Powers of the Supreme Court of the Russian Federation
In accordance with Art. 2 FKZ “On the Supreme Court of the Russian Federation” Supreme Court of the Russian Federation:
1) exercises, in the procedural forms provided for by federal law, judicial supervision over the activities of courts established in accordance with the Federal Law “On the Judicial System of the Russian Federation” and federal laws, considering civil cases, cases to resolve economic disputes, criminal, administrative and other cases within the jurisdiction of these courts , as a supervisory authority, and also within its competence as a court of appeal and cassation;
2) considers cases within its jurisdiction as a court of first instance and on new or newly discovered circumstances.
3) considers administrative cases as a court of first instance: on challenging regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation, federal executive authorities, the Prosecutor General's Office of the Russian Federation, the Investigative Committee of the Russian Federation, the Judicial Department of the Supreme Court of the Russian Federation, the Central Bank of the Russian Federation, the Central Election Commission of the Russian Federation , state extra-budgetary funds, including the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund, as well as state corporations; on challenging non-normative legal acts of the President of the Russian Federation, the Government of the Russian Federation, and the chambers of the Federal Assembly of the Russian Federation; on challenging non-normative legal acts of the Ministry of Defense of the Russian Federation, other federal executive bodies in which federal law provides for military service, relating to the rights, freedoms and legally protected interests of military personnel and citizens undergoing military training; on challenging non-normative legal acts of the General Prosecutor's Office of the Russian Federation and the Investigative Committee of the Russian Federation concerning the rights, freedoms and legally protected interests of military personnel of the military prosecutor's office and military personnel of the military investigative bodies of the Investigative Committee of the Russian Federation; on challenging decisions of the High Qualification Board of Judges and decisions of qualification boards of judges of constituent entities of the Russian Federation on the suspension or termination of the powers of judges and other decisions of these boards; on challenging decisions and actions (inaction) of the Higher Examination Commission on taking the qualification exam for the position of judge; on the suspension of activities or liquidation of political parties, all-Russian and international public associations, on the liquidation of centralized religious organizations that have local religious organizations in the territories of two or more constituent entities of the Russian Federation; on the award of compensation for violation of the right to trial within a reasonable time or the right to execution of a judicial act within a reasonable time in administrative cases within the jurisdiction of federal courts of general jurisdiction with the exception of district and garrison courts; other cases specified in paragraph 4 of Art. 2 of the Law on the Supreme Court of the Russian Federation;
5) considers, as a court of first instance, cases to resolve economic disputes between federal government bodies and government bodies of the constituent entities of the Russian Federation, between the highest government bodies of the constituent entities of the Russian Federation;
6) exercises his right of legislative initiative on issues under his jurisdiction, and also develops proposals for improving the legislation of the Russian Federation on issues under his jurisdiction. Using your right of legislative initiative,
The Supreme Court of the Russian Federation initiated the adoption of a whole set of bills aimed at improving the work of courts, legal proceedings, increasing the independence of judges, and strengthening their status.
At the initiative of the Supreme Court of the Russian Federation, the Laws “On the Status of Judges in the Russian Federation”, “On the Judicial Department at the Supreme Court of the Russian Federation”, “On Enforcement Proceedings”, “On Bailiffs” and a number of others were adopted. The Supreme Court develops and submits to the State Duma draft laws, the need for adoption of which is determined by the needs of judicial practice, improvement of legal proceedings, the judicial system and the status of judges.
7) provides the courts with explanations on issues of judicial practice based on its study and generalization in order to ensure uniform application of the legislation of the Russian Federation;
applies to the Constitutional Court of the Russian Federation with requests to verify the constitutionality of laws, other normative acts and treaties, as well as to verify the constitutionality of a law to be applied in a case considered by it in any instance;
9) issues a conclusion on the presence of signs of a crime in the actions of the President of the Russian Federation when the State Duma of the Federal Assembly accuses the President of the Russian Federation of treason or committing another serious crime;
10) adopts, in accordance with the Criminal Procedure Code of the Russian Federation, a conclusion on the presence of signs of a crime in the actions of the Prosecutor General of the Russian Federation and (or) the Chairman of the Investigative Committee of the Russian Federation in order to make a decision to initiate a criminal case against these persons or to make a decision to involve them as accused in a criminal case, if a criminal case was initiated against other persons or upon the commission of an act containing elements of a crime;
11) resolves, within its competence, issues related to international treaties of the Russian Federation;
12) exercises other powers in accordance with the legislation of the Russian Federation.
The powers of the Supreme Court of the Russian Federation can be changed only by introducing amendments to the Federal Law “On the Supreme Court of the Russian Federation” (Article 2 of the Federal Law on the Supreme Court of the Russian Federation).
About the oddities in the structure of the Presidium of the Armed Forces
The Presidium of the Supreme Court is one of the most interesting and mysterious bodies of the Russian judiciary. Being at the very top of the judicial pyramid, more than any other court, even the Constitutional Court, it resembles the “classical” supreme courts of countries of common (“case”) law, primarily the USA, Canada and Great Britain. Formally, he is even higher than them, because he represents not the third, but the fifth (!) instance in the judicial system. Likewise, it has extensive powers quite comparable to those of the supreme courts of Western countries.
Therefore, it is the Presidium of the Supreme Court, and not the Supreme Court of the Russian Federation as a whole, that is the closest analogue of the supreme courts of Anglo-Saxon jurisdictions. In fact, there are only 9 judges on the US Supreme Court, the same number on the Supreme Court of Canada, and 12 on the UK Supreme Court, and in all of these courts cases are decided by a full panel of judges; However, the staff of the Russian Supreme Court consists of 170 people, distributed among numerous panels and deciding cases in “troikas”, and only the Presidium of the Supreme Court considers cases in full and, like the Anglo-Saxon supreme courts, is a compact panel, which should have 13 judges .
Should it be? And where is it written that there are thirteen of them? This is where the amazing begins. While the size of the Supreme Court and each of its panels separately is established by the federal constitutional law on the Supreme Court and a special federal law of 2014, the number of members of the Presidium is established only by the regulations of the Supreme Court, which regulations the Supreme Court itself adopts. Thus, the logic of legal regulation is violated: the size of lower authorities - the panels of the Supreme Court - is determined by legislative acts of a very high level, but the size of the highest authority is established only by a by-law - the “internal charter” of the Supreme Court, which can be changed by the Court itself at any moment . There are no limits to its discretion: for example, if the Supreme Court wants to establish a Presidium of 40 people, then it has the right to do so. Let us note that the only judicial body comparable in status to the Presidium - the Constitutional Court of the Russian Federation - cannot do anything like this: the number of judges in it is enshrined in the Constitution itself, and constitutional amendments are required to change it. And here it’s just regulations...
Frankly, I don’t know in what other country the size of the judicial Areopagus is regulated so frivolously and illogically. Perhaps there is some special meaning to this, but it is inaccessible to me.
The amazing doesn't end there. Let's say that 13 is a good number; but at present, the actual number of members of the Presidium is much smaller: in fact, there are only 10 of them, and the times when the Presidium was fully staffed have already become covered in a haze of oblivion. It is not clear what exactly, year after year, prevents the Chairman of the Supreme Court from recommending to the President, and through him to the Federation Council, any candidates for vacant positions, especially since the Supreme Court itself determined this figure. It is clear that the number of members and the “completeness of the complement” of the judicial body, and especially the highest, is not an empty question; on the contrary, the outcome of cases depends on this, and bearing in mind that the Presidium has long made it a rule to deal almost exclusively with criminal cases, then human destinies depend on it! If there had been three more judges whose seats had long been vacant, some cases might have been decided differently: the missing members of the Presidium might have voted differently from the current majority, or put forward arguments that had not occurred to the others, and thereby convinced them to accept another point of view.
The Law on the Supreme Court, without establishing the number of members of the Presidium and, contrary to common sense, leaving this issue entirely to the Supreme Court itself, nevertheless says that decisions of the Presidium are made by a majority vote of its members present at the meeting. What is the quorum? How many members must be in the meeting for the Presidium to be competent? The law responds to this that a meeting is considered valid if a majority of the members of the Presidium are present. But what exactly is the majority? The majority of the set - the number of members in the state, that is, 7 out of 13, or the majority of the actual members, that is, 6 out of 10? Will the decision be legal if only six people were present at the meeting? When looking at a sample of the decisions of the Presidium over the past year, we find that the number of members in a meeting never falls below seven. Probably, the Presidium itself, “for the avoidance of doubt,” tries to adhere to just such a minimum. At the same time, it is clear from specific decisions that seven is not only the actual minimum, but also a typical composition, since eight judges are not present very often, and nine or ten are very rare. In addition, the lion's share of cases in the Presidium (approximately 3/4) are devoted to the routine resumption of proceedings after decisions of the ECHR, and the resumption occurs on the basis of the submissions of the Chairman of the Supreme Court (which are invariably satisfied), as a result of which he himself is present in the Presidium only in exceptional cases (8 cases last year); Usually his first deputy presides, so the actual number of people regularly participating in the work of the Presidium is only nine people, that is, one and a half times less than it should be according to the regulations.
And it’s quite clear why everything turns out this way. The fact is that the structure of the Armed Forces inherits the Soviet tradition, which arranged all the highest bodies according to the Politburo model. In Stalin's time, presidiums were established everywhere: the Presidium of the CPSU Central Committee, the Presidium of the Council of Ministers, the Presidium of the Supreme Council, the Presidium of the Supreme Court... Only the “biggest bosses” sat in all these presidiums. So the Presidium of the Supreme Court is still built according to the Stalinist nomenklatura-hierarchical model: it is and only high-ranking officials and court administrators who sit on it. In addition to the chairman of the Supreme Council, it includes his first deputy and six other deputies - chairmen of the collegiums of the Supreme Council. Two more seats were given to the secretary of the Plenum and the chairman of the HQCC, who is also the chairman of one of the judicial panels of the criminal board. Since there are no other persons equal to them in rank and position in the Supreme Court, the remaining three seats have been empty for years: it is probably believed that it is not appropriate for the chairmen of the panels and ordinary judges of the Supreme Court to be included in the “Politburo” on an equal basis with the big bosses. But the hierarchs included in it are inevitably loaded with administrative work, so it should not be so easy for them to be distracted by the affairs of the Presidium. It is no wonder that they so rarely gather in full force.
Meanwhile, the normal model of the highest court is the opposite of the Soviet model. Normally, the members of the highest court should not be the most outstanding administrators, but the most outstanding judges. Legal proceedings and specific law enforcement, on the one hand, and management of a large institution, on the other, are completely different activities and even different professions. Excellent ability to do one thing does not mean ability to do another equally well. But even if we assume that in our case these skills are happily combined in the members of the Presidium and they are undoubtedly the best lawyers in the Supreme Court or even the entire judicial system, then even then it is obvious that their administrative activities cannot but affect the consideration of specific cases, in purely judicial work. But these cases require full attention - both human destinies and the direction of judicial practice depend on them.
The presence of senior hierarchs in the Presidium represented by the chairmen of the Supreme Court boards also gives rise to a conflict of interests, since the Presidium reviews the decisions of these boards in a supervisory manner. Who would consider it normal for the president of the court of appeal to sit as a judge in the court of cassation, which reviews cases coming from the lower court he heads? But in the case of the Supreme Court, we see exactly the same thing, only at higher levels of the judiciary.
From all that has been said it follows that:
1) The number of judges in the highest instance, even 13, must be established by the legislative branch, the federal constitutional law on the Supreme Court, and not by internal regulations;
2) The presence of vacancies in the Presidium for many years is unacceptable - clear deadlines must be established during which they should be filled;
3) The number of hierarchs in the Presidium should be sharply reduced - I think the presence of the Chairman of the Supreme Council and his first deputy there is quite sufficient;
4) Even if for some time the judicial hierarchs remain in the Presidium of the Supreme Court in the current number, judges from among the ordinary members of the Supreme Court should still be added to them, and when considering cases from a collegium subordinate to him, the chairman of the latter should be removed from among the members of the Presidium to avoid conflicts of interest.
Of course, this does not exhaust all the desirable changes - only those that are necessary to bring the structure of the highest authority to normality as quickly as possible are indicated here. Since we have recently embarked on a path of change in the system of public administration, now is the time to reform this archaic structure.
The Plenum of the Supreme Court approved the “hardware” reform in the courts
Photo: Pixabay The Plenum of the Supreme Court of the Russian Federation decided to submit to the State Duma a package of bills (texts here and here) reforming the institution of court administrators. Thus, it is proposed to differentiate the legal status of administrators and, depending on the level of the court, to assign to them the functions of managing the court apparatus.
The Supreme Court drew attention to the dual legal position of the court administrator. This institute appeared in the system of federal SOYU in 1998. Over a long period, difficulties have emerged in determining the scope and nature of the powers, as well as the official position of the administrator. There are problems with determining the qualification requirements for a position that combines the functions of a business executive and a manager. In addition, the volume of work is constantly increasing, and this leads to an increase in the workload.
The functions of the administrator for organizational support of the court’s activities largely overlap with the job responsibilities of court staff and often duplicate them: for example, in court records management, maintaining statistics, and archive work. At the same time, the administrator does not have the authority to directly manage the court apparatus and is formally subordinate to the chairman of the court. This, as the Supreme Court believes, unreasonably places the responsibility on the chairman to resolve issues of organizational and logistical support.
The Supreme Court believes that there is an urgent need to legislatively delineate the legal status of administrators. In cassation and appeal SOJ and military courts, regional and equal courts, federal arbitration courts, administrators will perform the functions of managing the court apparatus, being on the court staff. In district, city, inter-district and garrison military courts they will perform only economic and support functions. These rates will remain in the system of the Judicial Department, since the courts of these instances are not independent legal entities and the corresponding powers are exercised by the bodies of the Judicial Department.
It is proposed to legislatively define the powers of the head of the apparatus - the court administrator. Among other things, he will be responsible for record keeping and archive work, judicial statistics, legal support for judges and staff, material and social security for judges, including retired judges, as well as for activities related to government procurement. Qualification requirements are established in the form of having a higher legal education. It is indicated that in the Register of Positions of the Federal State Civil Service this position is classified in the main group of the category “managers” with the corresponding official salary.
Administrators in district, city and garrison courts will be left with the functions of logistics, economic support and security of judicial activities. Thus, it is proposed to exclude from the functions of administrative administrators the organization of court records, maintaining statistics and archives.
In addition, an additional position of “permanent judicial presence administrator” is being introduced. These vacancies will be filled through the redistribution of positions with the abolition of some district and city courts and the creation of permanent judicial offices.
A new scheme of the judicial system of the Russian Federation has been presented
Today the Plenum of the RF Armed Forces decided to submit to the State Duma a draft federal constitutional law “On amendments to federal constitutional laws in connection with the creation of cassation courts of general jurisdiction and appellate courts of general jurisdiction.” The explanatory note to the bill emphasizes that the need to create structurally separate courts of appeal and cassation of general jurisdiction is due to high standards of judicial independence and objectivity in the administration of justice.
Thus, at the moment, judges of the supreme courts of republics, regional, regional and equivalent courts are vested with the authority to consider the same cases both in appeal and in cassation. In addition, in some cases, these courts hear cases in both the first and appellate instances.
However, the principles of judicial independence and objectivity in the administration of justice imply the inadmissibility of combining the functions of considering cases by different courts within the same subject of the Russian Federation, and especially within the same court.
The authors of the document believe that the creation of structurally separate courts of appeal and cassation of general jurisdiction, not bound by the territorial division of the constituent entities of the Russian Federation, will lead to a solution to the current problem and the effective implementation of the fundamental principles of justice. It is also expected that this will reduce the judicial burden by distributing among the newly created courts the array of cases that is currently concentrated exclusively in regional and peer courts, the authors of the bill indicate.
According to the document, a cassation court of general jurisdiction will operate within the territory of the corresponding judicial district and, in accordance with established jurisdiction, will consider cases as a court of cassation on complaints and submissions against judicial acts that have entered into legal force, as well as cases on new or newly discovered circumstances and exercise other powers. It is envisaged that nine such courts will be created in the Russian Federation.
The fundamental difference between the version of the judicial system proposed in accordance with the bill and the current one will be a clear division of functions for checking and revising court decisions in the appellate and cassation procedures between two independent parts of the judicial system.
It is proposed that the competence of the judicial panels of regional and equal courts include only the consideration of cases as a court of first and appellate instances, as well as on new or newly discovered circumstances, with the exception of the powers to consider as a court of appeal cases on complaints, submissions against interim court decisions of the regional and an equal court, rendered by them in the course of criminal proceedings as a court of first instance.
Excluded from the competence of the presidiums of regional and equal courts are procedural powers related to the consideration of cases on cassation complaints against decisions of district courts and magistrates that have entered into legal force, appeal rulings of a regional and equal court, as well as cases on new or newly discovered circumstances.
With the adoption of the bill, the functions of the presidium of the regional and equal courts of general jurisdiction will be limited to making decisions on organizational issues within the jurisdiction of the relevant court. Thus, regional and equal courts, as courts of second instance, become courts of appeal.
The powers to consider all cases that were previously considered in cassation by the presidium of the regional and equal courts are transferred to the exclusive competence of cassation courts of general jurisdiction, which will become a single cassation instance, both in relation to judicial acts of magistrates and in relation to judicial acts issued district courts and garrison military courts.
In addition, in accordance with the scheme of instance of the judicial system proposed by the bill, challenging the decisions of magistrates in the judicial chambers of the Armed Forces of the Russian Federation will be possible only if, as a result of appealing these court decisions in cassation to the cassation court of general jurisdiction, they issue a decision and only if the presence of significant violations of substantive law or procedural law that influenced the outcome of the case.
Thus, appellate courts of general jurisdiction will be given part of the functions of considering cases on appeal from regional courts and part of the functions of the Supreme Court of the Russian Federation. As a result of such a change in the competence of the courts, on the one hand, the situation will be eliminated in which the verification of a judicial act is carried out in the same court that heard the case as a court of first instance. On the other hand, consideration of cases on complaints (submissions) against judicial acts of lower courts that have not entered into legal force will be excluded from the jurisdiction of the RF Supreme Court.
Also, in accordance with the bill, the court of appeal of general jurisdiction is a federal court of general jurisdiction operating within the territory of the corresponding judicial district. It is envisaged that five appellate courts of general jurisdiction will be created in the Russian Federation.
It is determined that the judicial panels of the general jurisdiction court of appeal consider: cases of appeals and private complaints, submissions against court decisions that have not entered into legal force; cases on appeals, submissions against interim court decisions; cases on appeals, submissions against decisions of the Moscow City Court in civil cases, which are related to the protection of copyright and (or) related rights.
The adoption of this federal constitutional law will require amendments to the Code of Criminal Procedure of the Russian Federation, the Code of Civil Procedure of the Russian Federation, the CAS RF, the Code of Administrative Offenses of the Russian Federation, the Law on the Status of Judges in the Russian Federation, as well as federal laws on the bodies of the judicial community in the Russian Federation, on additional guarantees of social protection of judges and staff members courts of the Russian Federation, about the Judicial Department under the Armed Forces of the Russian Federation.
AG experts have already analyzed the changes to legislation proposed by the Supreme Court of the Russian Federation; their opinions on this matter can be found here.
Can a consultant to the RF Armed Forces do everything? UPD
Article 1 Part 1 of Federal Law No. 1 “On the Judicial System of the Russian Federation” - “1. Judicial power in the Russian Federation is exercised only by the courts, represented by judges...” But the RF Supreme Court entrusted the judicial power into the hands of consultants. This problem has long been identified and known to the Chairman of the RF Supreme Court, but it is not being solved, since it was created artificially in order to filter out complaints at the filing stage.
On February 14, 2021, through my personal account (Gosuslugi/ESIA), I appealed to the Supreme Court of the Russian Federation with a cassation appeal in favor of my client.
On February 17, 2021, she was rejected.
On February 17, 2021, I checked it and realized that due to my carelessness I had not attached the diploma, so I sent it with the attached diploma on the same day.
On February 18, 2021, the document was registered with the RF Armed Forces.
Yes, they have stages of document submission: the document has been entered into the information base of the RF Armed Forces, the document has been received by the RF Armed Forces, the document has been registered by the RF Armed Forces.
It turned out that after registering a cassation appeal, it can be returned without consideration and with reference to the legislation not by a judge of the Supreme Court of the Russian Federation, but by a consultant.
At the same time, how to appeal the actions of a consultant?
And how to eliminate the reasons that he indicates based on his own understanding of the Procedure for submitting documents to the Supreme Court of the Russian Federation in electronic form, including in the form of an electronic document - To be put into effect on January 1, 2021 (hereinafter referred to as the Procedure)?
Can he write an appeal addressed to the Chairman of the RF Supreme Court, pointing out the illegality of procedural actions, the appeal of which is not provided for by the Code of Civil Procedure of the Russian Federation? But how to send this appeal? After all, the site does not allow you to write an appeal using electronic document management.
I have already written about the previously established practice of “supremacy of consultants”, before the change in the cassation authority.
It was also discussed here how a barrier to justice was created, namely at the stage of appealing to the Chairman of the RF Armed Forces.
You can, of course, appeal against the illegal actions of a consultant of the RF Armed Forces under the CAS RF. There is a negative practice of such appeals, for example, here. In this case, the return/refusal is associated with abusive language and it could be an abuse of right.
But in my case, the return is due to an incorrect interpretation of the legislation and regulations with reference to the review of practice, where there is a clear indication - “Education documents must be submitted to the court in the original or in the form of a duly certified copy.” (p. 143 Review of judicial practice of the Supreme Court of the Russian Federation No. 4 (2019))
I scanned the original diploma, which is in accordance with clause 1.3. The order is obtained - an electronic image of a document (an electronic copy of a document made on paper) - a copy of a document made on paper, converted into electronic form using scanning tools, certified in accordance with the Procedure for submitting documents with a simple electronic signature or an enhanced qualified electronic signature.
I am charged with improper certification, but the consultant did not provide a reference to procedural law that this electronic image of a document is certified by an enhanced qualified signature (since this does not exist), and the concept of an electronic signature is also not taken into account - information in electronic form attached to the electronic document being signed or otherwise related to it and allowing to identify the person who signed the electronic document.
And also the concept of an electronic signature key - a unique sequence of characters designed to create an electronic signature. An individual's Unified Identification and Autonomy (USIA) account is used as a key for a simple electronic signature.
Creating an electronic image of a document is described in paragraph 2.2.1. Order - An electronic image of a document is created using scanning tools. Scanning a document on paper must be done on a 1:1 scale in black and white or gray (quality 200 - 300 dpi), ensuring the preservation of all details and authentic signs of authenticity, namely: the graphic signature of the person, the seal and the corner stamp of the form (if available), scanning in full color mode is carried out if the document contains color graphics or color text, if this is important for the consideration of the case;
and certification of the electronic image - 2.2.5. The electronic image of the document is certified in accordance with the Procedure for Submitting Documents with a simple electronic signature or an enhanced qualified electronic signature.
Including - the power of attorney is presented ... in the form of an electronic image of a document certified ... or an electronic image certified by a simple electronic signature ... of the person submitting the documents.
And an important note in this paragraph - If an appeal to the court is submitted in the form of an electronic image of a document, such an appeal and the electronic images of documents attached to it are considered certified by a simple electronic signature of the person submitting the documents.
But what actions are taken with documents filed in court?
So point 4.4. The procedure specifies - Viewing of documents submitted to the court in electronic form is carried out by an employee of the court staff responsible for receiving documents in electronic form, who must make sure that the documents received in the information system are addressed to the court, are accessible for reading, and are drawn up in accordance with with the Procedure for filing documents, including compliance with the requirement for the presence of a graphic signature of a person in the electronic form of an application to the court, requirements for an electronic signature. If these conditions are met, a notification is sent to the user’s personal account that the court has received documents submitted electronically. [author - I have never been notified during the entire period of appeals to the RF Armed Forces] The notification indicates the name of the court sending the notification, the names of the received appeal to the court and attached documents, the date and time of receipt of the appeal in the information system and the date and time of its receipt by the court . The notification may also indicate the number of the relevant court case (proceedings).
If these conditions are not met, the user is notified that the documents cannot be recognized as received by the court. The notice shall indicate the reasons why the documents cannot be considered received by the court. [author - on the contrary, these requests come but in the form indicated below]
In this case, the Procedure provides for clause 4.5. — Documents are rejected for the following reasons: [author. — points close to the problem under consideration are given]
7) in violation of the law and the Procedure for filing documents, the application to the court in the form of an electronic document is not signed with an enhanced qualified electronic signature or the application to the court in the form of an electronic image of the document is not certified by an enhanced qualified electronic signature; [author - applies to cases where this is mandatory, for example, an application for interim measures (paragraph 2, part 1, article 139 of the Code of Civil Procedure of the Russian Federation)]
9) the electronic signature does not correspond to the type or format established by the Procedure for Submitting Documents. The enhanced qualified electronic signature has not been verified: at the time of signing the document, the electronic signature certificate has expired, the electronic signature does not correspond to the document, the document was changed (modified) after it was signed with an electronic signature; [author - in our case, the consultant does not indicate this]
11) the application to the court submitted by the representative is not accompanied by a document confirming the authority of the representative to present documents to the court; [author - in our case, the consultant indicates that the authority has not been confirmed in accordance with the explanations of the Review of Practice]
12) other requirements for electronic documents and (or) electronic images of documents established by the Procedure for Submitting Documents have been violated.
Clause 4.7. The order states: Documents received in the information system must be registered in the IS “Judicial Document Flow and Office Work of the Supreme Court”. Does this mean that a registered (as in our case) cassation appeal cannot be returned by the consultant? Since its powers have been exhausted and are suppressed by the registration event.
And as always, the RF Armed Forces would not be itself if it did not introduce paradoxes that consultants “cleverly use” - paragraph 4.8. Procedure - Reception, accounting and registration of documents received in electronic form are carried out in the same order in which the reception, accounting and registration of documents on paper is carried out.
Part 5 of Article 53 of the Code of Civil Procedure of the Russian Federation, to which the consultant refers, states: “Other persons providing legal assistance shall present to the court documents on higher legal education or an academic degree in a legal specialty, as well as documents certifying their authority.”
Still, is the scanned original of the diploma a proper document or is additional certification required from the series - “Prove that you are not a camel!?”
This is the access to justice based on the cassation appeal that I posted here.
UPD: I requested a document through my personal account in the RF Armed Forces. The answer came in black and white and without an electronic signature (or rather, it does not correspond to the file). This is how equality of rights and duties is correlated in the Armed Forces of the Russian Federation?!
I sent a request to explain this decision. Of course, I will post the answer later (as soon as I receive it).
Place of the Supreme Court of the Russian Federation in the judicial system
The Supreme Court of the Russian Federation is the highest judicial body for civil cases, resolution of economic disputes, criminal, administrative and other cases, jurisdictional courts established in accordance with federal constitutional law, exercises judicial supervision over the activities of these courts in the procedural forms provided for by federal law and provides explanations on issues of judicial practice (Article 126 of the Constitution of the Russian Federation).
The Supreme Court of the Russian Federation has the right of legislative initiative on issues within its jurisdiction (Article 104 of the Constitution of the Russian Federation).
The constitutional provisions on the place of the Supreme Court of the Russian Federation in the judicial system and its powers were developed in the Federal Constitutional Law “On the Judicial System of the Russian Federation” (Article 19) and the Federal Constitutional Law of February 5, 2014 No. 3-FZ “On the Supreme Court of the Russian Federation” Federation".
The Supreme Court of the Russian Federation exercises judicial power throughout the country. At the same time, it acts independently and independently of other government bodies and is not accountable to anyone. In its activities in the administration of justice, the Supreme Court of the Russian Federation is guided by the Constitution of the Russian Federation, federal constitutional laws, federal laws, generally recognized principles and norms of international law and international treaties of Russia, as well as constitutions (charters) and other laws of the constituent entities of the federation.
The Supreme Court of the Russian Federation is called upon to ensure uniform judicial practice in the administration of justice, full protection of the rights and freedoms of citizens, the legitimate interests of enterprises, institutions and organizations.
The Supreme Court of the Russian Federation has jurisdiction over the entire territory of Russia and has the right to review, in accordance with the established procedure, a decision, sentence, ruling and ruling of any court of general jurisdiction and arbitration court.
The Supreme Court of the Russian Federation is the highest and final court in all cases referred by law to the competence of courts of general jurisdiction and arbitration courts. Decisions of the Supreme Court of the Russian Federation on the cases under consideration cannot be reviewed either by other courts or other bodies.
Analytics Publications
For a long period of time, in the theory and practice of applying procedural legislation, uncertainty arose regarding the use of decisions of the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court of the Russian Federation), which are not decisions, as new circumstances for reviewing judicial acts.
This was due to the absence in the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) of an indication that a newly discovered circumstance is the identification of the constitutional and legal meaning of the legal norm in the definition of the Constitutional Court of the Russian Federation.
Meanwhile, the development of judicial practice of both the Constitutional Court of the Russian Federation and arbitration courts has led to the need to change the existing order, which was expressed in the Ruling of the Supreme Court of the Russian Federation dated March 10, 2015 No. 307-KG14-4737 in case No. A56-45166/2012, which, in turn , brought clarity to the interpretation of the provisions of Article 311 of the Arbitration Procedure Code of the Russian Federation in relation to acts of the Constitutional Court of the Russian Federation.
Revision of judicial acts based on new or newly discovered circumstances - norms of the Arbitration Procedure Code of the Russian Federation
An exhaustive list of grounds for reviewing judicial acts that have entered into legal force is given in Article 311 of the Arbitration Procedure Code of the Russian Federation.
In accordance with Part 2 of Article 311 of the Arbitration Procedure Code of the Russian Federation, the grounds for reviewing judicial acts based on newly discovered circumstances are:
1) circumstances essential to the case that were not and could not be known to the applicant;
2) falsification of evidence established by a court verdict that has entered into legal force, a knowingly false expert opinion, knowingly false testimony of a witness, knowingly incorrect translation, which entailed the adoption of an illegal or unfounded judicial act in this case; criminal acts of a person participating in the case or his representative established by a court verdict that has entered into legal force;
3) criminal acts of the judge committed during the consideration of this case.
In accordance with Part 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation, the grounds for revising judicial acts based on new circumstances are:
1) cancellation of a judicial act of an arbitration court or a court of general jurisdiction or a resolution of another body that served as the basis for the adoption of a judicial act in this case;
2) a transaction declared invalid by a judicial act of an arbitration court or a court of general jurisdiction, which entailed the adoption of an illegal or unfounded judicial act in this case;
3) recognition by the Constitutional Court of the Russian Federation of the law applied by the arbitration court in a specific case, in connection with the decision on which the applicant appealed to the Constitutional Court of the Russian Federation, as inconsistent with the Constitution of the Russian Federation;
4) a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms established by the European Court of Human Rights during the consideration by the arbitration court of a specific case, in connection with the decision on which the applicant applied to the European Court of Human Rights;
5) determination or change in the resolution of the Plenum of the Supreme Court of the Russian Federation or in the resolution of the Presidium of the Supreme Court of the Russian Federation of the practice of applying a legal norm, if the relevant act of the Supreme Court of the Russian Federation contains an indication of the possibility of revising judicial acts that have entered into legal force due to this circumstance.
In relation to paragraph 3 of part 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation, it should be noted that all decisions of the Constitutional Court of the Russian Federation are generally binding and final, enter into force immediately and have direct effect. In accordance with Article 71 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, within the framework of its powers, the Constitutional Court of Russia makes the following types of decisions:
(a) judgments that are final decisions on the merits;
(b) a conclusion that is the final decision on the merits of the request to comply with the established procedure for bringing charges against the President of the Russian Federation for high treason or committing another serious crime;
(c) determinations that constitute other decisions taken in the course of constitutional proceedings.
Thus, excluding the rather rare decisions and conclusions of the Constitutional Court of the Russian Federation in economic cases, the following question remained key for the applicants:
Is the identification of the actual constitutional and legal meaning of a rule of law in the determination of the Constitutional Court a new circumstance for the case within the meaning of paragraph 3 of part 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation?
The legal nature of the definitions of the Constitutional Court of the Russian Federation, which reveals the constitutional and legal meaning of the rules of law
As noted above, with the increase in the number of applicants’ appeals to the Constitutional Court and the increase in the number of decisions adopted in cases, the consideration of applicants’ complaints increasingly began to end at the preliminary stage. The Constitutional Court of the Russian Federation, refusing to accept a complaint, issues a ruling in which it confirms the extension of a previously adopted legal position to the applicant’s case or indicates the permissible framework (limits) of interpretation of a specific applied rule of law. In theory, judicial acts of this kind began to be called determinations with a “positive” meaning. So, according to N.V. Vitruk, definitions with positive content refer to the final decisions of the Constitutional Court of the Russian Federation[1].
It should be noted that this practice of written proceedings has a beneficial effect on the judicial system and allows applicants to obtain the position of a constitutional control body on a controversial issue in the shortest possible time.
The Constitutional Court of the Russian Federation has consistently spoken out in favor of making courts binding not only decisions, but also rulings of the Constitutional Court of the Russian Federation, which contain the interpretation of current legislation.
The most striking examples include the following legal positions:
1. “In a number of its rulings, the Constitutional Court of the Russian Federation indicated that the decisions of the Constitutional Court of the Russian Federation, as well as the legal positions contained in them, are generally binding and do not require confirmation by other bodies and officials, and decisions of courts and other bodies based on the act declared unconstitutional, or on an act to which a court of general jurisdiction gave an interpretation that diverges from its constitutional and legal meaning as identified by the Constitutional Court of the Russian Federation, are not subject to execution and must be revised in cases established by federal law. Decisions of the Constitutional Court of the Russian Federation cannot be ignored by the courts, whose competence includes the review of the relevant decision and which, at the request of a citizen or authorized official, are obliged to establish - subject to the general rules of legal proceedings - the existence of material and procedural prerequisites, as well as possible obstacles to the review of decisions based on on norms that are given a meaning that diverges from their constitutional and legal meaning.
The courts do not have the right not to execute decisions of the Constitutional Court of the Russian Federation and the orders contained therein - otherwise would mean failure to comply with the requirements of the Constitution of the Russian Federation and the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” (Determinations of the Constitutional Court of the Russian Federation dated January 14, 1999 No. 4- O, dated February 5, 2004 No. 78-O, dated May 27, 2004 No. 211-O, dated November 1, 2007 No. 827-O-P, dated January 24, 2008 No. 191-O-P and dated April 16, 2009 year No. 564-О-О)”[2].
2. “As the Constitutional Court of the Russian Federation has repeatedly indicated in its decisions, the legal consequence of the decision of the Constitutional Court of the Russian Federation, in which the Constitutional Court of the Russian Federation, without recognizing the act or its individual provisions as contrary to the Constitution of the Russian Federation, reveals their constitutional and legal meaning, is that , that from the moment the said decision comes into force, such acts or their individual provisions cannot be applied or implemented in any other way in a sense that diverges from their constitutional and legal meaning (Definitions of November 2, 2006 No. 409-O, dated November 11 2008 No. 556-O-R, etc.)”[3].
3. “The legal force of the decision of the Constitutional Court of the Russian Federation, which reveals the constitutional and legal meaning of the norm, determines the impossibility of application (and therefore termination) of this norm in an unconstitutional interpretation, i.e. the loss of its force for the future in any other – diverging from the identified constitutional and legal – sense, which was allowed in its previous understanding. This means that, as a general rule, from the moment the decision of the Constitutional Court of the Russian Federation enters into force, such a norm should not be interpreted in any other way and applied in any other sense”[4].
In arbitration practice, there were also examples of courts indicating the mandatory nature of legal positions set out in the definitions of the Constitutional Court of the Russian Federation:
Resolution of the Arbitration Court of the West Siberian District dated October 7, 2014 in case No. A67-8084/2013
“The Constitutional Court of the Russian Federation in its Determination dated 02/06/2003 No. 34-0 indicated that, as follows from the second part of Article 74 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, the constitutional interpretation of a normative act or its individual provisions, verified through constitutional proceedings, falls within the competence of the Constitutional Court of the Russian Federation, which, by resolving the case and establishing the compliance or non-compliance of the contested act with the Constitution of the Russian Federation, including the content of the norms, ensures the identification of the constitutional meaning of the current law. In this case, the interpretation given by him, as follows from the second part of Article 74 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” in conjunction with its Articles 3, 6, 36, 79, 85, 86, 87, 96 and 100, is generally binding , including for ships.
Taking into account the above, the rulings of the Constitutional Court of the Russian Federation are final and cannot be appealed, and the constitutional interpretation of a normative act or its individual provisions set out in them is generally binding
«.
However, this position of arbitration courts is not uniform, therefore the Constitutional Court has repeatedly raised the issue of actual failure by law enforcement officials to comply with their decisions in the form of rulings[5].
At the same time, the question of revising previously held judicial acts on a new circumstance using similar definitions was open.
Arbitration courts in most cases used a formal approach, refusing to review cases for applicants, citing the absence of a direct indication in the Arbitration Procedure Code of the Russian Federation on such a circumstance as identifying the constitutional and legal meaning of a legal norm in the definition of the Constitutional Court of the Russian Federation.
However, in case A56-45166/2012, the Supreme Court of the Russian Federation (SC RF) recognized such an approach as inconsistent with the goals of protecting the rights and interests of interested parties and formulated a fundamentally different interpretation of the provisions of procedural legislation.
Consideration of Arbitration Case No. A56-45166/2012 in lower courts
The company “Team Niinivirta AY” (hereinafter also the Applicant; the Company) applied to the Arbitration Court of the city of St. Petersburg and the Leningrad Region with a statement to invalidate the demands of the Vyborg Customs No. 182, 183 of 04/17/2012 for the payment of customs duties and penalties in the total amount – 2435838.48 rub. due to the non-exportation of a temporarily imported vehicle from the territory of the Russian Federation.
By the decision of the Arbitration Court of St. Petersburg and the Leningrad Region dated October 22, 2012 in case No. A56-45166/2012, the Applicant’s claims were denied; By the decision of the Thirteenth Arbitration Court of Appeal dated 02/04/2013 in case No. A56-45166/2012, the appeal was left unsatisfied, the decision of the court of first instance was left unchanged.
After the case was considered by the appellate court, the Company appealed to the Constitutional Court with a complaint about the violation of its rights due to the incorrect application of the law - contrary to the legal position set out in Resolution No. 168-O dated May 12, 2005.
By the ruling of the Constitutional Court of the Russian Federation dated July 2, 2013 No. 1050-O “On the refusal to accept for consideration a complaint about violation of constitutional rights and freedoms by the provisions of paragraph 2 of Article 80, paragraph 1 of Article 91 and paragraph 1 of Article 342 of the Customs Code of the Customs Union,” the Company was denied acceptance of the complaint for consideration. At the same time, the Constitutional Court of the Russian Federation indicated that the previously stated position[6] on the inadmissibility of assigning responsibility for a customs violation without guilt can be extended to the case of the company “Team Niinivirta AY”.
The company applied to the Arbitration Court of St. Petersburg and the Leningrad Region with a request to review case No. A56-45166/2012 due to new circumstances. As a new circumstance, the Company indicated the Determination of the Constitutional Court of the Russian Federation dated July 2, 2013 No. 1050-0.
By the ruling of the Arbitration Court of St. Petersburg and the Leningrad Region dated January 22, 2014 in case No. A56-45166/2012, the Applicant’s request to reconsider the case due to new circumstances was denied. By the decision of the Thirteenth Arbitration Court of Appeal dated May 16, 2014 in case No. A56-45166/2012, the ruling of the first instance court was left unchanged and the appeal was not satisfied. By the decision of the Arbitration Court of the North-Western District dated August 15, 2014 in case No. A56-45166/2012, the ruling of the court of first instance and the ruling of the appellate court were left unchanged, and the appeal was not satisfied.
The courts of three instances, refusing to satisfy the Applicant's demands, referred to the absence of rules in the Arbitration Procedure Code of the Russian Federation stating that the determination of the Constitutional Court of the Russian Federation is a new circumstance for the case.
The company filed a cassation appeal against the judicial acts of the lower courts to the Supreme Court of the Russian Federation. By ruling of the Supreme Court of the Russian Federation dated March 10, 2015 No. 307-KG14-4737 in case No. A56-45166/2012, the Company’s cassation appeal along with the case was transferred for consideration on the merits in a court session of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation.
Legal position of the RF Armed Forces in the case of TEAM NIINIVIRTA AY
In the Ruling of the Supreme Court of the Russian Federation dated April 21, 2015 in case No. 307-KG14-4737, A56-45166/2012, the Supreme Court of the Russian Federation formulated the following key positions:
1. In the ruling[7] in the Applicant’s case, the Constitutional Court of the Russian Federation identified the constitutional and legal meaning of the norms applied by the arbitration courts, and indicated that certain legal positions of the Constitutional Court of the Russian Federation have not lost their force and are subject to application in relation to the current legal regulation of customs relations . Accordingly, the provisions of the Customs Code of the Customs Union disputed by the Company, given their similar nature in content to the provisions of the Customs Code of the Russian Federation that have become invalid, cannot be applied without taking into account these legal positions of the Constitutional Court of the Russian Federation.
2. The basis for reviewing judicial acts in a particular case of the Applicant based on new circumstances is
the judicial act
itself adopted by the Constitutional Court of the Russian Federation , but the constitutional and legal meaning of the norm identified and formulated in this act, which was not previously given to it in the process of law enforcement.
3. The absence directly in the Arbitration Procedure Code of the Russian Federation of such a basis for reviewing a case as the identification by the Constitutional Court of the Russian Federation of the constitutional and legal meaning of a norm, which was not previously given to it in the process of law enforcement, cannot serve as a reason for refusing to review court decisions in the cases of applicants
, during the resolution of which there were violations of constitutional rights and freedoms.
4. When assessing the existence of grounds for reviewing a case, it is necessary to proceed not from the form in which the legal position of the Constitutional Court of the Russian Federation is clothed (that is, the concept of a decision in the narrow sense), but from the very fact of the identification by the Constitutional Court of the Russian Federation of the constitutional and legal meaning of certain forms, applied in the Applicant’s case, which can be formulated in a decision in a general sense (i.e. in a decision, in a resolution, and in a ruling
).
The position of the Supreme Court in the Team Niinivirta AY case is innovative and is absolutely in keeping with the spirit of uniformity of practice of the highest courts. We can only hope that the conclusions from the Ruling of the Supreme Court of the Russian Federation dated April 21, 2015 in case No. 307-KG14-4737, A56-45166/2012 will be reproduced in the Resolutions of the Presidium or Plenum of the Armed Forces of the Russian Federation in order to provide a generally binding interpretation for lower courts.
In conclusion, I would like to note that the use of the legal positions of the Constitutional Court of the Russian Federation in protecting the rights and legitimate interests of participants in arbitration proceedings will make it possible to eliminate the initially incorrect adversus legem (against the law) interpretation of legal norms by arbitration courts.
[1] Vitruk N.V. Constitutional justice. Judicial and constitutional law and process. M.: Yurist, 2005. P. 116.
[2] Determination of the Constitutional Court of the Russian Federation dated February 17, 2015 No. 410-O “On the refusal to accept for consideration the complaint of citizen Oleg Vyacheslavovich Datsko about the violation of his constitutional rights by paragraph 3 of part four of Article 413 of the Criminal Procedure Code of the Russian Federation.”
[3] Determination of the Constitutional Court of the Russian Federation dated November 25, 2010 No. 1534-О-О “On the refusal to accept for consideration the complaint of citizen Vasily Vasilyevich Popov about the violation of his constitutional rights by part two of Article 376 and paragraph 3 of part one of Article 379.1 of the Civil Procedure Code of the Russian Federation "
[4] Determination of the Constitutional Court of the Russian Federation dated 06/04/2013 No. 874-O “On the refusal to accept for consideration the complaint of the limited liability company “BIS” about the violation of constitutional rights and freedoms by clause 3 of part 3 of article 311 of the Arbitration Procedural Code of the Russian Federation.”
[5] See pravo.ru/review/view/85691.
[6] Contained in the Determination of May 12, 2005 No. 168-O.
[7] The court is referring to the Determination of the Constitutional Court of the Russian Federation.
