SECURING AN ADMINISTRATIVE CLAIM: PECULIARITIES OF THE APPLICATION OF THE PRINCIPLE OF OFFICIAL ESTABLISHMENT OF ALL CIRCUMSTANCES IN A CASE
Authors: Kuzmych Vladyslav 
Published: August 2022

The article clarifies that the specific nature of the administrative proceedings is due to the fact that the parties of the judicial process have unequal initial possibilities. The principle of official establishment of all circumstances in a case, which is special and inherent exclusively to the administrative proceedings, is analyzed. The peculiarities of this principle are identified, manifested in resolving the dispute by the administrative court, where the latter takes an active position, as it is obliged to take legal measures necessary to establish all the circumstances of a case, to invite the parties to provide necessary evidence in order to establish objective truth or to request evidence on its own initiative to render a lawful judicial decision. It is found out that the scope of application of the principle of official establishment of all the circumstances of a case is not limited to the institution of evidence and extends its influence to such an element of the administrative proceedings as securing the claim. It is proved that securing a claim is a separate institution of the administrative proceedings, which is designed to effectively protect the rights, freedoms and interests of individuals, as well as the rights and interests of legal entities in the field of public legal relations by a real and strict execution of a judicial decision. It is revealed that the right of the court to take measures to secure a claim on the application of the litigant or on its own initiative is not absolute, as the legislator established a list of subjects of imperious plenary powers in respect of acts, decisions or actions of which securing the claim is not allowed. It is substantiated that such a position of the legislator does not take into account the requirements of the principle of official establishment of all the circumstances in a case, as in case of obvious illegality of acts, decisions or actions of the above-mentioned subjects of imperious plenary powers, the court will not be able to take measures to secure the claim and implement the objectives of the administrative proceedings. It is proved that the legal regulation of the institution of securing an administrative claim was carried out without taking into account the principle of official establishment of all circumstances of a case. It is confirmed by the available examples of abuses by the judges when deciding on securing an administrative claim. The proposals for amendments to Chapter 10 of the Code of the Administrative Proceedings of Ukraine aimed to ensure the procedural behaviour of the court which will meet the specifics of public legal relations are formulated. It is substantiated that the introduction of appropriate amendments to the Code of the Administrative Proceedings of Ukraine will allow courts to take measures to secure an administrative claim taking into account the principle of official establishment of all the circumstances of a case, which will contribute to the efficiency of the administrative proceedings.