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L.V. Tumanova,
MERITORIOUS LAWYER OF RUSSIA,
DOCTOR OF LAW,
PROFESSOR,
DEAN OF LAW SCHOOL,
THE TVER STATE UNIVERSITY



PARTICIPATION OF LOCAL GOVERNMENT IN CIVIL PROCESS


      The current Constitution of RF defines local government as an element of fundamentals of the constitutional order, as an independent form of exercising by people of the power belonging to them. A local government is independent within the limits of its authorities, and its agencies are not comprised in the system of governmental authorities.

      Vesting the local governments with power is manifested in the mandatory character of their resolutions. The State personifies the government, and the local government public authority, but it is regulated by the State using the rules of law.

      The State guarantees local government, and one of such guarantees is a judicial one, which means that the decisions of local governments may be protected in courts. In their turn, the individuals and other interested persons are entitled to appeal in courts against the actions and non-feasance of local governments.

      In order for the judicial protection to become a true guarantor of local government, an express regulation of its procedural status is necessary. On the whole, the problem is a multi-aspect one and affects many branches of law. First of all, these are the issues of the competence and civil status of the local government as a basis for participation in the civil proceedings. The second important component is the forms of judicial protection. And, finally, the issue of what the procedural status of local government in the civil proceedings is.

      The civil law identifies the municipalities as subjects of civil relations, and this evokes a question about the status of the local government. It seems that the local governments, depending on their certain authorities, should be regarded as independent subjects being legal entities and as agencies representing legal personality of municipalities following the same arrangements as any legal entitys body exercising the rights of the legal entity concerned.

      However, one can obviously ascertain only the presence of considerable gaps in civil regulation of the local governments status and the fact that this warrants separate study.

      No less disputable is the issue of the judicial protection form. Lately the problem of administrative proceedings has become the subject of frequent discussions. This is based on Art.118 of the Constitution of RF which was the first to establish that the judicial authority is exercised by means of the constitutional, civil, administrative, and criminal proceedings. But possible limits of the administrative justice have not been defined yet. In many countries special administrative court operate.

      In this country resolution of cases arising from administrative relations is the responsibility of arbitration and common courts within the limits of civil proceedings.

      A practical necessity has arisen in the present-day conditions to set up specialized administrative courts in order to ensure a due level of justice administration and create an effective mechanism of ensuring the rights and freedoms, including in the sphere of local government.

      In compliance with the foregoing the first reading of the draft Law On Administrative Courts was held in the State Duma and drafting of the law of administrative procedure was discussed.

      The issue of the judicial protection in the framework of the available procedural possibilities seems to be no less important. Currently the cases of challenged actions, resolutions or normative acts issued by local government are fairly widespread.

      At the same time, strange as it might appear, the local government itself is left with no judicial protection. The disputes about the competence have special importance. Frequent are cases of interference in, substitution of, hindrance to the affaires of the local government on the part of the public authorities. Such problems arise along the vertical between similar federal and regional authorities, as well.

      Adoption of laws fixing the rights of municipalities and their authorities to appeal against the actions of public authorities infringing the rights of local governments, similarly to the individuals rights to appeal against wrongful actions of officials, should be acknowledged as necessary.

      The necessity of such fixing is caused by the fact that local government is the right and ability of the population and governments set up by the population to take charge of the affaires referred to their competence by the State, proceeding from historic and other local customs.

      Consequently, thus the right to a collective protection of the municipalitys population against wrongful actions and non-feasance of public authorities will be fixed legislatively.

      The issue of the procedural status of local governments is currently complicated by the fact that the civil proceedings are regulated by the Code of Civil Procedure of RSFSR of 1964, whose many provisions have become outdated, but the courts frequently apply its rules disregarding the changed conditions and new laws.

      Art. 29 of the current Code of Civil Procedure does not list local governments as possible participants in a case, nor Art. 33 mentions the local government among the parties to a case. The amendments of the current Code of Civil Procedure introduced in August 2000 should be considered important for the matter concerned. Art. 42 of the Code now stipulates that public authorities and local governments can participate in the civil proceedings. Unfortunately, these amendments did not affect other articles of the Code, i.e. Art.29 and Art. 33 mentioned above remain the same.

      Let us consider the issue of those participating in a case and what position, in principle, can the local government occupy.

      The persons participating in a case are characterized by a juridical interest. The juridical interest is subdivided into substantive, procedural, personal, and official.

      The parties to the case and third parties with independent claims on the contention have a substantive interest. The latter presupposes that the judgement will directly affect the rights and obligations of the above persons.

      The third parties having no independent claims on the contention, the prosecutor and the persons representing someone elses interests in the proceedings subject to Art.42 of the Code of Civil Procedure of RSFSR have a procedural interest. The procedural interest presupposes that the person concerned strives to receive a certain judgement.

      A personal juridical interest is based on the fact that the person concerned is a subject of substantive relations included in the object of the judicial protection.

      An official interest ensues from the competence of the Department of Public Prosecutions and other governmental authorities.

      Depending on a concrete situation, the local governments can be a party to the proceedings, a third party and a representative of someone elses interests in accordance with Art. 42 of the above Code.

      The rules of Articles 37 and 38 of the Code of Civil Procedure of RSFSR, which contain no references to who can be a third party, provide for a direct possibility for the local government to participate in the proceedings as a third party.

      The problem arises when the local government must be a party to the proceedings. Unfortunately, Art. 33 of the Code of Civil Procedure neither mentions the local government among those who can be a party to the proceedings, not gives an express definition of the parties to the proceedings, and the list of persons entitled to be parties to the proceedings does not correspond to possible subjects of civil and other substantive relations.

      The draft Code of Civil Procedure is supposed to eliminate this serious gap by pointing out that the parties to the civil proceedings - a claimant or a respondent are the subjects of the disputable substantive relation as assumed at the time the civil case is initiated. If such wording is preserved in the new Code, the local governments can be a party to the proceedings in any case, whenever it is necessary for the protection of their rights and lawful interests.

      No less important is representation by the local government of governmental and public interests, as well as the interests of other persons.

      Art. 42 of the Code of Civil Procedure of RSFSR stipulates two forms of participation in the proceedings in defense of someone elses rights: initiation of the case and joining the on-going proceedings. The possibility for the local government to initiate a case is restricted, pursuant to Art. 42 of the Code, to the instances stipulated by law. Besides, such initiation is possible either at the request of a concrete person for the protection of whose rights the local government can apply to the court, or in order to defend the interests protected by law of an unlimited number of persons.

      It seems that the possibilities for the local government to initiate cases should be expanded. The local governments should have the right, irrespective of a special reference in the law, to apply to the court to defend the rights and interests of the members of the local community, provided such rights and interests are of a significant social importance. This is especially important in view of the condition of the legislation as regards vesting of the local government with the right to initiate cases.

      Positive is that it is possible for the local government to participate in the proceedings not only in the cases stipulated by law, but in other, necessary cases, on the courts initiative (Part 4, Art. 42 of the Code of Civil Practice).

      At the same time, the judicial protection of the local government and the individuals interests by the former requires special regulation in the framework of administrative proceedings.


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