The Procedure for Challenging Decisions and Actions of Public Authorities Has Been Clarified

On June 28, 2022 The Supreme Court adopted Resolution No. 21 of the Plenum “On Certain Issues of Application by Courts of the Provisions of Chapter 22 of the Code of Administrative Procedure of the Russian Federation and Chapter 24 of the Arbitration Procedural Code of the Russian Federation”, which clarified the rules for challenging decisions and actions of public authorities.

General provisions ¹

• Chapters 22 of the Code of Administrative Procedure (CAP) and 24 of the Arbitration Procedural Code (APC) contains provisions to consider disputes in the field of public relations regarding decisions and actions (inactions) of public authorities and officials both in written and oral, as well as both in normative and non-normative form.
• According to the rules of Chapters 22 of the CAP and 24 of the APC, the following acts can be challenged: (1) individual acts that do not have regulatory features, i.e. do not contain generally binding rules, and (2) actions that are not expressed in the form of rulings, or acts of omission that may entail violation of the rights of both a specified subject and unspecified person.
• Acts of tax inspections, customs inspections, and other acts that serve only as a means of fixing the detected violations cannot be the subject of challenge. Decisions of authorities based on these acts can be challenged, whereas inspection acts can be challenged only in strictly established cases².
• Documents confirming certain circumstances cannot be challenged: certificates, letters, etc.
• It is not allowed to appeal decisions and actions of persons that are related to the implementation of the provisions of the Penal Enforcement Code, as well as the Criminal Procedure Code (CPC) and the Administrative Code, directly affecting the ascertainment of a person's guilt or the procedure for appealing which is set by the CPC, other chapters of APC and Administrative Code. Meanwhile, for example, the application of measures to ensure production may be challenged if such application is not directly related to the ascertainment of the fact of the person's guilt and violates the applicant’s rights.

The procedure for applying to the court³

• Courts choose the type of legal proceedings depending on the legal relations on which the applicant’s claim is based. The incorrect name of the procedural document (“statement of claim” or “statement” instead of “administrative statement of claim for CAP” and “statement in accordance with Chapter 24 of the APC” for the APC) does not affect the type of legal proceedings and cannot be deed as a ground for refusal to consider the case.
• If the court finds that the contested act contains legal norms and the case is beyond its jurisdiction, the court returns the relevant application without consideration. If the case remains within the jurisdiction of this court, but the type of proceedings is changing, the court sets aside the application and obliges applicant to eliminate the defects of application like it was submitted under the rules of Chapter 21 of the CAP or Chapter 23 of the APC. If the challenging act contains legal norms only in part, then the application is accepted in part of challenging the non-normative content.
• In addition to individuals and legal entities, administrative plaintiffs may be public authorities and local self-government bodies, officials of these bodies, as well as human rights commissioners, prosecutors and other persons authorized to file administrative lawsuits in defense of an indefinite circle of persons (public interests).
• Cases on challenging decisions and actions are generally subject to the jurisdiction of the court at the location of the body that issued the challenging decision. When filing an administrative claim (CAP), jurisdiction may be determined by the place of residence of the plaintiff – citizen or at the address of the administrative plaintiff – organization (except cases of challenging the decisions of the Federal Bailiff Service (FSSP) and the actions of bailiffs). A claim may also be filed in court at the place of execution of the disputed decision if the authority’s powers extend to several districts, constituent territory several territories of the Russian Federation, or the entire territory of the Russian Federation (for example, at the place of execution of executive actions).

Consideration of the case

• The courts are not bound with the legal qualification of the relations provided by the applicants, since the court has the right to recognize the decision as lawful or illegal with references to laws that are not specified in this decision.
• The court, on its own initiative, regardless of the plaintiff’s application, establishes the fact of violation of rights, compliance with deadlines, reasons for missing the deadline for applying to the court (limitation period).
• The court may, without a person’s petition, recognize as a valid reason for missing the limitation period, when the person reasonably believed that the protection of the rights would be carried out without going to court (filing an administrative complaint), though in the other proceedings the principle is that the court does not examine the circumstances of missing the term without a corresponding statement from the party.
• If the limitation period is missed due to mistakes in application (which served as the basis for returning the application), then the term cannot be restored. However, if the applicant did not attach the entire set of documents through no fault of his own (for example, the state authorities did not issue the documents within the prescribed term), then such a circumstance is a valid reason for missing the term for application.
• The court should consider that the legal validity (formal compliance with the law) of the contested rulings is not a duly reason for refusal, since violations often formally comply with legal requirements, but may violate the rights of applicants in context and in specific conditions. The Supreme Court points out that the applicant should not be burdened with duties only to comply with the formal requirements of the law. Thus, the court must check whether the object of the challenge (ruling, action, act of omission) is justified, reasonable and necessary to achieve legal goals. At the same time, the absence of the fault of public authorities is not a ground for refusing to satisfy an application.
• The legality of decisions on maintaining the Unified State Register of Legal Entities and the Unified State Register of Real Estate is verified by means of claim proceedings. Dealing with the possibility of considering jointly property and non-property claims, the court should be guided by the principle of procedural economy. Following this, the claims regulated by the provisions of civil legislation should be isolated into separate proceedings only if it is impossible to consider them jointly with the claims for violation of administrative proceedings. For example, consideration of claims for compensation for moral damage is subject to separate consideration.
• If a decision or action of a public authority is recognized as illegal, the court has the right to oblige the defendant with the need to make a ruling on the restoration of the right and set a reasonable time for the fulfillment of this obligation. To strengthen the rule of law, the court may indicate the need to publish an amended ruling issued by the authority.
• Courts have to monitor the execution of judgments. If officials fail to eliminate violations, a court fine may be imposed.
• Cases of challenging non-normative legal acts in the sphere of entrepreneurial and other economic activity are considered according to the rules of Chapter 24 of the APC. The court has the right, within the framework of such a dispute, to consider a property claim or to separate it into a separate proceeding. For timely elimination by the authority or official of the violation, the court may award in favor of the person whose rights have been violated, a court fine.
• The court, when considers the decisions of the authorities that had the possibility of discretion, checks the implementation of such discretion. Overrun of this margin of appreciation contrary to legitimate goals or requirements of proportionality is the basis for the conclusion of violation of the margin of appreciation and, consequently, for recognition of the decision as illegal.
• If the law establishes a specific procedure for adopting the decision of any authority, the court verifies this procedure.
• Acts containing explanations of legislation (methodological recommendations, certificates, letters, etc.) which were taken into account by public authorities when making a decision, should also be taken into account by the court when analyzing the legality of the decision, but the court may not take them into account if they contradict the law.
• The court, recognizing the challenging decision, action (act of omission) illegal, may refuse to impose on the defendant (body or person endowed with public authority) the obligation to perform any actions if on the day of the case review the legislation prohibits the implementation of the relevant actions.
• When deciding in a case on the protection of the rights, freedoms, and legitimate interests of an indefinite circle of persons (public interests), the court has the right to determine the method of posting information about the judgment, ensuring free access to this information of any person (citizen or organization), rights, freedoms, whose legitimate interests could be violated by the challenging decision.
• In the framework of administrative proceedings it is impossible to jointly consider civil and administrative cases, but in the framework of arbitration proceedings, such simultaneous consideration of cases is possible in order to implement the principle of procedural economy.

¹ See provisions 1 – 8 of the Resolution.
² See part 2 of Art. 9 of the Federal law dated July 31, 2021 No. 248-FZ “On state control (supervision) and municipal control in the Russian Federation”.
³See provisions 9 – 14 of the Resolution.