Isn`t it time to reform administrative legal proceedings?Need of acceptance uniform are administrative - the procedural code ripened long ago, and is caused, besides certainly accusatory bias, owing to the compelled finding of judges on the party of charge that in itself is brazen violation of the Constitution, and other essential gaps in legislative regulation of many points of order of administrative production.
Now, maintaining the protocol of court session, by consideration by the judge individually cases of administrative offenses are not provided, though it is not forbidden. Some judges on the initiative keep protocols, but such, unfortunately, absolute minority.
In my practice the case when the judge was limited to research of only one proof on business - statements of the director of the attracted legal person for association in one production of seven cases, recognition of fault, and mitigation of punishment is, and upheld all seven resolutions of administrative body. However, after the introduction to the lawyer, all seven decisions were cancelled by court of cassation instance, and by new consideration, four resolutions were recognized illegal, on one the limitation period of performance of the resolution expired.
There are no accurate, legislative bases for cancellation of judgments, superior courts which work by consideration of criminal and civil cases (Art. 379 of the Criminal Procedure Code, Art. 362 of GPK, the Art. of 288 agrarian and industrial complexes).
Questions of imposing of judicial penalties and drives, and also and other questions of observance of an order in court session are not settled. Judges it is compelled apply analogies to criminal and civil trial, depending on the main specialization.
Requirements to registration of powers of representatives are insufficiently accurately formulated. For example, cases when they to young lawyers refused the admission to participation in process, on the basis of the petition of the person brought to administrative responsibility at absence at them to notarially certified power of attorney are known to me. At the same time judges just applied standard of the p. 3 of Art. 25. 5 Administrative Code, sending to other acts establishing an order of registration of powers of the representative. Such provisions are enshrined in the Civil code of the Russian Federation and GPK Russian Federation. At the same time judges forget that in the review of the legislation and jurisprudence of the Supreme Court of the Russian Federation for the fourth quarter 2008, the order of registration of powers of the defender or representative in administrative process is explained.
Namely as the Code of the Russian Federation about administrative offenses does not regulate a question of how powers of the representative on participation in case of an administrative offense have to be issued, the matter can be resolved in relation to provisions of the p. 2 and the p. 6 of Art. 53 of GPK Russian Federation in which the order of registration of powers of the representative, including and his admission on an oral statement of the principal is enshrined.
There is no procedural regulation concerning charge maintenance (the prosecutor, body, the official) though administrative legal relationship are based on the power and submission. Assignment of a duty of maintenance and “ advances “ administrative materials on the judge inadmissibly since it contradicts the fundamental principle of equality and competitiveness of the parties. About what competitiveness can there be a speech if the judge is forced to combine in one person the party of charge and actually permission of business on a being. It is very difficult to compete with himself.
The actual procedural inequality of the legal entities and individuals brought to administrative responsibility since in agrarian and industrial complex exists chapter 25 regulating the rights of the parties and an order of consideration though its norms and are far from an ideal, but by consideration of administrative affairs in courts of law of similar norms is not present at all.
Questions of providing the appropriate notice and providing an appearance not only the person brought to administrative responsibility, but also the victims, witnesses, experts, etc. are not settled. In practice, judges just assign these duties to participants of process, or in general ignore.
Procedural situation, the rights and duties of the person which initiated proceedings on an administrative offense, in particular inspectors of traffic police is not defined. Often judges interrogate these persons in quality “ witnesses “ though with modification of Art. 30. 9 The Administrative Code, these officials acquired the right of the appeal of the judgment, i.e. already are interested in outcome of the case.
The persons participating in consideration of the case that too generates a set of disputable situations have also open a question of terms and procedure of production and delivery, or dispatch of judicial acts.
In the existing Code about AP, there is a set of the omissions violating the rights of the persons participating in administrative process:
1. Art. 25. 6. Today the witness is deprived of the right to be and give evidences in the presence of the lawyer.
2. Art. 27. 3. The list of the bases for administrative detention is not specified. Exclusiveness of a case can always be treated is very free.
3. Art. 27. 5. It is not specified from what moment 3 or 48 hours of administrative detention are reckoned. It is meant that from the moment of drawing up the protocol on administrative detention. It would be correct to specify what is reckoned from the moment of the actual detention (as in the Criminal Procedure Code of the Russian Federation).
4. Art. 30. 2. Does not contain requirements to contents of the complaint that in practice allows some judges to stop production according to the complaint, and in certain cases, even to return it to the applicant without consideration.
Long ago separate, and scattered in other codes and various industry regulations, rules of consideration of administrative affairs are time to aggregate and systematize all. The fact that the legislative initiative of adoption administratively procedurally of the code was taken by the Commissioner for Human Rights in the Russian Federation allows to hope, for adoption of this major document in the near future.