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RESEARCH OPINION OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of February 1, 2009

About studying and generalization of practice of consideration by administrative courts of disputes over occasion of acceptance of citizens on public service, its passings, release from public service

On accomplishment of the work plan of the Supreme administrative court of Ukraine by the judge of the Supreme administrative court of Ukraine Tsurkan M. I. together with management of generalization of court practice and legal statistics studying and generalization of practice of consideration by administrative courts of disputes over occasion of acceptance of citizens on public service, its passings, release from public service are performed.

Research purpose is identification of problematic issues which arise during hearing of cases of this category, the most characteristic violations or the wrong application of regulations of substantive and procedural law, the formulation of constructive proposals for ensuring identical and correct court practice.

Decisions of the courts of all instances in cases on occasion of acceptance of citizens on public service, its passings, release from public service, information concerning practice of consideration of such cases provided by Appeal administrative courts were object of generalization of court practice.

Components of legal status of persons of public service are revenues to public service, conditions and procedure for its passing, dismissal from public service, the social status of persons of public service. This status is regulated by regulations of different branches of law among which regulation of the constitutional, administrative, labor, civil, criminal, financial law - branches of law in which beginning is the public law. Specified complexity and specificity of this institute and distribution of competence of administrative courts on disputes on acceptance of citizens on public service, its passings, dismissal from service is caused (Item 2 parts one of article 17 of the Code of administrative legal proceedings of Ukraine). The design of this regulation is the researched category of cases determining for the formulation of subject of action in. So, the subject of action can concern the decision of the head of state body which is made by result of holding examination and candidate screen to position in public service, penalties of the salary (monetary pay), accountability, provision of leave, results of qualification certification, transfer into other position, providing the right of the personality to social protection during service, releases from position, changes of the formulation of the bases of dismissal, recovery to positions, penalties of the salary for time of the damage forced absence and compensations caused by illegal release, and so forth.

In this context, in our opinion, it is necessary to draw the attention of courts to the line item of the Supreme Court of Ukraine stated on case on the claim гр. to the President of Ukraine about cancellation of the Presidential decree of Ukraine concerning dismissal and recovery to positions (1) according to which scoping of requirements which are subject to judicial protection is the dispositive right of the claimant. According to article 11 of the Code of administrative legal proceedings of Ukraine the court considers administrative cases not differently as it according to the action for declaration submitted in connection therewith by the Code and cannot overstep the bounds of claims.

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(1) the Resolution of the Supreme Court of Ukraine of March 13, 2007, registration number of the judgment in EDRSR - 580887.

Court practice of the researched category of cases is characterized by such statistics.

According to Public judicial administration of Ukraine in 2008 local administrative courts consider 5539 cases on disputes over occasion of acceptance of citizens on public service, its passings, dismissal from public service. It should be noted that component of this indicator are cases on occasion of provision of pensions of persons of public service.

For this period local general courts consider 3555 cases of this category, from them:

- about refusal in acceptance of the citizen on public service - 18 cases from which claims are satisfied on 6 cases;

- concerning passing of public service - 111 cases from which claims are satisfied on 40 cases;

- about recovery at work - 461 cases from which claims are satisfied on 189 cases.

District administrative courts in 2008 consider 1984 cases of the specified category among which:

- about refusal in acceptance of the citizen on public service - 15 cases from which claims are satisfied on 7 cases.

- concerning passing of public service - 189 cases from which claims are satisfied on 89 cases;

- about recovery at work - 317 cases from which claims are satisfied on 129 cases.

In 2008 Appeal administrative courts review 1927 resolutions of Trial Courts on cases on disputes over occasion of acceptance of citizens on public service, its passings, release from public service, from them:

- about refusal in acceptance of the citizen on public service - 5 resolutions from which 4 - it is left without changes 1 - are repealed;

- concerning passing of public service - 114 resolutions from which 71 - it is left without changes 1 resolution is changed, 42otmeneno;

- about recovery at work 402 resolutions from which 220 - it is left without changes are reviewed, 18 - it is changed, 164 - it is cancelled.

In 2008 the tendency to increase by three and a half times in comparison with 2007 of the number of the decisions of the courts reviewed by the Supreme administrative court of Ukraine in cassation procedure on cases on disputes over occasion of acceptance of citizens on public service, its passings, release from public service as all last year 1794 decisions in comparison with 498 decisions - in 2007 are reviewed, from them is observed:

- about refusal in acceptance of the citizen on public service - 2 decisions which the appealed decisions are left without changes.

- concerning passing of public service - 38 decisions from which 23 decisions - it is left without changes 10 decisions - are cancelled and in 5 cases - cassation production in connection with refusal of the writ of appeal is closed;

- about recovery at work - 263 decisions from which 139 decisions - it is left without changes 89 decisions - are cancelled, 2 resheniyaizmenena and on 33 cases - are closed cassation production in connection with refusal of the writ of appeal.

The analysis of quantitative indices of the researched category of cases shows that the most numerous category are the cases connected with release of persons from public service and therefore this category deserves attention during studying.

Some procedural questions which arise in time

considerations of disputes over occasion of acceptance of citizens on public service, its passings, release from public service

According to part two of article 38 of the Constitution of Ukraine citizens have the equal right of access to public service, and also to service in local government bodies.

The status of government employees who work in state bodies and their device is determined in the Law of Ukraine "About public service". With adoption of this law application of regulations of the labor law in the field of the relations between state bodies and serving, in particular, concerning disciplinary responsibility of government employees, procedure for acceptance on public service, working hours of government employees, payment of their work, provision of pensions, the monetary assistance and so forth was reduced.

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