Rus News Journal

The decision of Plenum of the Supreme Court of the Russian Federation from February, 10th, 2009 N 2 Moscow About practice of consideration by courts of affairs about contest of decisions, actions (inactivity) of public authorities, local governments, officials, the state and municipal employees

With a view of maintenance of correct and uniform application of the legislation by disposal of legal proceeding about contest of decisions, actions (inactivity) of public authorities, local governments, officials, the state or municipal employees Plenum of the Supreme Court of the Russian Federation decides to make to courts following explanations:

1. According to article 46 of the Constitution of the Russian Federation and chapter 25 of the Civil remedial code of the Russian Federation (further - GPK the Russian Federation) citizens and the organisations have the right to address in court for protection of the rights and freedom with the statement for contest of decisions, actions (inactivity) of public authorities, local governments, officials, the state or municipal employees in which result, according to the specified persons, their rights and freedom have been broken or obstacles to realisation of the rights by them and freedom are created or any duty is illegally assigned to them or they are illegally made answerable.

certificates of public authorities, local governments, their officials, the persons state, municipal serving and equal to them concern decisions, accepted individually or jointly, containing the imperious will generating legal consequences for concrete citizens and the organisations. Thus it is necessary to consider that decisions can be accepted both in written, and in the oral form (for example, the announcement to the military man of summary punishment). In turn, the written decision is accepted as in the certain form established by the legislation (in particular, the order of the higher executive office of the government of the subject of the Russian Federation), and in any (for example, the written message on refusal of the official in satisfaction of the reference of the citizen).

on sense of chapter 25 GPK the Russian Federation concerns actions of public authorities, local governments, their officials, the state or municipal employees imperious will of the named bodies and persons which is not given the shape decisions, but has entailed infringement of the rights and freedom of citizens and the organisations or has created obstacles to their realisation. The requirements of officials of the bodies which are carrying out the state supervision and control expressed in the oral form, in particular, concern actions.

default by public authority, local government, the official, the state or municipal employee of the duty assigned to them by standard legal and other certificates concerns inactivity, defining powers of these persons (duty regulations, positions, regulations, orders). Inactivity, in particular, concerns nerassmotrenie references of the applicant the authorised person.

2. By the rules established by chapter 25 GPK the Russian Federation, decisions, actions (inactivity) can be challenged:

federal public authorities: representative (legislative) body of the Russian Federation, federal enforcement authorities, obrazuemyh according to the Constitution of the Russian Federation, the Federal constitutional law About the Government of the Russian Federation decrees of the President of the Russian Federation about system and structure of federal enforcement authorities, and also the territorial bodies created by federal enforcement authorities for realisation of the powers;

public authorities of the subject of the Russian Federation: Legislative (representative) body, the higher executive office and other public authorities, obrazuemyh according to the constitution (charter) of the subject of the Russian Federation and on the basis of the standard legal certificate of body of the legislative (representative) power of the subject of the Russian Federation and (or) its higher official;

local governments: a representative body of municipal union, local administration and other bodies provided by the charter of municipal union and possessing own powers under the decision of questions of local value.

3. To officials, decisions, actions which (inactivity) can be challenged by rules of chapter 25 GPK the Russian Federation, it is necessary to carry persons, constantly, temporarily, including on the special power, federal public authorities speaking on behalf to a name, other federal state structures, public authorities of subjects of the Russian Federation, local governments, Armed forces of the Russian Federation, other armies and military formations of the Russian Federation, made the challenged decision, made the challenged action (inactivity), having a binding character and mentioning rights and freedom of citizens and the organisations which are not in career dependence from these persons. The statement of the citizen who is in career dependence from persons, the decision, action which (inactivity) by it is challenged, considered by court by rules of chapter 25 GPK the Russian Federation only in a case when it is directly provided by the law (for example, a part of 3 articles 254 GPK the Russian Federation).

officials, in particular, concern:

the persons replacing the state posts of the Russian Federation (the posts established by the Constitution of the Russian Federation, federal laws for direct execution of powers of federal state structures), the persons replacing the state posts of subjects of the Russian Federation (the posts established by constitutions, charters, laws of subjects of the Russian Federation for direct execution of powers of state structures of subjects of the Russian Federation), the persons replacing municipal posts (elective officials of local government, and also the persons replacing these posts under the contract);

officials of service of the court enforcement officers, executing judicial decisions or decisions of other bodies, and also officials of service of the court enforcement officers, activities of the courts providing an established order;

officials of bodies of Office of Public Prosecutor, the decision, action which (inactivity) are not subject to contest as criminal legal proceedings, and also as manufacture on affairs about administrative offences (for example, during checks at realisation of supervision of execution of laws);

officials of the bodies which are carrying out the state control (supervision) over observance of the legislation and other standard legal certificates, in particular the state inspectors of work (article 359 of the Labour code of the Russian Federation, further - TK the Russian Federation), the state inspectors in the field of preservation of the environment of subjects of the Russian Federation (article 65 of the Federal law About preservation of the environment ) .

4. According to the positions fixed in articles 1, 8, 9, 10, 12 Federal laws About system of public service of the Russian Federation the citizens who are carrying out on the basis of the contract professional office activity on posts of federal public service (federal state civil service, military service, law-enforcement service) concern federal civil servants, founded by the federal law or other standard legal certificate of the Russian Federation, posts of the federal public service entering into the Register, confirmed by the President of the Russian Federation, and obtaining reward for the account of means of the federal budget. The citizens who are carrying out on the basis of the contract professional office activity on posts of the state civil service of the subject of the Russian Federation concern the state civil servants of the subject of the Russian Federation, founded by the law or other standard legal certificate of the subject of the Russian Federation, posts of the state civil service of the subject of the Russian Federation entering into the register, confirmed by the law or other standard legal certificate of the subject of the Russian Federation, and obtaining reward for the account of means of the budget of the subject of the Russian Federation (article 1, 8, 9, 10, 12 Federal laws About system of public service of the Russian Federation ) .

According to positions of articles 1, 2, 6, 7, 10 Federal laws About municipal service in the Russian Federation municipal employees are the citizens who are carrying out on a constant basis on the basis of the contract professional work on posts of municipal service who are established by municipal legal certificates according to the register of posts of municipal service in the subject of the Russian Federation, the confirmed law of the subject of the Russian Federation, and receiving the monetary maintenance at the expense of means of the local budget.

Thus it is necessary to mean that in federal public authorities, other federal state structures, public authorities of subjects of the Russian Federation, local governments the posts which are not posts according to the state and municipal service (point 6 of article 8 of the Federal law " can be provided; About system of public service of the Russian Federation a part of 2 articles 10 of the Federal law About municipal service in the Russian Federation ) . Decisions, actions (inactivity) of the persons occupying such posts, are not subject to contest by rules of chapter 25 GPK the Russian Federation.

5. In an order provided by chapter 25 GPK the Russian Federation, other affairs arising from public pravootnosheny and carried by public federal laws to a competence of the courts of the general jurisdiction, in particular about contest of decisions, actions (inactivity) of bodies which are not public authorities and local governments are considered and resolved also, but allocated by imperious powers in the field of the government or administrative powers in sphere of local government and the decisions carrying a binding character for persons in which relation they are taken out (for example, affairs about contest of decisions of qualifying boards of judges (article 26 of the Federal law " make; About bodies of judicial community in the Russian Federation ) Decisions of the invocatory commissions (point 7 of article 28 of the Federal law About a conscription and military service article 15 of the Federal law About alternative civil service ); affairs about contest of decisions of public authorities, local governments, the officials connected with the coordination and the permission to placing, designing, building, reconstruction, commissioning, operation, preservation and liquidation of buildings, structures, constructions and other objects, on motive of infringement of the rights and freedom of the applicant, obstacle creation to their realisation; affairs about contest of decisions, actions (inactivity) of state structures, local governments, the officials breaking the right of citizens and the organisations on access to the information (point 6 of article 8 of the Federal law About the information, information technology and about information protection ) .

By the rules provided by chapter 25 GPK the Russian Federation, are considered cases also about contest of decisions, actions (inactivity) of legal bodies and the individual businessmen accepted, made at realisation of the concrete transferred when due hereunder by them it is state - imperious powers.

legal bodies and the individual businessmen accredited when due hereunder for performance of works on certification, the official bodies authorised on carrying out of the state control (supervision) over observance of requirements of technical regulations, in particular, concern such persons (articles 2, 21, 26, 32 Federal laws On technical regulation ) The official bodies subordinated to federal enforcement authority, carrying out the cadastral account and conducting the state cadastre of real estate (article 3 of the Federal law About the state cadastre of real estate ) .

6. According to a part of 3 articles 22 GPK the Russian Federation to courts of law podvedomstvenny affairs about contest of decisions, actions (inactivity) of public authorities, local governments, officials, the state and municipal employees, except for the affairs carried by the federal constitutional law or the federal law to conducting of arbitration courts.

In courts of law irrespective of structure of participants pravootnosheny from which there was a requirement, evasion from the state registration of legal bodies, individual businessmen (point 3 of a part 1 and a part of 2 articles 33 of the Arbitration remedial code of the Russian Federation, further - agrarian and industrial complex of the Russian Federation) cannot be considered cases about refusal contest in the state registration. However affairs about refusal contest in the state registration of the noncommercial organisations, in particular public associations, the religious organisations, political parties, evasion from such registration podvedomstvenny to courts of law (article 23 point 5 [1] the Federal law About the noncommercial organisations articles 23, 42, 44 Federal laws About public associations articles 12, 14 Federal laws About a freedom of worship and religious associations article 20 of the Federal law About political parties ). The question on jurisdiction of affairs on refusal contest in the state registration of edition of mass media or evasion from such registration is subject to the permission depending on organizational - the legal form of the legal person in which edition (article 19 of the Law of the Russian Federation " will be organised; About mass media ) .

According to positions of a part of 2 articles 27, point 2 of article 29 and a part of 1 article 197 of agrarian and industrial complex of the Russian Federation affairs about contest of not standard legal certificates of public authorities of the Russian Federation, public authorities of subjects of the Russian Federation, local governments, decisions and actions (inactivity) of state structures, local governments, other bodies and officials, including the court enforcement officers mentioning the rights and legitimate interests of the applicant in sphere of enterprise and other economic activities have not the right to consider and resolve courts of law. At application of the specified positions it is necessary to consider that the current legislation does not carry to individual businessmen of the notaries who are engaged in private practice, lawyers (article 3 and 4 Bases of the legislation of the Russian Federation about a notariate, articles 10, 12, 15 Federal laws About lawyer activity and legal profession in the Russian Federation ).

7. As chapter 25 GPK the Russian Federation courts have not the right to consider cases about contest of following decisions, the actions (inactivity) connected with application of norms criminal and criminally - a procedural right, and also norms of the Code of the Russian Federation about administrative offences (further - KoAP of the Russian Federation):

decisions, the actions (inactivity) made specified in article 123 Criminally - the remedial code of the Russian Federation (further - UPK the Russian Federation) persons and the norms connected with application criminal and criminally - a procedural right at manufacture realisation on concrete criminal case (including pre-judicial manufacture). At the same time in porjadke, provided by chapter 25 GPK the Russian Federations, can be challenged the actions of officials made by them at realisation operatively - search actions and not subject to the appeal as criminal legal proceedings, and also action of officials operatively - the search bodies which have refused to the person which guilt is not proved in the order established by the law, in granting of data about received about it in a course operatively - search actions of the information, or given such data not in full volume (a part of 3 and 4 articles 5 of the Federal law About operatively - search activity ) ;

decisions, the actions (inactivity) connected with the permission by authorised bodies of a question on clearing of a criminal liability (in particular, about the appeal the person who has served time, non-use concerning it the certificate about amnesty);

directly named in UPK the Russian Federation of decisions and actions which are not connected with any raised criminal case: decisions about refusal in criminal case excitation (a part of 1 article 125 UPK the Russian Federation), refusal in reception of the message on a crime (a part of 5 articles 144 UPK the Russian Federation), decisions of the General public prosecutor of the Russian Federation or its assistant on delivery of the person (article 463 UPK the Russian Federation);

decisions for which chapter 30 of KoAP of the Russian Federation establishes an order of their appeal, in particular decisions on affairs about administrative offences (including their appeal on motive nerazreshenija in the decision specified regarding 3 articles 29. 10 KoAP of the Russian Federation of a question on the withdrawn things and documents, on things which arrest), and also definitions about refusal in business excitation about an administrative offence is put;

decisions, actions (inactivity) in which relation of KoAP of the Russian Federation does not provide an order of the appeal and which, being inseparably linked with concrete business about an administrative offence, cannot be a subject of the independent appeal (the proof on business which reports on application of measures of maintenance of manufacture on the case of an administrative offence are also). In this case arguments about inadmissibility of the concrete proof or application of measures of maintenance of manufacture on the case of an administrative offence can be stated both during a legal investigation, and in the complaint to the decision or the decision on the case of an administrative offence. However if manufacture on the case of an administrative offence is stopped, the actions made at realisation of manufacture on this business, caused infringement of the rights and freedom of the citizen or the organisation, creation of obstacles to realisation of the rights by them and freedom, illegal putting on of any duty after phase-out on business, the Russian Federations can be challenged by rules of chapter 25 GPK. In the same order actions of officials in a case when business about an administrative offence was not raised can be challenged.

At the same time affairs under complaints held in custody suspected and accused, and also the persons condemned to imprisonment, on actions of administration of pre-trial detention centres or the correctional facilities, the maintenances connected with inadequate conditions (for example, neobespechenie condemned by appropriate medical aid), and also on decisions on application by administration of pre-trial detention centres or correctional facilities of measures of summary punishment are considered by rules of chapter 25 GPK the Russian Federation.

Non-observance by the person, authorised to resolve concrete remedial questions, requirements UPK the Russian Federation and KoAP of the Russian Federation about necessity of removal by results of their consideration of those or other remedial documents (for example, the direction of the letter instead of the remedial document) in itself cannot affect by sight legal proceedings in which the document which has been taken out by results of consideration of a remedial question is subject to the appeal (contest).

8. The Russian Federations business are not subject to consideration on norms of chapter 25 GPK:

about contest by the persons specified regarding 1 article 259 GPK the Russian Federation, decisions, actions (inactivity) of public authority, local government, election committee, the commission of a referendum, the official breaking suffrages and the right to participation in a referendum of citizens of the Russian Federation (the manufacture order on such affairs is certain by chapter 26 GPK the Russian Federation);

about entering of corrections and changes in civil registration, if the local governments allocated when due hereunder taking into account positions of point 2 of article 4 of the Federal law About acts of civil status powers on the state civil registration, in the absence of dispute on the right have refused to make corrections or changes to the made records (the manufacture order on such affairs is certain by chapter 36 GPK the Russian Federation);

about contest of notarial actions, including the local administrations of settlements made by heads and special representatives officials of local government of the settlements, the authorised officials, or about refusal in fulfilment of these actions by the named persons (the manufacture order on such affairs is certain by chapter 37 GPK the Russian Federation).

9. Courts should mean that correct definition of legal proceedings kind by them (claim or on the affairs arising from public pravootnosheny) in which are subject to protection of the right and freedom of the citizen or the organisation, not consent with the decision, action (inactivity) of public authority, local government, the official, the state or municipal employee, depends on character pravootnosheny from which the requirement of the person who have addressed for judicial protection, instead of against the form of a reference to the court selected it (for example, filing of application in an order provided by chapter 25 GPK the Russian Federation, or giving of the statement of claim) follows.

10. Norms GPK the Russian Federation do not suppose possibility of contest as chapter 25 of this Code of decisions and actions (inactivity) of controls by the organisations and their associations, public associations, political parties, and also their heads, therefore such affairs should be considered by rules of claim manufacture, including in cases when the applicant refers to positions of the Law of the Russian Federation About the appeal in court of actions and the decisions breaking the rights and freedom of citizens .

11. Patrimonial jurisdiction of affairs about contest of decisions, actions (inactivity) of public authorities, bodies of military management, local governments, officials, including military officials, the state and municipal employees is defined according to articles 24 - 27, parts of 2 and 3 articles 254 GPK the Russian Federation, point 1 of a part of 3 articles 9, articles 14 and 22 Federal constitutional laws About warships of the Russian Federation .

the Supreme Court of the Russian Federation considers as court of the first instance of cases about contest of not standard legal certificates of the President of the Russian Federation, chambers of Federal Meeting, the Government of the Russian Federation; affairs about contest of decisions about stay or the termination of powers of judges or about the termination of their resignation. Affairs about contest nenormativnyh the President of the Russian Federation, the concerning rights, freedom and interests of military men protected by the law, the citizens passing military gathering, are considered by Military board of the Supreme Court of the Russian Federation.

the Supreme courts of republics, regional, regional courts, courts of cities of federal value, court of autonomous region and courts of autonomous regions consider cases about contest of decisions, the actions (inactivity), connected with the state secret, including about refusal contest in the exit visa from the Russian Federation because the applicant is informed on the data making the state secret; affairs about contest of decisions of qualifying boards of judges, except for decisions on stay or the termination of powers of judges or on the termination of their resignation. District (naval) military courts consider civil cases about contest by military men, the citizens passing military gathering, actions (inactivity) of bodies of military management, military officials and the decisions accepted by them, connected with the state secret.

District courts consider all cases about contest of decisions, the actions (inactivity), the Russian Federations not carried by article 27 GPK and point 1 of a part of 3 articles 9 of the Federal constitutional law About warships of the Russian Federation to jurisdiction of the Supreme Court of the Russian Federation, the Russian Federations not carried by article 26 GPK to jurisdiction of the Supreme courts of republics, regional, regional courts, courts of cities of federal value, court of autonomous region and courts of autonomous regions, and also not carried by articles 7, 14 and 22 Federal constitutional laws About warships of the Russian Federation to jurisdiction of warships. Garrison warships consider all cases about contest by military men, the citizens passing military gathering, actions (inactivity) of bodies of military management, military officials and the decisions accepted by them, not carried to jurisdiction of Military board of the Supreme Court of the Russian Federation and district (naval) warships.

World judges have not the right to consider cases of the given category (including about contest of decisions of the official of service of court enforcement officers, its actions (inactivity) on execution of the executive document which has been given out by the world judge), as not carried by the law to their jurisdiction (article 23 GPK the Russian Federation).

2 articles 254 GPK Established by a part the Russian Federation patrimonial jurisdiction cannot be changed under the agreement of the applicant and the body (person), made the challenged decision, made challenged action (inactivity).

12. It is necessary for courts to mean that as applicants on the given category of affairs citizens and officials, and as applicants - the organisations not only the commercial and noncommercial organisations, but also public authorities, the local governments challenging obligatory for execution by them of the decision, actions (inactivity) of public authorities, local governments, officials, the state and municipal employees, not connected with realisation by applicants of imperious powers (for example, contest by local government of refusal of registering body in the state registration of the charter of municipal union or infringement of term of such registration) can act.

According to a part of 1 article 46 GPK the Russian Federation citizens or the organisations have the right to address in court in protection of the rights and freedom of other persons under their request or in protection of the rights and freedom of an uncertain circle of persons in the cases directly provided by the law. According to the rules fixed in article 398 GPK the Russian Federation, as applicants on these affairs foreign citizens, persons without citizenship and the foreign organisations can act also.

13. On the basis of a part of 1 article 45 GPK the Russian Federation the public prosecutor has the right to address in court with the statement in an order provided by chapter 25 GPK the Russian Federation, for protection of the rights and freedom of the concrete citizen about contest of decisions, actions (inactivity) in which result for it there have come the consequences named in article 255 GPK the Russian Federation provided that the citizen on a state of health, age, incapacity and other good reasons cannot address itself in court, and also in protection of the rights and freedom of an uncertain circle of persons, the Russian Federation, subjects of the Russian Federation, municipal unions if such decisions, by actions (inactivity) break the rights and freedom of these persons, obstacles to realisation of the rights by them and freedom are created or any duty is illegally assigned to them.

14. Statements on affairs of the given category, within the jurisdiction to district courts and garrison warships, are brought an action in the location (in a place of an actual arrangement) public authority, body of military management, local government, the official, including the military official, the state or municipal employee, the decision, action which (inactivity) are challenged. Thus it is necessary to mean that the Russian Federation is provided by a part of 2 articles 254 GPK alternative jurisdiction for applicants - citizens. These persons have the right to put in at own discretion the statement for contest of decisions, actions (inactivity) in which result there have come the Russian Federations specified in article 255 GPK consequences, in court in a place of the residence. The applicant - the citizen owing to a part of 2 articles 441 GPK the Russian Federation cannot address in court in a place of the residence with the statement for contest of decisions, actions (inactivity) of officials of service of the court enforcement officers connected with execution of judicial decisions and decisions of other bodies. Such statements are brought an action, around which activity fulfil the duties the specified officials.

If the body or person location does not coincide with territory on which their competence (for example extends, the local administration is located outside the limits of the given municipal union) the statement is brought an action around which activity the duties fulfil the specified body or the person.

15. The statement for contest of decisions, actions (inactivity) of public authorities, local governments, officials, the state or municipal employees should meet the requirements, the provided paragraph of 1 article 247 second to a part and article 131 GPK the Russian Federation, in the part which are not contradicting features of manufacture on affairs of the given category, established by chapters 23 and 25 GPK the Russian Federation. In it, in particular, should be specified, what decisions, actions (inactivity), according to the applicant, are illegal, what rights and freedom are broken (to what realisation of the rights and freedom obstacles) are created.

it is necessary to attach a statement copy, the document confirming payment of the state tax, the power of attorney or other document certifying powers of the representative of the applicant, the data confirming the fact of acceptance of challenged decisions, fulfilment of challenged actions or inactivity To the statement for contest of decisions, actions (inactivity) of public authorities, local governments, officials, the state or municipal employees (a part of 1 article 246, article 132 GPK the Russian Federation). Thus it is necessary to consider that according to subparagraph 9 of point 1 of article 33336 of the Tax code of the Russian Federation (further - NK the Russian Federation) the public prosecutor is released from state tax payment at a reference to the court with the statement in protection of the rights, freedom and legitimate interests of citizens, an uncertain circle of persons, interests of the Russian Federation, subjects of the Russian Federation and municipal unions.

Having established that the statement does not meet the specified requirements, the judge according to a part of 1 article 136 GPK the Russian Federation takes out definition about ostavlenii statements without movement and appoints reasonable term for correction of its lacks. In case of default or inadequate performance of the requirements containing in definition, the judge makes the actions specified regarding second named article.

16. According to a part of 1 article 254 GPK the Russian Federation the citizen, the organisation has the right to address directly in court or in higher as subordination public authority, local government, to the official, the state or municipal employee. Thus, the applicant posesses the order option (administrative, judicial) protection of the rights and freedom. At the same time it is necessary to mean that federal laws the pre-judicial order concerning contest of separate decisions, actions (inactivity) can be provided. For example, by point 5 of article 1012 NK the Russian Federation it is established that the decision on attraction to otvetstvennosti for fulfilment of the tax offence which are not containing signs of an administrative offence, or the decision on refusal in bringing to account for fulfilment of the tax offence which are not containing signs of an administrative offence, can be appealed against in a judicial order only after the appeal of this decision in higher tax department.

17. The judge refuses acceptance of the statement on the basis of article 248 or point 1 of a part of 1 article 134 GPK the Russian Federation in cases, when:

the statement is subject to consideration and the permission in other judicial order, that is statement consideration nepodvedomstvenno to court of law or the statement is subject to consideration as criminal legal proceedings, manufacture on affairs about administrative offences, and also as appeal, cassation or supervising manufacture (the actions of judges connected with realisation of manufacture on a concrete civil case) are challenged. In definition it is necessary to specify norms of the law according to which the legal investigation about contest of the given decision, action (inactivity) of public authority, local government, the official, the state or municipal employee should be carried out in other judicial order. However the judge has not the right to refuse statement acceptance if will establish that the given statement is subject to consideration and the permission in other kind of civil legal proceedings. In this case the judge leaves the statement without movement and explains to the applicant necessity of registration of the statement with observance of requirements GPK the Russian Federation shown concerning the corresponding kind of civil legal proceedings provided that it does not break rules of jurisdiction of a legal investigation (a part of 1 article 246, a part of 3 articles 247, a part of 1 article 136 GPK the Russian Federation). If consideration and the permission of the declared requirements to incompetently given court, the statement comes back to the applicant (a part of 1 article 246, a part of 3 articles 247, point 2 of a part of 1 article 135 GPK the Russian Federation);

in the statement of the citizen or the organisation the decision, action (inactivity) of public authority, local government, the official, the state or municipal employee, obviously not mentioning their right and freedom whereas this circumstance is a necessary condition of check of the decision, action (inactivity) in an order provided by chapter 25 GPK the Russian Federation (for example, the statement of the organisation for contest of the decision of qualifying board of judges for the recommendation of the citizen on a post of the judge) is challenged. In a case when from the statement it is not seen that the challenged decision, action (inactivity) obviously does not mention the right and freedom of the applicant, the judge has not the right to refuse acceptance of such statement;

the statement is submitted to protection of the rights and freedom of other person body or the person to whom by federal laws such right is not given;

there is a judgement which has entered validity accepted under the statement for the same subject if legitimacy of decisions, actions (inactivity) of bodies and the persons named regarding 1 article 254 GPK the Russian Federation, was already checked by court.

If the circumstances which are the basis for refusal in acceptance of the statement, will be established after statement acceptance, the judge on the basis of the paragraph of the second of article 220 GPK the Russian Federation stops manufacture on business. At the same time the judge has not the right to stop manufacture on business if the challenged decision, action (inactivity) is already cancelled, but the applicant insists on a legal investigation in essence and elimination of the admitted infringements of its rights and freedom or obstacles to their realisation as the question on in this case should be investigated, whether in full admitted infringements of the rights and freedom of the applicant that can be made only by statements consideration in essence thus have been eliminated.

18. According to positions of a part of 1 article 257 GPK the Russian Federations on affairs about contest of decisions, actions (inactivity) of public authorities, local governments, officials, the state and municipal employees concern interested persons corresponding body (its structural division) or the person, made the challenged decision or made challenged action (inactivity).

In necessary cases the court has the right to get under the initiative to take part in business in quality of interested persons, in particular:

corresponding public authority or local government if the decision, action (inactivity) of structural division of public authority or the local government which is not the legal body is challenged;

the corresponding public authority, local government or the official, representatives on the decision of questions in the given sphere of the government or local government if made the challenged decision, the body which has made action (inactivity) does not concern public authorities or local governments, but is allocated by imperious powers in the field of the government or administrative powers in local government sphere. So, at contest of the decision of the invocatory commission in participation in business can be involved and the military commissariat which is territorial body of the Ministry of Defence of the Russian Federation (point 2 of Position on the military commissariats, the President of the Russian Federation confirmed by the Decree from September, 1st, 2007 N 1132) and will organise an appeal on military service (article 26 of the Federal law About a conscription and military service ) .

In a case when to a legal investigation the public authority or local government is reorganised or abolished, the court gets to take part in business of its assignee or body to which competence restoration of the broken rights and freedom of the applicant and removal of obstacles concerns realisation of its rights and freedom. If by the time of consideration of the statement the person, decisions or actions which (inactivity) are challenged, any more is not the official, the court solves a question on attraction to participation in business of the person, holding this post, or corresponding body to which competence restoration of the broken rights and freedom of the applicant or removal of obstacles concerns realisation of its rights and freedom.

19. Proceeding from positions of a part of 4 articles 254 GPK the Russian Federation the judge has the right to suspend the challenged decision not only under the statement of the persons participating in business, but also under own initiative that does not determine result of a legal investigation court.

the Question on stay of action of the challenged decision can be resolved by court at any stage of manufacture on business: by preparation of business for proceeding, during a legal investigation, and also after the business permission, but till the moment of the introduction of a judgement in validity if from the filed materials, explanations of the applicant follows that stay of action of the challenged decision can prevent possible negative consequences for the applicant.

However if the federal law provides stay of performance of the corresponding decision in case of its contest, the judge is obliged to check up, whether performance of the challenged decision by body or the official after receipt to them of the complaint to this decision (for example, by point 7 of article 28 of the Federal law " is suspended; About a conscription and military service article 15 of the Federal law About alternative civil service article 52 of the Federal law About competition protection ) . If it it has not been made, the court should take out definition about stay of action of this decision to the introduction of a judgement into validity.

20. On affairs about contest of decisions, actions (inactivity) of public authorities, local governments, officials, the state and municipal employees a duty on dokazyvaniju legality of challenged decisions, actions (inactivity) according to a part of 1 article 249 GPK the Russian Federation is assigned to body or the person which challenged decisions have made or have made challenged actions (inactivity).

With a view of correct consideration and the permission has put court have the right to obtain on demand proofs under the initiative. For default of requirements of court about granting of proofs officials can be subjected the penalty in the size established by a part of 2 articles 249 GPK the Russian Federation.

21. Because according to a part of 1 article 77 of the Constitution of the Russian Federation and with article 2 of the Federal law About the general principles of the organisation legislative (representative) and executive powers of the government of subjects of the Russian Federation (with the subsequent changes) system of public authorities of subjects of the Russian Federation is established by them independently, as preparation of business for proceeding it is necessary for courts to obtain on demand and attach to materials has put texts of constitutions (charters), laws and other standard legal certificates defining powers of legislative (representative), higher executive powers of the government, officials and other public authorities, and also an order of acceptance by them of not standard legal certificates or realisation of actions if that is established.

By preparation for business proceeding about contest of the decision, action (inactivity) of local government, the official of local government in each case it is necessary to obtain on demand and attach to materials has put the text of the charter of the given municipal union, as in it the structure of local governments, an order of their formation and power, and in necessary cases - also texts of constitutions (charters) and laws of subjects of the Russian Federation, with which separate powers of representative bodies of municipal unions is defined (parts 1 - 3 articles 34 a part of 11 articles 35 of the Federal law " are defined; About the general principles of the organisation of local government in the Russian Federation (with the subsequent changes).

At contest of decisions, actions (inactivity) of officials, the state or municipal employees it is necessary to attach to materials has put texts of duty regulations, regulations, positions, the orders defining powers of specified persons.

22. By preparation of business for proceeding it is necessary to consider that the circumstances important for the correct permission of the given category of affairs, in particular, concern:

observance of term of the reference with the petition;

legality and validity of the made decision, perfect action (inactivity).

23. With a view of observance of 1 article 257 GPK established by a part the Russian Federation of term of disposal of legal proceeding of the given category the court should take measures to the appropriate and fastest notice of the persons who have addressed in court with the statement for contest of decisions, actions (inactivity), and also interested persons (their representatives) on time and a proceeding place.

For lack of the persons specified regarding 1 article 257 GPK the Russian Federation, business can be considered in case there is data about their appropriate notice on time and a legal investigation place.

At impossibility of a legal investigation for lack of interested persons court, recognising obligatory an appearance in judicial session of the representative of public authority, local government, the official, the state or municipal employee (a part of 4 articles 246 GPK the Russian Federation), trial of business on the basis of a part of 1 article 169 GPK postpones the Russian Federation.

In case of absence in judicial session without valid excuse the representative of public authority, local government, the official, the state or municipal employee which appearance is recognised by court by obligatory, it is necessary to discuss a question on possibility of imposing of the penalty in the limits established by a part of 4 articles 246 GPK the Russian Federation.

to the Facts of absence of the representative of body, the official, the state or municipal employee, made the decision, made action (inactivity), can be given a corresponding estimation not only court of the first instance (article 226 GPK the Russian Federation, a part of 4 articles 246 GPK the Russian Federation), but also by a legal investigation court of cassation instance (article 336 GPK the Russian Federation), in particular at discussion of questions about presented by body or the official new proofs (a part of 1 article 358 GPK the Russian Federation), and also by a legal investigation court of supervising instance.

24. In view of positions of article 256 GPK the Russian Federation, it is necessary to find out on each business, whether terms of the reference of the applicant in court and what reasons of their infringement are observed, and the question on application of consequences of non-observance of the given terms should be discussed irrespective of, whether interested persons referred to this circumstance.

Thus it is necessary to consider that besides specified regarding 1 article 256 GPK the Russian Federations three-monthly term of the reference with the petition the current legislation are provided special terms of contest of separate decisions, actions or inactivity (for example, a part of 2 articles 441 GPK the Russian Federation, article 26 of the Federal law About bodies of judicial community in the Russian Federation article 357 TK the Russian Federation, point 3 of article 10 of the Federal law About refugees point 4 of article 7 and point 7 of article 131 of the Federal law About a legal status of foreign citizens in the Russian Federation Point 3 of article 8 of the Federal law About the compelled immigrants ) .

Proceeding from positions of a part of 1 article 4 and a part of 1 article 256 GPK the Russian Federation term of the reference with the petition starts to flow with the date following day when the applicant knew about infringement of its rights and freedom, about creation of obstacles to realisation of its rights and freedom, about putting on of a duty or about bringing to account. The duty dokazyvanija this circumstance lies on the applicant.

As questions of observance of term of a reference to the court concern merits of case, conclusions about its restoration or about refusal in restoration owing to a part of 4 articles 198 GPK the Russian Federation should contain in a judgement.

At an establishment of the fact of the admission of without valid excuse specified term court, proceeding from positions of a part of 6 articles 152, a part of 4 articles 198 and a part of 2 articles 256 GPK the Russian Federation, refuses satisfaction of the statement in preliminary judicial session or in judicial session, having specified in a motivation part of the decision only in an establishment court of the given circumstance.

25. By a legal investigation in essence the court should find out: whether

has body (person) of power on decision-making or action fulfilment. In a case when acceptance or decision nonacceptance, fulfilment or nesovershenie actions on the force of the law or other standard legal certificate is carried to the body or person discretion, the decision, action which (inactivity) are challenged, the court has not the right to estimate expediency of such decision, action (inactivity), for example at contest of the inactivity expressed in nonacceptance of the certificate about rewarding of the concrete person; Whether

the order of decision-making, fulfilment of actions by body or the person is observed in the event that such requirements are established by standard legal certificates (the form, terms, the bases, procedure and etc.). Thus it is necessary to mean that only essential non-observance of the established order testifies to illegality of challenged decisions, actions (inactivity); whether

there corresponds the maintenance of the challenged decision, perfect action (inactivity) to requirements of the law and other standard legal certificate, regulating the data pravootnoshenija.

as the Basis to satisfaction of the statement infringement of requirements of the legislation at least on one of the bases can serve, withvidetelstvujushchih about illegality of the accepted decisions, perfect actions (inactivity).

26. On sense of the norms fixed in chapters 23 and 25 GPK Russian Federation, possibility of acceptance by court of refusal of the statement accepted to manufacture on the given category of affairs it is not excluded. At the decision of a question on an admissibility of acceptance of refusal of the statement taking into account positions of a part of 2 articles 39, articles 173 GPK the Russian Federation the court should find out motives on which the applicant refuses the requirements, whether such refusal by its free will is, whether it contradicts the law and whether breaks the rights and freedom of the applicant, and also other persons which interests it represents, whether are clear to the applicant of a consequence of acceptance by court of refusal of the statement.

27. On affairs of the given category the court has not the right to confirm the agreement of lawsuit between the applicant and the interested person as in this case the court checks legality of challenged decisions, perfect actions (inactivity) of public authorities, local governments, officials, state and municipal employees and those or other arrangements cannot affect the decision of this question between the applicant and the interested person.

28. Proceeding from positions of article 258 GPK the Russian Federation the court satisfies the statement for contest of the decision, action (inactivity) of public authority, local government, the official, the state or municipal employee if will establish that the challenged decision, action (inactivity) breaks the rights and freedom of the applicant, and also does not correspond to the law or other standard legal certificate.

making of the decision on satisfaction of the statement, the court has not the right to fall outside the limits the considered requirements. So, having established that the written reference, arrived to the official, is not considered during 1 article 12 of the Federal law provided by a part About an order of consideration of references of citizens of the Russian Federation term, the court should recognise inactivity of this official illegal and to oblige him to consider the reference of the applicant in the term established by court, without determining a being of the decision which should be accepted.

At satisfaction of the statement in rezoljutivnoj it is necessary to specify judgement parts:

or on a recognition illegal decisions (not standard legal certificate, the decision on putting on on the applicant of a duty or the decision on attraction of the applicant to responsibility) and in necessary cases on acceptance in the term of measures established by court for restoration of in full broken rights and freedom of the applicant or removal of obstacles to their realisation;

or on a recognition illegal action (inactivity) and on putting on on body or the official of a duty during the term defined by court to make concerning the applicant concrete actions.

the Named term is necessary for establishing taking into account character of business, and also actions which should be made with a view of elimination of in full admitted infringement of the rights and freedom of the applicant or an obstacle to realisation of its rights and freedom.

At decision removal on the case of protection of the rights and freedom of an uncertain circle of persons to court also it is necessary to define a way of placing of the information on the accepted decision, providing easy approach to this information of any person (the citizen or the organisations), the rights and which freedom could be broken the challenged decision, action (inactivity) so that such person had possibility in due time to carry out protection of the subjective rights.

29. As by chapters 23 and 25 GPK the Russian Federation it is not established any features concerning court costs on affairs about contest of decisions, actions (inactivity) of public authorities, local governments, officials, the state and municipal employees, a question on the court costs suffered by applicants and interested persons, it is authorised court according to the rules provided by chapter 7 GPK the Russian Federation.

In case of a recognition proved statements for contest of the decision, action (inactivity) of public authority, local government or the structural division of such bodies which are the legal body, court costs are subject to compensation according to this body or structural division. Taking into account that the specified bodies represent itself as interested persons, whose decisions, actions (inactivity) are recognised by illegal, they compensate court costs in accordance with general practice at the expense of own means.

the court costs suffered by the applicant can be collected From the public authority got to take part in business and local government, in case of a recognition illegal decisions, the action (inactivity) accepted or made:

structural division of this body, not being legal body;

not being legal body the body having imperious powers and created on the basis of the decision of this public authority or local government;

official, the state or municipal employee who carry out professional office activity in the given body.

30. Directing a judgement for elimination of the admitted infringement of the law to the head of body or the person, decisions, actions which (inactivity) have been challenged, or in higher as subordination body or to the person (a part of 2 articles 258 GPK the Russian Federation), in the covering letter it is necessary to specify the Russian Federation according to which on judgement execution should be informed in court and to the citizen not later than within a month from the date of decision reception in the requirement of a part of 3 articles 258 GPK. Decision execution can be made by the rules specified regarding 2 articles 206 GPK the Russian Federation.

it is necessary for Courts to carry out control over receipt of such data in court and at their absence to direct to body or to the person the inquiry, concerning judgement executions.

31. If by a legal investigation lacks of activity of bodies or the persons, made the challenged decisions, made the challenged actions (inactivity) are established, the court should react to the admitted infringements by removal of private definition to a higher body or to body in which carries out professional work the official, the state or municipal employee.

32. By disposal of legal proceeding of the given category under appeals and representations of the public prosecutor a duty on dokazyvaniju legality of challenged decisions, the perfect actions (inactivity), 1 article 249 GPK assigned by a part the Russian Federation on body or the person, made such decision or made such action (inactivity), remains for these persons and at a stage of cassation manufacture on business at research accepted by court of cassation instance of new proofs which could not be brought into court the first instance or which research by court of the first instance it has been illegally refused.

33. In connection with acceptance of the present decision to exclude from the decision of Plenum of the Supreme Court of the Russian Federation from January, 20th, 2003 N 2 About some questions which have arisen in connection with acceptance and introduction in action of the Civil remedial code of the Russian Federation points 8 - 10.

the Chairman of the Supreme Court of the Russian Federation

V.Lebedev

the Secretary of Plenum,

the judge of the Supreme Court

the Russian Federation

V.Doroshkov