Doctor of Law, Professor Timoshenko I.V.

Taganrog Institute of Management and Economics, Russia

THE problem of legal regulation of registration of the DEFENDER’s (delegate’s) authority in the russian administrative-jurisdictional PROCESS

Conducted by the author analysis of legal regulation and implementation of proxyship in the Russian administrative and jurisdictional process indicates the need of more regulation of procedural registration of the defender’s (delegate’s) authority in proceedings of administrative offences at the level of the relevant law (the Code of Administrative Offences).

In particular, to provide legal assistance to a person, in relation to whom proceedings on the administrative offense are conducted, a defender may participate, and to provide legal assistance to the victim a representative may also participate in the proceedings in accordance with the Article 25.5 of the Code of Administrative Offences. An attorney or representative can participate in the proceedings on the administrative offense. The authority of attorney is certified by a warrant issued by an appropriate legal practice, and the authority of another person who gives legal assistance to a lawbreaker is certified by the proxy executed in accordance with law.

General provisions on the proxy are specified in the rules of Article 185 of the Russian Civil Code, as well as issues of its identity in the rules of Article 185.1 of the Russian Civil Code, where the cases requiring a notarial form of certificate of authority, the case of registration of the authority which are equated to the notary, as well as cases of proxy certificate at the place of work, study or treatment of the principal and the power of attorney on behalf of the legal entity are mentioned.

In relation to civil proceedings, the mechanism of procedural design credentials of representatives of citizens (notary and by the authority of the place of residence, work, study, treatment, service or serving the sentence in prison, and also directly in the trial orally at the hearing record or in writing, in a separate statement of the principal) is described in detail in a separate article of the law (Article 53 of the Russian Code of Civil Procedure). With regard to the arbitration process, specified procedural question of registration and confirmation of the authority representative is settled almost in the same way with the civil process (Article 61 of the Russian Code of arbitration procedure).

This question are not resolved in the Code of Administrative Offences at all; it is said only that the powers of attorney is certified by a warrant issued by an appropriate legal practice, and the authority of another person who gives legal assistance to a lawbreaker is certified by the proxy executed in accordance with the law. In this regard, for quite a long time the law enforcement practice has many different approaches: from a purely formal approach, which includes the requirement of the need to provide a power of attorney or representative certified only by a notary, to the broadest possible approach which assumes using the analogy of the law (admission to participate in the process including at the request of his client, which is given to the attorney or representative and filed directly with the judge, body or official, in charge of whom the corresponding administrative proceedings is).

The ambiguity in the interpretation of the legislator’s will and the possibility of using the analogy of the law named seems to be uniquely cleared back in 2009, after the official publication of the Legislative and Court Practice Review of the Russian Federation Supreme Court for the fourth quarter of 2008, approved in March 2009 by the Presidium of the Russian Supreme Court. That Review contains an explanation on this matter: as the Code of Administrative Offences regulates the procedural registration of the defender’s authority to participate in the proceedings, the matter may be resolved by analogy to Parts 2 and 6 of Article 53 of the Russian Code of Civil Procedure, where the order of registration the authority of the delegate is fixed.

Within the meaning of Part 2 of Article 53 of the Russian Code of Civil Procedure, the power of attorney issued by the citizens to participate in the proceedings may be certified by a notary or by an organization where the principal works or studies by the housing maintenance organization at the place of the principal’s residence or by other officials method. Part 6 of Article 53 the Russian Code of Civil Procedure states that if the person brought to administrative responsibility make orally a request in the hearing or provide a written statement to the court about bringing the defender (representative) to participate in the proceedings, such a defender (representative) should be allowed to participate in the hearing.

The position of the Supreme Court concerning the analyzed issue, as we see, is quite clear and unambiguous. But can you consider the issue resolved? It seems not to be so. Firstly, if we are talking about the request for admission someone as an attorney or representative by oral statements at the court hearing, all applications making by persons participating in the proceedings should be only in writing in accordance with Part 2 of Article 24.4 of the Code of Administrative Offences. Besides, transcribing the proceedings is provided only for the cases holding by a collegial body in accordance with Part 1 of Article 29.8 of the Code of Administrative Offences. Thus, to state an oral request for the involvement of representatives to participate in the proceedings and to reflect anywhere the fact of such application and the results of its review under the law, unfortunately, is impossible.

Secondly, the Legislative and Court Practice Review approved by the Presidium of the Russian Federation Supreme Court have legal force and prejuditional significant only for the lower parts of the judicial system, while the number of administrative offenses, tried by the court, is small in comparison with similar competence extrajudicial subjects of administrative jurisdiction for which these "reviews" prejuditional values are not formally. And thirdly the judges themselves in practice accept the documents and allow persons to participate in the administrative and jurisdictional production as an attorney and representatives way with a big "caution" when their authority are any different from the notary.

To sum up, it appears that filling in the gap in the procedural mechanism of registration of the defender’s (delegate’s) authority in proceedings of administrative offences should be not through the using the analogy of the law and not by judicial interpretation, but directly at the level of the law such as the Russian Federation Code of Administrative Offences.