Assistant of Judge of Court of Appeal
of Chernivtsi region,
Candidate of Law,
ESTABLISHMENT OF LEGAL FACTS BY ADMINISTRATIVE COURT
This article investigates the rules of establishing legal facts by an administrative court (judge). It is proved that the administrative court should enforce procedural powers, including detection, to disclose evidences on its own initiative and establish legal facts.
Keywords: legal fact, principle of official clarification of a case circumstances, Administrative Legal Proceedings in Ukraine.
Interpretation of practical knowledge, determining of positive and negative trends in its implementation, application and development is an important task of science. According to I. L. Samsin, science is always one step ahead of practice that, in fact, can be considered a good thing, since the theoretical study of the issue should, if possible, precede its empirical implementation, then there will be fewer failed experiments. Therefore, the doctrinal interpretation of certain legal concepts naturally occurs prior to their implementation in practice. Introduction of administrative legal proceedings appeared to be that kind of a “formed" idea that is partially realized under the influence of the European practice in the field of judicial procedure, partially through the revival of the national pre-revolutionary traditions, and some way is motivated by a number of domestic court orders recognized by the European Court of Human Rights such that violate international obligations of Ukraine [1, с. 43].
The task of administrative legal proceedings is protection of the rights, freedoms and interests of physical persons, the rights and interests of legal entities in the sphere of the public relations from violations by public authorities, local government bodies, their executive officers and officials, other subjects when implementing of imperious managerial functions by them on the basis of the legislation, including in response to the delegated powers by fair, unbiased and timely consideration of administrative cases. For this purpose it is important how punctual and accurately administrative court finds legal facts. Since scientific researches in this field were scarcely carried, the mentioned topic is well-timed, expedient and relevant.
The object of the article is carrying the research in the sphere of legal facts establishment by an administrative court. To achieve this objective the current legislation, judicial practice and views of scientists on the topic were studied.
This topic was studied by such scientists as V.B. Averyanov, V.M. Bevzenko, V.T. Bilous, I.P. Golosnichenko, R.A. Kalyuzhniy, T.O. Kolomoets, V.K. Kolpakov, O.V. Kuzmenko, V.G. Perepelyuk, O.P. Riabchenko, I.L. Samsin, A.O. Selivanov, M.I. Tsurkan, etc.
Explanatory statement of the Ministry of Justice of Ukraine dd 07.07.2012 “State registration of ownership rights on immovable property as the subject of finding of legal facts in the civil law” although related to civil relations, its provisions on legal facts are quite acceptable for use in administrative proceedings. Thus in the statement it is specified that interpretation of legal facts is a defining moment in clarifying the nature of the actions of their establishment, and therefore their consideration should be given a special attention.
An issue related to legal facts acquired its definition only in XІX century in the works of Friedrich Karl von Savigny [2, p. 113], has been the subject of research by many scientists and jurists. Today, most of them share the opinion that legal facts in civil law are circumstances, which can entail the establishment, modification, suspension or other transformation of civil rights and obligations (civil relations) [3, p. 61]. Or in other words these are specific life circumstances with which the law associates creation, change or termination of legal relations [4, с. 53]. M.O. Rozhkova discloses the legal nature of the juridical facts more precisely and in her work “Legal facts in civil law” differentiates “model law of circumstances” and “legal fact". In scientist’s opinion, model law of circumstances is an abstract (typical) instance which is defined in the theory of norm (or several norms) and with which the norm connects ensuing of consequences. Legal fact in its turn is defined as the actual life circumstance with model law of which the rule of law associates ensuing of consequences . This approach more clearly reveals the mechanism of the factual circumstances influence on legal reality and allows to see how the following circumstances cause changes in the status of people, their rights, obligations and legal relationships. The definition of legal facts given by M.O. Rozhkova allows to make some clarifications to the existing definitions of their establishment in law books. In particular, R.B. Razbeyko defines establishment of legal facts as an information process, the matter of which is to convert the presumptive facts into reliable/established facts, by means of establishing all essential circumstances that allow to give them a legal evaluation – recognize or not the legal distinctions of a fact (legal nature) [6, с. 520]. Taking into account the mentioned views of the legal scholars, establishment of legal facts in the civil law can be understood as mental and analytical thinking process aimed at identifying the scope of factual circumstances of material reality and the degree of identity between these circumstances and legal models set out in the rule of law, which actually concludes this very identity of the relevant circumstances and models, and therefore the existence of a legal fact, or its lack thereof and, accordingly, lack of a legal fact. It should be noted that formalization of the results of the legal facts finding has an essential significance only when the rule of law obliges the subject to their execution. Otherwise, they may exist in unexecuted (theoretical/idealized) status as one’s own beliefs or attitudes. For example, those legal facts acquire practical implementation if their establishment is confirmed with the pretext of the court decision, and therefore the court is responsible for their provision to fulfil the justness of the court decision.
The question of legal facts belongs to fundamental knowledge regardless of branch law. It is a core category of the jurisprudence, which determines the scientific interest in its study. Almost all kinds of legal activities are associated with the establishment of legal facts. In any case proceeding the judge has to outline the legal facts as circumstances to be established that assists thorough and comprehensive review of the case in general .
We can’t but note that the factual circumstances of the case are established directly or in an indirect way. Basically procedural legal facts are established directly by the court, in the courtroom. Direct finding of procedural legal facts can be carried out by the court in the process of case litigation, as well as a judge sitting alone, for example elimination of defaults in legal claim statements, consideration of petitions for claim enforcement, etc. Since the court (judge) has witnessed the finding of procedural legal facts, then there is no need of their proving [8, p. 219].
The set of legal facts to be established by indirect finding and to be proved by the subject is called the circumstance in proof.
The legal definition of the circumstance in proof has a great importance in preparing the case for court hearing, its proceeding, approval of a legitimate and justified court decision. The establishment of the case circumstances and facts required for a judgement depends on the accuracy of such a definition. It stands for the proper protection of the rights, freedoms and interests of individuals, the rights and interests of business entities in public law relations from violations by state authorities, local self-government bodies, their officials and employees, other subjects while their exercising of managerial functions on basis of the legislation, including execution of delegate functions through a fair, impartial and well-timed proceeding of administrative cases.
In order to establish the facts or circumstances that are relevant to the administrative proceeding, one should appeal to two sources: 1) the rule of substantive law that regulates these relations; 2) a cause of action and legal objection to it. Thus the matter of the circumstance in proof is a set of facts to be established [9, p. 496-501].
The correct finding of the circumstance in proof allows to establish a scope of facts required for execution of objectives within legal proceedings and eliminates all irrelevant aspects. The circumstance in proof – is a set of legal facts (substantive nature) to be established within the legal proceedings [10, с. 85-86].
In theory and practice to the facts which are a part of the circumstance in proof, but should not be proved, one refers to: 1) prejudicial facts. The background of the prejudicial fact is the legal force of the court decision. An administrative court only reclaims for copies of the judicial acts without proving the established facts within these acts. Circumstances established by the court decision in administrative, civil or commercial case, which came into force, should not subject to establishment in other cases proceedings involving the same persons or entities in relation to which these circumstances were found. Court verdict in criminal proceedings or court decision in an administrative case, which came into legal force, is compulsory for administrative court which proceeds the case related to legal implication of acts of commission or omission of a person, against whom the judgment or decision was adopted by the court, and only in those matters whether the act occurred and whether it was committed by that person; 2) notorious facts. Administrative court admits notorious facts as those that are well known to a general public, the judges as well. There is no need to prove the circumstances recognized by the court as notorious; 3) facts recognized by the other party to a case. It is admission of the facts by the party upon which the other party to a case uses to justify their claims or objections, or frees the latter from averment. The circumstances which are recognized by the parties may not be proved in court proceeding, if the parties have no objections and the court has no doubt about the authenticity of these circumstances and their voluntary admission.
Notwithstanding which party out of those involved in case proceeding is obliged to prove the facts, all judicial facts, which are decisive, must be proved by evidence. V.O. Stoyan shares the views according to which the judicial evidences can be considered as factual evidences, as well as instruments of evidence (as subject matter and form of action). In her opinion, an instrument of evidence is a procedural form of evidences manifestation .
The process of legal facts establishment by the administrative court is influenced by the principle of formal finding of all case circumstances.
Part 4, 5 of Article 11 of the Code of Administrative Legal Proceedings of Ukraine stipulates that the court shall take legal measures needed to establish all the circumstances of the case, as well as disclosure of evidences of its own motion. The Court has to offer parties involved in the case to submit evidences, or to order the disclosure of evidences on its own motion, which lack in court’s opinion (principle of the formal establishment of case circumstances).
The mentioned principle is implemented through the norms of Article 71 of the Code of Administrative Legal Proceedings of Ukraine, according to which each party must prove the facts and circumstances upon which they ground their claims and objections, except cases as specified in Article 72 of this Code. In administrative cases related to unlawful decisions, acts of commission or omission of the authorities, the legality averment of the decisions, acts of commission or omission rests with the defendant, if he or she disputes the administrative claim. If a person who is involved in the case, is unable to provide evidences, he or she should note the reasons why the evidences cannot be provided and indicate where they are or could occur. The court assists in fulfilling this duty and orders the disclosure of evidences. The court passes a verdict whether on disclosure of evidences or denial in calling for evidences. Court decision in denial for evidences disclosure alone is not appealed. Objection against this decision can be included into appeal or cassation petition on court’s decision taken after hearing. An authority, agency or public officer should bring all existing documents and materials which can be used as evidences before the court. In the event of a default the court will call for named documents and materials. The court may collect evidence of its own motion. If a person who is involved in the case, does not bring before the court the evidences to prove the circumstances to which it refers without a valid reason, the court shall decide the case based on available evidences.
Theory and practice of administrative legal proceedings of Ukraine concludes the principle of formal disclosure of all case circumstances in a number of provisions of the Code of Administrative Legal Proceedings of Ukraine, for implementation of which the court: 1) finds the circumstances to be established for dispute settlement, as well as defines which evidences the parties can justify their arguments or objections to the circumstances (paragraphs 3, 4 part 4 of Article 111 of the Code of Administrative Legal Proceedings of Ukraine); 2) offers parties involved in a particular case, to supplement or explain certain facts of the case and provide the court with additional evidences (part 5 of Article 11, part 1 of Article 114 of the Code of Administrative Legal Proceedings of Ukraine); 3) on its own motion, shall disclose and call for evidences which lack in court’s opinion (parts 4, 5 of Article 11, part 4 of Article 65, part 5 of Article 71, paragraph 1, part 2 of Article 110 of the Code of Administrative Legal Proceedings of Ukraine); 4) can also compile the third party (or parties) to take part in court session, if it is necessary to hear his/her in person (paragraph 2 part 2 of Article 110, of Article 120 of the Code of Administrative Legal Proceedings of Ukraine); 5) can make an admission of evidences investigation related to circumstances, that are recognized by the parties, if the court has doubts about the authenticity of these circumstances and their voluntary admission (part 3 of Article 72 of the Code of Administrative Legal Proceedings of Ukraine); 6) in the course of examination of witnesses the court is entitled to put questions at will, not just after he or she has been questioned by the parties which take part in proceeding as it is exercised in civil procedure (part 8 of Article 141 of the Code of Administrative Legal Proceedings of Ukraine) [12, с. 165].
It should be noted that not only those subjects involved into the case proceeding provide the court with information, the court as well according to part 2 of Article 69 of the Code of Administrative Legal Proceedings of Ukraine, is entitled to order to provide or disclose additional evidences at the request of the persons involved in the case or on its own motion.
The subjects of evidences averment are not only those parties involved in case proceeding, but other subjects as well, such as the court or a judge.
Administrative court has to render active support to the proceeding in course, disclose the case facts and circumstances to the fullest extent possible. For this purpose the court has to encourage the active involvement of participants in the proceedings to study and disclose the factual circumstances. “The court while proceedings should not be a casual observer. The law obliges the court to create the conditions necessary for a comprehensive, full and objective investigation of the case, as well as to control the parties, disclose the evidences provided, to exclude from consideration those which are inadmissible and to involve the new ones, to strictly enforce the proceeding participants to comply with the rules of court procedure prescribed by the law” [13, p. 4].
Legal views on this issue are disclosed in the Decree of the panel of judges of the Judicial Chamber on Administrative Cases of the Supreme Court of Ukraine adopted in claim of the Limited Liability Company “Firm 1” against the State Tax Inspectorate in Pechersk district of Kyiv for declaring the tax assessment notice invalid.
By reversing the court decision and remanding the case for a new proceeding in a court of first instance, the Supreme Court of Ukraine noted that, according to the opinion of the panel of judges, the scope of evidences to which the court of appeal refers in contested judgment, is compulsory, but not exhaustive.
By reference to the subject matter of legal objections against the claim, the court had to call the State Tax Inspectorate for evidences, which prove its arguments. If the State Tax Inspectorate did not provide such evidences or they were insufficient, the court governed by parts 4 and 5 of Article 11 of the Code of Administrative Legal Proceedings of Ukraine, was obliged of its own motion to call for evidences which prove or rebut the circumstances.
The court did not oblige the defendant to bring such evidences, did not create the conditions necessary for establishment of facts and circumstances of the case and accurate application of the law .
We believe that the establishment of legal facts is not limited to their averment. Administrative court has to enforce the procedural powers to execute the tasks of administrative legal proceedings.
It should be noted that the court does not proceed the administrative cases other than at the statement of claim, filed according to the Code of Administrative Legal Proceedings of Ukraine, and cannot go outside the bounds of the claims unless it is essential for an overall protection of the rights, freedoms and interests of the parties involved or the third parties, protection of which they apply for. The court has to amend the claim where required.
The specified rule is manifested in judicial practice as well. The panel of judges of the Judicial Chamber on Administrative Cases of the Supreme Court of Ukraine, having tried, by way of written proceeding under exceptional circumstances, the claim of the Specialized State Tax Inspectorate for Large Taxpayers in Kharkiv against the Open Joint-Stock Company “VAB” and the private company “K” injunction compelling to act, issued a court decree that abolished the decisions of the of prior instances, as well as remands the case for retrial in a court of first instance.
While substantiating its decision, the Supreme Court of Ukraine pointed out that within the new case proceeding the court has to pay attention this claim (about the obligation to discharge tax anticipation bills) did not meet the procedure of debt discharge required by the current legislation and rights of the tax department, and, therefore the judicial remedy. The provisions of part three of Article 105 of the Code of Administrative Legal Proceedings of Ukraine related to the specified by the defendant of the remedy for the violated rights protection do not exclude the possibility of electing another remedy of protection by the court itself. The principle of formal establishment of all circumstances in case requires the administrative court to render an active part in court session, as well as in amending the claim followed by the election of an appropriate remedy of rights protection .
Therefore, the legal facts are established by the administrative court (the judge) as a result of direct or indirect fact-finding. Administrative court has to enforce the procedural powers to disclose evidences of its own motion and to establish legal facts. While proceeding the administrative case the judge has to outline the scope of legal facts as circumstances to be established that assists thorough and comprehensive review of the case.
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