The Constitution of Ukraine, as well as the laws “On Citizens’ Appeals” and “On the Introduction of Amendments to Articles 235, 236, and Chapter 31-A of the Code of Civil Procedure of Ukraine,” have significantly increased the opportunities for judicial protection of citizens’ rights and freedoms from unlawful decisions, actions or omissions of action of national government agencies, local self-government agencies, legal entities, officials and administrators in the sphere of administrative activity.

In view of the fact that during the courts’ consideration of citizens appeals that have been filed against decisions, actions or omissions, a number of issues that require additional clarification have emerged, the Plenum of the Supreme Court of Ukraine resolves the following:

1. To draw the attention of the courts to the fact that according to Article 55 of the Constitution of Ukraine, the Law “On Citizens’ Appeals” and Chapter 31-A of the Code of Civil Procedure of Ukraine (hereinafter “CCP”), citizens may appeal to the court the decisions, actions or omissions in the area of administration committed by any national or local government agency as well as enterprise, establishment, association of citizens, other legal entity or their officials or administrators (hereinafter the “subject of appeal”), with the exception of acts whose determination of constitutionality belongs to the competence of the Constitutional Court of Ukraine or acts for which another procedure of judicial appeal has been stipulated. The latter should be understood as the procedure specifically established by corresponding laws.

In view of the legislation on criminal procedure and civil procedure as well as the legislation on administrative offenses that establishes a different procedure of judicial appeal, the decisions, actions or omissions of the officials of the organs of inquiry, preliminary investigation, of the court, procuracy office and the organs authorized to consider cases of administrative legal offenses may not be appealed to the court according to the procedure delineated in Chapter 31-A of the CCP.

2. The right of submission of an appeal to the court on the basis of Article 55 of the Constitution of Ukraine and Article 248(1) of the CCP shall only be given to physical persons who believe that their personal rights and freedoms have been infringed upon by the subject of appeal.

According to Article 26 of the Constitution of Ukraine, foreigners and non-citizens legally residing in Ukraine (immigrants, persons working in Ukraine, and those who have arrived on Ukrainian territory in compliance with the established procedure for a certain period of time, etc.) shall be entitled to the same right to file an appeal as Ukrainian citizens unless otherwise stipulated by the international treaties to which Ukraine is a party.

An appeal regarding the rights and freedoms of a citizen may be submitted by a representative of a civic organization, labor collective, or its authorized organ acting on the basis of the law or the founding documents.

3. According to part 1, Article 248(1) of the CCP and Article 5 of the Law “On the Social and Legal Protection of Military Servicemen and Their Family Members,” and complying with the rules of jurisdiction provided for by parts 2 and 3 of Article 123 of the CCP, military servicemen shall have the right to appeal to a military court (court-martial) the decisions, actions or omissions of military officials and military administrative bodies which infringed upon their rights or freedoms.

Based on the content of the aforementioned norms, the decisions, actions or omissions of officials who are not fulfilling direct military service duties but who, by virtue of the position they hold in the organs of military administration, are authorized to make decisions concerning the rights and freedoms of military servicemen, may also be appealed. Citizens discharged from military service shall be vested with the right to bring an appeal against the decisions, actions or omissions of military officials and organs of military administration that violated their rights and freedoms during their term of military service to the submunicipal (city) or to the military court according to their own discretion.

According to the general rules of part 2, Article 148 of the CCP, unlawful decisions, actions or omissions committed with regard to military servicemen by other subjects of appeal shall be appealed to the submunicipal (city) court of the subject of appeal’s location.

4. The government agencies whose decisions, actions or omissions may be appealed to the courts under Article 55 of the Constitution of Ukraine and Chapter 31-A of the CCP are the agencies created in compliance with the Constitution of Ukraine and other legal acts of the Verkhovna Rada, the President, the Cabinet of Ministers of Ukraine, the Verkhovna Rada and the Cabinet of Ministers of the Autonomous Republic of Crimea, which perform functions and exercise powers granted by the statein the area of administration.

The term ‘local self-government agencies’ should be understood as agencies established on the basis of the Constitution of Ukraine and the Law of Ukraine “On Local Self-Government in Ukraine” which are representative bodies of local self-government (village, settlement, city, rayon and oblast radas [councils]) as well as their executive bodies and bodies organized by the populace.

Of the decisions, acts or omissions made by officials and administrators of the organs of the judicial branch, only those decisions which fall into the area of administration may, according to Article 55 of the Constitution of Ukraine, be appealed in court.

5. The courts must pay due regard to the fact that, according to Article 248(2) of the CCP, the subject of a court appeal may be both collegiate and individual decisions, actions or omissions of the subjects of appeal, acts of both a normative and an individual nature in conjunction with which a citizen believes that:

– his rights and freedoms have been or are being violated;

– impediments have been created or are being created for the realization of his Constitutional rights or freedoms (or the measures taken to implement them were not sufficient);

– the responsibilities imposed upon a citizen were either not provided for by law or were provided for but without due consideration of the particular circumstances under which those responsibilities should be imposed (upon a citizen), or they were imposed by an individual or agency not authorized to do so.

– charges were brought against a citizen that are not envisaged by the law or he was either subjected to a financial penalty in the absence of circumstances specified by the law or was financially penalized by an official (or agency) not authorized to do so.

For example, the following may be appealed to the court: refusal to register an act of citizens status; refusal to issue a foreign passport for travel abroad or refusal to prolong the term of its validity, temporary delay of the passport or its confiscation; decision of the local executive branch agencies or the agencies of local self-government on introduction of taxes and fees which were not provided for by the law, as well as imposition of restrictions on exportation of goods beyond the borders of an administrative-territorial unit.

According to part 3, Article 16 of the law “On Citizens’ Appeals,” the courts rule on appeals filed against decisions in the area of administration of general meetings of collective agricultural enterprises, joint stock companies, civic organizations and associations, housing and construction cooperatives, and other legal entities established on the basis of the collective form of ownership.

6. Pursuant to paragraph 1 of the Transitional Provisions of the Constitution of Ukraine, the list of acts and actions against which appeals may be filed but which fall outside of the jurisdiction of the courts as stated in Article 248(3) of the CCP may only be applied to the extent that it does not contradict the Constitution. In particular, the rule in Article 248(3) of the CCP pursuant to which appeals against the acts and actions of citizens’ associations which, according to the law or charter (bylaws,) fall within the province of their internal organizational activity or their exclusive competence, does not contradict the Constitution. The issues that fall outside of the jurisdiction of the courts’ consideration are the following: appeals against decisions with regard to granting or denying membership in a political party, decisions and resolutions of party organs concerning the basic objectives of its activity, party programs, as well as resolutions of the bureau and other organs in relation to the imposition of party penalties.

7. It is necessary to take into account the fact that according to the law “On Citizens’ Appeals,” citizens’ appeals are subject to review by the appropriate national government agencies and local self-government agencies and their officials, leaders and officials of enterprises, establishments and organizations irrespective of their form of ownership or citizens associations of which the citizen is a member.

In the event that the court receives proposals (remarks) or applications (petitions), whose resolution lies within the authority of the abovementioned agencies, the judge, in accordance with paragraph 1 of Article 136 of the CCP, shall issue a ruling of denial regarding their consideration on the basis of part 3 of Article 7 of the abovementioned Law. Following the expiration of the term for appealing the ruling, the judge shall send the proposal to the appropriate agency or official or, if the proposal does not contain information for determining the appropriate agency, the claim shall be returned to the citizen.

8. According to Article 248(4) of the CCP a citizen may, at his own discretion, either appeal directly to the court or may appeal to the court following the submission of the appeal against the decision, action or omission of a subject of appeal to the higher-ranking members of an agency or to a higher-ranking official.

The provisions of Article 55 of the Constitution of Ukraine and the rule of part 1 of Article 16 of the Law “On Citizens’ Petitions” regulating the submission of appeals against the actions or decisions of the subject of appeal to the next higher-ranking agency or official does not deprive a citizen of the right of a direct appeal to the court.

9. In accordance with the requirements of part 7 of Article 248(6) of the CCP, in the event that the court establishes the existence of a legal dispute which is being considered as part of a lawsuit proceeding, an appeal shall be left without consideration which will consequently lead to the termination of proceedings in the case. If the presence of the aforementioned circumstances is established upon submission of an appeal, the judge shall not accept the appeal and shall provide the petitioner with an explanation regarding his right to sue on general grounds insofar as it is impossible to institute proceedings according to the procedure envisaged by Chapter 31-A of the CCP.

The courts should proceed from the fact that, according to the rules of Chapter 31-A of the CCP, the issues that are resolved concern restoration of the rights or freedoms of citizens which were established by the Constitution of Ukraine, laws and other normative legal acts and their violation by the subjects of appeal in the course of performing their administrative functions, and do not concern the defense of subjective rights that arise from civic, labor, family and other legal relations.

10. Appeals of decisions, actions or omissions of subjects of appeal shall be submitted to the courts in accordance with the [geographic] location of the latter. The form and content of the appeals must meet the general requirements of (Article 137 and 138 of the CCP) and shall be paid for with the state duty [fee] in the amount prescribed by law.

Taking into account the specific characteristics of the procedure for considering the appeals envisaged by Articles 248(1) - 248(4) of the CCP, they must in particular indicate whose and which concrete decisions, actions or omissions are being appealed

11. To draw the attention of the courts to the necessity of their thorough implementation of the duty stipulated in part 3 of Article 248(4) of the CCP of notifying the subject of appeal about the submission of the appeal no later than the day after its adoption (acceptance for review) insofar as submission of an appeal suspends implementation of the appealed act.

12. According to Article 248(5) of the CCP, an appeal may be submitted to the court within the two-month period calculated from the day that a citizen learned or should have learned of the violations of his rights or freedoms and within one month from the day of his receipt of a written answer of refusal to satisfy the appeal satisfaction by the agency or official of higher level in relation to the agency or official which made the decision, committed the actions, allowed an omission or, in the event of failing to provide a citizen with a written response to the appeal, after expiration of a month term following the appeal’s submission.

Failure to meet the deadline of the aforementioned term may not serve as grounds for refusal to consider an appeal insofar as the existence of a valid cause may facilitate the term’s renewal.

In view of the fact that the one and two months terms for submitting an appeal to the court have been established by legislation on civil legal proceedings (Article 248(5) of the CCP) they are procedural terms and are subject to the rules of Article 85 of the CCP. Therefore, an appeal which is submitted after the expiration of the corresponding term will not be considered unless the court finds grounds to reopen the matter in the applicant’s petition.

13. In accordance with Article 237 of the CCP, consideration of cases of citizen’s appeal of decisions, actions or omissions of subjects of appeal shall be conducted according to the general rules of civil procedure, including the exceptions and supplements envisaged by Chapter 31-A of the CCP. For these cases, therefore, the time periods for preparing cases for consideration by the court that are established in Article 146 of the CCP apply.

After the court agrees to hear the appeal and preparations for its consideration are made in accordance with Articles 124(1), part 2, page 237 and Article 248(6) of the CCP, it shall be considered by one judge within a ten-day term.

14. If, during consideration of the case, the validity of the arguments in an appeal is established, the court shall rule that the appealed decisions, actions or omissions are unlawful and shall identify the means by which the rights and liberties are to be restored. In so doing the court shall stipulate which provisions of the law were violated and what specific actions should be taken, for example:

a) in the event of an unfounded refusal to register a transportation vehicle - the court shall oblige an official of the state vehicle inspectorate to register the transportation vehicle in the applicant’s name;

b) in the event of unfounded refusal to register a public record- the court shall oblige an official of the RAHS (Department of Public Records) to perform the required registration;

c) in the event of establishment of the unlawfulness of a decision of either the local offices of a national executive branch agency or local self-government agencies pertaining to the introduction of taxes and fees which were not provided for by law - the court shall oblige the appropriate agency to liquidate the committed violations.

The subjects of appeal may only be obliged to fulfill the obligations imposed on them by either the law or by other regulatory legal acts.

If the court rules that the appeals arguments are unfounded and refuses to satisfy such an appeal, the court shall be obliged in its decision to indicate the reasons as well as the provisions of the law which prompted such a conclusion.

15. When resolving issues regarding the lawfulness of actions of subjects of appeal, the fact must be borne in mind that according to Article 57 of the Constitution of Ukraine, laws and other regulatory legal acts which define the rights and responsibilities of citizens about which the population was not informed according to the manner prescribed by law shall not be considered as being in effect.

16. To explain to the courts that according to the content of Articles 103 and 179 of the CCP, one of the means for the parties to voluntarily resolve a dispute pertaining to the law is an amicable agreement and, as a consequence of the latter, each of them acquires certain rights and assumes certain responsibilities. In view of the absence of a dispute pertaining to the law in cases regarding the complaints against unlawful decisions, actions or omissions of subjects of appeal the courts shall not have the right to approve amicable agreements in such cases.

17. Cases of appeals of unlawful decisions, acts or omissions of subjects of appeal which contemporaneously present demands for compensation of either material or moral damages inflicted by those decisions, actions or omissions (Article 56 of the Constitution of Ukraine, Article 25 of the Law “ On Citizens’ Appeals”) shall be considered according to the procedure for claim proceedings.

18. A court ruling which establishes the invalidity of either an individual or a normative and legal act or a separate part thereof which has already entered into legal force entails the invalidation of such act or its part from the moment of their adoption which must be indicated in the resolution section of such a decision. Contemporaneously with the above, the court must resolve the issue of obliging the subject of appeal to make public the court’s conclusion with respect to establishing the invalidity of the normative and legal act in the same manner as the act itself was made public.

19. In the process of satisfying the appeal the court, may according to Article 248(7) of the CCP, permit the decision’s immediate implementation, provided such possibility has been discussed in the process of decision’s resolution.

The court is obliged to send its decision to the subject of appeal and to the claimant no later than ten days after the decision acquires legal force (Article 248(9)) and, in the event of the decision’s immediate implementation, immediately following its ruling.

20. To bring to the attention of the courts the necessity of ensuring effective oversight over the implementation of court decisions in relation to satisfaction of appeals regarding unlawful decisions, actions, or omissions of subjects of appeal, and to bear in mind that the appropriate agency or official shall be obligated to notify both the court and the claimant about the implementation of the court’s decision no later than one month from the day of its receipt.