Criterion of non-compliance with a judicial act: a special limit for reviewing judicial acts based on newly discovered and new circumstances, or a temporary tool in the process of manually balancing the principle of legal certainty?

Baikova Svetlana Radikovna Postgraduate student; Faculty of Law; St. Petersburg State University 199034, Russia, Saint Petersburg, Universitetskaya nab., 7/9 bajkovasvetlana06@gmail.com Other publications by this author

Introduction

The general characteristics of the institution of revising a judicial act that has entered into legal force based on newly discovered and new circumstances are their exclusivity, extraordinariness, and atypicity in the sense that any revision of a judicial act based on the principle of legal certainty and taking into account the properties of legality and binding judicial act is a rather sensitive phenomenon that requires special attention and control.

These characteristics are reflected in the totality of the conditions for the emergence of the right to such a review and the limits of consideration of the application, which we propose to call the limits of review in a broad sense. There is no detailed classification of the limits of judicial review based on newly discovered and new circumstances in the literature. We suggest highlighting the following limits.

Firstly, it outlines a range of circumstances that are significant and insurmountable in their legal nature, indicating fundamental violations of the process and social justice, but which either did not exist at the time of the case or were not known to the applicant and, as a result, to the court. At the same time, the existence of such circumstances cannot be ignored with reference to the interests of preserving legal certainty and the principle of finality of judicial acts that have entered into legal force (the validity of the decision, its irrefutability, etc.).

In this article, we will not go into the analysis of the list of these circumstances. We will only point out separately that for the reasons described above (exclusivity, extraordinariness, the need to balance with the principle of legal certainty), the adjustment of the range of such circumstances is ideally carried out by the legislator, but more often – first by law enforcement officers of different levels, including those with regulatory competencies, actually manually, based on a specific situation (that is why we constantly observe how justified and unjustified expansion of the range of grounds, the description of which is not fully the subject of this article – see for more details, for example ^[1]).

Secondly, there is a temporal limit or deadline for applying for a review. Article 312 of the APC of the Russian Federation establishes a general subjective period of 3 months and an objective period of 6 months (for such a new circumstance as the definition or change in the practice of applying a legal norm in a resolution of the Plenum or Presidium of the Supreme Court of the Russian Federation; at the same time, no such clause is provided for the formation of the legal positions of the Constitutional Court of the Russian Federation ^{[2, p. 78]}). Let's make a reservation that the deadline, although it exists as a limit, still represents a rather serious uncertainty for the purposes of the principle of legal certainty, because, as a general rule, it begins its countdown without reference to the date of entry into force of judicial acts.

Thirdly, there are proposals in the literature to allow, in some cases, the possibility of partial cancellation of a judicial act due to newly discovered and new circumstances ^[3] (the limits of consideration of an application in the narrow sense).

Fourth, the subject composition of the applicants. As a general rule, these are persons involved in a particular case (their legal successors), or persons who were supposed to participate in it (on whose rights and obligations a judicial act was adopted), but were not unlawfully involved in the case, the prosecutor (see, for example, paragraph 18 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30.06.2011 No. 52 "On the application of the provisions of the Arbitration Procedure Code of the Russian Federation in the review of judicial acts on new or newly discovered circumstances").

However, there are also "special" revision limits that apply only to certain new circumstances. The characterization of the described criteria as special inevitably refers us to the question of the legal nature of the new circumstances to which they apply.

It's about:

• cancellation of the decision of the body that served as the basis for the adoption of a judicial act in this case – in the sense given to this paragraph by the resolution of the Constitutional Court of the Russian Federation ("CC RF") dated 07/06/2018 No. 29-P on the complaint of Albatros LLC, when the CC RF broadly interpreted this paragraph and pointed out the need to understand "cancellation of the decision of the body" including the situation of cancellation of the normative act in the applicant's case in the order of administrative regulatory control;
• the recognition by the decision of the Constitutional Court of the Russian Federation as inconsistent with the Constitution of the Russian Federation or the application, in an interpretation that differs from the interpretation given by the Constitutional Court of the Russian Federation in the decision, of a normative act applied by a court in a judicial act ("recognition by the decision of the Constitutional Court of the Russian Federation of a norm (its interpretation) as unconstitutional");
• determining or changing the practice of applying a legal norm in a resolution of the Plenum of the Supreme Court of the Russian Federation or the Presidium of the Supreme Court of the Russian Federation.

These circumstances are dual in nature, since they have both an individual effect for the person who filed the relevant application/complaint (for example, "participant/subject of constitutional proceedings") and achieved a legal result, and an abstract, normative character for an unlimited number of persons (for example, "non-applicants/non-participants/non-subjects of constitutional proceedings/ constitutional complaints"). As a result, the same circumstance, depending on when the judicial act was issued and who initiated the review, acquires in one case the features (and entails consequences) of a new circumstance, and in the other it indicates a judicial error if ignored. Moreover, the difference in the legal nature arises even depending on the stage of the procedural stage in the civil case of the non-applicant. Due to this duality, problems arise when setting up the procedural mechanism for reviewing judicial acts in cases of non-subjects.

Initially, this setting began with the recognition by the decision of the Constitutional Court of the Russian Federation of the norm (its interpretation) as unconstitutional, when the Constitutional Court of the Russian Federation in its acts formed the legal position that judicial acts on cases of non-applicants of a constitutional complaint can be reviewed only if they are not executed or partially executed ("criterion of non-fulfillment").

The criterion of non-fulfillment of a judicial act is one of the "special" review limits. As the second "special" limit of revision, we propose to single out "an indication of a judicial authority whose act has normative properties on the possibility of reviewing a judicial act" ("a direct indication of the need for revision"). Both of these "special" limits will be discussed further in the text of the article.

The subject of this study is the analysis of the criterion of non-fulfillment as a special limit for the review of judicial acts: a consistent description of the history of the emergence and development of the criterion of non-fulfillment, its criticism, transformation into a criterion of direct indication of the possibility of revision, raising questions about the future of the criterion of non-fulfillment.

The work uses such research methods as historical, systemic, axiological, formal legal, functional, sociological methods, analysis, synthesis, modeling.

Scientific novelty. In the literature, very little attention is paid to the criterion of non-fulfillment as a special limit for reviewing judicial acts (such a concept is basically absent in the scientific literature). Most of the work is devoted to the period up to 2020 (before amendments were made to Federal Constitutional Law No. 1 of 07/21/1994 "On the Constitutional Court of the Russian Federation" ("FKZ on the Constitutional Court of the Russian Federation") and does not indicate the possible future of this criterion, taking into account the possible radical reform of the institution of judicial review in newly discovered and new circumstances. The scientific literature also had not previously identified the problem of defining the criterion of non-fulfillment in the sense of its applicability only to certain new circumstances, which did not allow attention to be drawn to the need to classify such circumstances as independent grounds for reviewing judicial acts that had entered into force, other than newly discovered and new circumstances.

I. The degree of enforcement of a judicial act: the history of the emergence and development of the criterion of enforcement in the acts of the Constitutional Court of the Russian Federation (the period from 1999 to 09.11.2020)

The idea of the need to form a limit for reviewing a judicial act in the form of the degree of its execution arose in the Constitutional Court of the Russian Federation when resolving the issue of the right of persons who did not file a complaint with the Constitutional Court of the Russian Federation to take advantage of the recognition of the norm (its interpretation) unconstitutional (i.e., to review their own judicial acts in this regard).

The problematic issue at this stage of the development of approaches to this issue is related to the fact that the applicant of a constitutional complaint, in case of success (obtaining a positive result from constitutional justice), must receive a review of judicial acts in his case, in which a norm (interpretation) was applied, which was recognized as unconstitutional, of course. In this part, the need to promote the active procedural position of the subject of constitutional legal proceedings is put at the forefront.

Persons who have not shown such a degree of procedural activity can use the result of constitutional law-making initiated by another person, in fact, only for the future (since the decision of the Constitutional Court of the Russian Federation, as a general rule, acquires legal force from the moment of announcement) as part of ordinary review procedures, since higher courts cannot apply an unconstitutional norm or a norm in an unconstitutional interpretation..

The legal position of the Constitutional Court of the Russian Federation of this period contains two more aspects:

- acts of non-applicants are reviewed only if judicial acts have not been executed or partially executed. The Constitutional Court of the Russian Federation itself explains its approach as follows: "If, in relation to persons who were not applicants in the case considered by the Constitutional Court of the Russian Federation, law enforcement decisions were executed before the recognition of the norms underlying them as unconstitutional, then the presumption of the constitutionality of the law applies to these persons, since it was applied in conditions when the question of its constitutionality it was not raised (for example, the definition of the Constitutional Court of the Russian Federation dated 04/23/2020 No. 849-O on the complaint of M. V. Lesnyak);

- the revision of the judicial act in cases of non–applicants can be carried out both by way of supervision (hereinafter - in an institutional manner) and by way of revision based on newly discovered circumstances (at the time of the formation of the position, the concept of "new circumstances" did not exist).

A) Determination of the complaint by I. V. Petrova

This is historically the first ruling of the Constitutional Court of the Russian Federation dated January 14, 1999 No. 4-O on the complaint of I. V. Petrova on this issue.

So, in 1996, I. V. Petrova's car was confiscated on the basis of a resolution of the customs authorities (in accordance with the provisions of Article 266 of the Customs Code of the Russian Federation, i.e. without judicial sanction). She appealed the decision, but the courts did not support her.

Almost two years later, the Constitutional Court of the Russian Federation, in its resolution No. 8-P dated 11.03.1998, on the complaints of M. M. Gagloeva and A. B. Pestryakov, recognized Article 266 of the Labor Code of the Russian Federation as inconsistent with the constitution to the extent that it allows the confiscation of goods and vehicles without a court decision.

After that, I. V. Petrova appealed to the Chairman of the Supreme Court of the subject with a request to protest this court decision, which was refused with reference to the fact that the decisions of the Constitutional Court of the Russian Federation in the civil law sphere are not retroactive, and Part 2 of art. 100 of the FKZ on the Constitutional Court of the Russian Federation applies only to cases of citizens who initiated constitutional court proceedings.

It should be noted that at the time of filing the complaint, Part 2 of Article 100 of the FKZ on the Constitutional Court of the Russian Federation looked like this: "If the Constitutional Court of the Russian Federation recognized the law applied in a particular case as inconsistent with the Constitution of the Russian Federation, this case is in any case subject to review by the competent authority in the usual manner."

The main conclusions of the Constitutional Court of the Russian Federation in the definition of the complaint of I. V. Petrova, relevant to the analysis of the stated issues:

1) "recognition of a law as inconsistent with the Constitution of the Russian Federation in any case entails a review of the case of a citizen who challenged this law in the Constitutional Court of the Russian Federation by the competent authority in the usual manner. Such a review is carried out regardless of the expiration of the deadline for appeal. This regulation is aimed at encouraging citizens' legal activity in protecting their rights, and through it, protecting the interests of an indefinite circle of people."

2) if a person has not filed a complaint with the Constitutional Court of the Russian Federation, but a norm declared unconstitutional has been applied in his case, he is subject to the provisions of Part 3 of Article 79 of the Federal Criminal Code on the Constitutional Court of the Russian Federation, according to which "decisions of courts and other bodies based on acts declared unconstitutional are not enforceable and must be reviewed in cases established by federal law, i.e. using the substantive grounds and procedural institutions established by other legislation." Such persons are subject to general time limits (limitation period, resumption of proceedings under new circumstances);

3) "review of judicial decisions in connection with the recognition of a norm as unconstitutional is possible, in particular, both by way of judicial supervision and by newly discovered circumstances."

B) Definition clarifying the definition of the complaint of I. V. Petrova

The following chronologically is the definition of the Constitutional Court of 05.02.2004 No. 78-O, which is an explanation of the first one. The relevant request for clarification was addressed to the Constitutional Court of the Russian Federation by the Supreme Arbitration Court of the Russian Federation.

Questions that the Russian Federation has asked you to clarify with the Constitutional Court of the Russian Federation:

1) should normative acts deemed unconstitutional be considered invalid from the moment of their adoption?

2) does the recognition by the Constitutional Court of the Russian Federation of a normative act that does not comply with the Constitution of the Russian Federation entail the revision and cancellation of a court decision based on this act that has entered into force by that time, if the application of a person who was not a participant in constitutional proceedings for a review of such a court decision was filed by him in compliance with the procedural norms established by law, and in the decision of the Constitutional Court of the Russian Federation has the moment been specified from which the normative act recognized as unconstitutional becomes invalid?

3) does the recognition by the Constitutional Court of the Russian Federation of a normative act that does not comply with the Constitution of the Russian Federation invalidate a decision of a law enforcement agency based on the said act that has entered into force by that time, if the application of a person who was not a participant in the constitutional court proceedings to invalidate the law enforcement decision was filed by him in compliance with the procedural norms established by law, and the decision of the Constitutional Court of the Russian Federation does not specify the moment from which the normative act recognized as unconstitutional becomes invalid?

The Constitutional Court of the Russian Federation pointed out that, as a general rule, an unconstitutional norm becomes invalid for the future (i.e., from that time on, the acts cannot be applied in their previous form and interpretation). However, this does not mean that the decision of the Constitutional Court of the Russian Federation is not retroactive. This is an important instruction from the Constitutional Court of the Russian Federation itself, based on a combination of Part 3 of art. 79 and Part 2 of art. 100 of the FKZ on the Constitutional Court of the Russian Federation.

Further, the Constitutional Court of the Russian Federation, confirming the conclusion already expressed that the case that gave rise to the appeal to the Constitutional Court of the Russian Federation is subject to review, in any case, regardless of the expiration of the appeal period, introduces a new criterion for other cases – the criterion of fulfillment/non-fulfillment of the act to be reviewed.: "The decision of the Constitutional Court of the Russian Federation has retroactive effect in relation to the cases of persons who applied to the Constitutional Court of the Russian Federation, as well as in relation to unfulfilled decisions made before the adoption of this decision."

The unfulfilled decisions of the Constitutional Court of the Russian Federation are understood: both decisions that have not entered into force and those that have entered into legal force, but have not been executed or partially executed.

C) Definition of the complaint by A. I. Sevastyanova

In the definition of the Constitutional Court of the Russian Federation dated 05.27.2004 No. 211-O, the stated conclusions are repeated.

Here we should note separately: in all three analyzed definitions, the Constitutional Court of the Russian Federation indicated that all judicial procedures provided for by industry legislation can be used to protect the rights of these persons. Judicial review of judgments in connection with the recognition of a norm as unconstitutional is possible, in particular, both by way of judicial review and by newly discovered circumstances. The institution of appealing to the court against actions and decisions that violate the rights and freedoms of citizens serves to review decisions of law enforcement agencies other than courts.

D) The ruling on the complaint of R. R. Kuramshin

In the definition of the Constitutional Court of the Russian Federation dated 05/12/2006 No. 135-O, the conclusions are generally repeated. The Constitutional Court of the Russian Federation adds that requiring an unconditional review of absolutely all acts after the act of the Constitutional Court of the Russian Federation would lead to a violation of the principle of legal certainty, which assumes, inter alia, that the judicial act issued at the final resolution of the case is beyond doubt. This could lead to a violation of the balance of constitutionally protected values.

Subsequently, the Constitutional Court of the Russian Federation repeatedly confirmed its position that in cases of persons who were not participants in constitutional proceedings, the decision of the Constitutional Court of the Russian Federation to declare a norm (its interpretation) unconstitutional entails a revision (amendment or cancellation) of a judicial act based on these normative provisions if it either has not entered into force or has entered into force. valid, but not executed or partially executed at the time of the formation of the Constitutional Court of the Russian Federation legal position. As acts of the Constitutional Court of the Russian Federation, in which he expressed this position, one can, in particular, cite:

1) ruling of the Constitutional Court of the Russian Federation dated 06/09/2005 No. 220-O at the request of the Kaliningrad Regional Court for an official explanation of the Decision of the Constitutional Court of the Russian Federation dated 12/14/2004 No. 429-O;

2) definition of the Constitutional Court of the Russian Federation dated 02.11.2006 No. 409-On the refusal to satisfy the petition of the Minister of Health and Social Development of the Russian Federation for an official explanation of the definition of the Constitutional Court of the Russian Federation dated 04.04.2006 No. 89-On;

3) ruling of the Constitutional Court of the Russian Federation dated 29.01.2009 No. 44-O-O on the complaint of M. M. Evloev and O. E. Kharsiev;

4) definition of the Constitutional Court of the Russian Federation dated 06/01/2010 No. 783-O-O on the complaint of I. V. Dudarev;

5) definition of the Constitutional Court of the Russian Federation dated December 21, 2001 No. 1632-O-O on the complaint of A. A. Alekseev;

6) definition of the Constitutional Court of the Russian Federation dated 25.01.2012 No. 178-O-O on the complaint of K. A. Oleshko;

7) Resolution of the Constitutional Court of the Russian Federation dated 08.11.2012 No. 25-P on the complaint of JSC Joint Stock Company for Pipeline Transportation of Petroleum Products Transnefteprodukt);

8) definition of the Constitutional Court of the Russian Federation dated 10.10.2013 No. 1496-O on the complaint of A. N. Abiduev;

9) Resolution of the Constitutional Court of the Russian Federation dated 07/06/2018 No. 29-P on the complaint of Albatros LLC;

10) definition of the Constitutional Court of the Russian Federation dated 04/23/2020 No. 849-O on the complaint of M. V. Lesnyak.

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Thus, in fact, the Constitutional Court of the Russian Federation has formed three mechanisms for reviewing a judicial act based on a recognized unconstitutional norm.:

- unconditional review of the cases of the applicants of the constitutional complaint;

- the ordinary (institutional) procedure for reviewing the cases of non-applicants;

- review in the order of newly discovered/new circumstances for non-applicants.

The last two mechanisms are so–called "conditional" because they are subject to the criterion of non-fulfillment.

At the same time, special attention should be paid to the ordinary (institutional) review procedure. Initially, the Constitutional Court of the Russian Federation dealt only with supervisory review, which, on the one hand, is also an extraordinary review procedure, but continues to be institutional, i.e. aimed at identifying and correcting judicial errors. The application of such an order is possible, since the application of an unconstitutional norm or the application of a norm in a different interpretation than that given by the Constitutional Court of the Russian Federation means a judicial error and it is impossible to apply it to a higher court after the publication of the decision of the Constitutional Court of the Russian Federation (to apply it means to commit a judicial error).

In the future, the ordinary procedure for reviewing due to the recognition of the norm (its interpretation) as unconstitutional was developed and extended to all instances. In particular, in resolution No. 25-P dated 11/08/2012 on the complaint of JSC Joint Stock Company for Pipeline Transport of Petroleum Products Transnefteprodukt, the Constitutional Court of the Russian Federation stated the following: "If, during the consideration of the case by the appellate or cassation instance, or by way of supervision, it is established that the court of a lower instance, when issuing a judicial act, either applied legal provisions that subsequently, after the issuance of this judicial act, the Constitutional Court of the Russian Federation recognized them as inconsistent with the Constitution of the Russian Federation, or applied them in an interpretation at odds with their constitutional and legal meaning revealed by the Constitutional Court of the Russian Federation, such judicial acts are based on the fact that courts of general jurisdiction and arbitration courts have no right to assess the legality and validity of decisions made by the Constitutional Court of the Russian Federation as well as not to comply with its decisions and the prescriptions contained therein are subject to unconditional cancellation."

This legal position was later adopted by the legislator and included in Part 5 of Article 79 of the Federal Law on the Constitutional Court of the Russian Federation (which is discussed in more detail below).

However, the Constitutional Court of the Russian Federation has not solved the main problem of choosing between the procedural conditional mechanisms proposed by it. Of course, it was assumed that the Constitutional Court of the Russian Federation should not be so involved in manual adjustment of procedural legislation (this should be handled by the federal legislator).

Globally, the Constitutional Court of the Russian Federation has always emphasized that the absence of norms in the procedural legislation on the procedure for reviewing acts due to the legal position of the Constitutional Court of the Russian Federation cannot block this need (definition of the Constitutional Court of the Russian Federation dated 11.11.2008 No. 556-O-R), however, the issue of choosing the appropriate procedural form is still fundamentally important. The Constitutional Court of the Russian Federation in this definition indicated that if there are no proper procedural mechanisms, it is necessary to apply the provisions on procedural analogy.

Nevertheless, the courts continued to massively ignore the need to review judicial acts in cases of non-applicants due to the recognition of the norm (its interpretation) as unconstitutional, including due to the lack of clear procedural tools.

An analysis of the legal nature of institutional and non-institutional review institutions suggests that in the described competition, priority should be given to institutional review methods and only when this possibility is exhausted would the tools of review be included in new circumstances (since this institution in Russian practice is traditionally perceived as a backup tool for correcting judicial errors, although it is not and will not be should).

This logic is implemented in relation to another new circumstance – the definition or change in the practice of applying the norm in the resolution of the Plenum or the Presidium of the Supreme Court of the Russian Federation ("if the opportunity to appeal to the court of appeal and cassation instances is exhausted" – see, for example, paragraph 3 of art. 312 of the APC RF). In this part, we will make a reservation that, in our opinion, the incorrect explanation of the Supreme Arbitration Court of the Russian Federation remains that if a person applies for a review of a judicial act due to a definition or change in the practice of a rule in the order of supervision, then the collegial composition of judges does not consider such a complaint, but indicates the possibility of revision under new circumstances (para. 6, paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30.06.2011 No. 52 "On the application of the Provisions of the Arbitration Procedural Code of the Russian Federation when Reviewing judicial acts under new or newly discovered circumstances"), which, of course, is not correct from the point of view of the system of mechanisms for reviewing judicial acts. This toolkit was introduced, which was not provided for by law, in fact, for the convenience of the supervisory authority itself.

In other words, in exceptional cases, the mechanism of review based on new circumstances should be applied not because the recognition of the norm (its interpretation) as unconstitutional is a new circumstance for the non-applicant, but because there is no other appropriate procedural tools to achieve a fair judicial decision. If this were not the case, these two mechanisms could not actually exist in the same situation in parallel.

Let's make a reservation that the retired judge of the Constitutional Court of the Russian Federation, G.A. Zhilin, in his dissenting opinion to the decision of the Constitutional Court of the Russian Federation dated January 21, 2010 No. 1-P on complaints from CJSC Bereg Production Association, JSC Karbolit, JSC Microprovod Plant, JSC Scientific and Production Enterprise Respirator, suggests otherwise interpret the stated legal positions. In particular, he points out that "in accordance with arbitration and civil procedure legislation, the review of court decisions in connection with the recognition of a norm as unconstitutional is possible, in particular, both due to newly discovered circumstances (according to the statements of persons who participated in the constitutional proceedings) and by way of judicial supervision (according to the statements of persons who did not participate in the constitutional court proceedings)".

Nevertheless, in practice, non-applicants massively sought to revise their judicial acts, using precisely the tools of revision in new circumstances, which clearly indicates the problems of the procedural norm and the lack of transparency of the regulation of procedural mechanisms.

II. Criticism of the criterion of non-fulfillment

Despite the fact that the introduction of the Constitutional Court of the Russian Federation into legal circulation of the criterion of non-fulfillment of a judicial act when deciding on the possibility of its revision due to the recognition of a norm (its interpretation) unconstitutional certainly corresponded to the interests of legal certainty, this criterion was reasonably criticized in the literature ^[4]. The main problem was that the Constitutional Court of the Russian Federation did not disclose the content of the criterion of non-fulfillment.

Thus, in procedural legislation, the property of enforceability is usually applicable to judicial acts on claims for award – the purpose of these claims is to enforce the rights of claim, which otherwise cannot be realized with the debtor's opposition. The purpose of recognition claims (the requirement to establish the existence or absence of a right) and transformative claims (creation, modification, termination of relations) is achieved by the entry into force of a court decision, the actual execution in this case is not necessary. It should be noted that even in the case of refusal to satisfy the claim for the award of execution does not occur. The final judicial acts rendered not on the merits (termination, abandonment without consideration) are also not executed. However, according to the logic of the Constitutional Court of the Russian Federation, the criterion of non-fulfillment is applicable to any acts.

In this regard, A. V. Ilyin proposed to interpret the criterion of non-fulfillment broadly (independently from the provisions of procedural legislation) as the failure of a judicial act to achieve its legal effect, bearing in mind the failure to achieve the legal goal that constitutes the content of the claim. For example, a court decision to grant a recognition claim or a court decision to dismiss an award claim allows the winner to safely use his position by assigning the losing party to inaction, prohibiting her from interfering in any way with the exercise of the right of the winning party. The achievement of such an effect can be called the execution of a judicial act ^{[4, p. 162]}.

Thus, according to A.V. Ilyin, a judicial act can be understood as unfulfilled or partially executed when, despite its entry into force, its legal effect has not been fully realized (the purpose of the content of the claim has not been achieved) ^{[4, p. 162]}.

Proceeding from this, judicial acts that have entered into legal force on recognition claims or transformative claims must be recognized as executed, since their legal effect is fully realized at the time the judicial act enters into legal force. The refusal decision should also be considered executed, since the effect it generated for the winning party (the defendant) has been realized – the dispute is resolved by establishing that the plaintiff has no right to claim against the defendant or this right is not subject to enforcement through the court.

A.V. Ilyin comes to the conclusion that the legal position on the possibility of review actually applies only to one case: when a court ruling that entered into force based on the provision of the law was subsequently declared unconstitutional by the Constitutional Court of the Russian Federation, directly or indirectly, a person is obligated to give, do or provide something, and this person, nthe person who participated in the constitutional court proceedings did not fulfill this obligation. It can be concluded that only court decisions on award claims can be unfulfilled or partially executed ^{[4, p. 154]}.

S. M. Akhmedov criticizes this approach of A. V. Ilyin, since "achieving a goal and legal effect" is an evaluative category, and it is difficult to give a clear definition of it in relation to various disputes and categories of cases ^{[2, p. 89]}. The scientist gives an example of an insolvency case where the creditor's claim is included in the register of creditors' claims: will the legal effect be considered achieved at the time of inclusion in the register or at the time of receiving a real award for such a claim?

The scientist concludes that the differentiation of cases subject to review according to the criteria of completion or partial completion is unlikely to take root in practice, since what is meant by this is not contained either in codified acts or in the relevant explanations of the courts of higher instances ^{[2, p. 89]}.

We have to agree with A. V. Ilyin and S. M. Akhmedov that the criterion of non-fulfillment is critically difficult for a law enforcement officer and in its current form leads to a complication of the legal reality, rather than aimed at protecting rights.

It is necessary to identify another problem related to the criterion of non-fulfillment.

As we have indicated, formally, in the opinion of the Constitutional Court of the Russian Federation, the criterion of non-fulfillment is not solely the limit of the institution of review for newly discovered and new circumstances, but should also apply to cases of ordinary review of judicial acts in cases of non-applicants. In other words, this criterion is not a characteristic of a specific procedural form.

In fairness, it should be noted that at the stage of appeal and cassation proceedings, it is quite difficult in practice (due to the realities of both enforcement agencies and economic realities) to imagine a situation where a judicial act would have already been fully executed (with the exception of rare cases of immediate execution), therefore, in practice, of course, the criterion is more relevant to to be reviewed according to newly discovered/new circumstances.

Nevertheless, if we assume that the criterion of non-fulfillment should be applied, for example, at the stage of cassation consideration, what should the court do in this case? He cannot fail to apply the new legal Constitutional Court of the Russian Federation, however, if he applies the norms properly and reviews the judicial act, which, for example, was fully executed – in fact, he will ignore the already different legal position of the Constitutional Court of the Russian Federation (on the inadmissibility of reviewing the executed judicial act).

This issue becomes more fundamental if we recall the position voiced by G. A. Zhilin in his dissenting opinion to the resolution of the Constitutional Court of the Russian Federation dated January 21, 2010 No. 1-P on complaints from CJSC Bereg Production Association, JSC Karbolit, JSC Microprovod Plant, JSC Scientific and Production Enterprise Respirator about the fact that the cases of non-applicants are reviewed only in an ordinary institutional manner. Then what about the applicability of the criterion of non-fulfillment, which he also points to?

Thus, we have to agree with scientists who believed that the criterion of unworkability has significant disadvantages that need to be eliminated.

In general, it should be noted that in practice, in principle, the right of non-applicants to review their judicial acts in any order has been ignored for a long time due to the lack of a direct indication in the rules of the procedural codes of the need to repeal and/or amend judicial acts in such cases and similar explanations from the plenums (see sub-paragraph. "d" of item 5 and sub-item "in" paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 11.12.2012 No. 31 "On the application of the Norms of the Civil Procedure Code of the Russian Federation when Considering applications by the courts, submissions on the revision of newly discovered or new circumstances of judicial decisions that have entered into force", paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30.06.2011 No. 52 "On the application of the provisions of The Arbitration Procedure Code of the Russian Federation when reviewing judicial acts based on new or newly discovered circumstances").

The above reasons led to the replacement of the criterion of non-fulfillment and the appearance of the criterion of direct indication of the possibility of revision.

III. Transformation of the criterion of non-fulfillment into a criterion of direct indication of the possibility of revision (2020)

Recall that in the ruling on the complaint of I. V. Petrova, the Constitutional Court of the Russian Federation indicated that the applicants of the constitutional complaint are subject to the provisions of art. 100 of the FKZ on the Constitutional Court of the Russian Federation (referring to the grounds for reviewing the judicial act in which the norm recognized as unconstitutional was applied), and to persons who were not participants in the constitutional proceedings – the provisions of Part 3 79 of the Federal Code of Criminal Procedure on the Constitutional Court of the Russian Federation, according to which decisions of courts and other bodies based on acts declared unconstitutional are not enforceable and must be reviewed in cases established by federal law, i.e. using the substantive grounds and procedural institutions established by other legislation.

At the time of making this determination (and, in general, the formation of the described legal positions of the Constitutional Court of the Russian Federation), Part 3 of art. 79 of the FKZ on the Constitutional Court of the Russian Federation looked as follows:

"Acts or their individual provisions, recognized as unconstitutional, become invalid; international treaties of the Russian Federation, recognized as inconsistent with the Constitution of the Russian Federation, which have not entered into force, are not subject to entry into force and application. Decisions of courts and other bodies based on acts declared unconstitutional are not enforceable and must be reviewed in cases established by federal law."

Subsequently, Article 79 of the FKZ on the Constitutional Court of the Russian Federation was supplemented by Part 5, which, as amended on 03.11.2010 (effective from 09.02.2011), looked as follows:

"The position of the Constitutional Court of the Russian Federation as to whether the meaning of a normative legal act or its separate provision, attributed to it by law enforcement practice, corresponds to the Constitution of the Russian Federation, expressed in the ruling of the Constitutional Court of the Russian Federation, including in the ruling on the case of verification of a complaint about a violation of constitutional rights and freedoms of citizens of the constitutionality of the law applied in a particular case. on verification, at the request of the court, of the constitutionality of the law to be applied in a particular case, is subject to accounting by law enforcement agencies from the moment the relevant resolution of the Constitutional Court of the Russian Federation enters into force."

In practice, this formulation often led to the fact that the legal positions of the Constitutional Court of the Russian Federation were perceived as recommendatory ^{[5, p. 37; 6, p. 88]}.

Revision of Part 5 of Article 79 of the Federal Law on the Constitutional Court of the Russian Federation dated December 28, 2016 (effective from December 29, 2016):

"From the moment of entry into force of the resolution of the Constitutional Court of the Russian Federation, which recognized a normative act or its individual provisions as inconsistent with the Constitution of the Russian Federation, or a resolution of the Constitutional Court of the Russian Federation recognizing a normative act or its individual provisions as consistent with the Constitution of the Russian Federation, the interpretation given by the Constitutional Court of the Russian Federation does not allow the application or implementation in any other way the manner in which a normative act or its individual provisions are recognized by such a resolution of the Constitutional Court of the Russian Federation as inconsistent with the Constitution of the Russian Federation, as well as the application or implementation in any other way of a normative act or its individual provisions in an interpretation that is at odds with the interpretation given by the Constitutional Court of the Russian Federation in this resolution. Courts of general jurisdiction and arbitration courts, when considering cases after the entry into force of the ruling of the Constitutional Court of the Russian Federation (including cases where proceedings have been initiated and decisions of previous judicial instances have taken place (highlighted – edition dated 11/09/2020) before the entry into force of this ruling of the Constitutional Court of the Russian Federation), are not entitled to be guided by the normative act or its individual provisions, recognized by this resolution of the Constitutional Court of the Russian Federation as inconsistent with the Constitution of the Russian Federation, or apply a normative act or its individual provisions in an interpretation that is at odds with the interpretation given by the Constitutional Court of the Russian Federation in this resolution."

Thus, as indicated, until 2020, there was a previously described system of mechanisms for reviewing a judicial act based on a recognized unconstitutional norm.:

• unconditional review of the cases of the applicants of the constitutional complaint;
• the ordinary (institutional) procedure for reviewing the cases of non-applicants (the criterion of non-fulfillment was applied);
• review in the order of newly discovered/new circumstances for non-applicants (the criterion of non-fulfillment was applied).

In June 2020, the Constitutional Court of the Russian Federation adopts Resolution No. 30-P dated 06/26/2020 ("resolution on complaints of Odnodvortsev"). It was this resolution that caused the change in legislative regulation in Parts 3 and 5 of art. 79 of the Federal Law on the Constitutional Court of the Russian Federation. Now, to the resolutions of the Constitutional Court of the Russian Federation adopted after 09.11.2020, Part 3 of Article 79 of the Federal Law on the Constitutional Court of the Russian Federation in a different wording applies.:

"Acts or their individual provisions, recognized as unconstitutional, become invalid or, in the cases provided for by this Federal Constitutional Law, do not acquire legal force. International treaties of the Russian Federation that have not entered into force and are recognized as inconsistent with the Constitution of the Russian Federation are not subject to entry into force and application. Decisions of courts and other bodies based on acts or their individual provisions, recognized by the decision of the Constitutional Court of the Russian Federation as unconstitutional or applied in an interpretation that differs from the interpretation given by the Constitutional Court of the Russian Federation in the decision, must be reviewed (and are not subject to execution before revision) in the following cases:

1) provided for in Parts 2 and 5 of art. 100 of the FKZ on the Constitutional Court of the Russian Federation

In this part, we may be interested in Part 2 of Article 100 of the FKZ on the Constitutional Court of the Russian Federation, which says that if the Constitutional Court of the Russian Federation adopted a resolution provided for, in particular, paragraph 2 of Part 1 of Article 87 of the FKZ on the Constitutional Court of the Russian Federation (i.e. the act was declared unconstitutional), the specific case in which the contested normative act was applied is subject to review in the usual manner, provided that the resolution contains an indication of the need for such review.

Part 5 of Article 100 of the Federal Criminal Code on the Constitutional Court of the Russian Federation contains an exceptional case, which is of less interest to our study. These are cases when a person applied to the Constitutional Court of the Russian Federation on the same issue on which the decision was made before it was made, but his complaint was not connected with the case already in progress. In such a situation, the Constitutional Court of the Russian Federation, refusing to accept the case for consideration due to the existence of a ruling on this issue, may indicate in the relevant definition the right of such an applicant to review. Then the rules of case review established for applicants will be fully applied to him ^{[7, p. 51]}.

2) if the decision has not entered into force during the consideration of the case by the court of appeal;

3) review of the case in a court of cassation instance or by way of supervision in connection with cassation and supervisory complaints, submissions filed on other grounds, in accordance with the requirements of Part 5 of art. 79 of the FKZ on the Constitutional Court of the Russian Federation

The specified clauses 2 and 3 of Part 3 of Article 79 of the Federal Code of the Russian Federation on the Constitutional Court of the Russian Federation are a description of the institutional procedure for reviewing judicial acts when a higher authority cannot apply an unconstitutional norm (unconstitutional interpretation) under the threat of qualifying their actions as a miscarriage of justice.

4) if a decision that has entered into force, which was taken on a dispute between a state authority or a local government body, on the one hand, and a citizen or a legal entity, on the other hand, and entails the transfer of property by the citizen or legal entity or the payment of funds by them to a public entity, has not been executed and in the execution of such The decision was not abused by a citizen or a legal entity.

This paragraph represents the legalization of the withdrawal from the resolution on the complaints of Odnodvortsev (more details below).

5) if the provisions recognized by the resolution of the Constitutional Court of the Russian Federation as unconstitutional served as the basis for bringing a citizen to criminal responsibility;

6) if the provisions recognized by the resolution of the Constitutional Court of the Russian Federation as unconstitutional served as the basis for bringing a citizen or a legal entity to administrative responsibility, while the period during which the person is considered to have been subjected to administrative punishment has not passed or has passed, but the fact of bringing to administrative responsibility continues to generate negative consequences for the citizen or legal entity;

7) if the decision of the Constitutional Court of the Russian Federation adopted on a complaint of violation of constitutional rights and freedoms explicitly states such a review in respect of persons other than the applicant or the person in whose interests the complaint was filed.

79 of the FKZ on the Constitutional Court of the Russian Federation has changed slightly and only in part to indicate that even if some court decisions were made by lower instances before the decision of the Constitutional Court of the Russian Federation entered into force, the higher instance does not have the right to be guided by the norm recognized as unconstitutional (specifying the implementation of clarifications on the ordinary review procedure).

Thus, now Part 3 of Article 79 of the FKZ on the Constitutional Court of the Russian Federation as a whole establishes the grounds for reviewing judicial acts both in the ordinary order (when the norm, in principle, can no longer be applied in its former form and/or interpretation) and in the order of revision under new circumstances. The performance criterion appears here only in relation to disputes with government agencies regarding award claims.

Upon a literal reading of Part 3 of Article 79 of the Federal Criminal Code on the Constitutional Court of the Russian Federation, we must conclude that today non-subjects of constitutional proceedings have the right to review their acts in the framework of civil proceedings under new circumstances only in three cases:

- when they were the applicants of the constitutional complaint, but "did not have time" to receive the result of the constitutional court proceedings (part 5 of art. 100 of the FKZ on the Constitutional Court of the Russian Federation);

- when the decision on the claim of the state body for the award has not been executed (clause 4, Part 3, Article 79 of the FKZ on the Constitutional Court of the Russian Federation);

- when it is explicitly stated in the Decision of the Constitutional Court of the Russian Federation in another case. In fact, in this part, the situation becomes similar to the regulation of the consequences of defining or changing the practice of applying a norm in a resolution of the Plenum or the Presidium of the Supreme Court of the Russian Federation (the general rule is an ordinary review, in case of exhaustion and subject to a direct indication of the possibility of revision – revision under new circumstances). In this part, the general rule has changed from the criterion of non-fulfillment to the criterion of direct indication of the possibility of revision.

Separately, we note that the criterion of a direct indication of the need for revision also appeared in relation to subjects of constitutional appeal – paragraph 1, Part 3, Article 79 of the Federal Code of the Constitutional Court of the Russian Federation (definitions of the Constitutional Court of the Russian Federation dated 12/28/2021 No. 2724-O on the complaint of S. A. Kondratyuk, dated 02/24/2022 No. 275-O on the complaint of V. Y. Kirpichenkov, dated 07/21/2022 No. 2085-On the complaint of citizen V.), with the exception of the other cases specified in Part 3 of art. 79 of the FKZ on the Constitutional Court of the Russian Federation.

Additionally, it is also worth paying attention to the fact that there is some movement towards the unification of regulation of similar legal relations. So, other specific "new circumstances", such as the cancellation of the decision of the body that served as the basis for the adoption of a judicial act in this case – in the sense given to this paragraph by the resolution of the Constitutional Court of the Russian Federation dated 07/06/2018 No. 29-P on the complaint of Albatros LLC, when the Constitutional Court of the Russian Federation broadly interpreted this paragraph and indicated the need to understand the "cancellation of a decision of an authority", including the situation of cancellation of a regulatory act in the applicant's case by way of administrative regulatory control, as well as the definition or amendment in the resolution of the Plenum of the Supreme Court of the Russian Federation or the Presidium of the Supreme Court of the Russian Federation of the practice of applying a legal norm, also have a limit in the form of the need for a direct indication of revision. Let's make a reservation that the first of these circumstances implies the possibility of revision under new circumstances if the normative act is declared invalid from the moment of adoption – in fact, such an indication indicates that non-applicants in this case may review the judicial act.

In other words, formally, the criterion of non-fulfillment as a general one has ceased to be used. At the same time, in our opinion, the fate of the fulfillment criterion remains open, since when studying the resolution on the complaints of the Odnodvortsevs, it becomes obvious that the current legislative regulation does not correspond to the actual will of the legislator and the Constitutional Court of the Russian Federation.

IV. Present and future criteria of non-fulfillment

Yu.A. Timofeev also believes that the general criterion of non-fulfillment in 2020 was replaced by an exhaustive list of cases established in Part 3 of Article 79 of the FKZ on the Constitutional Court of the Russian Federation, when persons who did not participate in constitutional proceedings are entitled to apply for review on the basis of a resolution of the Constitutional Court of the Russian Federation adopted on complaints from other persons ^{[8,c. 47]}.

We propose to analyze the resolution on the complaints of the Odnodvortsevs and pay attention to a number of circumstances.

The essence of the matter: judicial acts in 2010 invalidated the transactions, the property (apartment) was claimed, the Odnodvortsev family was removed from registration and evicted from the apartment. In substantiation of their conclusions, the courts pointed out that the disputed apartment, acquired under a purchase agreement, had previously been privatized under forged documents, i.e. it had left the possession of the owner, the city of Moscow, against his will.

The Constitutional Court of the Russian Federation adopts Resolution No. 16-P dated 06/22/2017, in which it recognizes paragraph 1 of Article 302 of the Civil Code of the Russian Federation as inconsistent with the Constitution of the Russian Federation, since it allows the claim of illegal possession of residential premises that were extortionate property from its bona fide acquirer, who relied on the data of the Unified State Register of Legal Entities and in accordance with the established procedure. In accordance with the established procedure, he registered ownership of it, at the request of the relevant public law entity, in the event that this public law entity did not take timely measures to establish it and properly formalize its ownership of this property, in accordance with the requirements of reasonableness and prudence in controlling extortionate property. In this decision, the Constitutional Court of the Russian Federation indicated only the revision of judicial acts directly by the applicant.

The Odnodvortsev family, considering that the resolution of 06/22/2017 No. 16-P is a new circumstance in their case, filed a corresponding application. The courts refused, in fact referring to the fact that the Odnodvortsevs were not applicants in the constitutional process, therefore, for them, the decision of the Constitutional Court of the Russian Federation dated 06/22/2017 is not a new circumstance. The cassation review of judicial acts of the Odnodvortsev family was also denied.

After that, the Odnodvortsev family also applied to the court for termination of enforcement proceedings, pointing out that the execution of the court's decision to evict them from the disputed residential premises after the adoption of the resolution of the Constitutional Court of the Russian Federation dated 06/22/2017 No. 16-P would be a violation of parts 3 and 5 of art. 79 of the FKZ on the Constitutional Court of the Russian Federation. The courts refused, pointing out that the aforementioned decision of the Constitutional Court of the Russian Federation contains neither a direct indication of the need to review judicial acts in cases of persons who were not participants in constitutional proceedings, nor grounds for termination of enforcement proceedings.

As part of the resolution on complaints from Odnodvorets, the Constitutional Court of the Russian Federation checked, among other things, the constitutionality of Parts 3 and 5 of Article 79 of the Federal Law on the Constitutional Court of the Russian Federation in the editions described above until November 2020.

The Constitutional Court of the Russian Federation repeated the conclusions we described earlier regarding the retroactive effect of the legal positions of the Constitutional Court of the Russian Federation in cases of non-applicants of constitutional complaints (not subject to execution and subject to review), recalling the criterion of non-fulfillment. The Constitutional Court of the Russian Federation additionally indicated that these legal positions "also apply to proceedings for the revision of judicial acts that have entered into force due to new or newly discovered circumstances."

It is important to point out to the Constitutional Court of the Russian Federation the uncertainty of the procedural tools at the legislative level when reviewing judicial acts in cases of non-applicants of a constitutional complaint.:

"The conclusion that it is impossible to execute a court decision in connection with the decision of the Constitutional Court of the Russian Federation on cases of persons who were not participants in constitutional proceedings, in any case, is a prerequisite for applying to the court for a review of such a court decision (including does not exclude the re-return of the competent court to the issue of its review under the rules of Chapter 42 of the CPC Russian Federation), taking into account the legal positions formulated in this Resolution. The federal legislator should regulate the legal mechanism for reviewing a court decision in such a situation."

Thus, the will of the Constitutional Court of the Russian Federation, expressed in the analyzed resolution, boils down to the fact that non-participants in constitutional proceedings have the right to non-enforcement of the decision, as well as to review their judicial acts in a new circumstance in connection with the legal position of the Constitutional Court of the Russian Federation, if such a judicial act is not executed. This conclusion in paragraph 1 of the operative part of the Resolution is made in relation to a specific situation (dispute with a government agency). However, in paragraph 3 of the operative part of the decision of the Constitutional Court of the Russian Federation, he went further and pointed out the need to establish a procedural mechanism for reviewing court decisions based on acts or their individual provisions that were recognized by the decision of the Constitutional Court of the Russian Federation as unconstitutional (or received a constitutional interpretation in it), not executed (or partially executed) at the time of such a decision. He pointed this out in isolation from the specific category of dispute and, obviously, in relation to all cases, hoping for a detailed elaboration of institutional and non-institutional review mechanisms in the legislation.

In other words, in the resolution on the complaints of Odnodvorets, the Constitutional Court of the Russian Federation did not imply such a strict limitation of cases of review, as is currently provided for in Part 3 of Article 79 of the Federal Code on the Constitutional Court of the Russian Federation.

In a systematic analysis of Part 3 of Article 79 of the FKZ on the Constitutional Court of the Russian Federation and the resolution on complaints of Odnodvortsevs, the following conclusions should be drawn:

1) The Constitutional Court of the Russian Federation pointed out the need to legalize in procedural legislation the approach that has existed in the practice of the Constitutional Court of the Russian Federation for more than 20 years on the possibility of reviewing judicial acts of non-applicants of a constitutional complaint if the norm applied in their cases (its interpretation) is unconstitutional, since the difficulties that arise regularly on this issue are obvious;

2) the purpose of the Constitutional Court of the Russian Federation was not to exclude the criterion of non-fulfillment or to extend it to a limited category of disputes;

3) the legislator attempted to execute the resolution on the complaints of the Odnodvortsevs and indicate cases when the judicial act is not enforceable and should be reviewed, specifying the cases in Part 3 of art. 79 of the FKZ on the Constitutional Court of the Russian Federation;

4) the situation resolved in the resolution on the complaints of the Odnodvortsevs formed the basis of paragraph 4 of Part 3 of Article 79 of the FKZ on the Constitutional Court of the Russian Federation, including with an indication of the criterion of non-fulfillment;

5) the legislator's attempt is not systemic and rather harmful to law enforcement, since formally (with two exceptions) it restricts non–participants in constitutional court proceedings to the right to review judicial acts only in cases where the Constitutional Court of the Russian Federation gives in its decision a direct indication of the need to review acts in cases of such non-participants - and to such situations, obviously, the criterion of non-fulfillment not applicable. In fact, the criterion of a direct indication of the need for revision becomes the general rule, instead of the criterion of non-fulfillment.

Meanwhile, taking into account the fact that the criterion of non-fulfillment has never appeared at the legislative level, it is impossible to conclude that a change in the legal provision means the loss of its relevance. Moreover, the legal positions of the Constitutional Court of the Russian Federation on the criteria of non-fulfillment have not been canceled, which allows us to put forward the following hypotheses:

1) the criterion of non-fulfillment continues to be valid for reviewing cases of non-participants in constitutional proceedings as a general rule;

2) the norm of clause 7, Part 3, Article 79 of the Federal Code of the Russian Federation on the Constitutional Court of the Russian Federation should mean that in the case of a direct indication by the Constitutional Court of the Russian Federation of the need to review judicial acts in cases of non-participants in constitutional proceedings, the criterion of non-fulfillment does not apply.

Indirectly, this hypothesis is confirmed by the few acts of the Constitutional Court of the Russian Federation issued after the introduction of amendments to Part 3 of Article 79 of the FKZ on the Constitutional Court of the Russian Federation, which do not indicate that the cases of non-applicants can be reviewed outside the context of the criterion of non-fulfillment. The Constitutional Court of the Russian Federation continues to point out that if decisions were executed in respect of non-applicants before the norms underlying them were declared unconstitutional, then the presumption of the constitutionality of the law applies to these persons, since it was applied in conditions where the question of its constitutionality was not raised (for example, the ruling of the Constitutional Court of the Russian Federation dated 09/26/2024 No. 2096-O on the complaint of G. V. Hakobyan, dated 01/31/2023 No. 16-On the complaint of S. P. Korkin, dated 10/27/2022 No. 2931-On the complaint of V. Y. Kirpichenkov).

Nevertheless, a logical question arises: in relation to which cases in civil proceedings the criterion of non-fulfillment may remain valid (except for clause 4, Part 3, Article 79 of the Federal Code of Criminal Procedure on the Constitutional Court of the Russian Federation), because amendments were made to the codes of civil procedure in 2021, according to which "recognition by a resolution of the Constitutional Court of the Russian Federation does not comply with the Constitution of the Russian Federation or the application of in an interpretation that differs from the interpretation given by the Constitutional Court of the Russian Federation in the resolution, the interpretation applied by the court in a judicial act of a normative act or its separate provision in connection with the applicant's appeal, and in cases provided for by the Federal Law of 07/21/1994 No. 1-FKZ "On the Constitutional Court of the Russian Federation", in connection with the appeal of another person, regardless of the applicant's appeal to Constitutional Court of the Russian Federation" (Clause 3, Part 3, Article 311 of the APC of the Russian Federation, Clause 3, Part 4, Article 392 of the CPC of the Russian Federation, clause 3, Part 1, Article 350 of the CAS of the Russian Federation as amended by Federal Law No. 473-FZ dated December 30, 2021 (effective January 10, 2022). Similar changes were made to the Code of Criminal Procedure of the Russian Federation later, by Federal Law No. 180-FZ of 11.06.2022.

Meanwhile, with regard to criminal proceedings, the Constitutional Court of the Russian Federation explicitly states that, for example, paragraph 5 of Part 3 of Article 79 of the Federal Criminal Code on the Constitutional Court of the Russian Federation also applies to non-applicants of a constitutional complaint (ruling of the Constitutional Court of the Russian Federation dated 12/28/2021 No. 2724-O on the complaint of S. A. Kondratyuk).

Thus, based on the current regulation, the criterion of non-fulfillment in civil proceedings applies only to clause 4, Part 3, Article 79 of the Federal Criminal Code on the Constitutional Court of the Russian Federation. But if we assume that the grounds specified in Part 3 of Article 79 of the FKZ on the Constitutional Court of the Russian Federation will be expanded (and this is possible, given that the purpose of the Constitutional Court of the Russian Federation when ruling on complaints from Odnodvortsev was not to limit the grounds for review to a critically narrow range of situations), then the criterion of non-fulfillment will apply to them because that the legal position of the Constitutional Court of the Russian Federation on this has not been canceled.

The question remains whether the criterion of non-fulfillment remains valid in relation to clauses 2 and 3 of Part 3 of Article 79 of the Federal Law on the Constitutional Court of the Russian Federation (for more information, see the section "Criticism of the criterion of non-fulfillment"). We are forced to state that the criterion of non-fulfillment should not apply to these grounds either. This difference in approaches, depending on the stage of consideration, can be explained by the fact that while the case is in the chain of ordinary (institutional) stages of review, the interests of legal certainty suffer less, and those involved in the case understand that opponents have the opportunity to file complaints with higher authorities, and such an appeal is less unexpected. rather than a revision due to new circumstances. In this regard, shifting the focus to institutional mechanisms for reviewing judicial acts seems to be the right way to find a balance between the principle of legal certainty and a fair trial.

Of course, the criterion of non-fulfillment for reviewing a judicial act by a person who is not a subject of constitutional appeal was proposed by the Constitutional Court of the Russian Federation in the absence of any adequate legislative regulation of the consequences of recognizing a norm (its interpretation) as unconstitutional in the context of retroactive effect and cases of revision of such judicial acts and has existed for more than 20 years, and is now practically unclaimed. However, it is premature to conclude that this criterion has ceased to be invisibly present in the practice of the Constitutional Court of the Russian Federation when answering the question about the retroactive force of acts of the Constitutional Court of the Russian Federation.

In this part, it is appropriate to think about the prospects of this criterion and ask the question: should we extend the criterion of non-fulfillment to any acts reviewed under new/newly discovered circumstances (taking into account the fact that not all circumstances have the problem of non-subjects)?

It seems that this would be an unnecessary curtsy in favor of the principle of legal certainty. Moreover, as we have already pointed out, in our opinion, the recognition of a norm (its interpretation) as unconstitutional, the definition or change in the practice of applying the norm in a resolution of the Plenum or the Presidium of the Supreme Court of the Russian Federation, as well as the recognition of a normative act as invalid in the order of administrative regulatory control, are not inherently new circumstances, because both the criterion of non-fulfillment and the criterion of There are special limits to the direct indication of the need for revision. Theoretically, we can assume that, in relation to the described new circumstances, this criterion may someday be extended (in addition or in some other way related to the criterion of direct indication), but its extension to all types of newly discovered and new circumstances seems doubtful.

Conclusion and conclusions

In the framework of this work, we have described the history of the development of such a limit for reviewing judicial acts due to the recognition of a norm (its interpretation) as unconstitutional, as a criterion of non-fulfillment. In our opinion, despite the fact that it is currently formally practically excluded from law enforcement at the legislative regulation level, the legal positions of the Constitutional Court of the Russian Federation have not yet been adjusted, which means that it is premature to completely abandon its consideration. Moreover, when systematizing legislation on the revision of judicial acts based on newly discovered and new circumstances, this criterion can be taken into account (if it is properly finalized).

However, the existence of this criterion as a special limit at the level of the legal positions of the Constitutional Court of the Russian Federation and within the framework of law enforcement practice, along with the criterion of a direct indication of the need to review a judicial act to which the criterion of non-fulfillment has actually been replaced, raises more complex conceptual issues of procedural form.

So, if, as we have established, these limits are special, then the new circumstances to which they apply differ in some way from the others – and the question is how critical the totality of such differences is and whether it still allows such circumstances to be attributed to new circumstances, or indicates the existence of a different construct – There are no other grounds for reviewing judicial acts.

As a result of a cursory analysis of this issue in this article, the author puts forward the following hypothesis, which is subject to verification in the framework of further research: the difference in the legal nature of such circumstances is fundamental and indicates the need to separate them into a separate group of grounds for reviewing judicial acts. At the same time, taking into account the fact that in legal reality there are still a number of situations to which the tools of revision based on newly discovered and new circumstances are applied insofar as the procedural legislation does not have another tool for reviewing its act by the court itself, it is proposed to modernize the content of procedural codes in this part.

So, at a minimum, it is necessary to change the names of the relevant chapters of the procedural codes to a generalized one: "Grounds for reviewing judicial acts that have entered into force", where all grounds are already regulated in detail, in addition to newly discovered and new circumstances that have been developed by practice and partially incorporated into legislation, with a detailed description of all the limits, conditions for their dissemination, subjects , etc . For example, in our opinion, in addition to the general list of grounds, each ground should be described in a separate article.

The author reserves a detailed description of the legal nature of these "special" new circumstances, as well as the disclosure and detailing of proposals for the modernization of legislative regulation for future work.