Challenging a Regulatory Act of the Highest Authority: The Door is in Place but there is no Handle

Svitlana M. Romanova, Kseniia V. Pogruzhalska

The right to challenge the results of regulatory activity of all state authorities is proclaimed by certain provisions of the Constitution of Ukraine. In particular, Article 55 foresees that each individual is guaranteed the right to challenge legal acts or regulations, actions or omission by executive bodies, institutions of local self-governance and officials.

The procedure for such is laid down in the Code of Administrative Procedure of Ukraine of 6 July 2005 (the Code) which was significantly amended by the On Amending Certain Legislative Acts of Ukraine in Relation to Prevention of Abuse of the Right to Appeal Act of Ukraine of 13 May 2010, No.2181-VI (the Act).

As indicated in the explanatory note to the Act, its goal lies in preventing misuse of the right to appeal in cases where acts issued by the High Council of Justice are a matter of contention.

Notwithstanding the above, the Act amends several articles of the Code changing the procedure for contesting not only acts and regulations issued by the High Council of Justice but legal acts of the Verkhovna Rada (Parliament) of Ukraine, the President and the High Qualification Commission likewise.

Therefore, in the course of amending the Code, the Act deals with the judicial review of administrative, and executive acts and regulations of the named public institutions.

Previously, such reviews were conducted under Articles 18, 171 of the Code, whereby all contested acts and regulations were examined by local administrative courts within a reasonable time (but not later than 1 month after proceedings started). Under exceptional circumstances and with regard to the peculiarities of each case this term could be prolonged by a court decision.

The Code also provided claimants with an option to appeal the decision of the local court either at the appellate or cassation instances.

It could also be reviewed by the Supreme Court of Ukraine on the grounds provided by the Code for such review.

Since the Act came into legal force the situation has changed dramatically. Now to challenge any legal acts issued by bodies of executive power, the Verkhovna Rada of the Autonomous Republic of Crimea, bodies of local self-government and other public authorities, a claimant must apply to the local administrative court.

On the other hand, proceedings concerning legal acts or regulations, actions or inactivity on the part of the Verkhovna Rada of Ukraine, the President, the High Council of Justice or the High Qualification Commission of Ukraine fall under the exclusive jurisdiction of the Supreme Administrative Court of Ukraine (the SACU) according to Article 18 of the Code as amended.

Currently, according to the amendments introduced by the Act, Article 171 covers the procedure for contesting legal acts of executive power bodies, the Verkhovna Rada of the Autonomous Republic of Crimea, bodies of local self-government and other public authorities.

At the same time, the Code was supplemented with Article 171-1 which specifically refers to the peculiarities of proceedings regarding the (1) legality of resolutions of the Verkhovna Rada, orders and decrees of the President of Ukraine (except for the constitutional legality, which is within the remit of the Constitutional Court of Ukraine);

(2) acts of the High Council of Justice; (3) actions or inactivity by the Verkhovna Rada of Ukraine, the President of Ukraine, the High Concil of Justice; (4) decisions, actions or inactivity of the High Qualification Commission of Judges of Ukraine.

Regarding the procedure for contesting all the above, in general it was made similar to that foreseen in Article 171 of the Code, though there are several differences.

Specific Chamber

First of all, cases shall be heard by the members of a separate distinct chamber created within the SACU. It remains unclear as to whether such a “separate chamber” and its composition, i.e. judges serving in it, fulfill the requirements of the proclaimed fundamental “right to a court pre-established by the law”.

A similar question was raised by the European Commission for Democracy through Law (Venice Commission) which together with the Directorate of Cooperation within the Directorate General of Human Rights and Legal Affairs of the Council of Europe in their Joint opinion adopted by the Venice Commission at its 84th Plenary Session (15-16 October 2010) indicated that “The composition of this chamber […] should be set out in an objective way in the Act. Otherwise, the risks of endangering the independence and impartiality of the judiciary increase as political interference in the composition of the court might occur”.

After the adoption of the Act the following “separate chamber” was created — 5th chamber of the SACU which hears cases on challenging legal acts or regulations, actions or inactivity of the Verkhovna Rada of Ukraine, the President, the High Council of Justice or the High Qualification Commission of Judges of Ukraine. Along with conducting a “specific” function, the 5th chamber decides motions as to renewal of the term for filing of a cassation application regarding court decisions in cases with the Pension Fund’s Administration as a respondent.

In this vein the question arises: does such supplementary activity reflect the special status of the chamber?

The procedure of members’ appointment to the 5th chamber is regulated generally by Articles 31, 116 of the On Judiciary and the Status of Judges Act of 7 July 2010. However, periodic “movement” of primarily appointed judges to other courts around Ukraine may provoke several questions as to the transparency and objectivity of the procedure. This issue was addressed in detail by the Ukrainian Centre for Political and Legal Reforms in the Article Fifth Chamber as a Barometer of the Success of Judicial Reform.

No means to secure a lawsuit Another problem comes up regarding applicability of the measures of interim relief in the indicated category of claims. According to Article 117 of the Code, upon a motion by the claimant or on the grounds of a court’s initiative, measures of interim relief may be imposed in the event of apparent danger to the claimant’s rights. It is for the court to decide in each particular situation whether there is a need for securing a lawsuit; however, things are not so simple.

Clause 5 of Article 117 of the Code indicates that it is strictly forbidden to secure a lawsuit by termination of acts or regulations of the Verkhovna Rada of Ukraine, the President, the High Council of Justice or through prohibition on these authorities conducting particular actions. Broadly speaking, it seems that they are fully protected from security measures which are usually applied in court proceedings when there is definite “threat” to a claimant’s rights and freedoms.

Notwithstanding the above, the Constitutional Court of Ukraine (hereinafter — the CCU) found no breach of the Constitution in Clause 5 of Article 117. This position was reflected in Decision No.5-rp/2011 of 16 June 2011 (hereinafter — Decision No.-rp/2011): “[…] the application of security measures through the suspension of acts or regulations of the Verkhovna Rada of Ukraine and the President will influence an undetermined number of other individuals”, leading to unpredictability and instability in the activity of the highest public authorities.

This particular issue was also addressed by the Venice Commission and it was declared inter alia that “…if there is other litigation in being then that litigation may not be influenced or affected by a decision to declare an act or regulation of the Parliament, the President or the High Council of Justice unlawful. […] it is difficult to see how it can be justified”.

Therefore it stays unclear whether the impossibility of application of the interim relief measures regarding acts and regulations of the High Council of Justice breaches the Constitution. This question was left without consideration by the CCU as it found no legal reasoning for the illegality of these provisions in the substance of an application filed with the CCU.

It is important that not all members of the CCU agreed in their decision. A contrasting position as to provisions of Article 117 was expressed by judge V. D. Brinzev in a Separate Opinion to Decision No.5-rp/2011.

Material issues

When filing a suit challenging regulatory acts each claimant shall pay a particular court fee. According to Sub-clause 2 Clause 3 of the Closing and Transitional Provisions of the Code, the sum of the court fee to be paid shall be calculated on the basis of the particular provisions of the On Court Fee Act of 8 July 2011 which came into legal force on 1 November 2011. It’s worth mentioning that it seems unjustified that an individual should pay for a claim in a situation when his right has been breached by public authorities. The amount of fee to be paid differs regarding the existence of material demands.

Article 21 of the Code declares the right to file a claim challenging any acts and regulations of public authorities with material demands to reimburse any losses caused. Therefore, when filing a suit against the Verkhovna Rada of Ukraine, for instance, a claimant may request financial compensation. However, the position of the SACU is quite different: “Taking into account that Article 171-1 [of the Code] foresees peculiarities of the proceedings […] and is silent on to the right of the claimant to address the SACU […] with a request for reimbursement, the court [SACU] shall not consider such claimant’s request”, — Ruling of the SACU of 17 June 2010 (in Ukrainian).

No way to appeal

Last but not least, according to Clause 5 of Article 171-1 of the Code supplemented by the Act, the decision of the SACU “shall be final and shall not be reviewed in accordance with an appeal or cassation procedure”.

Though this does not conform with Article 129 of the Constitution, which recognizes the arrangement for legal challenging of court rulings in appellate and cassation instances as one of the main principles of legal proceedings, neither does it comply with Clause 4 of Article 20 of the Code either. The latter provides a possibility for a decision of the administrative court to be reviewed by the Supreme Court of Ukraine (hereinafter — the SCU) in exceptional circumstances.

Consequently the Act amending the Code in fact deprives parties of the possibility to contest in any way the ruling of the SACU concerning acts and regulations of the highest public authorities, including application to the SCU — on the grounds of unequal application of the same rule of substantive law in similar legal relations and likewise when an international judicial institution, the jurisdiction of which is recognized by Ukraine, has established a violation of international obligations by Ukraine while a case was being decided in court (Chapter 3 of the Code).

Conclusion

Taking all this into account, one can file a lawsuit challenging a breach of personal rights caused by acts, regulations, actions or inactivity of the highest authorities with a separate chamber of SACU with the court fee being previously paid, without any chances of securing a lawsuit and, de facto, without any possibility to request financial reimbursement and finally — as the last straw, with no further opportunity to challenge the SACU ruling anywhere.

In this regard the question arises — does one really have any chance of protecting personal rights and freedoms? The main issue is that although a person can apply, will he or she receive anything back if the lawsuit was changed into a dead end road. It sounds like another rhetorical question.