DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

On November 25, 1997 No. 6-zp

On the case of the constitutional address of the citizen of Dzyuba Galina Pavlovna about official interpretation of part two of article 55 of the Constitution of Ukraine and Article 248-2 of the Code of civil procedure of Ukraine (case of the citizen of Dzyuba G. P. on the right to appeal in court of wrongful acts of the official)

Case No. 18/1148-97

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Timchenk Ivan Artemyevich - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich,

Kozyubra Nikolay Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Mironenk Alexander Nikolaevich,

Nemchenk Vasily Ivanovich,

Rozenk Vitaly Ivanovich,

Owlet Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Silent Vladimir Pavlovich,

Chubar Lyudmila Panteleevna,

Yatsenk Stanislav Sergeyevich,

being guided by article 150 of the Constitution of Ukraine, item 4 of Article 13, articles 51 and 63 of the Law of Ukraine "About the Constitutional Court of Ukraine", considered case on official interpretation of part two of article 55 of the Constitution of Ukraine and Article 248-2 of the Code of civil procedure of Ukraine at plenary meeting.

The constitutional address of Dzyuba of Galina Pavlovna became pretext for consideration of the case according to articles 42 and 43 of the Law of Ukraine "About the Constitutional Court of Ukraine".

Ambiguity of application of provisions of the Constitution of Ukraine and the laws of Ukraine courts of Ukraine about rights of man and citizen on appeal in court of wrongful acts of the official became the basis for consideration of the case according to article 94 of the Law of Ukraine "About the Constitutional Court of Ukraine". The person of law on the constitutional address Dzyuba G. P. asks to give official interpretation:

1) parts two of article 55 of the Constitution of Ukraine;

2) Article 248-2 of the Code of civil procedure of Ukraine, namely: whether can be appealed in court of action of official litsanachalnik of garrison concerning distribution of housing which violate Dzyuba G. P. right to provision of housing by it.

Question of official interpretation of Article 248-2 of the Code of civil procedure of Ukraine it is delivered in the ratio with part two of article 55 of the Constitution of Ukraine concerning the right to appeal in court of actions of the official.

The person of law on the constitutional address refers to legal groundlessness of the resolution of military court of Evpatoriysky garrison of July 25, 1996 by which to Dzyuba G. P. it is refused adoption of the claim to illegality of the decision of the chief of garrison concerning distribution of housing. The military court of Naval forces in cassation procedure left the resolution without change, and the vice-chairman of the Supreme Court of Ukraine according to the procedure of judicial supervision refused bringing of protest on the resolution with the reference, as well as courts of the first and cassation instances, on not jurisdiction to courts of questions of procedure for provision of housing.

At the same time, to Dzyuba G. P. of the vice-chairman of the Supreme Court of Ukraine, with reference to Item 2 of the resolution of the Plenum of the Supreme Court of Ukraine of December 25, 1992 N13 concerning practice of application of the current legislation to this category of cases, affirms as the letter on not jurisdiction to courts of housing disputes over questions of accounting of citizens and provision of housing.

However Dzyuba G. P. in the address specifies that it appeals illegal actions of the chief of garrison in the solution of questions of distribution of housing, but not procedure for consideration of disputes on provision of living space.

Solutions of public vessels of Evpatoriysky garrison and Naval forces are cancelled by the resolution of military board of the Supreme Court of Ukraine of May 20, 1997 on protest of the vice-chairman of the Supreme Court of Ukraine with the direction of case on new judicial review.

Having heard the judge-speaker Skomorokhu of V. E. and having studied case papers, the Constitutional Court of Ukraine established:

1. According to Item 2 of article 150 of the Constitution of Ukraine and item 4 of Article 13, of Articles 43, 94 Laws of Ukraine "About the Constitutional Court of Ukraine" the question of official interpretation of part two of article 55 of the Constitution of Ukraine and Article 248-2 of the Code of civil procedure of Ukraine delivered in the constitutional address of Dzyuba G. P. belongs to powers of the Constitutional Court of Ukraine.

2. Refusing to Dzyuba G. P. adoption of the claim to wrongful acts of the official - the chief of garrison, courts refer to explanation of the resolution of the Plenum of the Supreme Court of Ukraine of April 12, 1985 of N2 "About Some Questions Which Arose in practice of Application of the Housing Code of Ukraine by Courts" with the changes made by resolutions of the Plenum of the Supreme Court of Ukraine of March 10, 1989 N2 and of December 25, 1992 N 13, about not jurisdiction to courts of disputes over questions of accounting of the citizens needing improvement of housing conditions, and provision of housing by it. However in Item 8 of the resolution of the Plenum of the Supreme Court of Ukraine of November 1, 1996 N9 "About Application of the Constitution of Ukraine when Implementing Justice" contains explanation with reference to Articles 55, 124 Constitutions of Ukraine concerning guaranteeing to each person of the right to appeal in court of decisions, actions or divergence of public authorities, local self-government, official and officials, concerning illegality of refusal in adoption of the statement or claim for the reasons provided by the law which this right limits.

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