Weekly analysis for 22 — 28 September

The Constitutional Court of Ukraine Revives a Soviet-Era Concept of Administrative Law

Event

On 9 September, the Constitutional Court of Ukraine adopted Decision № 10-r(II)/2026 in the case on court fees in administrative offence proceedings.

In its Decision, the Court held that the Law of Ukraine “On Court Fees” does not require the payment of a court fee when challenging decisions imposing administrative penalties before an administrative court (paragraph 8.3). The Constitutional Court also found that, in its judgment of 18 March 2020, the Grand Chamber of the Supreme Court had exceeded its powers by establishing both an obligation to pay a court fee and the amount of that fee in cases challenging decisions imposing administrative penalties (paragraph 9 of the Decision).

The Decision was based on Article 55(2) of the Constitution of Ukraine, which guarantees everyone the right to challenge decisions, actions or omissions of public authorities, local self-government bodies, and their officials in court. The Constitutional Court also interpreted the relevant provisions of the Law of Ukraine “On Court Fees” in a manner consistent with the Constitution.

CPLR’s assessment

The Decision will have a positive impact on individuals held administratively liable, who will no longer be required to pay a court fee when challenging decisions imposing administrative penalties before administrative courts.

However, in our view, the Constitutional Court’s Decision is unsystematic and continues to reflect a Soviet and post-Soviet understanding of administrative law and administrative proceedings.

First, in paragraph 8.1 of the Decision, the Court states that the provisions of the Law of Ukraine “On Court Fees” “do not specifically regulate cases concerning challenges to decisions imposing administrative penalties, namely, they provide neither for separate court fee rates nor for exemptions from the payment of court fees”.

This statement reflects the theory of “jurisdictional proceedings” developed during the Soviet period, which primarily concerned proceedings for imposing administrative liability. Under this approach, jurisdictional proceedings are treated as a distinct type of proceedings, substantially different from other administrative legal relations, including those initiated by private individuals in their dealings with public authorities and those initiated by public authorities themselves, such as inspection proceedings.

Modern legal doctrine and national legislation have abandoned this Soviet theory. According to the modern approach, a single rule governing the payment of court fees applies to the full range of administrative proceedings, most of which are regulated by the Law of Ukraine “On Administrative Procedure” and special laws, as well as to disputes arising from such proceedings and considered by administrative courts under the Code of Administrative Procedure of Ukraine. This rule is established by subparagraph 3 of paragraph 2 of Article 4 of the Law of Ukraine “On Court Fees” and applies to the payment of a court fee when filing an administrative claim with an administrative court, regardless of the type of proceedings.

This uniform approach is also reflected in the current legislation. Paragraph 1 of Article 19 of the Code of Administrative Procedure of Ukraine lists 18 types of proceedings, while Chapter 11 (Articles 264–289-10) sets out approximately 33 types of proceedings. Nevertheless, the Law of Ukraine “On Court Fees” does not provide for any special rules on the amount or procedure for paying court fees for any of these types of proceedings.

Moreover, Article 286 of the Code of Administrative Procedure of Ukraine clearly provides that cases challenging decisions imposing administrative penalties are administrative proceedings. In this context, the Constitutional Court’s reference in paragraph 8.2 of the Decision to the absence of any reference to the Code of Administrative Offences in the explanatory note to the Draft Law “On Court Fees”, despite the note’s reference to the matters subject to court fees under the Commercial Procedure Code, the Civil Procedure Code and the Code of Administrative Procedure of Ukraine, cannot be regarded as a convincing justification for the Court’s conclusion. The absence of a reference to the Code of Administrative Offences in the explanatory note was clearly deliberate, since cases challenging decisions imposing administrative penalties are considered by administrative courts under the Code of Administrative Procedure of Ukraine, rather than the Code of Administrative Offences. In other words, the explanatory note refers only to procedural codes governing court proceedings, whereas the Code of Administrative Offences is not a procedural code governing court proceedings.

Second, in paragraphs 7.1 and 7.2 of the Decision, the Constitutional Court sets out the reasons which, in its view, make the imposition of a court fee impermissible in cases challenging decisions imposing administrative penalties. The Court proceeds on the basis that the State itself initiates the legal situation arising from the imposition of administrative liability, while the individual becomes involved in the proceedings as the recipient of State coercion. The Court considers these cases to differ from other administrative disputes, in which an individual seeks judicial protection of their rights, freedoms or interests by challenging decisions, actions or omissions of public authorities. The Court states that “in such cases, recourse to a court constitutes an expression of the individual’s private autonomy, and the State may impose a court fee on general grounds”.

In our view, however, there is no material difference in the legal nature of these proceedings or in the extent of interference with individuals’ rights compared with other administrative disputes. This is particularly evident in cases concerning challenges to decisions, actions or omissions of a state or private enforcement officer (Article 287 of the Code of Administrative Procedure of Ukraine) and challenges to the application of coercive measures (Article 99 of the Law of Ukraine “On Administrative Procedure”). Such proceedings may concern the seizure of property, prohibitions on certain conduct, orders to refrain from specific actions, the use of physical force, and other coercive measures. It would therefore be incorrect, in our view, to characterise recourse to a court in such cases as an “expression of the individual’s private autonomy”, since the proceedings are initiated exclusively by the State, as are proceedings for imposing administrative liability.

Third, the Constitutional Court failed to take into account that, in addition to “decisions on administrative offences” issued under the Code of Administrative Offences and the Customs Code, there are dozens of areas of legal regulation in which fines are imposed on the basis of administrative acts bearing different names. These include, in particular, tax assessment notices imposing fines (financial penalties) (Article 112 of the Tax Code), decisions imposing fines (Article 75 of the Law of Ukraine “On Enforcement Proceedings”), and decisions in cases concerning offences (Article 12 of the Law of Ukraine “On Liability of Carriers in International Passenger Transport”), etc.

However, according to the Decision, only challenges to decisions on administrative offences will be exempt from the payment of a court fee, whereas a court fee will still have to be paid when challenging analogous decisions imposing other types of fines.

Fourth, the Constitutional Court characterised proceedings for the imposition of administrative penalties under the Code of Administrative Offences as “a separate category distinct from the general categories of cases in administrative proceedings” (paragraph 8.1 of the Decision). In our view, this conclusion is erroneous and results from the Court’s reliance on paragraph 5 of part 2 of Article 4 of the Law of Ukraine “On Court Fees”, which separately establishes the amount of the court fee payable when a court imposes an administrative penalty. 

Neither legal doctrine nor current legislation classifies proceedings governed by the Code of Administrative Offences as administrative court proceedings. On the contrary, subparagraph 3 of paragraph 2 of Article 19 of the Code of Administrative Procedure of Ukraine expressly provides that the jurisdiction of administrative courts does not extend to cases concerning the imposition of administrative penalties, except as provided by the Code itself (that is, cases challenging decisions imposing administrative penalties).

Only a few post-Soviet states, including the Republic of Kazakhstan, have established a system of administrative courts (“administrative justice”) with jurisdiction over cases concerning administrative offences. 

The Constitutional Court also continues to view the procedure for holding an individual administratively liable as an element of “public-authority coercion” (paragraph 7.1 of the Decision). In our view, this approach perpetuates the Soviet tradition of a broad understanding of coercion, which was based on the prevailing conception of law at the time.

By contrast, the European approach takes a narrower view of “coercion”, viewing it as merely one possible element or stage in the enforcement of administrative acts. This approach is gradually being reflected in Ukrainian legislation. For example, Article 42 of the Law of Ukraine “On the National Police” defines the following “coercive measures”: physical force, the use of 14 types of special means, and the use of firearms.

The consequences of this Constitutional Court decision are not limited to its adverse impact on the doctrine of administrative law and administrative proceedings. It may also impose an additional burden on administrative courts by removing court fees as a mechanism that serves both compensatory and regulatory functions.