THE PROCEDURAL LEGAL CAPACITY OF CIVIL SERVANTS IN PUBLIC LAW DISPUTES: THEORETICAL AND LEGAL ASPECT

Abstract

The article examines the procedural status of civil servants as participants in public law disputes concerning civil service. It is noted that the practice of administrative proceedings reveals significant gaps in understanding the administrative procedural status of civil servants, as this category has not been legally defined, which results in courts underestimating the main requirements contained in civil servants’ applications to administrative courts and consequently generates conflicts in the system of service relations. The author substantiates that the procedural status of a civil servant is a complex legal construct that includes administrative procedural legal capacity, procedural rights, procedural obligations, and procedural guarantees, while the procedural status is not identical to the substantive legal status, although closely related to it. Special attention is paid to the issue of temporal limitations on the right to apply to an administrative court, particularly the problem of legal uncertainty regarding the starting point for calculating the one-month period for applying to the court in cases concerning civil service. To eliminate the identified conflict between part five of Article 122 of the Code of Administrative Procedure of Ukraine and Article 11 of the Law of Ukraine “On Civil Service”, it is proposed: firstly, to set forth part five of Article 122 of the Code of Administrative Procedure of Ukraine in a new wording that determines the starting point for calculating the period from the date of receiving the decision on the results of the complaint review in accordance with civil service legislation; secondly, to supplement part four of Article 11 of the Law of Ukraine “On Civil Service” with a provision stating that a civil servant’s appeal to the head of the civil service constitutes a mandatory pre-trial procedure for dispute resolution. According to the author, such amendments will ensure legal certainty regarding the time limits for civil servants’ applications to administrative courts.