Why objections to the opening of appeal proceedings do not work
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
Legislation
UNBA initiatives to implement the Roadmap were supported by international experts
International experts who participated in the inaugural meeting of the Working Group on the implementation of the Roadmap on the rule of law in advocacy and agreed to join it expressed their support for the initiative of the Ukrainian National Bar Association.
Legislation
How will the group responsible for implementing the Roadmap for advocacy operate?
The working group on the implementation of the Roadmap on the rule of law in the area of advocacy will operate at several levels: plenary meetings as a platform for adopting framework decisions, a coordination bureau for compiling documents and calendar control, and thematic subgroups for preparing norms and their justification. International experts will verify the results against European standards and «red lines».
Legislation
Advocacy is a responsible entity, not a critic of reform — V. Gvozdiy
The Roadmap on the Rule of Law is not a basis for restructuring the model of advocacy, but a framework for verifying and improving the already European-oriented system. At the same time, part of the work has already been done, so further progress should be made in the form of coordinated and practical decisions.
Legislation
Vatras on the implementation of the Roadmap: only advocates should create their own destiny
Work on implementing the Roadmap in relation to advocacy should be based on the participation of the professional community itself, and key tasks should be structured in such a way as to avoid mixing processes that differ in content and procedure.
Legislation
Roadmap and advocacy: working group holds first meeting
On January 2, the first organizational meeting of the Working Group on the implementation of the Roadmap on the rule of law in the area of advocacy reform took place. The event was devoted to agreeing on the framework for further work and exchanging the initial positions of the participants.
Self-government
BCU: NACP initiatives regarding the Bar are unconstitutional interference
The Bar Council of Ukraine has condemned the initiatives to reform the Bar proposed by the National Agency on Corruption Prevention as direct, gross and systematic interference by the executive branch in the activities of an independent constitutional institution.
Self-government
UNBA program for implementation of the Roadmap on the rule of law published
In order to ensure the implementation of measures set out in the Roadmap on the Rule of Law, the Bar Council of Ukraine approved a program for its implementation in relation to the reform of advocacy.
Professional Conduct
The results of the CISA cannot be used in disciplinary proceedings against advocates – BCU
Materials obtained through covert investigative (search) activities involving interference in private communications cannot be transferred or used in disciplinary proceedings against advocates. This is because the Code of Criminal Procedure does not allow investigators or prosecutors to use such materials outside of criminal proceedings.
Publications
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
Iryna Vasylyk Advocacy in the proclamation of Independence of Ukraine
Oleksandr DULSKY When we cross the border of the Supreme Anti-Corruption Court, we get into another department of the National Anti-Corruption…