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Salus populi suprema lex . Marcus Tullius Cicero

Prosecutors do not control violations of laws by Members of Parliament – position of the First Instance Court on the case filed by the NGO “Legal Analytics” to the Prosecutor General’s Office
Thursday, 24 October 2013 20:15

23160On 02.10.2013 District Administrative Court of Kyiv (Court) denied the claims of the NGO Expert Advisory Center “Legal Analytics” (the EACLA - the Plaintiff) to the Prosecutor General’s Office (the Defendant). This court decision is appealed by the Plaintiff.

The EACLA’s statements of the claim and the appellate complaint are: a) to recognize unlawful inaction of the Prosecutor General’s Office of Ukraine in connection with failure to consider Plaintiff’s complaints on national deputies’ omissions in executing information and appeal legislation; b) to oblige the Defender to consider the plaintiff's complaints.

The position of the District Administrative Court is based on the following arguments:

I. The Court concluded that the Defendant considered plaintiff's complaint, as evidenced by a letter of the Defendant provided that the Prosecutor General’s Office does not control Parliament’s compliance with the legislation of Ukraine.

The plaintiff believes the letter provided by the Defendant cannot indicate itself that the plaintiff’s complaints were considered. As considering complaints on the merits means   deciding on existence of violations of the laws and rights of the plaintiff; and the answer of the Prosecutors office did not apply to the raised questions and provided no information about the review /settlement of the issues raised in complaints. So, complaints were not considered because no decisions on the complaint were taken, the Prosecutors office did not commit any of the powers and actions under Articles 20-21 of the Law "On Prosecutor’s Office", which has to be committed while exercising prosecutorial supervision powers.

II.The court: According to the Article 1 of the Law of Ukraine "On Prosecutor’s Office" prosecutors perform supervision over correct application of the laws by the state authorities, but the Parliament of Ukraine is not included into the list of these authorities by the law.

This position, according to the plaintiff, is not justified because of the following. Defendant's thesis that it has no authority to exercise supervision over the Parliament of Ukraine and its officials is mistakenly applied to these relationships, as plaintiff did not ask to exercise prosecutorial supervision over the Parliament, but asked to take action because of the failure to comply with the legislation on information and  appeals by citizens of Ukraine who are members of Parliament and bounded by the Law “On appeals” and legislation on information, as well as by the Law of Ukraine “On the Status of National Deputy of Ukraine”. At the same time the plaintiff appealed to the respondent outlining the violations of laws of Ukraine not by the Parliament of Ukraine as the sole legislative authority of the state, but by the MPs who are citizens of Ukraine and shall comply with the legislation on appeal and on information. Prosecutor General’s office is authorized to decide whether MPs committed administrative offense or no, and no other authority can do it. Defendant's obligation to take action, requested by the Plaintiff in the lawsuit is based on current legislation of Ukraine. Therefore, Defendant is authorized and obliged to exercise inspections regarding possible violations in the field of information legislation and legislation on appeals, and, if there are sufficient grounds, to decide on administrative violation. A Member of Parliament, as well as any other person can be brought to administrative responsibility, and only prosecutors are authorized to bring them to administrative responsibility as the authority that controls compliance with the laws in this certain field.

III. The Court stated that the prosecutors are authorized to decide on taking measures to bring to responsibility at their discretion, and they cannot be forced to take such measures.

But the plaintiff did not asked the court to compel the Prosecutor General to bring MPs to responsibility, but only asked the court to compel the Prosecutor General’s Office to consider the complaints, that is why this court thesis is also incorrect.

Thus, the EACLA asked the Kyiv Appeal Administrative Court to cancel the District Administrative Court’s of Kyiv decision from October 2, 2013 on the lawsuit filed by NGO Expert Advisory Centre "Legal Analytics" against the Prosecutor General’s Office of Ukraine and satisfy claims of Plaintiff.