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Publication date: 14.05.2024
The Supreme Court pointed out that there is no need and no procedural mechanisms for deviating from the position of the Supreme Court of Ukraine, which has lost its relevance due to changes in legislation
As a general rule, it is not allowed to deviate from the position of the Supreme Court after a change in the rule of law on which such a position is based.
The Supreme Court received a cassation appeal from the Command of the Land Forces of the Armed Forces of Ukraine (defendant) against the decision of the court of appeal in the case on the claim of a person against the Command of the Armed Forces of Ukraine on recognition of unlawful inaction and obligation to take certain actions.
When filing a cassation appeal, the AFU Command, as the basis for the cassation appeal against the decision of the court of appeal, pointed to the need to deviate from the legal opinion of the Supreme Court set out in the decision of March 3, 2021 in case No. 805/3923/18-a.
When deciding on the possibility of opening cassation proceedings in the case, the Court found that the trial in the court of first instance was conducted under the rules of simplified action proceedings, and therefore concluded that there must be exceptional grounds for cassation review of court decisions, as defined in paragraph 2 of part five of Article 328 of the Code of Administrative Procedure of Ukraine.
The Court found that the dispute in this case concerned the procedure for calculating the length of service for a military pension in accordance with the Resolution of the Cabinet of Ministers of Ukraine "On the Procedure for Calculating Length of Service, Appointment and Payment of Pensions and Financial Assis-tance to Persons entitled to Pensions in accordance with the Law of Ukraine "On Pensions for Persons Discharged from Military Service and Some Other Persons", except for Conscripts and Members of Their Families and Persons Equated to Them" No. 393 dated July 17, 1992.
At the same time, the Court noted that after the Cabinet of Ministers of Ukraine adopted Resolution No. 119 of February 16, 2022 (entered into force on February 19, 2002), which amended Resolution No. 393, the position of the Supreme Court in case No. 805/3923/18-a, which was mainly based on the provisions of the said Procedure in the previous version, has lost its relevance since February 19, 2022, as evidenced, in particular, by the position of the Supreme Court set out in its decision of August 31, 2023 in case No. 200/4951/22.
The Supreme Court noted that in this case, the plaintiff acquired the right to a retirement pension in accordance with paragraph (a) of Article 12 of Law No. 2262-XII on September 9, 2021, i.e. before the adoption of Resolution No. 119, which amended Resolution No. 393, and therefore the conclusion set forth by the Supreme Court in case No. 805/3923/18-a is relevant to the disputed legal relations to which the plaintiff is a party.
The court stated that in the case under consideration there is no need and procedural mechanisms to deviate from the position of the Supreme Court, which has lost its relevance due to changes in legislation and, accordingly, changes in court practice in the disputed legal relations.
In accordance with the mandatory requirements of Article 13 of the Law of Ukraine "On the Judicial Sys-tem and Status of Judges", Article 6 of the Law of Ukraine "On Administrative Procedure" and Article 242 of the Code of Administrative Procedure of Ukraine, conclusions on the application of legal norms set forth in the rulings of the Supreme Court are binding on all public authorities that apply in their activities a legal act containing the relevant legal norm; when choosing and applying a rule of law to a disputed legal rela-tionship, the court takes into account the conclusions on the application of the rules of law set forth in the resolutions of the Supreme Court; state authorities and local self-government bodies and their officials may not make decisions that cancel court decisions or suspend their execution.
Analyzing the content of the cassation appeal, the Court also found that the complainant did not provide other exceptional grounds for cassation appeal in accordance with paragraph 2 of part five of Article 328 of the Code of Administrative Procedure of Ukraine for cases of minor complexity and considered under the rules of simplified claim proceedings.
According to the Court, the above also excludes the possibility of accepting the cassation appeal for con-sideration.
Refusing to open cassation proceedings, the Supreme Court stated that the position (legal opinion) of the Supreme Court, acting together with the relevant rule of law, is binding on all public authorities that apply such a rule in their activities only during the period of its validity and the emergence of relevant social and administrative relations during this period; deviation from the position (legal opinion) of the Supreme Court after changing the rule of law on which such a position is based, as a general rule, is not allowed.
The case file on the Ruling of the Supreme Court of March 19, 2024 in case No. 240/28007/21 (admi-nistrative proceedings No. K/990/7785/24) is available on the court's website.
Thus, we can see that the amendments adopted not only to the current law are adopted taking into ac-count changes in the requirements of the time and the imposed martial law in Ukraine, but also in relation to business activities in accordance with the fact that a legal analysis of the situation, analysis of docu-ments and verification of documents by a lawyer and a legal opinion were carried out.
