Separate Rulings in Administrative Proceedings: Grounds, Limits, and Their Role in Ensuring Effective Judicial Protection (A Review of Supreme Court Case Law, 2019–2026)

Abstract

A separate ruling in administrative proceedings is an autonomous procedural instrument enabling a court to respond to violations of law and to the causes and conditions that contributed to their occurrence. Where duly reasoned, it is aimed at bringing the violation to an end, preventing its recurrence, remedying deficiencies in the activities of a public authority, and initiating consideration of the issue of liability by the competent body. It combines individual protection with the safeguarding of legality in public administration.

The effectiveness of an administrative court is determined not only by the lawfulness of its judgment on the merits of a dispute. Judicial protection loses its practical significance where the violation persists, a final judgment is implemented only formally or is not implemented at all, and the public authority continues a practice incompatible with Article 19(2) of the Constitution of Ukraine. A separate ruling enables the court to respond to the institutional cause of a violation rather than merely remedying an isolated manifestation of it.

At the same time, the court’s active role is subject to clearly defined procedural limits. A separate ruling does not replace the judgment on the merits, create a new subject matter of the dispute, substitute proceedings for determining liability, or rest on assumptions. It must concern facts that have been conclusively established, identify the specific legal provision that has been breached, and explain the substance of the violation. While protecting the public interest, the court must guarantee access to a court, appellate review, and due process.

The source base of this Review comprises seven judgments of the Supreme Court. The cases are grouped under the following themes: the legal nature of a separate ruling; responses to systemic violations; enforcement of judicial decisions; the limits and proportionality of judicial responses; and appellate review and the prevention of procedural formalism.

The subject of separate rulings has been consistently examined by the author in previous academic, practice-oriented, and teaching materials. In 2022, the principal focus was placed on the legal nature of a separate ruling as a type of procedural judicial decision and on its significance in determining whether a civil servant should incur disciplinary liability. Subsequent works considered a separate ruling as one of the mechanisms for guaranteeing effective judicial protection; as a component of a broader system of additional procedural mechanisms for ensuring consistency of case-law, enforcement of judicial decisions, and protection of the public interest; and as a means by which a court may respond to violations identified during the examination of a case but falling outside the immediate subject matter of the dispute. This Review continues the author’s work by systematising the legal positions of the Supreme Court for 2019–2026 and refining the criteria governing the lawfulness, proportionality, and procedural admissibility of a separate ruling.

Keywords: separate ruling; administrative proceedings; judicial supervision; public authority; enforcement of a judicial decision; right to appellate review; public interest; effective judicial protection.

1. Legal Nature, Purpose, and Mandatory Elements of a Separate Ruling

The case-law of the Supreme Court proceeds from the premise that a separate ruling is a judicial decision serving a specific procedural purpose. It addresses not the dispute as such, but a violation of law identified in the course of its examination, together with the causes and conditions that contributed to its occurrence. The judgment on the merits determines the rights and obligations of the parties within the scope of the claim, whereas a separate ruling performs ancillary, preventive, and corrective functions. It may be addressed to a participant in the proceedings, another public authority, a professional self-governing body, or another person competent to remedy the violation or consider the issue of liability.

In case no. 822/1832/18 [1], the Supreme Court formulated a fundamental approach to the relationship between judicial discretion and the duty to respond. As a general rule, a court has the right, rather than an unconditional obligation, to issue a separate ruling. Nevertheless, the special status of the judiciary within the system of institutions responsible for maintaining the legal order entails a duty to respond to manifest, intentional, or systemic violations of law. Judicial discretion therefore concerns the assessment of the particular circumstances and the choice of an appropriate form of response, but it cannot justify judicial inaction in the face of established systemic unlawfulness.

Case no. 822/1832/18 [1] also distinguished between establishing a violation and legally classifying the relevant conduct. A court may identify aspects of conduct that require examination, but it should not itself declare an official guilty of a disciplinary or criminal offence. The determination of personal liability falls within the remit of the competent body and must be carried out in accordance with the applicable procedure. This approach combines an appropriate judicial response to unlawful conduct in the exercise of public authority with the individual’s right to a fair procedure.

The substantive requirements applicable to a separate ruling were systematised in case no. 120/4975/22 [4]. The judicial decision must identify the specific law or other normative legal act, the relevant article, paragraph, or other provision, and explain precisely how that provision was breached. A general reference to bad faith, improper organisation of work, or conduct inconsistent with the objectives of judicial proceedings is insufficient. A separate ruling must enable its addressee to understand which violation has been established, which of its causes require remediation, and why the measure chosen by the court is necessary.

In case no. 320/8487/24 [6], this standard was supplemented by the requirement of proportionality. A separate ruling may be issued where the relevant circumstances: have been established without the need for additional proof beyond the evidence examined in the case; disclose an actual or potential threat to the legal order, public interests, or individual rights; and have been identified during the court’s direct examination of the merits of the dispute.

The court must explain the connection between the established violation and the measure adopted in response. The more significant the possible impact of a separate ruling on the competence of a public authority, a person’s professional reputation, or the determination of liability, the more stringent the requirements applicable to its evidential basis and reasoning.

A properly issued separate ruling must be based on established facts, identify the specific legal provision breached, explain the substance of the violation, designate a competent addressee, and specify a proportionate measure capable of being implemented.

2. Responding to Systemic Violations by Public Administration and Protecting the Public Interest

In case no. 822/1832/18 [1], citizens challenged the handling of their land applications by means of letters instead of the adoption of decisions required by law. At the same time, a territorial body of the State Service of Ukraine for Geodesy, Cartography and Cadastre granted other persons permits in respect of land sought by the applicants. In addition to allowing the claims in part, the first-instance court issued a separate ruling concerning the improper performance of official duties by the head of the territorial authority and forwarded it to the central authority for appropriate action. The Supreme Court held that this judicial response was justified.

The legal significance of case no. 822/1832/18 [1] lies in the fact that the separate ruling was not aimed solely at restoring the rights of the individual applicants. It addressed the organisation of the exercise of public authority, which had created a risk of unequal treatment, inconsistent management of a public resource, and repetition of similar violations affecting other persons. In the field of land administration, the formal substitution of a legally required decision with a letter makes judicial challenge more difficult, conceals the actual reasons for refusal, and weakens the accountability of the administrative authority. A judicial response directed at the causes of such a practice protects the broader public interest in the transparent and consistent application of the law.

A similar relationship between individual and public interests can be seen in case no. 120/4975/22 [4]. A body of the Social Protection Fund for Persons with Disabilities sought to recover a substantial sum by way of statutory administrative-economic sanctions, but the courts dismissed the claim. The appellate court issued a separate ruling drawing the attention of the Fund’s central body and the head of its territorial branch to the need to prevent similar violations and to consider whether the responsible officials should incur disciplinary liability.

In case no. 120/4975/22 [4], the Supreme Court held that notifying the competent authority of established violations and initiating an examination of the actions of the responsible officials generally fell within the scope of Article 249 of the Code of Administrative Proceedings of Ukraine. A public authority that imposes financial sanctions and initiates judicial proceedings must act professionally, in good faith, and with due regard to the Supreme Court’s conclusions concerning the application of the relevant legal provisions. The unfounded use of public and procedural powers generates costs for the defendant, places an additional burden on the judicial system, and creates a risk of arbitrary state coercion.

At the same time, in case no. 120/4975/22 [4], the Supreme Court amended the reasoning of the separate ruling by deleting findings that the lodging of the appeal constituted an abuse of procedural rights and was intended to cause unjustified delay or obstruct the enforcement of the judicial decision. The constitutional right to appellate review cannot be restricted merely because the court disagrees with the appellant’s arguments. A court may assess whether particular procedural actions have been taken in bad faith, but it cannot presume an abuse solely because the legal position is weak or because settled case-law already exists. This limitation protects both private persons and public authorities from the use of a separate ruling as an indirect sanction for exercising the right of appeal.

A comparison of cases nos. 822/1832/18 [1] and 120/4975/22 [4] demonstrates that a judicial response is justified where it addresses a specifically established organisational problem or a problem in the application of the law, but becomes excessive where it encompasses lawful procedural conduct or effectively determines liability outside the applicable procedure.

3. A Separate Ruling within the Mechanism for Enforcing Judicial Decisions

The binding force of a judicial decision is a constitutional principle of adjudication. This principle is of particular importance in public-law cases in which the judgment debtor is a public authority. Failure by such an authority to comply with a final judicial decision means not only that the infringement of an individual right continues, but also that the binding nature of judicial supervision over public administration is denied.

Article 383 of the Code of Administrative Proceedings of Ukraine entitles a claimant in whose favour a judicial decision has been given to apply for a declaration that decisions, actions, or omissions of the public authority acting as the defendant, undertaken in the course of implementing that decision, are unlawful, or that the authority has infringed the claimant’s rights as confirmed by the judicial decision

In case no. 752/5917/17 [2], a body of the Pension Fund effectively failed to comply with a judgment requiring the recalculation of a pension. The appellate court issued a separate ruling concerning violations of statutory and constitutional requirements and ordered the authority to report on the measures taken. The Supreme Court upheld that ruling. Its position was based on the principle that a judicial decision must be implemented in accordance with its substance and that a public authority cannot refuse to comply on the basis of its own assessment of the expediency or possible consequences of the pension recalculation.

Case no. 752/5917/17 [2] confirms that, in the context of enforcement, a separate ruling performs both restorative and institutional functions. It should compel the authority not merely to respond formally to an individual’s application, but to bring its conduct into conformity with the binding judicial direction. For the pensioner, this guarantees the practical realisation of the right to social protection. For society, it reinforces confidence in the judiciary and the principle that the State and the individual are equally subject to the law.

In case no. 560/6242/22 [7], the dispute concerned the implementation of a judgment requiring the indexation of a pension and payment of the indexed amount. The Pension Fund body relied on the fact that it had performed a recalculation, but failed to provide a comprehensible calculation of the indexation or evidence that the amounts due had actually been paid. The appellate court issued a separate ruling requiring the authority to take measures to implement the judgment and report on the outcome within one month. The Supreme Court agreed that merely recording a calculation, without evidence that the amounts due had actually been paid, did not demonstrate proper compliance with the judgment.

The significance of case no. 560/6242/22 [7] also lies in its definition of the limits of the judgment debtor’s powers. At the enforcement stage, a public authority may not determine the dispute anew, alter the substance of the obligation established by the court, or replace it with a different method of implementation. Where a judgment requires indexation to be calculated according to a specified legal mechanism and the resulting amount to be paid, proper implementation requires a verifiable calculation and the actual receipt of the funds by the individual. In such circumstances, a one-month period for reporting to the court ensures supervision but does not create a new substantive obligation for the authority.

The procedural accessibility of the mechanism under Article 383 of the Code of Administrative Proceedings of Ukraine was considered in case no. 400/3687/20 [3]. The first-instance court dismissed an individual’s application for a declaration that a decision adopted by a Pension Fund body in purported implementation of a judicial decision was unlawful. The appellate court refused to open appellate proceedings on the ground that the Code did not expressly provide for a separate appeal against such an order. The Supreme Court rejected this purely literal interpretation.

In case no. 400/3687/20 [3], the Supreme Court took into account that, where an application is allowed, the court issues a separate ruling that the public authority is entitled to appeal. Denying the individual the right to appeal against a refusal to exercise judicial supervision would create procedural asymmetry: the public authority could defend itself against a separate ruling, whereas the judgment creditor would have no access to review of a decision leaving that person without an effective remedy against improper implementation. The Supreme Court applied the constitutional guarantees of judicial protection and appellate review and remitted the case for further consideration.

Taken together, cases nos. 752/5917/17 [2], 400/3687/20 [3], and 560/6242/22 [7] establish the following approach: a judicial decision must be implemented in accordance with its substance; the individual must have access to a specialised mechanism of judicial supervision; a refusal to apply that mechanism must be subject to appellate review; and a finding that a public authority’s decisions, actions, or omissions at the enforcement stage are unlawful may result in the issuance of a separate ruling and the setting of a time limit for reporting on the measures taken.

4. Limits of a Separate Ruling: Subject Matter of the Dispute, Facts Established Beyond Dispute, and Proportionality

The active role of an administrative court does not confer an unlimited power to assess every deficiency reflected in the case file. The limits applicable to a separate ruling are determined by the subject matter of the dispute, the scope of the evidence examined, the competence of the addressee, and the nature of the ruling’s possible legal and practical consequences. Exceeding those limits may breach the principles of adversarial proceedings, legal certainty, and the proper allocation of public powers, as well as the right of a person to be heard in relation to facts and legal allegations that were not included within the subject matter of the judicial proceedings.

In case no. 320/8487/24 [6], the claimant challenged provisions of a normative legal act governing the permit system. While upholding the dismissal of the claim, the appellate court issued a separate ruling drawing the attention of the Minister of Internal Affairs of Ukraine and the Head of the National Police of Ukraine to violations that, in its view, had occurred during inspections of a firearms shop and shooting range. However, the lawfulness of the specific inspections, inspection reports, sealing of the premises, and requirements concerning licensing documents did not form part of the subject matter of the claim and had not been examined in full.

The Supreme Court quashed the separate ruling in case no. 320/8487/24 [6]. In practice, the ruling restricted the exercise of the police powers prescribed by law in the field of firearms control on the basis of findings made outside the scope of the case. This consequence was particularly significant under martial law, since the control of items subject to restrictions in civil circulation is directly connected with public safety. The protection of freedom of enterprise does not eliminate the public interest in the proper functioning of the permit system, and the balance between those interests must be determined in proceedings with an appropriately defined subject matter and scope of proof.

Case no. 320/8487/24 [6] demonstrates that the public interest must be taken into account both when deciding whether to issue a separate ruling and when reviewing its lawfulness and justification. A response adopted without due process must not weaken lawful supervisory mechanisms or create uncertainty concerning the competence of a public authority. The principle of proportionality requires an assessment of both the purpose and the practical consequences of the judicial decision.

The limits of a judicial response are also illustrated by case no. 120/4975/22 [4]. The Supreme Court distinguished between established deficiencies in the activities of the public authority and the lodging of the appeal itself. The former could properly form the subject of a separate ruling; the latter constituted the exercise of a constitutional guarantee. This distinction prevents judicial authority from being used to discourage participants from lodging lawful appeals, even where their arguments are ultimately found to be unfounded.

A separate ruling must remain directly connected with the particular judicial proceedings. It cannot compensate for the absence of a properly formulated claim, the necessary evidence, or the full range of persons whose participation is required. Where other legal relationships need to be examined, the court may notify the competent body only to the extent of facts conclusively established in the proceedings; it may not predetermine the lawfulness of the conduct concerned or the liability of any person.

5. Appellate Review of a Separate Ruling and the Prohibition of Excessive Formalism

A separate ruling may affect individual rights, professional reputation, the competence of a public authority, and the subsequent determination of liability. The right to appellate review of such a ruling must therefore be practical and effective. Procedural time limits promote legal certainty, but their application must not become a mechanical barrier to access to a court, particularly where a person submits specific evidence of circumstances that objectively impeded the timely lodging of an appeal.

In case no. 420/9728/23 [5], the first-instance court issued a separate ruling notifying the qualification and disciplinary body of the Bar of a possible breach by an advocate of the applicable incompatibility requirements. The appellate court refused to open proceedings because the appeal had been lodged out of time, taking the view that the separate ruling had been delivered through the Electronic Court system. The advocate referred to a technical malfunction and submitted screenshots from the electronic account which, in the advocate’s view, confirmed that the document had not been available there.

In case no. 420/9728/23 [5], the Supreme Court did not determine in advance whether the reasons for missing the time limit were valid. It nevertheless held that the appellate court had failed properly to assess the evidence and arguments submitted. The order refusing to open appellate proceedings was quashed, and the case was remitted for further consideration. This approach combines the requirement to comply with procedural time limits in good faith with the court’s duty to examine the objective circumstances on which the person relies.

The significance of case no. 420/9728/23 [5] extends beyond the field of electronic justice. Since the separate ruling could have provided grounds for disciplinary proceedings against the advocate, a refusal to review it required particularly careful reasoning. A technical indication that a document has been delivered cannot be assessed in isolation where evidence submitted by the person casts doubt on whether the document was actually received.

Together with case no. 400/3687/20 [3], this position establishes a general standard of access to appellate review. In case no. 400/3687/20 [3], the Supreme Court removed normative formalism that denied the very existence of a right of appeal. In case no. 420/9728/23 [5], it remedied evidential formalism under which technical information had been accepted without assessing the person’s objections and evidence. In both cases, the effectiveness of administrative justice lay in opening the possibility of full appellate review rather than predetermining its outcome.

CONCLUSIONS

1. A separate ruling is an autonomous procedural mechanism for safeguarding legality in administrative proceedings. It supplements the judgment on the merits by responding to established violations and to the causes and conditions that contributed to a breach of law, but it neither alters the subject matter of the dispute nor replaces the procedure for determining personal liability. Its proper application combines the restoration of an individual right with the elimination of the causes and conditions that may lead to similar violations within public administration.

2. The court’s power to issue a separate ruling effectively assumes the nature of a legal duty where manifest, intentional, or systemic violations are established. This duty arises from the objectives of administrative justice and the special status of the judiciary within the mechanism for supervising public authority. The judicial response must be directed at eliminating specifically established causes and conditions that contributed to the violation of law and cannot be confined to general warnings.

3. A separate ruling is an effective procedural mechanism for securing the implementation of a judicial decision. A public authority may not report compliance merely as a formality, determine the dispute anew, or alter the substance of the judicial direction. Judicial supervision must enable verification that the judicial decision has actually been implemented, and the individual must be entitled to appellate review of an order dismissing an application submitted under Article 383 of the Code of Administrative Proceedings of Ukraine.

4. Protection of the public interest through a separate ruling requires compliance with the principle of proportionality. A court may respond only to facts conclusively established in the case and connected with the subject matter of the proceedings. It must take into account the consequences of its ruling for the competence of the public authority, the rights of the participants, professional activities, and the legal order. The socially significant purpose of a separate ruling does not exempt the court from compliance with the grounds and procedure for issuing such a ruling prescribed by the Code of Administrative Proceedings of Ukraine.

5. The lodging of an appeal against a judicial decision cannot in itself be characterised as an abuse of procedural rights. Such a finding is permissible only where the court has established circumstances demonstrating the use of a procedural right in bad faith and for a purpose incompatible with the objectives of administrative justice. A separate ruling cannot be based solely on the fact that a participant in the proceedings has exercised the right of appeal. At the same time, access to appellate review of the separate ruling itself must be practical and effective, without excessive formalism in the interpretation of procedural rules or the assessment of evidence, and with proper consideration being given to objective reasons for missing a procedural time limit.

6. The case-law examined in this Review establishes a balanced model of an effective administrative court. The court must exercise its statutory powers to respond to manifest, intentional, or systemic violations of law, eliminate the causes of such violations, and secure the implementation of its own decisions. At the same time, it must respect the limits of the subject matter of the dispute, the rules of evidence, the right to be heard, and the constitutional guarantees of appeal. It is precisely this approach that promotes legality, confidence in the administration of justice, and the effective protection of constitutional rights.

TRANSPARENCY STATEMENT ON THE USE OF ARTIFICIAL INTELLIGENCE

In preparing this Review, artificial intelligence tools were used as auxiliary instruments for structural editing, linguistic and stylistic refinement, verification of the logical coherence of the presentation, and the formulation of alternative versions of individual passages. Under the GAIDeT (Generative AI Delegation Taxonomy) approach [Additional Literature and the Author’s Materials, no. 5], such use was assistive in nature and did not extend to determining the research concept, the legal assessment of sources, or the formulation of the final conclusions.

The research concept, legal interpretation of the sources, assessment of the case-law, academic conclusions, and final version of the text are attributable to the author. All outputs obtained with the assistance of artificial intelligence tools were verified, critically evaluated, and accepted or rejected by the author.

AUTHOR’S NOTE

This Review is an original information and analytical work authored independently and does not constitute an official review or an official position of the Supreme Court.

The source base of the Review comprises judgments delivered by panels of the Cassation Administrative Court within the Supreme Court in cases in which the author acted as judge-rapporteur. This criterion determined the scope of the materials selected. Accordingly, the Review does not claim to provide an exhaustive account of the entire case-law of the Supreme Court concerning the application of the institution of a separate ruling. The relevant judgments are collegiate judicial decisions, whereas the systematisation of the case-law, the assessment of its practical and societal significance, and the final conclusions are the author’s own.

The generalisations presented reflect the legal approaches of the Supreme Court within the scope of cassation review in the relevant cases and are not a substitute for consulting the full texts of the judicial decisions. The assessment of their practical significance for constitutional rights, the public interest, and the effectiveness of administrative justice represents the author’s own synthesis.