Валерия Зеновина
По мнению ФПА России, сегодня в судебной системе сложилась практика, когда запрет родственных связей в судебном процессе по конкретному делу приводит к запрету адвокатской профессии для членов семей судей в целом. Обращение об этом было направлено Председателю ВС РФ Вячеславу Лебедеву.
Адвокаты пояснили, что поддерживают инициативу последнего о необходимости отмены или изменения Кодекса судейской этики. Речь идет о положении, в соответствии с которым судья должен отказаться от рассмотрения дела, если есть предусмотренные законом основания для отвода судьи либо если может возникнуть конфликт интересов, либо может возникнуть ситуация, ставящая под сомнение беспристрастность судьи. При этом они пояснили, какие именно проблемы могут возникнуть на практике при применении данной нормы.
Сообщается, что в Концепции Федеральной целевой программы «Развитие судебной системы России» на 2007-2012 годы, утвержденной Правительством РФ в 2006 году, содержится указание на необходимость установить запрет на участие адвоката-супруга судьи, близких родственников или свойственников судьи в пределах юрисдикции суда. Непосредственно в целевой программе говорится о запрете на участие в рассмотрении дел. ФПА России подчеркнула, что законом подобный запрет не предусмотрен, но существующая практика нарушает интересы судей и членов их семей, ограничивая конституционное право многих граждан на выбор профессии адвоката.
По данным Палаты, существует статистика, свидетельствующая о том, что в настоящее время либо адвокатам, у которых имеются родственники-судьи, приходится прекращать свой статус, либо кандидатов на должности судей не представляют к назначению, так как их родственники являются адвокатами. Например, в Приморском крае 15 адвокатов прекратили свой статус, так как их дети работали в судах, а в Омской и Челябинской областях таких адвокатов оказалось по семь в каждой. Адвокаты ФПА России пришли к выводу о том, что из-за сложившейся практики близкие родственники судей не могут претендовать на приобретение статуса адвоката, чтобы не ущемлять интересы последних.
Напомним, в соответствии с действующим законодательством, судья, пребывающий в отставке и имеющий стаж работы в должности судьи не менее 20 лет либо достигший возраста 55 лет не вправе заниматься адвокатской деятельностью (ч. 4 ст. 3 Закона РФ от 26 июня 1992 г. № 3132-I «О статусе судей в Российской Федерации»). ФПА России сообщила, что по этой причине в Свердловской области более 30 адвокатов прекратили свой статус.
В обращении резюмируется, что адвокатура считает названные ограничения судей и членов их семей несоразмерными целям обеспечения прозрачности судебной системы, преодоления конфликта интересов и борьбы с коррупцией. В том числе существующая практика охарактеризована как унизительная, поскольку предполагают наличие презумпции виновности судей в совершении проступков, несовместимых с их статусом.
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