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.
Popular news
Discussion
Why lowering the age of marriage lacks legal logic
Although until 2012 there was a provision in family law that allowed children to marry from the age of 14 under certain circumstances, its return to Ukrainian law would contradict international obligations and the logic of criminal law.
Self-government
A report on Ukrainian advocacy was presented in the European Parliament
Can a shadow report on advocacy replace the political framework of the Roadmap on the rule of law with demands for the restructuring of self-government? Where is the line between accountability and the seizure of institutions? And how can we respond to narratives with data rather than impressions?
Guarantees of the practice of law
Proceedings opened following attack on advocate in Dnipro
The Committee for the protection of advocates' rights and guarantees of legal practice of the UNBA appealed to law enforcement agencies in connection with an advocate's report of an attack while performing his professional duties. The information was entered into the Unified Register of Pre-trial Investigations and a pre-trial investigation was initiated.
Interaction
«With us — to Europe»: Italian advocacy supports UNBA initiatives
On January 30, a meeting was held in Rome between a delegation from the Ukrainian National Bar Association and the National Bar Council of Italy (Consiglio Nazionale Forense, CNF) on the standards and practices of the legal profession and their significance for Ukraine's European integration process.
Interaction
France confirms cooperation with UNBA on reforms in the field of the rule of law
On January 29, a working meeting between representatives of the Ukrainian National Bar Association and the French National Bar Council (Conseil National des Barreaux, CNB) took place in Paris.
Abroad
UNBA office opens in EU capital
To strengthen the institutional presence of the Ukrainian advocacy community at the European level, an office of the Ukrainian National Bar Association has been opened in Brussels (Belgium), which will serve as a permanent platform for dialogue with European partners.
Interaction
UNBA and BRAK discussed European integration priorities and regulation of the profession
On January 26, a meeting was held between representatives of the Ukrainian National Bar Association and the German Federal Bar Association (Bundesrechtsanwaltskammer, BRAK).
Guarantees of the practice of law
The President was urged to sign the law on strengthening guarantees for advocacy activities
The professional community of advocates called on Ukrainian President Volodymyr Zelenskyy to sign Law No. 4547-IX, which strengthens guarantees for advocates' activities, in particular by introducing liability for identifying an advocate with a client.
Publications
Volodymyr Matsko Extradition as a systemic form of rights violations
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