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RESOLUTION OF THE PLENUM OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of March 13, 2017 No. 5

About the legal conclusion about the procedure of representative office of public authorities and local government bodies in courts entered by the Law of Ukraine of June 2, 2016 No. 1401-VIII "About introduction of amendments to the Constitution of Ukraine (concerning justice)"

Having heard the report of the vice-chairman, the secretary Plenum of the Supreme administrative court of Ukraine Smokovich M. I. about the legal conclusion about the procedure of representative office of public authorities and local government bodies in courts entered by the Law of Ukraine of June 2, 2016 No. 1401-VIII "About introduction of amendments to the Constitution of Ukraine (concerning justice)", 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 legal conclusion about the procedure of representative office of public authorities and local government bodies in courts entered by the Law of Ukraine of June 2, 2016 No. 1401-VIII "About introduction of amendments to the Constitution of Ukraine (concerning justice)" (is attached), to inform judges of administrative courts.

Chairman

A. N. Nechitaylo

Secretary Plenuma

M. I. Smokovich

The legal conclusion about the procedure for representative office of public authorities and local government bodies in courts entered by the Law of Ukraine of June 2, 2016 No. 1401VIII "About introduction of amendments to the Constitution of Ukraine (concerning justice)"

The law of Ukraine of June 2, 2016 No. 1401-VIII "About introduction of amendments to the Constitution of Ukraine (concerning justice)" (further - the Law No. 1401) the Constitution of Ukraine of June 28, 1996 is added, in particular, with Articles 131-1 - 131-2 and the subitem 11 of Item 16-1 of the Section XV "Transitional provisions".

According to Item 3 parts one of article 131-1 of the Constitution of Ukraine the prosecutor's office performs representation of interests of the state in court in exceptional cases and according to the procedure which are determined by the law.

According to part four of article 131-2 of the Constitution of Ukraine only the lawyer performs representation of other person in court, and also protection against criminal charge.

According to the subitem 11 of Item 16-1 - the Section XV "Transitional provisions" of the Constitution of Ukraine representation according to Item 3 parts one of Article 131-1 - and article 131-2 of this Constitution only prosecutors or lawyers in the Supreme Court and courts of cassation instance are performed since January 1, 2017; in Appeal Courts - since January 1, 2018; in Trial Courts - since January 1, 2019 (paragraph one); the representative office of public authorities and local government bodies in courts only is performed by prosecutors or lawyers about January 1, 2020 (paragraph two).

The provision of paragraph one of the subitem 11 of Item 16-1 - does not contain specifying on circle of persons of law who will be provided only by the prosecutor or the lawyer. It follows from this that this provision concerns all persons of law - principals.

But the provision of paragraph two of the subitem 11 of Item 16-1 concerns especially separate category of principals - public authorities and local government bodies.

Follows from the given legal regulation that the provision of paragraph one of the subitem 11 of Item 16-1 is general regulation, and provision of paragraph two of the subitem 11 of Item 16-1 - special regulation. Despite the rule about priority of special regulation over general regulation, the provision of paragraph one of the subitem 11 of Item 16-1 should be applied to all principals, except public authorities and local government bodies.

At the same time it is necessary to take into account the legal line item of the Constitutional Court of Ukraine concerning representation the prosecutor of interests of the state in court stated on the basis of interpretation of Item 2 of article 121 of the Constitution of Ukraine in the edition approved by the Law of Ukraine of June 28, 1996 No. 254/96-BP "About adoption of the Constitution of Ukraine and its introduction in action". So, this Court noted that "interests differ from interests of other participants of the public relations... Interests of the state can match completely, partially or not to match absolutely with interests of state bodies, state companies and organizations and with interests of economic societies from shares of state-owned property in authorized fund. However the state can see the interests not only in their activities, but also in activities of private enterprises, societies" (Item paragraph two 3, the paragraph third item 4 of motivation part of the Decision of April 8, 1999 No. 3-rp/99).

According to Item 2 of article 121 of the Constitution of Ukraine in the edition approved by the Law of Ukraine of June 28, 1996 No. 254/96-BP "About adoption of the Constitution of Ukraine and its introduction in action" the representation of interests of the citizen or the state in court in the cases determined by the law is assigned to prosecutor's office of Ukraine.

On the content this provision is identical to Item provision 3 parts one of article 131-1 of the Constitution of Ukraine in edition of the Law No. 1401.

Therefore the mentioned legal line item of the Constitutional Court of Ukraine can be applied also to the legal regulation entered by the Law No. 1401.

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