idea of separation of powers. The idea of becoming an independent judiciary was a crucial one both in the judicial reform of 1864 and in the conceptual foundations of the modern judicial reform. The Charter of criminal court proceedings and the constitution of courts of justice lack special rules on the independence of judges, while the organizational structure of the judicial system and procedures of judicial activity are unequivocally focused on the independent administration of justice by each judge and his independence in relations with any other representatives of the authority. In modern legislation - on the contrary - the Procedural code of every branch of law duplicates the constitutional provision on the independence of judges and the Code of Criminal Procedure of the RF contains a number of purely clerical rules, which do not have the direct relation to criminal proceedings, but protect the judge from a certain «non-procedural» influence. Diametrically opposite assessments of different manifestations of the independence of judges are presented in legal literature, in official documents of the judicial community and mass media. While preparing the present article the author has used: the com parative analysis of the provisions of the pre-revolutionary and modern legislation; historical analysis of the theoretical concepts of the social and legal entity and the normative content of the principle of independence of the judiciary and judges; the analysis of the published sociological material and the empirical data obtained by the method of participant observation. The comparison of theoretical ideas about the independence of judges in pre-revolutionary and contemporary literature helps to reveal the specificity of reflection of this idea in the scientific outlook during the different periods of the Russian history. Prerevolutionary lawyers, theorists and practitioners of judicial activity proved that the guarantee of the independence of the judiciary and the judges, and consequently the guarantee of justice does not depend only on the organizational and legal isolation of courts from other branches of government, but also on reliance on public opinion, on the trust of the society provided by the conformity of judicial activity to the standard ideas of morals and justice. In modern Russia, the principle of independence of judges has been rendered absolute and is perceived by part of the judiciary as an institutionalized possibility to abstract away from the social effect produced by both judicial decisions and the judicial activity itself. On the basis of the comparative analysis of the legislation, the historical and modern legal literature, the author’s experience in advocacy, the author makes a conclusion about the relativity of the category of judicial independence and makes the inference that this category is not an end in itself but merely a means of establishing genuine justice in Russia which meets people’s expectations.