Acts Adopted in Violation of Anti-Corruption Legislation Shall Be Cancelled

An individual authorized to fulfill state or local self-government functions shall not participate in  decision-making process of this body, in case of real or potential conflict of interests. Legal and regulatory acts, decisions adopted in violation of anti-corruption legislation shall be cancelled.

Such an approach was followed by the Supreme Court while considering an administrative case in cassation procedure under the claim of prosecutor against a village council on recognition as illegal and cancellation of its decision “On Permitting to Draft the Land Survey Project concerning the Allotment of Land Parcel in Private Ownership”.

The appellant noted that under the controversial decision of the village council, an individual who was a member of this council was allowed to draft the land survey project concerning the allotment of land parcel, adjacent to his own land, in his private ownership. However, he did not inform the audience about the conflict of interests, and even took part in voting contrary to the laws of Ukraine “On Preventing Corruption” and “On Local Self-Government in Ukraine”.

The first and appeal instances courts refused to satisfy the claim for the reason that his vote in the process of voting of the village council’s decision was not decisive and didn’t influence on legitimacy of its taking, and also for the reason that anti-corruption laws did not require unconditional cancellation of decision of the local self-government body taken in the situation of the conflict of interests.

The Supreme Court cancelled decisions of lower courts and noted that the mere fact of an individual’s participation in voting is decisive for finding violation of the decision-making procedure, but not the fact of influencing adopted decision, taking into account available qualified majority necessary for adoption of positive decision by collegial body.

The Supreme Court sitting as a panel of judges of the Administrative Cassation Court, noted that an individual authorized to fulfill state or local self-government functions or equal status individual who is a member of collegial body (committee, commission, panel etc.) shall not participate in decision-making process of this body in case of real or potential conflict of interests (para 2, Article 35 of the Law of Ukraine “On Prevention of Corruption”). Legal and regulatory acts, decisions adopted in violation of the said requirements shall be cancelled by body or official authorized to adopt or cancel relevant acts, decisions; or shall be recognized as illegal by court under the claim of concerned natural person, association of citizens, legal entity, prosecutor, state body, in particular, the National Agency, local self-government body (para 1, Article 67 of the Law). Optionality of this norm falls within the matter of choosing of the means to appeal decision, taken in the situation of conflict of interests, and shall oblige court to consider relevant claim on recognition of such decision as illegal, as prescribed by the procedural law.

Resolution of the Supreme Court of 31 October 2018 in the case No. 810/2500/16 –http://www.reyestr.court.gov.ua/Review/77586022.