Publication date: 14.05.2024
Renewal of the deadline for an appeal: conclusions of the Supreme Court regarding the application of the rules of procedural law.
In connection with the changes made by the Law of Ukraine of April 27, 2021 No. 1416-IX "On Amendments to Certain Legislative Acts of Ukraine Regarding Ensuring the Phased Implementation of the Unified Judicial Information and Telecommunication System" (hereinafter - Law No. 1416-IX) to the article 18 of the Civil Procedure Code of Ukraine, the participants in the legal process had a question whether the court of first instance should (obliged) to send a copy of the court decision adopted as a result of the proceedings to both the plaintiff and his representative, through whose mediation he, the plaintiff, participated in the legal process ( in particular, appealed to the court with a claim) and from which date the period for an appeal begins.
Law No. 1416-IX entered into force on May 26, 2021 and changed the previously existing concept of notifying the parties to the case and handing them procedural documents of the court on paper media (by means of postal communication), shifting the emphasis to electronic communication with the help of the EUITS functionality, the implementation of which should be carried out step by step
According to the conclusions of the Supreme Court as part of the combined chamber of the Administrative Court of Cassation, expressed in the resolution dated February 8, 2024 in case No. 480/8341/22, a lawyer as a representative (Article 57 of the Civil Code of Ukraine) participates in the legal process on behalf of a person (party or a third party), whose interests he represents, is accordingly endowed with the rights and obligations of the latter (provided that the warrant does not contain any restrictions on the attorney's powers).It is also known that a lawyer as a representative is not and cannot be a participant (party) in a material and legal dispute, nor can he have a personal interest in it; the participation of the lawyer as a representative in the legal process mainly consists in the implementation of the procedural rights and obligations of the person he represents, on behalf of this person and for this person. This also means that the procedural actions/decisions/position of the representative in the legal process create legal consequences precisely for the person on whose behalf he acts, and the latter must also understand this.
The court should not be interested in the relationship between the lawyer and the person whose interests he represents (except for those related to the scope of the lawyer's powers), while the participation of the party in the legal process through his representative (lawyer) - which is the right of the party - allows the court to carry out official procedural communication with this representative, therefore apply to the participant in the case on whose behalf this representative acts, the consequences provided for by the procedural law, if relevant accidental grounds arise.
Taking into account the above considerations, the joint chamber interprets the participation of the plaintiff (as a party to the case) in the legal process through its representative - whose powers are duly confirmed - precisely as the participation of the plaintiff, i.e. "participant in the case".
The choice of a lawyer who will provide professional legal assistance, in particular in the form of representation of interests in court, is the right of a person (plaintiff), but a right that also involves the occurrence of appropriate legal consequences (both of a procedural nature and in a substantive legal dispute submitted for consideration court), primarily for the plaintiff.Ignorance of this does not exempt from the onset of these consequences.
Therefore, in a situation where the plaintiff (as a natural person) does not have an official email address, but the lawyer who represented his interests in court has one, the court, in accordance with the provisions of part five of Article 18 of the Civil Code of Ukraine, sends an electronic copy of the court decision to the lawyer as the plaintiff's representative to the official email address, which, in the sense of the provisions of part seven of Article 251 of the Civil Code of Ukraine, is a proper and sufficient way of serving a court decision on a party to the case, with the date of which the deadline for his appeal by the plaintiff as a "party to the case" can be linked.
Thus, if the party to the case does not have an official e-mail address (registered electronic account), then the court is obliged to send a copy of the court decision to such a person by means of postal communication with a registered mail delivery notice, the date specified in which is the date of delivery paper copy of the court decision. However, in a situation where such a person was represented by a lawyer who has a registered electronic office and received an electronic copy of the court decision through the "Electronic Court" subsystem, then such a date corresponds to the provisions of paragraph 2 of part six of Article 251 of the Civil Code of Ukraine and is the date of delivery of the court decision. In accordance with part seven of Article 251 of the Civil Code of Ukraine, this date is also considered a date
It is worth noting that when deciding on the renewal of the term of appeal, the court must assess the circumstances that served as an obstacle to timely appeal to the court, in relation to the time intervals: from the moment of expiry of the term of appeal established by Article 295 of the Civil Code of Ukraine until the date filing an appeal for the first time; from the moment of return of the first submitted appeal until the date of re-appeal, etc.In the resolutions of July 24, 2023 (case No. 200/3692/21) and September 7, 2023 (case No. 120/3679/22), the Supreme Court issued an opinion according to which the term for an appeal in the event of a repeated appeal may be be renewed if the following conditions are simultaneously met:
- the initial application to the appellate court with an appeal took place within the time limit for an appeal provided by the procedural law;
- the re-submission of the appeal took place within the term of the appeal established by the procedural law, or within a reasonable time after receiving a copy of the relevant court decision on the return of the original appeal, without unjustified delays and unnecessary delays;
- the complainant demonstrated a good faith attitude towards the exercise of his right to appeal and took all possible and dependent measures in order to eliminate the shortcomings of the appeal, which became the basis for the return of the first appeal, and such shortcomings were actually eliminated at the time of the second appeal a complaint;
- it is proven that the return of the previously filed appeals occurred for reasons that did not depend on the person who appealed the court decisions, and which were due to the existence of objective and irresistible circumstances that made it impossible or significantly difficult to apply to the court of appeal in a timely manner, and not could be eliminated by the complainant;
- the presence of such circumstances is confirmed by proper and admissible evidence.In case No. 320/783/23, the decision to leave the appeal without movement was sent only to the plaintiff's electronic account, but not sent to the representative of the plaintiff, who filed a written appeal directly to the court against the decision of the court of first instance, that is, within the time limit provided Article 295 of the Civil Code of Ukraine.
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In the decision of March 26, 2024 in case No. 320/783/23, the Supreme Court indicated that the court should have informed about the rulings in the case by sending them to the electronic office of the plaintiff's representative. There is no information in the case whether the decision was sent to the Electronic office of the lawyer's office and whether this inconsistency affected the contested court decision. In any case, the court had the opportunity to send the decision to the e-mail address of the representative of the plaintiff or to notify by telephone message to the contacts given in the appeal complaint.
In connection with such circumstances of the case, the Supreme Court came to the conclusion that the decision of the appeals court on the refusal to open appeal proceedings is subject to cancellation, since the court violated the rules of procedural law, which resulted in the violation of the complainant's right to access to the court at the stage of the appeal.
Thus, it is necessary to be prudent and responsible in matters of control over the procedural documents sent by the court to the participants in the case in order to avoid situations with missing the deadlines specified by the procedural legislation. Also, compliance with the procedural terms by the participants in the case affects the timeliness of the court's consideration of the case and the receipt of the court's final decision.
