On Wednesday, on June 12, 2024, the Second Senate deliberated the case upon the constitutional complaint of Oksana Bukhtoiarova at the public part of the plenary session in the form of oral proceedings.
During the plenary session, the judge-rapporteur in the case, Oleh Pervomaiskyi, noted that Oksana Bukhtoiarova, a lawyer and member of the Disciplinary Chamber of the High Qualification and Disciplinary Bar Commission of the Zakarpattia Oblast, had filed a petition with the Constitutional Court to verify the constitutionality of:
- Articles 1.1.15, 3.1.2.c, 45.1 and 51¹.1 of the Law of Ukraine “On Prevention of Corruption“ No. 1700-VII dated October 14, 2014 as amended (hereinafter, “Law No. 1700”);
- Article 238.1.1 of the Code of Administrative Procedure of Ukraine (hereinafter, the “Code”).
The disputed regulations relate to the entities covered by Law No. 1700, the declaration mechanism, the NACP's powers, etc.
In the constitutional complaint, the complainant states that the application to her as a lawyer - member of the HQDBC of Articles 1.1.15, 3.1.2.c, 45.1 of Law No. 1700, her recognition as a declarant and the obligation to submit a declaration in the form of a notification violates the principle established by Article 19.1 of the Constitution of Ukraine. She also points to a violation of Article 19.2 of the Constitution of Ukraine because of the application of Article 51¹.1 of Law No. 1700 in her case, since, in her opinion, this provision of Law No. 1700 does not contain the authority of the NACP to send a notification to the lawyer – a member of the HQDBC.
The final court decision in the case of Oksana Bukhtoiarova is the resolution of the Grand Chamber of the Supreme Court, which cancelled the decisions of the courts of first instance and appeal and closed the proceedings in this case.
The Grand Chamber of the Supreme Court concluded that the application filed by the applicant was not subject to independent deliberation in administrative proceedings, in particular, and to judicial review in general, since the notification sent to her “is of an informational nature only, is not a document containing legal norms, cannot create new legal norms, supplement or amend the current legislation and is not a final document obliging her to take any action, and therefore is not a decision of the authority within the meaning of Article 19 of the Code of Administrative Procedure of Ukraine”.
The author of the application argues that the application by the Grand Chamber of the Supreme Court of Article 238.1.1 of the Code violates her constitutional rights guaranteed by Articles 55.1, 55.2, 55.6 of the Constitution of Ukraine, and that “restrictions on the possibility of appealing against unlawful actions of a public authority exercising its functions (exercising financial control and sending notifications based on the results of control) violate the very essence of the right of access to court”.
During the session, the judge-rapporteur informed that in order to ensure a full and objective deliberation of the case and the Court's delivering of a reasoned decision, he sent inquiries to the members of the Court's Scientific and Consultative Council, a number of public authorities, scientific establishments and higher education institutions with a request to express their positions on the issues raised in the constitutional complaint.
During the plenary session, the Court heard explanations from a participant in the constitutional proceedings regarding the subject of constitutional review, namely, the subject of the right to a constitutional complaint, Oksana Bukhtoiarova. The involved parties to the constitutional proceedings - representative of the Ukrainian National Bar Association, lawyer Maryna Stavniichuk, and representative of the National Agency for the Prevention of Corruption, Deputy Head of the NAPC Yaroslav Liubchenko - also presented their positions. They answered the judges' questions. Finally, the Court heard a closing statement by Oksana Bukhtoiarova.
The Second Senate examined the case file in the public part of the plenary session and proceeded to the in-camera part for a decision.
Video recording of the plenary session is available at: https://ccu.gov.ua/kategoriya/2024.
