According to part 2 article 55 of the Ukrainian Constitution, everyone is guaranteed the right to appeal in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers. the Decision of the constitutional court of Ukraine of 25.12.1997 G. stated that part 1 of article 55 of the Constitution of Ukraine should be understood so that everyone is guaranteed the protection of rights and freedoms in court. The court cannot refuse justice, if a citizen of Ukraine, foreigner, stateless person believe that their rights and freedoms have been violated or are being violated, have created or are creating obstacles for their realization or other violation of rights and freedoms.
Since the entity is a legal form of realization of rights and interests of the people, article 55 of the Constitution of Ukraine applies to legal persons.
In part 2 of article 124 of the Constitution of Ukraine stipulates that the jurisdiction of the courts extends to all legal relations that arise in the state. The constitutional Court of Ukraine explained that this part must be construed as meaning that the jurisdiction of the courts, that is, their authority to resolve disputes on the law and other legal issues that apply to all legal relations that arise in the state. Therefore, to solve the question of ownership of the dispute to the jurisdiction of the court must establish the existence of a dispute between participants of legal relations, i.e. relations, settled law.
According to part 2 article 19 of the Constitution of Ukraine, the bodies of state power and bodies of local self-government, their officials are obliged to act only on the basis, within powers and in the way provided for by the Constitution and laws of Ukraine. Thus, all the activities of the authorities has the legal form, but because the relationship with their participation are legal. The procedure of registration of results of documentary checks on compliance with tax, currency and other legislation approved by the order of State tax administration of Ukraine dated 22.12.2010 № 984 (hereinafter - the Order). In accordance with paragraph 3 of the Order act - an official document confirming the fact of carrying out of documentary check of financial and economic activity of the taxpayer and is a carrier of the evidence on revealed violations of requirements of tax, currency and other legislation, control over the observance of which is vested in the state tax service.
In paragraph 6 of the section And Order provided, how is the conclusion of the act of documentary checks, in particular, it is noted that the description of the identified verification violations of the tax, currency and other legislation, control over the observance of which is vested in the state tax service, with reference to sub-paragraphs, paragraphs, articles, legal acts or the General conclusion about the absence of such violations.
In accordance with clause 6 of section II of the Order, the facts of the revealed violations of tax, currency and other legislation, control over compliance with which is entrusted to the tax authorities, are set out in the act documentary verification clearly, objectively and fully, with reference to primary or other documents that are recorded in the accounting and tax account, confirming the presence of these facts.
Thus, the actions of the tax authority regarding the presentation of the findings in the inspection report are subject to regulatory act. Failure to comply with these regulations by a state tax authority may give rise to a dispute.
According to part 2 of article 4 of the ticket office of the administrative courts ' jurisdiction extends to all public law disputes, except for disputes for which the law established a procedure of a judicial decision. Public law dispute is a dispute in which at least one of the parties is a body of Executive power, bodies of local self-government, their officials or official person or other entity who performs administrative authority on the basis of legislation, including on the exercise of delegated authority. Because of the State tax Inspectorate is the subject of authority, which are implemented in the legal relationship with taxpayers, the dispute about the legality of its decisions, actions or inactivity is public law.
According to part 1 article 17 of the APC of Ukraine, the jurisdiction of administrative courts extends to public law disputes, including disputes natural or legal persons with the subject of authority to the appeal of its decisions (normative legal acts or legal acts of individual action), actions or inactions. In part 2 of the same article provides that administrative courts may be appealed any decisions, actions or inaction of state authorities, except in cases where such decisions, actions or inaction by the Constitution or laws of Ukraine established a procedure of judicial proceedings.
The use in this standard the word "any" gives reason to interpret it as such, which excludes limited interpretation. That is, the object of the appeal may be any actions of the authorities. This interpretation is consistent with the principle of the rule of law, as understood in the practice of the European court of human rights.
In accordance with article 6 of the Convention about protection of human rights and fundamental freedoms of 04.11.1950 G. (hereinafter - the Convention) everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law, which will decide the controversy concerning the rights and obligations of a civil nature or will establish the reasonableness of any charges against him of criminal charges. According to the established practice of the European Court of human rights procedural safeguards as defined in article 6 in all fairness, transparency and urgency, made no sense in the absence of protection of the prerequisites for the observance of those guarantees, namely, access to justice. The court found this as an integral aspect of the guarantees defined in article 6, referring to the principle of the rule of law and for the avoidance of arbitrary power, which are the basis of most of the Convention. Consequently, part 1 of article 6 of the Convention guarantees everyone the right to appeal to the court any claim in respect of their civil rights and obligations (decision in the case of Golder V. the United Kingdom (Golder v. The United Kingdom) (1975), section 28-36). Restricting access to court may not be compatible with section 1 of article 6, if it does not put a legitimate purpose and if there is no reasonable proportional relationship between the measures taken and the intended purpose (decision in the case of Waite and Kennedy V. Germany (Waite and Kennedy v. Germany) (1999), paragraph 59).
In addition, according to article 13 of the Convention everyone whose rights and freedoms recognized in this Convention are violated shall have an effective remedy before a state organ, even if such violation was committed by persons who exercise their official powers. The effectiveness of legal protection lies in its ability to restore (update) the violated right or interest, to resolve the controversy or uncertainty in legal relations. From this rule it follows that the appeal to the court, as the most effective means of legal protection, cannot be restricted and the denial of justice is not consistent with this principle.
In section 3 the Decision of the constitutional Court of Ukraine dated 07.05.2002, indicates that judicial protection of the rights and freedoms of man and citizen should be considered as a kind of state protection for the rights and freedoms of man and citizen. And that the state assumes such responsibility in accordance with part two of article 55 of the Constitution of Ukraine. The right to judicial protection and suggests specific guarantee effective redress through the implementation of justice. The lack of such opportunities restricted this right. And the meaning of the second paragraph of article 64 of the Constitution, the right to judicial protection may not be restricted even under conditions of martial law or state of emergency.
In accordance with article 6 of the APC of Ukraine, every person has the right in the manner prescribed by this Code, to apply to the administrative court if it considers that a decision, action or omission the subject of authority violated his rights, freedoms or interests. Thus, the basis for the appeal to the court is only a subjective assumption of the plaintiff on the infringement of his rights or interests.
Not prohibited by law to go to court with the requirement about a recognition illegal actions, which consist in the formulation of the conclusions of the inspection report. The fact that the inspection report or its conclusions decisions are not the subject of authority, does not mean that such may not infringe on the rights or interests of the plaintiff, and therefore does not exclude their judicial protection.
Note also that the results of verification of the STI often makes the tax notification-decision, which the taxpayer (claimant) could challenge. The plaintiff has no other way to protect the violated, in his view, rights and interests, but to challenge the actions of the tax authority. In terms of the effect of non-tax notification-decision, subject to judicial control should be the action of the tax authority. Another understanding would lead to the violation of the constitutional provision on the jurisdiction of the court in all legal relations.
Thus, between the parties is a public legal dispute about the legality of actions of the state tax authority in the design of audit results and reflect them in the act. The plaintiff believes its interests have been violated and wish to protect them. Decision of the dispute not referred by law to the competence of other courts, but because the matter is within the jurisdiction of the administrative court and must be considered on its merits