Administrative Procedure Code: a Controversial, but Feasible Idea

VOLKOV ALEXANDR MIKHAILOVICH Professor of the Department of State-Legal and Financial-Legal Disciplines at Moscow Financial and Law University, Honored Worker of the Higher School of the Russian Federation 117342, Russia, Moscow, Vvedensky str., 1, A, office 6 valexw@mail.ru Other publications by this author

If you are there, be the first,

The first, whoever you are.

Robert Rozhdestvensky, 1972.

The issues of codification of administrative law, administrative procedural law and administrative tort law are widely reflected in the context of the ongoing reforms of Russian legislation at various levels in recent years. At the same time, not all the reforms carried out in this area are clearly perceived by both theorists and practitioners due to the rather large range of problems and shortcomings identified, the lack of a systematic approach, harmonization and a number of other difficulties. Such a complex issue as the codification of administrative procedural and administrative tort legislation, which is the subject of research in this article, obviously requires a long period both from the standpoint of scientific and methodological development and practical implementation.

However, given the rapidly changing political and socio-economic realities both on a national and international scale, our country today does not have a significant reserve of time for such modernization. To a certain extent, the Russian scientific community, including the author of this article, is trying to fill in the gaps identified in this area in order to improve the process of legislative reform. In this regard, a significant number of scientific papers have been devoted to the problem of codification of administrative procedural law and administrative tort law studied in this article over the past decades.

As the main objectives of the study, we turn to the analysis of a number of fundamental theses from them for further argumentation of the author's position regarding the improvement of the institutional foundations of codification. At the same time, the latter acts as the main purpose of the research in this article, which is solved by the author using the methods of historical, evolutionary, descriptive, structural-functional, predictive, diachronic and synchronic comparative analysis, problematization, as well as systematization, synthesis, meaningful and logical interpretation, as well as special legal methods.

In the context of the stated purpose of the study, it should be noted that Russian scientists express rather ambiguous positions both on the issue of administrative law, administrative procedural law and administrative tort law, their independence in the context of the historical background of this issue and its current state, and the need for initial solutions to problems and tasks that currently hinder effective reform in the the area under study.

The article, written with the information support of the SPS Consultant Plus, is of course of a debatable nature. But in many ways it reflects the views and ideas of various areas of research in administrative law, administrative procedural law and administrative tort law ^[1-5]. At the same time, it unites and combines the ideas of the unity of administrative procedural law and administrative proceedings. The rationale for this, based on the statements of many scientists, is given in the author's article ^[6]. Here are just a few of them.

For example, A. A. Demin writes: "The general theory of law, unfortunately, often evades the study of procedural issues, leaving them to the decision of scientists working in certain branches of law. Among the rare statements of legal theorists about the process, O. E. Leist's opinion can be cited: "The norms of substantive law (defining the content of rights, duties and prohibitions directly aimed at regulating public relations) and the norms of procedural law (defining the order, procedure, form of implementation of the norms of substantive law) differ" ^[7]. And then A. A. Demin continues: "A legal relationship where the parties are two entities is a typical substantive legal relationship. Conversely, a typically procedural legal relationship is one that arises on the initiative of one of the three participants in the administrative process", "In the Administrative Procedure Code of the Russian Federation, only the norms of dispute resolution at the stages of administrative proceedings should be preserved, reflecting the tripartite nature of legal relations of an authoritative nature" and "The presence of administrative procedural relations is possible only with the tripartite nature of relations: two the parties and the arbitrator" ^[8].

One cannot disagree with this opinion. However, at the same time, it should be noted that the constitutional legitimization of this issue does not eliminate the problem of the need to form stable legal foundations that contribute to the codification of administrative and procedural relations at a developed level. Thus, we are talking about a systematic approach to solving the problem, which, as you know, is one of the most problematic moments in the history of reforming Russian legislation in almost any direction.

In another work, A. A. Demin notes: "In the presence of the Code of Administrative Procedure of 2015 in the Russian Federation, the practical significance of developing the Administrative Procedure Code of the Russian Federation lies in the fact that in its absence it is impossible for specialized courts of administrative justice to function. Moreover, such a code is a prerequisite for the introduction of administrative tribunals ^[9]. Because it is a form within which such courts can function" ^[10].

Yu.E. Avrutin, in this regard, pointing out the complexity and multidimensional nature of this issue, naturally, in our opinion, draws attention to an important problem in its context, which should have been solved in the initial period. However, it still remains unresolved. He, offering to remove many controversial issues, noted that "by the procedural form we will understand only the judicial procedure for considering cases, having received as a scientific "preference" the opportunity to see in court the resolution of cases arising from administrative and other public relations, the legal principles peculiar to procedural activity" ^[11].

It is known that the term "administrative justice", which is usually understood as "the procedure for consideration and resolution in a judicial procedural form of disputes arising in the field of administrative management between citizens and legal entities, on the one hand, and administrative authorities, on the other, carried out by jurisdictional bodies specially created to resolve legal disputes" is widely used in procedural doctrine ^[12]. It should be mentioned that "administrative proceedings are a term of specific legal content, meaning the procedural procedure established by law for the consideration and resolution of cases arising from administrative and other public legal relations only by state courts and referred to their jurisdiction" ^[13].

Yu.N. Starilov, in turn, also draws attention to one of the contradictions inherent in the reform processes in Russia. This contradiction is due to the frequent disregard of accumulated experience in the field of legislative framework formation, administration and attempts to build rather complex and complex legal and organizational structures "from scratch" or as a result of blind copying, without taking into account national adaptation, the experience of other countries. To this should also be added, as a negative point, the recent steady practice of reforming "in advance mode". In this regard, according to the scientist, which the author fully shares, "the administrative process in the proper sense of the word as a judicial process, connects it with the resolution of a dispute about law and identifies the administrative process and administrative proceedings." This understanding of the administrative process has long been dominant in the doctrine of the countries of the continental legal family. The author notes that administrative legal proceedings are a sphere of administrative procedural regulation that grew out of administrative justice, procedural legal matter that was strengthened over a long historical period, inextricably linked with substantive administrative law and the results of the application of its legal norms, this is the procedure for the application of procedural institutions and legal means that provide both judicial protection of rights, freedoms and legitimate the interests of citizens, as well as control over public administration and its results [14 p. 10.].

Considering this issue in historical retrospect and sharing the point of view of Yu. N. Starilov that "it is unlikely that any "movement" (any obvious "procedurality") in the field of administrative and legal relations should automatically and without any doubt be attributed to administrative procedural activity", it is possible to talk about the administrative process precisely as an administrative proceeding ^[15].

Such conclusions correlate with the statements of A. I. Elistratov regarding administrative justice. In his opinion, "administrative justice should not be confused with those cases where the administration itself acts as a judge in management cases. So, in cases of violation of mandatory regulations issued in the order of protection, the administration itself examines the case and imposes penalties. This activity of government bodies can be mistaken for administrative justice only by misunderstanding: administrative justice is a judicial review of the actions of the administration, and yet here the administration itself judges. The misunderstanding is explained by the fact that the word "administrative" justice combines the idea that this is the judicial activity of the administration. But when we say "civil" justice, we do not think that the citizens themselves are being judged here. And just as civil justice is a court in legal disputes between individuals, so administrative justice is a court in clashes between citizens and the administration" ^[16].

And further, A. I. Elistratov notes: "In order to create a valid guarantee of legality in public administration, administrative justice must be organized as a court, independent of the ruling power. Just like a civil and criminal court, the process in administrative cases must be conducted by an irremovable judge in conditions of transparency and oral proceedings and with recognition of the beginning of equality for the parties in the process. Only with such an arrangement of administrative justice can confidence be strengthened that the dispute between a citizen and the ruling power about the legality of an act of government will be resolved by the triumph of law. And only with the formation of such an administrative justice will administrative law correctly fulfill its task of regulating public relations between the ruling government and citizens" ^[16].

According to the Russian jurist and lawyer N. I. Lazarevsky, administrative justice is a system of special judicial institutions whose activities are aimed at protecting the rule of law from encroachments of the administration ^[17].

Let's digress and turn to the terminological apparatus within the framework of the problem under study. As is well known from research and supported by the practice of applying the CAS of the Russian Federation, articles of the CPC of the Russian Federation on proceedings in cases arising from public legal relations have been transferred and revised to this Code. Subsection III of the CPC of the Russian Federation "Proceedings in cases arising from public legal relations" (Articles 245-261.8) became invalid on September 15, 2015 (Federal Law No. 23-FZ of 08.03.2015)

This was justified by the fact that the CPC of the Russian Federation establishes a judicial procedure for considering cases arising from legal relations in which subjects acquire rights and obligations of their own free will and in their own interests and are actually equal, that is, arising from legal relations related to the application of substantive legal norms of private law (civil, family, etc.). But in administrative and other public legal relations lack equality of their subjects as such, and therefore require a different methodology and procedural law for the consideration and resolution of cases arising from these legal relations.

When regulating administrative proceedings, the draft took into account those norms of the CPC that relate to proceedings in cases arising from public legal relations, and which have justified themselves in practice. When developing the draft, such well-established institutions of civil procedure, which did not require significant processing, as the initiation of proceedings, the return of the statement of claim, leaving it without movement, refusal to accept the statement of claim, termination of proceedings, leaving the application without consideration, were taken into account.

The detailed regulation of the entire judicial process in administrative cases provided in the draft also includes the actual repetition of some general provisions of other procedural laws instead of using reference norms. This was done in order to increase the level of judicial protection of the rights and legitimate interests of citizens and organizations and reduce the risk of judicial error.

However, regarding the consideration of cases arising from public legal relations and referred by federal law to the competence of the Constitutional Court of the Russian Federation, arbitration courts or subject to consideration in another judicial (procedural) order in the Supreme Court of the Russian Federation, courts of general jurisdiction, they are not subject to consideration in accordance with the procedure established by the CAS of the Russian Federation.

Considering this problem, G. I. Kalinin, in particular, naturally notes that a large proportion of cases related to entrepreneurial and other economic activities of legal entities and individual entrepreneurs are considered in arbitration courts, which will not be guided by the CAS of the Russian Federation at all. Within the framework of the study, the point of view is shared that the CAS of the Russian Federation is aimed "at the procedural settlement of a small volume of judicial procedures related to the protection of the rights and legitimate interests of citizens and organizations, primarily on issues of challenging normative legal acts (but not their constitutionality); challenging decisions, actions (inaction)..." public entities ^[18]. We consider it advisable to rely on this both in the course of further analysis and in the development of appropriate recommendations based on it.

The provisions of the CAS of the Russian Federation do not apply to cases of challenging actions (inaction), decisions of the bailiff service, subject to arbitration courts, as evidenced by paragraphs 4 of Article 1, paragraph 6 of Article 218 of the CAS. Consequently, this category of cases, subject to the jurisdiction of arbitration courts, is carried out within the framework of a civil procedure in an administrative manner.

Based on the fact that judicial power in Russia, along with other forms of exercising the powers of the judiciary, is carried out, including through administrative proceedings, the adoption of an independent codified act regulating the procedure for considering administrative cases is a logical and integral stage in the development of the judicial system. But another question arises: Why did they not include in the CAS of the Russian Federation the provisions of the Agro-industrial Complex of the Russian Federation on the consideration of cases arising also from public legal relations?

Long before the adoption of the Code of Administrative Procedure of the Russian Federation, it was clear to a number of scientists that "unlike civil proceedings, administrative proceedings (administrative proceedings) cannot be fully based on the principle of dispositivity, which presupposes significant freedom of procedural actions of the parties" ^[19].

Taking into account also the absence of fundamental differences in the sphere of regulation of public relations between courts of general jurisdiction and arbitration courts, the exclusion from the scope of the CAS regulation of administrative cases within the jurisdiction of arbitration courts, as well as the preservation of the procedure for challenging decisions, actions (inaction) of bailiff service officials in two codified procedural acts (CAS and APC) is in in contradiction with the general trend in the development of legislation in this area.

It can also be stated that "the norms regulating judicial control in the field of enforcement proceedings do not always duplicate each other in the Code of Administrative Procedure and chapter 24 of the Arbitration Procedural Code, which has retained its effect, which is not only the subject of discussion in the legal literature, but also often leads to conflicts in law enforcement practice" ^[20].

The draft CAS, prepared in order to implement the provisions of the Constitution of the Russian Federation, as well as the Federal Law "On the Judicial System of the Russian Federation", the Federal Law "On Courts of General Jurisdiction in the Russian Federation", regulates the procedure for the implementation of administrative proceedings by courts of general jurisdiction ^[21].

At the same time, the provisions of the CAS of the Russian Federation do not apply to proceedings in cases of administrative offenses. But a citizen has the right to challenge actions committed in the course of proceedings on an administrative offense, which entailed a violation of his rights and freedoms, in accordance with Chapter 22 of the CAS of the Russian Federation if the proceedings have been terminated or have not been initiated and these actions entail legal consequences for a citizen, and no other procedure for challenging them is provided by legislation ^[22].

Proceedings on administrative offenses as an integral part of administrative jurisdiction, at the suggestion of Yu. N. Starilov, we will call by our name: "administrative proceedings for the resolution of cases of offenses" ^[23], and we will cease to consider the activities of courts of general jurisdiction to consider such cases, as P. I. Kononov correctly suggests, as "administrative, managerial" ^[24].

However, the proceedings in cases of administrative offenses have the following features: "there are two types of proceedings – in cases under the jurisdiction of the court, and in complaints against decisions of executive authorities and local governments. In the second type of proceedings, a public-law dispute arises between a private person not with an administrative prosecution body, but with an executive authority that subjected the applicant to administrative punishment (an administrative jurisdiction body)" ^[25].

Although the question is which procedure for resolving cases of bringing to administrative responsibility is more effective, i.e. the "more developed" civil procedural form, within which arbitration courts operate, resolving such cases, or that "procedural paradigm, within which courts of general jurisdiction operate, considering" similar cases of administrative offenses [26 p. 18.].

A. I. Stakhov also proposed to supplement the list of administrative cases considered by the court in the order of administrative proceedings in accordance with the CAS of the Russian Federation, cases of administrative offenses considered by courts of general jurisdiction and arbitration courts in accordance with the procedure regulated by the Administrative Code of the Russian Federation ^[27].

Some authors note: "In fact, the CAS of the Russian Federation is not a legislative act that fully codifies administrative proceedings" ^[28]. Currently, there remains an urgent discussion on the issue of the content of the CAS of the Russian Federation, the coverage of areas of public administration, within which disputes continue to be considered according to the rules of other types of legal proceedings. And the consolidation of administrative proceedings in the CAS of the Russian Federation, and in the APC of the Russian Federation within the framework of another procedural form - arbitration proceedings, leaves on the agenda the question of why the CAS of the Russian Federation, having absorbed the provisions excluded from the CPC of the Russian Federation on the consideration of cases arising from public legal relations, did not affect the APC of the Russian Federation, which still contains similar provisions, and the relevant cases are assigned to the jurisdiction of arbitration courts, the functioning of which the CAS of the Russian Federation does not cover? ^[29]

Consequently, the question of further codification of administrative proceedings may well be raised by excluding the relevant provisions from the Agro-industrial Complex of the Russian Federation and transferring them to the CAS of the Russian Federation. Or it is possible to raise the issue of the development and adoption of the Administrative Procedure Code of the Russian Federation (as a variant of the Procedural Administrative Code of the Russian Federation - PAK RF), which would include cases of administrative offenses, the so-called administrative and punitive process, the elaboration of the provisions of which at the level of scientific and educational literature is already underway ^{[6, 30, 31]}.

Continuing the analysis and relying in its course on the interpretation of current research on this issue, the author considers it necessary to proceed from the idea of the identity of the concepts of administrative procedural law (or administrative process) and administrative proceedings, and considers it important to make his author's contribution to the development of this issue and define their content in a more concretized way, eliminating the terminological ambiguity. Administrative procedural law (or administrative process) should be considered as the activity of courts only and include administrative proceedings and proceedings in cases of administrative offenses, namely judicial proceedings.

Therefore, by now the following components of the administrative process (legal proceedings) have been formed:

- administrative proceedings carried out in accordance with the procedure provided for by the CAS of the Russian Federation;

- administrative proceedings carried out in accordance with the procedure provided for by the Agro-industrial Complex of the Russian Federation;

- judicial proceedings in cases of administrative offenses, including their consideration and judicial review, the application by the court of certain measures to ensure the production of these cases or the authorization of their application within the framework of the implementation of the norms of the Administrative Code of the Russian Federation.

At the scientific level, researchers note the need to adopt a basic law on the procedure for the implementation of administrative proceedings when considering and resolving administrative cases by courts for the protection of violated or disputed rights, freedoms and legitimate interests of citizens, rights and legitimate interests of organizations, as well as other administrative cases arising from administrative and other public legal relations and related to the exercise of judicial control over the legality and validity of the exercise of state or other public powers, namely the Procedural Administrative Code of the Russian Federation.

It is proposed to adopt the following structure of the Procedural Administrative Code of the Russian Federation.

Part I. General provisions.

Part II. An administratively contentious process. It will include the CAS of the Russian Federation in full, taking into account the provisions of the APC of the Russian Federation concerning the resolution of cases arising from public legal relations (Chapters 22, 23, 24, 26) and combined with the provisions of articles of the CAS of the Russian Federation, as well as Chapter 30 of the Administrative Code of the Russian Federation, which regulates the revision of resolutions and decisions in cases of administrative offenses. As an example, S. V. Nikitin's remark can be cited: "An administrative statement of claim challenging a normative legal act must contain information about which rights, freedoms and legitimate interests of the person who applied to the court have been violated (Part 2 of Article 209 of the CAS of the Russian Federation). Similar provisions are contained in Part 1 of Article 192 and paragraph 1 of Part 1 of Article 193 of the Agro-Industrial Complex of the Russian Federation" ^[32].

Part III. Administrative and punitive process. It should contain sections IV and V of the Administrative Code of the Russian Federation on proceedings in cases of administrative offenses, taking into account the provisions on the consideration of cases of administrative offenses (Chapter 25) withdrawn from the Agro-industrial Complex of the Russian Federation and combined with the provisions of articles of the Administrative Code of the Russian Federation. It is possible to use the provisions of the draft law "Procedural Code of the Russian Federation on Administrative Offenses" for this section ^[33]. When substantiating the essence of the administrative and punitive process of the Russian Federation, the author took into account the opinion of M. Ya. Maslennikov, who in particular noted that the "procedural" part of the Administrative Code of the Russian Federation requires an independent status, is designed to resolve procedural issues more differentially, but its substantive part should remain in the Administrative Code of the Russian Federation ^[34].

The need to prepare a draft law of the new PAK of the Russian Federation is due to the fact that the reform of the institute of administrative procedure will be incomplete and incomplete without improving the CAS of the Russian Federation in terms of including in it the provisions of the Agro-industrial Complex of the Russian Federation and the procedure for considering cases of administrative offenses (bringing to administrative responsibility and the procedure for appealing acts of bodies of administrative jurisdiction on bringing to administrative responsibility) and strengthening judicial control over actions of administrative jurisdiction bodies by reforming the procedural and procedural mechanism of consideration of cases of administrative offenses by courts of general jurisdiction (as an option, and arbitration courts, but according to the rules of the PAK RF) in accordance with the requirements of Articles 10, 118 of the Constitution of the Russian Federation, based on which courts can resolve cases only through legal proceedings, and not in any other procedural forms.

In terms of the administrative and punitive process, it seems that the continuity of the stages of proceedings in cases of administrative offenses and their relationship, starting with the initiation of the case and ending with the appeal of decisions taken in the case, imply the need to place procedural and procedural norms that will guide officials, non-judicial bodies, as well as judges of courts of general jurisdiction (as an option and arbitration courts, but according to the rules of the PAK of the Russian Federation), in a single codified act. This can also be justified by the fact that the CPC of the Russian Federation also contains pre–trial proceedings - procedural activities of the prosecutor's office, preliminary investigation and inquiry bodies.

To do this, it is necessary to separate from the current Administrative Code of the Russian Federation the norms governing the proceedings in cases of administrative offenses, combining them within the framework of the PAK of the Russian Federation with the norms of Chapter 25 of the APC of the Russian Federation. At the same time, the procedural procedure for bringing to administrative responsibility by arbitration courts considering a case on bringing to administrative responsibility within their competence will be regulated precisely by administrative procedural legislation (PAK RF).

In the part "Administrative and punitive process" of the RF PAK, include: general provisions, the procedure for proceedings in cases of administrative offenses carried out by the public administration, the judicial procedure for proceedings in cases of administrative offenses, the execution of administrative penalties, legal assistance in cases of administrative offenses.

The "General provisions" section of this part will regulate the issues of the main provisions of the proceedings in cases of administrative offenses; participants in the proceedings in cases of administrative offenses, their rights and obligations; evidence and evidence in the proceedings in cases of administrative offenses; the application of measures to ensure the proceedings in cases of administrative offenses.

The section "Procedure for proceedings in cases of administrative offenses carried out by bodies and their officials" will include issues of the procedure for initiating an administrative offense case; consideration of an administrative offense case by bodies and their officials; revision of decisions in cases of administrative offenses by the public administration. The elaboration of this issue in the literature has already been done in a number of works ^{[4, 35-37]}.

The section "Judicial procedure for proceedings in cases of administrative offenses" may include issues of judicial review of a case of an administrative offense; consideration by the court of complaints (protests) against decisions and (or) decisions that have not entered into force in cases of administrative offenses; review by the court of decisions and (or) decisions that have entered into force in cases of administrative offenses.

The conclusions that follow from the article and are proposed for discussion are as follows.

1.                  To begin the development of the draft Procedural Administrative Code of the Russian Federation (PAK RF).

2.                  It is proposed to include in the draft Procedural Administrative Code of the Russian Federation (PAK RF) the parts "Administrative-controversial process" and "Administrative-punitive process".

3. The part "Administrative dispute process" may contain the entire CAS of the Russian Federation, taking into account the provisions of the APC of the Russian Federation concerning the resolution of cases arising from public legal relations (Chapters 22, 23, 24, 26) and combined with the provisions of articles of the CAS of the Russian Federation.

4.                  In the part "Administrative and punitive process" of the PAK of the Russian Federation, in particular, include the procedure for proceedings in cases of administrative offenses carried out by bodies and their officials (by analogy with the CPC of the Russian Federation), and the judicial procedure for proceedings in cases of administrative offenses.

In conclusion, we emphasize the fact that the ideas, problems and contradictions systematized and analyzed by the author, as well as practical recommendations based on their explication, certainly do not claim to be exhaustive due to the limited scope of the article. Their more detailed interpretation is presented in a number of the author's works, which reveal this problem in the context of its individual problematic and prognostic aspects. However, nevertheless, the justifications expressed in this article make a certain contribution to the problem under study, identifying a number of key areas for the formation of an institutional framework for improving administrative procedural legislation and administrative procedural proceedings, which it is advisable to implement in the near future, as well as eliminating terminological ambiguities in this area. In any case, the scientific discussion on the problem under study is not complete and should be continued in accordance with the developing legislative and judicial practice due to domestic realities.