Translated material
The rights we are deprived of
In society
The rights we are deprived of
December 18, 2013 Petr Filippov
Nothing contributes to the policy of the whip,
Like a gingerbread
The bearer of sovereignty and the only source of power in the Russian constitution is its people. He hires managers - the servants of the people. In the language of lawyers, the people are principal, and the authorities are its agents.
But how to make the servants serve faithfully, do not saw the budget, do not abuse their right to dispose of the national property? Friends and relatives did not roof, did not violate the law?
Any schoolboy will answer: through honest elections, through real political competition. Right. And between the elections? Say, if you see how flowers are planted on a boulevard in the winter to have time to cut budget funds? Write a letter to the deputy? Do you believe that will help?
Or another example: a mansion on the shore near the very edge of the water, in the environmental zone. Local authorities were bought, the silence of the environmental prosecutor's office was paid ... What can residents do, ordinary Russian citizens? Collect a rally? Accept an appeal to the president?
Claims in defense of common interests
The legal mechanism of group (mass) claims allows individual citizens to defend common interests. It has been firmly established in many countries, primarily in countries with English legal tradition, as well as in China and Brazil.
What is its essence?
People often face a situation where their rights and interests are violated, and applying to court is economically unprofitable.
For example, an inspector, a firefighter or a sanitary, under a far-fetched pretext, referring to some deadlines approved by the authorities, delays the approval of documents for redevelopment of the premises. Essentially, this is extortion, since the official is ready to agree on them for a bribe for a day. If a citizen will look for a council on the inspector in court, he will spend a lot of effort, time, and money on a lawyer. You can write a statement to the prosecutor’s office, but far from always the prosecutor is ready to spoil relations with colleagues from the neighboring department, more often limited to the unsubscription. In such conditions, a citizen is easier and more profitable to give the required bribe.
Another case. The road workers left the pothole on the road. Drivers break the wheels of cars on it. A separate citizen to sue road workers is consistent. It is easier to replace the wheel and forget about trouble. The position of many would be completely different if, having stood up in court for all the victims, they received a significant share of general damage as a reward. Of course, at the expense of road workers.
The third case. The buyer purchased a spoiled product in the store with an expired sales deadline. He can return to the store and scan with sellers or write a statement to Rospotrebnadzor. From the trading inspection, the store owner will most likely be bought off, and the case will be set off on the brakes. Even if the buyer sues and wins the case, this will not force the store owner to make a profit from trading overdue products. And the payment of scanty damage to the claim of an individual citizen for him is a real trifle.
When this happens in Canada, the buyer has the right to file a lawsuit in defense of the interests of all victims - buyers of a spoiled product (poor -quality goods). The amount of total damage will be considerable, as well as the reward to the plaintiff. Knowing about such precedents, store owners will not trade expired products - too risky.
And the situation with a mansion in the environmental zone will be different if citizens have the right to file a lawsuit in defense of the interests of all those living in the area, a lawsuit in defense of the right of free passage along the river bank. The moral damage of everyone, multiplied by a considerable number of victims, will be an impressive amount. According to the Canadian, Brazilian, American laws, the reward to the plaintiff, who has entered into common interests, will be significant. If such a law and such an incentive acted in Russia, then the developer, evaluating the risk of demolition of the mansion by court decision, would be worried about violating the law.
Thus, the essence of the claims in defense of the common interests (the interests of the group or an indefinite circle of persons) is that the citizen fights not only for his own, but also for common interests. And for his asceticism receives a significant reward.
Canadian experience
In Canada, group claims are used quite widely. In particular, they were served about:
• unusual products, defects of heart stimulants, infected blood;
• compensation for damage - as a result of accidents in the subway, on the railway, from water pollution, etc.;
• violations of price competition;
• repayment of interest on the deposits of condominiums;
• copyright violations;
• reimbursement of losses in connection with the provision by developers of inaccurate information on projects when selling apartments;
• “endangered premiums” in life insurance;
• illegal dismissals in cases of massive personnel contractions;
• abuse of utility companies and companies distributing credit cards.
It is important that without the mechanism of group claims, not a single dollar for such claims would be paid to the plaintiffs as compensation for damage.
It is clear that group claims are useful when individual is not economically profitable. But Canadians believe that for the purpose of justice a group lawsuit is better than a series of individual claims, even in cases where the latter pay off. After all, group claims reduce the load on the courts and do justice more accessible to citizens.
But the main thing: group claims change the behavior of people. The risk of a group claim makes potential defendants refrain from abuse and deception that they could go if such claims were not provided for by law. It is important to note that group claims in Canada were not used for legalized blackmail or extortion of unreasonable payments.
How is the court proceedings organized a group law?
To begin this production, the Canadian court establishes the number and qualitative composition of the group, on behalf of which a citizen acts. His lawsuit should contain the requirements common to all members of the group. At the same time, a group lawsuit should be a preferred way to satisfy these requirements.
The plaintiff - the representative of the group should honestly and adequately represent the interests of the group, not to conflict on the general problems with the rest of the group and have a plan for conducting the trial.
According to Canadian laws, to notify all potential members of the group of persons who have suffered damage, about the beginning of the trial. The court agrees on the deadlines when a member of such a group can leave the case. Everyone who did not do this must submit to the court decision.
The court decides how and to whom the damage is issued and who carries legal costs. According to Canadian legislation, the losing party pays the winner legal expenses or their predominant part. In the event of a group law loss, liability for reimbursing the judicial costs of the defendant lies only on the plaintiff - the representative of the group.
In Quebec, it is allowed to levy from the plaintiff only nominal court expenses of the defendant. And in the province of the British Colombia, the plaintiff - the representative of the group reimburses the defendant’s legal expenses only if the lawsuit is recognized by the court with a joke or a judgment.
In the Canadian province of Ontario, a group of group proceedings was established to exempt plaintiffs from paying legal expenses of the defendant in case of loss. If the representative of the representative turns to the fund for help and receives consent, then the fund takes the obligation to pay for any costs imposed on the defendant.
Canadian legislation on group claims is focused not only on an ordinary citizen who does not have the necessary legal knowledge, but also on a lawyer who receives a significant reward in case of winning and loses it in case of loss.
If we compare the fees of such lawyers in the USA and Canada, it can be seen that Canadian courts abandoned huge fees in group claims adopted in the United States. In the United States, there is no general rule in what to consider the rational value of the fee in cases of the “common fund”. The upper limit is a level of 50% of the fund, and for securities and antitrust processes, 20-30% of the fund is considered a normal fee, the larger compensation, the less interest.
In Canada, for example, in the process of hepatitis C infection, where the total amount of damage amounted to 1.5 billion dollars, each plaintiff lawyer received a fee of 2-4% of the amount of the agreement, which amounted to $ 53 million of net income. However, in British Colombia and Quebec there are fees and in 20-25% of the amount of the agreement.
In each case, the compensation for the lawyer of the group determines the court, based on the legislation on group claims, which differs in the provinces. In some, the fee is determined by the number of watches worked out by the lawyer, multiplied by his time tariff rate, in others - a one -time fee is agreed. In some provinces, a combination of approaches is possible. As a rule, fees are paid from the amount of damage to the group to be compensated.
In the province of Ontario, judges proceed from the fact that the law on group lawsuits solves the task of facilitating citizens' access to justice, and it will be fulfilled or not, largely depends on the desire of the lawyer to start the trial, risking not to compensate for their expenses. Therefore, judges come in accordance with the rule developed by them: the justice and validity of the fee should be determined taking into account the risk that the person who is engaged in the triumph of the trial, as well as the results of the latter, assumes.
At the same time, it is clear that the lawyer will always achieve an increase in his reward. It is possible that, upon conspiracy with the defendant, he will “throw” the group, agree on a world agreement in the amount, less real damage to the group, if only to receive a fee that satisfies him. Canadian courts find ways to reduce such a danger by considering and affirming these settlement agreements.
Domestic props
The Civil Procedure Code of the Russian Federation provides for claims to protect the rights and legitimate interests of an indefinite circle of persons. The deputies introduced this norm rather for reporting, so that in Europe they saw that this important institution is in Russia, but “forgot” to register the procedures for considering such claims. It turned out a propulsion ...
According to Art. 46 Code of Civil Procedure of the Russian Federation, a citizen may file a lawsuit in defense of the rights and legitimate interests of an indefinite circle of persons only in cases "provided for by law". And from the laws governing the specific spheres of legal relations, the references to such claims in recent years were sequentially cleaned, which made group claims of individual citizens impossible. And this is logical: after all, the use of citizens of such legal weapons as claims in defense of an indefinite circle of people creates a danger to the monopoly power of the bureaucracy, for the interests of unscrupulous entrepreneurs.
Our legislation does not provide for any incentives for citizens and their lawyers to defend common interests, which is an obligatory element of this mechanism in foreign countries, ensures its success.
Under Russian legislation, such claims are allowed to be submitted to prosecutors and other officials, and in certain cases, lawyers of the Consumer Rights Protection Society. But material incentives for a non -profit organization are not provided. And the court makes a decision on such claims “to nowhere”, it does not entail any tangible consequences for the victims. The survey on compensation for damage is not decided. Even if the prosecutor will win the court in such a lawsuit, the injured compensation will not receive damage. To do this, they need to file their individual lawsuit, which is not economically profitable.
Prosecutors use claims in defense of the interests of an indefinite circle of people mainly in order to report to the authorities, to demonstrate their zeal. The main goal is to show that "the authorities fatherly cares about the people." The people themselves are not entitled to take care of themselves.
What to do?
In order for the Russians to receive legal weapons to combat corruption and deception, it follows:
• accept amendments to laws that would allow individual citizens to file claims in defense of the common interests (interests of groups and an indefinite circle of persons) in all cases when they have the right to protect their personal interests;
• Write in the Code of Civil Procedure of the Russian Federation the procedure for considering such claims. As a sample, you can take a Canadian procedure;
• To establish a significant reward with law at the expense of the defendant to the plaintiff - the representative of the group of victims in case of winning the case. It is important that the claims in defense of public interests become economically profitable for citizens;
• legislatively ensure real accessibility for citizens of financial reports and transparency of information about the activities of state bodies, local authorities, HOAs, management companies, country partnerships, garden partnerships, etc. To provide serious punishments for non -fulfillment of the requirements of the law on access to information in order to stop any far -fetched exceptions.
The last paragraph is extremely important in order to earn the legal mechanism of claims in defense of common interests. We will show this on the example of a garden partnership. Suppose that his chairman did not report on spending contributions, there is a suspicion that he appropriated them. For an ordinary gardener, the road to justice today lies through an extraordinary general meeting. To assemble gardeners for it, to provide quorum is a very difficult task. But if this turns out, then it is not a fact that it will be possible to achieve the re -election of the chairman, not to mention the return of the departed amounts. Indeed, often friends and accomplices of the chairman are both members of the board and an auditor. But the main thing, even having achieved the re -election of the thieving chairman, no one guarantees gardeners that the new one will not repeat the experience of the former.
Therefore, in the garden partnership, group lawsuits can be more effective than traditional democratic procedures. If such claims are provided for by law, then each gardener will have the right to file a lawsuit in defense of the interests of all gardeners, not only without initiating the general meeting, but even without receiving the consent of other gardeners. In court, the chairman also does not hide behind the back of members of the board, you will have to answer on the merits of the lawsuit. But the plaintiff must submit evidence to the court. He will succeed if the law and law enforcement practice guarantee the openness of financial documentation of gardening. In such conditions, any, even the most thieving, chairman will be stolen to steal.
The importance of access to financial information is relevant not only in garden partnerships. The management companies of apartment buildings, local governments, city halls, ministries and departments also strive not to provide citizens with the necessary information for control.
In developed countries for such organizations, mandatory public statements are provided. In the United States, the Law on Freedom of Information was adopted in 1966. According to it, each department is obliged to provide all the information for a fee in electronic form and in the amount that the citizen requested. The ministries and departments annually report to the Ministry of Justice about the number of requests for information to provide information and refusals (with justifications). Failure to provide information leads to a large fine. Citizens believe that Congress is not strictly strictly controlled by bureaucracy, always inclined to make a secret from their activities. Under the pressure of the public, the situation is gradually changing.
In Russia on February 9, 2009, a similar law was adopted “On access to information on the activities of state bodies and local governments”. But, unfortunately, he left at the discretion of the departments, what information they are obliged to provide and which are not. Practice shows that citizens still cannot get detailed information about the financial affairs of our ministries, departments, and local self-government bodies. The requirements of the Russian public to disclose information are almost inaudible. Citizens are not entitled to present a group lawsuit for concealing information, and officials do not bear administrative and criminal liability for this.
We again rest on the optional execution of Russian laws. How to change this? Through political reform, as well as through claims in defense of common interests, through the right to private prosecution and the right of citizens to dispute in court the norms of laws that generate corruption.
To be continued