Stanislav Danilov on changes in administrative proceedings
Administrative proceedings will become adversary. According to Vedomosti, participation of a prosecutor and a free lawyer in the hearings may become mandatory. The Ministry of Justice has proposed to introduce these amendments to the new Code of Administrative Offences. According to the Ministry, that will guarantee impartiality of judges in the course of administrative proceedings. Earlier the European Court of Human Rights drew the attention of Russian authorities to the issue. How will the novelty affect justice? And what does it have to do with profanities used by a lawyer from Tatarstan? Grigory Kolganov found out.
It all started with a claim filed to the ECHR by Mikhail Karelin from Tatarstan. He was fined for appearing in a public place under the influence of alcohol and swearing at passers-by. The offender turned out to be a lawyer, which helped him to skilfully draw up a claim, stating that in Russian administrative proceedings the court also acts as the prosecution, Mr. Karelin told Kommersant FM:
— It has nothing to do with adversary character. In most cases the judge acts as the prosecutor and investigates the case. So they work both as a judge and a prosecutor.
— Is that really a good reason to question the court’s impartiality?
— It certainly is. If the judge settles an issue both from the judicial and the prosecution perspective, the proceedings lack adversary character.
The ECHR took the side of the claimant, so the Russian Ministry of Justice listened and suggested to introduce prosecution, i.e. a representative of the prosecutor's office or another government agency, to administrative proceedings in order to ensure adversary character, and to provide the offender with a lawyer similarly to criminal proceedings. What articles of the Code of Administrative Offences may be amended by the novelty? Is it possible that cases involving violation of traffic rules will be heard in the presence of a lawyer and a prosecutor? Partner of Pen & Paper Attorneys at Law Stanislav Danilov is not sure of it. However, there’s good news for drivers, as well as for protesters. ‘There are types of punishment, which can only be imposed by the court, namely administrative arrest. For example, in case of rallies, if the offence carries this kind of sanction, a public prosecutor will be involved in the case. The same applies to revocation of a driver’s license and any cases of judicial appeal of decisions made by officials,’ Mr. Danilov explained.
Will adversary character affect the prosecutorial bias in administrative proceedings? As estimated by lawyers, the share of favourable rulings is hardly larger here than in criminal proceedings. Partner of YuST Legal Firm Aleksandr Bolomatov believes that the presence of prosecution and defence is unlikely to affect the ruling, but it’s possible that fewer cases will reach the court in the first place: ‘At the first stage it will result in discontent of the agencies which frequently contribute to holding persons administratively liable, I’m sure of that. But in some cases people just won’t be charged. If a government agency understands that no one will do their job for them, the court will process the case with due impartiality. Which means a higher quality of training and a higher quality of holding persons administratively liable.’
About 7–8 mn administrative cases are processed in Russia annually. It’s hard to assume that at least half of them will be of adversary character. There just aren’t enough officers in government agencies, says lawyer of Khrenov and Partners Attorneys at Law Roman Belanov in surprise. But more importantly, the amendments proposed by the Ministry of Justice are redundant, as the prosecution is already supposed to physically participate in the proceedings. This requirement is, however, ignored for some reason.
‘There is no need to change the law. In order for the prosecution to appear in court, we need to change internal regulations of these agencies.
Another issue is an enormous number of minor cases. If each of these cases requires the presence of an officer, it can entail unjustified overstaffing,’ Belanov explained.
But even if the novelty proves to be exclusively positive, it’s early to get excited just yet. As it will become a part of virtually the most voluminous Russian code, it’s quite possible that by the time of its adoption the provision on adversary character of administrative cases will have been lost in the shuffle.
According to the Supreme Court last year the ECHR processed over 12 thousand claims from Russia, which is nearly twice as many as in 2017.