The material was prepared by Tetiana Rabko, lawyer, advisor at METINVEST BUSINESS SERVICE LLC Metinvest Group, deputy chair of the NAU Committee on Electronic Justice and Cybersecurity of Legal Practice.
In the ruling of the Supreme Court, composed of judges of the First Judicial Chamber of the Cassation Civil Court, dated January 29, 2025, in case No. 752/23008/23 (https://surl.li/myadqy), it was stated that the court was obliged to upload the materials of the civil case to the E-COURTS system. However, the district court not only did not upload the case materials to the E-COURTS system, but also did not respond to the respondent’s request, which evidently hindered PARTY_1 from familiarizing themselves with the case materials and submitting a response to the claim, which constitutes a significant violation of their rights and obligations under the norms of the Civil Procedure Code of Ukraine, as well as the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
📌Case Circumstances
By the ruling of the Kyiv Court of Appeal dated October 14, 2024, the appeal of the representative of PARTY_1 – PARTY_2 against the decision of the Holosiivskyi District Court of Kyiv dated April 4, 2024, was left without consideration and a ten-day period was granted from the date of receipt of a copy of the said ruling to rectify the identified deficiencies, namely, the applicant was suggested to submit a motion for the reinstatement of the missed procedural deadline for appealing the decision of the court of first instance with justification of the date of receipt or non-receipt of a copy of the decision being appealed.
On October 22, 2024, the representative of PARTY_1 – PARTY_2, by creating a document in the ‘Electronic Court’ system, applied to the Kyiv Court of Appeal with a request to rectify the deficiencies of the appeal.
By the ruling of the Kyiv Court of Appeal dated October 28, 2024, in the opening of the appellate proceedings on the appeal of the representative of PARTY_1 – PARTY_2 against the decision of the Holosiivskyi District Court of Kyiv dated April 4, 2024, the appeal was dismissed on the grounds specified in paragraph 4 of the first part of Article 358 of the Civil Procedure Code of Ukraine.
The appealed ruling of the appellate court is motivated by the fact that the requirements of the ruling of the Kyiv Court of Appeal dated October 14, 2024, were not fully complied with by the applicant, as no evidence of the seriousness of the reasons for missing the deadline for filing an appeal was provided, as PARTY_1 was in evacuation abroad throughout the period of consideration of the case from November 1, 2023, to April 4, 2024, and could not receive a copy of the court’s decision, effectively familiarizing themselves with the case materials only on June 5, 2024, which is groundless, as according to the extract-response No. 4268714 on the existence of a registered Electronic Cabinet of E-COURTS, it is stated that the individual PARTY_1 (ID/ID Number) has had a registered electronic cabinet in the Electronic Court E-COURTS subsystem since February 9, 2022, where on April 4, 2024, at 23:54:43, the decision of the Holosiivskyi District Court of Kyiv dated April 4, 2024, was received.
By the decision of the High Council of Justice dated August 17, 2021, No. 1845/0/15-21, the Regulation on the Procedure for the Functioning of Individual Subsystems (Modules) of E-COURTS (hereinafter – the Regulation) was approved, which defines the procedure for the functioning of individual subsystems (modules) of E-COURTS in courts and justice system bodies, including the subsystems ‘Electronic Cabinet,’ ‘Electronic Court,’ and video conferencing subsystem; the procedure for taking procedural actions in electronic form using such subsystems; features of using other software in courts and justice system bodies during the transitional period before the start of E-COURTS operation with all subsystems (modules) (point 2 of the Regulation).
In accordance with the provisions of paragraph 37 of the Regulation, the ‘Electronic Court’ subsystem provides the possibility of automatically sending case materials in electronic form to the Electronic Cabinets of the parties to the case and their representatives.
Paragraph 124 of the Regulation provides that upon receipt of a request from a party to the case to familiarize themselves with the case materials or specific documents in electronic form through the Electronic Court system, the court receiving such a request ensures the scanning of the relevant case materials in paper form available in that court and attaches them to the electronic court case materials.
The court established that long before the court of first instance issued a decision, PARTY_1, who has a registered Electronic Cabinet in E-COURTS for access to the materials of the civil case where they are a respondent, on December 11, 2023, applied to the district court with a request to familiarize themselves with the case materials in electronic form (p. 38).
According to the above requirements of the Law of Ukraine ‘On Judicial System and Status of Judges,’ the norms of the Civil Procedure Code of Ukraine, and the Regulation, the district court was obliged to upload the materials of the civil case to the E-COURTS system. However, the district court not only did not upload the case materials to the E-COURTS system, but also did not respond to the respondent’s request, which evidently hindered PARTY_1 from familiarizing themselves with the case materials and submitting a response to the claim, which constitutes a significant violation of their rights and obligations under the norms of the Civil Procedure Code of Ukraine, as well as the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
By the ruling of October 14, 2024, the Court of Appeal, leaving the appeal of PARTY_1’s representative without consideration, completely rewrote the above provisions of the Civil Procedure Code of Ukraine and the Regulation regarding the court’s obligation, in case of a request from a party to the case to familiarize themselves with the case materials or specific documents in electronic form through the Electronic Court system, to ensure the scanning of the relevant case materials in paper form available in such court and attach them to the electronic court case materials; however, it considered the applicant’s arguments for reinstating the deadline for appealing the court’s decision groundless (p. 86-91).
Furthermore, despite PARTY_1’s application for rectifying the deficiencies of the appeal, where they explained that they did not receive the case materials, the statement of claim, etc. from the court (p. 97-98), by the ruling of October 28, 2024, the Court of Appeal refused to open the appellate proceedings due to the unjustified omission of the deadline for appealing without valid reasons (p. 107-113). Essentially, by repeating the same norms of the Civil Procedure Code of Ukraine and the Regulation, the Court of Appeal only proceeded from the fact that PARTY_1 was delivered a copy of the decision being appealed on April 4, 2024, at 23:45.
In violation of the requirements of the Civil Procedure Code of Ukraine regarding the indication of reasons for rejecting PARTY_1’s arguments about the impossibility of familiarizing themselves with the case materials and timely appealing the court’s decision, the Court of Appeal did not respond to these arguments of the applicant, did not specify whether the mentioned obligation hindered PARTY_1 from providing a proper justification for the arguments of the appeal.
The Supreme Court reiterates that a person who has registered an electronic cabinet in E-COURTS or its separate subsystem (module) that provides document exchange, the court, upon their request, sends any documents in cases in which such person is involved exclusively in electronic form by sending them to the electronic cabinet of such person.
The Supreme Court considers premature the conclusions of the Court of Appeal regarding PARTY_1’s missed deadline for appeal without valid reasons, as the court did not assess all the applicant’s arguments in light of the above legal norms and factual circumstances of the case, did not evaluate the applicant’s arguments
regarding the possibility of justifying the appeal without timely familiarization with the case materials.
The appellate instance court failed to comply with the requirements of civil procedural law, therefore, the appealed ruling of the appellate court cannot be considered lawful and justified and is subject to cancellation with the referral of the case for further consideration to the appellate court from the stage of deciding on the opening of the appellate proceedings.