Vitaly Gordeev,
Assistant to the Deputy Head of Appeal Court of Chernivtsi oblast
Candidate of Law
Associate Professor of Justice
Yuriy Fedkovych Chernivtsi
National University
UDC 342.9
Defectiveness of actual composition
in administrative proceedings of Ukraine
The article presents the defectiveness of the set of facts of administrative legal proceedings in Ukraine. The author proposed his own definition of defectiveness of the set of facts and mistake of justice. Indicated the fundamental types of defectiveness of the set of facts in administrative legal proceedings of Ukraine
Key words: defectiveness, defect, juridical fact, set of facts, administrative legal proceedings in Ukraine.
The main task of administrative proceeding is the protection of rights, freedoms and interests of individuals, rights and interests of legal persons in public law relations from abuses by state authorities, local authorities and their officers and employees, as well as other subjects exercising government power functions on the basis of legislation, including delegated powers, through fair proceedings of administrative cases in reasonable terms. Such a task of administrative proceedings is implemented using actual composition in general and legal evidences in particular.
In practice, there are cases where the consideration of the administrative case arise defective legal and factual situations, related to the establishment of the defectiveness of actual composition, what in turn interfere the performance of administrative justice and quality operational proceedings.
Relevance, timeliness and appropriateness of the research in this area are driven by the need to avoid defective legal and factual situations and the lack of scientific studies of actual composition defects in the administrative proceedings.
Certain aspects of defects in the actual composition of the administrative proceedings have been studied in scientific studies of B.V. Averyanov, V.M. Bevzenko, I.P. Holosnichenko, V.B. Isakov, T.O. Kolomoets, V.K. Kolpakov, O.V. Kuzmenko, M.O. Rozhkova, O.P. Ryabchenko, A.O. Selivanov, G.M. Chuvakova, V.V. Yarkov other.
The aim of this article is to study the defects of actual composition in the administrative proceedings. To achieve this goal, the task to clarify the concept of defectiveness of actual composition, to form a list of the main types of defective structural elements of the actual composition in the administrative proceedings has been set.
The actual composition in the administrative proceedings is an aggregate of legal facts and other elements of the actual composition necessary and sufficient for the occurrence of statutory legal consequences.
Legal facts in administrative proceedings means a concrete life circumstances in the form of actions or events, with the law associated legal consequences, ie the origin, modification or termination of legal relations, the acquisition of certain rights and responsibilities. [1]
Legal facts appear as a connecting link between the rule of law and subjective rights (duties) of a particular subject. The rule of law can be applied, and the person may act as the subject of law only when during the public law relationship some facts occur, recognized by this legal norm [2, 27]. Sometimes, however, the connection of the legal fact and the rule of law is defective, which can appear in defect of the norm itself, its absence, legal fact [3, 330] or actual composition.
Scholars have identified two criteria for the definition of this concept, namely: legal and social. Under the legal criterion of legal facts defects, as a rule understand the discrepancy of the legal fact features to the appropriate model defined in the hypothesis of legal rules. However, any social fact has much more features comparing to its regulatory model. Therefore, it is necessary to distinguish permissible originality of legal fact from substantial, legally significant violation, that’s for the social criteria is required. There is a position according to which scholars interpret the social criterion for determining the defectiveness of the legal facts as the presence in the legal fact of signs that indicate significant changes in the content thereof. For example, an agreement which is contrary to the interests of State and society may be invalidated by the State tax service and should be recognized as defective, because of its social content, even if it contains all necessary legal details prescribed by the law [4, 162-177].
M.O. Rozhkova in her study draws attention to the procedural defects of legal facts. She points out that the rules of procedural law establishes the right model of actions or omissions (which take place in real) and provide relevant procedural consequences for them. In this case, the rule of law establishes certain requirements for the legal action model (or omission), compliance with which is necessary for the occurrence of certain procedural consequences. The requirement of the certain features presence (properties, qualities, characteristics) contained in the hypothesis of the procedural law and may be presented for legal action models (including its subject and whether the object). Thus, for the appearance of consequences prescribed by the procedural law the procedural action (or omission) should not only really take place, but also correspond the requirements defined by procedural laws concerning the legal model of action (or omission). Certain features, qualities, characteristics or their combination, that are related to actions actually been committed, its subject or object, comprise the procedural facts as elements. Elements of the legal fact are, only those features, conditions, features, that recognized by the law (concerning the model of such fact). Indeed, in the rule of law provides not only the legal model, but also identifies some requirements for its occurrence, established mandatory presence of certain features, qualities, properties, characteristics, and so on. Where the requirements of a particular norm and (or) the presence of certain features, characteristics or qualities, the procedural action causes the relevant procedural consequences. Based on the mentioned, the procedural fact is not only real actor of the court proceedings, but action should correspond to the procedural law regulation requirements, conditions, characteristics and for this reason are subject to this regulation. The absence of any element of procedural fact leads to other procedural consequences than those for which this action (omission) was performed and entitled defect legal fact or actual composition. Under defective legal fact should be understood any not forbidden discrepancies of features, properties, characteristics of the legal fact or actual composition with the requirements of the law [5].
We believe that the defectiveness of actual composition in administrative proceedings is a state of legal fact or other element of the actual composition, impeding the implementation of the goals of administrative justice, quality and reasonable term proceedings.
When submitting the claim to the administrative court for the formation of the full actual composition it is necessary to include the following elements: respect for the form and content of the statement of claim, the requirements of the jurisdiction and jurisdiction of filing a claim within the period prescribed by law, and by a person who has administrative procedural legal capacity, etc. In the case of establishing the absence of any of the above elements the defective actual composition is present.
Let’s consider the main types of structural elements of the defects of the actual composition in Administrative Procedure of Ukraine. They can be divided into the following separate groups.
1. Defectiveness associated with non-compliance with the form and content of the statement of claim.
The Code of Administrative Procedure of Ukraine establishes the requirements for the statement of claim. The statement of claim shall include: 1) the name of the administrative court to which the claim is filed; 2) the name (title) of a plaintiff, his/her address and the telephone number, e-mail address, if available; 3) the name (title) of the defendant, position and duty of officer or official, postal address and the telephone number e-mail address, if known; 4) the content of the claim under the fourth and fifth paragraphs of Article 105 of APC of Ukraine and the circumstances the plaintiff bases his claim, and in the case of filing a lawsuit against several respondents - the content of the claim against each of the defendants; 5) if necessary - request for exemption from court fees; for exemption from payment of legal aid and ensuring the provision of legal aid if the appropriate authority failed to ensure the legal aid to a person; a judicial expertise appointment; on the recovery of evidences; on the summoning of witnesses, etc.; 6) a list of documents and other materials attached [6, p.106].
Let me note, that in support of the facts that justify the claim, the plaintiff provide evidences, and if failing he/she indicates evidences that cannot provide, reasoning the inability of provision of such evidences.
The statement of claim shall be attached with copies and copies of all documents, according to the number of defendants and third parties, except filing an administrative claim subject to government entity. An authority when filing an administrative claim shall attach to the claim the proof of sending by registered mail with return receipt to the defendant and the third parties concerning the claim and copies attached. The statement of claim shall be also attached with the receipt of court fee payment, if needed.
The statement of claim shall be signed by the plaintiff or his representative together with the date of its signing.
If the claim is submitted by a representative, it shall indicate the name of a representative, his/her address, and the telephone number, e-mail address, if any. Along with a claim, the power of attorney or other document confirming the representative's authority shall be submitted.
Compliance with these requirements is essential for the formation of the actual composition required for the administrative case consideration.
If a statement of claim was filed without complying with the requirements prescribed by Article 106 of APC of Ukraine (the form and content of the statement of claim) it is the defective legal and factual legal situation. The judge in this case, decides to suspend the claim indicating the deficiencies of the claim, the way to eliminate them and stipulates the sufficient period to eliminate the deficiencies. For example, such deficiencies may include: the lack of document confirming payment of court fee, or portion of full amount payment, absence of contact information of plaintiff or defendant; nonalignment of the claim copies and accompanying documents to the respondent (government entity) and others.
Let’s mention, that in practice there are some cases when the plaintiff sues the claim written by hand. The question is: can a judge suspend a claim on the grounds of inability to read and understand the content? On my opinion, such a claim on the following reasons may be suspended, because of the impossibility of unambiguous understanding of the claim content limits the defendant's rights to submit an objection to the claim, necessary evidences and so on.
According to para.1 s.3 of Article 108 of APC of Ukraine a claim returns back to the plaintiff if he/she has failed to eliminate the deficiencies of the claim, which were suspended.
If the proceeding in the administrative case was opened by a claim that does not meet the requirements of Article 106 of the APC of Ukraine, and the plaintiff did not remove these deficiencies within the period established by the court, the court in accordance with paragraph7, s.1 of Article 155 APC of Ukraine leaves the claim without consideration.
2. Defectiveness associated with filing a claim by a person who does not have administrative procedural capacity.
Considering that the ability to personally exercise administrative procedural rights and obligations, including entrusting case management to a representative (administrative procedural capacity) belongs to individuals who have reached the age of majority and was not recognized by the court as incapable, as well as individuals under this age in disputes over public relations in which they are in accordance with the law may participate independently.
The ability to personally exercise own administrative procedural rights and obligations, including entrusting case management to a representative (administrative procedural capacity), belongs to the public authorities, other state authorities, the authorities of the Autonomous Republic of Crimea, local governments, their officials and officers, enterprises, institutions, organizations (legal entities).
If a judge before the opening of the proceedings had determined that the claim filed by a person who does not have administrative procedural capacity, this claim in accordance with paragraph 3, section 3, of Article 108 of the APC of Ukraine has to be returned to the plaintiff.
If after commencement of the proceedings was determined that the claim has been filed by a person who does not have administrative procedural capacity, the court in accordance with paragraph 5, s. 1, Article 155 of the APC of Ukraine leaves the claim without consideration.
3. Defectiveness associated with filing a claim with the omission of the statutory period of appeal to the administrative court, while the court found no grounds for declaring the causes of missed deadline for appeal to the administrative court as reasonable.
An administrative claim may be filed within the time frameworks of appeal to the administrative court established by the APC of Ukraine or other laws.
To appeal to the administrative court for protection of the rights, freedoms and interests of an individual, the six months term is established which, if not otherwise stated, shall be calculated from the date when the person knew or should have known about the violation of his/her rights, freedoms and legitimate interests.
To appeal to the administrative court for the subject of state authority, the six months term is established, which, unless otherwise is noted, shall be calculated from the date of the grounds, giving the subject of state authority the right to bring claims provided for by the law. To appeal to the administrative court the subject of state authority, in cases stipulated by law, in response of state supervision (control), if they can be applied only by judicial decision, stipulates 15 days term, which shall be calculated from the day when the subject of state authority found sufficient grounds for appeal to the administrative court. The APC of Ukraine and other laws may also establish other terms for State entity to refer the administrative court.
In order to protect rights, freedoms and interests of an individual the APC of Ukraine and other laws may establish other terms to refer to the administrative court, which, unless otherwise is noted, shall be calculated from the date on which the person knew or should have known about the violation of their rights, freedoms and legitimate interests. To apply the court concerning public service of citizens, its passage, dismissal from public service is established within one month.
If the law provides for the possibility of pre-trial procedure for settling the dispute and the plaintiff took advantage of this procedure, then to appeal to the administrative Court a term for one month is established, which shall be calculated from the date on which the applicant learned about the decision of government entity for consideration of his/her appeal against decisions, actions or omissions of the subject of State powers.
To submit to the administrative court of appeal concerning appealing of the decision of the subject of State authority under which it may be the claim for the recovery of funds, the term of 1 month is established.
According to Article 100 of the APC of Ukraine the administrative claim, which was filed after the deadlines established by the law shall not be considered unless the court, on the basis of the claim and attached materials won’t find grounds for declaring the causes of missed deadline for appeal to the administrative court as reasonable and with further decree enacting.
The claim may be left without consideration as at the stage of deciding on the initiation of proceedings in the administrative case without a court hearing, as well as during the preparatory proceedings or court proceedings.
4. Defects associated with filing a claim to the court which has no jurisdiction for consideration of this case.
In order to avoid any defective legal and factual situation a list of jurisdiction rules should be followed according Art. 17 of the APC of Ukraine [7, 13-68].
So, first of all it should be considered, that the jurisdiction of administrative courts applies to the legal relations that arising in connection with the subject of state power of administrative functions, as well as the formation of a State entity by election or referendum.
Secondly, the jurisdiction of administrative courts extends to public disputes, including: 1) disputes of natural or legal persons with public authorities concerning the appeal of its decisions (normative legal acts or legal acts of individual action), actions or omissions; 2) disputes over employment of citizens to public service, its passage, dismissal from the public service; 3) disputes between public authorities concerning exercising their management competence, including delegated powers; 4) disputes arising from the conclusion, performance, termination, cancellation or invalidation of administrative contracts; 5) disputes on the request of the subject of State authority in cases established by the Constitution and laws of Ukraine; 6) disputes concerning legal relations within election or referendum processes.
Thirdly, the jurisdiction of administrative courts does not apply to public relations cases: 1) referred to the jurisdiction of the Constitutional Court of Ukraine; 2) belonging to decide in criminal proceedings; 3) the imposition of administrative penalties; 4) on the relations, according to law, statute (regulation) of citizens referred to its internal activities or exclusive jurisdiction.
In case if a judge discovers that claim shall not be considered in administrative procedures than according to p. 1, s. 1 Article 109 of the APC of Ukraine judge shall refuse in initiating proceedings in the administrative case.
If, after commencement of the proceedings it is determined that the case should not be considered by administrative procedures, according to p. 1, h. 1 Article 157 of the APC of Ukraine, the court shall terminate the proceeding.
5. Defectiveness associated with the lack of subject-matter jurisdiction of the court.
An administrative cases liability is understood as a legal institution that contain a combination of legal characteristics (features) of an administrative case upon which the law determined by the court that has the right and duty to investigate such an administrative cases and decide it on the merits. The compliance with the rules of jurisdiction promotes rapid, comprehensive and complete review of administrative case, considering its specific characteristics, principle of legality and equality of all members of administrative process before the law and the court, improves the educational value of justice. The determination of jurisdiction levels of various courts of the judicial system should be carried out according to the functions they perform, subjects of dispute to be considered, and location (place) covered by jurisdiction of particular court. That means that to determine jurisdiction means to establish the court which by the law is supposed to provide justice in consideration of particular cases as well as proceedings at first instance court and further stages, if there such a need arise. The jurisdiction of an administrative case is determined by the APC of Ukraine using three main criteria, which are designated as jurisdiction types of administrative cases, namely the subject (generic), territorial (spatial) and institutional (functional) [8, p.10].
The APC of Ukraine establishes provisions that stipulate the consequences of non-compliance with the rules of jurisdiction.
Thus, according to p. 6, s. 3, Article 108 of the APC of Ukraine the claim is to be returned to the plaintiff if the case is outside the jurisdiction frameworks of this administrative court.
According to the pp. 2 and 3, s. 1, Article22 of the APC of Ukraine, the administrative court passes the case to another administrative court if: the proceedings have been opened in the case subject to the jurisdiction of another court; after the commencement of the proceedings it was discovered that the case belongs to territorial jurisdiction of another court.
Moreover, the administrative proceeding for judicial review of decisions is also associated with the establishment of the legal facts and their defects.
If a judicial error of a lower jurisdiction court is established by a higher instance court, or the defective legal facts, it results to cancellation of a court decision.
It should be noted, that the miscarriage of justice in administrative proceedings is the defective legal fact or another element of the actual composition in the form of decision, acts or omissions of an administrative court, whose fallacy is stipulated in the order prescribed by the AOC of Ukraine.
A detailed study and synthesis of court miscarriages in administrative proceedings is a promising research direction, as it promotes the establishment of matters and conditions for cancellation and change of court decisions, improvement of judicial practice and protection of the rights, freedoms and interests of people, the rights and interests of legal persons in public and legal relations of abuse by State authorities, local self-government, their officials and employees, other entities exercising management duties on the basis of legislation, including delegated powers by a fair, impartial and in reasonable terms administrative cases consideration.
It is important to note, that in the legal practice of administrative courts there are such legal situations appear, where the defective legal fact is an enforcement order of administrative court, which does not comply with the requirements of the Law of Ukraine "On Enforcement Proceedings". In this case, the court may correct mistakes in its design or issue, or recognize the enforcement order as not enforceable.
In the administrative proceedings of Ukraine relating to the consideration of procedural matters of judgment enforcement, there are other defective legal and factual situations occur: 1) loss of the original enforcement order; 2) fail the terms for filing a writ of execution to execution; 3) disposal of one of the parties of enforcement proceedings; 4) cancellation of a court decision (declaring it invalid or null and void) and closing the proceedings, in case, leaving the claim without consideration or dismissal of an administrative claim or satisfaction of claims in a smaller amount.
Thus, the defectiveness of actual composition in administrative proceedings is a state of legal fact or other element of the actual composition, impeding the implementation of the goals of administrative justice, quality and reasonable terms of case proceeding.
The main types of defects in the structural elements of the actual composition of the Administrative Procedure of Ukraine are: failure to comply with the form and content of the statement of claim, execution order; the absence of the plaintiff's procedural administrative capacity; transmission of the statutory term treatment with an administrative court while the court found no grounds for declaring the reasons for missing the appeal term to the administrative court as reasonable; violation of the rules of jurisdiction and the jurisdiction of the case to the court, a miscarriage of justice.
Drawing up a list of basic types of structural elements of actual composition defects in administrative justice, helps to avoid legal and factual faulty resulting in improvement legal activities of the administrative process members and law enforcement of court.
The miscarriage of justice in administrative proceedings is the defective legal fact or another element of the actual composition in the form of decision, acts or omissions of an administrative court, whose fallacy is stipulated in the order prescribed by the AOC of Ukraine.
References:
- V.V. Gordeev: The nature of legal fact / V.V. Gordeev // State and Law: Scientific Papers. Legal Issue 51 - K .: Institute of State and Law. V.M. Koretsky NAS of Ukraine, 2011 - P.732-737. - access: http://dspace.nbuv.gov.ua/bitstream/handle/123456789/33984/117-Gordyeyev.pdf?sequence=1
- O.A. Krasavchykov Legal facts in the Soviet Civil right. - M .: Gos. edition of Legal. lit-ry, 1958 - 183 p.
- Y.V. Simutina Defectiveness of the legal facts in the law // State and Law. - 2011 - Vol.54 - P. 330-335 - access: http://archive.nbuv.gov.ua/portal/Soc_Gum/DiP/2011_54/01_053.pdf
- V.G. Balandina Legal facts in the tax law: Dis. Candidate.
- Legal. Sciences: 12.00.2007 "Administrative Law and Procedure, finance, information law" / Balandina Victoria Grygorievna. - Irpin, 2009 - 227 p.
- M.A. Rozhkova Legal facts and civil procedural law: agreements on the protection of the rights and procedural agreements / Rozhkov MA - M .: Statute, 2009 - 332 p. - access: {2}http://rozhkova.com/books_text/UFISOGLASH.html{/2}
- Code of Administrative Procedure of Ukraine // Supreme Council of Ukraine, 2005. - № 35 - c. 446.
- V.K. Kolpakov The jurisdiction of the Administrative Courts: Monograph: in 2 books / V.K. Kolpakov, V.V. Gordeev. -X .: Kharkiv Law. - Book 1 - 2011.- 352 p.
- Alexander Panchenko. Problematic issues of jurisdiction of administrative cases / Alexander Panchenko // Bulletin of the Supreme Administrative Court of Ukraine - 2008. - №4 - S.9-21.
- V.V. Gordeev Recent issues of determining the jurisdiction of the subject of administrative cases [electronic resource] / V.V{./0} Gordeev // Bulletin of the Supreme Council of Justice. - 2011. - № 7 - S. 25-41. - access:
- http://vru.gov.ua/Docs/visnik07_02.pdf