Prepared by Tetiana Rabko, lawyer, advisor at LLC “METINVEST BUSINESS SERVICE” Metinvest Group, deputy chair of the NAU Committee on Electronic Justice and Cybersecurity of Legal Practice
In the decision of the Supreme Court as part of the panel of judges of the Cassation Administrative Court dated May 2, 2025, in case No. 420/16769/24 (https://surl.li/hehafy), it was noted that although the appeal was sent and signed by another representative, its content and function as a notification of the plaintiff’s intentions by the defendant remained unchanged. Due to the technical limitations of the ECTS system, a document that is identical in content can be accepted as proper compliance with the court’s requirements for notification, even if it is not formally a “copy” of the original document.
Case Circumstances
The appellate court, returning the appeal of the Main Department of the Pension Fund of Ukraine in the Odesa region, proceeded from the fact that the appellant did not rectify the defect identified in the ruling on leaving the appeal without action dated October 3, 2024, namely the need to provide evidence of sending a copy of the appeal filed on October 2, 2024, to the plaintiff.
The appellate court considered that the sending on October 14, 2024, through the ECTS subsystem of a document signed by another representative was not proper evidence of sending a copy of the original appeal.
However, the Supreme Court considers such a conclusion of the appellate court premature, excessively formalistic, and unjustifiably depriving the subject of the right to judicial protection.
In the cassation appeal, the appellant explains that sending a copy of the originally filed appeal through the ECTS subsystem was technically impossible without specifying the taxpayer identification code of the plaintiff, which was not known at the time of the initial submission. After receiving this information (in the format of a series and passport number linked to the plaintiff’s electronic account) and in order to comply with the appellate court’s ruling, the appellant re-formulated the text of the appeal in the ECTS and sent it to the plaintiff. The appellant states that the content of the appeal filed on October 14, 2024, fully corresponds to the text of the appeal filed on October 2, 2024.
The Supreme Court compared the content of the appeals filed on October 2, 2024, and October 14, 2024, and found them to be identical in scope, structure, presentation of arguments, legal norms cited, and list of attached documents. The difference in the date of formation and the signatory did not affect the essence of the document.
The requirement of paragraph 2 of Part Five of Article 296 of the Code of Administrative Procedure of Ukraine regarding the sending of a “copy of the appeal” to other participants in the case should be interpreted functionally, taking into account the purpose – to inform the other party of the content of the filed appeal. The re-formation of the appeal in the ECTS, which did not change its content and was necessitated by the need to use the taxpayer identification code to address the document, essentially fulfills the function of a copy necessary for informing the other party.
The Supreme Court notes that the main purpose of the requirement to send a copy of the appeal to other participants in the case is to ensure their right to be informed about the filing of the appeal and its content to exercise their procedural rights, including the right to submit a response.
The purpose of the requirement to send a copy of the appeal is to inform other participants in the case about the filing of the appeal, not to strictly reproduce the form of the document regardless of its content or technical accessibility. In this case, this goal was achieved.
In this case, the plaintiff received through their electronic account in the ECTS a document that in content is an appeal of the Main Department of the Pension Fund of Ukraine in the Odesa region against the decision of the Odesa District Administrative Court dated September 13, 2024. The fact that this document was technically re-formed in the ECTS system and signed by another authorized representative of the appellant (whose authority was confirmed by attached documents) cannot be considered a violation of the plaintiff’s rights or evidence of non-compliance with the court’s requirements for informing the plaintiff of the content of the appeal.
It is worth noting that procedural law does not contain provisions prohibiting the signing of documents by different representatives of one party if they have the necessary authority to do so.
Therefore, the panel of judges considers that although the submitted appeal was signed by another representative, its content and function as a notification of the plaintiff’s intentions by the defendant remained unchanged. Due to the technical limitations of the ECTS system, a document that is identical in content can be accepted as proper compliance with the court’s requirements for notification, even if it is not formally a “copy” of the original document.
The appellate court’s reference to the fact that the provided document is “another appeal” is formal, as the court did not analyze the identity of the content of the original and re-sent appeals.
Taking into account the possible technical features of the ECTS subsystem operation that could objectively complicate the sending of the original file, and the fact that the appellant took steps to inform the plaintiff by sending an identical content document through the official electronic communication channel (ECTS), the Supreme Court believes that the appellant acted in good faith and intended to rectify the defects of the appeal.
To confirm the appellant’s good faith procedural behavior in this case, the Court considers that the appellant independently identified the technical reason for the inability to address the appeal to the plaintiff, established the necessary identification data, re-formed a document identical in content, and sent it to the plaintiff’s electronic account without undue delay. These actions indicate not an evasion of duty but an active willingness to fulfill it in an accessible way.
The Supreme Court proceeds from the fact that the procedural requirement to send a copy of the appeal should be assessed not only formally but also functionally.
The Court also takes into account that the appellant had objective reasons not to use alternative methods of sending a copy of the appeal (in paper form), as the ECTS subsystem is a priority and mandatory communication channel between participants, and the plaintiff actively used this system. In the absence of a prohibition on re-forming the appeal in the ECTS and considering the promptness of the appellant’s actions, such a method of notification is sufficient and acceptable.
At the same time, the plaintiff, having received information through the ECTS “Electronic Court” subsystem about the filing by the Main Department of the Pension Fund of Ukraine in the Odesa region of applications to rectify defects along with a re-formed appeal (with the plaintiff’s taxpayer identification code – KM_______ specified in the text of the appeal), was not deprived of the right to appeal to the appellate court to provide access to the electronic case to familiarize themselves with the content of all documents submitted in the case.
Considering the above, the Supreme Court notes that in this case the respondent: proved real technical obstacles in the ECTS operation beyond their control; acted in good faith and took all possible measures to comply with the court’s requirements by alternative means; provided a document whose content is identical to the original; such actions did not harm the rights of other participants in the case (in particular, did not deprive the plaintiff of the opportunity to exercise their procedural rights).
In preparing the case for cassation review, the Court also requested the electronic case from the appellate court.
According to the information available in the electronic case, the electronic copy of the appeal arrived in the account of PERSON_1 automatically through the ECTS “Electronic Court” subsystem on October 2, 2024, at 17:30, the day it was filed by the Main Department of the Pension Fund of Ukraine in the Odesa region to the appellate court.
However, the appellate court did not establish the above circumstances.
Therefore, the return of the appeal under such circumstances is excessive formalism and an unjustified restriction of the appellant’s right to access justice and appellate review of the case.
Under these circumstances, the panel of judges agrees with the arguments of the cassation appeal regarding the court’s admission of excessive formalism by the appellate court, which, by leaving the appeal without action in the ruling of October 3, 2024, due to the appellant’s failure to comply with the requirements of paragraph two of the ninth part of Article 44 of the Code of Administrative Procedure of Ukraine, and by returning the appeal in the ruling of October 24, 2024, due to the failure to rectify the defects regarding the submission of evidence specified by this norm, applied it in this case without achieving the goal for which it was intended, resulting in a violation of the appellant’s right to appellate review of the court decision.