ILLEGAL DISMISSAL FROM THE PUBLIC SERVICE AS A GROUND FOR APPEALING TO THE ADMINISTRATIVE COURT
Authors: Kivalo L. V. 
Published: November 2022

The article analyzes the illegal dismissal of a public official from his position as a basis for applying for  protection to an administrative court. It has been  established that public service is an attribute of any  civilized state. It is necessary for the functioning of  society in a normal (that is, effective, planned, calm  and productive) mode, because most of the issues  that are decided by public administration bodies require close communication with society, its  representatives and individual individuals. Attention  is drawn to the fact that the quality and efficiency of public administration depends not only on the level  of legal support for the activities of state bodies and  local self-government bodies, but also on the filling  of these bodies with professional personnel. Therefore, the legislation of Ukraine establishes,  firstly, the grounds for the dismissal of a public  official from his position, secondly, the procedure for legalization of the decision on dismissal, thirdly, the  requirements for the evidence base of the  employee’s incompetence or dishonesty; fourthly, the mechanism for appeal by a public servant  against the decision to dismiss him. It is noted that  the facts of constant appeals of persons to the administrative court on the issue of their illegal  dismissal from public service positions indicate that this issue, being a subject of labor law, was almost not investigated within the scope of the science of  administrative law and process. It was found that a  public servant can appeal the decision to dismiss him in court if he considers such a decision to be illegal.  In this regard, there is a need to define in the science of administrative law the criteria for distinguishing  between “legal” and “illegal” decisions to dismiss an employee from a public service position. It is noted  that the legality of the decision to dismiss a public  servant is ensured by the provisions of the national  legislation on public service, while the illegality of  such a decision is derived intellectually based on the analysis of the provisions of the law. It has been  proven that most of the grounds for disciplinary  responsibility of civil servants in the form of  dismissal from office are characterized by the  presence of the following shortcomings: 1) are  presented in the Law “On Civil Service” as a complex of numerous smaller grounds (for example, violation  of the Oath of a civil servant); 2) formulated in  violation of the doctrine on the composition of the  offense, and therefore require interpretation both by official structures and by scientists; 3) take into  account internal state factors and ignore external  state factors affecting the illegal behavior of a civil servant; 4) are used in state administration as means of manipulation and development of a totalitarian  system of governance; 5) do not take into account  the principle of proportionality of the size of the  sanction and the social harmfulness of the illegal act. All this can be the basis for numerous appeals of persons to the administrative court to challenge the decision on their illegal dismissal from the position  of a civil servant.