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On behalf of the Russian Federation

DECISION OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of March 20, 2017 No. AKPI17-78

About recognition partially invalid Item 24 of Administrative regulations of the Federal Migration Service on provision of the state service in issue and replacement of the passport of the citizen of the Russian Federation proving the identity of the citizen of the Russian Federation in the territory of the Russian Federation, утв. Order of FMS of Russia of 30.11.2012 No. 391

The Supreme Court of the Russian Federation in structure:

judge of the Supreme Court of the Russian Federation Ivanenko Yu. G.,

in case of S.'s secretary,

with participation of the prosecutor Korobkov E. I.,

having considered in proceeding in open court administrative case according to the administrative action for declaration K.D. about recognition invalid Item 24 of Administrative regulations of the Federal Migration Service on provision of the state service in issue and replacement of the passport of the citizen of the Russian Federation proving the identity of the citizen of the Russian Federation in the territory of the Russian Federation approved by the order of the Federal Migration Service of November 30, 2012 No. 391,

established:

No. 391 is approved by the order of the Federal Migration Service of November 30, 2012 Administrative regulations of the Federal Migration Service on provision of the state service in issue and replacement of the passport of the citizen of the Russian Federation proving the identity of the citizen of the Russian Federation in the territory of the Russian Federation (further - Administrative regulations). The regulatory legal act is registered in the Ministry of Justice of the Russian Federation on May 27, 2013, registration number 28532, is published in "The Russian newspaper" on June 7, 2013, No. 122.

Item 24 (Certificate of birth) of Administrative regulations provides that in case of absence at the citizen of the certificate of birth to it the REGISTRY OFFICE in the territory of the Russian Federation in place of registration of the birth or at the place of residence for receipt of the repeated certificate of birth is recommended to address to body.

In case of impossibility of submission of the certificate of birth (the repeated certificate of birth) in case of registration of the birth by competent authorities of foreign state, and also in case of confirmation by body the REGISTRY OFFICE in the territory of the Russian Federation of impossibility of issue of the certificate of birth (the repeated certificate of birth), the passport can be issued based on other documents confirming the data necessary for its obtaining.

This Item has the reference to the paragraph the fifth Item 11 of the Regulations on the passport of the citizen of the Russian Federation approved by the order of the Government of the Russian Federation of July 8, 1997 No. 828.

K.D. appealed to the Supreme Court of the Russian Federation with the administrative action for declaration about recognition invalid Item 24 of Administrative regulations, referring to its contradiction to Item 13 of the Regulations on the passport of the citizen of the Russian Federation, subitem 7.4 of the Regulations on the Federal Migration Service approved by the order of the Government of the Russian Federation of July 13, 2012 No. 711. The requirement is motivated that the certificate of birth is not specified by the Government of the Russian Federation as the obligatory document which shall be represented by citizens for replacement of the passport of the citizen of the Russian Federation proving the identity of the citizen of the Russian Federation in the territory of the Russian Federation. Non-presentation of such document formed the basis for K.D. refusal in provision of the state service in replacement of the passport in connection with change of surname as a result of marriage therefore she considers that the challenged normative provision violates its right to replacement of the passport.

The presidential decree of the Russian Federation of April 5, 2016 No. 156 "About enhancement of public administration in the field of control of drug trafficking, psychotropic substances and their precursors and in the field of migration" abolishes the Federal Migration Service, its functions and powers are delegated to the Ministry of Internal Affairs of the Russian Federation (Items 1, 2).

In written objections specified the administrative action for declaration Ministry of Internal Affairs of the Russian Federation that the Administrative regulations are published by authorized federal executive body within the powers conferred to it, the challenged normative provision corresponds to the current legislation and does not violate the rights and interests of the administrative claimant protected by the law.

The Ministry of Justice of the Russian Federation in written explanations believed that Item 24 of Administrative regulations contradicts Regulations on the passport of the citizen of the Russian Federation regarding establishment of subsidiary duty on submission of the certificate of birth for replacement of the passport in connection with change of surname therefore the requirement of the administrative claimant is subject to satisfaction.

In judicial session the representative of the administrative claimant B. specified the requirement of the administrative claim and asked to recognize not acting Item 24 of Administrative regulations in that part in which this regulation carries the certificate of birth to the documents necessary for provision of the state service in replacement of the passport.

Representatives of the Ministry of Internal Affairs of the Russian Federation And. and L. did not recognize the administrative claim.

The representative of the Ministry of Justice of the Russian Federation of K.N. considered that the administrative claim is subject to satisfaction.

Having listened to explanations of the representative administrative claimant B., objection of representatives of the Ministry of Internal Affairs of the Russian Federation And., L., explanations of the representative of the Ministry of Justice of the Russian Federation of K.N., having checked the challenged normative provision for compliance to the regulatory legal acts having big legal force, having heard the conclusion of the prosecutor of the Prosecutor General's Office of the Russian Federation Korobkov E. I., believing that the declared requirement is subject to satisfaction, the Supreme Court of the Russian Federation finds the administrative action for declaration subject to satisfaction on the following bases.

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