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Lawsuit against the General Prosecutors Office of Ukraine on obliging to consider complaints regarding omission of National Deputies of Parliament in the sphere of executing the laws of Ukraine on appeals and information: description of the case
Wednesday, 11 September 2013 07:35

logo.en On April 27, 2013 NGO Expert Advisory Centre "Legal Analytics" (EACLA, the Plaintiff) filed a lawsuit against the General Prosecutors Office of Ukraine (hereinafter - the Defendant, GPU) on obliging to consider complaints regarding omission of National Deputies of Parliament (MPs) in the sphere of executing the laws of Ukraine on appeals and information.

Grounds of the claims:

The EACLA addressed appeals to newly elected MPs in order to obtain access to information of public interest and did not receive responses to appeals from MPs. This omission of the deputies was challenged to the GPU in order to eliminate violations of the laws on appeals and access to information and to make decision on compiling the protocols of administrative liability regarding the MPs under the Code of Ukraine on Administrative Offences. Upon appeal, the Plaintiff received a response from GPU, which stated that GPU does not carry the supervision after the Verkhovna Rada (Parliament) of Ukraine.

Inaction of GPU in the sphere of considering the complaints of the EACLA was challenged in the court.

According to the Laws of Ukraine "On Prosecutors", "On Information", "On appeals”, Code of Ukraine on Administrative Offences, Defendant is authorized and obliged to carry inspections regarding violations in the field of information and appeal legislation and, if there are sufficient grounds, to decide on compiling protocols on administrative violations.

Respondent's thesis that it has no authority to exercise supervision after the Verkhovna Rada of Ukraine and its officials is mistakenly taken to these relationships, as plaintiff in his complaints has not asked the GPU to exercise prosecutorial supervision after the Parliament, as the legislative authority of Ukraine, but after the MPs, who committed administrative offense by violating the appeal and information legislation.

According to the Laws of Ukraine "On National Deputies Ukraine" deputies are authorized to exercise the powers provided by the Constitution of Ukraine and laws of Ukraine, considering appeals of voters, citizens, institutions, organizations, governmental bodies, local authorities, associations in accordance with the requirements and procedures established by the Law of Ukraine "On appeals”.

No restrictions on bringing to administrative responsibility of MPs are envisaged by the Constitution of Ukraine, or the Law "On National Deputy of Ukraine". Thus, MPs, as well as any other person can be brought to administrative responsibility if it does not involve arrest or detention.

The EACLA asked the court:

To declare unlawful the omission of the General Prosecutors Office of Ukraine due to rejection to consider the complaints of the EACLA on inaction of MPs.

To oblige the General Prosecutors Office of Ukraine to consider the complaints the Plaintiff.

Problems of "instance uncertainty" for the case considering:

The Plaintiff filed the lawsuit to Lviv Regional Administrative Court, as the omission of the subject of imperative authorities in relation with considering complaints was challenged in the present case (Part 2 of Art. 19 of the Code of Administrative Procedure).

Lviv Regional Administrative Court opened proceedings in the administrative case on 13.05.2013, but it sent the case for a trial to Pecherskiy District Court in Kyiv, since, according to the court, the case does not fall under the administrative jurisdiction but the jurisdiction of a local general court, as it is connected with the omission of a subjects of imperative authorities in a case of administrative liability (Section 2, Part 1, Art 18 of the Code of Administrative Procedure).

Pecherskiy District Court in Kyiv took this case for a trial. But it transferred the case to District Administrative Court of Kyiv, since, according to the court, the case does not fall under the local court jurisdiction, but administrative one. Position of the court is grounded on the following: there is no evidence in the case on existing administrative proceeding, since it was not opened at all and the plaintiff's complaints were not considered by the General Prosecutors Office either. So it is impossible to speak about failure of defendant to act in the case of administrative violation (which was not even opened), thus the rule, applied by Lviv Regional Administrative Court in the present case cannot be applied and the case was wrongfully transferred to a local general court.

So for the period of five months this case is being transferred from one court to another, but it has not been considered by any of the courts on the merits of the case.