«RELAPSES OF THE MIDDLE AGES»

Overcoming of the prohibition on familiarization with the discontinued business
Oksana KUROCHKINA, Konstantin KUROCHKIN,
Lawyers of the Law Bar Customs & Corporate Lawyers
The article "New advocatory newspaper", № 7, 2010 

Part 1 of the article. 25.1 of the administrative code of the Russian Federation provides for the right person, in respect of which carries out manufacture on business about an administrative offence, to get acquainted with all materials of the case. But has the right to whether the person, or his representative, to get acquainted with the materials of the case on administrative offence and to receive copies of the documents contained in the case, if the proceeding is terminated?

Judicial practice on the issue of the application of these standards up to a recent time was practically non-existent. However, the lawyers Collegium of advocates «the Customs lawyer» (hereinafter - the Board) managed to achieve the solution of this issue in favor of the participants of Affairs about administrative offences.

The Board asked the representatives of one of the company (hereinafter - the Company) in connection with the following circumstances.

In the course of 2008, one of the customs in respect of the Company have been prosecuted on administrative offences (in a total of 17 cases). Further proceedings on the cases concerning administrative offences was terminated in connection with the expiration of the limitation period of bringing to administrative responsibility.

The refusal of the customs
After receiving the copies of the decisions on termination of proceedings in cases on administrative offences, the Company's representative - lawyer of the Board, acting on the basis of the order, submitted to the customs body of the request for the for review of materials of these cases on administrative violations and request for copies of documents available in cases of administrative offenses.

To satisfy the petition and request the customs service was denied.
The refusal of the customs authority to the fact, that manufacture on Affairs about administrative offences is completed, the order for the termination of these cases came into force, therefore, Company is not a party to the proceedings on the cases of administrative offences. According to the customs, these circumstances into force of hours. 1 of the article. 25.1, art. 25.5 the administrative code of the Russian Federation does not give the Company the right to get acquainted with the case materials and to receive copies of the documents.

These faults of the customs body was appealed by the lawyers of the College in the East-Siberian transport Prosecutor's office on the basis of article. 10 of the Federal law № 2202-1 of 17 January 1992. «On the Prosecutor's office of the Russian Federation» as contrary to article. 24 of the Constitution of the Russian Federation, h. 1 of the article. 24.4, h. 1 of the article. 25.1, art. 25.5 the administrative code of the Russian Federation in their comprehensive interpretation.
The East-Siberian transport Prosecutor's office stated: «the administrative code of the Russian Federation contains no direct indication of reading a lawyer with the materials of the case, in which the decision has entered into legal force. In connection with this dispute arising out of or on the application of art. 25.1, 25.5 of the administrative code of the Russian Federation shall be resolved in court».

Thus, the dispute was reduced to a matter of interpretation and application of h. 1 of the article. 24.4, h. 1 of the article. 25.1, art. 25.5 the administrative code of the Russian Federation.

The decision of the court of first instance
Lawyers Collegium was prepared statement in the Irkutsk region's Arbitration court about a recognition of illegal refusals customs in the familiarization with the materials of the cases on administrative violations and the provision of copies of documents available in these cases.

The decision of the Arbitration court of the Irkutsk region to meet the stated requirements has been denied. The court concluded that, in accordance with the provisions of art. 24.4, and 25.5 25.1 of the administrative code of the Russian Federation rights of the persons called to administrative responsibility, and the defense counsel may be realized only in manufacture on business about an administrative offence in the period from the moment of drawing up the Protocol on administrative offence and to consideration of the complaint to the decision on business about an administrative offence. Because of the decree for termination of the proceedings on cases concerning administrative offences, the Company did not appealed against and at the time of contacting a lawyer entered into force, in connection with which the Company has lost the status of a person, in respect of which carries out manufacture on business about an administrative offence, therefore, the provisions of art. 24.4, and 25.5 25.1 of the administrative code of the Russian Federation on arising between the Company and the customs legal relations does not apply. In addition, the court pointed out that during the proceedings on the cases concerning administrative offences another lawyer, who participate in a case on the stage of the administrative investigation, had been given the opportunity to familiarize themselves with the materials of the cases.

At the same time, the court concluded that the Company not deprived of the opportunity to obtain information on the circumstances of the cases on administrative violations in the procedure established in articles 23 and 387 of the Customs code of the Russian Federation and the order of the state customs Committee of the Russian Federation of 2 February 2004. № 137 «On approval of the Procedure for providing interested persons information about them, available to the customs authorities.»

Not agreeing with the decision of the court of first instance, lawyers filed an appeal.

The arguments of lawyers
Lawyers was the analysis of norms of the legislation, in one degree or another enshrine the right of participants of manufacture on Affairs about administrative offences acquainted with the materials of Affairs. Proceeding from the content of the investigated norms of the legislation, the lawyers drew the attention of the court of the appeals instance to the next.

Interpretation of art. 24.4, and 25.5 25.1 of the administrative code of the Russian Federation, as expressed in the decision of the court of first instance, contrary to h. 2 of the article. 24 of the Constitution of the Russian Federation, according to which the organs of state authorities, their officials are obliged to provide everyone with access to documents and materials directly affecting his rights and freedoms.

In addition, in accordance with article 23 of the administrative code of the Russian Federation cases about the administrative offences considered by the judges, bodies and officials authorized to examine cases on administrative offences.

In the paragraph. 28.7-28.10 Instructions on record keeping in the arbitration courts of the Russian Federation, approved by the order of the Russian Federation from March 25, 2004. № 27, the court pointed to the right of the persons involved in the case, to get acquainted with the materials of court cases transmitted to the archive, as well as to receive copies of the documents contained in the case.

In other words, after consideration by arbitration courts of cases on administrative offence and reaching a final decision on the case, including the order for termination of the proceedings, the person in respect of which conducted the proceedings in the case shall have the right to familiarize themselves with case materials and to receive the necessary copies of documents.

According to the paragraph. 12.1 Instructions for judicial office in the district court, approved by the order of the RF Ministry of April 29, 2003. № 36, court cases are issued for familiarization in the premises of the court the lawyers acting on cases in the court of first instance and appeal, as well as introducing the works, completed production.

In the decision of the RF Supreme dated 3 April 2007. No ГКПИ07-40 on the case on the verification of the legality of the item. 13.6 the above-mentioned Instructions (in the previous wording) made the following desired conclusion: the administrative code of the Russian Federation provides that a person, in respect of which the proceedings are conducted on the administrative offence, shall have the right to get acquainted with all materials of the case (art. 25.1), the same right shall belong to the defender and the representative (art. 25.5). In connection with this provision of the right to familiarization with the case of persons participating in business, their representatives, as well as other persons is an integral component of the constitutional right of citizens to judicial protection and to access to justice.

Lawyers made a conclusion that the legislation provides for the possibility of acquaintance of the persons involved in the case, with the materials of the case after the completion of the case on administrative offence without the establishment of any time-limits. During the realization of the right to familiarization with the materials of the case it is of paramount importance only the legal status of the person - to get acquainted with the materials of the cases shall be entitled to a person who is a party to the case. Otherwise, the Instructions of the Supreme judicial authorities would be contrary to the norms of the administrative code of the Russian Federation.
In addition, the interpretation of the article. 24.5, h. 1 of the article. 25.1, h. 5 of art. 25.5 the administrative code of the Russian Federation with regard to the consideration of cases in the judicial authorities, customs authorities and other bodies, specified in the administrative code of the Russian Federation, can't be different.

It should be noted that the criminal procedure code provides for the right of parties to criminal proceedings acquainted with the materials of the criminal case, make copies of the materials of the criminal case, including with the help of technical means (article. 42, 44, 47, 53, 54, 55). In civil proceedings, the persons participating in the case, have the right to get acquainted with the materials of the case, make extracts from them and make copies (art. 35 OF THE CIVIL PROCEDURAL CODE).

Lawyer, performing the functions of the defender or the representative in manufacture on business about an administrative offence, acts in accordance with the norms of the administrative code of the Russian Federation, the agroindustrial complex of the Russian Federation and the Federal law of may 31, 2002. № 63-FZ «About lawyer activity and legal profession in the Russian Federation» (art. 5 h. 2, item. article 4. 2 of the Law on advocacy).

The defender and the representative, admitted to participation in manufacture on business about an administrative offence, has the right to get acquainted with all materials of the case, to represent proofs, to declare petitions and taps, to participate in the consideration of the case, and to appeal against the application of measures of maintenance of manufacture on case, judgment on the case, use other procedural rights (art. 25.5 the administrative code of the Russian Federation).

An exhaustive list of the powers of attorney is contained in the item. 3, art. 6 of the Law on legal practice: a lawyer has the right to collect the information necessary to provide legal assistance, including request help, characteristics and other documents from the bodies of state power, bodies of local self-government, as well as public associations and other organizations, and also has the other rights. The mentioned bodies and organizations in the order established by the legislation, are obliged to issue a lawyer requested documents or certified copies thereof not later than within a month from the day of receipt of the request of the lawyer. Thus, for she was not there are any limitations of rights, including the right to familiarization with the materials of the cases on administrative violations.

Also in the course of consideration of a case on appeal lawyers was marked by the fact, that manufacture on Affairs about administrative offences terminated on the grounds, provided for by art. 24.5 the administrative code of the Russian Federation.

In accordance with art. 30.1 of the administrative code of the Russian Federation the decision on business about an administrative offence can be appealed against by the persons specified in art. 25.1-25.5 of the administrative code of the Russian Federation.
In this regard, the familiarization with the materials of the terminated case - means of providing the interested person the right to appeal against the decision of the state body in court. Therefore a positive solution of the issue in the first place corresponds to the article. 46 of the Constitution of the Russian Federation, according to which everyone shall be guaranteed judicial protection of his rights and freedoms. From this constitutional norm and the corresponding her the provisions of the international legal acts, in particular art. 8 and 29 of the The universal Declaration of human rights, as well as p. 2 and subparagraph «a» of item. 3, art. 2 and para. 1 of the article. 14 of the International Covenant on civil and political rights, it follows that the state is obliged to ensure the exercise of the right to judicial protection, which must be fair, competent, full and effective.

In the sense of article 6 of the Law on advocate activity defender provides legal assistance of the person in respect of whom proceedings concerning an administrative offence, as well as the person in respect of whom the decision on the above-mentioned case. The defender, the representative shall have the right to participate in subsequent legal proceedings stipulated by the administrative code of the Russian Federation: the revision of decisions on the case or at the stage of execution of a decision on business about an administrative offence.

At the moment of the request of the lawyer of the College in customs body with the request of familiarization with the materials of the cases of administrative offences of the period of appeal against decisions on Affairs about the administrative offences provided for by art. 30.1, 30.9 given article. 30.3 of the administrative code of the Russian Federation, has not expired.

Such thus, the refusal of the customs authority to provide information on the cases concerning administrative offences of legal request has created obstacles for timely implementation by the Applicant of the right to judicial protection, the result of which could be the termination of the proceedings on the cases of administrative offences on the grounds set forth in paragraph 2 hours. 1 of the article. 24.5 the administrative code of the Russian Federation.

It should be noted that the court of first instance, referring to the article. 23 and 387 of the Customs code of the Russian Federation and the order of the state customs Committee of the Russian Federation of 2 February 2004. № 137 «On approval of the Procedure for providing interested persons of the information of them, available at the customs bodies», does not take into account, that in the case of legal disputes between the Company and the customs authorities have arisen in connection with initiation and termination of cases on administrative violations, therefore, in this case, apply the provisions of the administrative code of the Russian Federation.

Moreover, these norms do not provide for the right to become acquainted with the materials of a case concerning an administrative offence in full, and only provide the possibility to obtain information in the form of a letter of the customs body or on magnetic media.

The position of the court of appeal
The fourth arbitration court of appeals found convincing arguments of lawyers and came to the conclusion that the decision of the court of first instance shall be repealed with the adoption of a new legal instrument for the satisfaction of claims of the Company. The court pointed out in its resolution that the consideration of this case also subject to the application of the legal position of the constitutional Court expressed in the decree of the Russian Federation dated June 16, 2009. № 9-Paragraph: «the Position of the item. 6 hours. 1 of the article. 24.5 the administrative code of the Russian Federation, assuming termination of manufacture on business about an administrative offence in connection with the expiration of limitation for administrative responsibility, does not allow unjustified deterioration of legal status of the person and can not be considered as contrary to the objectives of protection of his rights and freedoms.

However, a waiver of the administrative prosecution in connection with the expiration of the limitation period of bringing to administrative responsibility should not impede the implementation of the right to compensation for harm caused by illegal actions of officials, committed in manufacture on business about an administrative offence. Dismissal of a case is not a barrier to the establishment of the other procedures or the guilt of the person as a basis for its attraction to civil liability, or his innocence, nor illegality occurred in respect of a person of the administrative prosecution in the case of the causing of harm him: disputes on compensation of the inflicted by an administrative persecution of damage to property and the compensation of the moral harm or, on the contrary, about the recovery of material and moral damage in favor of the victim of the administrative offence shall be resolved in civil court proceedings (art. 4.7 administrative code of the RF). <...>

In any case, termination of manufacture on business about an administrative offence the expiration of the limitation period of bringing to administrative responsibility should not hinder the use of the materials of the case as evidence in other proceedings. At this time, because in the decision about phase-out on business about an administrative offence are specified circumstances established during consideration of the case (clause. 4 h. 1 of the article. 29.10 of the administrative code of the Russian Federation), then, as follows from the h. 2 of the article. 30.7 of the administrative code of the Russian Federation, spreading the rule for decisions on complaints against decisions on the cases on administrative offences, these circumstances are subject to audit also under consideration in accordance with established procedure of the complaint to the decision on termination of proceedings under the case on administrative offence. <...>

Thus, in its constitutional and legal meaning in the system of current legislation of the position of the item. 6 hours. 1 of the article. 24.5 the administrative code of the Russian Federation assumes that in the case when the manufacture on business about an administrative offence was terminated in connection with the expiration of limitation for administrative responsibility, verification and assessment of the conclusions of a jurisdictional body that the actions of a specific person administrative offence is not excluded. Otherwise hinder the judicial protection of the rights and freedoms of citizens, making illusory mechanism for compensation of damage, caused as a result of the abuse of power, and, accordingly, would be contrary to articles 19, 45, 46, 52 and 53 of the Constitution of the Russian Federation».

Taking into account the given position of the constitutional Court of the Russian Federation the court the appeal court came to the conclusion that «in the event of termination of proceedings under the case on administrative offence and in connection with the expiration of the limitation period of bringing to administrative responsibility, the provisions of part. 1 of the article. 24.4, h. 1 of the article. 25.1 and h. 5 of art. 25.5 the administrative code of the Russian Federation may not be grounds for refusal to provide access to materials of a case concerning an administrative offence or issuance of copies of documents available in such a case».

The court of appeal noted in its resolution: «The fact, that during the proceedings on the cases concerning administrative offences with the materials of these cases was aware of the other representative of the Company, has no legal value, since the person привлекавшееся to administrative responsibility, can't be limited in the right to become acquainted with the materials of the case on administrative offence and after the cessation of the production of in this case».

The court also took into account the argument lawyers that during the consideration of cases on administrative offences other state authorities, rather than by a court, person, in respect of which proceedings have been instituted, shall have no fewer rights and guarantees, and stressed: «Otherwise would be contrary to the principle of equality before the law».
Thus, the Fourth arbitration court of appeal clearly and reasonably expressed with respect to the limits of application of h. 1 of the article. 24.4, h. 1 of the article. 25.1, art. 25.5 the administrative code of the Russian Federation, permitting the question, who became both for the Company and for the lawyers of principle, because the violation of procedural rights, established by the Constitution of the Russian Federation may not remain unpunished.