The latest edition of the Code of Administrative Proceedings of Ukraine introduced a number of novelties that drastically changed the administrative proceedings.
Since December 15, 2017, the Supreme Court, and not the Supreme Administrative Court of Ukraine, is a cassation court for administrative cases, which includes the Administrative Court of Cassation. Introduction of an institution of exemplary administrative cases is also an important novelty. Thus, if one or several administrative courts handle model administrative cases, the number of which determines the expediency of delivering an exemplary judgment, a court which considers one or more such cases may apply to the Supreme Court for consideration of one of them by the Supreme Court as a court of first instance. Position of the Supreme Court in an exemplary case must be taken into account by courts which consider similar model cases.
Currently, the Supreme Court has delivered five judgments in exemplary cases. Given their importance for the formation of legal practice, we can say that they constitute the TOP-5 judgments of the Supreme Court for administrative cases.
- On March 30 of this year, the Supreme Court, having considered case No. 812/292/18, answered the question about charging penalties and fines to taxpayers located in the ATO (anti-terrorist operation) zone. Court pointed out that a person would be released from responsibility for late payment of social security tax from April 14, 2014 until the end of anti-terrorist operation, provided that such a person is registered with revenue and charges agency located on the territory of a settlement where such an operation was conducted.
ІІ. Judgment of February 15, 2018 in case No. 820/6514/17 contained position of the Supreme Court that a change in financial support of police, which by its components is identical to that of former police officers, but larger by size, is unconditional basis for recalculation of pensions of former police officers. Grounds for such a recalculation are certificate of financial support taking into account financial support of policemen. At the same time, the Pension Fund bodies cannot refer to the lack of budget funds as a reason for failure to perform their obligations.
III. On March 26, 2018, the Supreme Court considered case No. 806/3265/17 concerning obligations of UDMD Department to issue and grant a passport in the form of a passport book. Plaintiff motivated it by religious beliefs. Position of the Supreme Court in this judgment consisted in the fact that disagreement with the way, in which the state settled legal relations, in comparison with former legal regulation as well as reluctance to comply with requirements of legislative and government regulations when issuing a passport of a citizen of Ukraine, cannot serve as a solid argument for unlawfulness of actions taken by an authority, as it cannot be grounds for a person not to meet/not to comply with requirements of the law. Claims were dismissed.
- On April 4, 2018, the Supreme Court decided in exemplary case No. 822/524/18 to a transfer from disability pension to civil servant pension. Following the results of consideration of a case as an exemplary case, the Supreme Court came to conclusion that persons from among civil servants, who have been recognized as those with disabilities, have lost the right to receive a civil servant disability pension in the amounts specified in part 1 Article 37 of the Law of Ukraine “On Civil Service”, but have retained the right to receive disability pension pursuant to the Law of Ukraine “On Compulsory State Pension Insurance”.
- Judgment of March 12, 2018, in exemplary case No. 802/2196/17, contains position of the Supreme Court regarding the calculation of pension to pensioners of the Ministry of Internal Affairs. Court concluded that if any increment received by a police officer when he/she received a right to recalculate pension was no longer paid, such an increment should not be indicated in certificate of financial support and be taken into account for recalculation of pensions. As to the indication of bonuses in relevant certificates, monthly bonus is not to be taken into account in the amounts in which it was paid to a particular person. For calculation, average value for a relevant position in a relevant state authority actually paid for the month, in which the right to recalculate pension was accrued, must be taken.
It is interesting that the Supreme Court did not recognize cases concerning payment of taxes, imposition of administrative and economic sanctions in licensing and authorization activities as exemplary administrative cases. Three out of five exemplary judgments concern the recalculation of pensions, and only two claims out of five were granted. However, the specified exemplary judgments will undoubtedly have a significant impact on legal, first of all judicial, practice. Positions formed by the Supreme Court will help reduce the time limits and increase the efficiency of dealing with model cases.
Igor Bagnyuk, Associate at Evris, exclusively for Jurliga portal