Administrative Proceedings in Ukraine

By Andrey Kuznetsov
Salkom

Administrative procedures are a possible order of actions of the participants in public relations under specific circumstances as determined by the norms of administrative law.

Administrative law is a separate sphere of law regulating public relations. Relations where at least one of the parties is a subject of public law i.e. legally vested with authoritative powers and functions and operating to perform administrative functions assigned to it.

All relations formed of at least one body or person exercising authoritative powers and performing administrative functions vested by the law are public and are governed by the norms of administrative law.

A number of regulatory acts determining the status and governing the activity of particular state bodies, local governmental authorities and their officials contain the norms of administrative law, both material and procedural. Such regulatory acts may contain both the norms determining the procedure for performing administrative functions by a subject vested with authoritative powers and the norms determining the procedure for protection of the rights and legitimate interests of the participant in such relations toward which such subject performs administrative functions.

Administrative functions are performed according to the administrative procedure provided for by the regulatory administrative act governing the activity of the public relations subject vested with such functions.

The method of administration as direct performance of actions and adoption of decisions in the form of regulatory legal acts or individual regulatory acts is common for all administrative procedures for fulfillment of administrative functions.

In some cases directly envisaged by the law, with the view to perform functions assigned, a subject of public law vested with authoritative powers is empowered to file the claim against the participant in the relations toward which such subject performs administrative functions. Subject to the provisions of Article 124 of the Constitution of Ukraine stating that the jurisdiction of courts shall extend to all legal relations being formed within the state, the rights and legitimate interests of the participant in public relations toward which administrative functions are performed may be protected in two independent ways:

- protection in administrative proceedings is an appeal to a body or a person controlling such body or such person whose actions, omission or decisions are being challenged. - protection in court proceedings lies in filing a claim with the court according to the procedure determined by the procedural law in the presence of specific objective and subjective composition of the legal relations at issue. Considering the two independent ways to protect rights and legitimate interests in public relations, we should speak about the different nature of such protection procedure. The procedure for the protection of rights and legitimate interests in public relations in administrative proceedings may be both directly stipulated in the regulatory act based on which a subject of public relations vested with authoritative powers performs administrative functions, and follow from the provisions of regulatory acts governing the matters concerning subordination and control of such subject’s activity.

The procedure for the protection of rights and legitimate interests in public relations in court proceedings is clearly determined by procedural regulatory acts, in particular, the Administrative Proceedings Code of Ukraine adopted on 6 July 2005.

This regulatory act is implemented along with the reform of the judicial system of Ukraine and organization of the activity of administrative courts carrying out administrative legal proceedings.

The system of administrative courts of Ukraine consists of circuit administrative courts, appellate administrative courts, and the Highest Administrative Court of Ukraine. Pursuant to the norms of the Administrative Proceedings Code of Ukraine, certain categories of cases in public relations are considered by general local courts. Sometimes administrative cases are reconsidered by the Judicial Chamber on administrative cases of the Supreme Court of Ukraine. The Administrative Proceedings Code of Ukraine sets out the criteria for determining the court the jurisdiction of which covers consideration or reconsideration of a public dispute.

The task of administrative legal proceedings, the relevant procedure is determined by the Administrative Proceedings Code of Ukraine, consists of protection of rights, freedoms and interests of individuals and legal entities in the field of public relations.

Any decisions, actions or omission of subjects vested with authoritative powers may be appealed in administrative proceedings, save for the cases when the Constitution of Ukraine or laws of Ukraine establish a different legal procedure with respect to such decisions, actions or omission. The jurisdiction of administrative courts covers all public disputes, save for the disputes for which the law establishes another procedure for court consideration.

The jurisdiction of administrative courts covers as follows:

- disputes of individuals and legal entities with a subject vested with authoritative powers as to the appeal against its decisions (regulatory legal acts or individual regulatory acts), actions or omission;

- disputes regarding accepting citizens to public service, public service and dismissal from public service;

- disputes arising between subjects vested with authoritative powers regarding realization of their competence in the field of administration, including delegated powers, as well as disputes arising in connection with conclusion and fulfillment of administrative contracts;

- disputes based on application of a subject vested with authoritative powers in cases as established by the law; and

- disputes regarding legal relations connected with election process or referendum process.

The jurisdiction of administrative courts does not cover public disputes:

- referred to the jurisdiction of the Constitutional Court of Ukraine;

- subject to court consideration in criminal proceedings;

- on imposition of an administrative penalty;

- arising out of the relations which pursuant to the law or the charter of citizens association are referred to its inner activities or exclusive competence.

Any person thinking that his/her rights, freedoms or interests in the field of public relations have been violated has the right to refer a claim to an administrative court. A subject vested with authoritative powers has the right to refer to the administrative court in cases directly established by the law.

Reference to the court according to the administrative procedure for the protection of rights and legitimate interests is an administrative claim which is filed with the court in writing by the claimant or his/her representative. A claim may be sent to the administrative court by post. An administrative claim may contain requirements for:

- cancellation or invalidation of the decision of the defendant that is a subject vested with authoritative powers in whole or certain provisions of it;

- obligation of the defendant that is a subject vested with authoritative powers to adopt a decision or perform certain actions;

- obligation of the defendant that is a subject vested with authoritative powers to refrain from the performance of certain actions;

- collection from the defendant that is a subject vested with authoritative powers of funds to reimburse for damages caused by its illegal decisions, actions or omission;

- performance of a ceased or unperformed action;

- determination of the competence (authorities) of a subject vested with authoritative powers.

A claim may also contain other requirements to protect the rights, freedoms or interests in the field of public relations. One of the characteristics of administrative proceedings is that the court takes legally envisaged measures necessary to determine all circumstances of the case, including discovery and demand of evidence on its own initiative not limited to the evidence produced by the parties.

Regulation of the procedure for the protection of rights and legitimate interests of participants in public relations contained in a separate regulatory act that is the Administrative Proceedings Code of Ukraine and creation of a separate system of courts securing justice in the field of public relations is one of the most important steps to ensure the protection of rights and legitimate interests of participants in such relations.