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A Member of the Parliament of Ukraine filed an administrative lawsuit with the district administrative court seeking to declare unlawful and invalid paragraph 2-14 of the Rules for Crossing the State Border by Citizens of Ukraine, approved by Resolution of the Cabinet of Ministers of Ukraine No. 57 dated January 27, 1995 (as amended by Resolution of the Cabinet of Ministers of Ukraine No. 724 dated August 25, 2010).
The court of first instance dismissed the administrative lawsuit in full. The appellate court overturned the decision of the court of first instance and adopted a new ruling, partially granting the claim: it declared unlawful and invalid paragraph 2-14 of the Rules for Crossing the State Border by Citizens of Ukraine, approved by Resolution of the Cabinet of Ministers of Ukraine No. 57 dated January 27, 1995, in the version in force as of January 28, 2023. The court refused to satisfy the claim in the remaining part.
Disagreeing with this ruling of the appellate court, the Cabinet of Ministers of Ukraine filed a cassation appeal, which was later joined by the Ministry of Internal Affairs of Ukraine.
As grounds for cassation, the respondent cited paragraph 3 of Part 4 of Article 328 of the Code of Administrative Procedure of Ukraine, namely the absence of conclusions by the Supreme Court regarding the application of legal norms in similar legal relations concerning:
- Part 4 of Article 10 of the Law of Ukraine “On the National Security and Defense Council of Ukraine” and Part 1 of Article 26 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine”;
- Part 2 of Article 3 of the Law of Ukraine “On the Procedure for Exit from Ukraine and Entry into Ukraine of Citizens of Ukraine”;
- Article 24, Part 2 of Article 26, Part 8 of Article 33 of the Law of Ukraine “On the Status of a Member of the Parliament of Ukraine” and paragraph 15 of Part 1 of Article 78 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”;
- Part 1 of Article 3 of the Law of Ukraine “On National Security of Ukraine” and Article 2 of the Law of Ukraine “On Defense of Ukraine”.
The cassation appeal also stated that the appellate court had violated procedural law norms when adopting the contested ruling.
Having examined the arguments of the cassation appeal and the reply to it, the Supreme Court established that by Resolution of the Cabinet of Ministers of Ukraine No. 69 dated January 27, 2023, paragraph 2-14 was added to the Rules for Crossing the State Border by Citizens of Ukraine (approved by Resolution of the Cabinet of Ministers of Ukraine No. 57 dated January 27, 1995) with the following content:
“…In the event of the introduction of martial law in Ukraine, the following persons shall have the right to cross the state border on the basis of relevant decisions on official business trips: members of the Cabinet of Ministers of Ukraine, first deputies and deputy ministers, heads of central executive authorities, their first deputies and deputies, the State Secretary of the Cabinet of Ministers of Ukraine, his first deputy and deputies, the Head of the Secretariat of the Verkhovna Rada of Ukraine, his first deputy and deputies, state secretaries of ministries, the Head of the Office of the President of Ukraine and his deputies, heads of other auxiliary bodies and services established by the President of Ukraine and their deputies, the Head of the Security Service of Ukraine, his first deputy and deputies, the Head and members of the National Council of Television and Radio Broadcasting, the Head and members of the Accounting Chamber, the Head and members of the Central Election Commission, heads and members of other state collegiate bodies, the Secretary of the National Security and Defense Council of Ukraine, his first deputy and deputies, People’s Deputies of Ukraine, the Commissioner of the Verkhovna Rada of Ukraine for Human Rights and his/her representatives, the Governor of the National Bank of Ukraine, his first deputy and deputies, the Permanent Representative of the President of Ukraine in the Autonomous Republic of Crimea and his deputies, heads of local state administrations, their first deputies and deputies, judges of the Constitutional Court of Ukraine, judges, prosecutors, heads of other state bodies and their deputies, deputies of local councils, as well as heads of structural subdivisions of state bodies and local self-government bodies and employees who are reserved for the period of mobilization and wartime for state authorities, other state bodies, local self-government bodies, heads of state unitary enterprises and their deputies, the head and members of the executive bodies of economic companies in whose authorized capital 50 or more percent of shares (stakes) belong to the state, the head and members of the executive bodies of economic companies in whose authorized capital 50 or more percent of shares (stakes) belong to economic companies whose state share is 100 percent, including subsidiaries.
In exceptional cases, the crossing of the state border by a woman and/or a man who is a single parent, from among the persons listed in this paragraph who have a child/children under the age of 18 (inclusive), for the purpose of visiting such children who are outside Ukraine, or for accompanying such children to leave Ukraine, shall be permitted by authorized officials of the State Border Guard Service upon presentation of relevant supporting documents.”.
When reviewing this case in cassation proceedings, the Supreme Court noted that, by adopting the contested ruling and annulling paragraph 2-14 of the Rules in its entirety, that is, with regard to all categories of persons listed in the disputed provisions, the appellate court applied the doctrine of “actio popularis”, stating that the plaintiff had applied to the court not only for the protection of his own rights but also in the interests of protecting public order.
The Supreme Court drew attention to the fact that the statement of claim contained no references to the need to apply the doctrine of “actio popularis” or to filing the lawsuit in the interests of a wide range of people. The plaintiff sought protection of “his right to freely cross the state border” as a Member of Parliament.
The limits of consideration of a case in the appellate instance in administrative proceedings are defined by Article 308 of the Code of Administrative Procedure of Ukraine, Part 5 of which clearly establishes that the appellate court may not consider claims and grounds for the claim that were not declared in the court of first instance.
In the opinion of the panel of judges of the Supreme Court, the plaintiff’s attempt in the appellate court to advance the position that he had filed the lawsuit not only as a Member of Parliament but also in the public interest, a position different from that stated in the statement of claim, should not have been taken into account by the appellate court.
Thus, contrary to the provisions of procedural law, the appellate court erroneously applied the doctrine of “actio popularis” as a procedural ground for partially granting the claims and annulling the disputed paragraph of the Rules in its entirety.
Assessing the disputed legal relations through the lens of the correct application of substantive law norms by the lower courts, the Supreme Court concluded that Resolution of the Cabinet of Ministers of Ukraine No. 69, which amended Resolution No. 57 and supplemented the Rules with paragraph 2-14, was adopted by the Cabinet of Ministers of Ukraine in accordance with Article 3 of the Law of Ukraine “On the Procedure for Exit from Ukraine and Entry into Ukraine of Citizens of Ukraine”, in execution of the decision of the National Security and Defense Council of Ukraine dated January 23, 2023 “On Certain Issues of Crossing the State Border of Ukraine under Martial Law”, which was put into effect by Decree of the President of Ukraine No. 27/2023 dated January 23, 2023. These decisions were and remain binding on the Government and were adopted in accordance with, and for the purpose of implementing, the provisions of the Law of Ukraine “On the Legal Regime of Martial Law”, the Law of Ukraine “On Approving the Decree of the President of Ukraine ‘On the Introduction of Martial Law in Ukraine’”, and paragraph 17 of Part 1 of Article 106 of the Constitution of Ukraine.
Analyzing the provisions of the legislation that define the content and scope of the powers/rights of Members of the Parliament of Ukraine, the Supreme Court noted that the legal norms determining the powers/rights of Members of the Parliament of Ukraine do not contain provisions establishing that the powers/rights of a Member of Parliament as an official include the power/right to freely and unimpeded crossing of the state border of Ukraine.
In view of the above, the Supreme Court agreed with the conclusion of the court of first instance that the disputed provisions of paragraph 2-14 of the Rules did not lead to a violation of the plaintiff’s constitutional rights and freedoms as a Member of the Parliament of Ukraine. Therefore, there are no grounds for satisfying this administrative lawsuit based on the motives set out by the plaintiff in the statement of claim or the conclusions set out by the appellate court in the contested ruling.
The Supreme Court concluded that, within the framework of the disputed legal relations, the Government acted on the basis of, within the powers, and in the manner prescribed by the Constitution and laws of Ukraine. The restrictions introduced by the disputed paragraph of the Rules in no way prevent the plaintiff from exercising his powers as a Member of Parliament. Accordingly, the Supreme Court overturned the ruling of the appellate court and upheld the decision of the court of first instance.
The resolution of the Administrative Cassation Court of the Supreme Court dated July 3, 2026, in case No. 320/20473/24 (proceedings No. K/990/45290/25) will be promptly added after its publication in the Unified State Register of Court Decisions.
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