Some Issues of Initiation of Administrative Proceedings in the Russian Federation

Abstract

The paper examines some problems of the procedure for initiating administrative proceedings under Russian law. Administrative proceedings currently represent an independent procedural form of protection of public rights and interests, while being the «antipode» against civil proceedings. However, the administrative procedure legislation does not provide for any criterion for determining cases of public legal nature, which causes the problem of determining the applicable legal proceedings when initiating specific cases. The author proves that public law, unlike private law, always belongs to an unlimited number of persons. By virtue of this, cases of a public legal nature should also be determined based on the attribution of the disputed right. It is proposed to consolidate as a mandatory element of an administrative statement of claim the public nature of the right or interest violated, in the opinion of the administrative plaintiff, by acts, decisions or acts (or omissions to act) of public authorities. Since in a number of administrative cases the law provides for the mandatory participation of a judicial representative with a law degree or Cand. Sci. (Law) degree, it is proposed in such cases to fix the requirement to indicate in the administrative statement of claim the rules of law governing disputed legal relations, as well as regulatory and other legal acts to be applied in the case (by analogy with arbitration legal proceedings and the presentation of a statement by the prosecutor in civil proceedings). The rule of Article 128 of the Code of Administrative Procedure of the Russian Federation (CAP) concerning the right of a court to refuse a person to accept an administrative statement of claim, if its content does not indicate a violation of his rights by a contested act of public authority, has been criticized. It is proposed to exclude this provision from CAP due to the contradiction of its legal position of the Constitutional Court of the Russian Federation.