Judicial reform in Russia is a permanent event, it never ends with anything. Those who are at least slightly familiar with the history of Russian court proceedings know that in fact this is a history of judicial reforms smoothly evolving from one into another.
From the point of dialectics, this is normal. Social relations do not stay still, they develop and change and judicial system as one of the regulators of social relations has to change with them. But it is a different matter, when reform is made for the reform itself only because such task has been set.
Legislative system is divided into two main “continents”: substantive law and procedural law. The substantive law stipulates how the society should act in any given situation, and the procedural law defines what to do when society members do not act as set forth by the substantive law.
Especially in recent years, the substantive law undergoes massive renovation, and mostly it is a necessary and timely process imposed by the very same changes in social relations. The pillars of the substantive law are the Civil Code of the Russian Federation, the Tax Code of the Russian Federation, the Criminal Code of the Russian Federation and the Code of the Russian Federation on Administrative Offenses. Recently, substantive codes, especially the first two, underwent material revisions, and it was reasonably induced. The society develops so rapidly that codes created in the middle of 1990s can no longer govern legal relations effectively. There are events arising, which did not even exist 10-15 years ago. Such revisions of law can only be welcomed.
However, amendments concerning the procedural law are more implied not by economic development laws, but by a certain state policy, and sometimes by redistribution of influence in various spheres of state power. We have seen this evidenced from restructuring of the system of commercial courts.
In the Russian Federation, court procedures may be divided into two categories: criminal court procedures and civil court procedures. Matters of court procedures are subject to applicable procedural codes, which often act as procedural reflection of the substantive code. For example, substantive matters of criminal law are governed by the Criminal Code of the Russian Federation, and procedural matters of the same criminal law are governed by the Criminal Procedure Code of the Russian Federation.
The structure of civil court procedures is a little more complicated. In civil court procedures, there are two branches: court proceedings of general jurisdiction and arbitration proceedings. Arbitration proceedings deal only with matters of economic disputes and have their own code of procedures for such cases called the Arbitration Procedure Code of the Russian Federation. Proceedings in courts of general jurisdiction are based on the law rules of the Civil Procedure Code of the Russian Federation.
Thus, in the system of court procedures there has long since developed a tradition: each type of court procedure has its own code. But that is not to say that each substantive code has its procedural fellow. Such aphorism does not work for substantive codes. For example, the Tax Code of the Russian Federation does not have the Code for Tax Court Procedures, and also the Labor Code does not have the Code for Procedures on Labor Matters. Procedures for disputes arising in these fields of law are subject to the Civil Procedure Code of the Russian Federation or the Arbitration Procedure Code of the Russian Federation depending on the nature of dispute.
Due to such injustice, incentives often arise both within the legal community and within the deputy corps to provide a procedure code for each substantive code, and even to give it a place separate from criminal and civil court procedures.
Idea of creating a separate judicial branch, administrative courts, has existed for a long time, and it has the ground. Indeed, neither courts of general jurisdiction, nor arbitration courts, moreover, are adjusted for effective justice in respect of administrative cases. And not because these cases are so complex, there is another reason for it. The Civil Code of the Russian Federation constitutes a material basis both for civil court procedures and arbitration court procedures. This is the main instrument specifying priority of liberal theory. Its main principle is the equality of subjects of the civil law. Here, relations of authority and hierarchy are disallowed, and even state institutions acting under the civil law are not vested with power.
Quite otherwise, it is with administrative relations, for which the material basis is the Code of the Russian Federation on Administrative Offenses. Despite civil relations, administrative legal relations may arise not only by choice, but also against the will of participants. This code (the Code of the Russian Federation on Administrative Offenses) is based precisely on relations of subordination of participants of administrative relations to authorities. And if to civil legal relations the principle “whatever is not prohibited is permitted” applies, in respect of administrative relations the principle is directly the opposite: “whatever is not permitted is prohibited”.
Precisely the polar opposition of these principles is the main reason for separation of administrative court procedures as a separate branch.
If it happened so, I, most likely, would have sided with such separation. But it happened otherwise.
In 2014, the bill was brought to the duma, and subsequently Federal Law No. 21-FZ dd. 08.09.2015, which implements the procedure code, the Code of Administrative Court Procedures, was adopted. I don’t know which acronym for this code will take roots, but for now I suggest naming it CACP of the Russian Federation. The new code shall come into force from September 15, 2015.
In the explanatory note to the bill, the legislator defines its motives as follows: “legal definition of a separate type of court procedures (administrative) under the rules of the Procedure Code of the other branch (the Civil Procedure Code and etc.) seems unacceptable”.
However, no one risked going further, and the new judicial branch, i.e. administrative courts, never took form.
It would be a mistake to claim that all court proceedings arising out of administrative legal relations will be governed only by the rules of the CACP of the Russian Federation. As it is set forth in Paragraph 4 of Clause 1 if CACP of the Russian Federation, cases arising out of public legal relations and placed in accordance with the federal law under the jurisdiction of the Constitutional Court of the Russian Federation, constitutional (statutory) courts of subjects of the Russian Federation or arbitration courts are not subject to CACP of the Russian Federation.
There is a common misconception that CACP of the Russian Federation replaced the Code of the Russian Federation on Administrative Offenses. This is not true, CACP of the Russian Federation did not repeal or replace the Code of the Russian Federation on Administrative Offenses, first of all, because the Code of the Russian Federation on Administrative Offenses is generally a substantive code, which although includes procedural rules, these are rules of extrajudicial administration. And CACP of the Russian Federation is, first of all, a set of court rules.
Moreover, those procedural rules concerning issues of proceedings on cases on administrative offenses, which have been contained in the Code of the Russian Federation on Administrative Offenses, remained there. Why they were not transferred to the CACP of the Russian Federation, and what the reasoning is here, remains unclear.
That’s why the new code should be deemed as one more codified set of court rules, which shall be applied only by courts of general jurisdiction upon the delivery of justice together with already existent Criminal Procedure Code of the Russian Federation and the Civil Procedure Code of the Russian Federation.
First of all, it should be noted in respect of which categories of disputes the CACP of the Russian Federation shall be applied because disputes arising out of administrative legal relations are governed by the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation and the Code of the Russian Federation on Administrative Offenses. We have already said that the new code shall not affect the jurisdiction of arbitration courts. All disputes arising out of administrative relations and in accordance with the Arbitration Procedure Code of the Russian Federation today subject to the jurisdiction of arbitration courts, will be still considered by arbitration courts and under the rules of Section III of the Arbitration Procedure Code of the Russian Federation.
The Civil Procedure Code of the Russian Federation suffered the most because all those categories of cases contained in the Civil Procedure Code of the Russian Federation and titled as cases arising out of public legal relations will be withdrawn from the scope of regulation of the Civil Procedure Code of the Russian Federation and transferred to the CACP of the Russian Federation.
But cases on administrative offenses will remain within the scope of the Code of the Russian Federation on Administrative Offenses. Moreover, proceedings in respect of cases on the levy of execution on budgetary funds will still be governed by the Budget Code of the Russian Federation.
According to provisions of the CACP of the Russian Federation, new terms have been introduced: “administrative case” and “administrative complaint”, and at that the parties shall be referred to as the “administrative plaintiff” and “administrative defendant”. Moreover, citizens of the Russian Federation, foreign citizens, people without citizenship, Russian, foreign and international organizations, non-governmental associations and religious organizations may be qualified as administrative plaintiffs. In certain cases, state authorities, election commissions, referendum commissions and officials may act as administrative plaintiffs.
The CACP of the Russian Federation stipulated option for application of technical achievements. In the course of each court session in original and appellate instances except record-keeping in written audio record-keeping is also maintained. The code also specifies option for the use of electronic documents and systems of videoconferencing, which allow facilitating consideration of an administrative case.
Introduction of cases untypical for consideration in the original instance stirs interest.
Interesting innovations of the CACP of the Russian Federation are special provisions on representation. For the first time qualification limitations for judicial representatives, they should have higher education, are introduced not in the criminal code.
Now together with the power of attorney and identification document a representative should show to the court diploma of higher legal education.
Upon signature of an administrative complaint by a representative the complaint should be supported by a copy of diploma of higher education.
Individuals, except certain categories of cases, will be able to defend their interests personally.
Heads of organizations upon confirmation of applicable powers are entitled to handle administrative cases on behalf of organizations, including on behalf of state authorities. For heads of state authorities draft CACP also stipulated qualification limitations with regard to higher legal education, however, in final CACP edition this limitation was not preserved.
In light of another idea on the introduction of advocate monopoly for representation in court proceedings, the issue of specifying such limitations for court representatives on administrative cases as advocate status was also discussed during the adoption of the bill, but was not preserved in the final edition. Deputies decided to confine themselves only to qualification limitations.
However, such provision may be regarded as the first step for the introduction of legal monopoly for representation in courts. Moreover, refusal of advocate monopoly suggested by the Supreme Court is a doubtless positive sign. Citizens and legal entities would have appeared in uneven condition, where citizens would have been obliged to use advocate services, and organizations would have had to temporary hire a lawyer.
The Arbitration Procedure Code of the Russian Federation stipulates the plaintiff’s obligation to send to the defendant a copy of complaint and other missing documents and attach to the complaint evidence of such sending.
The Civil Code of the Russian Federation stipulates that delivery of all documents is made directly by court and the plaintiff is only obliged to attach applicable copies for defendant.
The CACP of the Russian Federation made a judgment worthy Solomon: let this matter be resolved by the plaintiff himself/herself, or he/she may send copies of documents to defendant or attach their copies to complaint to be sent by court.
One of the main principles and tasks of court proceedings has always been the requirement to secure proper competition and equality of parties.
In the CACP of the Russian Federation, this principle has been materially revised. Moreover, lawmakers did not provide quite reasonable motivation.
As it was said in the explanatory note to the bill, for the purposes of securing proper competition and equality of parties in administrative court procedures the draft underlines the active role of court in case settlement. It is expressed, for example, in the fact that the court is vested with the right to initiate discovery of evidences, and in case of verification of legality of regulations, decisions, actions/omissions “may go outside the bounds of stated claims” (subject of administrative complaint) or grounds and reasons produced by the administrative plaintiff” (Clause 178 of the CACP of the Russian Federation).
It is unclear whether it is related to the attempt to help citizens as non-professional participants in proceedings or to other reasons. But the fact that the third active figure displaces the balance between the parties is alarming.
This category of disputes became quite popular in recent years. Cases on disputes over the cadastral value migrated from one court from another for a long time. Since August 2014, this category of cases was referred to the jurisdiction of courts of general jurisdiction of regions of the Russian Federation. And now such cases are included into the competence of the CACP of the Russian Federation under a separate chapter.
As to the requirements for the set of documents attached to the administrative complaint on contestation of results of determination of cadastral value, provisions of the Law on the Evaluation Activity have been transferred to the CACP of the Russian Federation.
Proceedings under this category of cases were often frozen facing the necessity to determine the market value of real estate object. Due to ambiguity and specific nature of methodology of evaluation, if within proceedings on cadastral cases there are disputes over the use of any evaluation methods, reasonability of use by the evaluator of any analogs of the evaluated object, inevitably arises a question on the relevancy of legal enquiry.
Now in accordance with the CACP of the Russian Federation rules the interested party should submit together with the suit a notary certified copy of documents of title for the real estate object (certificate of ownership, rental contract), and also report on the evaluation of market value and favorable expert opinion of a self-regulated organization on the evaluation report, not only in the form of hard copy, but also as an electronic document.
The new code stipulated option for consideration of cases following simplified (written) procedures when the court confines itself only to examination of written evidences and considers the case without invocation of parties.
Simplified proceedings are possible upon the application of all participants in the case or if there are no objections from the defendant against application of such procedures (the defendant has 10 days for filing objections) or for cases on the collection of mandatory payments and penalties within 20,000 Rub.
However, the case under simplified proceedings is considered within 10 days from the moment the applicable judgment is issued.
Summarizing the review of the new code, it should be noted that it does not lack attractive moments. For example, used in practice rules of the chapter of the Civil Procedure Code on proceedings on cases arising out of public legal relations were taken into consideration. That’s why provisions on the initiation of proceedings on the case, return of application, its suspension or refusal of accepting the application and etc. did not require material revision. Instead of using reference rules, which could be blamed on the Civil Procedure Code of the Russian Federation, it actually repeats general provisions of other procedural laws. The CACP of the Russian Federation stipulates reduction of time for consideration and settlement of administrative cases, including without limitation at cost of material reduction of time for sending judicial documents. All this facilitates creation of effective judicial remedies.
Legal community accepted introduction of the new code ambiguously. Many people saw in it the trend to grant courts wider powers beyond judicial and possibility to use such powers for the benefit of the government, and not the citizen.
I don’t think so, but the sense in of separating certain categories of cases into a separate code is also quite unclear to me.
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