RESOLUTION OF PRESIDIUM OF THE SUPREME COURT OF UKRAINE, PRESIDIUM OF JUDICIAL COUNCIL OF UKRAINE

of April 3, 2009 No. 7

About condition of implementation of legal proceedings by administrative courts

Having considered and having discussed materials of studying of condition of the organization and implementation of legal proceedings in administrative courts (The supreme administrative court of Ukraine, the Lviv Appeal administrative court, the Lviv and Ivano-Frankivsk district administrative courts) for 2007 - the first half of the year 2008, the Presidium of the Supreme Court of Ukraine and presidium of Judicial council of Ukraine were ESTABLISHED:

Not isolated cases of violation of rules of cognizance by them and exit for limits of competence of administrative courts concerning the solution of administrative cases (Article 1, of 17, 18 Codes of administrative legal proceedings of Ukraine are characteristic of all administrative courts in which the legal proceedings implementation condition was studied (further - CASH DESKS of Ukraine). Numerous cases of consideration by these courts in fact of cases which do not belong to jurisdiction of administrative courts, in particular rather land disputes, disputes on the property right to other real estate units, privatizations of state-owned property are revealed.

Violations of terms of transfer and procedure for priority of transfer of actions for declaration, appeal and writs of appeal to judges-speakers, terms of opening of proceeedings, terms of consideration of administrative cases are typical for these courts (Article part three 107, of part one and the second Articles 189, of part one and the second Articles of 214 CASH DESKS of Ukraine). And in administrative courts cases of violation of terms of opening proceeedings are mass. The term of consideration of many cases considerably exceeds two months, and in the Supreme administrative court of Ukraine in some cases constitutes over two years.

In activities of the specified courts numerous cases of assumption of material mistakes in application of regulations of substantive and procedural law, the wrong and unequal application of the legislation, not accounting of court practice of the Supreme Court of Ukraine take place in case of the solution of the majority of categories of cases.

In the above-named administrative courts violations of the procedure of hearing of cases, procedure for creation and execution of procedural documents determined by the law are quite often allowed. Accounting and statistical work in these courts is conducted at the unsatisfactory level.

During the analysis of the organization and implementation of legal proceedings by the specified administrative courts the working group considered both the objective, and subjective reasons which influence work of these courts. In particular, such objective factors as the initial stage of formation of administrative courts, incompleteness of forming of their system, imperfection of the legislation, insufficient material and financial provision of their activities, and also one-time transfer to the Supreme administrative court of Ukraine of large number of administrative cases were considered.

At the same time studying of condition of the organization and implementation of legal proceedings by the Supreme administrative court of Ukraine certified the unseemly level of the organization of its activities therefore this court not fully provides justice implementation.

The supreme administrative court of Ukraine also allows numerous violations of regulations of CASH DESKS of Ukraine relatively about provision and acceptance in consideration of writs of appeal, than the rights of persons who participate in cases, on cassation appeal are violated. With respect thereto the Supreme Court of Ukraine cancels the corresponding judgments.

Besides deadlines of opening of cassation productions, stipulated in Clause 214 CASH DESKS of Ukraine are skirted, the measures, the quantities of remaining balance of unconsidered writs of appeal and cases directed to reduction are not taken.

So in the first half of the year 2008 the number of the cassation productions opened with violation of terms, the provided CASH DESKS of Ukraine, makes one thousand 3,6, or 48,6 of % of open cassation productions.

In 2007 there were unconsidered one thousand 22,2 (% 47,4) of writs of appeal and cases which were under consideration in the Supreme administrative court of Ukraine, in the first half of the year 2008 - 21,3 of one thousand claims and cases (% 70,0).

If in 2007 one thousand 28,2 (% 60,3) of writs of appeal which were under consideration in the Supreme administrative court of Ukraine, then in the first half of the year 2008 - 12,1 of one thousand claims (40%) were submitted judges. At the same time in the first half of the year 2008 9,1 of one thousand writs of appeal is considered that is 20,3% less, than in the corresponding period of 2007.

In many accounting and statistical cards not receipt date of the claim in the Supreme administrative court of Ukraine, and date of transfer to her judge is specified that leads to essential understating of terms of hearing of cases.

Violations by transfer of writs of appeal to judges take place. Cases when the decision on case referral to the judge-speaker was made after day of receipt of the writ of appeal in court for a long time are revealed. Questions of opening of cassation production, refusal in opening of cassation production, leaving of the writ of appeal without movement were not solved for a long time, in some cases this term constituted over one year of day of receipt of case in court.

In the majority of cases violations by judges-speakers of term of preparation of cases for cassation consideration and resolutions of determinations on the end of preparation and purpose of cases to cassation consideration take place (Article part one 215, Article 220-1 of CASH DESKS of Ukraine). In some cases it was performed till one year and more.

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