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We have been heard: the Higher Administrative Court of Ukraine determined the requirements for the court decision

09 October, 2013 Newsletters

In the last year’s presentation on “The problems of motivation of court decisions in the tax disputes” we drew attention to the fact that one of the reasons for issuing of the unmotivated court decisions in the tax disputes is lack of clear requirements for the court decisions in the administrative cases.

And we have been heard: after 10 years of work the Higher Administrative Court of Ukraine (hereinafter – “HACU”) determined the requirements for the court decision in the administrative case, as a result of which the Resolution of Plenum of HACU No. 7 “On the court decision in the administrative case” dated on 20.05.2013  (hereinafter – “the Resolution”) was issued.

The Resolution mainly duplicates provisions of the Code of Administrative Procedure of Ukraine (hereinafter – “CAPU”). However the Resolution also contains a number of requirements for the court decision which are not directly specified in CAPU, however logically derived from it. We draw your attention especially on such provisions:

  1. The decision is considered to be lawful when passed by court according to the provisions of substantive law with taking into account the legal efficacy of the legal act in hierarchy of national legislation, which regulates a disputable legal relations, similar legal relations (correspondence of law), or in the absence of such law – in accordance with the constitutional principles and general principles of the law taking into account the court practice of the European Court of Human Rights, by compliance with the provisions of the procedural law (subpara. 2 of para. 4 of the Resolution).
  2. The decision is considered to be motivated when passed by court  based on fully and comprehensively clarified circumstances of the administrative case, which are confirmed by evidence examined during the court proceedings (during the court hearing, during the short or written proceeding), considering the requirements of the Article 70 of CAPU regarding the competency and admissibility of evidence or circumstances which are not to be proved, and court’s conclusions on the determined facts and legal implications are exhaustive (subpara. 3 of para. 4 of the Resolution).
  3. Decisions of courts of all instances regardless of the type of the proceeding should be utmost complete, intelligible, clear, should contain introductory clause, statement of reasons and resolution part in compliance with specified order. Intelligibility of the court decision consists in logical, clear, cogent argumentation of the court decision. The clarity of argumentation foresees, particularly, that definitions which are used in the court decision should correspond with the meaning ascribed to it in the Ukrainian legislation; such definitions should accurately correspond with the concept they define; the text of the legal norm which is used by the court is reproduced without rephrasing, and it should be understandable where the legal norm is cited and where the court gives its own interpretation of its meaning. The decision of the court should not contain any provisions which can contradict or exclude each other, complicate or rule out the possibility of its fulfillment (subpara. 1-3 of para. 6 of the Resolution).
  4. The circumstances of the case, which were determined by the court with the reference to the evidence, the reasons of failure to take into account particular evidence, as well as the reasons and provisions of law by which the court governed during passing the decision should be specified in the statement of reasons. Thus, in the statement of reasons the court should specified data on determined facts, which matter to the court case, their legal evaluation, determined legal relations, as well as evaluation of evidence, which were taken into account during resolution of the dispute. The court should give reasons when allow one and exclude other evidence (subpara. 1-2 of para. 9 of the Resolution).
  5. Mere reference on provisions of the law in the statement of reasons without proper reasoning on application of certain provisions of law and no-application of other provisions of law, on which the party of the court proceedings refers during substantiation of its demand, cannot be considered as a proper legal qualification. Whenever necessary the statement of reasons can contain interpretation of provision of the law in accordance to which the court passed the judgment or by which it is governed, as well as it should be indicated the reasons why court does not take into account (does not apply) the provisions of the law on which the parties of the court proceedings were referred on for substantiation of its arguments or objections (subpara. 8-9 of para. 9 of the Resolution).
  6. In case when appeal in denied the court should indicate in the decision by which circumstances and provisions of law the arguments of claim of appeal are refuted. In case of cancelation of alter the decision of the court of the first instance the court of appeal in its decision should indicate the reasons of unlawfulness or groundless of the decision of the court of the first instance (subpara. 1 of para. 13 of the Resolution).
  7. In case when the court of appeal during the review of the judgment find other procedural breaches, which did not affect on lawfulness of the decision of the court of the first instance, the court of appeal should indicate it in the statement of reasons of its decision and should motivate its conclusion on insignificancy of such procedural breaches (pgh. 3 of subpara. 13.3 of para. 13 of the Resolution).

As is seen from above, contained in the Resolution requirements intended to have an effect on the quality of the court decisions in the administrative cases. Thus, the first steps for issuing of the motivated decisions by the administrative courts are achieved!

We have a hope that the next step in the effort for issuing of the motivated court decisions will be determination of the liability of judges for incompliance of the abovementioned requirements as well as requirements of CAPU on conduction of administrative court proceedings, as in the absence of the liability all that is left to do is to hope for integrity and ethics of the servants of Themis.

The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.

Kind regards,

© TOV "KM Partners", 2013

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