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
Guarantees of the practice of law
Police to investigate the NACP's attempts to reform advocacy
The Office of the Prosecutor General has opened a criminal investigation into alleged abuse of power by employees of the National Agency for Corruption Prevention.
Interaction
The UNBA and the Council of Judges of Ukraine are expanding their professional dialogue
On April 24, a working meeting was held between the President of the UNBA, BCU Lidiya Izovitova and the Chairman of the Council of Judges of Ukraine Vitaliy Salikhov. Topics discussed included formats for cooperation between bar and judicial self-governing bodies, the development of joint ethical standards, and the formation of a Selection Committee for the recruitment of members of the High Council of Justice.
Legal defence of military personnel
The model for legal assistance to veterans was discussed at the UNBA
A working meeting was held at the Ukrainian National Bar Association, during which representatives of the advocacy profession, the Ministry of Veterans Affairs of Ukraine and a foreign expert discussed approaches to providing legal aid to veterans, the role of the advocacy profession in this system, and the experience of other countries.
Guarantees of the practice of law
The CJU has endorsed guarantees of the legal profession’s independence and has proposed a meeting with the BCU
The Council of Judges of Ukraine has responded to a letter from the Bar Council of Ukraine regarding the inadmissibility of the High Council of Justice granting immunity to a member of the High Council of Justice — a privilege not provided for by law — as well as regarding violations of constitutional guarantees of the independence of the legal profession and attorney-client privilege.
Interaction
The UNBA and the Ministry of Veterans are expanding their cooperation
War veterans, their family members, as well as the family members of fallen Defenders of Ukraine are to receive improved access to professional legal assistance and additional opportunities for independent legal protection.
Legislation
Advocates have warned that the draft Labor Code would curtail workers' protections
Certain provisions of the draft Labor Code of Ukraine regarding collective labor disputes undermine labor protections and do not comply with constitutional and international standards.
Appointment
The UNBA will develop professional standards for advocates
The Ukrainian National Bar Association has established a Committee on Standards of the Legal Profession, whose work will focus on developing uniform approaches to the professional duties of advocates, competency requirements, continuing education, and the protection of attorney-client privilege.
Legal defence of military personnel
Representatives from the Ministry of Veterans Affairs and the UNBA discussed veterans' access to justice
On April 3, a working meeting was held at the Ministry of Veterans Affairs of Ukraine with representatives of the Ukrainian National Bar Association, dedicated to improving the effectiveness of legal protection for war veterans and their families.
Publications
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
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