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RESOLUTION OF THE PLENUM OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of September 30, 2013 No. 11

About practice of application by administrative courts of provisions of the Law of Ukraine of January 13, 2011 No. 2939-VI "About access to public information"

Having heard the report of the secretary Plenum of the Supreme administrative court of Ukraine of Smokovich M. I. about practice of application by administrative courts of provisions of the Law of Ukraine of January 13, 2011 No. 2939-VI "About access to public information", Plenum Vysshego of administrative court of Ukraine

decides:

1. Report of the secretary Plenum of the Supreme administrative court of Ukraine of Smokovich M. I. take into consideration.

2. The certificate of studying and generalization of practice of application by administrative courts of provisions of the Law of Ukraine "About access to public information" to inform judges of Appeal and district administrative courts.

Chairman

I.Kh.Temkizhev

Secretary Plenuma

M. I. Smokovich

Appendix

The certificate of studying and generalization of practice of application by administrative courts of provisions of the Law of Ukraine "About access to public information"

In pursuance of the work plan of the Supreme administrative court of Ukraine studying and generalization of practice of application by administrative courts of provisions of the Law of Ukraine of January 13, 2011 No. 2939-VІ "About access to public information" is performed  (further - the Law).

Implementation of this generalization is caused by changes which happened in legal regulation of information relations in connection with the introduction in operation of the laws of Ukraine "About personal data protection" (on January 1, 2011), "About access to public information" and "About information" in the new edition (on May 10, 2011).

Changes in the information legislation led to emergence of new category of administrative disputes. These are disputes between requesting public information and its managers on appeal of decisions, actions or failure to act which solution according to article 23 of the Law of Ukraine "About access to public information" is performed according to the procedure of administrative legal proceedings.

The official statistical reporting of administrative courts does not give the chance to trace quantitative indices of consideration of the administrative cases connected using the Law of Ukraine "About access to public information". With respect thereto selective statistical observation of consideration of this category of cases is performed. So, according to information provided by the Vinnytsia Appeal administrative court, from May 10, 2011 to June 1, 2012 this court reviews 15 resolutions on the cases connected using the Law of Ukraine "About access to public information" from which - are left 10 without changes, 4 - are cancelled, 1 - are changed. The Zhytomyr Appeal administrative court reconsiders 8 case from which in 3 cases judgments are cancelled. The Dnipropetrovsk Appeal administrative court reviews 3 judgments from which 1 - it is cancelled. The Donetsk Appeal administrative court reconsiders 27 case in which in 7 cases judgments are cancelled. The Sevastopol Appeal administrative court reviews 24 resolutions from which 7 - are cancelled.

Statistics give the grounds to draw conclusion that the researched category of cases is not numerous. However cancellation in appeal procedure for every third judgment demonstrates that separate regulations of application of the procedural and material law need more detailed analysis and explanation.

Some questions of application of the regulations of procedural law during hearing of cases connected using the Law of Ukraine "About access to public information"

1. Problems of determination of jurisdiction of administrative courts concerning the specified category of cases

According to instructions of part two of article 4 of the Code of administrative legal proceedings of Ukraine (further - KAS of Ukraine) jurisdiction of administrative courts extends to all public disputes, except disputes for which other procedure for the judgment is established by the law.

Use of the principle of interpretation from the previous legal phenomenon to the following and vice versa gives us the chance to receive the legal instruction that the court jurisdiction concerning dispute decision can be determined by the law.

By part three of article 23 of the Law of Ukraine "About access to public information" it is determined that appeal of decisions, actions or failure to act of managers of information in court is performed according to the Code of administrative legal proceedings of Ukraine.

The analysis and synthesis of the specified regulations allows to draw imperative legal conclusion that on any disputes on appeal of decisions, actions or failure to act of managers of public information which arising in the legal relationship settled by the Law of Ukraine "About access to public information" jurisdiction of administrative courts extends.

At the same time, as showed the analysis of court practice, in law-enforcement activity of the courts there were complications in case of determination of jurisdiction of administrative courts concerning distribution of their competence on disputes on appeal of decisions, actions or failure to act of managers of public information.

On the researched conclusions which were drawn by courts during consideration of the specified disputes such problems are caused by inconsistency of separate provisions of the Law of Ukraine "About access to public information" and the Code of administrative legal proceedings of Ukraine concerning distribution of jurisdiction of administrative courts on disputes in which among their parties there is no subject of powers of authority.

So, the Law of Ukraine "About access to public information" provides other, than in the Code of administrative legal proceedings of Ukraine, determination of the subject of powers of authority.

In our opinion, the specified problem is wrong taking into account sludyushchy.

According to Item of 1 part one of article 13 of the Law subject of powers of authority are the public authorities, other state bodies, local government bodies, authorities of the Autonomous Republic of Crimea, other subjects performing imperious managerial functions according to the legislation and which decisions are obligatory for accomplishment.

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