of March 25, 2008 No. 6-P
On the case of check of constitutionality of part 3 of Article 21 of the Arbitral Procedure Code of the Russian Federation in connection with claims of Partnership of Builders private company, Nizhnekamskneftekhim open joint stock company and TNK-BP Holding open joint stock company
On behalf of the Russian Federation
Constitutional court of the Russian Federation as a part of the chairman - the judge M. I. Kleandrov, judges Yu. M. Danilov, L. M. Zharkova, V. D. Zorkin, S. M. Kazantsev, N. V. Melnikov, N. V. Seleznyov, O. S. Hokhryakova,
with participation of the representative of Tovarishchestvo zastroyshchikov Ltd lawyer A. L. Orlov, the representative of JSC TNK-BP Holding - the lawyer V. V. Kuznetsov, the permanent representative of the State Duma in the Constitutional Court of the Russian Federation A. N. Kharitonov, the representative of the Federation Council - the doctor of jurisprudence E. V. Vinogradova, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation M. V. Krotov,
being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Item 3 parts two of Article 22, Articles 36, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
considered in open session case on check of constitutionality of part 3 Articles of 21 AIC of the Russian Federation.
Reason for consideration of the case were claims of Tovarishchestvo zastroyshchikov Ltd, JSC Nizhnekamskneftekhim and JSC TNK-BP Holding. The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Russian Federation the legislative provision challenged by applicants.
As all claims concern the same subject, the Constitutional Court of the Russian Federation, being guided by article 48 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", connected cases on these claims in one production.
Having heard the message of the judge-speaker Yu. M. Danilov, explanation of agents of the parties, speech of the representative from the Supreme Arbitration Court invited in meeting Russian Federatsiizamestitelya Predsedatelya of the Supreme Arbitration Court of the Russian Federation of T. K. Andreyeva, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation established:
1. Article of 21 AIC of the Russian Federation provides the bases on which the judge of Arbitration Court cannot be involved in consideration of the case and is subject to branch (Items 1-7) in part 1, and fixes provision according to which on the bases provided by Items 1-4 of part of 1 this Article, also arbitral assessor is subject to branch in part 3. Respectively the paragraph of the second part 4 Articles of 19 AIC of the Russian Federation obliges Arbitration Court in case of consideration of the application about attraction to consideration of the case of the chosen candidate of the arbitral assessor to check whether there are parts 1 of article 21 of this Code of circumstance established by Items 1-4 in case of which this candidate cannot participate as the arbitral assessor in consideration of specific case and which availability is the refusal basis in allowance of the application about its attraction to consideration of the case.
The called provisions of the Arbitral Procedure Code of the Russian Federation causing removal of the arbitral assessor availability of the bases listed in Items 1-4 of part of 1 of its Article 21, do not suppose possibility of removal of the arbitral assessor on other bases of removal of the judge specified regarding 1 this Article, namely: if he personally, is directly or indirectly interested in the outcome of the case or there are other circumstances which can raise doubts in his impartiality; if it is or earlier was in job or other dependency from the face, participating in case, or his representative; if he made public statements or gave assessment on the substance of case in point (Items 5-7).
Proceeding from it the Arbitration Court of the city of Moscow when considering the case on the claim of the Government of Moscow to Tovarishchestvo zastroyshchikov Ltd determination of March 1, 2007 refused allowance of the application of the defendant about withdrawal of the candidate of the arbitral assessor chosen by the claimant - the citizen D. D. Petrushkin heading legal department of the state unitary enterprise of the city of Moscow "Special company under the Government of Moscow". The representative of Tovarishchestvo zastroyshchikov Ltd claimed that D. D. Petrushkin - person dependent on the claimant as the Government of Moscow directly and indirectly (through the director of the specified company appointed to position by the order of the First Deputy Mayor of Moscow) has the right to govern the relations connected with payment to it of the salary and awards and also to apply measures of authority punishment up to dismissal, and therefore is interested in the outcome of the case. The Arbitration Court of the city of Moscow, in turn, referred to the fact that owing to part 3 Articles of 21 AIC of the Russian Federation the arbitral assessor is subject to branch only on the bases provided in Items 1-4 of part of 1 this Article, and, therefore, on other bases specified in it branch cannot be declared to it.
Similar determinations were taken out by Arbitration Courts of the Republic of Tatarstan and the Sakhalin region which refused satisfaction of statements of JSC Nizhnekamskneftekhim and JSC TNK-BP Holding for removal of the arbitral assessors chosen as claimants for participation in consideration of the corresponding cases and did not take arguments of the defendants believing that the chosen candidates are depending on claimants into account and that there are circumstances which allow to doubt their impartiality.
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