On Public Interest and Its Judicial Protection // Russian Laws: Experience, Analysis, Practice. 2015. No. 12. p.54-70 (English)

Herbert Spencer. Principles of Sociology/ trans. V 2 / Saint Petersburg P. 498 (in Russian). Certainly, the society has not ceased to be itself at the moment, in the century characterized by intensive resettlement of individuals and their aggregates, which often leads to dilution of uniform groups formed in certain territories by other elements that were not initially typical for such groups. The old and new elements are in constant interaction, while new aims, co-existence models, values, needs etc. are formed.
At the moment, this is very often the case with village population. See e.g. "Abandoned Villages in Russia" http://smartnews.ru/articles/18102.html (in Russian)
According to Sigmund Freud, group cohesion is often based on its animosity towards individuals that are not its members. He wrote: "It is always possible to bind together a considerable number of people in love, so long as there are other people left over to receive the manifestations of their aggressiveness. I once discussed the phenomenon that is precisely communities with adjoining territories, and related to each other in other ways as well, who are engaged in constant feuds and in ridiculing each other -- like the Spaniards and Portuguese, for instance, the North Germans and South Germans, the English and Scotch, and so on. I gave this phenomenon the name of "the narcissism of minor differences"…" Sigmund Freud, Civilization and Its Discontents (1930)
German title: Das Unbehagen in der Kultur ("The Uneasiness in Culture"), translation by James Strachey, The Standard Edition of the Complete Psychological Works of Sigmund Freud, Volume XXI (1927-1931), and published as a single volume, New York: Norton, 1961.
See E.N. Panov. Escape from Loneliness. Individual and collective in nature and human society. Moscow, 2001. P. 502-503 (in Russian)
G.F. Shershnevich. General Theory of Law. Issue One. Moscow, 1910. P. 93-95 (in Russian)
 The Brockhaus and Efron Encyclopedic Dictionary. Saint Petersburg, 1890—1907, article "Killings of Children and Old People"// http://enc-dic.com/brokgause/Ubistvo-dete-i-starikov-28788.html (in Russian)
Roman Private Law / Ed. I.B. Novitsky, I.S. Peretersky. Moscow, 1997, p. 92 (in Russian).
According to the outstanding scientist Erich Fromm, egoism and altruism are two basic character orientations. See E. Fromm. To Have or to Be? / Harper&Row, USA, 1976.
V.M. Khvostov. General Theory of Law. A Primary Outline. Based on the 1911 edition (in Russian)
A.V. Markov. The Evolution of Cooperation and Altruism: From Bacteria to Human Being" / Extended version of report at the IV International Conference "Biology: From Molecule to Biosphere" (15.12.2009) http://www.evolbiol.ru/altruism.htm (in Russian).
Anne-Marie Kilday. Hurt, Harm and Humiliation: Community Responses to Deviant Behaviour in Early Modern Scotland // Blame and Shame in the context of the rise of modern European states (16-20 centures) / Ed. M.G. Muravieva, Collected Essays. Saint Petersburg: European University in Saint Petersburg, 2011, p. 137-138 (in Russian).
We by no means uphold the idea that egoism is definitely harmful, since it is obvious that in many cases egoism stimulates the progress: in arts, economics, natural sciences; moreover, it is typical for human nature. We only oppose to exaggerated egoism, which in essence forms the platform for any forms of limitations (or elimination) forced onto certain social groups by other ones. .
I.A. Isaev. Solidarity as an imaginary political and legal state. Moscow, 2015. P. 20 (in Russian).
A striking example of how coexistence of various groups can be ensured is the principle of secular state enshrined in legislation of many countries. Apparently the separation of the state from the church provides the grounds for coexistence of different religious groups within the same state, while neither atheism or any religion is imposed through the state policies. The coexistence is also supported by the constitutional principle of ideological diversity. As stated in one of the comments to the Russian Constitution, based on this principle no ideology can be determined as a state or mandatory one, all ideologies in the society are equal. No ideology can have priority that is introduced officially by the state, either legally or otherwise. The citizens of Russia can follow any ideology and take active steps towards its implementation. The ideological diversity is understood as the right of any individual, social groups, political parties and public associations to elaborate any theories, views, ideas related to economic, political, legal or any other mechanisms of the Russian Federation, foreign states or the world civilization as a whole, without any obstructions; to promote his/its views and ideas using mass media: printed press, radio, TV, as well as by publishing monographs and scientific papers, articles etc., to actively implement ideology in the practical sphere by developing party manifestos, prepare legislative drafts and other documents that can foster improvement of the social and political order of the Russian Federation, to publically defend his/its ideological concepts, actively polemize with other ideologies; to require elimination of any obstacles related to the right to ideological diversity through the court or other state bodies. See Comments to the Constitution of the Russian Federation (Itemized) (Issue 2, Updated and Revised) / Ed. L.A. Okun'kov. Moscow, 1996 (in Russian).
In this paper, we do not consider the discussion of the interest concept that actually goes on. In addition, the issue of how the public interest is related to the state interest, interest of the general public etc., however, we should note that all of the above-stated phenomena are not similar to us.
It is important to take into account that when we mention the defense of interests (assets to be protected), we often mean both cases for the legal rights defense (any right mediates some interest) as well as the defense of interests that cannot be expressed through legal rights.
http://www.novayagazeta.ru/news/1691958.html; http://lenta.ru/news/2015/08/31/palmyra/ (in Russian).
One should understand that the groups define the values and their benefits themselves. For certain groups the interest (need) may constitute a phenomena (value), which will be indifferent, unneccessary, unclear or unacceptable to other groups (i.e. not of value for them).
Theory of State and Law / Ed. V.K. Babayev, Moscow, 1999, P. 291 (in Russian).
It is important that the presence of majority does not predetermine that any minority must obey it in any way. The majority and the minority must coexist. The questions of interrelation between the rights of majority and minority, the right of individuals to associate into a minority were raised by an outstanding German scientist G. Jellinek. See G. Jellinek, The Rights of Minorities, translated from German by A.M. Baty, and T. Baty. London, P.S. King and Son, 1912.
R. von Jhering wrote that "The end of the law is peace. The means to that end is war. So long as the law is compelled to hold itself in readiness to resist the attacks of wrong—and this it will be compelled to do until the end of time—it cannot dispense with war. The life of the law is a struggle,—a struggle of nations, of the state power, of classes, of individuals. All the law in the world has been obtained by strife. Every principle of law which obtains had first to be wrung by force from those who denied it; and every legal right—the legal rights of a whole nation as well as those of individuals—supposes a continual readiness to assert it and defend it. The law is not mere theory, but living force". R. von Jhering, "The Struggle for Law", Translated from the Fifth German Edition by John J. Lalor, Chicago, Callaghan and Company, 1915. P. 1. In this context "The rights revolution" is also of interest, see: Epp Charles R. The rights revolution: lawyers, activists, and supreme courts in comparative perspective. – Chicago and London : The University of Chicago Press.. 1998.
T.V. Saknova. A Course of Civil Procedure. Moscow, 2008, P. 1 (in Russian).
D.A. Tumanov. Public Interest in Civil Proceedings // Problems of Procedural Law Development in Russia. Monograph. / A.V. Belyakova, L.A. Voskobitova, A.V. Gabov etc. Ed. V.M. Zhuykov. Moscow, 2016.
D.J. Gifford, K.H. Gifford. Pravovaya Sistema Avstralii. Translated from English (Original title: "Our Legal System", 1983). Moscow, 1988. P. 92-93.
Ibid p. 100.
In our opinion, one may rarely speak of an exclusively judicial interpretation, since it is obvious that one can interpret what is available; in its turn, the courts often formulate such rules of behavior that have not existed before.
Resolution of the Plenum of the Supreme Court of the Russian Federation "On Application of the Labour Code of the Russian Federation by Courts of the Russian Federation", dd. 17.03.2004 No. 2.
See: http://www.encyclopediavirginia.org/Buck_Carrie_Elizabeth_1906-1983;
 See: http://america-xix.org.ru/personalia/dred_scott.html, as well as http://www.pbs.org/wnet/supremecourt/antebellum/landmark_dred.html.
It is surprising that in some of the newest thesis research the authors often see what they want to see, but not what actually exists. For example, E.V. Tokareva allegedly criticizes the viewpoint of the author hereto, according to which the "public interest" and "interest of general public" are considered to be independent legal phenomena on the ground that during defense of the public interest the achievement of value beneficial for "everybody" is of importance, while for the general public such aim cannot be achieved, since the assets to be protected in this case are only individual interests of each general public member. See E.V. Tokareva. Defense of public interest by a prosecutor in civil proceedings. Dissertation for the degree of the candidate of science (law). Saint Petersburg, 2015. P. 39.
However, the author did not write and mean what Ms. Tokareva attributes to him. In the aforementioned paper quoted by E.V. Tokareva it is stated that "indeed, in many cases during defense of the interest of general public also the public interest is protected. For example, its presence is obvious in lawsuits filed to protect the environment etc. However, at the same time there may be situations when a lawsuit aimed at defense of the general public does not involve public interest, since the indefinite range of persons does not automatically mean the presence of some common value. The only connecting grounds for such persons may be the fact that they cannot be personalized and that their kindred rights are protected. For example, it is difficult to reveal a common value in all the possible cases when legal proceedings are instituted in the interests of unidentified number of investors, holders of copyright or related rights by an accredited institution, since the assets to be protected can be only individual interests of each such person". See D.A. Tumanov. The Problems of Public Interest Defense in the Russian Civil Procedure. // Russian Laws: Experience, Analysis, Practice. 2012. No. 9. P. 3-11 (in Russian).
In her turn, E.V. Tokareva states that the public interest is also protected in cases when persons included into a group can be individualized, provided that the quantity of such citizens is substantial. See E.V. Tokareva, ibid, p. 40. However, for some reason she does not take into account (judging by the absence of any references) the fact that the possibility to protect the public interest in situations when all members of a social group can be determined (personified) was earlier noted by other authors (including the above-mentioned paper (D.A. Tumanov, ibid), the contents of which are criticized by Ms. Tokareva.
The above-listed critical notes, however, do not exclude the fact that the dissertation paper of E.V. Tokareva includes certain provisions of scientific interest.
See: http://mozart.belcanto.ru/lomunova.html ; http://echo.msk.ru/programs/netak/1549274-echo/ (in Russian).
Ch. Sanphilippo. A Course of Roman Private Law: A Textbook / Translated from Italian, Moscow, 2008, p. 157 (in Russian); see also Roman Private Law: A Textbook /Ed. Prof. I.V. Novitsky and Prof. I.S. Peretersky, Moscow, 1997. P. 58 (in Russian).
Yu. Baron. The System of Roman Civil Law. Issue One. Book 1. General Part / Translated from German, Moscow, 1898. P. 192 (in Russian).
R. Jhering. Interest and Law / Addenda: 1. Passive Action of Rights. 2. Law as a Means to an End / Translated from German by A. Borzenko / Papers by A. Borzenko: I. Rudolf von Jhering and Felix Dan. From Modern Law. II. Organization and Railroads: An Essay on Railroad Rights. Yaroslavl': Printing House of the Governor of the State Authority, 1880. P. 57 (in Russian).
Ibid, p. 57–58.
Roman Private Law/Ed. Prof. I.V. Novitsky and Prof. I.S. Peretersky, Moscow, P. 58, 536 (in Russian).
S. Muromtsev. Civil Legislation of the Ancient Rome. Lectures. Moscow, 1883 (in Russian).
S.A. Muromtsev. Definition and General Types of Law / An Introductory Paper, comments by a Doctor of Science (Law), Prof. Yu. I. Grevtsov. 2nd Edition, Enlarged, Saint Petersburg, 2004. P. 190–191 (in Russian).
V.Yu. Kulakova. The Question of Special Grounds for Recourse to a Court to Protect Other Person's Interests by State Authorities, Local Authorities, Citizens and Entities // Russian Laws: Experience, Analysis, Practice. 2012. No. 9. P. 11-19 (in Russian).
See D.A. Tumanov. The Problems of Public Interest Defense in the Russian Civil Procedure. // Russian Laws: Experience, Analysis, Practice. 2012. No. 9. P. 3-11 (in Russian).
V.Yu. Kulakova, ibid.
See e.g. Gidi A. Class Actions in Brazil: A Model for Civil Law Countries. The American Journal of Comparative Law, 2003, vol. 51.; Watson G. D. Class Actions: The Canadian Experience. Duke Journal of Comparative & International Law, 2001, vol. 11, pp. 269 – 288; Piche C. Judging Fairness in Class Action Settlements. Windsor Yearbook of Access to Justice, 2010, vol. 28, no. 1.
"The Concept of Unified Civil Procedure Code of the Russian Federation" (approved by decisin of the Committee for the Civil, Criminal, Arbitrary and Procedural Legislation of the State Duma of the Federal Assembly of the Russian Federation dd. 08.12.2014 No. 124 (1)).
Our viewpont regarding the class action suits institution within the framework of the Arbitration Procedure Code, Administrative Procedure Rules and the Concept of Unified Civil Procedure Code was reflected in a number of papers. See: S.A. Alekhina, D.A. Tumanov. Issues Related to Protection of a Group of Persons in Arbitration Process // Russian Laws: Experience, Analysis, Practice. 2010. No. 1. P. 38-43; D.A. Tumanov. Group Action in the Concept of Unified Civil Procedure Code of the Russian Federation // Bulletin of the Civil Process. No. 4. 2015. P. 63-83; D.A. Tumanov. Class Action (Group) Action in the Russian Administrative Procedure Rules // International Research and Practice Conference dedicated to 100th Anniversary of Southern Federal University «Development of Law Science in New Conditions: The Unity of Theory and Practice": Book of Abstracts, Volume II, Rostov-on-Don, 2015. P. 92-92 (in Russian).
De Smedt Peter. Legal tools to encourage citizen participation in environmental enforcement in the Flemish region (Belgium) // Ninth International Conference on Environmental Compliance and Enforcement 2011. S. 564–575. British Columbia, Canada.
See e.g. Dr. Faqir Hussain. Public Interest Litigation in Pakistan // PLD 1993 Journal Section 72.
The analysis of such models shows that some of them reveal the features described above for the Roman actiones populares.
Jones P. Group Rights / The Stanford Encyclopedia of Philosophy (Spring 2014 Edition), Edward N. Zalta (ed.).
For example, at the beginning of the 1980s in India oppressed social groups were defended in court based on recourse by an individual irrespective of his or her membership in such oppressed social group. At this, the person that applied to the court was to act in an open manner and not for personal benefit or a reward, or political motivation, or any other similar intention. See Dr. Faqir Hussain. Public Interest Litigation in Pakistan // PLD 1993 Journal Section 72. Regarding the protection of public interest in India see.: Deva S. Public Interest Litigation in India: A Critical Review // Civil Justice Quarterly. 2009. No. 1.
See e.g. E.M. Muradyan. Civil Justice and Its Results. Moscow, 2013. P. 309; E.M. Muradyan. Truth as an Issue of Judicial Law. Moscow, 2002. P. 43-44 (in Russian).
Above a case was described where it is possible to apply to court in order to contest regulatory legal acts, when it is enough for the applicant to specify the violated right in order to apply; at the same time, it is obvious that not always and not in all cases when public interest is protected one may speak of violated rights of a certain applicant.
It is important that in certain cases the legislation that had had at first provided for the possibility of individuals to claim protection of what in essence is public interest, furthermore abandons such possibility. For example, according to Article 46 of the Federal Law dd. 28.08.1995 No. 154-FZ any individual residing in a territory of a municipal unit had the right to file lawsuits to apply for annulation of any acts of various bodies if such acts violate the rights of local governments (it seems that such possibility referred to public interest protection). However, in the currently applicable Federal Law dd. 06.10.2003 No. 131-FZ "Concerning the General Principles of the Organization of Local Government in the Russian Federation" nothing is said about such right.
D.A. Tumanov. Some Issues Related to the Public Interest Protection in the Russian Civil Procedure // Protection of Rights in Russia and Other Countries of the Council of Europe: Current State and Harmonization Issues: A Collection of Scientific Papers. Krasnodar. Saint Petersburg, 2011. P. 477. This proposal was supported by V.Yu. Kulakova. See V.Yu. Kulakova, ibid (in Russian).
D.A. Tumanov. The Problems of Public Interest Defense in the Russian Civil Procedure. // Russian Laws: Experience, Analysis, Practice. 2012. No. 9. P. 3-11 (in Russian).
.

For example, the www.change.org website.
Provided in the abridged form according to I.R. Medvedev. The Right to the City // Law, No. 6. 2015 (in Russian).
I.R. Medvedev, ibid.
At the same time, surely, one should understand that different urban facilities may be of value not only for the residents of this city. For example, cultural values. Therefore, a social group for which they are of value is much broader than the city residents, and if such values are to be protected, the scope of persons that can apply to court must not be restricted by the city residents.
It should be taken into account that introduction of a judicial procedure for compulsory hospitalization of individuals in itself is of essential public value, since it allows protecting citizens from arbitrary actions undertaken before the judicial procedure was introduced.
See e.g. Yu.V. Tikhomirova. Compulsory Hospitalization of a Citizen to a Residential Psychiatric Facility and Compulsory Psychiatric Examination in the Civil Procedure of the Russian Federation. Moscow, 2009.
D.A. Tumanov, Candidate of Science (Law) (Phd), Assistant Professor of the Civil and Administrative Legal Proceedings Chair at the Federal State Budgetary Educational Institution of Higher Professional Education "Kutafin Moscow State Law University (MSAL)"

On Public Interest and Its Judicial Protection

An article highlights questions of public interest, its impact on justice and organization of public justice. It shows an influence of courts' of justice activity on defence of public interest, emphasizing that due to this activity an interest of one or another social group could be recognized essential by the rest of the society. An author concludes, that through legal proceeding a public interest may be defended either in case of assertion of rights of a single person (however in this case public interest is not a subject of defence) or when a public interest is considered to be a subject of defence. In this regards an article raises some variants of its defence by a court, in particular public suits. The article analyzes (primarily) Russian legislation.


1. In effect, it is generally recognized that society is not just an aggregate of people but rather an integral whole.
Herbert Spenser, a classical sociologist, wrote: "The arrangement, temporary in the one case, is permanent in the other; and it is the permanence of the relations among component parts which constitutes the individuality of a whole as distinguished from the individualities of its parts. A mass broken into fragments ceases to be a thing; while, conversely, the stones, bricks, and wood, previously separate, become the thing called a house if connected in fixed ways. Thus we consistently regard a society as an entity, because, though formed of discrete units, a certain concreteness in the aggregate of them is implied by the general persistence of the arrangements among them throughout the area occupied".
The global society has never been uniform, it has been divided (into social groups and communities) based on various criteria: affiliation with a certain tribe, ethnic group, caste, class, ethnic nationality, gender, religion, residence in a certain territory or state, cultural or any other values etc. At the same time, one individual can be a member of several social groups (communities) formed on different bases. The social groups (communities) can be formed one day, then disappear another day, thus being characterized by bigger or less stability. For example, groups formed due to ethnic descent continue to exist irrespective of where their specific representatives live or are located, while those formed based on the residence in a certain area can gradually degrade due to departure of the majority of its members.
2. Apparently the presence of different social groups (communities) within the global society and even within the society of a certain state has often led to confrontations between such groups (communities), whereupon quite often during certain historical periods stronger social groups (communities) simply destroyed other groups (communities) or created subhuman conditions for their living. This refers to e.g. cases of genocide etc. In other situations certain limitations could be imposed on e.g. the rights of certain groups (communities). In its turn, the reasons for oppression of certain groups (communities) by other groups could be quite diverse. They are often based on egoism. "Me" plus "you" equals "we", and "we" stand against all the "others". It is a well-known fact that for a long time humans have contrasted themselves and their tribes to the rest of the world. A certain self-obsession is demonstrated even by the fact that a person, either voluntarily or not, placed the community to which he belongs in focus. For example, according to a Yoruba legend, the origin of the world is connected with a divine ancestor of the first Yoruba dynasty.
According to G.F. Shershnevich, a man commits an act that is reasonable for him insofar as it can bring him to an aim suggested by his egoism. "And how difficult it may be to replace the practical reason with the moral reason of respect towards another personality, when it is about relations with people with whom we feel not so much in common, we can see from multiple examples of how the most culturally advanced people treat wild tribes. Savages are destroyed using poisoned bread scattered along the road; they are hunted like wolves, intentionally infected with deadly diseases. Where is the absolute moral consciousness of such people that unequivocally orders them to respect another personality and not to use another person as a means to reach their goals?"
Biologists explain the egoistic nature of men and groups of people by the fact that it helps the mankind survive. Thus, elimination of a certain tribe is appropriate if the winning tribe can continue to exist.
The history of mankind features situations when it was absolutely normal to eliminate individuals that made the tribe's life more difficult, for example, cripples and old men. "An old shriveled man, who can hardly move together with his tribesmen, suffering from diseases, is a crippling burden for people whose life depends on casual take, quick movement and migration with their herds, or on the skill and strength of each individual. To release themselves from such crippling burden, as well as to terminate the excessive and long suffering of the old men, they are killed or brought to a lonely place and left to their own devices".
However, gradually the situation has changed following the development of individuals and the society. For example, in many tribes the old men were no longer killed, though not always such changes were related to the progress of humanism; they were often based on rethinking of the value contributed by such old men to the tribe, since they were useful at least by their ability to transfer their life experience to younger generations. Another example is the well-known fact that in Ancient Rome initially a foreigner "was considered as an enemy, hostis, in principle, whose property could at any moment be seized by a Roman citizen, and the foreigner himself could be turned into a slave. In the course of time the state of things changed, but to a great extend because such total deprivation of foreigners' rights soon started to contradict the interests of the Roman society, since it hindered development of trade relations".
However, the above-said does not at all rule out the possibility that gradual progress of an individual and the society can abate egoism to some extent, thus leaving space for humanistic and even altruistic features. In fact, humanism (manifested in a more or less expressed manner) has always been displayed by certain individuals and social groups. It has been reflected in some legal institutions, for example, in one of the forms known in the Roman law, actiones populares, which allowed certain persons to defend other persons (or even slaves) based on pure altruism.
It is a well known fact that humanistic ideas were reflected in philosophical writings of many outstanding thinkers. In its turn, the tragic events of the 20th century caused intensive development of humanistic ideas, many of which were formalized in international legal acts.
It is doubtful that only egoistic motivation forces many states to not only save life of people who often cannot add any obvious value to the society (for example, people with primary mental deficiency etc.), but also to create adequate life conditions for them. In addition, the mankind also displays such forms of altruism that are not focused on itself and that sometimes do not have any expressed benefit for human beings. This features, for example, any activities aimed at animal help, which is often caused exclusively by respect to another being's life (out of pity). An unconditional altruistic element is typical for any activities aimed at helping refugees, forced migrants etc. A well-known law theorist, V.M. Khvostov, wrote that though initially the social feelings of primitive men applied only to the members of his horde, while any others are seen as enemies, later on such feelings are quantitatively expanded, which is caused by multiple benefits from such shared community. Finally, there comes a time when each individual is per se considered to be a fellow creature. However, as the scientist wrote, "This feeling that the whole mankind is united is still underdeveloped". The ideas of A.V. Markov, a well-known biologist, are also of interest in this context: "Animosity towards strangers and wars with members of different tribes were an integral part of our evolutionary history – they were actually an essential requirement for development of our moral grounds, propensity to cooperate and altruism. However, the fact that historically our altruism was focused only on "friends", while our ancestors had hatred for and were enemies with the "foes", does not mean that this is the sample of moral we should imitate today. The evolutionary ethics explains but does not justify our inherent inclinations. Fortunately, the evolution also has made human beings more intelligent, so that we can and must rise above our biological roots and review our outdated ethic frames, which were imposed on our ancestors by the evolution. Things that were reasonable for gene distribution among Stone Age hunters are not suitable for a reflective civilized human being. The evolutionary ethics warns us that we have an inherent tendency to divide people into friends and foes, as well as have hatred and dislike the foes. We as reasonable human beings must realize and overcome this".
3. It is clear that in different historical periods, depending on many factors (including the cultural and scientific level etc., as well as the place of certain social groups in the social hierarchy and whether or not the value of individuals was recognized by the society), the question of what is useful or harmful to the society as a whole and to certain social groups in it was answered in different ways; the same refers to the question of recognized and state supported public interest considered by positive law.
For example, in certain situation a close contact with a foreigner was considered to be an action harmful to the whole society, and children born as a result of such contact were outcasts and were even destroyed by certain peoples. Often certain freedoms of social groups and individuals were interpreted as harmful to the public interest. For instance, in some cases a threat to patriarch values, e.g. due to excessively free actions of women, e.g. their attempts to manage their households independently, was considered to be a threat to the society itself. As a result, frequently proceedings were instigated against such independent women. One can give multiple examples of this kind.
However, due to essential historical changes, which strengthened the role and meaning of each individual, defined him as an independent valuable in contrast to means for the society and state existence, in particular, led to recognition of the fact that an individual can be limited in the satisfaction of his needs and freedoms only in case of evident necessity to do so. Moreover, after the value of certain society members as well as their right to individuality was recognized, this has to a great extend predetermined legalization of the social groups that were formed based on individuality of its members in the opinion of the rest of the society. In a substantial number of cases this finally led to recognition of such groups and their interests by the government and was reflected in the positive law.
Such state of affairs, in our opinion, is right, since it gives a real ground for coexistence of different society members and their groups (communities); for a reasonable limitation of the egoism displayed one group's members towards other groups. At the same time, the coexistence must be based on a principle that reads that the presence of anything different in itself is not a ground for its rejection. A different individual is not automatically an enemy. It seems that one can fully agree with the idea often ascribed to a popular philosopher Merab Mamardashvili: "The enemy's image is a destructive psychic force. It is not the enemy that causes suspicion, but suspicion that gives birth to the enemy". It is obvious that only such alternate things (in relation to the majority) must be prohibited that can cause an actual harm that endangers the existence of all the rest of the society, for example, certain cults. Since "…from the legal perspective such societies of "conspirers" (cults) may only be defined as criminal ones: they separate themselves from the society to bring it down, and the strict morale of the cult is applicable only inside of it. With respect to any other individual they do not know any limits, laws, do not believe that they must spare anyone, therefore they act as actual criminals".
In its turn, in cases when nothing endangers the existence of such society, ideally the state must provide for coexistence of various individuals and their groups. Due to constant interaction both between members of certain social groups (communities) and between different groups (communities) (provided that each of them can master its egoism to a certain extent), gradually conditions for quite adequate coexistence can be formed.
4. When discussing the public interest issue and partially based on the aforesaid, we should note that the public interest concept includes both interest of the society in general as well as certain social groups, while the interest itself should be treated as the need of a certain value, i.e. of something that has a positive effect for the society or the social group.
At the same moment it seems to us that in general the public interest does not necessarily mean a general interest of all human beings and their groups. It is a Utopian situation when absolutely all individuals (their groups) associate due to the presence of some general need, since at least some individuals will be interested in counteracting such need. Here we speak of both the global (world) society and a society of an individual state. For example, even in a situation of general interest, which existed during World War II and consisted of the necessity to conquer the Nazi Germany and bring down the fascist regime, the interest of many states and their societies, which was truly of general nature, stood against the interests of people that supported fascism. The public interest in preserving the world culture heritage stands against those that destroy them like the members of ISIS etc.
It is often implied in publications that public interests feature only needs of social groups or the society in general that a certain author shares. In reality, the public interests are very diverse, often contradictory, and their emergence, existence and disappearance is determined by multiple factors. Moreover, the existence of social groups and their interests does not depend on whether such groups have been recognized by the rest of the society. For example, clearly the group of slaves had its interests irrespective of whether such interests were recognized by free people or not. The need of slaves to free themselves from slavery was caused by the very state of slavery; when it disappeared, the corresponding social group and its needs both disappeared.
However, it is also obvious that the recognition of a certain social group and its needs by the rest of the society and the state will influence its place in the social hierarchy, as well as the state support of its interests and their consideration by the current legislation.
5. It is obvious that social and legislation aspects are interrelated. Law is one of ways to regulate social relations, a special regulator that must influence the most important relations "that affect substantial interests of individuals". Positive law can be forced by the state. To put it simply, one may say that public interests are expressed by legal regulation and its reflection of the society development state. Each social group is interested in the possibility for the current legislation to take all its needs into account. At the same time, based on the aforesaid, the state must ensure coexistence of different social groups, therefore it is apparent that positive law must take the interests of each such group into account, if possible, and should there be any clash of interests, the state must find compromise solutions. For example, in many countries limitations are imposed on tobacco smoking in order to protect the public interests. However, it is clear that complete prohibition of smoking would not take the interests of smokers' group into account. Moreover, such needs are not duly taken into account even when smoking is fully prohibited in public places. It would be a logical compromise between the interests of smokers and non-smokers to create separate smoking areas etc. in public places.
Another example is a well-known fact that currently all around the world the movement for protection of animal rights, for example, of homeless dogs and cats, has become very popular. Indeed, the animal right activists are a separate social group that is interested in protecting the animals. However, it is also obvious that uncontrolled reproduction of homeless animals in towns can harm the society. Therefore, an apparent compromise between the two interests is formulation of regulations that prohibit elimination of neglected animals but provide for their sterilization and vaccination, as well as country-wide establishment of specialized care centers, as well as regulations related to responsibility of people that throw animals away etc.
6. It is clear that there are situations when the current legislation does not take the social needs into account to the extent needed. In certain cases the gap between the law and the society and its needs is critical, which can lead to various forms of "struggle for the positive law": starting from the overthrow of the current power to multiple other ways to defend one's viewpoint (for example, through various forms of democracy).
By all means, the society in general and its certain social groups in particular are interested in maintaining the public order. However, it is a well-known fact that it is often difficult to implement in practice the interests protected by the positive law, while individuals (or groups) whose rights and interest need protection must also struggle for them.
In this regard, different forms to protect the rights and interest are of special importance, in particular, the judicial form. It is no exaggeration that "The judicial protection of rights, freedoms and legal interests is one of the main achievements of civilization organized as a society". Judicial protection is not yet another form to protect the rights and legal interests; it has a special social function, since it is the court that executes justice, and only it can draw a line in any legal issue. Therefore, high-quality justice that reflects the public interests is of legal value, and the society is interested in judicial organization that corresponds to the society and takes its features into account.
However, one must take into account that court activities are not limited exclusively to the protection of rights and interests of various individuals and their groups, if they are protected by the current positive law. Since it is common knowledge that judicial activities often contribute to development of law, its update, modification in accordance with the changing public relations, emerging public interests, judicial activities can be used to legalize the public interests that have not been taken into account earlier. Here, first of all it is related to courts in countries where precedents are unquestionably recognized as the source of law. Researches specify that "in the period of rapid social changes it is so important to modify the law that the courts are forced to develop the principles of common law in order to satisfy the emerging needs of the society". When considering the ways in which the precedent was set it becomes obvious that the law is developed when it is important for the society. For example, in England railroads were in the focus of the public interest, which caused a substantial number of precedents in this sphere.
Judicial activities are of substantial importance even in countries where legislative functions of the court are not generally recognized. However, it is obvious that often the court interprets outdated regulations in order to adapt them to modified public relations. Moreover, based on the need to take the public interest into consideration, de facto the courts often essentially create new legal provisions. While not going into details of the dispute on the availability of any legislative functions to the court (in particular, in the Russian Federation), we should note inter alia that the courts often take into account the existing realities in a certain society and protect vulnerable groups of people. For example, based to a general extent on widespread violations of the employees' rights, the Supreme Court of the Russian Federation underlined that when considering the reinstation claims, if a labor contract was dissolved at the instigation of the employer, it is the employer who has to prove that there were legal grounds to dismiss the individual and observe the established order dismissal, which to a certain extent modifies the rule that any person must prove the circumstances that form the grounds for his/her claims and objections, since literal application of such rule would mean that the burden of proof related to the illegality of dismissal would lie with the employee that applied to the court in order to defend his or her labor rights.
It is clear that the society is also interested in protecting the rights and interests of specific persons during consideration of certain cases. However, in such situations the public interest is not the direct (immediate) asset to be protected; it is that protection of any private interest contributes to the public order stability, as well as confidence in implementation and protection of the rights and interests of one and all.
In certain cases related to the protection of rights and interests of specific individuals the public interest protection is more obvious (even though it is not a direct asset to be protected). For example, this happens if a representative of a certain oppressed social group is protected during judicial proceedings; though the courts solves the question related to the rights of this specific individual, the decision may substantially influence further decisions in similar cases in relation to persons included into the same social group, as well as trigger certain changes in the legislation and public opinion. There have been multiple examples of this kind in the world legal practice.
However, one should take into account that judicial activities do not always result in actual protection of the rights and interests of individuals and the society in general or its various social groups. For example, let us consider a widely discussed case of Buck v. Bell.
Ms. Buck was born on July 2, 1906. She was a child when her father died, and her mother was placed into a hospital for epileptics and feeble-minded with a "mental deficiency" diagnosis. Buck went to a local school, however, before she could finish her 6th year, a foster family took her from the school to do some housework. In 1923 Carry Buck was raped and got pregnant. Based on the statement that her pregnancy was an evidence of licentiousness resulting from her mental disease, Carry was placed into a health facility, and her child was taken away by her former foster family.
Carry was chosen as a target for implementation of a recently adopted law of the state of Virginia on compulsory sterilization of persons suffering from alcoholism, epilepsy, mental diseases and insanity. The constitutionality of the aforementioned law of the state of Virginia and the rights of Carry Buck were subject to judicial inquiry, however, in the end the US Supreme Court held that the law is in line with the US Constitution. As a result of this, Buck and approximately 8 300 other women were sterilized in the state of Virginia. It is notable that after the surgical sterilization procedure performed on October 19, 1927, and her further release Buck was twice married. People that she met during her life did not confirm that she was mentally deficient. She was an independent and helpful person.
Compulsory sterilization procedures were used in Virginia till 1972.
Another famous case of this kind is Dred Scott v. Sandford. A slave to Peter Blow, a plantation owner, Dred Scott was born in 1795 in Southampton district, Virginia. In 1819 his first owner moved to Huntsville, Alabama, then to Saint Louis, Missouri. He died in 1832, and Scott was sold for 500 dollars to a military surgeon John Emerson, who took Scott with him to the free state of Illinois. Two years later they moved to Wisconsin, then returned to Missouri. When Emerson died in 1843, Dred and his wife Harriett filed a suit to the Missouri district court to announce them free on the ground of their residence in a free territory for a certain time. The first attempt made in 1846 was unsuccessful. In 1854 Scott filed his claim again, this time to the Saint Louis Federal Court. The proceedings ended in the US Supreme Court, where on March 6, 1857, his chairman Roger Taney announced a decision that read that Scott did not have the right to apply to the US court, since he was not a US citizen, being a slave and an Afro-American. It followed from Taney's position that "black people have not the rights of the white ones". This decision also announced any limitation of slave owners' rights to be unconstitutional, and the Mason-Dixon line that divided the country into two parts, a slave-holding and a free one in 1820, was eliminated. The South greeted this decision enthusiastically, while in the North the voices doubting the legitimacy of such court became much louder.
In this case one should take into account that, curiously enough, in some cases the judicial decisions, which seem not to protect the rights and interests, can actually be useful, since they can cause public resentment, which, in its turn, can bring necessary social and legal reforms.
7. As mentioned above, the public interest may be contained in many phenomena related to judicial proceedings. For example, it may be in protection of the rights and interests of specific persons, however, in this case it is not a direct asset to protect, it is just mediated through protection of such specific individual.
To protect the public interests, the state often provides an opportunity to resort to a court in order to protect other persons, including specific individuals. For example, children are of special social importance, therefore in many laws all around the world special agents are authorized to resort to a court in order to protect their rights. However, though the possibility of such resort is based on the public interest, still if one applies to a court to protect a child, it is the child's and not the public interest that is being immediately protected.
Therefore cases where the public interest is immediately (i.e. directly) protected are of special importance. In such cases, notwithstanding the applicant, the result directly influences the society in general or a social group, while the issue related to the rights of a specific (individually defined) member of such group is often not raised. Moreover, often it is the group's and not specific individual's need that is important to meet the claim.
In different countries the public interest is immediately protected in many cases related to the environment protection, social status of various social groups (e.g. castes, women, religious groups etc.), protection of cultural or other values, need of hospitals, roads, schools and other objects of importance for the society, transfer (by moving to another place) of objects that interfere with the normal society life (e.g. an airport immediately close to inhabited territories), protection of fauna, creation of animal shelters, as well as any other issues provided that primarily the rights and interests of such group as a whole and not the rights and interests of specific individuals must be protected.
For example, the public interest is not immediately protected when considering a suit related to reinstatement of a person illegally dismissed due to his ethnic nationality. On the other hand, the public interest is protected if a regulatory legal act that limits the rights of individuals with a certain ethnic nationality to work in any role. The public interest is not protected if compensation for a personal injury due to air pollution is considered, however, if a court considers a suit requesting to prohibit construction of a factory that can harm the environment it is the public interest that is protected. At the same time, the public interest can be protected not only in relation to public groups that are difficult or impossible to personify, but also if all members of such groups can be defined. In addition, it is not absolutely necessary to have a large group of persons to speak of the public interest. The public interest can be attributed to a definite but not always numerous group of persons, for example, living in a certain territory, since obviously joint residence can form general needs, which constitute the public interest in relation to such groups.
In this regard, it is important to take into account that in a certain case the question of whether the public interest is immediately protected may depend on a number of factors. For example, if a certain person, a writer, is known and recognized in a certain country or in the world, it is obvious that the society is interested to some extent in being informed of the life and works of such writer in the right way. However, if his copyright is violated during his life (for example, his works are subject to piracy), though the society is actually interested in the information related to the author and his works, it is only the author himself who should be recognized as a person interested to seek judicial resort; no one else cannot apply to the court to protect either the author's or public interest following the general rule. However, if the writer is deceased, he has no descendants and his works belong to the public domain, the piracy of his works can cause application to the court in order to protect the public interest, and there can be no specific concerned individuals in this case.
There can be many situations similar to that described above, which are related to the importance of unbiased information on the life and works of certain (well-known) individuals. For example, it is to a great extent the public interest that was protected in Milano on May 20, 1997, when Antonio Salieri was announced to be innocent after 200 years.
It should also be taken into account that often there can be both personal interest of a certain individual and public interest with respect to the same issue. For example, if a citizen enjoys a title to a certain building of historical (architectural) value, it is obvious that his interest concerns the building as its owner. At the same time, due to the historical (architectural) value of the building the society is also interested in its protection. If the owner undertake an actions that lead to destruction or modification of the building that he owns (or he is idle by not taking any steps to prevent such destruction or modification), and as a result the historical (architectural) value is lost, the public interest to keep the building may stand against the owner's interest.
8. Thus, a question arises as to how the public interest is immediately protected following a judicial procedure, as well as who can act as an applicant to bring such case.
In speaking of the public interest protection, the first thing to come to mind is the institution of actiones populares known in the Roman law, which meant that suits could be filed by any citizen in order to protect the interests not of purely private nature but those related to the society as a whole. Such suits were either introduced using special laws or edicts of praetors or aedils. It should be taken into account that such suits could be filed for multiple issues. As noted by R. Jhering, such suits did not feature the question of whether the filing person pursues his individual interest. The personal interest could be present, but it was not a mandatory requirement. Actiones populares were applicable not only to items of public use, which could also be of personal interest, but also in situations where there was no such interest, for example, in protection of persons seeking help, who were to some extent protected by the society. For example, actiones populares featured, for public benefit, claims arising from quasi-delicts, which could be filed by any individual against a house owner, if such house had some item hanging or standing that could harm bypassers. Another example is that any Roman citizen could file a claim for suspension of a guardian in order to protect a minor, if such guardian "casted doubt on his reliability due to his actions or personal behavior".
It appears that though actiones populares in all cases were related to the public interest, such interest was not expressed in the very same way: (a) In some cases the public interest was to protect the weak and allow any individual to plead for them (since there were no special entities to do so), while as a result of such suit immediate protection was granted to a person in whose interests such suit was filed; (b) in other cases of actiones populares the public interest was immediately (directly) protected.
It should be noted that many researchers related the existence of such institution to a certain stage in the development of law and the state. For example, S.A. Muromtsev wrote: "Based on the principle law of life, if functions are different, organs also differ. However, there's a certain gap between the formation of a function and the appearance of a corresponding organ. Thus, at first there were no bodies of public and civil protection, in fact, there was not enough special legal protection bodies at all. Legal control often reminded the moral one; it was effected through immediate pressing of a violator by the whole society or by an arbitrary spokesman of its mood.
9. At the moment, the issue of who can file a claim to a court in order to protect the public interest is of high priority. Often various public agencies and prosecutors are clothed with authority to apply to a court in order to protect other individuals (whose protection in a certain case is considered to be of importance by the government) and immediately (directly) protect the public interest. The Russian Federation is no exception here.
V.Yu. Kulakova accurately notes that with development of economics and freedom of substantial legal relations the state aims at limiting its interference into the private sphere through public agencies and continues to control only substantial legal relations of public importance. Therefore, judicial recourse to protect the public interests may be one of the main functions of the corresponding public agencies, local autnorities, as well as prosecutors in legal proceedings. However, state and other bodies often fail to properly use their authorities and apply to a court: in many situations when an immediate reaction has been required they remained idle.
The role of various public entities in legal protection of the public interests is widely recognized. It is obvious that the diversity of public interests also predetermines the necessity to create various public entities. At the same time, as mentioned already by the author, often the judicial authorities, when considering the right of a certain entity to file a suit, including suits to protect the public interest, referred to unclear statutory wording and held that such entity cannot apply to court, thus substantially endangering the existence of a certain value of public interest. For example, this took place when certain public entities tried to file a suit in order to protect the environment. Therefore, one should agree with V.Yu. Kulakova that judicial activities should not be focused on finding the legal acts that include a wording of "is entitled to apply to court", but rather on a comprehensive analysis of the provisions and items included into the charters of the entities that define their special legal capacity.
10. It should be taken into account that another issue of high priority is finding other possible ways to immediately protect the public interest in civil legal proceeding. Often class action suits are currently considered to be such forms. As it is known, this institution has been developed in common law countries and is currently specified in various modifications in the legislation of many countries, including the European ones. In the world practice, the institution of class action suits is applied to simultaneously protect a substantial number of individuals. Within such suits, members of a certain group of people join the claims of the applicant that acts within the judicial procedure in their best interests, however, they do not become co-plaintiffs. Such a procedure is provided to avoid any hindrance to the person that leads the process due to the multiplicity of those that join the claims, and to make sure that the case consideration is not delayed.
We will not go into details in describing the model used to protect multiple individuals, however, we should note that the institution of class action suits has both advantages and obvious drawbacks; as a result, many researchers do not consider it to be a useful tool that fosters protection of the rights and interests of the parties concerned.
We should mention that class action suits do not always focus on protection of the public interest as an immediate asset to protect. In particular, in some cases such suits exclusively protect personal interests of specific individuals. Currently the institution of class action suits is undeveloped in Russia. Moreover, the application of provisions specified in the legislation (Chapter 28.2 of the Arbitration Procedure Code of the Russian Federation, Article 42 of the Administrative Procedure Rules of the Russian Federation) due to their imperfection can doubtfully foster protection of the rights and interests of various persons or the public interests. The Unified Civil Procedure Code, which it is planned to adopt instead of the Administrative Procedure Rules and the Arbitration Procedure Code that are currently in force, such institution will be presumably reflected. However, in our opinion, the Concept of such Code related to the class action suits include substantial drawbacks; if they are not eliminated, class action suits will not foster protection of the rights and interests of the parties concerned, but can only do harm instead.
11. One should keep in mind that currently the legislation of certain countries allows individuals to apply to court in order to protect the public interest without using the class action suits. In most cases such suits are related to the environment protection. However, often such rights can be executed on a conditional basis. For example, in the Flemish Region of Belgium various local authorities and some other specially appointed persons can apply to court in relation to environment protection issues. At the same time, if such persons are idle, any resident of the community can request such local authority to apply to court, and if such authority refuses to do so, the resident is entitled to initiate the judicial procedure on his own behalf in the interest of all residents of such region.
The possibility of specific individuals to apply to court in order to protect the public interest is currently provided by the legislation of many countries, including Latin America, Eastern and Asian countries (for example, India and Pakistan). Several models used to protect the public interest based on individual's suits can be considered.
In some cases when a suit is filed to a court both the personal interest of the applicant and the public interest are immediately protected. Often the presence of such personal interest is a mandatory condition to commence a suit. For example, in the Russian Federation according to Article 208 of the Administrative Procedure Rules, a suit to contest a regulatory legal act can be filed by any persons that believe that such act violates their rights, freedoms and legal interests. However, it is also obvious that if such contested regulatory legal act actually contradicts a regulatory act of higher judicial power, this will be enough to hold that such claim is sustained (Item 1, Part 2, Article 215 of the Administrative Procedure Rules). Therefore, sustainment of such claim leads to simultaneous protection of two types of interests: (a) interests of the applicant; the violation of his rights served as a ground to apply to court, and his rights were protected during the contestation of the act (at that, if the corresponding regulatory legal act is held invalid, the person that contested such act has an opportunity to request reconsideration of other judicial acts, in which the contested act was applied to this person); (b) the public interest, since the contested act will not be valid to any persons to which it was supposed to be applicable.
In some cases the judicial process can be initiated by any person based exclusively on his/her membership in a certain social group; in its turn, the issue of violation of such person's rights may not be important to initiate a case and deliver a judgment, since it is general (public) interest that is of importance. For example, such interest is obvious in the following example: a city is characterized by very heavy traffic, which endangers pedestrians, who are interested in the construction of pavements that would allow them to travel around the city safely. Each pedestrian as an individual is interested in such pavements, however, such interest is not enough to make the city administration construct such pavements. However, the general (public) interest of all pedestrians can serve as a sufficient reason for such duty. Thus, it is obvious that one person's claims are not enough to create the corresponding value, since a public interest must be found to settle the claim in contrast to the personal interest of a person who does not have the right for such value.
Finally, in some cases of the world legal practice certain persons could (and can) apply to court in order to protect the interests of certain social groups that do not include the applicants as their members, based on pure altruism – "the public duty". However, we believe that such option is rarely acceptable mainly in cases when the concerned parties do not have an obvious possibility to apply to court themselves, as well as in case there are no special authorized bodies or if they are idle.
If a situation is considered when an individual applies to the court in order to protect the interests of a group in which he is a member, one should take into account that the positive law does not often directly (clearly) specify such interests, and judicial authorities in their turn do not aim at revealing them. For example, let us assume that there is a zoo owned by a city, and the animals there have not been fed for a certain time; if one follows the letter of the law, he will obviously state that the city has the right to the zoo as a public formation; therefore, only it can request to eliminate the violations. However, it is also obvious that in reality the zoo was not created for the city, but rather for the citizens, therefore the city residents are interested in keeping the zoo and the animals in it. Another example is if a public formation makes a contract to build a socially important facility (for example, the only hospital in a town), and the contractor does not execute the contract, although the public formation is a party to the contract, the interest of the city residents is obvious, since they are the users of this facility. The aforesaid does not mean that the structure of contract legal relations should be radically modified, but rather that in many cases one should clearly understand who is actually the parties concerned.
12. The issue of public interest protection upon application of a certain society member has been raised by some researchers. We cannot say that such possibility is totally absent in the current legislation, however, there are certain difficulties related to how this issue is stated in the law. Namely, according to the general rule a person can apply to court in order to protect his rights and interests. At the same time, the right to apply to court in order to protect the interest of others should be directly specified in the legislation, since otherwise the statement of claim is refused (Item 1, Part 1, Article 134 of the Civil Procedure Code of the Russian Federation, Item 2, Part 2, Article 128 of the Administrative Procedure Rules of the Russian Federation). Thereat often if a specific individual tries to protect the interests of a group in which he/she is a member, it is not considered to be a proper applicant, first, since he/she tries to protect not only personal interests but also interests of other persons included into the group; second, because the personal interest may not clearly follow from the law, while the fact that such person is a member of the corresponding group is not considered by many courts as a reasonable ground to file a claim, which is certainly wrong. At the same time, there are not so many situations when certain individuals are literally allowed by the legislation to apply to court in order to protect the public interests (not taking such individual's rights into account). For example, according to Article 11 of the Federal Law dd. 10.01.2002 No. 7-FZ "Concerning the Protection of the Environment", a citizen can apply to court in order to compensate the damage inflicted to the environment. (In our opinion, the citizen will act in such a case in public interest). There are some other rare examples.
We mentioned above that it is important to enhance the list of situations where citizens will have the right to apply to court in order to protect the public interest. This is required since, even if according to the general rule the public interests should be protected by specially authorized bodies, it remains absolutely unclear what can be done in case of their inactivity, especially if urgent reaction is required. As specified above, based on the fact that ordinary citizens often are entitled only to apply to special agencies and not to the court directly, in its turn, it follows that if such agencies refuse to apply to court, it appears in fact judicial protection was denied to such citizen (it becomes inaccessible), therefore, it is not the court but other persons that determined the faith of the public interest, which seems to be far from being right.
In this context, the author suggested to form a system of public suits, where members of the society (or a certain social group) can act as concerned parties and possible applicants for judicial process. In this situation, the process could be based on the following model: a person applying to the court must justify that it is the public interest that is being protected, and that such person is a member of a group or society for which such interest is of importance. In order to avoid abusive practices of applications to court, such cases could have no territory limitations, which would allow excluding the possibility to file suits with similar subjects and grounds in various territories.
The fact that it is the public interest that must be protected in a certain case must influence the process model as well as make the court realize that in such a case the court decision must be based not only on the right or interest of a specific person but rather on the essence of interest that is actually being protected. In particular, as it was mentioned above, in some cases a certain person may not have enough grounds to solve the issue forming the claim, as well as to settle such claim.
However, in any case if a person proves that he belongs to the corresponding group, this means that he is bound to the general (public) interest, is actually a member of such social group; this can exclude any claims from unconcerned parties. Thereat, as stated above, the presence of interest must be based not on the essential right of such applicant, but rather on the presence of an actual need of a certain value for the society in general or a certain social group.
Moreover, we believe that in certain situations when public suits are considered the court itself must be an active participant of the process; it must find whether the public interest to be protected really exists. For this purpose, often statistical information and other materials that may contain the required information must be investigated by the court (for example, special web-sites created to express public opinion). The general public must be definitely informed of the process and any decisions made in such cases. The court must not be bound by the applicant's views, and the regulatory actions may be undertaken by the parties only if they are sure that they will not lead to any violations of the public interests. In such cases, the use of special knowledge and skills may be of special importance. In some cases a compromise must be reached, especially if there's a conflict of public interests, which is definitely possible.
For example, according to Article 1065 of the Civil Code of the Russian Federation it is possible to file a claim in order to prevent the infliction of damage. At the same time, it is obvious that such damage can be inflicted to multiple persons instead of a single specific one: for example, residents of a certain area as a result of environmental damage due to a factory operation. At that, if the damage inflicted is caused by the factory operation or any other production-related activities that continues to inflict damage or cause new types of damage, the court may compel the defendant to suspend or discontinue the corresponding activities in addition to the damage compensation.
However, in Paragraph 2, Part 2, Article 1065 of the Civil Code of the Russian Federation it is specified that the court may refuse to settle a claim to suspend or discontinue the corresponding activities only if such suspension or discontinuation contradicts the public interests.
Therefore, in this situation there may be certain confrontation between the public interests, which on the one hand lie in the residents' need of fresh air, and on the other hand can constitute the fact that such factory is a backbone one for this town and is therefore of public importance. It is also obvious that the court should weight all the pros and cons when making a decision to reject or meet the claim by determining which public interest has a higher value, as well as decide as to whether any compromise is possible, for example, by installing sewage treatment facilities, and if this is impossible, by relocating the residents of the corresponding area to another area (at the factory's expense).
There are other viewpoints, for example, in a very interesting paper by I.R. Medvedev another approach was suggested; it is based on a concept of the "urban rights" formulated by Henri Lefebvre, philosopher. Such right is a "right to urban life: the social component of being in a certain area; the right to change the reality by modifying the city; "the right to moments and places", i.e. to a complete use of a person's time in any urban zones; the right to interfere and request. It encourages the residents to gather together for discussions in order to influence the politics, challenge any decisions related to the fate of the territories and make such decisions themselves. An individual must not only be in a city, just occupy its area and move from one facility to another. One cannot treat the environment indifferently, as though he or she is a vegetable, and pretend that nothing concerns you by passively accepting pre-determined frames. An individual must inhabit by symbolically appropriating the space around him/her, and be proactive, even if only at a small scale". I.R. Medvedev derives the urban rights based on the aforementioned, which, in particular, include: the right to participate in public hearings; the right to favourable living conditions; constitutional rights to favorable environmental conditions and the freedom of assembly; the right to information; the right to common areas; the rights related to cultural heritage sites etc. If a suit is filed to a court in relation to the issues of importance for the city, according to I.R. Medvedev, it is not the public interests that are protected but the interests of certain residents, private interests of each such resident. Since the urban right belongs to each resident, the court considers their personal, vested interest.
At the same time, according to I.R. Medvedev, the application of the public suit concept to urban issues will complicate the judicial protection: "Let any suits related to public interests exist at the same time, however, they should not hinder the protection of my right (private interest), even if such a right is simultaneously enjoyed by other people".
Also, as an argument that there is no public interest in urban matters I.R. Medvedev indicates that residents can be divided into groups: dog lovers and those having no pets; in relation to construction of cult facilities (churches etc.), religious people, atheists and those that do not want the facility to be constructed specifically in this area.
In our opinion, such approach is interesting. In general, no matter how surprising this may sound, we have a common goal with I.R. Medvedev: to ensure that the rights of concerned parties are protected. However, we should note the following.
(A) Any claims related to urban matters may differ dramatically; in many of them, certainly, private interests of individual residents are protected. However, in order to establish whose right or interest (private or public) is protected by a suit related to a certain facility needed to the residents (important to the society), one has to consider whose need is required to satisfy the claim and whose need is protected rather than trying to understand why a certain person applies to court. For example, a city resident may certainly apply to court with a claim to construct a hospital in order for him to use it. However, for such claim to be settled and for the hospital to be constructed, the need of this person is obviously not enough: the court must find that the residents need such hospital, and the hospital will be constructed for all the population and not only for the applicant. In its turn, if only a personal, "vested" interest (following the terminology suggested by I.R.Medvedev) would be protected (which follows from the right of any person to a facility) rather than the public one, obviously the need of the applicant would be enough to satisfy the claim to construct the hospital in the city territory (at that, the needs of other residents would not be taken into consideration, since the applicant has a personal interest to be protected, and this is enough to meet the claim). However, such an approach is far from being justified even since it is unclear why facilities must be constructed in the urban territories and using the residents' money, if such facilities may be required only by the applicant. Therefore, when speaking of a facility needed to the residents, the intended purpose of such facility determines the interest met by it. This interest is definitely of general (public) nature, and it remains to be such even though each individual can in the future satisfy his personal needs by using this facility (even if such a person applied to court in order to satisfy such personal needs).
(B) In its turn, when speaking of the public suit efficiency in solving the issues of urban importance, one should note that in our opinion such suit will rather facilitate than hinder the protection. First, as mentioned above, the issue of whether the applicant belongs to the group whose interest is to be protected is related to the fact that a situation when a person that has nothing to do with the corresponding social group files a suit for protection of interests of such a group is quite untypical (For example, an individual not residing in Vladimir and not even going to move there would file a claim to construct a kindergarten there). Second, again, in order to meet the claim, first of all the presence of public interest must be established. In addition, public suits would allow using any legal mechanisms of use for such situations.
(C) It is difficult to fully agree with I.R. Medvedev that public interest excludes conflicts. The presence of multiple public groups also determines the diversity of their interests, which can definitely contradict each other. At that, the presence of any conflict between the corresponding groups does not exclude the interests of each of them. Which interest is to be protected is another question. However, it is obvious that the answer may depend on many factors: whether or not such interest is recognized by the state, is it reflected in the current legislation, what it is importance in comparison to other public interests, and certainly specific details of the case (for example, if there are already ten Orthodox churches but no mosques, while a group of Muslims is present, it is obvious that in a dispute of whether a church or a mosque must be constructed the choice must be made in favor of the latter one). Once again, we repeat that any such solution cannot be made without search for a compromise.
14. All of the above-said does not exclude that certain publicly important issues, also those related to filing of claims, must remain under the jurisdiction of special agencies. For example, though a mentally disabled person can often be hospitalized by enforcement to a corresponding medical facility as he or she is dangerous for others (and therefore there is public interest involved), only specially authorized agencies (medical facilities) can apply to court with a claim to hospitalize such person, which is one of the main guarantee that the person's rights will be protected since they exclude the possibility to abusively impose limitations on such person's rights to the most extent.
All of the above-stated, in our opinion, indicates that the issues related to public interests in judicial procedures and their judicial protection have remained of high importance.
Moreover, we believe that introduction of the public suit institution described in this paper could contribute to efficient immediate protection of public interests.