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.