1. The minutes of the court session or of a separate procedural action committed outside the court session must reflect all essential information about the proceeding of an administrative case or the performance of a separate procedural action.
2. The persons participating in the case, their representatives shall have the right to apply for the inclusion of information on the circumstances that they consider essential for the resolution of the administrative case into the relevant protocol.
3. The minutes of the court session shall indicate:
1) the date and place of the court session;
2) the time of the beginning and the end of the court session;
3) the name of the court considering the administrative case, the composition of the court and information about the secretary of the court session;
4) the name and number of the administrative file;
5) information about the appearance of the persons participating in the case, their representatives, witnesses, experts, specialists, translators;
6) information on the explanation to the persons participating in the case, their representatives, witnesses, experts, specialists, translators of their procedural rights and obligations;
7) information on the warning about the criminal liability of the translator for knowingly incorrect translation, witnesses for giving knowingly false testimony and refusal to testify, an expert for giving a knowingly false opinion;
8) orders of the presiding judge of the court session and rulings issued by the court in the courtroom without being removed to the deliberation room;
9) oral statements, petitions and explanations of the persons participating in the case, their representatives;
10) agreements between the parties on the factual circumstances of the administrative case and the stated requirements and objections;
11) testimony of witnesses, explanations by experts of their conclusions;
12) consultations and explanations of specialists;
13) information on the announcement of written evidence, data on examination of material evidence, listening to audio recordings, viewing video recordings;
16) information on the announcement and on clarification of the content of the court decision and court rulings, on the clarification of the procedure and term for their appeal;
17) information on the explanation to the persons participating in the case, their representatives of the rights to familiarize themselves with the protocol and submit comments on it;
18) information on the use by the court during the court session of stenography, audio and (or) video recording, video conferencing systems and (or) other technical means, as well as on the broadcast of the court session on radio, television and in the information and telecommunication network "Internet". When broadcasting the court session, the name of the mass media or site in the information and telecommunications network "Internet", through which the broadcast was carried out, shall be indicated;
19) the date of drawing up the minutes.
4. If a verbatim record, audio and (or) video recording of the court session is carried out, the record of the court session must contain the information provided for in clauses 1-5, 7-9, 12, 18 and 19 of part 3 of this article. The carriers of information obtained with the use of stenography and (or) other technical means by the court shall be attached to the minutes.
The provisions of article 205 of the CAS RF are used in the following articles:- Research and examination of written and material evidence at the place of their location
4. The results of the research and examination of the written and material evidence on the spot are recorded in the protocol in the manner prescribed by Articles 205 and 206 of the CAS RF. The minutes are accompanied by plans, diagrams, drawings, calculations, copies of documents, media with audio and video recordings made during the examination, photographs of written and material evidence, as well as an expert's opinion and expert's explanations in writing, drawn up and verified during the examination.
1. The commented article establishes the rule on the continuity of audio recording of the course of the court session.
What should the court do if, for technical reasons, the audio recording was interrupted and it became known during the court session? It seems that here it is possible to perceive the practice of arbitration courts, based on clause 19 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation "On some issues of the application of the Arbitration Procedure Code of the Russian Federation as amended by the Federal Law of 27.07.2010 N 228-FZ" On Amendments to the Arbitration Procedure Code of the Russian Federation "according to which, if in the course of the court session it is revealed that due to technical problems, recording with the use of audio recording means is actually not carried out, the court must announce a break in the court session.
By itself, the absence in the CAS of the provision on a break in the court session should not be assessed as the impossibility of using this form of temporary suspension of the trial by analogy with the procedural law, allowed by Part 4 of Art. 2 CAS.
After the end of the break, the court session continues from the moment when the audio recording failed.
In addition, the clarification of the Supreme Arbitration Court of the Russian Federation seems reasonable, according to which it is not a break in the recording of stopping the audio recording from the moment it is announced to those present in the courtroom about the removal of the court for making a decision and until the announcement of the decision or the resumption of the trial.
2. The CAS shall determine the secretary of the court session as the person responsible for keeping a written record, as well as for recording the course of the court session with the help of technical means (see also the commentary to clauses 3 and 4 of Article 53 of the CAS). At the same time, in the practice of the RF Armed Forces, it was indicated that the judge is obliged to control, demand and take appropriate measures for the observance and implementation of procedural norms by the employees of the court staff who provide this work, including the judge is obliged to ensure the timely preparation of the minutes by the secretary of the court session.
3. The way in which the written protocol is prepared is irrelevant. The protocol can be made in both handwritten and typewritten versions.
The production of the protocol in the form of an electronic document is not provided for by the directly commented article. However, taking into account the provisions of Part 4 of Art. 45 of the CAS, which provides for the possibility of obtaining copies of judicial acts, notices, summons to court and other documents (except for documents containing information, access to which is limited in accordance with the legislation) in the form of electronic documents signed by a judge with an electronic signature, the possibility of producing a protocol in the form of an electronic CAS document is not excluded. This is a general tendency of the introduction of electronic document management in civil litigation (see also the commentary to parts 2 - 4 of Art. 45, parts 1 and 7 of Art. 96, Part 8 of Art. 125, Part 2 Art. 126 CAS, etc.).
Audio and video protocols on tangible media must be attached to the written protocol. However, it seems that the CAS does not exclude the storage of audio and video recordings of a court session or a separate procedural action in digital format in the information base of the courts, if there is a technical possibility for that. In itself, the absence in the case of an audio protocol on a tangible medium in the presence of a written protocol and (or) an audio protocol in a digital file format is not an unconditional basis for canceling a judicial act (see the commentary to Article 204 of the CAS).
4. From the literal interpretation of Art. Art. 204 and 206 CAS does not see any exceptions to the general rules of recording in relation to closed hearings. Moreover, part 8 of Art. 11 CAS explicitly states that in a closed court session, an administrative case is considered and resolved in compliance with all the rules of administrative proceedings. The only exception is the inadmissibility of using video conferencing systems.
At the same time, for the purpose of non-disclosure of confidential information, which served as the basis for limiting the publicity of the trial, the possibility of audio recording of the course of the court session by any participants in the process, except for the court, is limited to the scope of an open court session (part 5 of article 11 of the CAS). It seems that the issue of maintaining the confidentiality of information is also relevant in relation to the results of audio recording carried out by the court.
A similar issue was resolved in the practice of arbitration courts. In particular, in the light of the clarifications of clause 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation "On Some Issues of Application of the Arbitration Procedure Code of the Russian Federation as amended by Federal Law No. 228-FZ of July 27, 2010" On Amendments to the Arbitration Procedure Code of the Russian Federation "in order to prevent disclosure state secrets, audio protocols of closed court hearings are recorded by arbitration courts on an autonomous technical device registered in accordance with the established procedure as a data carrier containing information constituting a state secret and stored exclusively on an optical disk.
It seems that this approach can be perceived by courts of general jurisdiction when considering and resolving administrative cases.
5. Three days from the date of the end of the court session, provided for in Part 3 of Art. 206 CAS for drawing up and signing the minutes of the court session, calculated according to the general rules - in calendar days with the transfer of the day of the end of the procedural period falling on a non-working day to the next working day (see the commentary to Articles 92, 93 of the CAS) ...
The term for the production of a protocol of a separate procedural action committed outside the court session is calculated in working days by virtue of a direct indication of this by the law.
4) there is a need to perform other procedural actions;
5) there is a petition from a person participating in the case on the need to obtain additional evidence and other information in order to comprehensively, complete and objectively clarify the circumstances of this administrative case.
The court shall issue a ruling on the postponement of the trial of an administrative case.
If the consideration of the case is postponed, the court is obliged to set a date for a new court session and announce this date to the persons present on receipt. Persons who did not appear and the participants again involved in the process shall be notified of the place and time of the new court session.
Since when the proceedings are postponed, the court session ends, and a new one begins from the very beginning, the principle of continuity between such two sessions does not apply. The ruling on the postponement of the proceedings is not subject to appeal to a higher court, but the court that ruled it may itself change the date of the resumption of the process.
If, after the postponement, the parties do not insist on a repeated explanation of all the participants in the process, they are familiar with the materials, including the explanations of the participants in the process that were given earlier, then the court, in order to speed up the process, has the right to provide the participants in the process with the opportunity to confirm the earlier given explanations without repeating them, to supplement them, ask additional questions. Also, when the proceedings are postponed, the court has the right to interrogate the witnesses who have appeared, if the parties are present at the court session, so as not to repeat their testimony in a new court session. The repeated summons of these witnesses is allowed if necessary.
Break must be distinguished from deposition. A break is a short period of time during the consideration of one case, when the consideration of other civil, criminal or administrative cases is completely excluded. After the interruption, the proceedings on the case shall continue from the moment at which it was stopped until the interruption. Deferral is allowed for a longer period necessary for the performance of individual procedural actions. Therefore, during the postponement of the proceedings, the court considers other cases; after the postponement, the proceedings begin from the very beginning.
Suspension of proceedings is a temporary and complete suspension of all procedural actions in a case caused by the occurrence of circumstances specified in the law that impede further proceedings.
In this case, although the case is not completed, it is completely removed from the proceedings until the resumption. The suspension is subdivided into mandatory (Art. 190 CAS) and optional (Art. 191 CAS), depending on the grounds established by law, and is not subject to broad interpretation.
By virtue of Art. 190 CAS, the court is obliged to suspend the administrative proceedings in the case if:
According to Art. 194 CAS, the court must terminate the proceedings if:
An administrative case is not subject to consideration and resolution in court in the order of administrative proceedings on the grounds provided for in paragraph 1 of part 1 of Art. 128 CAS;
There is a court decision that entered into legal force on an administrative dispute between the same parties, on the same subject and on the same grounds, a court ruling to terminate proceedings in this administrative case in connection with the acceptance of the administrative plaintiff's refusal of an administrative claim, approval of an agreement on reconciliation of the parties or a court ruling refusing to accept an administrative statement of claim. The court terminates proceedings in an administrative case on challenging regulatory legal acts, decisions, actions (inaction) that violate the rights, freedoms and legitimate interests of an indefinite circle of persons, if there is a court decision that has entered into legal force, adopted on an administrative claim on the same subject;
The administrative claimant abandoned the administrative claim and the refusal was accepted by the court;
The parties entered into a conciliation agreement and it was approved by the court;
The administrative statement of claim is not signed or signed and filed with the court by a person who does not have the authority to sign and (or) file it with the court, or by a person whose official position is not specified;
In the proceedings of this or another court or arbitration court, there is a previously initiated case on a dispute between the same parties, on the same subject and on the same grounds;
The proceedings in this administrative case were initiated on an administrative statement of claim in violation of the requirements provided for in Art. 125 and 126 of the CAS, and these violations were not eliminated within the time period established by the court or if, after the administrative plaintiff changed the claims, they did not submit documents confirming the circumstances on which the changed claims were based, provided that the administrative plaintiff was not released from the obligation to prove given circumstances.
The court leaves the administrative statement of claim without consideration in other cases provided for by the CAS.
Leaving an application without consideration is carried out by a court ruling. In the ruling, the court is obliged to indicate the ways to eliminate the circumstances that prevent the consideration of the case, to resolve the issue of the return of the state duty, the distribution of court costs (Article 197 CAS).
After the elimination of the circumstances that served as the basis for leaving the application without consideration, the interested parties have the right to apply to the court again with a general application. An ancillary complaint may be filed against a court ruling to refuse to satisfy such a request.
The minutes of the court session
During each court session of the courts of first instance and appeal (including the preliminary court session), as well as when a separate procedural action is taken outside the court session, audio recording is conducted and a written protocol is drawn up (Article 204 of the CAS).
The protocol fully and clearly reflects all essential actions, and in the sequence in which they were actually performed. Article 205 CAS regulates in detail the content of the protocol.
The secretary of the court session draws up a protocol and ensures control over the use of stenography, audio and (or) video recording equipment, video conferencing systems and (or) other technical means during the court session or when performing a separate procedural action. The minutes of the court session with the use of audio recording means are carried out continuously during the court session. The carriers of information obtained using stenography and (or) other technical means are attached to the protocol.
The protocol can be written by hand or drawn up using technical means. The minutes shall be signed by the presiding judge of the court session and the secretary of the court session. All amendments, additions, corrections made to the protocol must be agreed and certified by the signatures of the presiding judge and the secretary of the court session.
The minutes of the court session must be drawn up and signed no later than three days after the day of the end of the court session, the minutes of a separate procedural action performed outside the court session - no later than the next working day after the day of the commission of this action.
The persons participating in the case, their representatives have the right to familiarize themselves with the minutes of the court session, the minutes of the performance of certain procedural actions, and the records on the media. On the basis of petitions in writing and at the expense of the persons participating in the case, their representatives, a copy of the protocol, a copy of the record from the information carrier may be made.
The persons participating in the case, their representatives, within three days from the date of signing the protocol, have the right to submit written comments to the court on the protocol, indicating the inaccuracies and (or) its incompleteness. Comments on the protocol submitted after the expiration of the specified period are not considered by the court and are returned to the person who submitted them. Comments on the protocol are considered by the judge who signed it within three days from the date of submission of such comments without notifying the persons participating in the case. A court ruling is issued on the acceptance of comments on the protocol or on their complete or partial rejection. Comments on the minutes and the court ruling in relation to such remarks shall be attached to the minutes of the court session.
DOCUMENTS OF THE COURT
Clarifications on the CAS RF
Clarifications on the CAS RF
reference
On the practice of considering cases in the manner prescribed by the Code of Administrative Procedure of the Russian Federation
In connection with the questions received regarding the application of the Code of Administrative Procedure of the Russian Federation, pending the receipt of the guidance clarifications of the Supreme Court of the Russian Federation on the basis of Art. 19 of the Federal Constitutional Law "On Military Courts of the Russian Federation" I propose to take into account the following recommendations when considering administrative cases.
For application purposes, the questions and answers are arranged according to the chapters of the RF CAS.
1. Question: Which court has jurisdiction over cases of challenging orders of the Minister of Defense of the Russian Federation related to the military service of a particular serviceman?
Answer: Orders of the Minister of Defense of the Russian Federation, as well as other heads of federal executive bodies, which provide for military service, are legal acts.
In turn, legal acts are normative and non-normative.
A normative legal act, in relation to an order, is understood to mean an imperious order addressed to an indefinite circle of persons, designed for repeated use, retaining its effect regardless of its execution.
A normative legal act is an imperative order that is individual in nature and addressed to a specific person, designed for single or limited use, containing an executive order and aimed at the emergence, change or termination of rights and obligations for specific persons.
Based on the foregoing, administrative cases on challenging orders of the Minister of Defense of the Russian Federation, which are both normative and normative in nature, in accordance with cl. 1 and 13 Art. 21 of the CAS RF, are subject to the jurisdiction of the Supreme Court of the RF.
2. Question: In what cases is it necessary to involve family members of a serviceman as interested persons in administrative cases on challenging decisions, actions (inaction) of military command and control bodies and military officials related to housing for servicemen?
Answer: In accordance with Art. 47 of the CAS RF, interested parties are understood as those whose rights and obligations may be affected when resolving an administrative case. Such persons enter into the process on the side of the plaintiff or the defendant if the judicial act may affect their rights or obligations in relation to one of the parties.
When deciding who should be attributed to family members of a serviceman, the courts should be guided by the norms of the Housing Code of the Russian Federation and the Family Code of the Russian Federation, as well as pp. 25-29 Resolutions of the Plenum of the Supreme Court of the Russian Federation of May 29, 2014 No. 8 "On the Practice of Application by Courts of Legislation on Military Duty, Military Service and the Status of Military Personnel" and Resolution of the Plenum of the Supreme Court of the Russian Federation of July 2, 2009 No. in judicial practice when applying the Housing Code of the Russian Federation ".
In particular, in administrative cases related to housing provision of military personnel, such persons may be not only family members of a serviceman, but also other persons living together with him as family members, in respect of whom the serviceman raises the issue of providing housing (housing subsidies, state housing certificate, etc.) from the federal executive body, where military service is provided.
At the same time, members of the family of a serviceman should be involved in the case as interested persons only when their rights and obligations are actually and directly affected by a court decision.
An example of the need to involve a family member of a serviceman in the case as an interested person is the administrative case on the administrative claim of Colonel Sazontov against the Federal State Institution “Central Regional Department of Housing for Servicemen” of the RF Ministry of Defense.
The plaintiff contested the decision of this institution to cancel the earlier decision to provide him, his wife, two children and the father living with them with a housing subsidy for the purchase of housing.
In resolving the case, the court ruled that the administrative claimant's father had no right to receive a housing subsidy. However, the court did not involve the father himself in the case and, thus, resolved the issue of his housing rights and obligations.
In this regard, the court of appeal overturned the decision of the first instance court, and sent the administrative case for new consideration.
3. Question: Should a prosecutor who applied to the court in defense of the rights and freedoms of a citizen, simultaneously with filing an administrative claim, present evidence that the citizen himself cannot go to court for health reasons, age, incapacity and other valid reasons? What are the consequences of not providing such evidence? What decision should the court make if during the trial it comes to the conclusion that the prosecutor's arguments about the inability of the citizen to defend his rights on his own are far-fetched?
Answer: In accordance with Part 1 of Art. 39 of the CAS RF, the prosecutor has the right to apply to the court with an administrative statement of claim in defense of the rights, freedoms and legitimate interests of a citizen who is the subject of administrative and other public legal relations, only if the citizen himself cannot go to court.
According to Part 6 of Art. 125 of the CAS RF, in the case of a prosecutor's appeal to protect the rights, freedoms and legitimate interests of a citizen, the administrative statement of claim must also indicate the reasons excluding the possibility of an administrative statement of claim by the citizen himself. In this case, the administrative statement of claim filed by the prosecutor must comply with the requirements provided for in paragraphs 1 - and 9 of part 2 of the same article.
Clause eight of the second part of the above norm establishes that other information must be indicated in the administrative statement of claim in cases where their indication is provided for by the provisions of this Code, which determine the specifics of proceedings in certain categories of administrative cases. In addition, paragraph 7, part 1 of Art. 126 of the CAS RF also determines that documents defining the specifics of proceedings in certain categories of administrative cases must be attached to the administrative statement of claim.
Since in itself the right of a prosecutor to file an administrative claim in defense of a citizen is of a special nature, due, inter alia, to the specifics of the consideration of such cases, such an appeal is a feature in the production of administrative cases of this category.
Based on these norms, the prosecutor who applied to the court in defense of the rights and freedoms of a citizen, simultaneously with the filing of an administrative claim, is obliged to provide evidence that the citizen himself, due to health, age, incapacity and other valid reasons, cannot independently apply to the court.
Failure to provide such evidence means non-compliance of the administrative statement of claim with the requirements of Art. Art. 125 and 126 of the CAS RF, which entails the need to leave the filed claim without movement in accordance with the requirements of Art. 130 CAS RF.
Clause five, part 1 of Art. 196 of the CAS RF determines that if the court establishes that the proceedings in this administrative case were initiated under an administrative statement of claim in violation of the requirements provided for by this Code, and these violations were not eliminated within the time period established by the court, then the administrative statement of claim must be abandoned without consideration.
Thus, if in the course of the trial the court comes to the conclusion that the prosecutor's arguments about the inability of the citizen to independently apply for judicial protection are far-fetched and the prosecutor does not present evidence of such inability within the prescribed time limit, then the administrative claim is left without consideration.
4. Question: Is it possible to attract military prosecutors to participate in administrative matters related to the dismissal of military personnel from military service and their exclusion from the lists of the unit's personnel?
Answer: In accordance with Art. 39 and 218 of the Code of Administrative Procedure of the Russian Federation, the participation of prosecutors in administrative proceedings is provided only for administrative cases in which the prosecutor filed an administrative statement of claim, and in cases expressly provided for by this Code (Articles 213, 243, 277 and 283 ). The participation of prosecutors in the consideration of administrative cases related to the dismissal of military personnel from military service and their exclusion from the lists of the unit's personnel is not provided for by the named Code.
In addition, it should be noted that the European Court of Human Rights considers the participation of a prosecutor in civil litigation as a violation of the fairness of the trial.
Thus, in the case of Korolev v. Russia (the Korolev case was considered in 2002 by the Yekaterinburg GVS at first instance and the Ural District Military Court at the second instance), the European Court noted that the prosecutor, entering into a civil case between a citizen and a state body, “actually becomes an ally or an opponent of one of the parties, his participation may create a sense of inequality in relation to one of these parties ... if the offense affects a large number of people, or if real state interests or property require protection ”.
In this case, in the Court's opinion, the principle of equality of arms, which requires an impartial balance between them, was not observed, since “a mere repetition by the prosecutor of the defendant's arguments seems senseless, unless they were aimed at influencing the court”.
The Court also noted that “if the independence and impartiality of the prosecutor is not challenged, the increased sensitivity of the public to the fair administration of justice justifies the growing attention to external manifestations ... maintaining the confidence that the courts in a democratic society must instill in the population ”.
These legal positions, characterizing, first of all, the fairness of the trial, in accordance with the explanations contained in paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 10, 2003 No. 5 "On the application by courts of general jurisdiction of generally recognized principles and norms of international law and treaties of the Russian Federation ”are binding on all courts of the Russian Federation.
Taking this into account, the participation of prosecutors in administrative proceedings is possible only in cases directly provided for by the Code of Administrative Procedure of the Russian Federation, and I believe that their participation in the consideration of administrative cases related to the dismissal of military personnel from military service and their exclusion from the lists of military unit personnel is inappropriate.
5. Question: Can a person who has a diploma in higher legal education issued in another state (for example, Kazakhstan) be allowed to participate in an administrative case as a representative?
Answer: by virtue of ch.h. 1 and 3 st. 55 of the CAS RF, persons with a higher legal education may be representatives in an administrative court. Representatives must submit to the court documents on their education, as well as documents certifying their status and powers.
In accordance with Art. 107 of the Federal Law "On Education in the Russian Federation" in the Russian Federation, foreign education is recognized that is subject to international agreements on mutual recognition, as well as obtained in foreign educational organizations, the list of which is established by the Government of the Russian Federation.
Holders of a foreign education recognized in the Russian Federation are granted the same professional rights as holders of a corresponding education received in the Russian Federation, unless otherwise provided by international agreements on mutual recognition.
At the same time, documents on foreign education recognized in the Russian Federation must be legalized in the manner prescribed by the legislation of the Russian Federation and translated into Russian, unless otherwise provided by an international treaty of the Russian Federation.
The list of international treaties of the Russian Federation on the recognition of foreign documents on education, academic degrees and academic titles is indicated in the letter of the Ministry of Foreign Affairs of the Russian Federation dated June 19, 2012 No. 9333 / dp. The lists of foreign educational organizations that issue documents on education and (or) on qualifications recognized in the Russian Federation are given in the orders of the Government of the Russian Federation of August 11, 2014 No. 1503-r and of December 30, 2015 No. 2777-r.
In particular, the following are currently operating on the territory of the Russian Federation:
- Agreement on cooperation of the member states of the Eurasian Economic Community in the field of education dated December 11, 2009 (participants: the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan);
- Agreement on cooperation in the field of education dated May 15, 1992 (participants: Republic of Azerbaijan, Republic of Armenia, Republic of Belarus, Republic of Kazakhstan, Kyrgyz Republic, Republic of Moldova, Republic of Tajikistan, Turkmenistan, Republic of Uzbekistan, Ukraine).
These documents are available in the public domain and posted in the "Consultant Plus" system.
Meanwhile, in each specific case, it is necessary to take into account the individual characteristics of the concluded international treaties in this area.
So, in Art. 20 of the Agreement between the Government of the Russian Federation and the Government of the Republic of Kazakhstan on cooperation in the field of culture, science and education, concluded in Moscow on March 28, 1994, states that these states recognize the already issued educational documents, qualification certificates and diplomas as equivalent.
Since this agreement entered into force on December 03, 1998, the references to previously issued ("already issued") documents, and not issued in the future, are equivalent only to diplomas issued before December 3, 1998.
In addition, as follows from ch. 4-6 st. 107 of the above law, if the foreign education is not included in the special list, the recognition of the foreign education is carried out by the federal executive body exercising the functions of control and supervision in the field of education, about which a corresponding certificate of recognition of the foreign education is issued.
6. Question: Article 55 of the CAS RF establishes that persons with a higher legal education may be representatives in an administrative court. At the same time, the CAS of the Russian Federation has not established such restrictions for administrative plaintiffs, which, in turn, puts in unequal conditions persons who have applied to the court for the protection of violated rights, who are unable to pay for the services of a qualified lawyer, and who do not have professional skills in the field of jurisprudence. with persons who have such an opportunity. The above is evidenced by the absence of provisions on mandatory participation in the case on the part of the administrative plaintiff of a person with a higher legal education.
Since the presence of a higher legal education, as shown by judicial practice, is not in all cases a guarantee of sufficient qualifications of a person endowed with the status of a representative, legislative consolidation of the possibility of participation in an administrative case by a representative of an administrative plaintiff (defendant) who does not have a higher legal education, including consideration of cases, the subject of judicial proceedings in which does not require special legal knowledge, will contribute to the goals of ensuring the tasks of administrative proceedings established by Art. 3 CAS RF.
Answer: Article 55 of the CAS RF contains directly specific requirements for persons who can be representatives in court. One of them is the obligatory presence of a higher legal education.
Since this legislative prescription does not contain any exceptions, the admission to participation in the case as representatives of persons who do not have such an education will contradict the named regulatory prescriptions entailing the possibility of canceling the court decision adopted as a result of the consideration of an administrative case.
7. Question: Is it possible for the court to impose the obligation to present evidence on a person participating in the case without issuing a written ruling on the demand for evidence, including if the person can present evidence within a period not exceeding the time the court is in the deliberation room at making the required determination.
Answer: Parts 1 and 2 of Article 63 of the CAS RF stipulate that in order to properly resolve administrative cases, the court has the right to demand evidence both at the request of the persons participating in the case and on its own initiative. The court shall issue a ruling on the demand for evidence, which indicates the time period and procedure for presenting this evidence, and a copy of it is sent to the persons participating in the case and the person who has the requested evidence.
By virtue of a direct indication in this provision (a copy of the ruling must be sent to the parties no later than the next day after the day the ruling was made) and the possible legal consequences of both the provision of evidence and non-compliance with the court's request (Article 45, Part 4-6 of Art. 63 of the CAS RF), the law does not provide for the demand for evidence without issuing an appropriate written ruling.
According to Part 3 of Art. 59 of the CAS RF, evidence obtained in violation of federal law has no legal force and cannot be used as the basis for a court decision.
Taking this into account, non-compliance with the procedural form of obtaining evidence directly provided for by the CAS RF entails the recognition of such evidence inadmissible.
8. Question: In relation to what decisions, actions (inaction) of a military command body or a military official, it is possible to apply measures of preliminary protection, taking into account the provisions of Part 3 of Art. 85 CAS RF?
Answer: According to the general rule set out in Part 3 of Art. 85 of the CAS RF, the measures of preliminary protection in an administrative claim do not include the suspension by a body or an official with powers of authority, the actions of the normative legal acts or decisions adopted by them, as well as the suspension of the performance of the contested actions.
Taking this into account, such application of measures of preliminary protection in administrative cases is impossible.
However, proceedings on administrative cases on challenging decisions, actions (inaction) of public authorities, other bodies, organizations endowed with certain state or other public powers, officials, civil servants are carried out according to general rules with exceptions established in Ch. 22 CAS RF.
In accordance with Art. 223 of this Code (Chapter 22 of the CAS RF) on administrative cases on challenging decisions, actions of a body, organization, person vested with state or other public powers, the court in the manner prescribed by Chapter 7
In this regard, when challenging decisions, actions (inaction) of a military command body or a military official, the court has the right to suspend the contested decision in the part related to the administrative plaintiff, or suspend the performance of the contested action against the administrative plaintiff in accordance with the stated claim requirements.
9. Question: Can the court, on its own initiative, take measures of preliminary protection, for example, suspend the implementation of certification materials on the dismissal of a serviceman?
Answer: In accordance with Art. 223 of the CAS RF on administrative cases on challenging decisions, actions of a body, organization, person endowed with state or other public powers, the court, in the manner prescribed by Chapter 7 of the Code, has the right to suspend the contested decision in the part related to the administrative plaintiff, or to suspend the commission of regarding the administrative plaintiff of the contested action.
However, Ch. 7 of the CAS RF provides for the possibility of applying measures of preliminary protection only at the request (petition) of an administrative plaintiff or a person who has applied to the court in defense of the rights of other persons or an indefinite circle of persons. The adoption of such measures on the initiative of the court of the CAS of the Russian Federation does not allow.
Based on the above instructions, the legislation does not contain any restrictions on the types of suspended contested decisions or actions.
10. Question: Is it possible to appoint and hold a court session without observing the established part 7 of Art. 96 of the CAS RF of a fifteen-day period in the event that the administrative case is prepared for consideration on the merits, and the parties, due to the absence of the need to present other evidence, do not want to participate in the court session and petition for the consideration of the case as soon as possible.
Answer: Part 7 of Art. 96 of the CAS RF established that information on the acceptance of an administrative statement of claim for proceedings, on the time and place of the court session or the commission of a separate procedural action must be posted by the court on the official website of the corresponding court in the information and telecommunications network "Internet" no later than fifteen days before the start of the court session or the performance of a separate procedural action, unless otherwise provided by the CAS RF.
Any exemptions of Ch. 22 of the CAS RF, which determines the procedure for considering administrative cases on challenging actions (inaction) and decisions of military officials and bodies, does not contain.
In this regard, the possibility of appointing and holding a court session on administrative cases challenging the actions and decisions of military officials and military command and control bodies without observing the established part 7 of Art. 96 of the CAS RF, the law does not provide for a fifteen-day period.
11. Question: According to Art. 114 of the CAS RF, the state duty, which is one of the components of court costs incurred by the court in connection with the consideration of an administrative case, must be credited to the federal budget. Taking this into account, in which budget: federal or local, is it necessary to pay the state fee on administrative cases considered by the garrison military court?
Answer: In accordance with Art. 103 of the CAS RF, court costs in administrative cases consist of state fees and costs associated with the consideration of an administrative case. The amount and procedure for payment of the state duty are established by the legislation of the Russian Federation on taxes and fees.
Thus, the procedure for paying taxes and fees is governed by the norms of the tax legislation of the Russian Federation.
By virtue of Art. 333.18 of the Tax Code of the Russian Federation, the state duty is paid at the place of committing a legally significant action (filing an administrative claim).
As follows from par. 9 clauses 1 clause 4 of Art. 20 and 50 of the Budget Code of the Russian Federation, the state duty is the tax revenue of the federal budget.
According to par. 8 p. 2 art. 61.1 of the Budget Code of the Russian Federation, the state duty, being a federal fee, in cases considered by courts of general jurisdiction (with the exception of the Supreme Court of the Russian Federation) is subject to transfer to local budgets.
Thus, the state fee on administrative cases before the garrison military courts is payable to the local budget.
It should be noted that Article 114 of the CAS RF determines only at the expense of what budget should be reimbursed for court costs already incurred by the court in connection with the consideration of an administrative case. This norm does not contain instructions on the procedure for paying the state fee when filing an administrative claim.
12. Question: In what cases are military command and control bodies and military officials exempted from paying the state duty?
Answer: In accordance with clause 19, part 1 of Art. 333.36 of the Tax Code of the Russian Federation, state bodies acting in cases considered by courts of general jurisdiction, as plaintiffs (administrative plaintiffs) or defendants (administrative defendants), are exempted from paying state fees.
When resolving the question of whether the military command body belongs to a state body that has a privilege in paying the state duty, the explanations given in cl. 2 and 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2014 No. 8 "On the practice of the courts' application of legislation on conscription, military service and the status of military personnel."
In particular, the Ministry of Defense of the Russian Federation, another federal executive body in which military service is provided for by federal law, central bodies of military control (commands, headquarters, directorates, departments, services, divisions, detachments, centers), territorial bodies of military command (military commissariats, regional centers, commandant's offices of territories), directorates and headquarters of associations, formations, military units of the Armed Forces of the Russian Federation, other troops, military formations and bodies.
Since the military command and control bodies carry out the functions assigned to them through the corresponding military officials, they are also subject to exemption from the payment of the state duty.
13. Question: Is it necessary to involve, as co-defendants or interested persons, territorial financial bodies or other bodies of military command to participate in a case on challenging decisions, actions (inaction) of a military official to resolve issues of reimbursement of court costs incurred by the administrative plaintiff, and in particular , the cost of paying for the services of a representative?
Answer: When deciding on the court costs reimbursed in the case and the need to involve other bodies in the case, one should proceed from the composition of court costs.
Article 103 of the CAS RF establishes that court costs consist of state fees and costs associated with the consideration of an administrative case.
In accordance with Part 1 of Art. 111 of the CAS RF to the party in favor of which the court decision was made, the court awards on the other party all legal costs incurred in the case.
Within the meaning of Art. 333.40 of the Tax Code of the Russian Federation in the event that the parties are exempted from paying court costs, these costs are reimbursed from the federal budget.
Bodies of military administration and military officials by virtue of paragraph 19 of Part 1 of Art. 333.36 of the Tax Code of the Russian Federation are exempted from paying state duties.
Thus, with regard to the jurisdiction of military courts, in the case of resolving the issue in administrative cases on challenging decisions, actions (inaction) of military officials and military command and control bodies, only to reimburse the state duty paid by the administrative plaintiff to the need to attract territorial financial there are no bodies or other bodies of military command to participate in the case, since these expenses are reimbursed from the federal budget.
The state duty paid in this case is subject to return to the administrative claimant from the federal budget.
However, if the issue of reimbursement of legal costs incurred by the administrative plaintiff is resolved in cases of this category, in particular, the costs of paying for the services of a representative, the need to involve territorial financial bodies of military command as co-defendants or interested persons is meant that the military command and control bodies and officials are not exempt from their compensation.
If they are collected, they must be reimbursed at the expense of the territorial financial bodies of the military command, where the military unit is financially supported, or at the expense of the military unit, if it is an independent recipient of federal budget funds.
According to Part 2 of Art. 221 of the CAS RF to participate in an administrative case on challenging a decision, action (inaction) of an official, a state or municipal employee, as a second administrative defendant, the relevant body in which an official or a civil servant performs their duties may be involved.
Taking into account the foregoing, in the case where a military unit where a military official is doing his military service, whose actions or decisions are challenged, is an independent recipient of federal budget funds, it is subject to involvement in the case as a second administrative defendant.
In the event that the military command body in which the official whose actions are challenged is fulfilling is financed at the expense of the territorial financial body, such a body is subject to prosecution as a second administrative defendant or an interested person.
14. Question: What procedural decision should be taken by the judge if there are requirements in the administrative statement of claim that are subject to consideration both in the manner prescribed by the CAS RF and in the manner prescribed by the Code of Civil Procedure of the RF?
Answer: As follows from Art. 1 of the CAS RF, in the manner prescribed by this Code, administrative cases on the protection of violated or disputed rights, freedoms and legitimate interests of citizens, rights and legitimate interests of organizations arising from administrative and other public legal relations, including administrative cases specified in part two of this article.
According to clause 1 of part 1 of Art. 128, p. 1 h. 1 art. 194 and 225 of the CAS RF, if an administrative claim is not subject to consideration and resolution in administrative proceedings and is resolved in a different court order, including by a court in civil proceedings, then, depending on the stage of consideration of the case, it is necessary to make a decision to refuse to accept the administrative claim statements, or about the termination of administrative proceedings.
The Code of Civil Procedure of the Russian Federation (clause 1 of part 1 of article 134, paragraph 2 of article 220) contains similar norms that do not allow the consideration and resolution of cases subject to resolution in administrative proceedings in civil proceedings.
Thus, the possibility of considering and resolving claims subject to consideration both in the manner prescribed by the CAS RF and in the manner prescribed by the Code of Civil Procedure of the Russian Federation is not provided for by administrative proceedings.
Taking into account the foregoing, if there are such requirements in the administrative statement of claim, the judge must issue a ruling on the refusal to accept the administrative statement of claim on the stated claim, subject to resolution in the civil proceedings, and another requirement to be considered in the order of the CAS RF should be accepted for proceeding court.
Indicative in this case is the administrative case on the claim of the reserve warrant officer Vlasov against the commander of a military unit to challenge his dismissal from military service. In an administrative claim accepted by the court for its proceedings, the plaintiff also asked to recover from the military unit the moral damage caused by unlawful dismissal from military service.
Meanwhile, the judge did not take into account that, according to the interrelated provisions of Art. 12 of the Civil Code of the Russian Federation, art. 22 Code of Civil Procedure of the Russian Federation, Art. 1 of the CAS RF, the claim for the recovery of moral damage was subject to consideration in the order of not administrative, but civil proceedings.
The result of the error was the consideration of these two claims in the order of administrative proceedings.
In connection with the violation, the appellate court canceled the decision on the recovery of moral damage and terminated the proceedings in this part.
15. Question: Is it possible to make one ruling on the acceptance of an administrative case for court proceedings and on the preparation of an administrative case for court proceedings, and also whether it is necessary, taking into account Part 2 of Art. 127 CAS RF instruction to initiate administrative proceedings?
Answer: According to Part 2 of Art. 133 of the CAS RF for the preparation of an administrative case for court proceedings may be indicated in the ruling on the acceptance of an administrative statement of claim for court proceedings.
As indicated in Part 2 of Art. 127 of the same Code, the judge makes a ruling on the acceptance of an administrative statement of claim for court proceedings, on the basis of which administrative proceedings are initiated in the court of first instance.
By virtue of the direct indication in this norm, the stage of initiation of an administrative case is mandatory, which makes it possible to delimit the procedural actions at the stage before the acceptance of the case for production and after such acceptance.
Based on the foregoing, in the ruling on the acceptance of an administrative case for court proceedings, it is necessary to indicate the initiation of an administrative case.
16. Question: Due to the fact that Art. 127 of the CAS RF provides for the decision by the judge of the issue of the possibility of accepting an administrative statement of claim for court proceedings within three days from the date of receipt of the administrative statement of claim by the court, whether the judge has the right to make a ruling on the acceptance of the administrative statement of claim for court proceedings on the day that is not working, or he must take it out on the first working day following it?
Answer: As follows from Art. 127 of the CAS RF, the issuance of a ruling on the acceptance of an administrative case for court proceedings is a procedural action.
In accordance with Art. 92 of this Code, procedural actions are subject to the procedural timeframes established by the CAS RF. If the last day of the procedural term falls on a non-working day, the next working day shall be considered the day of the end of the procedural term (Article 93).
By virtue of these instructions, the performance of procedural actions, including the issuance of a ruling on the acceptance of an administrative case for court proceedings, is not provided for during non-working hours by administrative proceedings.
Such a determination must be made on the next working day after the weekend. In this case, the three-day period established by Part 1 of Art. 127 CAS RF, will be considered not passed.
17. Question: Is it possible to carry out preparatory (administrative) actions during the established part 7 of Art. 96 CAS RF fifteen days after the ruling on the appointment of a court session, taking into account the fact that by virtue of Part 1 of Art. 139 of the CAS RF does the court make such a determination, only recognizing the administrative case as prepared for trial?
Answer: According to Part 2 of Art. 14 of the CAS RF, the court, while maintaining independence, objectivity and impartiality, manages the judicial process, explains to each of the parties their rights and obligations, warns about the consequences of the commission or non-performance of procedural actions by the parties, assists them in the exercise of their rights, creates the conditions and accepts those stipulated by this The Code measures for a comprehensive and complete establishment of all factual circumstances in an administrative case, including for the identification and reclamation of evidence on its own initiative, as well as for the correct application of laws and other regulatory legal acts when considering and resolving an administrative case.
Thus, the obligation to comprehensively and completely establish all the factual circumstances in an administrative case, as well as the correct application of laws and other normative legal acts when considering and resolving an administrative case, is imposed on the court.
With this in mind, the implementation of preparatory (administrative) actions within the established part 7 of Art. 96 of the CAS RF, a fifteen-day period after the issuance of a ruling on the appointment of a court session is possible. In itself, the issuance of a ruling on the appointment of an administrative case to court proceedings is not an obstacle to the performance of additional actions for the correct resolution of the case.
18. Question: What is the time frame for the appointment of a hearing on the appointment of fines? Is it necessary to notify the parties and all participants about the court session and is it obligatory for the parties to participate in such a court session? What is the order of the court session, should it be held in accordance with all the rules of Ch. 14 CAS RF or in an abbreviated form?
Answer: A court fine is one of the measures of procedural coercion, provided for in Art. 116 CAS RF.
As indicated in Part 1 of Art. 123 of the same Code, the issue of imposing a court fine on a person is resolved in court.
A court fine can be imposed both directly during the consideration of the case on the merits (part 2 of article 122 of the Code), and at the stage of preparing the case for trial (for example, in the order of part 5 of article 63 or part 5 of article 135 of the CAS RF).
In the case of the application of this measure of coercion at the stage of preparation of the case for the proceedings, by virtue of the above Part 1 of Art. 123 of the Code, the parties and the person (body) in respect of whom the issue of applying this measure of procedural coercion is being considered must be notified of the time and place of the court session. The court session must be appointed with a calculation that allows the parties and such a person (body) to be notified of the time and place of the court session and sufficient to appear in court and prepare for the issue under consideration in court.
In this case, the court session should be conducted according to the general rules of court proceedings. The failure of the parties and the person (body) himself to appear at the hearing is not an obstacle to considering this issue on the merits.
When imposing a fine during the consideration of an administrative case on the merits, the court must notify the person (body) in respect of whom the issue of applying a measure of procedural coercion is being considered, and clarify the significant issues related to the imposition of a judicial fine.
Since the simplified procedure for considering cases does not provide for the participation in the consideration of cases of the parties and (or) persons (bodies), as well as in order to respect the rights of participants in the process, consideration of this issue in the manner of Ch. 33 CAS RF is impossible.
19. Question: Is it necessary to take into account the requirements of Art. 63 CAS to provide an official with 5 days to present evidence, or one should be guided by Part 5 of Art. 135 CAS, which states that a fine may be imposed on an official in case of failure to present objections and evidence within the time limit set by the court?
Answer: According to Part 4 of Art. 63 CAS RF if the person from whom the court is demanding evidence is unable to present it at all or within the time period established by the court, he is obliged to notify the court about this within five days from the date of receipt of a copy of the ruling on the demand for evidence and (or) the request and indicate the reasons for which the required evidence cannot be presented.
Taking into account the direct regulation of the law, such a person has at least five days to notify the court about the impossibility of presenting evidence.
Based on this prescription, upon requesting evidence within a certain period, which is defined in Part 5 of Art. 135 of the CAS RF, it is necessary to provide the time provided for in Part 4 of Art. 63 CAS RF.
20. Question: Does the requirement specified in Part 7 of Art. 96 of the CAS RF, on posting information about the time and place of the court session no later than 15 days before the start of the court session, for the term of the appointment of the preliminary court session, taking into account the right of the court to open the court session in the manner prescribed by Part 2 of Art. 139 CAS RF?
Answer: In accordance with Art. 138 of the CAS RF, the preliminary court session is held according to the general rules of court proceedings with drawing up a protocol and audio recording.
Due to the fact that in the preliminary court session, issues affecting the further movement of the case (obtaining explanations, presenting evidence, suspension or termination of an administrative case, leaving an administrative claim without consideration) are subject to resolution, compliance with part 7 of Art. 96 of the CAS RF, the deadline for posting information about the time and place of the preliminary court session is mandatory.
Part two of Art. 139 of the CAS RF determines the possibility of starting a trial on the merits after the preparation of the case and the completion of the preliminary court session and, thereby, on the specified in part 7 of Art. 96 of the CAS RF, the period for notification of the day of the preliminary court session does not affect.
In addition, based on the requirements of Part 2 of Art. 139 of the CAS RF, it follows that after the completion of the preliminary court session until the day of the hearing on the merits, compliance with the fifteen-day time limit is not required.
21. Question: Can a judge, outside the court session, resolve the issue of consolidation or separation of administrative claims?
Answer: According to ch.h. 1 and 2 tbsp. 136 of the CAS RF, the court may, by its ruling, combine into one proceeding for joint consideration and resolution of several homogeneous administrative cases in the proceedings of the court, or may separate one administrative claim or several combined claims into a separate proceeding, if it deems it expedient to separate consideration of the stated claims.
At the same time, the consideration of administrative cases on challenging the actions and decisions of military officials and bodies is carried out according to general rules with the peculiarities established by Ch. 22 CAS RF.
As follows from Art. 224 of the CAS RF, the court, in the manner prescribed by Article 136 of this Code, has the right to combine into one proceeding for joint consideration and resolution of several administrative cases pending by the court on challenging the same decision, action (inaction) of a body, person endowed with state or other public powers, including in the event that such a decision, action (inaction) is contested in various parts and (or) by several administrative plaintiffs.
Based on the prescriptions of Part 4 of Art. 136 of the CAS RF, the issue of joining cases or separating claims, as well as refusal to satisfy the relevant petition, is resolved in the definition, which, by virtue of Ch. 19 CAS RF may be issued based on the complexity of the issue being resolved, both outside and in court (for example, when preparing a case for trial), but before the adoption of a judicial act, which ends the consideration of an administrative case in a court of first instance (part 3 Article 136).
It seems that after the appointment of a court session on the case, this issue is subject to resolution only in a court session with the participation of the parties and with the issuance of a separate written ruling, since at this stage the persons participating in the case have the right to participate in the adoption of all procedural decisions, to declare their position on the case, apply for all emerging issues and so on.
The appointment of the case to trial on the merits to the extent of the claims accepted for the court proceedings, about which the parties are notified, in this regard, makes it impossible for the judge to resolve this issue alone outside the court session.
22. Question: Is a protocol being kept in the course of preparing an administrative case for trial according to the rules established in Art. 135 and 204 CAS RF?
Answer: According to Art. 132 and 135 of the CAS RF, preparation for the trial is carried out by the judge alone outside the court session; 135 CAS RF events.
By virtue of the same rules in conjunction with Art. 204 of the same Code, the keeping of the minutes of the court session is carried out only in cases directly provided for by the CAS RF.
As follows from Ch. 13 of the CAS RF, which regulates the preparation of the case for trial, in the course of the measures carried out within its framework, the recording is carried out only in the cases provided for by this code, in particular, during the preliminary court session.
A study of the existing law enforcement practice shows that in some garrison military courts (109, Magnitogorsk and Nizhniy Tagil), contrary to the stated instructions, a protocol is kept when preparing a case, which is referred to as a protocol of a separate procedural action outside the court session. This protocol is signed by the judge and the clerk of the court session.
In fact, it displays the composition of the court, the presence of taps, arbitrary selective implementation of the measures specified in Art. 135 of the CAS RF, as well as unnecessarily almost literal volumetric reproduction of procedural rights provided for in Art. Art. 45, 226 CAS RF.
Meanwhile, such an understanding does not correspond to the Law.
Under the commission of a separate procedural action in administrative cases outside the court session is understood, in particular, the study and examination of written and material evidence that is impossible or difficult to deliver to the court (investigated and examined at their location or in another place determined by the court, Art.74 CAS RF), execution of letters rogatory (Article 67 of the RF CAS), examination (Article 79 of the RF CAS), etc.
In addition, in the case of keeping records when preparing a case for consideration on the merits, the parties have the right, accordingly, to familiarize themselves with such a protocol and submit their comments to it, which entails the need for their consideration and the subsequent possibility of appealing the results of considering the comments.
Meanwhile, the implementation of these actions at the preparatory stage on the eve of the trial of the case on the merits is not provided for by the legislation.
Thus, the drawing up of the protocol, as well as the audio recording during the preparation of the administrative case for the trial, is not carried out.
23. Question: Can a prosecutor, an interpreter, a specialist or an expert participate in a court session conducted using videoconferencing systems?
Answer: As follows from Part 3 of Art. 142 of the CAS RF on the participation in the court session of persons whose presence is necessary for the correct consideration of an administrative case, through the use of videoconferencing systems, the court must issue an appropriate ruling. Copies of such a ruling, no later than the next business day after the day the ruling is issued, shall be sent to the relevant participants in the trial, as well as to the appropriate court or institution where the videoconference will be organized.
Thus, a prosecutor, translator, specialist or expert has the right to participate in a court session conducted by using videoconferencing systems in accordance with the decision of the court in which the administrative case is being processed.
24. Question: What to do in case of a technical failure of the audio recording system:
If a technical glitch was detected during a court hearing?
If a technical glitch is detected after a court hearing?
Answer: As follows from Art. 204-205 CAS RF in each court session, audio recording should be kept and a written protocol should be drawn up.
Thus, within the meaning of the law, the audio protocol is an integral part of the written protocol. The absence of an audio protocol also means the absence of a written protocol, which, in accordance with Art. 310 of the CAS RF entails the unconditional cancellation of the court decision adopted based on the results of the consideration of the administrative case.
Taking this into account, if a technical failure of audio recording is established during the court session, then the court, in accordance with Art. 152 of the CAS RF must postpone the trial of the administrative case.
It should be noted that according to the same rule, after the postponement of the administrative case, the court proceedings begin over again.
In view of the peculiarities of the storage of the audio recording in the case, due to which it can be damaged after the completion of the trial, it is necessary, after the court decision, to provide a backup, permanently stored copy of the audio record so that it can be restored.
25. Question: Do the explanations contained in clause 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 No. 52 "On the timing of consideration by the courts of the Russian Federation of criminal, civil cases and cases of administrative offenses" apply to the procedure for calculating the term of consideration of an administrative case? in cases of involving administrative co-plaintiffs, co-defendants or interested persons in the case, replacing an improper administrative defendant, and also - by analogy with Part 3 of Art. 39 of the Code of Civil Procedure of the Russian Federation - when changing the basis or subject of an administrative claim, increasing the amount of claims?
Answer: Clause 7 of the above resolution of the Plenum of the Supreme Court of the Russian Federation provides that since, if the co-defendant or co-defendants are involved in the case (part 3 of Article 40 of the Code of Civil Procedure of the Russian Federation), the replacement of the inappropriate defendant with the proper one (part 1 of Article 41 of the Code of Civil Procedure of the Russian Federation) preparation and consideration of the case in court proceedings are carried out from the very beginning, the course of the period for considering the case provided for by the Civil Procedure Code of the Russian Federation, by analogy with the provisions of Part 3 of Article 39 of the Code of Civil Procedure of the Russian Federation, should begin from the date of the relevant procedural action.
In addition, according to the same explanations of the Plenary Session, the period for considering the case should be calculated in the same way when a third party enters into the case, declaring independent claims regarding the subject of the dispute, since, by virtue of Part 1 of Article 42 of the Code of Civil Procedure of the Russian Federation, this participant in the legal relationship enjoys all the rights and obligations of the plaintiff, including the right to change the basis of the claim, increase the amount of claims.
As stated in part 7 of Art. 41, part 3 of Art. 43, part 6 of Art. 47 of the CAS RF, after administrative co-plaintiffs, co-defendants enter the administrative case, replace the inappropriate administrative defendant with a proper one, as well as in the case of an interested person entering the case, the preparation for the trial and the trial begin from the beginning. Accordingly, the course of the period for considering the case, provided for by the CAS RF, must begin from the date of the relevant procedural action.
The third part of Art. 39 of the Code of Civil Procedure of the Russian Federation establishes that in case of a change in the basis or subject of a claim, an increase in the size of claims, the duration of the consideration of the case, provided for by this Code, begins from the date of the relevant procedural action.
At the same time, part one of Art. 46 of the CAS RF, providing for the right of the administrative plaintiff to change the basis or subject of the administrative claim, does not contain an indication of the calculation of the term for the consideration of an administrative case from the very beginning.
In accordance with Part 4 of Art. 2 of the CAS RF in the absence of a rule of procedural law governing relations arising in the course of administrative proceedings, the court applies the rule governing similar relationships (analogy of the law).
In this regard, by analogy with Part 3 of Art. 39 of the Code of Civil Procedure of the Russian Federation, it appears that when the basis or subject of an administrative claim is changed, the size of administrative claims increases, the duration of the consideration of an administrative case, provided for by the CAS RF, begins from the date of the relevant procedural action.
26. Question: Should one be guided by the answer to question no. 2, given in the review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2005, when calculating the period for consideration of an administrative case according to the rules of analogy?
Answer: The review of the judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2005 contains the question of whether it is necessary to exclude from the general term for considering a civil case the term set by the court when the statement of claim is left without movement. According to the answer given by the Supreme Court of the Russian Federation, if the statement of claim is left without movement, if the applicant has timely eliminated the indicated deficiencies in accordance with Art. 136 of the Code of Civil Procedure of the Russian Federation, the period for considering the case should be calculated from the date of the initial submission of the application to the court, excluding the period provided by the court to correct the shortcomings.
It should be noted that such an answer was given by the Supreme Court of the Russian Federation only for the specific purposes of maintaining judicial statistics, and therefore is posted in the part of the review with the same name.
Meanwhile, in accordance with Part 2 of Art. 130 of the CAS RF, if the person who filed the administrative statement of claim, within the time period established in the ruling on leaving the administrative statement of claim, corrects the shortcomings indicated by the judge, the administrative statement of claim is considered filed on the day of the person's initial appeal to the court. Similar instructions are contained in Part 2 of Art. 136 Code of Civil Procedure of the Russian Federation.
The legislation does not contain other rules for calculating these terms.
27. Question: Will the established Part 1 of Art. 226 of the CAS RF, the term for consideration of an administrative case in the case when, in connection with the cancellation in the appeal procedure of the determination to leave the administrative statement of claim without movement (to return it or to refuse to accept it), the total period from the date of the initial receipt of the claim by the court exceeds two months? What should the judge do in these cases?
Answer: Part one of Art. 226 of the CAS RF establishes that administrative cases on challenging decisions, actions (inaction) of bodies, organizations, persons endowed with state or other public powers are considered by the court within one month from the date of receipt of the administrative statement of claim to the court.
According to part three of the same article and part two of Art. 141 of the CAS RF, the terms for consideration of administrative cases of this category may be extended by the chairman of the court for complex administrative cases by no more than one month.
In case of cancellation on appeal of the determination to leave the administrative statement of claim without movement (to return it or to refuse to accept it), the calculation of procedural terms begins anew from the day the materials are received by the court of first instance.
28. Question: During the court session, is it necessary to personally read out all the rights and obligations of the parties, or can you present them with a protocol with the rights, which they read out and sign them?
Answer: According to Art. 153 of the CAS RF, the presiding judge at the trial is obliged to explain to the persons participating in the case, their procedural rights and obligations.
This prescription does not contain any exemptions, and the CAS of the Russian Federation does not provide for the submission of written documents to the persons participating in the case stating their rights and obligations.
In addition, the signing by the parties of any receipts with rights and obligations does not mean that the judge fulfills the obligation to explain to the persons involved in the case such powers.
Thus, the presiding judge at the trial is obliged to explain to the persons participating in the case their procedural rights and obligations.
29. Question: Is it obligatory to read out the administrative statement of claim and objections to it in the court session, given that their copies have already been delivered to all persons involved in the case?
Answer: In accordance with Art. 156 of the CAS RF, consideration of an administrative case on the merits begins with a report of the administrative case by the presiding judge.
Based on the requirements of this rule, such a report must contain the subject and grounds of the administrative claim, other circumstances that have legal significance for the case, and the content of the requirements for the defendants.
Then, according to Art. 156 and 159 of the CAS RF, the presiding judge asks the parties about their attitude to the claim, and in the absence of a person participating in the case and setting out in written explanations his arguments regarding the administrative claims, the presiding judge announces these explanations.
Thus, the verbatim announcement of the claim is not provided for by the administrative law. A report on the case must be made regardless of the delivery of an administrative claim to the persons involved in the case. The objections to the claim should be announced only after the report of the presiding judge and only in the absence of a person who has stated in written explanations his arguments in relation to the administrative claims. They are also subject to disclosure, regardless of their delivery to other persons involved in the case.
30. Question: Is it necessary for the court to retire to the deliberation room to make a ruling on the application of measures of procedural coercion in the form of a warning, removal from the courtroom?
Answer: As indicated in Part 4 of Art. 117 of the CAS RF, on the application of measures of procedural coercion in the form of a warning or removal from the courtroom, the court issues a ruling, which can be appealed separately from the court's decision.
In accordance with part 2 and paragraph 1 of part 3 of Art. 198 of the CAS RF, if this code provides for the possibility of appealing a ruling separately from a court decision, then the court must issue a ruling in writing in the form of a separate judicial act.
According to Part 5 of Art. 198 of the CAS RF, the ruling of the court in the form of a separate judicial act on the issues resolved during the court session must be made in the deliberation room in accordance with the rules established for making decisions.
Based on the foregoing, for the application of measures of procedural coercion in the form of a warning or removal from the courtroom, the court must retire to the deliberation room to make a ruling.
31. Question: As stated in Part 3 of Art. 46 of the CAS RF, the administrative defendant has the right to recognize an administrative claim in a court of any instance. At the same time, Art. Art. 46 and 157, as well as chapters 15 and 22 of the CAS RF, do not contain instructions on how a judge should act if the administrative defendant recognizes the administrative claimant's claims.
Only in Art. 304 of the CAS RF, which regulates the proceedings in the court of appeal, indicates the possibility of the judges of the named instance making a decision to satisfy the claims made by the administrative plaintiff.
With this in mind, what should be done by the first-instance judge when the defendant recognizes an administrative claim? Is it possible in this case to make a decision to satisfy the administrative claim in accordance with the provisions of Art. 304 RF CAS? Is it enough in the decision to indicate only the recognition of the claim without citing the circumstances established by the court and analyzing the evidence on which the court's conclusions about these circumstances are based?
Answer: In accordance with Part 3 of Art. 46 of the CAS RF, the administrative defendant has the right to recognize the administrative claim in full or in part when considering an administrative case.
In the fifth part of the same article, at the same time, it is provided that the court does not accept the recognition by the administrative defendant of an administrative claim if this contradicts the law or violates the rights of other persons.
Part seven of this provision establishes that in the case provided for in part five, that is, in case of non-acceptance of the recognition of the claim, the court must consider the administrative case on the merits.
Proceeding from the above instructions, when accepting the recognition of an administrative claim as an administrative defendant, the case is not considered on the merits, the evidence in the case is not examined.
As stated in Art. 157 of the CAS RF, an application for recognizing an administrative claim as an administrative defendant or his representative must be entered into the minutes of the court session and signed by the administrative defendant or his representative. A written statement on the recognition of an administrative claim must be attached to the administrative case, which must be indicated in the minutes of the court session. In this case, the court must explain the consequences of the recognition of the administrative claim.
Since, when accepting the recognition of the claim, the administrative case is not considered on the merits and the evidence in the case is not examined, a decision must be made in the case to satisfy the claims made by the administrative plaintiff, as it is regulated in Art. 304 of the CAS RF, and in the reasoning part of the court decision, it is necessary to indicate only the recognition of the claim and its acceptance by the court.
32. Question: Clause 2 of part 6 of Art. 180 of the CAS RF provides that the operative part of the court decision must contain an indication of the resolution of the civil claim. In what cases is it possible to resolve a civil claim in an administrative case?
Answer: As indicated above, the consideration of administrative cases on challenging the actions and decisions of military officials and bodies is carried out according to general rules with the peculiarities established by Ch. 22 CAS RF.
According to Part 3 of Art. 227 of the CAS RF, the operative part of a decision on an administrative case on challenging a decision, action (inaction) must contain the information specified in clauses 4 and 5 of part 6 of Article 180 of this Code (clause 2).
Thus, when resolving administrative cases that are subject to the jurisdiction of the garrison military courts, the provision of paragraph 2 of part 6 of Art. 180 CAS RF are inapplicable and the resolution of a civil claim in such administrative cases is impossible.
33. Question: is the method of restoration of his rights proposed in the statement of claim by the administrative plaintiff as a claim on the claim, or is it just a method of the violated right, which the court determines independently? Is it necessary to refuse a resolution in the application of the method proposed by the plaintiff to restore the violated right, if the court chooses a different method?
Answer: In accordance with Part 2 of Art. 220 of the CAS RF, in the administrative statement of claim on the recognition of illegal decisions, actions (inaction) of a body, organization, person endowed with state or other public powers, there must be a requirement to declare illegal a decision, action (inaction) of a body or official.
The procedural law does not require an indication of the method of restoring violated rights from the administrative plaintiff.
That is, the claim is only a request to declare the decision (action) illegal.
According to Part 2 of Art. 227 of the same Code, the court in its decision must indicate only on the recognition of the contested action unlawful and on the obligation of the administrative defendant to eliminate violations of rights or obstacles to their implementation.
Part three of the same article determines that if it is necessary for the administrative defendant to make any decisions in order to eliminate violations of rights, freedoms and legitimate interests, the court indicates the need to make a decision on a specific issue or take a certain action.
By virtue of a direct indication in this norm, the court indicates a method for restoring violated rights only when it finds it necessary.
Taking this into account, in the decision taken following the consideration of the administrative case, the court has the right to limit itself to issuing an instruction on the obligation of the administrative defendant to eliminate violations of rights or obstacles to their implementation, is not connected with the plaintiff's proposal on a method for restoring violated rights and has the right to determine this method independently.
Based on the foregoing, the resolution of the issue of applying the method of restoring the rights of the plaintiff, including the one proposed by him himself, should be contained only in the reasoning part of the court decision.
34. Question: Is it possible to consider an administrative case not in the manner of simplified (written) proceedings provided for in Chapter 33 of the Code of Administrative Procedure of the Russian Federation, if all the persons participating in the case, duly notified of the time and place of it, did not appear at the hearing? consideration, the appearance of which is not obligatory or is not recognized by the court as obligatory, or representatives of these persons? Is it possible to consider administrative cases under Ch. 22 CAS RF by way of simplified written proceedings.
Answer: As follows from Part 7 of Art. 150 of the CAS RF, if all the persons participating in the case, duly notified of the time and place of its consideration, whose appearance is not obligatory or is not recognized by the court as obligatory, or representatives of these persons, did not appear at the court session, the court considers the administrative case in a simplified manner ( written) proceedings provided for in Chapter 33 of this Code.
It should be noted that the consideration of the case in simplified proceedings, by virtue of Art. 291 CAS RF, is not an obligation, but the right of the court.
The general conditions for the consideration of administrative cases by way of simplified (written) proceedings are set out in Art. 291 CAS RF.
It seems that if an administrative claimant and / or an administrative respondent objected to a decision in such a simplified manner, as well as in cases where an administrative respondent objects to the satisfaction of an administrative claim, the case should be considered according to the general rules of administrative proceedings.
Consideration of administrative cases on challenging decisions of military officials and military command and control bodies in accordance with Ch. 22 of the CAS RF has a number of features related to the fact that the court is not bound by the grounds and arguments of the claim and is obliged to verify the legality of the decision taken in full (part 8 of article 226 of the CAS RF).
Thus, when considering administrative cases on challenging decisions and actions, objections of the parties against the application of a simplified procedure, objections of an administrative defendant against satisfaction of the claim, the consideration of administrative cases should be carried out according to the general rules of administrative proceedings.
35. Question: Is it obligatory to involve the body in which the official performs his duties as a second administrative defendant in a case on challenging the actions of an official? If so, who will be such a body, for example, when challenging the order of a unit commander - a military unit or the Ministry of Defense of the Russian Federation?
Answer: According to Part 2 of Article 221 of the CAS RF, the relevant body, in which the official performs his duties, is involved as the second administrative defendant in an administrative case on challenging the decision, action (inaction) of an official.
With regard to the jurisdiction of military courts, such a body in the event of challenging the actions of the unit commander (head of the institution) will be the military unit (military institution) in which he is doing military service (fulfilling his duties).
The obligation to involve a military unit (institution, etc.) to participate in the case does not follow from the above article.
For example, in an administrative case against warrant officer Kazyuk, who challenged the decision of the unit commander to impose a disciplinary sanction, the court on the basis of Part 2 of Art. 221 KAS RF involved in the case a military unit, of which he is the commander.
Meanwhile, the case in question did not affect any rights and obligations of this part, and the claims were not related to the interests of the military unit and there was no need to involve it in the case. The purpose of bringing the military unit to the case by the court remained unclear.
In this case, the court should not have involved the military unit in the case.
According to Art. 41 of the CAS RF, participation in the case of several administrative defendants (procedural complicity) is allowed if:
The subject of the dispute is the general rights and / or obligations of several administrative defendants;
The rights and (or) obligations of several administrative defendants have one basis;
The subject of an administrative dispute is the homogeneous rights or obligations of subjects of administrative or other public legal relations.
In addition to these conditions, part five of the same article determines that the court of first instance shall involve a body (institution) in the case as an administrative co-defendant in the event that: a) mandatory participation in the administrative case of another person as an administrative defendant is provided for by this Code, or if b) it is impossible to consider an administrative case without the participation of such a body (institution).
In other words, in cases where an administrative case on challenging decisions or actions of military officials and military command and control bodies can be considered without the participation of such a body (institution) and a court decision will not impose any obligations on him, he will not be involved in the case. is subject.
Involvement in the case as a second co-defendant of a military unit (body, institution), in particular, is necessary if the administrative plaintiff claims to reimburse legal costs (Article 105), since military units (institutions) are not exempted from their payment, but compensation is carried out not at the expense of the official, but at the expense of the body (institution) where he performs his duties.
At the same time, if a military unit (institution) is not an independent recipient of federal budget funds and is financially supported by a territorial body of military administration, such a department should be involved in the case not as a co-defendant (since no claims have been filed against it, the requirements on reimbursement of court costs are not claims), but as an interested person.
In view of the relevance of administrative cases related to housing provision for military personnel, it should be noted that when challenging decisions, actions (inaction) of officials of military housing authorities (housing commission of the unit, Federal State Institution "Central Regional Housing Administration" of the Ministry of Defense of the Russian Federation, "Rosvoenipoteka", etc. ), the involvement of such bodies to participate in the case in accordance with Part 2 of Art. 221 of the CAS RF as co-defendants is necessary, since these officials make decisions not on their own behalf, but on behalf of these bodies, and the obligation to provide housing is assigned not to officials, but to special housing authorities.
36. Question: What procedural document must be drawn up when extending the term for consideration of an administrative case and who should draw it up, the judge or the chairman, who authorizes the extension?
Answer: By virtue of Art. 226 and part 2 of Art. 141 of the CAS RF, administrative cases on challenging decisions, actions (inaction) are considered by the court within one month. This period can be extended by no more than one month, but only by the chairman of the court and only in complex administrative cases.
Based on these requirements, the issue of extending the term for consideration of an administrative case is decided outside the court session.
According to Part 1 of Art. 198 CAS RF, judicial decisions of the court of first instance, which do not resolve the case on the merits, are issued in the form of court rulings.
As established in the second part of the same article, if the issue on which the ruling is made is decided by the court outside the court session, the court must issue a ruling in the form of a separate judicial act.
Taking into account the direct indication in the law on the possibility of extending the term for the consideration of the case by the chairman of the court, a ruling on the extension of the term can be made only by the specified person.
37. Question: In what cases can the court go beyond the stated requirements, the subject of the claim, the grounds and arguments, or the norms of substantive law indicated by it?
Answer: According to Part 1 of Art. 178 of the CAS RF, the court makes a decision on the claims filed by the administrative plaintiff. The court may go beyond the stated requirements (the subject of the administrative claim or the grounds and arguments given by the administrative plaintiff) in the cases provided for by this Code.
By virtue of a direct indication in the law of the CAS RF, in relation to administrative cases on challenging decisions and actions (inaction), it does not provide for cases when the court may go beyond the stated requirements or the subject of an administrative claim.
However, as follows from Part 8 of Art. 226 of this Code, in cases of this category, the court is not bound by the grounds and arguments contained in the administrative statement of claim and is obliged to verify their legality in full.
Since the grounds for an administrative claim are factual circumstances, the plaintiff's indication of a specific legal norm to substantiate the claim is not decisive when a judge decides what law should be followed when resolving a case.
38. Question: In the course of consideration of the administrative claim, the administrative defendant voluntarily canceled the contested order, while the administrative claimant dropped the claim. In Art. 194 of the Code of Administrative Procedure of the Russian Federation, as grounds for termination of proceedings in the case, both the waiver of the claim and the cancellation of the contested decision by the administrative defendant are provided. On which of the above grounds should the administrative proceedings be terminated, given the fact that, in accordance with Art. 113 of the CAS RF, the issue of the distribution of procedural costs depends on the grounds for terminating the proceedings.
Answer: In Art. 194 and 225 of the CAS RF indicate two groups of grounds for terminating administrative proceedings, when the court must and when it has the right to make such a decision.
If the administrative plaintiff abandoned the administrative claim and the refusal was accepted by the court, the court must terminate the proceedings (clause 3 of part 1 of article 194, part 1 of article 225).
However, if the contested decision is canceled or revised and ceased to affect the rights, freedoms and legitimate interests of the administrative plaintiff, the court has the right to terminate the proceedings (part 2 of article 194, part 2 of article 225).
With this in mind, the unconditional basis for the termination of the case shall apply.
According to the general rule specified in Art. 113 of the CAS RF, if the administrative plaintiff refuses an administrative statement of claim, the court costs incurred by the administrative defendant are not reimbursed.
Meanwhile, as indicated in the same norm, if the administrative plaintiff does not support his claims due to the voluntary satisfaction of them by the administrative defendant after the submission of the administrative statement of claim, all court costs incurred by the administrative plaintiff in the case, including the costs of paying for the services of a representative, at the request of the administrative claimant, are recovered from the administrative respondent.
In this regard, in order to correctly resolve the case, when the administrative plaintiff declares the refusal of the claim, it is necessary to find out from him the reasons for the refusal, to establish whether the administrative defendant has eliminated the violation of the plaintiff's rights as a result of the administrative claim, and also to determine whether the plaintiff's rights have been fully restored. In addition, other significant circumstances in the case should be taken into account, such as the presence of other consequences of canceled decisions, etc.
The decision to reimburse legal costs should be made taking into account these circumstances.
39. Question: Is it necessary to indicate the number of the administrative case in all definitions?
Answer: According to the interrelated provisions of paragraph 3 of part 1 and part 3 of Art. 199 of the CAS RF, the number of the administrative case is subject to indication only in determinations issued in the form of a separate judicial act. This number does not need to be specified in the protocol definition.
40. Question: How should the provisions on the content of the written minutes of the court session, established by Part 4 of Art. 205 CAS RF? Is it obligatory to reflect the explanations of the parties and the testimony of witnesses, etc., in the written record of the court session, while there is an audio record? Should the minutes of the court session, in the presence of audio recordings, contain instructions for explaining to the participants their rights and obligations, testimony of witnesses and explanations of experts, information about the announcement of written evidence, the content of the debate, information about the announcement and explanations of the court's decision, as well as the procedure for its appeal?
Answer: In accordance with Part 3 of Art. 205 of the CAS RF, the minutes of the court session must indicate:
1) the date and place of the court session;
2) the time of the beginning and the end of the court session;
3) the name of the court considering the administrative case, the composition of the court and information about the secretary of the court session;
4) the name and number of the administrative file;
5) information about the appearance of the persons participating in the case, their representatives, witnesses, experts, specialists, translators;
6) information on the explanation to the persons participating in the case, their representatives, witnesses, experts, specialists, translators of their procedural rights and obligations;
7) information on the warning about the criminal liability of the translator for knowingly incorrect translation, witnesses for giving knowingly false testimony and refusal to testify, an expert for giving a knowingly false opinion;
8) orders of the presiding judge of the court session and rulings issued by the court in the courtroom without being removed to the deliberation room;
9) oral statements, petitions and explanations of the persons participating in the case, their representatives;
10) agreements between the parties on the factual circumstances of the administrative case and the stated requirements and objections;
11) testimony of witnesses, explanations by experts of their conclusions;
12) consultations and explanations of specialists;
13) information on the announcement of written evidence, data on examination of material evidence, listening to audio recordings, viewing video recordings;
16) information on the announcement and on the explanation of the content of the court decision and court rulings, on the explanation of the procedure and term for their appeal;
17) information on the explanation to the persons participating in the case, their representatives of the rights to familiarize themselves with the protocol and submit comments on it;
18) a note on the use of stenography, audio and (or) video recording, video conferencing systems and (or) other technical means during the court session;
19) the date of drawing up the minutes.
Despite the fact that Part 4 of Art. 205 of the CAS RF allows not to include all of the information listed in the court record, for the purpose of objectivity and compliance with the legally guaranteed rights of participants in administrative proceedings in the court record, which is the main means of proof, it is necessary to indicate all the information contained in the above part three of the same article of the Code ...
41. Question: Are the remarks on the record subject to consideration at the hearing? Can the ruling on consideration of comments on the protocol be independently appealed in the appeal procedure?
Answer: Parts four and five of Art. 207 of the CAS RF determine that the comments on the minutes of the court session are considered by the judge who signed it without notifying the persons participating in the case. A court ruling is issued on the acceptance of comments on the protocol or on their full or partial rejection, which, together with the comments, is attached to the case.
In connection with the indication of the resolution of this issue without notifying the persons participating in the case, the comments on the protocol are considered without a court session.
In accordance with Art. 202 of the CAS RF, the ruling of the court of first instance may be appealed separately from the appeal against the ruling of the court, if this is provided for by this Code or if the ruling of the court interferes with the further movement of the administrative case. Objections to a court ruling, which are not subject to appeal separately from the appeal against a court decision, may be set forth when appealing against a court decision.
As indicated by the Constitutional Court of the Russian Federation in the rulings dated July 18, 2006 No. 363-O and dated December 18, 2007 No. 836-O-O, issued under the identical provisions of Art. 232 of the Code of Civil Procedure of the Russian Federation, and applicable in administrative proceedings, since the purpose of bringing comments to the minutes of the court session and their consideration is to fill in incompleteness and correct inaccuracies, and the persons who brought comments must formulate their attitude to the protocol in writing, oral proceedings and consideration remarks on the protocol in the court session do not seem necessary. Constitutionally significant in this case is that the court is obliged to consider the comments, as well as the fact that if they are rejected, the applicant is given the opportunity to state his attitude to the information contained in the protocol in the appeal.
42. Question: Is it necessary in the operative part of the court decision to indicate which specific normative legal acts do not correspond to the contested decisions, actions (inaction)?
Answer: According to Part 2 of Art. 227 of the CAS RF, the court in its decision is obliged to indicate the recognition of the contested action unlawful and the obligation of the administrative defendant to eliminate violations of rights or obstacles to their implementation.
Part three of the same article establishes that the operative part of a decision on an administrative case on challenging a decision, action (inaction) must also contain an indication of the recognition of the contested decision, action (inaction) that does not comply with regulatory legal acts.
Taking this into account, in the operative part of the court decision, it is necessary to indicate which specific regulatory legal acts the contested decisions, actions (inaction) do not correspond to.
43. Question: Is it always in the operative part of a decision on administrative cases on challenging decisions, actions (inaction) of military command and control bodies and military officials the procedure and deadline for its execution should always be indicated?
Answer: The requirements for the operative part of a decision in an administrative case on challenging decisions, actions (inaction) are set out in Part No. 2 and 3 st. 227 CAS RF.
As indicated in part three of this article, the court may, in the operative part of the decision, indicate the term for eliminating violations of the rights and freedoms of the plaintiff, if it deems it necessary.
Thus, the law does not contain the obligation of the court in any case to establish such a term. At the same time, by virtue of the aforementioned norm, the court does not have the right to independently determine the procedure for the execution of the court decision, since such powers given by Part. 2 and 3 st. 227 CAS RF does not endow the court.
Based on these instructions, it should be taken into account that since the law refers the indication to the term of execution of the court decision, depending on the need, such a need must be justified in the reasoning part of the adopted court decision.
44. Question: In what cases, when making a decision on an administrative case, in the operative part, can the official, whose decisions of actions (inaction) have been challenged, a different period for reporting on the execution of a decision in an administrative case, and not the monthly one established by Part 9 of this Article term?
Answer: Part 3 of Art. 227 CAS in a court decision on an administrative case, the court on challenging decisions, actions (inaction), if necessary, has the right to set a time limit for eliminating violations of the plaintiff's rights and (or) indicate the need to report the execution of the decision to the court and the plaintiff within one month from the date of the decision court into legal force. The court may, by virtue of the same norm, establish a different (and not a month) period for reporting on the execution of a decision in an administrative case.
That is, in view of the direct indication in the Law, the period for notification of the execution of the court decision can be either less or more than one month, taking into account the need.
Obviously, the duration of such a period should be determined by the court depending on the significance of the violated right to be restored, the presence of other consequences associated with the restoration of rights and freedoms (for example, if the court is dealing with another administrative or civil case, suspended pending the resolution of this administrative case ), as well as in cases of reinstatement in military service, non-payment of salaries, when, as a result, the plaintiff is put in a difficult financial situation, etc.
As indicated above, since the law assigns the determination of this time period to the discretion of the court, depending on the specific circumstances of the case, such a determination of the time period must be justified in the reasoning part of the court decision being adopted.
45. Question: Is the audio record of the court session carried out when considering an administrative case in the manner of simplified (written) proceedings, that is, without oral proceedings? If so, what is the difference between the procedure established by Chapter 33 of the CAS RF, apart from the procedure for appeal, from the usual procedure for considering administrative cases in the absence of the parties, and in what cases can it be used? action) do not comply (clause of the court indicate to which specific regulatory legal acts the contested decisions, acting
Answer: As follows from Part 1 of Art. 292 of the CAS RF by way of simplified (written) proceedings, administrative cases are considered without an oral hearing.
Proceeding from this, when considering an administrative case by way of simplified (written) proceedings, audio recording is not carried out and the minutes of the court session are not drawn up in writing.
Features of simplified (written) administrative proceedings are indicated in Art. 292 CAS RF.
Taking into account the jurisdiction of the military courts, as indicated above, the consideration of administrative cases on challenging the decisions of military officials and military command bodies, carried out in accordance with Ch. 22 of the CAS RF, has a number of features related to the fact that the court is not bound by the grounds and arguments of the claim and is obliged to verify the legality of the decision taken in full (part 8 of article 226 of the CAS RF).
At the same time, there is no possibility of clarifying the completeness of the court's investigation of the circumstances of the case and the available evidence in the simplified proceedings, carried out without keeping a protocol and audio recording, is absent.
Thus, when considering administrative cases on challenging decisions and actions, objections of the parties against the application of a simplified procedure, objections of an administrative defendant against satisfaction of the claim, the consideration of administrative cases should be carried out according to the general rules of administrative proceedings.
46. Question: Should an administrative case be sent to the court of appeal, if the appeal is withdrawn before the expiration of the time limit for appeal by the appellant, since Part 3 of Art. 303 CAS RF provides for the possibility of accepting a waiver of a complaint only by an appellate court?
Answer: According to Part 2 of Art. 301 CAS RF if the case is not sent to the court of appeal, the appeal must be returned to the person who filed the appeal, at his request.
Accordingly, in case of withdrawal of the appeal and its return to the appellant, the administrative case is not subject to referral to the court of appeal.
It should also be recalled that the return of the appeal must be carried out on the basis of the judge's decision.
47. Question: Is it necessary to issue a writ of execution for compulsory execution of a decision in an administrative case before the expiration of the time period established by the court to eliminate the violations committed?
Answer: According to the general rule established by Art. 353 CAS RF, the writ of execution is issued by the court after the entry into force of the judicial act. If the judicial act is subject to immediate execution, the writ of execution is issued after the adoption of such a judicial act.
Within the meaning of the Law, a writ of execution is a document for applying a court decision to compulsory execution.
Based on this, if the court is in the order of Part 3 of Art. 227 CAS RF will set the defendant a deadline for eliminating the violations, he is given time to voluntarily execute the judgment.
