RESOLUTION OF THE PLENUM OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of November 1, 2013 No. 15

About practice of application by administrative courts of provisions of the Code of administrative legal proceedings of Ukraine during consideration of disputes on the legal relationship connected with the electoral process

Exact and steady observance of regulations of the Code of administrative legal proceedings of Ukraine by administrative courts  (further - KAS of Ukraine) by consideration of disputes on the legal relationship connected with the electoral process (further also - the selective dispute, the selective case), is the compulsory provision of their correct, fair and timely decision.

For the purpose of ensuring the correct and uniform application by courts of the administrative procedural legislation in case of permission of the selective disputes the Plenum of the Supreme administrative court of Ukraine decides:

1. Draw the attention of administrative courts that according to article 5 KAS of Ukraine administrative legal proceedings are performed according to the Constitution of Ukraine , of this Code and international treaties which consent to be bound is provided by the Verkhovna Rada of Ukraine.

It is at the same time necessary to consider that the laws of Ukraine of November 17, 2011 No. 4061-VI "About elections of People's Deputies of Ukraine" (further - the Law on elections of People's Deputies, the Law No. 4061-VI), of March 5, 1999 No. 474-XIV "About election of the president of Ukraine" (further - the Law on election of the president of Ukraine, the Law No. 474-XIV), of July 10, 2010 No. 2487-VI "About elections of deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, local councils and rural, settlement, city Chapters" (further - the Law on elections of deputies of the Verkhovna Rada of the ARC, local councils, rural, settlement, city Chapters, the Law No. 2487-VI) (further - the laws on elections) contain procedural rules including concerning making of legal proceedings by courts. These regulations are subject to application and are special on regulations of KAS of Ukraine, however only concerning the decision of the selective disputes which arose during elections.

In case of determination of priority of the regulations containing in KAS of Ukraine and other laws including the laws on elections, it is necessary to consider that the regulation accepted later has priority over the regulation accepted earlier. The exception is constituted by cases when the regulation accepted earlier determines the subjective right of participants of the electoral process (voters, observers, etc.) and action of this regulation is not stopped, and the regulation is effective.

According to provisions of article 17 of the Law of Ukraine "About execution of decisions and application of practice of the European Court of Human Rights" courts shall apply practice of the European Court of Human Rights as source of law and to consider provisions of part two of article 8 KAS of Ukraine concerning use of the principle of supremacy of law.

In case of determination of legitimacy of decisions, actions or divergence of subjects of powers of authority by consideration of the selective disputes courts shall consider that these subjects can also apply this principle in the activities.

Articles 172 - 179 KAS of Ukraine are established features of consideration of the selective disputes by administrative courts, regulations of the specified Articles are special in comparison with other regulations of KAS of Ukraine therefore courts shall consider that these regulations have priority over other regulations of KAS of Ukraine. Separate regulations of the specified Articles are blanket therefore it is necessary to apply provisions of other legal acts to the correct understanding of the provisions and separate procedural institutes determined by these regulations.

Consideration according to the procedure of the reduced production of administrative cases concerning the legal relationship connected with the electoral process (the p. 11 of Art. 183-2 of KAS of Ukraine) is not allowed. At the same time it is necessary to consider that in the presence of the bases, предусмотренныхчастью the fourth article 122 KAS of Ukraine, such case can be considered according to the procedure of written production, but on the features established Articles 172- 179by KAC of Ukraine.

2. 6 parts two of article 17 KAS of Ukraine are determined by Item that jurisdiction of administrative courts extends to public disputes on the legal relationship connected with the electoral process.

It is necessary to consider that provisions of this regulation determine the main components of the selective dispute on which the dispute shall arise during the electoral process, and legal relationship in which there was this dispute shall be connected with the electoral process.

It is necessary to understand implementation by subjects of the electoral process of the selective procedures for preparation and carrying out the corresponding elections to terms as process, stipulated by the legislation which begin in legislatively certain time and come to an end with official promulgation of election results (election of the president of Ukraine) or in legislatively fixed term after this promulgation (Art. 11 of the Law No. 4061-VI, Art. 11 of the Law No. 474-XIV, Art. 11 of the Law No. 2487-VI).

Coherence of legal relationship with the electoral process is in that these legal relationship arose within the electoral process and concerned preparation and elections.

Courts shall consider that according to Item 6 parts two of article 17 KAS of Ukraine jurisdiction of administrative courts extends only to disputes on the legal relationship which arose within the electoral process and concerned preparation and elections and which are considered with the features established Articles 172- 179by KAC of Ukraine. The disputes which arose out of the electoral process or do not concern the electoral process (carrying out and preparation of elections), KAS of Ukraine which are not relating to the selective disputes in understanding, and therefore determination of judicial jurisdiction of such disputes and their consideration are performed in general procedure.

Besides, according to the specified regulation jurisdiction of administrative courts extends to all disputes on the legal relationship which arose within the electoral process and concerning preparation and elections irrespective of whether the subject of powers of authority is the party in this dispute (item 1 p.1 of Art. 3 of KAS of Ukraine) as in the selective disputes such requirement is not obligatory. The selective dispute can arise between subjects (participants) of the electoral process who are not subjects of powers of authority in understanding of KAS of Ukraine (item 7 p.1 of Art. 3 of KAS of Ukraine).

That is the main condition for determination of jurisdiction of administrative courts on the selective disputes is the subject of these disputes.

Therefore cases on actions for declaration on factual determination of bribery of voters, the provision fact during the electoral process to voters, institutions, organizations, the organizations or members of the electoral commissions of money or gratuitously or on favorable terms goods, works, services, securities, etc., the facts of intentional illegal elimination from the room for vote of official observers, other facts which establishment is provided by the laws on elections also belong to jurisdiction of administrative courts. Requirements about establishment of such facts can be filed a lawsuit in one action for declaration with the requirement about recognition of actions by illegal. About establishment of such facts surely it is specified in substantive provisions of the judgment.

2.1. The batch (block), the candidate which are subjects of the electoral process have the right to address to the mass media which promulgated information which batch or the candidate is considered doubtful with the requirement to publish their answer about confutation of this information (the p. 12 of Art. 74 of the Law No. 4061-VI, the p. 5 of Art. 64 of the Law No. 474-XIV, the p. 6 of Art. 53 of the Law No. 2487-VI).

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