of March 13, 2017 No. 4
About the certificate of the admission and access for the representative of the claimant to the materials of administrative case containing the state secret
Having heard the report of the vice-chairman, the secretary Plenum of the Supreme administrative court of Ukraine Smokovich M. I. about the admission and access for the representative of the claimant to the materials of administrative case containing the state secret Plenum Vysshego of administrative court of Ukraine decides:
1. Report of the vice-chairman, secretary Plenum of the Supreme administrative court of Ukraine Smokovich M. I. take into consideration.
2. The certificate of the admission and access for the representative of the claimant to the materials of administrative case containing the state secret (is attached), to inform judges of administrative courts.
A. N. Nechitaylo
M. I. Smokovich
According to part one of article 12 of the Code of administrative legal proceedings of Ukraine (further - KASU) nobody can be limited in the right in administrative court of information on date, time and the place of consideration of the case and judgments made on it.
According to part one of article 59 KASU of power on conducting case in court grants to the representative the right to making on behalf of person who it represents, all legal proceedings which this person can make.
Therefore, the representative of the claimant cannot be limited in the right in administrative court of information on date, time and the place of consideration of the case of the principal and judgments made on it.
According to part three of article 49 KASU of person, participating in case, have the right, in particular: get acquainted with case papers; participate in research of proofs; get acquainted with technical record, the magazine of judicial session, the protocol on making of separate legal proceeding and to submit written notes to them; do of case papers of the statement, make copies of case papers, receive copies of judgments.
On contents of article 47 KASU belongs to number of persons participating in case as well the claimant's representative.
Therefore, the representative of the claimant has all above-mentioned rights affirmed in article 49 KASU.
At the same time in Ukraine the Law of Ukraine "About the state secret" (further the Law), governing the public relations connected with reference of information to the state secret, classification, declassification of its material carriers and protection of the state secret for the purpose of protection of homeland security of Ukraine (the Law preamble) is effective.
According to part one of article 3 of the Law its action extends to bodies of legislative, executive and judicial authority, bodies of prosecutor's office of Ukraine, other state bodies, the Verkhovna Rada of the Autonomous Republic of Crimea, Council of Ministers of the Autonomous Republic of Crimea, the local government bodies, the companies, organizations and the organizations of all patterns of ownership, consolidation of citizens (further - state bodies, local government bodies, the companies, organizations and the organizations) performing the activities connected with the state secret, citizens of Ukraine, foreigners and stateless persons to whom access to the state secret is in accordance with the established procedure provided.
Follows from the given provision that in case of accomplishment of the main objective, stipulated in Article 2 KASU, administrative courts shall provide protection of the state secret in cases when materials of legal cases contain the relevant classified information.
According to part one of article 34 of the Law state bodies, including law-enforcement, the state control and courts, for the purpose of protection of the state secret shall establish under approval of the Security Service of Ukraine procedure of the functions concerning the state bodies, local government bodies, the companies, organizations and the organizations performing the activities connected with the state secret.
Besides, for today such procedure is settled by Procedure for the organization and providing the mode of privacy in public authorities, local government bodies, at the companies, in organizations and the organizations, the approved resolution of the Cabinet of Ministers of Ukraine of October 2, 2003 No. 1561-12 (to this resolution the access restriction signature stamp "Confidentially" is appropriated).
At the same time according to part one of article 5 KASU administrative legal proceedings are performed according to the Constitution of Ukraine, this Code and international treaties which consent to be bound is provided by the Verkhovna Rada of Ukraine.
Follows from the given provision that the procedure of administrative legal proceedings cannot be regulated by subordinate legislations.
Thus, for today there is gap in legal regulation of the procedural relations on protection of the state secret when implementing administrative legal proceedings.
According to legal line item of the Supreme Court of Ukraine the gap in legal regulation of the procedural relations can be filled by application by analogy of provisions of the procedural law governing the similar relations in other type of legal proceedings (the resolution of February 9, 2007 in production No. of the 21-1080th 06, the Unified state register of judgments - 664164).
Article 14.2.2 of the Code of the data which are the state secret No. approved by the order of the Security Service of Ukraine of August 12, 2005 440, provides such category of data as data on content of materials of legal proceedings, including legal cases (administrative, criminal, civil, economic) on questions which contain information carried to the state secret. For all data of this category single criteria are established: privacy degree; effective period of the decision on reference of information to the state secret; subjects of regime and confidential activities which state experts make decisions on reference of information to the state secret.
Follows from given that the relations on protection of the data containing in administrative cases are similar to the relations on protection of the data containing in criminal cases.
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