Fact in question in administrative legal proceedings: from protection of an individual to procedural nihilism (2016)

12 December, 2016 Publications

evrobrochure1How can we evaluate the performance of administrative justice in Ukraine? The unequivocal answer to this question is hardly possible. However, among the possible answers, this is appropriate: something needs to be changed. And this is not about personalities. The point is about systematic approach to the process.

What does a participant of administrative justice process feel? From our experience, we know that the most frequent answer could be – uncertainty. The uncertainty that such participant will be heard, that all, the parties and the judges equally perceive the object of the dispute, that provided evidence is sufficient to prove their position, and if there is insufficient, the court will inform about it.

For what purpose administrative justice was created? What tasks does it perform? According to recent changes in Art. 125 of the Constitution of Ukraine, administrative courts act to protect the rights freedoms and interests of persons in public law relationships. Unfortunately, in practice it not always so and rather vice versa, the process has the features of inquisitorial.

For several years the lawyers of KM Partners conducted research, trying to find out what exactly caused the problem in the administrative proceedings, from the point of view of constructions of process and norms of the respective Code. Research results are set forth in the scientific and popular publication “Fact in question in administrative legal proceedings: from protection of an individual to procedural nihilism. From the experience of practitioners”.

The publication revealed issues about history of the formation of administrative justice in the world and in Ukraine, characterized theoretical developments on the administrative process, both, in our country and abroad, and there is information about modern foreign practice of its application, in particular, describes the judicial doctrines.

The authors describe the reasons for the existing problems in the administrative process and offer practical ways of their solution. For example, preparatory proceedings has a ceremonial character in the Ukrainian practice of consideration of tax disputes. Real preparation for the consideration of the dispute is not carried out at this stage of the process. Court rulings on the end of preparatory proceedings are rather typical and do not reflect the essence of a particular dispute. According to statistics, preliminary court hearing in the case are held very rarely (they are almost absent in tax disputes).

At the same time, the role of the preparatory proceedings (as well as the right of the court to conduct preliminary hearings) is important in the administrative process. In particular, exactly at this stage the court should determine the scope of the subject of proof, which would allow the parties to behave predictably in the process and prepare respective evidences.

The purpose of publishing – to provide radical changes in the approach of judges and participants of the administrative process, including in the tax disputes, to determination of subject of proof, provision of evidences and distribution of the burden of proof between the parties. Such changes create the conditions for a transition from the traditional inquisitorial process to the process, which aims to protect the rights, freedoms and interests of the person in public law relationships.

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