Publication date: 07.06.2024
lawyer, 23 years of experience in enforcement.
The creation of an administrative claims mechanism is a system designed to ensure, in compliance with the law and with unconditional factual support, the enforcement of a future court decision and/or the protection of a claimant, all of which is impossible without immediate court intervention.
Securing a claim is primarily a limitation of the subject's personal rights, freedoms and interests; it is also intended to ensure in the future the implementation of justice and the satisfaction of the plaintiff's demands (see the resolution of the KGSVSvid dated 12.10.2019 in case No. 910/18739/16, the validity period of which expired on 21.10.2022 in case No. 910/20007/20).
The purpose of closing the lawsuit is to force the court to take measures to protect the material and legal rights of the plaintiff from any potential malicious intentions on the part of the defendant or other participants in the case, in order to provide the plaintiff with real and effective protection or restoration of his rights (interests). , if the decision is taken in his favor, including ensuring the protection of rights without the need to go through a new trial.
That is, the purpose of the preventive measure is to preserve the current state until the court determines the necessity of this measure. The interim measure is intended to ensure that when the case is heard on the merits, the court still has the opportunity to assess the applicant's complaint in accordance with the standard procedure. Temporary preventive measures are aimed at preserving the state, which is the subject of the dispute during the proceedings (see the decision of the ECtHR in the case "Kübler v. Germany").
The security of the claim is guaranteed both before the filing of the claim and during the consideration of the case.
The court ensures the protection of the claim by issuing a decision, if additional proceedings are opened for the claim, such a decision can be issued by the court of appeal.
The types, grounds and procedure for securing a claim in administrative cases are regulated by Ch. 10 KASU.
According to Art. 151 of the CASA, a claim may be secured: Art. 151 of the Civil Code, a claim may be made:
- 1) stopping a person's actions or prohibiting administrative actions;
2) preventing the defendant from taking certain actions;
3) preventing other persons from participating in the consideration of the dispute;
4) by terminating the foreclosure process on the basis of an executive letter or other letter documenting the foreclosure as legitimate.
Grounds for action:
- 1) failure to take these measures may significantly impede or impede the execution of a court decision or the effective protection or restoration of the plaintiff's rights or interests for which he has applied or intends to apply to the court.
- 2) in the decision, action or inaction of the subject of authority, there are obvious shortcomings, violation of the rights, freedoms or interests of the person who applied to hear the court in this matter.
Regarding the presence of obvious signs of the illegality of the contested decision and violation of the rights, freedoms or interests of the persons participating in the case, the Supreme Court in its decision dated May 16, 2019 in case No. 826/ 14303/18 dated February 12, 2020 in case No. 640/ 17408/19 and dated February 27, 2020, in case No. 640/16242/19, it is stated that these signs must, first of all, be clearly absent.
That is, the court must be aware that the relevant decision contradicts the requirements of the law, violates the rights, freedoms or interests of the plaintiff, and taking measures to demand is effective to prevent significant and real negative consequences of this violation. Another scenario involves the establishment by the court of the presence of obvious signs of the illegality of the contested decision and violation of the rights, freedoms or interests of the plaintiff. Because of this, the court considered the case as if it were considering the rights, freedoms or interests of the plaintiff in each specific case.
The court, depending on the petition of one of the parties or on its own initiative, has the right to take measures to secure the release.
If the claim is defended, the court can take several measures to defend the claim, these measures must be proportionate to the claims made by the claimant.
The court must also take into account the degree of participation of the applicant in the dispute, as well as the interests involved (the applicant requires the protection of these interests). These interests are directly related to the actions of the court.
The suspension of the normative-legal norm as a means of securing a claim is allowed only if the law is clearly directed against the person who sought to suspend the validity of the norm, and if it violated his rights, freedoms or interests in connection with the claim.
According to the recommendation on temporary judicial protection in administrative cases, which was adopted by the Committee of the Council of Europe on September 13, 1989, a decision to take protective measures on a temporary basis may, in particular, be made if the execution of an administrative act may lead to substantial damage, the compensation of which related to the difficulty of the execution of the act, as well as if at first sight there are significant doubts about the legality of the act. The court that decided to take this action is not obliged to simultaneously evaluate the legality or legality of the related administrative act; the decision to take this action should not have a significant impact on the decision to be made later on the appeal of the administrative act.
That is, the process of securing an administrative claim is one of the guarantees of protection of the rights, freedoms and legitimate interests of legal entities and individuals - plaintiffs in an administrative dispute, a system designed to ensure the real and consistent execution of a court order in an administrative case.
Submission to the court, as well as the initiation of administrative proceedings, do not affect the contested decision of the subject of authority, if the court did not apply the appropriate methods of securing the claim (Part 4 of Article 150 of the Criminal Procedure Code of Ukraine). Civil Code).
Cases when securing a claim is prohibited are listed in Part 3 of Article 151 KASU.
Legal service "Consultant" provides all types of legal services, including online legal services. Specialists of our service will make a legal analysis of the situation to determine the actions in the relevant situations and will help to collect the necessary documents and, if necessary, accompany the court proceedings.
