Public Plaintiffs. "legal Information Agency", 6 October 2017
People and public organizations will be allowed to bring collective claims to court including claims in favour of unlimited number of victims. Primarily, by doing this it is supposed to protect the rights of the clients of banks, mobile communications and other companies. The current Civil Processual Code RF (CPC) delegates the right to put in a claim in favour of public interests to the state bodies only, whereas the consumer's rights may be defended by the public organizations as well. In all other cases every victim of infringement should lay an individual claim on their own or as part of a group.
Judicial collective farm
A draft law prepared by the Ministry of Justice RF provides a new procedure for the civil proceedings - collective legal proceedings. They can be initiated by at least forty people. It means that their claims should be similar, addressed to the same defender (with co-defenders) and all members of the team should use the same way of defending their rights. It is also necessary to prove that "multiplicity of the group or indefiniteness of the number of its members" makes an individual solution of a disputable issue or solution by means of a collective claim, more difficult.
The new rule will enable all members of the initiative group to authorize a representative without having dozens of powers of attorney notarized. Personal attendance of each participant of such a "collective farm" at every court hearing won't be necessary. Moreover, after the beginning of considering a collective claim the court determines a period of time when other people who are interested in the case can join the claim.
It is primarily planned to solve problems of defending consumers' rights by means of group proceedings. At present, infringements on the part of credit organizations, mobile communications companies, insurance companies and other participants of the market, are frequent. For example, the "Tinkoff" bank unilaterally decreased an interest rate on the current deposit agreements two years ago. Only several clients managed to recover the due money and exact a forfeit and compensation for moral damage in court. Typical conditions for service (agreements) of all mobile communications companies contain conditions infringing on the rights of clients - their illegality is also proved by the Arbitration Court.
At present consumers are defended not only by public organizations but by authorized state bodies as well. Rospotrebnadzor is entitled to put in claims defending indefinite number of people. The Federal Anti-Monopoly Service often defends clients' interests (it managed to restore the rights of the "Tinkoff" bank depositors).
In all other areas of the civil proceedings collective claims may be made only in cases directly stated in the current legislation. Such rights are secured for the Commissioner for Human Rights, the Prosecutor's Office, the Bank of Russia and several other state bodies. The Ministry of Justice does not plan to provide public or other organizations with the right to defend all or part of Russians.
Society and state
Methodology of considering group claims is fixed in the current Administrative Proceedings Code (APC) and the Arbitration Processual Code RF. Demands to the state bodies may be initiated by a team of twenty-one participants, and an economic dispute - by at least six plaintiffs.
Experts questioned by LIA are skeptical about the current APC norms for collective claims - practice shows that most often they are not even accepted. Most frequently activists fail to gather a twenty-men group. For instance, the Court of Belgorod refused to consider claims of ten handicapped convicts from the penal colony about conditions of their keeping - feeding conditions, opportunity to use an electric oven and a micro-wave. Other claims were not accepted also because of formal reasons. Thus, 36 residents of Tyumen failed to claim the decision to construct a new building beside their house, even breaching the stated construction restrictions, because of the mistakes made during the registration of their application. And the Leningrad Regional Court acknowledged as impossible consideration of a collective claim to the municipal administration because people who were interested in the case, having mentioned the authority of the representative in the application, did not give an additional power of attorney.
On the one hand, the draft law presented to the public unifies current procedures. On the other hand, it introduces even more restrictions for plaintiffs. In particular, keeping an opportunity for a human rights activist to put in a claim practically to every action and decision of a state body, the Ministry of Justice officials mark social and pension welfare, health protection and medical aid, housing and communal services, education and environment protection.
Practice of arbitration courts is quite different- those who are involved in legal economic relationship actively use
methods of collective defense of rights. Moreover, demands of people who are not entrepreneurs are often considered in such a way. For example, Muscovites who owned flats in the house in Denezhny lane 22, managed to defend the right of collective ownership of an uninhabited premise (cellar).
Nevertheless, some aspects of considering collective demands in arbitration courts are not settled yet. Thus, the court "divided" a single claim of a group of shareholders of the OJSC "SIBUR Holding" to compensate losses happened because of the securities cost underestimation. For, every owner demanded a certain sum of money, i. e. had individual demands coming out of homogeneous and mono typical legal relationship.
The servants of economic Justice also refused to consider a collective claim of Alexander Bratantchyuk and other holders of the so-called credit notes sold by the "Trust" bank. The Bank of Russia and the state corporation "Deposit Insurance Agency" unilaterally terminated obligations to such investors while carrying out a bail-out. At present jurisdiction of this case is under consideration in the Supreme Court of Russia.
Old song about the main
Experts mark that the draft law presented by the juridical body borrows ideas from the Conception of the Single Civil Processual Code of the Russian Federation which was worked out three years ago. It was prepared by the leading national law scientists. "Firstly, the use of the collective claim institute saves time of the judges, for it enables to consider a lot of similar-type demands in a single case,find out those who suffered and equalize their chances for legal defense. Secondly, public interests are defended because unlawful activity of some organization or person is stopped. Thirdly, rights and interests of many people, each of whom has no need to put in a separate claim, are defended. And finally, consolidated consideration of homogeneous demands enables to avoid passing contradictory judicial acts that could be possible in consideration of separate civil claims", - stated Vladimir Yarkov, Head of the Civil Process Department of the Ural State Juridical Academy.
At the same time, the conception authors pointed to a lot of "underwater rocks" of unification in the order of collective claims consideration. In particular, it was proposed to give the right to put in group claims to the participants of even not single, but homogeneous legal relations in order to prevent disputes about separation of general and individual demands. Experts considered dangerous the so-called alternative jurisdiction - an opportunity for plaintiffs to choose a court (the right of a consumer to appeal to the court in a defender's whereabouts, or in a place where most of the plaintiffs live). Such a "benefit" creates the risk of simultaneous initiation of several alternative cases.
The experts also found danger of abuse in giving the right to put in collective claims in every area to groups including public organizations. "It is supposed to be purposeful to settle a full list of case categories where it is possible to use such a way of judicial defense with an opportunity of its enhancement only in cases directly provided by the Federal Law" - emphasizes the conception.
In 2016 Arbitration Courts considered 1.6 mln cases including 197(0,013%) collective (on appeals of organizations and individuals to protect rights and legitimate interests of other persons).
Vladimir Avilkin, attorneys at law Pen & Paper
The new procedure in the civil process may be used, first of all, by consumers. For instance, forty depositors, mobile communications or other companies' with the public contract clients, can claim legitimacy of its conditions. In fact, they will act in favour of all client's interests. The minimum number of active plaintiffs established by the draft law - forty, is meant, according to logic, to prove that infringement is widely-spread and meaningful.
At the same time, twenty people are entitled to put in an administrative claim to the state body practically on every category of cases. For example, one can claim a decision on construction, transfer of the state property, normative or non-normative act and so on.
Apart from a claim of several persons, a collective one allows to authorize one representative without witnessing plenty of powers of attorney. At the same time, such a representative should express a unified point of view. If a member of an initiative group has a different opinion, he/she can only refuse a claim.
One should mind that the suggested way of a collective claim contains a lot of subjective aspects and allows abuse. For example, there is no definition of a multiplicity of a group. Also, the court can refuse to consider a collective case if applicants do not prove that it is "difficult" to solve a dispute individually (also by putting in a single claim by even half a hundred people).
On the other hand, there is a possibility that two or more groups will put in collective claims with conflicting demands. It is impossible to unite such cases in one judicial process. Moreover, consideration of such cases in different courts may result in decisions which contradict each other.