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.
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