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O.V. Damaskin,
DOCTOR OF LAW, PROFESSOR,
LEADING RESEARCH FELLOW OF THE RESEARCH INSTITUTE OF PROBLEMS OF ENHANCEMENT OF LAW AND ORDER UNDER THE OFFICE OF THE ATTORNEY GENERAL OF RF



PRESSING ISSUES OF PARTICIPATION OF MILITARY ATTORNEYS IN ARBITRATION PROCEEDINGS


      One of the priority trends of activities of military prosecutors is protection of public interests in arbitration courts in connection with offenses in the sphere of privatization of military construction enterprises, military trade, disposal of released military property.

      Topicality of these activities increases in connection with the coming new reduction of the Armed Forces and other military units by 600 thousand servicemen and the need in additional sources of financing this process.

      The Decree of the President of RF No.385 dated 27 March 1999 On Amendment and Recognition as Invalid of Separate Provisions of the Decrees of the President of the Russian Federation Pertaining to Disposal of Released Military Property entitles Federal public authorities, for which a military service is envisaged, to dispose of the released movable military property being under their operational management.

      The procedure of the disposal of released military property is regulated by the Enactment of the Government of RF No.1165 dated 15 October 1999 On Disposal of Released Movable Military Property.

      In compliance with the plans of the disposal of released movable military property the Ministry of Defense anticipates receipt of 262.2 mln Rbls in 2001.

      Reform of the Armed Forces and other military units allows to gain additional sources of financing for social protection of the military and other purposes provided for by law.

      The supervisory practice of the Office of Military Prosecutor is a requisite basis for identification of offenses which are the subject-matter of a trial in the arbitration court.

      For the purpose of improvement of organization and implementation of supervisory measures in these priority activities, the Head Office of Military Prosecutor worked out and forwarded to other bodies of the Office of Military Prosecutor methodological recommendations: Organization and carrying out by prosecutors of inspection to check enforcement by federal executive authorities, for which a military service is envisaged, and by their officials of laws regulating disposal of the released military property (No.2/3-178 dated 26.09.2000).

      In 2000 the agencies of the Office of Military Prosecutor carried out over 520 inspections of enforcement of laws on the disposal of military property, whereof effectiveness made up 84%. Over 400 cases of violation of law were identified.

      The analyses of the supervisory practice allows to consider the following violations as the most characteristic in the sphere of the disposal of released military property:

      -  underestimation of the value of the property to be disposed and other violations of the laws related to evaluation;

      -  breaches in safe keeping of the released military property prior to its sale;

      -  transfer of the released military property with non-observance of the requirements
      to its disposal.

      Typical offenses connected with the lease of immovable property are:

      -  lease of the public property on the balance of army units and organizations without prior approval of the Ministry of Property Relations of RF;

      -  untimely prolongation of the previous lease contracts upon expiry thereof and non- observance of the schedule of rentals payment;

      -  non-transfer of the proceeds from the public property lease to the federal budget.

      The circumstances facilitating the above violations are :

      -  the absence of a reliable register of the public property in army units;

      -  the absence of the uniform standards and methods of evaluation of the released property, as well as the lack of the public licensing of evaluation activities;

      -  the absence of the prospective planning for release of cantonments and real property in connection with re-deployment and reduction of armed forces;

      -  carelessness of officials responsible for preparation of the released property for sale, their negligence in drawing up necessary documents which entails in a number of cases invalidity of transactions and cancellation of the results thereof;

      -  improper conduct of inventory of the real property to be entered to the Register of the Federal Property;

      -  the absence of regulation by respective normative acts of actual transfer of the released property from military authorities to the Ministry of the Property Relations of RF.

      All the above reasons make urgent the problem of protection of public interests by military prosecutors in arbitration courts.

      However, the quantity of recourses of military prosecutors to arbitration courts decreases considerably.

      The share of recourses of military prosecutors with actions for invalidation of unlawful decisions of property administration authorities, acts of executive authorities on disposal of public and municipal property, as well as for the recovery of debts in rentals payment in favor of the Ministry of Defense and other army units of RF, and return of the leased property, made up about 30 % in 1999.

      The activities of military prosecutors in this sphere are determined by the specific nature of economic relations between a budgetary organization represented by the Ministry of Defense or other federal bodies having military units, with subordinate army units, on the one part, and commercial organizations, on the other part.

      Proceeding from the above, the majority of actions of military prosecutors filed with the arbitration courts are connected with improper or non-fulfillment of contractual obligations by outside organizations toward the Ministry of Defense and other army units of RF.

      In 1999, arbitration courts entertained 210 actions filed by military prosecutors, that was by 21.6% less as compared with the previous year.

      135 (64,3%) actions out of the number of entertained ones, for the amount of 119,207,116 thou. Rbls have been allowed (in the previous year - 207 actions, i.e. 53.7%, for the amount of 2,359,808 thou. Rbls)

      Most of the actions were entertained by arbitration courts with participation of military prosecutors. However, in a number of cases military prosecutors did not participate in trials of their actions. Thus, in 1999 military prosecutors of the Moscow Military District participated in trials of only 42% of actions filed by them before arbitration courts.

      Besides, insufficient attention was given to substantiation and proof of claims. Therefore, the effectiveness of the work was very low.

      Thus, although the quantity of actions filed by the military prosecutors of the Moscow Military District and entertained by arbitration courts increased by 44.4% in 1999 as compared to the previous year, only 23 (29.5%) actions for the total amount of 31,095.9 thou. Rbls out of 78 tried actions were allowed, which is almost by 2.2 times less than for all offices of military prosecutors.

      In 1999 high activity was displayed by the military prosecutor of the Military District of Leningrad in exercising his powers in arbitration proceedings. He filed 18 actions (by 38.5% more as compared with the previous year).
      Out of 16 actions filed in connection with violation of laws on use of public and municipal property allowed were 12 (75%) actions for the total amount of 12,285.2 thou. Rbls, including 8 actions for the total amount of 1,628.4 thou. Rbls.

      The analysis of the practice of military prosecutors exercising their powers in arbitration proceedings allows to establish insufficient use of the possibility to appeal in the courts of appeal and cassation against judicial acts issued in arbitration cases. In particular, the possibility to adduce the additional evidence to the court provided for by the regulations of the judicial procedure, is disregarded in the courts of appeal.

      Thus, in 1999 military prosecutors have exercised the right to appeal against arbitration awards only 16 times in the aggregate, and the right to appeal to the court of cassation - 11 times. The appellate instances allowed only 5 claims (31.2%), and the cassation instances - 2 claims (18.2%).

      One of the most essential deficiencies in the work of military prosecutors is an insufficient control over enforcement of judicial acts. At the same time, military prosecutors do not adequately exercise their legal powers at the stage of enforcement. The current conditions of the military service necessitate specific purpose-oriented work of military prosecutors aimed at profound study of new aspects of economic relations specifically perceived by army units and institutions. This is connected with the necessity to enhance the level of military prosecutors knowledge of law and economy. One of the main problems arising in protection of public property is the inferior quality of inspections of financial and economic activities. Unfortunately, the results of such inspections are not always adequately evaluated by military prosecutors, and the cases of improper audits do not receive principal appraisal. All this affects real possibilities of active participation of military prosecutors in arbitration proceedings in actions seeking protection of state and public interests in the economic sphere.

      The increasing need of organizational and legal support to an active role of a prosecutor in the arbitration proceedings in the modern conditions necessitates supplementing the Code of Arbitration Practice of the Russian Federation with the rule of obligatory participation of an prosecutor in the arbitration proceeding in the cases related to infringement and protection of economic interests of public and municipal enterprises and institutions.

      It is expedient to put the public unitary federal enterprise Public Enterprise for Sale of Military Property under the supervision of the Head Office of Military Prosecutor.

      Such approach seems to correspond to the provisions of the Decree of the President of RF No. 24, dated 10 January 2000 On the Concept of the National Security of the Russian Federation, the Enactment of the Government of RF No.1024, dated 9 September 1999 On the Concept of the Public Property Management and Privatization in the Russian Federation.


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