PROHIBITION OF ONEROUS ANALOGY IN ADMINISTRATIVE PROCEEDINGS: THE CONVENTIONAL DIMENSION AND THE PARADOX OF PROCEDURAL ANALOGY

Abstract

The article is devoted to the prohibition of burdensome analogy in administrative court proceedings and to the criteria governing the admissibility of analogy of procedural law. It is substantiated that analogy operating in favour of the public administration is impermissible, since it effectively constructs a power not provided for by law and thereby infringes part two of Article 19 of the Constitution of Ukraine. A comparative legal analysis is carried out. It is shown that in German doctrine the corresponding construction is known as the prohibition of burdensome analogy (belastende Analogie) and is derived from the principle of the statutory reservation (Vorbehalt des Gesetzes), whereas in Polish doctrine it is formulated as the prohibition of analogy to the detriment of a party. It is established that the Ukrainian model constitutes a statutorily enshrined variant of the same approach, yet framed through the category of powers rather than that of burden, which narrows its scope: a literal reading prohibits the construction of powers but does not expressly prohibit the imposition of an obligation upon a person by analogy. A teleologically extended interpretation is proposed, under which the prohibition covers any application of analogy resulting in a deterioration of the legal position of a private person – the imposition of an additional obligation, the restriction of a right, the application of a sanction, or the narrowing of procedural guarantees. The Convention dimension of the problem is examined. Taking into account the autonomous notion of a "criminal charge" (the Engel criteria, extended to administrative offences in Öztürk), it is demonstrated that the prohibition of analogy operating in favour of holding a person liable is of Convention origin and applies irrespective of the wording of the national provision. Analogy of procedural law is characterised as the most widespread form of analogy, and its typical areas are identified. A functional criterion is formulated for resolving the paradox of judicial analogy: analogy that extends the procedural guarantees of a party to the case is admissible, whereas analogy that creates a new procedural barrier and narrows access to court is not.