On March 8, 2015, a new code was adopted - the Code of Administrative Proceedings of the Russian Federation, which comes into force on September 15, 2015, with the exception of certain provisions for which the law sets other deadlines for their entry into force.

It must be said that the adoption of new codes is not a frequent phenomenon in lawmaking. President Vladimir Putin made a proposal to develop and adopt such a document in his message to the Federal Assembly in December 2012, and at the end of April 2013 the draft code was submitted to the State Duma for consideration.

The abbreviated name of this Code has not yet taken root, and so far there are two options: CAS RF and COAS RF. In this article we will stick to the first option.

Currently, cases of administrative offenses are considered according to the rules established by the Civil Procedure Code of the Russian Federation. The Code of Civil Procedure of the Russian Federation establishes a judicial procedure for the consideration of cases arising from legal relations in which subjects acquire rights and obligations of their own free will and in their interests and are actually equal in rights, that is, arising from legal relations related to the application of substantive legal norms of private law (civil, family, etc.) .P.). At the same time, in administrative and other public legal relations there is no equality of their subjects as such, and therefore a different methodology and procedural law are required for the consideration and resolution of cases arising from these legal relations. It was precisely this state of affairs that was the legal basis for the adoption of the CAS of the Russian Federation. After all, the presence of an administrative claim means the need to consider it according to rules that should differ significantly from the existing rules of claim proceedings intended for consideration of cases in civil proceedings.

For convenience and in order to maintain the uniformity of procedural legislation, the new code retains such institutions of civil procedure as initiation of proceedings in a case, return of a statement of claim, leaving it without progress, refusal to accept a statement of claim, termination of proceedings in a case, leaving the statement without consideration, but there are also features of the implementation of a number of principles in the implementation of administrative proceedings. In contrast to civil proceedings, the CAS of the Russian Federation places emphasis on the active role of the court in resolving administrative cases. This is due to the unequal position of the parties in such cases. In particular, if necessary, the court may itself request evidence; when checking the legality of regulations, decisions, actions (inactions), go beyond the grounds and arguments of the stated requirements, which is not allowed in civil proceedings.

Cases of administrative offenses will continue to be considered by courts of general jurisdiction - courts of administrative cases on the protection of violated or contested rights, freedoms and legitimate interests of citizens, rights and legitimate interests of organizations, as well as other administrative cases arising from administrative and other public legal relations (p .1 Article 1 CAS RF).

The Code establishes the procedure for considering administrative cases of the following categories:

• on challenging regulatory legal acts;
• on challenging decisions, actions or inactions of state authorities and other state bodies, military authorities, local governments, election commissions, officials, state and municipal employees, qualification boards of judges, non-profit organizations vested with certain state powers, including self-regulatory organizations ;
• on suspension of activities or liquidation of a political party, other public association, religious or other NGO;
• on the cessation of media activities;
• on the collection of amounts of money to pay obligatory payments and sanctions from individuals;
• on the placement of a foreign citizen subject to deportation or readmission in a special institution;
• on administrative supervision of persons released from prison;
• about involuntary hospitalization in a psychiatric or anti-tuberculosis hospital.

The exception is cases arising from public legal relations and referred by federal law to the competence of the Constitutional Court of the Russian Federation, arbitration courts, as well as the provisions of the CAS of the Russian Federation do not apply to proceedings in cases of foreclosure on funds from the budgets of the budget system of the Russian Federation (Article 1 of the CAS of the Russian Federation).

Any interested person who considers that his rights and legitimate interests have been violated or obstacles to the exercise of his rights have been created, or any obligation has been illegally assigned to him (Clause 1 of Article 4 of the CAS RF) can go to court.

The parties to an administrative case are the administrative plaintiff and the administrative defendant (clause 1 of article 3 of the CAS RF).

An administrative plaintiff is a person who has applied to the court in defense of his rights and legitimate interests himself, or a person in whose interests an application has been filed by a prosecutor or an authorized body. They may be citizens of the Russian Federation, foreign citizens, stateless persons, Russian, foreign and international organizations, public associations and religious organizations and other persons specified in paragraph 3 of Article 38 of the CAS of the Russian Federation.

An administrative defendant is a person against whom the plaintiff filed a lawsuit. Please note that the defendants here cannot be citizens of the Russian Federation or foreigners (except for cases expressly established by the CAS RF), since disputes between citizens are considered in civil proceedings. The administrative defendant may be state authorities, local governments, as well as other bodies and organizations vested with certain state or other public powers, including officials.

In order to become a party to the case, it is necessary to file an administrative claim outlining the requirements specified in Article 124 of the CAS RF. The application is submitted to the court in writing in legible form, indicating the necessary details and is signed indicating the date of signature by the administrative plaintiff or his representative. Thus, an administrative claim must contain the name of the court to which it is filed, the name of the defendant, information about what rights and legitimate interests were violated, and others. Also, the application must be accompanied by documents confirming the legality of the plaintiff’s claims (Article 125 CAS RF), as well as documents such as notification of delivery of a copy of the statement of claim to the defendant, a document confirming payment of the state duty, and other documents (Article 126 CAS RF). It is interesting that the list includes a document confirming the presence of a higher legal education of a citizen who is an administrative plaintiff and intends to personally conduct an administrative case, for which the code provides for the mandatory participation of a representative. For example, consideration and resolution of administrative cases on the protection of electoral rights (Article 243 of the Caspian Code of the Russian Federation), challenging regulatory legal acts in the court of a constituent entity of the Russian Federation.

A representative of a citizen is also required when considering a case of forced hospitalization in a psychiatric hospital.

These innovations are aimed at ensuring equal procedural opportunities for citizens and the state. The categories of cases that will be considered by the court of first instance collectively have been determined.

Then, within three days from the date of receipt of the administrative claim in court, the judge alone decides on the acceptance of the claim, about which a ruling is made, on the basis of which proceedings in the administrative case are initiated in the court of first instance (Article 127 of the CAS RF).

The administrative statement of claim may be returned, left without progress, or the plaintiff may be completely refused to accept the statement of claim. Each action has its own rules and grounds for making such a decision, but in any case, the court issues a ruling against which a party can file a private complaint (Articles 128-130 of the CAS RF).

In the process of preparing the case for trial, the judge alone holds a preliminary hearing in order to clarify the circumstances that are important for the correct consideration and resolution of the administrative case (Article 138 of the CAS RF). After which a trial is scheduled (Article 139 of the CAS RF).

Another innovation is that the CAS of the Russian Federation provides for the institution of accelerating the consideration of an administrative case. For example, Article 141 establishes fairly short deadlines for the consideration of cases of this category.

Administrative cases are considered and resolved by the Supreme Court of the Russian Federation before the expiration of three months, and by other courts before the expiration of two months from the date of receipt of the statement of claim in court, including the period for preparing the administrative case for trial. In complex administrative cases, the established deadlines may be extended by the chairman of the court, but not more than by one month.

Also, to speed up the process, the code provides for the possibility of using video conferencing systems if such technical capabilities are available.

These are cases when, for the correct consideration and resolution of an administrative case, it is necessary to have a person present at the court hearing who, for objective reasons, does not have the opportunity to be personally present in the courtroom.

For a number of administrative cases, the Code establishes simplified (written) proceedings (Chapter 33 of the Code of Arbitration Procedures of the Russian Federation). The peculiarity of this proceeding is the consideration and resolution of an administrative case on the basis of written materials, without an oral hearing and without drawing up a protocol of the court session. Based on the results of consideration of an administrative case in this manner, a reasoned court decision is expected to be made. This procedure is also proposed to be used to consider private complaints in the appellate court.

The time frame for going to court and most time limits for consideration and resolution of administrative cases are shorter than the corresponding time limits for civil cases and depend on the type of administrative claim brought, for example, in administrative cases relating to public events. Reducing the time frame for consideration and resolution of administrative cases, along with other innovations (including significantly reduced time limits for sending court documents), is aimed at creating an effective judicial remedy.

The CAS of the Russian Federation regulates not only the rules of proceedings in the court of first instance, but also the rules for the review of judicial decisions that have not entered into legal force by an appellate court, as well as the rules for the review of judicial decisions that have entered into legal force by courts of cassation and supervisory instances and the rules for the review of judicial decisions that have entered into legal force. decisions on new and newly discovered circumstances by the courts that adopted these decisions (Explanatory Note to the draft CAS).

After the investigation of the administrative case, a decision is made (Chapter 15 of the CAS RF).

The CAS of the Russian Federation has not yet entered into force, and discussions are already flaring up regarding some of its provisions. Time and, of course, judicial practice will tell who will be right.

81.Administrative proceedings in the Russian Federation. Structure of the Code of Administrative Procedure of the Russian Federation.

On September 15, 2015, the Code on Administrative Proceedings in the Russian Federation (hereinafter referred to as the Code), adopted by Federal Law No. 21-FZ of March 8, 2015, will come into force on the territory of the Russian Federation.

The Code is a single, systematized legislative act that regulates the procedure for carrying out administrative proceedings when considering and resolving administrative cases by the Supreme Court of the Russian Federation, courts of general jurisdiction on the protection of violated or disputed rights, freedoms and legitimate interests of citizens, rights and legitimate interests of organizations, as well as other administrative cases arising from administrative and other public legal relations and related to the implementation of judicial control over the legality and validity of the exercise of state or other public powers.

According to Part 2 of Art. 1 of the Code, courts, in the manner prescribed by this Code, consider and resolve administrative cases within their jurisdiction on the protection of violated or contested rights, freedoms and legitimate interests of citizens, rights and legitimate interests of organizations arising from administrative and other public legal relations, including administrative cases:

1) on challenging regulatory legal acts in whole or in part;

2) on challenging decisions, actions (inaction) of government bodies, other government bodies, military command and control bodies, local government bodies, officials, state and municipal employees;

3) on challenging decisions, actions (inaction) of non-profit organizations vested with certain state or other public powers, including self-regulatory organizations;

4) on challenging decisions, actions (inaction) of qualification boards of judges;

5) on challenging decisions, actions (inaction) of the Higher Examination Commission for taking a qualification exam for the position of a judge and examination commissions of the constituent entities of the Russian Federation for taking a qualification exam for the position of a judge (hereinafter also referred to as examination commissions);

6) on the protection of voting rights and the right to participate in a referendum of citizens of the Russian Federation;

7) on the award of compensation for violation of the right to legal proceedings within a reasonable time in cases considered by courts of general jurisdiction, or the right to execute a judicial act of a court of general jurisdiction within a reasonable time.

According to Part 3 of Art. 1, in the manner prescribed by the Code, administrative cases related to the implementation of mandatory judicial control over the observance of human and civil rights and freedoms, the rights of organizations in the implementation of certain administrative power requirements for individuals and organizations, including administrative cases:

1) on the suspension or liquidation of a political party, its regional branch or other structural unit, another public association, religious and other non-profit organization, as well as on the prohibition of the activities of a public association or religious organization that is not a legal entity, on the exclusion of information about a non-profit organization from the state register;

2) on the termination of the activities of the media;

3) on the collection of sums of money to pay statutory mandatory payments and sanctions from individuals;

4) on the placement of a foreign citizen or stateless person subject to deportation or readmission, or a foreign citizen or stateless person accepted by the Russian Federation, but not having legal grounds for stay (residence) in the Russian Federation, in a special institution designated for this purpose and on the extension the duration of their stay in such an institution;

5) on the establishment, extension, early termination of administrative supervision, as well as on the partial cancellation or addition of administrative restrictions previously established for the supervised person;

6) on the involuntary hospitalization of a citizen in a medical organization providing psychiatric care in a hospital setting, on the extension of the period of hospitalization of a citizen on an involuntary basis, or on an involuntary psychiatric examination of a citizen;

7) on involuntary hospitalization of a citizen to a medical anti-tuberculosis organization;

8) other administrative cases on involuntary hospitalization of a citizen in a non-psychiatric medical organization.

The provisions of the Code do not apply to proceedings in cases of administrative offenses, as well as to proceedings in cases of foreclosure on funds from the budgets of the budget system of the Russian Federation.

It should be noted that before the Code on Administrative Proceedings in the Russian Federation comes into force, administrative cases of these categories are considered in the manner prescribed by the Civil Procedure Code of the Russian Federation.

A new branch of procedural law is being introduced into the system of current legislation of the Russian Federation to ensure accessibility of justice in the field of administrative and other public legal relations, protection of violated or disputed rights, freedoms and legitimate interests of citizens, rights and legitimate interests of organizations in the field of administrative and other public legal relations, as well as for the correct and timely consideration and resolution of administrative cases and strengthening the rule of law in this area.

In accordance with the Code, the right to go to court for the protection of violated or disputed rights, freedoms and legitimate interests is guaranteed to every interested person.

Administrative legal proceedings are built on the principles of independence of judges, equality of all before the law and the court, legality and fairness in the consideration and resolution of administrative cases, the implementation of legal proceedings and the execution of judicial acts in administrative cases within a reasonable time, publicity and openness of judicial proceedings, directness of judicial proceedings, adversarial and equality of the parties with an active role of the court.

Article 39 of the Code provides for the powers of the prosecutor in administrative proceedings. According to the law, the prosecutor has the right to file an administrative claim in court in defense of the rights, freedoms and legitimate interests of citizens, an indefinite number of persons or interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, as well as in other cases provided for by federal laws.

An administrative claim in defense of the rights, freedoms and legitimate interests of a citizen who is the subject of administrative and other public legal relations can be filed by a prosecutor only if the citizen, for reasons of health, age, incapacity and other valid reasons, cannot go to court himself.

A prosecutor who has filed an administrative claim in court enjoys procedural rights and bears the procedural responsibilities of an administrative plaintiff (with the exception of the right to conclude a reconciliation agreement and the obligation to pay court costs), as well as the obligation to notify the citizen or his legal representative of his refusal an administrative claim filed by him in the interests of a citizen.

If the prosecutor refuses an administrative claim filed in defense of the rights, freedoms and legitimate interests of an indefinite number of persons who are subjects of administrative and other public legal relations, consideration of the administrative case on its merits continues. If the prosecutor’s refusal of the administrative claim is related to the administrative defendant’s satisfaction of the stated demands, the court accepts such refusal and terminates the proceedings in the administrative case.

If the prosecutor refuses an administrative claim filed in defense of the rights, freedoms and legitimate interests of a citizen, the court leaves the corresponding application (for refusal of the claim) without consideration, if the citizen with administrative procedural capacity, his representative or the legal representative of a citizen who does not have administrative procedural capacity procedural capacity, will not declare the refusal of the administrative claim. If these persons refuse the administrative claim, the court accepts the refusal, unless this contradicts the law and does not violate the rights, freedoms and legitimate interests of other persons, and terminates the administrative proceedings.

The prosecutor enters into the judicial process and gives an opinion on the administrative case in cases provided for by law. The prosecutor does not give an opinion on the case if the case was initiated on the basis of his administrative statement of claim.

In addition, sections of the code regulate in detail measures of procedural coercion, general rules of proceedings in the court of first, appellate and cassation instances, features of proceedings in certain categories of administrative cases, the procedure for conducting simplified (written) proceedings in administrative cases, as well as procedural issues related to the execution judicial acts in administrative cases and resolved by the court.

The Code of Administrative Proceedings of the Russian Federation (hereinafter referred to as the Code of Administrative Proceedings of the Russian Federation), which regulates relations in the field of administrative proceedings by courts of general jurisdiction, will soon come into force. It was initiated by the President of the Russian Federation, which indicates the special significance of this code. From the explanatory note to it we can conclude that the main goal of the document is to improve the procedure for administrative proceedings, including through its harmonization with the basic principles of justice. The CAS of the Russian Federation will begin to operate on September 15, 2015, with the exception of certain rules that come into force at a later date. Let's analyze the most significant changes.

A little history

The need to develop and adopt the CAS of the Russian Federation was announced a long time ago, and from the highest stands. About 20 years ago, in the Decree of the President of Russia dated 06.06.1996 No. 810 “On measures to strengthen discipline in the public service system”, in order to combat corruption and abuse of officials, the Government of the Russian Federation was tasked with developing a draft Administrative Code of the Russian Federation in 1996. And later, since 2000, senior judges at various congresses again raised the question of the need to adopt a code that would spell out a clear, understandable procedure for considering cases arising from public legal relations.

In this regard, the Chairman of the Supreme Court of the Russian Federation, Vyacheslav Lebedev, has repeatedly stated the urgent need to adopt the CAS of the Russian Federation and saw in it a more effective and efficient mechanism for protecting the rights of citizens and companies in legal disputes with state authorities and local governments, compared to the current procedure, which is enshrined in Code of Civil Procedure of the Russian Federation and loses force from the moment the Code of Arbitration Procedures of the Russian Federation comes into force.

It should be noted that the Supreme Court of the Russian Federation did not limit itself only to unsubstantiated statements, but since 2003 it has introduced a number of legislative initiatives to the State Duma, including the draft CAS of the Russian Federation (bill No. 381232-4), which “hung” for many years in the bowels of the lower chamber and was eventually withdrawn from consideration. And already in 2012, at the VIII All-Russian Congress of Judges, Russian President Vladimir Putin announced the need to adopt the CAS of the Russian Federation.

Judges and some independent experts rightly saw the main drawback of the Code of Civil Procedure of the Russian Federation in the peculiarities of civil procedural proceedings, which presuppose not only legal, but actual equality of the parties. At the same time, in disputes with authorities, such equality was absent. The CAS of the Russian Federation largely eliminates the procedural imperfections of the Code of Civil Procedure of the Russian Federation and is that “adequate procedural toolkit”, the need for implementation of which has been discussed for a long time.

At the same time, some experts question the need to unite in the CAS of the Russian Federation various categories of disputes in procedural terms, for example, such as cases arising from public legal relations and cases of placement in a special institution of a foreign citizen subject to deportation. This combination of poorly compatible elements seems to many to be erroneous.

CAS RF and other procedural codes

The introduction of the institutions of administrative claims, the legal personality of foreign organizations and some other important provisions in the CAS of the Russian Federation (we will talk about them later) makes the new code a little similar to the Code of Civil Procedure of the Russian Federation. Some similar rules, for example, concerning a reasonable period of legal proceedings, are available not only in the CAS RF, but also in the Code of Civil Procedure of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, and even in the Code of Criminal Procedure of the Russian Federation.

It should be noted that the procedure for administrative proceedings is enshrined, in particular, in the Arbitration Procedure Code of the Russian Federation, but in relation to economic disputes arising from administrative and other public legal relations. There, section III is devoted to the regulation of administrative proceedings, “Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations.” And, according to some experts, currently it is the arbitration courts that accumulate the bulk of administrative justice.

At the same time, the greatest procedural succession can be noted between the CAS of the Russian Federation and the Code of Civil Procedure of the Russian Federation.

General in the CAS of the Russian Federation and the Code of Civil Procedure of the Russian Federation

Both codes contain largely similar claims procedures for initiating a case. Both the CAS RF and the Code of Civil Procedure of the RF have rules on general provisions, jurisdiction of cases, composition, etc. So, for example, as a general rule, cases arising from public legal relations are considered in the court of first instance by a single judge. This norm is enshrined both in the Code of Civil Procedure of the Russian Federation (Part 1 of Article 246 of the Code of Civil Procedure of the Russian Federation) and in the CAS of the Russian Federation (Part 1 of Article 29 of the CAS of the Russian Federation). The situation is similar with the procedure for filing an application by an interested person in this category of cases, which is established both in the Code of Civil Procedure of the Russian Federation (Part 1 of Article 247 of the Code of Civil Procedure of the Russian Federation) and in the CAS of the Russian Federation (Part 1 of Article 4 of the CAS of the Russian Federation).

It is important to note that from September 15, 2015, some provisions of the Code of Civil Procedure of the Russian Federation are no longer in force. Among them:

• subsection III 3 “Proceedings in cases arising from public legal relations” of section II of the Code of Civil Procedure of the Russian Federation;
• Chapter 22.1 of the Code of Civil Procedure of the Russian Federation “Proceedings for the consideration of applications for the award of compensation for violation of the right to legal proceedings within a reasonable time or the right to execution of a court decision within a reasonable time”;
• Chapter 35 of the Code of Civil Procedure of the Russian Federation “Hospitalization of a citizen to a medical organization providing psychiatric care in an inpatient setting, on an involuntary basis and psychiatric examination on an involuntary basis.”

The provisions of the Code of Civil Procedure that are no longer in force are “migrated” in a new edition to the CAS of the Russian Federation. This, we believe, is the main idea of ​​the CAS of the Russian Federation: the consideration of cases from public legal relations should not be regulated by the norms of the Code of Civil Procedure of the Russian Federation, because it has a completely different nature, principles and other features of legal regulation.

Differences between the CAS RF and the Code of Civil Procedure of the RF

There are also significant differences between the CAS RF and the Code of Civil Procedure of the RF. Thus, in particular, the CAS of the Russian Federation regulates the legal personality of foreign organizations (Part 7, Article 5), but there is nothing similar in the Code of Civil Procedure of the Russian Federation.

The CAS of the Russian Federation does not establish a specialized category of courts that must consider the types of cases regulated therein. This function is performed by ordinary courts of general jurisdiction.

In accordance with the Code of Civil Procedure of the Russian Federation, a case can be initiated at the request of an interested person (Part 1 of Article 247 of the Code of Civil Procedure of the Russian Federation), and in the CAS RF - on an administrative claim (Part 1 of Article 4 of the CAS RF). That is, in this case, a special administrative procedural form for drawing up and submitting such an application is provided.

General procedure of legal proceedings

As a general rule, an administrative case is initiated at the location of the defendant (Article 22 of the CAS RF).

Each of the parties involved in the case competes with the other, substantiates and proves its position with reference to legal acts and evidence (including audio and video recordings, examinations, etc.).

As a general rule, a case in a court of first instance is considered and resolved by a single judge (Part 1 of Article 29 of the CAS RF). The court may take measures of both preliminary protection (for example, suspending in whole or in part the effect of the contested decision, prohibiting certain actions, etc.) and procedural coercion, in particular, issuing a warning, removing from the courtroom, etc. (Article 85 and 116 CAS RF). If for any reason a person cannot actually take part in a court hearing, then he can be present there virtually through a video conferencing system (Article 142 of the Caspian Code of the Russian Federation).

It should be noted that Section IV of the CAS of the Russian Federation regulates the specifics of consideration of certain categories of cases:

• on declaring a normative legal act invalid;
• on challenging (invalidating) decisions, actions (inaction) of state authorities and local self-government, etc.

Categories of administrative cases

According to the rules of the CAS of the Russian Federation, in particular, the following cases will be considered:

• on challenging regulatory legal acts;
• challenging decisions, actions (inaction) of state bodies, local governments, officials, state and municipal employees;
• challenging decisions, actions (inaction) of non-profit (including self-regulatory) organizations vested with certain state or other public powers;
• protection of citizens' voting rights;
• awarding compensation for violation of the right to legal proceedings and to execution of a judicial act within a reasonable time in courts of general jurisdiction;
• suspension of activities or liquidation of non-profit organizations;
• cessation of media activities;
• collection of money to pay obligatory payments and sanctions from individuals;
• establishment, extension, early termination of administrative supervision;
• forced hospitalization of a citizen in a psychiatric hospital or anti-tuberculosis organization.

The provisions of the CAS RF do not apply to proceedings in cases of administrative offenses and foreclosure on budget funds (Part 5 of Article 1 of the CAS RF). Also, the CAS of the Russian Federation is not applied when considering cases arising from public legal relations that are within the competence of the Constitutional Court of the Russian Federation, constitutional (statutory) courts of constituent entities of the Russian Federation, arbitration courts, or are subject to consideration in a different procedural manner in courts of general jurisdiction and the Supreme Court of the Russian Federation.

Who can initiate a case

As a general rule, every interested person can file an administrative claim in court. This rule also applies to foreigners. But restrictions may be introduced for them if the procedural rights of Russian companies and citizens are infringed. In this case, the plaintiff must have administrative-procedural legal capacity and legal capacity, and in relation to foreign organizations - administrative-procedural legal personality.

Jurisdiction of disputes

All cases under the CAS are considered by courts of general jurisdiction (Article 17 of the CAS of the Russian Federation). Here, as in other codes, the following principle of jurisdiction applies: the more important the category of cases, the higher the authority considers them as a court of first instance. Thus, the case of declaring a normative legal act of the head of a municipality invalid in the first instance is considered by a district court, and the case of declaring a normative legal act of a subject of the Russian Federation invalid is already considered by a regional (territorial, supreme republican) court. If the interested party decides to challenge the act of the President of the Russian Federation or the Government of the Russian Federation, then the case will be considered by the Supreme Court of the Russian Federation (Articles 19–21 of the CAS of the Russian Federation).

Certain categories of cases related to the protection of the rights, freedoms and interests of military personnel are considered by military courts (Article 18 of the Caspian Code of the Russian Federation). According to some experts, the CAS of the Russian Federation has certain disadvantages related to jurisdiction. Thus, the following questions have not been sufficiently studied:

• formation of a staff of judges (due to the lack of specialized panels and panels for the consideration of administrative cases in the courts of general jurisdiction);
• transformations in courts of general jurisdiction in connection with the entry into force of the CAS of the Russian Federation, etc.

Participants in the case

Participants in an administrative case in court include (Article 37 of the CAS RF):

• sides, i.e. plaintiff and defendant (or several plaintiffs and defendants);
• interested people;
• prosecutor;
• bodies, organizations and persons protecting the interests of other (indefinite circle) persons.

Plaintiffs may be individuals and legal entities, including state and local government bodies, organizations vested with certain state or other public powers, officials, as well as public associations and religious organizations that are not legal entities (Part 3 of Article 38 CAS RF).

Defendants may be state and local government bodies, election commissions, referendum commissions, as well as other bodies, officials and organizations vested with public powers (Part 5 of Article 38 of the Code of Arbitration Code of the Russian Federation).

Procedural legal personality

The CAS of the Russian Federation introduces and regulates the concept and features of the implementation of administrative procedural legal personality, i.e. legal capacity and capacity of foreign organizations. The introduction of this concept is one of the most important innovations not only in administrative, but also in all Russian legislation. Previously, it was not in any of the Russian codes.

The term legal personality (sometimes in different senses) was characteristic mainly of acts of international law, such as, for example:

• Universal Declaration of Human Rights (adopted by the UN General Assembly on December 10, 1948);
• International Covenant of December 16, 1966 “On Civil and Political Rights”;
• Treaty on the Eurasian Economic Union (signed in Astana on May 29, 2014);
• United Nations Convention on the Law of the Sea (UNCLOS) (concluded in Montego Bay on December 10, 1982), etc.

It was also found in some departmental acts, for example, in the International Financial Reporting Standard (IFRS) 11 “Joint Activities” (put into effect by Order of the Ministry of Finance of Russia dated July 18, 2012 No. 106n), in the Methodological Recommendations for Recognizing the Results of Intellectual Activity as a Unified Technology (approved . Ministry of Education and Science of Russia 04/01/2010, without number), etc.

The introduction of this concept into the CAS of the Russian Federation significantly raises its legal status in the system of Russian legislation and helps strengthen its connection with international law.

In the judicial practice of the Supreme Arbitration Court of the Russian Federation and the Constitutional Court of the Russian Federation, the concept of procedural (or full) legal personality (simply legal personality) was mentioned when analyzing cases:

• on establishing the legal status of foreign persons (Review of judicial practice on some issues related to the consideration by arbitration courts of cases involving foreign persons (appendix to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07/09/2013 No. 158));
• on checking the constitutionality of certain norms of Russian legislation (decrees of the Constitutional Court of the Russian Federation dated July 18, 2012 No. 19-P and dated June 27, 2012 No. 15-P, determination of the Constitutional Court of the Russian Federation dated June 28, 2012 No. 1251-O).

Thus, in judicial practice there was no uniformity in the interpretation of this concept. Now such an interpretation has appeared, which, we believe, is a positive step in improving legislation in the field of administrative proceedings.

Reasonable time against judicial red tape

The consideration of cases under the CAS RF and the execution of judicial acts are carried out within a reasonable time (Part 1 of Article 10 of the CAS RF). Thus, by analogy with the Code of Civil Procedure of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation, the concept of “reasonable time” was introduced and regulated in the CAS RF. In addition, it is possible to submit an application to expedite the consideration of the case.

However, we note that this tool itself is not an innovation. A reasonable period of time is mentioned in several procedural codes, including the Code of Civil Procedure of the Russian Federation, where there is Chapter 22.1 “Proceedings for the consideration of applications for the award of compensation for violation of the right to legal proceedings within a reasonable time or the right to execution of a court decision within a reasonable time.” As already mentioned, this chapter loses force from the moment the CAS of the Russian Federation comes into force, i.e. from September 15, 2015

A reasonable period, which includes the period from the day the administrative claim is received by the court of first instance until the day the last judicial act is adopted in the case (Part 2 of Article 10 of the CAS RF). In this case, such circumstances as the legal and factual complexity of the case, the behavior of the participants in the process, the sufficiency and effectiveness of the court’s actions, etc. must be taken into account.

To speed up the proceedings, an interested person may submit a corresponding application. No later than the next working day, it must be considered by the chairman of the court. It should be noted that, in accordance with other codes, the application is considered much longer: five days - according to the Arbitration Procedure Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation, five days - according to the Code of Criminal Procedure of the Russian Federation.

If the court agrees with the applicant's arguments, it makes a ruling to satisfy the application. In it, he can indicate the actions that should be taken to speed up the consideration of the case.

Among the shortcomings of the RF CAS is the lack of a general and maximum period of trial for all categories of cases, which can lead to delays in the case and create risks of judicial red tape.

Thus, the rules on a reasonable period can be called necessary and progressive. But it would be advisable to designate the maximum time intervals for considering cases of one category or another, as well as to develop a set of criteria by which it will be determined into which category (complex or simple) a certain case will fall. True, to the credit of the legislator, Chapter 26 of the Code of Arbitration Procedures of the Russian Federation regulates in detail the specifics of proceedings in administrative cases on the award of compensation for violation of the right to legal proceedings within a reasonable time or the right to execution of a judicial act within a reasonable time. And this is a very positive moment.

Simplified procedure for legal proceedings

The CAS RF, unlike all other procedural codes, allows cases to be considered in a simplified (written) manner, i.e. without an oral hearing. This is possible if the parties agree to this and the total amount of debt for mandatory payments and sanctions indicated in the administrative statement of claim does not exceed 20,000 rubles. (Article 291 CAS RF).

Appealing court decisions

Decisions made by the court can be appealed through the appellate, cassation and supervisory procedures, as well as based on newly discovered circumstances.

An appeal can be filed within one month from the date of the court decision in final form (Part 1 of Article 298 of the CAS RF). For some categories of cases, shorter appeal periods are provided: 5–10 days. For example, in cases of challenging a normative legal act adopted by an election commission, or a normative legal act on the implementation of electoral rights and the right of citizens to participate in a referendum, this period is five days from the date of the decision (Part 3 of Article 298 of the CAS RF).

As a general rule, a cassation appeal can be filed within six months from the date of entry into force of the judicial act (Part 2 of Article 318 of the CAS RF).

The CAS of the Russian Federation regulates in detail the procedure for filing (returning) the corresponding complaint, content, deadlines, grounds and some other features of its consideration. So, according to Art. 299 CAS RF, the appeal must contain:

• the name of the court to which it is filed;
• name or full name of the person filing the complaint, his location or residence;
• an indication of the court decision that is being appealed;
• requirements, as well as the reasons why the person filing the complaint considers the court decision to be incorrect;
• list of documents attached to the complaint.

Execution of court decisions

Section VIII of the CAS of the Russian Federation regulates in detail the features of enforcement proceedings based on court decisions adopted in accordance with the CAS of the Russian Federation. As a general rule, judicial acts are executed after they enter into legal force, with the exception of certain cases of immediate execution (Part 1 of Article 352 of the CAS RF). And the writ of execution is presented for execution within three years from the date of entry into force of the judicial act (clause 1, part 1, article 356 of the CAS RF).

The CAS of the Russian Federation also provides for such a tool as a reversal of the execution of a judicial act, when the defendant returns everything that was collected from him in favor of the administrative plaintiff under the judicial act that was canceled or amended in the relevant part.

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On September 15, 2015, a new Federal Law - the Code of Administrative Proceedings (hereinafter referred to as CAS) - comes into force, which will regulate the procedure for considering certain categories of administrative cases.

The list of cases subject to consideration in accordance with the CAS RF procedure, as well as the procedural innovations provided for in this document, will become the subject of research in this material.

It should be immediately noted that the CAS of the Russian Federation extends its effect only to a number of administrative cases that are subject to consideration in courts of general jurisdiction. Administrative cases considered by arbitration courts are not covered by the regulation of the CAS of the Russian Federation. It is stipulated that the following cases will be considered in accordance with the CAS RF procedure:

1. On challenging regulatory legal acts in whole or in part;

2. On challenging decisions, actions (inaction) of government bodies, other government bodies, military command and control bodies, local government bodies, officials, state and municipal employees;

3. On challenging decisions, actions (inaction) of non-profit organizations vested with certain state or other public powers, including self-regulatory organizations;

4. On challenging decisions, actions (inaction) of qualification boards of judges;

5. On challenging decisions, actions (inaction) of the Higher Examination Commission for taking a qualification exam for the position of a judge and examination commissions of the constituent entities of the Russian Federation for taking a qualification exam for the position of a judge (hereinafter also referred to as examination commissions);

6. On the protection of voting rights and the right to participate in a referendum of citizens of the Russian Federation;

7. On the award of compensation for violation of the right to legal proceedings within a reasonable time in cases considered by courts of general jurisdiction, or the right to execute a judicial act of a court of general jurisdiction within a reasonable time.

8. On the suspension or liquidation of a political party, its regional branch or other structural unit, another public association, religious and other non-profit organization, as well as on the prohibition of the activities of a public association or religious organization that is not a legal entity, on the exclusion of information about a non-profit organization from the state register;

9. On the termination of the activities of the media;

10. On the collection of amounts of money to pay statutory mandatory payments and sanctions from individuals (hereinafter referred to as administrative cases on the collection of mandatory payments and sanctions);

11. On the placement of a foreign citizen or stateless person subject to deportation or transfer by the Russian Federation to a foreign state in accordance with the international treaty of the Russian Federation on readmission, or acceptance by the Russian Federation of a foreign citizen or stateless person transferred by a foreign state to the Russian Federation in accordance with an international treaty Russian Federation on readmission, but who do not have legal grounds for stay (residence) in the Russian Federation (hereinafter referred to as a foreign citizen subject to deportation or readmission), to a special institution intended for this purpose, provided for by the federal law regulating the legal status of foreign citizens in the Russian Federation ( hereinafter - a special institution), and on the extension of the period of stay of a foreign citizen in a special institution (hereinafter - administrative cases on the temporary placement of a foreign citizen subject to deportation or readmission in a special institution and on the extension of the period of stay of a foreign citizen subject to deportation or readmission in a special institution);

12. On the establishment, extension, early termination of administrative supervision, as well as on the partial cancellation or addition of administrative restrictions previously established for a supervised person (hereinafter also referred to as administrative cases on administrative supervision of persons released from places of imprisonment) - earlier provisions on administrative supervision were regulated by the Code of Civil Procedure of the Russian Federation.

13. On the involuntary hospitalization of a citizen in a medical organization providing psychiatric care in a hospital setting, on the extension of the period of hospitalization of a citizen on an involuntary basis, or on the involuntary psychiatric examination of a citizen - previously this procedure was also regulated by the Code of Civil Procedure of the Russian Federation;

14. On involuntary hospitalization of a citizen to a medical anti-tuberculosis organization;

15. Other administrative cases of involuntary hospitalization of a citizen in a non-psychiatric medical organization.

Those. in fact, it provides for the removal of certain categories of cases from the subject of regulation of the Code of Civil Procedure of the Russian Federation and their transfer to the scope of the CAS of the Russian Federation.

In turn, such a change in the source of legal regulation of the consideration of these categories of cases will mean not just a change in the details of the document regulating the procedure for their consideration, but the introduction of a number of fundamentally new features of legal proceedings in these cases, not previously provided for by other procedural codes.

The analysis of these features should be discussed in more detail.

1. A number of changes have been introduced to the conceptual apparatus used to designate procedural terms.

Thus, the usual concepts of “Plaintiff”, “Defendant”, “Statement of Claim” replace such concepts as “Administrative Plaintiff”, “Administrative Defendant”, “Administrative Statement of Claim”.

Persons whose rights and obligations may be affected when resolving an administrative case are called Interested Parties, and not Third Parties, as provided for by the Civil Procedure Code and the Arbitration Procedure Code of the Russian Federation. The meaning of these terms remains unchanged.

2. The degree of independence of the court when considering a case increases.

Thus, the CAS provides for the possibility of attracting a second administrative defendant as a proper one even in the absence of the plaintiff’s consent. Those. in the event that a claim is initially brought against an improper defendant, the court, on its own initiative, may involve a person who is an appropriate defendant in the case; the consent of the plaintiff will not be required.

This situation is impossible in civil and arbitration proceedings, where the replacement of an improper Defendant can only be done with the consent of the Plaintiff.

The CAS directly provides for the right of the court to demand evidence on its own initiative, in contrast to civil and arbitration proceedings, in which formally the court can demand evidence only upon the application of the participants in the process.

It should be noted that such a norm of the CAS of the Russian Federation essentially codifies the already established practice of courts of general jurisdiction, which often independently request evidence that, in their opinion, confirms the circumstances that are important for the case.

The legislative consolidation of this rule indicates the desire of the legislator to increase the role of the court in the formation of the evidence base in the case.

CAS provides for the right of the court to go beyond the stated requirements and arguments of the parties.

From this rule we can conclude that the court, when considering a case in accordance with the CAS RF procedure, is not bound by the arguments made by the participants in the process, and checks the legality of the stated requirements, taking into account all the circumstances recognized by it as relevant to the case.

3. CAS introduces a number of additional measures of procedural coercion.

It is possible to forcefully bring in any person involved in the case.

Thus, in a case where the participation in the consideration of the case of a particular person is recognized by the court as mandatory, and this person does not appear at the court hearing without good reason, such a person may be subjected to a forced arrest by the court.

This is a very significant difference between the CAS and the Code of Civil Procedure of the Russian Federation, where only a duly notified witness can be forcibly brought to a court hearing, but not a person who is a party to the case.

A measure such as an obligation to appear is being introduced. It represents a written obligation of a person to promptly appear at a court hearing when summoned by the court, and in the event of a change of residence or place of stay (location), to immediately inform the court about this.

The possibility of limiting the speech of a participant in court proceedings has been established. It consists of the court actually stopping the speech of a participant in the process if it concerns an issue that is not related to the trial.

The right of the court to deprive a participant in a trial of speech has been established, i.e. essentially deprive him of the right to further speak at the trial. This is permissible if a participant in the process arbitrarily violates the sequence of speeches, repeatedly fails to comply with the judge’s demands, and also allows insults or calls for illegal actions.

It should be noted that the application of these coercive measures (restriction of speech and deprivation of speech) can be appealed only when appealing a court decision in the case. In practice, this may mean the emergence of a situation in which any participant in the process can be deprived of the floor at the very beginning of the court hearing, which cannot be challenged until the court issues the final judicial act.

4. The participation of a representative in a number of cases becomes mandatory.

Mandatory participation of a representative is provided when considering the following categories of cases:

Cases on challenging normative legal acts. A citizen can speak personally in such cases only if he has a higher legal education.

Cases of forced placement in a psychiatric hospital;

Cases of involuntary psychiatric examination;

In the last two cases, the court itself, in the absence of a representative, appoints a lawyer.

In addition, a mandatory requirement has been established for a representative to have a higher legal education in any case considered under the CAS procedure. Representatives will be required to document their education before considering the case.

5. Collegial review at first instance for a number of cases.

A list of cases that are subject to collegial consideration in the court of first instance has been highlighted.

Among them are cases whose decisions on collegial consideration were made by the chairman of the court due to their particular complexity on the basis of a reasoned statement from the judge; cases on the dissolution of election commissions, etc.

6. New technologies in the introduction of legal proceedings.

The possibilities of using technical means when considering a case are expanding.

Participants in the process will be able, with their consent, to receive court notices by sending SMS messages or by email. Informing a person participating in the case in this form is permitted if he has his consent, confirmed by a receipt.

It is possible to submit documents to the court in electronic form;

There is an opportunity for participants in the process to receive copies of judicial acts and other documents in electronic form if there is an appropriate request.

Anton Polikutin, lawyer at YurInvest:

In general, the main innovations of the RF CAS are to increase the role of the court in the consideration of cases and increase the requirements for representatives.

It is expected that this approach will help strengthen the mechanism for judicial protection of rights and legitimate interests violated by the state, and will also lead to an improvement in the quality of consideration of administrative cases.

The effectiveness of protecting violated rights when considering cases according to the CAS RF procedure will be assessed over time, but now I would like to express the hope that giving the court an active role in administrative proceedings will not lead to violations of the principle of adversarial behavior of the parties and limiting their ability to prove their case by all parties. in ways prohibited by law.