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RESOLUTION OF THE PLENUM OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of September 29, 2016 No. 14

About generalization of practice of application by administrative courts of the first instance of Chapters 1 - 4 Sections III of the Code of administrative legal proceedings of Ukraine during consideration and permission of administrative cases

Having heard the report of the judge of the Supreme administrative court of Ukraine Yurchenko V. P. on generalization of practice of application by administrative courts of the first instance of Chapters 1-4 of the Section III of the Code of administrative legal proceedings of Ukraine during consideration and permission of administrative cases, the Plenum of the Supreme administrative court of Ukraine decides:

1. To take the report of the judge of the Supreme administrative court of Ukraine Yurchenko V. P. into consideration.

2. Recommend to judges of administrative courts Generalization of practice of application by administrative courts of the first instance of Chapters 1 - 4 Sections III of the Code of administrative legal proceedings of Ukraine during consideration and permission of administrative cases (is applied) to consider in case of decision making for the corresponding category.

Chairman

A. N. Nechitaylo

Secretary Plenuma

M. I. Smokovich

The certificate of results of generalization of practice of application by administrative courts of the first instance of Chapters 1 - 4 Sections III of the Code of administrative legal proceedings of Ukraine during consideration and permission of administrative cases

In pursuance of Item 1.6 of the work plan of the Supreme administrative court of Ukraine on the first half of the year 2016 the department of generalization of court practice executed studying and generalization of practice of application by administrative courts of the first instance of Chapters 1-4 of the Section III of the Code of administrative legal proceedings of Ukraine (further - KAS of Ukraine) during consideration and permission of administrative cases.

The Section III KAS of Ukraine "Production in Trial Court" which is researched is constructed according to stages of administrative process in Trial Court - the appeal to administrative court and the decision court of question of opening of production on administrative case (Chapter 1), preparatory production (Chapter 2), legal proceedings of case (Chapter 3). The certain head settles actions of court in case of the circumstances interfering production on administrative case (Chapter 4).

Instructions of this Section are applied also in case of production in courts of appeal and cassation instances taking into account the specifics determined by appropriate sections.

Object of research are the legal relationship arising in the course of application of provisions KAS of Ukraine by administrative courts at stages of opening of production on administrative case, preparatory production, legal proceedings.

Object of research are the determinations which are taken out by administrative courts from January 1, 2014 till December 31, 2015, containing in the Unified state register of judgments.

The purpose of generalization is clarification of the reasons resulting in unequal understanding and application of regulations of procedural law by Trial Courts and also assistance to uniform use of procedural rules of the right in case of the solution of questions of availability of the bases for opening of production on administrative cases, at stages of preliminary production and judicial review of cases.

Due to specified in Trial and Appeal Courts information on the most characteristic mistakes arising in application of the procedural law by Trial Courts, the analysis of the reasons of cancellation of judgments by courts of appeal and cassation instances, offers concerning measures which need to be accepted for forming of single court practice is requested.

The analysis of court practice in this sphere is caused by determination of the problematic issues arising in case of use of procedural rules at stages of opening of production on administrative cases, preparatory production, legal proceedings.

When implementing generalization of court practice statistical data of district and Appeal administrative courts, the Supreme administrative court of Ukraine are considered.

Analysis of statistical data

According to statistical data of the Supreme administrative court of Ukraine local administrative courts (district administrative courts and local general courts as administrative) during 2014 considered 316 996 cases and materials; from them returned, left without consideration or refused production opening - 38975 (12%): including returned materials - 27421, that constitutes 9% of total quantity of the considered cases and materials; left without consideration - 6724 (2%), refused production opening - 4830 (1%).

According to the statistical reporting, in 2015 local administrative courts (district administrative courts and local general courts as administrative) considered 261 653 cases and material; from them it is returned, left without consideration or 12% are refused opening of production on 31219 materials, or, including: returned - 23906, or 9,2 of %. Courts refused opening of production on 3869 (1%) to cases, left without consideration 3444 (1%) material.

In 2014 Appeal administrative courts reviewed 284053 judgments. From them on 62174 cases, or 22% of the considered cases, decisions of the courts of the first instance are changed or cancelled.

During the analyzed period Appeal Courts returned 6788 materials, or 2% of the considered materials, refused opening of appeal production on 5285 (2%) to materials, on 1693 materials and cases (1%) made other decisions. In 62329 cases and materials, or 21% of the considered cases and materials, requirements of applicants are met.

Data analysis by types of the appealed decision shows that Appeal administrative courts reviewed 261703 resolutions, or 92% of total quantity of the reviewed judgments, and 22350 resolutions (8%).

In total quantity of the judgments reviewed in appeal procedure:

4851 resolutions, or 2%, about leaving of the action for declaration without consideration;

1863 resolutions (1%) on return of the action for declaration;

1431 resolutions (1%) on refusal in opening of proceeedings;

1032 determinations (% 0,4) about suit abatement;

13173 decisions (5%) on other procedural questions.

In 2015 Appeal administrative courts considered 89 842 cases on petitions for appeal, that is is 194 211 decisions less, than in 2014. From them on 23 953 cases, or 27% of the considered cases, decisions of the courts of the first instance are changed or cancelled that is 5% more, than in 2014.

Data analysis showed that Appeal administrative courts reviewed 12296 resolutions (14%). Dynamics demonstrates that the number of the reviewed resolutions of Trial Courts among total quantity of the judgments reviewed in appeal procedure in 2015 grew on

6%.

So, in total quantity of the decisions reviewed in appeal procedure:

3102 resolutions, or 3%, about leaving of the action for declaration without consideration;

1252 resolutions (1%) on return of the action for declaration;

1094 resolutions (1%) on refusal in opening of proceeedings;

1032 determinations (% 0,4) about suit abatement;

5816 resolutions (6%) on other procedural questions.

According to statistical data, for 2014 the Supreme administrative court of Ukraine as the Trial Court considered 574 cases and material from which it returned left without consideration or refused opening of production on 399 (70%) to materials, including: returned - 268 (47%), left without consideration 54 (9%), refused opening of production on 77 (13%) to materials.

During 2015 as the Trial Court considered the Supreme administrative court of Ukraine of 477 cases and materials (that is is 97 units less, than in 2014) from which it returned, left without consideration or refused opening of production on 323 (68%) to materials, including: returned 191 (40% that is 7% less, than in 2014); left without consideration - 36 (8%) (1% less than previous period) materials and refused opening of production on 96 (20%) (or is 7% more in comparison with 2014) materials.

Besides, according to information provided by Appeal administrative courts It should be noted the following.

The Vinnytsia Appeal administrative court during 2014 reviewed 1423 resolutions of Trial Courts, in particular: 143 resolutions on return of the action for declaration; 121 resolutions on refusal in opening of proceeedings; 73 resolutions on suit abatement; 344 resolutions on leaving without consideration; 742 other decisions. By results of appeal review of the specified resolutions: it is left without changes of 765 decisions; 19 resolutions are changed; 639 resolutions are repealed.

The Donetsk Appeal administrative court during 2014 reviewed 1068 court orders of the first instance among which: Left 659 petitions for appeal about review of resolutions without satisfaction; Repealed 394 resolutions, in 15 resolutions changed the decision. Among the cancelled 394 decisions in 305 cases case is directed for continuation of consideration to Trial Court.

During 2014 in production of the Zhytomyr Appeal administrative court there were 681 petitions for appeal on the decrees of Trial Courts issued at stages opening of production on administrative case, preparatory production and legal proceedings namely:

61 resolutions on leaving of the action for declaration without movement, from which: 16 petitions for appeal are returned to persons who treated them, are refused 3 cases in opening of appeal production, 14 resolutions are left without changes, 28 - are repealed;

144 resolutions on return of the action for declaration, from which: 20 petitions for appeal are returned to persons who treated them, are refused 3 cases in opening of appeal production, 40 resolutions are left without changes, 75 - are repealed;

103 resolutions on refusal in production opening, from which: 13 petitions for appeal are returned to persons who treated them, are refused 2 cases in opening of appeal production, 41 resolutions are left without changes, 40 - are repealed;

14 resolutions on providing the administrative claim, from which: 10 resolutions are left without changes, 4 - are repealed;

293 determinations about leaving of the action for declaration without consideration, from which: 10 petitions for appeal are returned to persons who treated them, are refused 9 cases in opening of appeal production, 148 resolutions are left without changes, 113 - are repealed;

15 resolutions on suspension of proceeedings, from which: 4 cases in opening of appeal production it is refused, 5 resolutions are left without changes, 6 - are repealed;

51 resolutions on suit abatement, from which: 2 cases in opening of appeal production it is refused, 25 resolutions are left without changes, 1 - are changed, 19 - are repealed.

The Kharkiv Appeal administrative court in 2014 reviewed 945 decrees issued by Trial Courts at the stages determined by instructions of Chapters 1 - 4 Sections III KAS of Ukraine, from them about return of the action for declaration - 187, about refusal in opening of proceeedings - 176, about closing of proceeedings - 140, about leaving of the statement without consideration - 442.

The Odessa Appeal administrative court changed and cancelled 905 proceeding decisions of Trial Courts, from them:

resolutions on leaving without consideration - 306,

resolutions on return of the action for declaration - 78;

resolutions on refusal in opening of proceeedings - 67;

resolutions on suit abatement - 53;

other proceeding decisions - 401.

The Lviv Appeal administrative court reviewed 3625 resolutions, including:

resolutions on return of the action for declaration - 321;

resolutions on refusal in opening of proceeedings - 220;

resolutions on cessation of production - 200;

resolutions on leaving of the action for declaration without consideration - 1026;

other proceeding decisions - 1858.

Repealed 1699 resolutions that constitutes % 46,9.

The appeal to administrative court and opening of production on administrative case (St. 104 - 109 KAC Ukraine)

requirements to the action for declaration, its form and content (St. 104 - 106 KAC Ukraine)

The administrative claim is made by submission of the action for declaration in Trial Court (Art. 104 of KAS of Ukraine).

Quite often claimants, without observing requirements of the Code, turn to the courts with "statements" and "claims", disputing actions, failure to act and decisions of defendants that is obstacle for opening of proceeedings and the basis for leaving of the action for declaration without movement.

However, as court practice witnesses, problematic issues of application of the specified law provisions in that case do not arise.

Article 105 KAS of Ukraine determines form and content of the administrative claim which have special value as based on this source document the judge resolves issue of opening of proceeedings.

In the administrative process which is based on the principles of competitiveness and dispositivity, contents of the action for declaration based on which the judge opens proceeedings are of particular importance.

Actions of the judge in case of the solution of question of opening of proceeedings, carrying out further preparatory actions for consideration of the case in judicial session depend on contents of the action for declaration and in case of its consideration on the merits including about its judicial jurisdiction and cognizance, about determination of the circumstances important for its decision about attraction to process of other persons, researches of proofs and so forth.

Under content of claims determination of method of protection of the right, freedom or interest according to part four of article 105 KAS of Ukraine which shall be formulated most accurately and clear means.

In part four of article 105 KAS of Ukraine it is specified about requirements which are might contain by the administrative claim. It is necessary to pay attention that the administrative claim of the subject of powers of authority may contain other requirements in the cases established by the law (part five of article 105 of this Code).

Besides, rules of this Article concerning specifying by the claimant in the action for declaration of method of protection of the violated rights do not exclude possibility of election of other method of protection and court as content of the principle of official clarification of all circumstances on case obliges administrative court to refining in judicial session of content of claims with the subsequent election of the corresponding method of protection of the violated right.

This principle obliges administrative court as well to refining of claims for the purpose of election of the corresponding method of protection of the violated right. At the same time it should be noted that in case of the solution of question of opening of proceeedings the court finds out only those questions which are provided in part one of article 106 KAS of Ukraine, and cannot go beyond claims and/or change their content. The court can specify claims or choose other method of protection of the violated right after opening of proceeedings (at stage of preparatory production, and also in case of the dispute resolution in essence).

Verification of the action for declaration on compliance to its requirements of the law

Requirements imposed to contents of the action for declaration are accurately determined in article 106 KAS of Ukraine according to which are specified in the action for declaration: the name of administrative court to which the action for declaration is submitted; name (name) of the claimant, the postal address, and also number of the means of communication, the e-mail address if those are available; name (name) of the defendant, position and the duty station official or the official, the postal address, and also number of the means of communication, the e-mail address if those are known; content of claims according to parts four and the fifth article 105 of this Code and statement of circumstances by which the claimant proves the requirements, and in case of submission of the claim to several defendants content of claims on each of defendants. Also the claimant shall enclose to the action for declaration its copies and copies of all documents which are attached to it, according to the number of defendants and the third parties, and also the document on payment of court fee.

The judge after receipt of the action for declaration finds out:

Whether 1) the action for declaration is submitted by person having administrative procedural capacity to act;

Whether 2) the representative has appropriate authority (if the action for declaration is submitted by the representative);

Whether 3) the action for declaration conforms to requirements, stipulated in Clause the 106th of this Code;

Whether 4) the action for declaration is subject to consideration according to the procedure of administrative legal proceedings;

Whether 5) the administrative claim in time established by the law is submitted (if administrative claim is submitted with the omission of the circulation period established by the law to court whether then there are enough bases for recognition of the reasons of the omission of circulation period in court valid);

Whether 6) there are no other bases for return of the action for declaration, its leaving without consideration or refusal in opening of production on administrative case established by this Code.

In case of the solution of question of opening of production the court should be determined by administrative case also with such questions: what rights, freedoms or the interests of the claimant are violated what they consist in and by what solutions, actions or failure to act of the subject of powers of authority they are broken; whether disputable legal relationship belong to public; or whether are subject violated the rights or the interests of physical person or legal entity to protection according to the procedure of other legal proceedings.

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