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INFORMATION LETTER OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of September 11, 2013 No. 1237/12/13-13

To chairmen of Appeal administrative courts

Due to the origin in court practice of the questions connected using provisions of the Law of Ukraine "About prosecutor's office" (in edition of the Law of Ukraine "About modification of some legal acts of Ukraine concerning enhancement of activities of prosecutor's office", further - the Law) the Supreme administrative court of Ukraine considers necessary to draw the attention of administrative courts to it.

From contents of Articles 19 - 21 Law it is seen that supervision of observance and application of the laws is performed by prosecutor's office, in particular by conducting checks.

The procedure for conducting checks is stipulated in Clause 21 Law.

According to part one of this Article of check are carried out according to written appeals of public authorities, local government bodies, deputies of all levels, physical persons and legal entities, and also on own initiative the prosecutor. At the same time checks according to statements of physical persons or legal entities, addresses and requests of deputies of all levels, except statements and messages on criminal offense, are carried out only in case of their preliminary consideration of the executive authority by competent authorities, local government bodies, their official either officials or rejection by them at the scheduled time of decisions on these questions.

From this regulation it is seen that the bases for check are written appeals of public authorities, local government bodies, deputies of all levels, physical persons and legal entities, under condition when they are considered by competent authorities of the executive authority, local government bodies, their official or officials or do not make by them at the scheduled time decisions on these questions.

Also it can be performed on own initiative the prosecutor.

According to Item 2.4 of the Regulations on procedure for conducting checks by bodies of prosecutor's office when implementing the supervision of observance and application of the laws approved by the order of the Attorney-General of Ukraine of November 12, 2012 No. 111 (further - the Provision), the basis for conducting check by the prosecutor on own initiative are this, testimonial of possible violations of legality.

Conclusions on availability of the bases for conducting check can be drawn by results of the carried-out analyses, generalization, information processing on condition of legality, studying of acts and materials of state supervision bodies (control), materials of consideration by courts of civil, administrative, economic cases and cases on administrative offenses, materials of criminal proceedings, information databases of state bodies, messages in mass media, the Internet and from other sources which can be also displayed in:

the orders of the Attorney-General of Ukraine provided within competence orders of his first deputy, deputies, prosecutors of the Autonomous Republic of Crimea, the cities of Kiev and Sevastopol, areas and the prosecutors equated to them, their first deputies and deputies;

- orders of the Attorney-General of Ukraine;

- work plans of bodies of prosecutor's office;

- decisions of boards of the Prosecutor General's Office of Ukraine, prosecutor's offices of regional level;

- decisions of meetings with heads of bodies of prosecutor's office;

- orders of prosecutor's office of other region concerning conducting check which requires making of separate actions within powers, the stipulated in Article 20 Laws of Ukraine "About prosecutor's office";

- other organizational ordering documents.

The part three of article 21 of the Law provides that for check implementation the prosecutor accepts the resolution in which specifies the bases testimonial of possible violations of legality, and proves need of making of the actions provided by Items 3, 4 and 5 parts one of article 20 of this Law. Conducting check without provision of the copy of the specified resolution to the representative of the company, organization, organization irrespective of patterns of ownership, subordination or accessory, to physical person entrepreneur is not allowed.

Courts shall consider that according to the Provision the representative of the company, organizations, the organizations the authorized officer of the company, organization, organization which heads or is part of governing bodies of the company, organization, organization, and also the owner of the subject of managing, physical person entrepreneur or physical person or legal entity which in the procedure established by the law is authorized to be effective from their name is (the paragraph the fifth Provision Item 1.2).

The procedure for provision of the copy of the resolution on purpose of check is established by items 4. 4, 4.5 Provisions according to which the copy of the resolution on conducting check is provided to the representative of the company, organization, organization, physical person entrepreneur personally or by transfer to division which performs registration of incoming documents of object of check, is sent by mail or it is provided by any other method.

In case of evasion of the representative of object of check from personal receipt of the resolution by the prosecutor who presented him in the resolution the mark about it becomes. Evasion of the representative of object of check from receipt of the resolution does not stop conducting public prosecutor's check.

Considering stated by the proof of provision (obtaining) of the copy of the resolution on conducting check of object of check there can be receipt, registration stamp and so forth, mark on evasion of the representative of object of check from personal receipt of the resolution. Proofs of provision (obtaining) of such resolution sent by mail are the documents provided by the Rules of provision of services of mail service approved by the resolution of the Cabinet of Ministers of Ukraine of March 5, 2009 No. 270.

During consideration of such cases courts shall consider that the resolution on conducting check is the act of single application and exhausts the action by the fact of its accomplishment.

According to article 23 of the Law the prosecutor has the right of introduction of representations which are acts of response to the revealed violations of the law.

According to part five of this Article in case of representation variation wholly or partially or not messages to the prosecutor about results of consideration of representation and also if representation was not brought, the prosecutor can take a legal action relatively:

1) recognitions illegal the regulatory legal act of relevant organ completely or in its separate part;

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