17^th CONFERENCE OF CHIEF JUSTICES OF SHANGHAI COOPERATION ORGANISATION
Chief Justice Lebedev’s report on the establishment and development of administrative justice in Russia

Dear Mr. Zhang Ming,

Dear Mr. Shohiyon,

Dear Conference participants,

Protection of the rights of citizens and businesses, observance of the principle of legality in the activities of public authorities and officials are ensured, among other things, through judicial control in the procedure of administrative proceedings, which was enshrined in the Constitution of the Russian Federation.

Part 2 of Article 46 of the Constitution of the Russian Federation provides that decisions and actions (failure to act) of public authorities, local self-government bodies, public associations and officials may be appealed before a court.

In accordance with Part 2 of Article 118 of the Constitution of the Russian Federation, judicial power is exercised through constitutional, civil, administrative and criminal proceedings (in accordance with the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation of 14 March 2020, the above provision of the Russian Constitution has been supplemented with a mention of commercial proceedings).

These constitutional provisions have become the legal basis for the formation and development of administrative judicial proceedings in the Russian Federation.

The Code of Administrative Judicial Procedure of the Russian Federation entered into force on 15 September 2015.

Unlike civil cases and economic disputes, participants in administrative cases are in an unequal legal position, since citizens and organizations are not endowed with the public powers that the authorities and officials have.

In addition, the subject of judicial protection in administrative cases is public law, not private law interests, and the civil law principles of discretion, autonomy of will and freedom of contract are not applied in the field of public law.

In this regard, the principle of competition and equality of the parties in the Code of Administrative Judicial Procedure of the Russian Federation has been supplemented by the active role of the court, which is implemented at all stages of administrative proceedings.

Thus, in the Russian Federation, in administrative cases, the court is granted the right, on its own initiative, to request evidence, recognize the appearance of an official in a court session as obligatory and, if this obligation is not fulfilled, to subject him/her to compelled appearance.

In case of violation of reasonable time limits of legal proceedings, the president of a court has the right to issue a ruling on accelerating the consideration of an administrative case on his/her own initiative.

The courts of the first and appeals instances are not bound by the arguments and grounds stated in the administrative statement of claim or in the appeal.

In addition, in the appeals instance, the court has the right to apply provisional remedies on its own initiative, as well as to suspend the execution of a judgement.

In cases affecting the interests of the general public, a cassation court has the right to go beyond the arguments stated in the cassation appeal.

The Administrative Judicial Procedure Code of the Russian Federation provides for the specifics of distribution of the burden of proof in administrative cases, imposing on the administrative defendant the obligation to prove the legality of the challenged regulatory legal act, decision, action or failure to act.

Thus, administrative plaintiffs, unlike plaintiffs in civil cases and economic disputes, are exempt from the obligation to prove the illegality of the defendant's behaviour.

The social orientation of administrative proceedings is due to the exemption of citizens, who are disabled people of groups I and II, public organizations of disabled people, veterans of the Great Patriotic War, military operations and military service, as well as citizens recognized as indigent, from the obligation to reimburse the other party for the legal costs in an administrative case.

In administrative proceedings, the provisions on the recovery of legal costs in proportion to the amount of satisfied claims, as provided for in the civil and commercial procedural legislation, do not apply.

Therefore, if the stated claims are satisfied – both in full and in part – the legal costs of the administrative case are collected from the administrative defendant in full.

The Plenary Session of the Supreme Court of Russia has adopted 27 rulings including more than 600 legal standings regarding the practice of court consideration of administrative cases.

The Presidium of the Supreme Court of Russia has approved 30 case law reviews that include more than 200 legal standings on court consideration of this category of cases.

On the legislative initiative of the Supreme Court of Russia, three federal laws on modernization of administrative proceedings have been adopted, including the possibility to challenge acts with regulatory properties, containing clarifications of the legislation.

Currently, administrative proceedings are an effective legal institution that enjoys demand.

Last year, the courts of the Russian Federation considered 4.5 million administrative cases, of which more than 99 % were considered within the stipulated procedural time periods.

In 2021, the courts of the Russian Federation considered 6,900 cases on challenge of normative legal acts – over the past 5 years, their number has increased by 2,900 cases or 73 %.

72 % of the claims were satisfied.

Judicial invalidation of a normative legal act should not create legal uncertainty in the relevant area of public relations.

In this regard, Ruling of the Plenary Session of the Supreme Court of Russia of 25 December 2018 includes the legal standing that in this category of cases the court may impose on the administrative defendant the obligation to adopt a new normative legal act if the court finds insufficient legal regulation of public legal relations, which may entail violation of rights, freedoms and legitimate interests of the general public.

The number of cases on challenge of decisions, actions and failure to act of authorities and officials has more than doubled over the past 5 years – from 151,000 cases in 2016 to 327,300 cases in 2021.

In this category of cases, 32 % of the claims were satisfied, while the courts, taking into account the recommendations of the Russian Supreme Court, adhere to a substantive, rather than formal approach to the legality of the challenged decisions, actions and failure to act.

On 28 June this year, the Plenary Session of the Supreme Court of the Russian Federation drew the courts’ attention to the fact that legality cannot be regarded only as formal compliance with the requirements of legal norms, and the courts need to check whether the challenged measures are justified, reasonable and necessary to achieve a legitimate aim, whether their application does not lead to excessive encumbrance of citizens and organizations.

Last year, the courts of the Russian Federation considered 4,400 cases on the award of compensation, of which 76 % of the cases were related to violation of reasonable time for execution of a judicial act, and 24 % of cases were related to violation of reasonable time of trial.

In these categories of cases, 90 % of the claims were satisfied.

The courts take into account the legal standings of the Supreme Court of Russia that compensation is awarded to the applicant regardless of the presence or absence of harm caused as a result of violation of the reasonable time of trial or execution of a judicial act, as well as regardless of the fault of the body or official who committed such a violation.

Administrative proceedings provide protection of citizens’ social rights: 44 % of the claims in the field of healthcare, 60 % of the claims in the housing sector, 67 % of the claims in the field of social security and 90 % of the claims in the field of education were satisfied.

In the entrepreneurial sphere, 40 % of the claims against tax bodies, 55 % of claims against customs bodies and 32 % of claims against antimonopoly bodies were satisfied.

The condition for effective judicial protection is the timely execution of court acts, respect for the rights and legitimate interests of participants in enforcement proceedings.

Therefore, judicial control over the legality of decisions, actions and failure to act on the part of the bailiffs is implemented in administrative proceedings.

Over the past 5 years, the number of cases in this category has increased 4 times – from 54,600 cases in 2016 to 219,500 cases in 2021; 20 % of claims have been satisfied.

The Plenary Session of the Supreme Court of the Russian Federation addressed the issues of application of legislation on enforcement proceedings more than 40 times, and taking into account the legal standings of the Supreme Court of Russia, administrative defendants are obliged to prove the legality of their decisions and actions, as well as the existence of valid reasons for non-execution of court acts within the prescribed period.

Administrative proceedings protect the electoral rights of citizens, and last year, the courts satisfied 32 % of claims on challenge of refusals to register candidates and cancellation registration, as well as 20 % of claims on challenge of decisions, actions and failure to act on the part of local election commissions.

The preventive function is implemented in cases of administrative oversight over persons released from penitentiary institutions, which is established in relation to those convicted of the most dangerous crimes, including crimes against underage persons.

In this category of cases, the court is not bound by the opinion on the term of oversight and types of administrative restrictions set out in the administrative statement of claim.

Last year, the courts of the Russian Federation considered 48,100 cases on the establishment of administrative oversight, in which 97 % applications were granted, and 26,400 cases on the extension of previously established administrative restrictions, in which 98 % of applications were granted.

In connection with issues arising in judicial practice, this year the Plenary Session of the Supreme Court of the Russian Federation will adopt rulings on court consideration of this category of cases and on administrative liability for non-compliance with administrative restrictions and failure to fulfil the obligations established under administrative oversight.

Since 1 October 2019, an unreserved cassation procedure has been implemented, according to which cassation appeals are considered in a court session with the invitation of the parties, and the number of satisfied cassation appeals in administrative cases has increased from 3 % in 2019 to 13 % in 2021.

The Supreme Court of Russia has prepared proposals on improving administrative proceedings, including the possibility to simultaneously file a claim for declaring a decision, action, failure to act of a body or official as illegal and a claim for compensation for moral damage caused by such a decision, action or failure to act.

It is also proposed to provide for mandatory pre-trial settlement in cases on challenge of decisions, actions and failure to act on the part of customs and antimonopoly bodies, to make allow consideration of administrative cases in the courts of appeal, cassation and supervision based on electronic materials generated and certified by the court that holds the paper version of the case materials.

This possibility will be especially in demand in those administrative cases, in respect of which reduced procedural time periods are established, including cases on protection of electoral rights of citizens.

A significant part of the caseload is made up by cases on administrative offenses. Last year, more than 8.9 million cases of this category were considered, and over the past 5 years their number has increased by 2.5 million cases or 39 %.

The Plenary Session of the Supreme Court of Russia has adopted more than 30 rulings on court application of provisions of the Code of the Russian Federation on Administrative Offenses.

Increased attention in court practice is paid to administrative and legal protection of constitutional rights of citizens, including the right to work in conditions that meet the requirements of safety and hygiene, and to remuneration for work without any discrimination and not lower than the minimum wage established by federal law.

Last year, the courts imposed administrative penalties for violation of labour legislation and state regulatory requirements in the field of labour protection upon 933 organizations and 1,100 officials, while the courts take into account that liability for these offenses is also provided for in the absence of properly formalized labour relationship with an employee.

Administrative liability for non-payment of money for the maintenance of children or disabled parents without valid reasons is of great social importance. 114,000 persons were administratively punished for this offence last year – 24 % more than in 2020.

The legal standings of the Supreme Court of Russia provide that only circumstances beyond the control of the debtor, including disability and non-payment of wages, can be recognized as valid reasons for the non-payment of alimony.

A favourable business climate is facilitated by the exclusion of an unreasonable administrative load on businesses, and last year the courts terminated administrative offense cases against 13 % of individual entrepreneurs and legal persons; 15 % were given the most lenient administrative punishment in the form of a warning.

In order to increase access to justice, the Supreme Court of the Russian Federation proposes to provide for alternative jurisdiction rules in the Administrative Offenses Code, according to which appeals against rulings on administrative offenses adopted by officials are allowed either at the place of adoption of the ruling, or at the citizen’s place of residence, at the location of a legal person in respect of which proceedings are being conducted.

A discussion of possible ways to improve justice in administrative cases in the SCO Member States will certainly contribute to further increase of its effectiveness.