Should the court's discretion to extend the deadlines be limited?
The assessment of the validity of the reasons for missing a procedural deadline is within the exclusive discretion of the court that decides the relevant procedural issue. Today, the presence or absence of valid reasons for missing a procedural deadline is assessed by the court's internal conviction.
This was pointed out by the Committee of the Ukrainian National Bar Association on Administrative Law and Procedure following the analysis of the draft Law No. 12072 dated 27.09.2024 «On Amendments to Article 363 of the Code of Administrative Procedure of Ukraine regarding the renewal by the court of the missed deadline for filing an application for review of a court decision due to newly discovered or exceptional circumstances».
The document proposes to clarify the rules on the procedure and deadline for filing an application for review of a court decision due to newly discovered or exceptional circumstances. Specifically, it would oblige the court assessing the validity of the grounds for missing the deadline to assess the circumstances that served as an obstacle to timely filing an application with the court in connection with:
- the duration of the period that the person missed;
- behavior of the person during this period;
- actions taken by such a person and whether these actions are related to preparations for going to court.
The authors of the legislative initiative note that this position is reflected in the decision of the Administrative Court of Cassation dated January 18, 2024 in case No. 520/10732/21 and should be enshrined in law.
The UNBA noted that the application of the criterion of good cause is provided for by the Code of Administrative Procedure for all procedural terms, except when the Code establishes the impossibility of such renewal.
For example, this criterion is applied when renewing the missed deadline for submitting evidence, filing an administrative claim, appeal and cassation appeal, assessing the grounds for failure to appear in court, and when resolving other issues where the legislator limits the performance of a certain procedural action to a certain procedural time limit.
Instead, none of the provisions of the CAP contains a mandatory list of circumstances to be assessed by the court when deciding whether to renew a certain missed procedural term. This reflects the position of the legislator, according to which the assessment of the validity of the reasons for a particular missed procedural term is within the exclusive discretion of the court.
At the same time, with the adoption of amendments to the procedural codes and the Law «On the Judiciary and the Status of Judges» in 2018, the obligation of all persons to take into account the law enforcement opinions of the Supreme Court was introduced.
Thus, when deciding on the renewal of the missed procedural term specified in part 1 of Article 361 of the CAP, the administrative court is already obliged to be guided by the said opinion of the Supreme Court.
The full comments and suggestions of the UNBA to the Draft Law No. 12072 can be found at the link.
Popular news
European integration
The UNBA presented the CCBE with an overview of legal reform and challenges
Reform of the legal profession, Ukraine’s European integration commitments, guarantees of the profession’s independence, and practices of bar self-governance in European countries — these issues were the subject of discussion at the Council of Bars and Law Societies of Europe (CCBE).
Rule of Law Roadmap
The UNBA is compiling the findings of the subgroups regarding the implementation of the Rule of Law Roadmap
Today, May 28, the Ukrainian National Bar Association hosted a meeting of the Coordination Bureau of the Working Group on the implementation of the Rule of Law Roadmap regarding the reform of the advocacy profession. Following a series of meetings by thematic subgroups, the work is now moving to the stage of consolidating proposals and preparing a coordinated package of recommendations.
Discussion
UNBA discussed removing barriers at border crossings for families with children with disabilities
Families of children with disabilities face additional requirements when traveling abroad, particularly regarding consular registration. What is happening and what changes are needed to remove these obstacles were discussed during the roundtable «Borders without barriers for families of children with disabilities».
Discussion
New rules, old problems: the UNBA discussed the work of the ETAIDF and MMC
The reform of medical-social assessment and military medical commissions has changed procedures but has not resolved practical issues. People face situations where documents are not issued, decisions are based on technicalities, assessments are delayed, and they struggle to demonstrate their actual health status in specific life situations.
Discussion
Co-parenting shouldn't be reduced to a 50/50 formula, — roundtable discussion
Following a divorce, joint custody can serve as a mechanism for ensuring equal parental rights. However, this model requires clear criteria and cannot be applied automatically without taking into account the child’s age, the level of conflict between the parents, the risk of violence, and the feasibility of enforcing the future decision.
Legislation
Penalties for errors in military registration require clear rules, – UNBA
The liability of officials for violations of military registration rules must be legally defined, proportionate, and effectively enforceable. Otherwise, the new fines will not protect citizens from registration errors but will create additional risks.
European integration
Lidiya Izovitova: In the context of European integration reforms, advocacy is a partner of the state, not a target of reform
The war has significantly altered the working conditions for advocates, while European integration has presented the profession with new institutional challenges. The ongoing negotiation process covers issues such as the rule of law, judicial independence, fundamental rights, justice, freedom and security.
Guarantees of the practice of law
The Verkhovna Rada discussed the next steps for ratifying the Convention on the Protection of the Professions of Lawyer
The Verkhovna Rada Committee on legal policy held a working meeting to prepare for the ratification of the Convention for the Protection of the Profession of Lawyer. The meeting was attended by members of parliament, representatives of the Office of the President, the Ministry of Justice, the Ministry of Foreign Affairs and the Ukrainian National Bar Association.
Publications
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
Volodymyr Matsko Extradition as a systemic form of rights violations
Victoria Yakusha, Law and Business The anti-corruption vertical cannot «take care» of the Bar as an institution, - acting head of the HQDCB
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection
Sergiy Vylkov Our judicial system is so built that courts do not trust advocates
