Verifying the Legality of NABU's Acts or Omissions in Criminal Proceedings Is Not Within the Jurisdiction of the Administrative Court - SC Grand Chamber

A person filed a lawsuit against the National Police of Ukraine represented by the Department of International Police Cooperation and the National Anti-Corruption Bureau of Ukraine to recognize acts, omissions and obligations to take actions as unlawful. The plaintiff considered his rights violated, inter alia, as a result of the defendants' actions regarding putting him on the international wanted list for the purpose of arrest and extradition to Ukraine for criminal prosecution.

The administrative court of the first and appeal instances granted the claim partially. The Administrative Cassation Court within the Supreme Court referred the case to the Grand Chamber of the Supreme Court to resolve an exclusive legal issue regarding the nature of the disputed legal relationship and the jurisdiction of this dispute.

After analyzing the norms of the legislation, the SC Grand Chamber concluded that the actions to send a request to include in the records of the Interpol General Secretariat a petition for the publication of a notice on the international search for a person with a view to arrest and subsequent extradition to Ukraine, as well as further communication of the relevant law enforcement agency that submitted such a request (in this case the NABU), with the National Central Bureau of Interpol in Ukraine, were not public authority administrative functions. The specified relations are related to the tasks of criminal proceedings.

The Grand Chamber of the Supreme Court had no doubt that the NABU was a subject of public authority. However, in this case the NABU did not perform public authority administrative functions. This indicates the absence of a mandatory feature of an administrative case in accordance with clauses 1, 2, part 1 of Article 4 of the Code of Administrative Proceedings of Ukraine.

The dispute in this case arose, in particular, in connection with the unlawful, according to the plaintiff, acts and omissions of the NABU, committed or not committed by the latter in the framework of criminal proceedings, therefore, verification of the legality of such acts is outside the jurisdiction of the administrative court (clause 2, part 2, Article 19 of the Code of Administrative Proceedings of Ukraine). In addition, after analyzing the legal norms governing the international search for a person for the purpose of arrest and subsequent extradition, the SC Grand Chamber came to the conclusion that the jurisdiction of the administrative courts did not extend to the acts and omissions of the Department of International Police Cooperation appealed in this case.

Consequently, in terms of the content the relationship in this case are not related to public authority administrative functions, but the contested acts and omissions of the NABU and the Department stem from relations within the framework of the investigation of criminal proceedings. Therefore, the SC Grand Chamber stated that the dispute was not subject to consideration by way of administrative proceedings, and the issues raised by the plaintiff before the court could be considered according to the rules of the Criminal Procedural Code of Ukraine.

The Resolution of the Grand Chamber of the Supreme Court of February 2, 2022, in case No. 826/15154/17 (proceedings No.11-455апп2): https://reyestr.court.gov.ua/Review/103893127.

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