By virtue of Art. 310, part 1, cl. 1 of the Russian Administrative Procedure Code, “decisions of the court of first instance supposed to be vacated regardless in the event of consideration of an administrative case in the absence of any of the persons participating in the case and not duly notified of the time and place of the court session”.
After familiarizing myself with the case file in full, and guided by paragraph 26 of the Resolution of the Plenum of the Russian Supreme Court № 13 dated June 19, 2012, I consider it necessary to make the following additions to the previously filed appeal:
1. In accordance with Art. 45, p. 7 of the Russian Administrative Procedure Code, an unfair submission of an unjustified administrative claim, opposition to the proper settlement of the case, as well as abuse of procedural rights in other forms, is unacceptable.
2. The issue of attracting 3rd party to participate in the case was resolved at the middle of trial. In this case, the court was obliged to perform the following actions:
a) start preparations for the trial from the very beginning (Article 47 part 6 of the Russian Administrative Procedure Code).
b) send to new participant a copy of the claim and the documents attached thereto (Article 135, part 3, cl. 1 of the Russian Administrative Procedure Code).
c) send to new participant copies of the court rulings made within the framework of this case (Article 201 of the Russian Administrative Procedure Code).
d) clarify to new participant his right to file his Affidavit in Opposition on the merits of the Petition, and provide him with a deadline for filing his Affidavit in Opposition (Article 135, part 3, cl. 1 of the Russian Administrative Procedure Code).
3. None of the above has been carried out by the court. Thus, the court violated the constitutional norm, by virtue of which legal proceedings are carried out on the basis of the adversary character and equal rights of the parties (Article 123 of the Constitution of the Russian Federation, Article 14 of the Russian Administrative Procedure Code). Therefore, 3rd party has not been granted any of the rights under Art. 45 of the Russian Administrative Procedure Code.
4. According to the case file it appears that the telegram to 3rd party has never been delivered to him. Under such circumstances, the court was not entitled to consider the case on its merits, and was obliged to postpone the case (Article 150, part 1 of the Russian Administrative Procedure Code). Instead of this, the court did not even put this issue forward for discussion by the trial participants, and moved forward with case consideration.
5. By virtue of Art. 310, part 1, cl. 2 of the Russian Administrative Procedure Code, it is directly provided that the decisions of the court of first instance supposed to be vacated regardless in the event of consideration of a case in the absence of any of participant who was not duly notified about the hearing”. In this case, the Appellate Court should be cancelling the first instance court order and forward the administrative case for a new consideration back to the first instance court (Article 309 of the Russian Administrative Procedure Code).
6. In addition, it should be noted that the administrative plaintiff, despite the existing travel ban, continues to travel outside the Russian Federation including with the child, violating:
a) the temporary visitation order;
b) the current bailiff's restriction order;
c) the rights of 3rd party who is a father of the minor child.
7. Contempt of the court, disobeying the court order, ignoring the legal requirements of the bailiff, neglecting the Father’s parental and procedural rights, confirm that the first instance court order was erroneous and should be vacated. The case should be forwarded to the first instance court for new consideration involving all participants.