The Constitutional Court declared the provisions of Article 294.1, Article 383.6 of the Code of Administrative Procedure of Ukraine to be incompatible with the Constitution of Ukraine in that they make it impossible to appeal the court's decision to leave without satisfying the application submitted in accordance with Article 383 of the Code of Administrative Procedure of Ukraine.
On March 1, 2023, the Second Senate of the Constitutional Court of Ukraine delivered a Decision in the case upon the constitutional complaint of Viacheslav Pleskach (hereinafter referred to as “the Complainant”), who appealed to the Constitutional Court of Ukraine to examine the compliance of the provisions of Article 294.1, Article 383.6 of the Code of Administrative Procedure of Ukraine (hereinafter referred to as “the Code”) with the Constitution of Ukraine.
The Complainant, substantiating the statement regarding the unconstitutionality of the disputed provisions of the Code, noted that they did not establish the right to appeal the decision on refusal to grant the application submitted in accordance with Article 383 of the Civil Code, at the same time, the right to appeal the decision to grant such an application was established. According to the Complainant, such normative regulation is a manifestation of legislative discrimination and a violation of Article 24.1 and paragraphs 1 and 3 of Article 129.2 of the Constitution of Ukraine, since a decision delivered in favour of the state is not subject to appeal, and a decision delivered not in its favour may be challenged in the appeal procedure.
Delivering the Decision in this case, the Constitutional Court of Ukraine proceeded from the fact that the issues raised in the constitutional complaint refer to the right of a person to judicial protection in administrative proceedings and guarantees that ensure the effective implementation of this right.
Developing its previous legal positions regarding the right of a person to judicial protection, the Constitutional Court of Ukraine noted that the obligation of the state, represented by the body of legislative power, to introduce a legal mechanism for the implementation of a person's right to judicial protection, in particular in the area of judicial protection of a person's rights and freedoms in the sphere of relations under public law, stems from the principle of the rule of law and the requirement to establish and ensure the right a person for judicial protection, which is defined as a general right in Article 55.1 of the Constitution of Ukraine, and in Article 55.2 of the Constitution of Ukraine the guaranteed right to appeal to the court decisions, actions or inaction of public authorities, their officials and public servants is distinguished. Such a legal mechanism should ensure the effectiveness of a person's right to judicial protection, which is manifested in the introduction by law of procedural opportunities for the real protection and restoration of violated rights and freedoms of a person, especially in a situation where this violation is caused by the decisions, actions or inaction of public authorities, their officials and public servants.
While deliberating this case, the Constitutional Court of Ukraine paid special attention to the purpose of administrative proceedings in a state governed by the rule of law.
The Constitutional Court of Ukraine pointed out that "administrative justice is a key element of democratic governance, and its effectiveness is essential for any society based on the rule of law"; "in legal relations between a person - on the one hand, and the state (in the form of public authorities) and other public authorities - on the other, the person is always the weaker party. That is why administrative courts should operate in a state governed by the rule of law, the purpose of which is to protect the individual against the state."
The Constitutional Court of Ukraine, having analysed the provisions of Article 3.2 of the Constitution of Ukraine in a systematic conjunction with the provisions of Article 8.1, Article 55.1, Article 55.2, Article 125.5, paragraphs 1, 8 of Article 129.2 of the Constitution of Ukraine, concluded that "in order to ensure the effectiveness of the rule of law, the right of a person to judicial protection in administrative proceedings, guarantees of its implementation, the purpose of the activity of administrative courts, the legislator must introduce such a legal mechanism for the implementation of administrative proceedings, under which a person in a judicial process will not be in a worse procedural situation compared to by the state represented by public authorities, as well as by other public authorities, their officials and public servants, and will have a real procedural opportunity to protect and restore their violated rights, freedoms and interests, in particular, due to the availability of the necessary scope of the right to judicial protection."
The Constitutional Court of Ukraine also emphasised that judicial protection and restoration of individual’s rights, freedoms, and interests, which have been violated as a result of decisions, actions or inaction by public authorities, their officials and public servants, is impossible without ensuring the execution of a court decision delivered on the benefit of the person.
The Constitutional Court of Ukraine noted that "judicial control over the execution of a court decision is the very first element in the legal mechanism for ensuring the execution of a court decision, especially in the case when such a court decision is delivered in favour of a person in a legal dispute against public authorities, their officials and public servants."
Having analysed the disputed provisions of the Code, the Constitutional Court of Ukraine concluded that the legislator, having adopted the disputed provisions of the Code, which did not establish for the complainant the right to appeal through the appeals procedure the decision of the court to leave without satisfaction the application submitted in accordance with Article 383 of the Code, did not fulfill the main obligation imposed on it by the provisions of Article 3.2 of the Constitution of Ukraine, since it did not legally establish effective judicial control over the execution of a court decision, did not ensure the right of a person to judicial protection in administrative proceedings and guarantees of its implementation, such as the equality of all participants in the judicial process before by the law and the court, the right to appellate review of the case, the binding nature of the court decision, which are indispensable requirements of the rule of law as the basis of the constitutional system in Ukraine, expressed through the formula: "In Ukraine, the principle of the rule of law is recognised and effective " (Article 8.1 of the Constitution of Ukraine).
The Constitutional Court of Ukraine stated that the provisions of Article 294.1, Article 383.6 of the Code, in that they make it impossible to appeal the court decision on leaving without satisfaction the application submitted pursuant to Article 383 of the Code, do not correspond to Article 3.2, Article 8.1 , Article 55.1, Article 55.2, Article 125.5, paragraphs 1, 8, 9 of Article 129.2, Article 129¹ of the Constitution of Ukraine.
The Judge-Rapporteur in this case is Serhiy Holovaty.
