Appeal against actions, decisions or omissions of public authorities

The illegal decision, actions or inaction of state or local government bodies are perceived by the average citizen as an insurmountable obstacle that is easier to put up with than to resort to active actions to restore violated rights and interests. However, the current legislation provides for a fairly effective mechanism for influencing violations of the requirements of the law that relate to the current activities of such bodies – administrative proceedings.

Article 40 of the Constitution of Ukraine provides for the right to send individual or collective written appeals or to personally address state authorities, local self-government bodies and officials and service personnel of these bodies, who are obliged to consider the appeal and give a reasoned response within the time limit established by law. The provisions of Article 55 of the Constitution guarantee everyone the right to appeal in court against decisions, actions or inaction of state authorities, local self-government bodies, officials and service personnel.

In accordance with Article 23 of the Law of Ukraine “On Central Executive Bodies”, orders of the central executive body or their individual provisions may be appealed by individuals and legal entities to an administrative court in accordance with the procedure established by law. A citizen may file a complaint against a decision, action or inaction of an executive body or local self-government body in accordance with the procedure established by law. subordination to a higher authority in person or through a person authorized by it. A complaint in the interests of minors and incapacitated persons is filed by their legal representatives.

Article 17 of the Law of Ukraine “On Citizens’ Appeals” provides that a complaint against a contested decision may be filed with a higher-level body or official within one year from the date of its adoption, but no later than one month from the date the citizen became acquainted with the adopted decision. Complaints filed in violation of the specified term shall not be considered. A term missed for a good reason may be renewed by the body or official considering the complaint.

The decision of the higher state body that considered the complaint, in case of disagreement with it, may be appealed to court within the term provided for by the legislation of Ukraine.

Please note!!! The administrative mechanism of appeal to a higher authority has shown absolute inability to resolve legal conflicts between individuals and government officials, so its use can play a negative role in the form of missing deadlines for judicial appeals. If your rights or interests have been violated, seek legal assistance for a comprehensive assessment of the situation and the selection of the best option for resolving the case.

Quite often, we encounter problems from clients regarding the refusal of state bodies or officials to provide information to citizens’ requests. In this case, regardless of the degree of justification of such a request, the person receives either a refusal or a formal response without a specific answer to the questions asked. In this situation, the most effective means of protecting the client’s interests is a lawyer’s request. Without exaggeration, a lawyer’s request can be considered an effective tool that can force the state apparatus, regardless of the level of the public hierarchy, to still devote time to the issue of providing information to the average citizen. Since all further measures to protect the rights of an individual or legal entity depend on the volume of evidence and information collected on the case, it is thanks to a lawyer’s request that it is possible to create effective prerequisites for restoring the legal status of a private law subject violated by the actions or inaction of state institutions.

Appealing decisions, actions or inaction of state and local government bodies to court has certain peculiarities related to the nature of the violated right. Such claims are subject to the jurisdiction of courts of general jurisdiction or administrative courts, the jurisdiction of which differs from each other. The speed of restoration of the violated rights and interests of the client depends on the correct determination of the type of judicial body to which it is necessary to apply for protection.

The jurisdiction of administrative courts extends to public law disputes, in particular:

1) disputes between individuals or legal entities with a subject of public authority regarding the appeal of its decisions (normative and legal acts or legal acts of individual action), actions or inaction;

2) disputes regarding the admission of citizens to public service, its completion, dismissal from public service;

3) disputes between subjects of public authority regarding the exercise of their competence in the field of management, including delegated powers;

4) disputes arising from the conclusion, execution, termination, cancellation or invalidation of administrative agreements;

5) disputes regarding the application a subject of government authority in cases established by the Constitution and laws of Ukraine;

6) disputes regarding legal relations related to the electoral process or referendum process;

7) disputes between individuals or legal entities with the public information manager regarding the appeal of his decisions, actions or inaction regarding access to public information.

Part 2 of Article 18 of the Code of Administrative Procedure of Ukraine states that it is the District Administrative Courts that have jurisdiction over administrative cases:

1) one of the parties, which includes a state authority, another state authority, an authority of the Autonomous Republic of Crimea, a regional council, the Kyiv or Sevastopol city council, their official or service person, except for cases provided for this Code, and except for cases regarding their decisions, actions or inaction in cases of administrative offenses and cases that are subject to the jurisdiction of local general courts as administrative courts;

2) on the application, in cases provided for by law, of response measures regarding state supervision (control), the permitting system in the field of economic activity, if they can be applied exclusively by court decision;

3) on confirmation of the validity of the adoption by subjects of government authority of response measures during the exercise of state supervision (control) in the field of economic activity.

In the event of uncertainty of the CAS of Ukraine regarding the subject matter jurisdiction of an administrative case, such a case shall be considered by a local administrative court at the choice of the plaintiff.

It should also be noted that some disputes related to the appeal of unlawful decisions, actions or inaction of state executive bodies and local self-government bodies are considered by courts of general jurisdiction. In particular, Article 15 of the Code of Civil Procedure of Ukraine stipulates that courts of general jurisdiction consider in civil proceedings cases on the protection of violated, unrecognized or disputed civil rights, freedoms or interests arising from civil, housing, land, family, labor relations, as well as from other legal relations, except for cases when the consideration of such cases is carried out according to the rules of other legal proceedings.

Therefore, decisions, actions or inaction of government bodies that violate the civil, housing, land, family, labor rights of a person may be appealed to courts of general jurisdiction in civil proceedings. At the same time, the key criteria for assigning a case to the jurisdiction of a court of general jurisdiction and using the Code of Civil Procedure of Ukraine during the consideration of the case are a number of factors:

1) The sphere of legal relations, consonant with the general jurisdiction of the local court (rental relations, purchase and sale of housing, privatization, labor relations, other than public service, etc.);

2) The act that is the subject of the appeal is of an individual nature and directly determines, changes or terminates the rights or obligations of the applicant.

Along with the effectiveness of administrative proceedings, it is the district administrative courts that account for the majority of refusals to initiate proceedings on applications of individuals, which is based on the complexity of administrative procedural legislation and the applicants’ failure to take into account the requirements for the procedural processing of claims and additional materials. Thus, timely support from a lawyer in administrative proceedings is the key to a quick and high-quality solution to your problems in interaction with the public apparatus.