Why objections to the opening of appeal proceedings do not work

Advocacy
12:19 Fri 25.10.24 341 Reviews
Print

In order to improve the efficiency of the process, the Verkhovna Rada is proposed to grant participants in civil and administrative cases the right to file objections to the opening of appeal proceedings before they are opened. However, such an initiative will have no practical value.

This was noted by the Committee of the Ukrainian National Bar Association on Civil Law and Procedure following the analysis of Draft Law No. 12061 of 24.09.2024 «On Amendments to the Civil Procedure Code of Ukraine, the Commercial Procedure Code of Ukraine and the Code of Administrative Procedure of Ukraine regarding certain rights of participants in cases».

Thus, Articles 359 of the Civil Procedure Code and 300 of the Code of Administrative Procedure define the rules for opening appeal proceedings. The Draft proposes to supplement them with the provision that «before the opening of the appeal proceedings, the parties to the case have the right to file an objection to the opening of the appeal proceedings».

The UNBA noted that a similar provision is already contained in Part 2 of Article 262 of the Commercial Procedure Code, but it is declarative and has not been effectively applied and implemented since its introduction.

One of the purposes of granting the parties to the commercial proceedings the right to file objections to the opening of the appeal proceedings was to provide an opportunity to object to the appellant's filing of an appeal, in the absence of the right to appeal the decision to open the appeal proceedings. However, the EPC, while declaring the right to file such objections, does not contain an effective form of exercising this right that would contribute to achieving the ultimate goal (in particular, taking into account the arguments set forth in the objections by the court of appeal when deciding to open or refuse to open the appeal proceedings).

According to the Unified State Register of Court Decisions, the percentage of exercising the right to file objections to the opening of appeal proceedings is less than 1%. In most cases, such objections are limited to setting out the circumstances that are reviewed by the appellate court when considering the case on the merits, and not at the stage of opening the appeal proceedings. Therefore, the appellate courts do not take into account such content of the objection when opening the appeal proceedings, but are guided solely by Articles 260 and 261 of the EPC.

Therefore, even if we assume the effectiveness of filing objections before the opening of the appeal proceedings, it is still necessary to provide an expanded interpretation of the requirements and criteria for the content, preparation and procedure for filing such objections with the court by analogy with Articles 178, 360 of the Code of Civil Procedure.

However, since the provision enshrined in part 2 of Article 262 of the EPC has not been implemented in practice, supplementing the Code of Civil Procedure and the Code of Administrative Procedure with a similar provision will be inappropriate and ineffective.

For full comments and suggestions to the Draft Law No. 12061, please follow the link.

Popular news

A bill implementing the Convention on the Protection of the Professions of Lawyer has been introduced

Legislation

A bill implementing the Convention on the Protection of the Professions of Lawyer has been introduced

The constitutional guarantees of legal aid, defense, and the independence of advocacy cannot be realized without protecting advocates from unwarranted interference in their professional activities, including searches, the seizure of professional materials and the use of criminal procedural mechanisms to exert pressure.

14:08 Mon 05.10.26 185
The CCBE is discussing European justice and issues related to the protection of advocates

Abroad

The CCBE is discussing European justice and issues related to the protection of advocates

Today, October 2, a meeting of the Standing Committee of the Council of Bars and Law Societies of Europe (CCBE) is taking place in Brussels. On the agenda are the protection of the advocate profession, the rule of law, attorney-client privilege, and changes in the European justice system.

14:04 Fri 02.10.26 136
The UNBA presented the key provisions of the future law on advocacy in Brussels

Rule of Law Roadmap

The UNBA presented the key provisions of the future law on advocacy in Brussels

The Ukrainian National Bar Association presented its proposals for the upcoming law on advocacy, aligned with the Rule of Law Roadmap. The presentation covered topics such as access to the profession, self-governance, disciplinary procedures, professional development and guarantees for the practice of advocacy.

20:36 Thu 01.10.26 188
Advocates were taught to voice their complaints without making accusations

Educational events

Advocates were taught to voice their complaints without making accusations

In a difficult conversation, it’s easy to confuse facts with opinions, feelings with accusations, and requests with demands. How can you express dissatisfaction, explain your own needs, and propose a specific solution while still allowing your conversation partner the opportunity to refuse or suggest an alternative?

10:29 Wed 30.09.26 113
Unrestricted access to advocates' accounts poses a risk of client data disclosure — BCU

Guarantees of the practice of law

Unrestricted access to advocates' accounts poses a risk of client data disclosure — BCU

Information regarding transactions in the bank accounts of an advocate, a law firm, or a bar association from which clients can be identified, as well as the fact and subject matter of a request for legal assistance, the purpose of payments, and the amount of the fee constitutes attorney-client privilege. This rule applies regardless of whether the information also constitutes banking information and is in the possession of a bank.

16:47 Sat 26.09.26 107
The contract provides for a video conference, but the court requires in-person appearance: how should an advocate proceed?

Guarantees of the practice of law

The contract provides for a video conference, but the court requires in-person appearance: how should an advocate proceed?

Many advocates today work remotely; therefore, their agreements with clients provide for the provision of legal assistance via videoconferencing. However, this form of work does not, in and of itself, create an unconditional obligation for the court to conduct every hearing via videoconference.

16:25 Sat 26.09.26 109
Independent oversight is necessary before using CISA materials against an advocate – Lidiya Izovitova

Guarantees of the practice of law

Independent oversight is necessary before using CISA materials against an advocate – Lidiya Izovitova

Before the prosecution uses information obtained during covert investigative actions and related to an advocate’s activities, independent procedural oversight must be conducted. It is necessary to determine whether such information is covered by attorney-client privilege and whether it may be disclosed.

15:47 Fri 25.09.26 242
Handing over a bank card should not automatically constitute a crime – UNBA

Legislation

Handing over a bank card should not automatically constitute a crime – UNBA

Criminal liability for transferring a bank card or access to an account should arise only if it is proven that the person knew the card or account would be used as a means to commit an intentional crime. The mere fact that a payment instrument was transferred or that an account was used by a third party is not sufficient.

15:14 Wed 23.09.26 101

Надішліть файл із текстом публікації у форматі *.doc, фотографію за тематикою у розмірі 640х400 та Ваше фото.

Оберіть файл