Diorditsa I.V.
candidate of law, head of Institute of administrative raform and criminal justice
According to p. 1 of art. 9 of the Code of administrative court proceeding of Ukraine (hereinafter – CACPU) the court during making decisions in a case follows principle of legality, in accordance to which bodies of State power, bodies of local governing, their officials and employees must act only on the ground, within their authorities and in a way provided by the Constitution and laws of Ukraine [1].
Research actuality consists in the fact that in cases about appeals against decisions, acting or non-acting of subjects of power authorities administrative courts verify, whether such as acts are made reasonably, honestly, observing the principle of equality of all before the law, preventing the injustice discrimination; proportionally, in particular observing necessary balance between any ill effects for rights, liberty and individual interests and targets, for achievement of which this decision or action is made; opportunely, that means during reasonable term, etc. According to art. 8 of CACPU refusal in consideration and decision of administrative case because of deficiency, vagueness, irreconcilability or absence of legislation that regulates litigious relations, is forbidden. In case of absence of law, that regulates legal relationships, court must apply a law which regulates similar legal relationships (analogy of law), and in absence of such a law court follows constitutional principles and general principles of right (analogy of right).
Application of principle of legality in realization of administrative legal proceeding grounds, in particular, on this.
All normative law acts must correspond by their structure to the Constitution and laws of Ukraine. Laws, in their turn, must correspond to the Constitution and coordinate among themselves. According to statements of art. 9 of CACPU a court in making decision in any case follows principle of legality, in accordance to which bodies of State power, bodies of local governing, their officials and employees must act only on the ground, within their authorities and in a way provided by the Constitution and laws of Ukraine. The court solves a case on the ground of the Constitution and laws of Ukraine. The court solves a case on the ground of the Constitution and laws of Ukraine, and also on the ground of international agreements, that the Verkhovna Rada of Ukraine gave consent to their obligation. The court applies other normative law acts, accepted by a corresponding body on the ground, within their authorities and in a way provided by the Constitution and laws of Ukraine. In case of non-conformity of a normative legal act to the Constitution of Ukraine, a law of Ukraine, an international agreement, that the Verkhovna Rada of Ukraine gave consent to its obligation, or any other legal act the court applies a legal act that has higher legal force. In case that if during consideration of case the court has any doubt about correspondence of law or other legal act to the Constitution of Ukraine, decision of question about constitutional validity of which comes within the jurisdiction of the Constitutional Court of Ukraine, the court addresses to the Supreme Court of Ukraine for decision of question concerning submission of application about constitutional validity of law or other legal act to the Constitutional Court of Ukraine. If an international agreement, that the Verkhovna Rada of Ukraine gave consent to its obligation, establishes rules that differ from those established by law, the rules of an international agreement are used.
The Constitution guarantees to everyone the right to go to the court to protect their constitutional rights and liberties. The Constitution has the highest legal force and its norms are the norms of direct action. This fact obliges courts during consideration of specific cases to follow the norms of the Constitution of Ukraine first of all.
According to the regulation of the Plenum of the Supreme Court of Ukraine dated the 1st of November 1996 No.9 “On Appliance of Constitution of Ukraine at Administrating of Law” the court uses the Constitution immediately in case: 1) when according to the contents of the norm of the Constitution there is no necessity of additional regulation of its statements by law; 2) when the law that was effective before the enactment of the Constitution or accepted after that, contradicts to it; 3) when jural relationships considered by court, are not regulated by law of Ukraine, and a normative legal act, accepted by the Verkhovna Rada of Ukraine or by the Council of Ministers of Autonomous Republic of Crimea, contradict to the Constitution of Ukraine; 4) when President’s decrees which because of their normative legal nature may be used by laws in consideration of specific cases, contradict to the Constitution of Ukraine [2].
If the contents of a constitutional norm show that its statements must be additionally regulated by law, an administrative court during consideration of a case is obliged to use the law, that is based of the Constitution of Ukraine and doesn’t contradict it.
Thus, the principle of legality in administrative law processing is determined by fact that court in its activity during consideration of cases must apply correctly norms of substantive law for specific jural relationships, and by fact, that administrating of law is impossible without observance of norms of administrative law proceeding. All court’s activity is under present legislation on exercise of administrative law proceeding and is effectuated in procedural order determined by it, and decision in case taken by court must be legal and reasoned.
References
1. Кодекс адміністративного судочинства України [Електронний ресурс] – Режим доступу: http://zakon4.rada.gov.ua/laws/show/2747-15.
2. Про застосування Конституції України при здійсненні правосуддя [Електронний ресурс] / Постанова Пленуму Верховного Суду України від 01.11.1996р. № 9 – Режим доступу:http://zakon4.rada.gov.ua/laws/show/v0009700-96.