of September 27, 2016 No. 36
About some questions of application by courts of the Code of administrative legal proceedings of the Russian Federation
For the purpose of ensuring unity of practice of application by courts of law of the legislation on administrative legal proceedings the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations.
1. Proceeding from the right to appeal of decisions and actions (failure to act) of public authorities, local government bodies, public associations and officials fixed by part 2 of article 46 of the Constitution of the Russian Federation and according to article 1 of the Code of administrative legal proceedings of the Russian Federation (further - KAS Russian Federation, the Code) courts of law, the Supreme Court of the Russian Federation (further also - courts) consider and resolve the cases subordinated to them arising from administrative and other public legal relationship (further - administrative cases):
about protection of the violated or disputed rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of the organizations (parts 1 and 2 of article 1 KAS Russian Federation);
connected with implementation of judicial control of legality and justification of realization of the state and other public powers, including the administrative cases connected with implementation of mandatory judicial control behind observance of rights and freedoms of man and citizen, rights of the organizations in case of implementation of separate administrative imperious requirements to physical persons and the organizations (parts 1 and 3 of article 1 KAS Russian Federation).
The cases arising from the legal relationship which are not based on equality, autonomy of will and property independence of their participants within which one of participants of legal relationship realizes administrative and other public powers of authority on execution and application of the laws and bylaws in relation to other participant belong to the administrative cases considered by rules KAS Russian Federation.
In sense of part 4 of article 1 KAS Russian Federation and part 1 of article 22 of the Civil Procedure Code of the Russian Federation (further - the CCP of the Russian Federation) and also taking into account that the civil laws and obligations arise, in particular, from acts of state bodies and local government bodies (Article 8 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation), disputes on recognition of such acts invalid (illegal) if their execution led to origin, change or the termination of the civil laws and obligations, are not subject to consideration according to the procedure, the provided KAS Russian Federation.
For example, office disputes, including the cases connected with access and passing of different types of public service, municipal service and also the cases connected with appointment and pension payment, realization by citizens of the social rights, the cases connected with provision of housing under the agreement of social hiring, the employment contract of housing stock of social use, the employment contract of specialized housing stock are not subject to consideration by rules KAS Russian Federation.
Are not subject to consideration according to the procedure, provided by the Code, economic disputes and another matters which are connected with implementation of business and other economic activity and are referred by the law to competence of Arbitration Courts (§1 Chapter 4 of the Arbitral Procedure Code of the Russian Federation (further - the AIC of the Russian Federation).
2. According to Item 2 of part 2 of article 1 KAS Russian Federation according to the procedure, provided by the Code, courts consider and resolve administrative cases subordinated to them about contest of decisions, actions (failure to act) of public authorities, other state bodies.
Other state bodies are understood, in particular, as Russian Central Election Commission, other electoral commissions, Audit Chamber of the Russian Federation.
According to Item 3 of part 2 of article 1 KAS Russian Federation according to the procedure, provided by the called code, courts consider and resolve administrative cases about contest of decisions, actions (failure to act) of the non-profit organizations given separate state or other public authority including self-regulatory organizations of subjects of professional activity if the disputed decisions, actions (failure to act) are result of implementation (non-realization) of the specified powers. At the same time the cases on the internal disputes arising between lawyers and Chambers of Advocates, notaries and notarial chambers, mediators and permanent collegiate organ of management of self-regulatory organization of mediators which are not connected with realization of public powers and also between members and governing bodies of other self-regulatory organizations which are subject to permission in claim procedure are not subject to consideration by rules KAS Russian Federation.
Cases on contest of decisions, actions (failure to act) of self-regulatory organizations of subjects of business activity are considered according to the procedure, the provided AIC of the Russian Federation.
3. Owing to part 4 of article 11 KAS Russian Federation everyone has the right to get acquainted in accordance with the established procedure with the judgment which took legal effect on the administrative case considered in proceeding in open court, except as specified restrictions of this right according to the law.
The procedure for realization of this right by persons who are not participants of administrative legal proceedings is regulated by regulations of the Federal Law of December 22, 2008 No. 262-FZ "About ensuring access to information on activity of the courts in the Russian Federation". So, according to part 2 of article 15 of this law texts of the court resolutions which are subject according to the law to publication except for of texts of the court resolutions specified in part 4 of the called Article are posted online "Internet".
4. The judgments affecting the rights and legitimate interests of minors, in full do not appear (are not disclosed). Only the substantive provisions of such decisions irrespective of are subject to announcement, in closed or proceeding in open court case was considered (part 10 of Article 11, part 2 of article 174 KAS Russian Federation).
5. According to part 11 of article 11 KAS Russian Federation of decision of the courts on administrative cases are subject to obligatory publication in the cases provided by the Code. Decisions on cases on contest of regulatory legal acts (Item 2 of part 4 of article 215 KAS Russian Federation) are subject to such publication, in particular.
The question of what is subject to publication (the decision or the message on its acceptance) is allowed by court taking into account the specific facts of the case. At the same time it must be kept in mind that if legal proceedings on the case of contest of regulatory legal act were performed in the closed judicial session, the message on decision making is subject to publication.
6. Acquaintance of persons participating in case with the records made during audio-and (or) video recordings of the closed judicial session, their reproduction are performed in the conditions providing impossibility of their copying and transfer to other persons. Copies of the corresponding records are not issued to persons participating in case (Article 11, Item 5 parts of 1 Article 45, of Article 204, of 205, 207 KAC Russian Federation).
7. During consideration of administrative case it can be announced having rummaged in judicial session. In the period of the announced break the possibility of consideration by court of another matters (part 4 of article 2 KAS Russian Federation, article of 163 AIC of the Russian Federation) is not excluded.
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