RESOLUTION OF THE PLENUM OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of September 29, 2016 No. 11

About court practice of appeal of solutions of certifying commissions of bodies (organizations, the organizations) of National police of Ukraine about dismissal of employees of police owing to not passing of certification by them

Having heard the report of the judge of the Supreme administrative court of Ukraine Golovchuk S. V. about court practice of appeal of solutions of certifying commissions of bodies (organizations, the organizations) of National police of Ukraine about dismissal of employees of police owing to not passing of certification by them, the Plenum of the Supreme administrative court of Ukraine decides:

1. Golovchuk S. V. to take the report of the judge of the Supreme administrative court of Ukraine into consideration.

2. The analysis of court practice of appeal of solutions of certifying commissions of bodies (organizations, the organizations) of National police of Ukraine about dismissal of employees of police owing to not passing of certification by them (is applied) to inform judges of administrative courts.

The analysis of court practice of appeal of solutions of certifying commissions of bodies (organizations, the organizations) of National police of Ukraine about dismissal of employees of police owing to not passing of certification by them

In pursuance of the work plan of the Supreme administrative court of Ukraine for 2016 the department of generalization of court practice performed the analysis of court practice of appeal of solutions of certifying commissions of bodies (organizations, the organizations) of National police of Ukraine about dismissal of employees of police owing to not passing of certification by them.

According to the order of National police of Ukraine of November 26, 2015 No. 116 "About carrying out certification of police force of National police of Ukraine" carried out certification of police force of National police of Ukraine. Similar events for certification were held rather police territorial authorities of police. In administrative courts numerous claims of police officers for appeal of results of this certification in which claimants declare requirements about arrived: recognition illegal decisions of police agency regarding inclusion of the claimant in the list of police officers who are subject to certification; recognition illegal actions of police agency for carrying out certification of the claimant; recognition by illegal and to cancel the solution (conclusion) of certifying commission on discrepancy of the claimant of post and release it from service in police on office discrepancy; recognition illegal and cancellation of the solution of appeal certifying commission on variation of the claim to the solution (conclusion) of certifying commission; recognition illegal and cancellation of the order of police agency regarding release of the claimant from service in police on Item 5 parts one of article 77 of the Law; recovery of the claimant in position; collection of average earnings during induced truancy.

Application of regulations of the substantive right

1. Bases of certification of police officers

According to part two of article 57 of the Law of Ukraine "About National police" (further - the Law) certification of police officers is carried out: 1) in case of appointment to the highest position if substitution of this position is performed without carrying out tender; 2) for the solution of question of movement of subordinate position for office discrepancy; 3) for the solution of question of release from service in police for office discrepancy.

In the majority of cases courts interpret this provision in such a way that the list of cases of certification of police officers specified in it is exhaustive. Other cases of carrying out certification of police officers are not provided by the Law. Therefore any assessment of business, professional, personal qualities, educational and qualification level of police officers which is carried out by National police at discretion without approach of the circumstances specified in part two of article 57 of the Law, courts recognize groundless and, respectively, illegal (for example, the resolution of the Dnipropetrovsk Appeal administrative court of June 16, 2016 in the matter of the No. P/811/119/16, Unified State Register of Judgments (USRJ) 58430004).

From the analysis of provisions of part two of article 57 of the Law courts are seen that certifications are subject only those police officers who apply for the highest position or concerning whom the issue of transfer into subordinate position or concerning which the issue of dismissal for office discrepancy is resolved (for example, the resolution of the Kiev Appeal administrative court of July 7, 2016 in the matter of No. 810/581/16, EGRSR - 58812362) is resolved. According to the list of police officers who are subject to certification (it is constituted based on the subitem 2 of Item 1 of the Section IV of the Instruction on procedure for carrying out the certification of police officers approved by the order of the Ministry of Internal Affairs of Ukraine of November 17, 2015 No. 1465, further the Instruction), it is necessary to include only those police officers concerning whom there are bases for carrying out certification, provided by part two of article 57 of the Law (the resolution of the Kiev Appeal administrative court of June 21, 2016 on case №810/780/16, EGRSR - 58579374).

Courts critically perceive argument of police agency - the defendant that certification is carried out based on part one of article 57 of the Law and with respect thereto argument note that the certification purpose determined in part one of this Article does not form the independent basis for carrying out certification and is in system interrelation with the exhaustive bases specified in part two of article 57 of the Law (the resolution of the Kiev Appeal administrative court of July 7, 2016 in the matter of No. 810/809/16, EGRSR - 58812388).

On the basis of such interpretation courts come to conclusion that each of three bases for carrying out certification provided by part two of article 57 of the Law shall be connected with certain premises, in particular certification which intends for the solution of question of release from service in police on office discrepancy shall be caused by existence of the real bases for dismissal as improper execution of service duties, violations of the procedure established by the current legislation and rules of service, etc. (for example, the resolution of the Kiev Appeal administrative court of July 6, 2016 in the matter of No. 810/892/16, EGRSR - 58846725). Respectively courts adhere to line item that in the decision on carrying out certification the police agency shall specify the certification bases provided by part two of article 57 of the Law (the resolution of the Kiev Appeal administrative court of June 21, 2016 in the matter of No. 810/780/16, EGRSR - 58579374).

At the same time in separate cases of this category courts in a different way treat provisions of the Law on the bases of certification of police officers, first of all provisions of Item 9 of Final and transitional provisions of the Law according to which "employees of militia who showed willingness to serve in police on condition of compliance to the requirements of police officers determined by this Law within three months from the date of publication of this Law can be employed in police by the publication of orders on appointment from their consent or passing of tender to the positions replaced by police officers in any body (institution, organization) of police".

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