The Supreme Court upheld a lawyer in digitalized reality

Guaranteeing the right to judicial protection and prohibiting its restrictions, especially in the context of digitalization and martial law, requires the court to support various ways of interacting with the parties to the process. This also applies to the methods of signing an order, which cannot be restricted.

The panel of judges of the Administrative Court of Cassation of the Supreme Court issued a decision in case No. 420/35964/23, where the court left the claim without consideration due to improper confirmation of the lawyer's powers. The decision of 12.12.2024 was published in the Unified State Register of Court Decisions.

The statement of claim on behalf of the client was filed through the Electronic Court system. It was signed by the lawyer's digital signature. The application was accompanied by an order for legal aid, which was not generated in the system, but uploaded as a pdf attachment to the application. And in this order, in the column «Lawyer» there was no personal signature.

The court referred to the provisions of Article 26 of the Law «On the Bar and Practice of Law» and clause 12 of the Regulation on the Order for Legal Aid, approved by the decision of the Bar Council of Ukraine No. 41 dated 12.04.2019, and concluded that the absence of one of the mandatory requisites in the order, namely the signature of the lawyer, indicates a procedural defect in the relevant document. In turn, the court concluded, this excludes the possibility of relying on the warrant as a document that properly certifies the lawyer's authority to represent the interests of a person in such a situation.

The Court of Appeal agreed with this position. However, the cassation court noted that the Regulation on the warrant was amended by the decision of the RAU No. 36 dated 08.06.2024. In particular, clause 9 was amended to read as follows: «A warrant issued by an attorney-at-law acting individually shall be signed by the attorney-at-law (in person or with an electronic signature) and certified by the attorney's seal (if any)».

Clause 12 of the Regulation also contains a provision according to which a warrant is considered to be signed by an advocate (head of a law firm/attorneys' office) if the column «Advocate» contains either a handwritten (physical) signature; or the warrant is certified by an electronic signature; or a document to which the warrant is an attachment is certified by an electronic signature.

According to the case file, when applying to the court, the lawyer certified both the statement of claim and the warrant attached to it with his own digital signature. At the same time, the court of first instance first opened the proceedings, but later decided to check whether the person who signed the statement of claim was authorized to do so. And according to the panel of judges of the Supreme Court, the materials available in the case at that time fully provided the court of first instance with the opportunity to identify the person who signed the statement of claim and verify his or her authority to represent.

The high judges also recalled that in similar circumstances, the Court of Cassation in its decision of 06.11. 2024 in case No. 483/346/24 emphasized that guaranteeing everyone the right to judicial protection and prohibiting restrictions on such a right, in particular in the context of intensive digitalization of society, full-scale armed aggression of the Russian Federation against Ukraine and the introduction of martial law throughout Ukraine, encourage assistance in ensuring pluralism of ways of interaction between courts and litigants, ways of signing a warrant, and not their restriction by courts.

According to the rules of clause 2, part 1, Article 240 of the Code of Administrative Procedure, the court shall dismiss the claim without consideration if the statement of claim is not signed or is signed by a person who is not authorized to sign it or by a person whose official position is not specified.

Taking into account the above, the CAC concluded that at the time the court of first instance decided to leave the claim without consideration, the court did not have any legal grounds for this for the reasons given by the court of first instance.

On these grounds, the court granted the cassation appeal, overturning the decisions of the lower courts. The case was remanded for further consideration.