In the ruling of the Supreme Court as part of the panel of judges of the Cassation Administrative Court dated April 25, 2025, in case No. 320/24040/24 (https://surl.li/jnsymq), it was noted that the appellate court erroneously failed to consider that the order to assign a lawyer was dated December 3, 2024, the day preceding the court hearing, which in fact precluded the possibility of the company to ensure the presence of other representatives at the court hearing. This indicates that the appellate court, in resolving the dispute, did not comply with the requirements of Article 2 of the Code of Administrative Court Procedure of Ukraine regarding fair judicial review, leading to the case being heard in the absence of the plaintiff’s representative in violation of the general principles of administrative justice.
Case Circumstances
By the ruling of the Sixth Appellate Administrative Court dated December 4, 2024, the decision of the court of first instance was overturned, and a new decision was made, denying the claim.
Disagreeing with the decision of the appellate court, the plaintiff appealed to the Supreme Court with a cassation complaint.
In justifying the cassation complaint, the plaintiff, among other things, pointed out that the appellate court committed a procedural violation by not allowing the authorized representative of the Plaintiff to attend the court hearing (the first and only one), which took place without his presence on December 4, 2024, at 11:30 a.m., and as a result, led to the non-examination of evidence in the materials of this case and the adoption of decisions that do not correspond to reality and factual circumstances. The plaintiff indicated that on December 3, 2024, the law firm’s lawyer prepared and sent a request to postpone the hearing to another date due to a business trip to Lviv for negotiations from December 4, 2024, to December 5, 2024, which was confirmed by a copy of the relevant order. In response to the appellate complaint and the request to postpone the hearing, the plaintiff requested not to proceed with the hearing in his absence. The plaintiff also noted that in the place where the negotiations were held in Lviv from 10:00 a.m. to 12:00 p.m., the electricity was cut off (confirmed by the schedules of the National Energy Company “Ukrenergo”), so there was no technical possibility to connect to the “Electronic Court” subsystem to participate in the court hearing on December 4, 2024, at 11:30 a.m. via video conference.
Reviewing the challenged court decision within the arguments and requirements of the cassation complaint and checking the compliance of the appellate court with the norms of procedural law, the Supreme Court concluded that the cassation complaint should be partially upheld for the following reasons.
The case materials indicate that the hearing in the appellate court was scheduled for an open court session on December 4, 2024, at 11:30 a.m.
By the ruling of November 19, 2024, the appellate court granted the plaintiff’s representative’s motion to participate in the court hearing via video conference outside the courtroom using their own technical means.
On December 3, 2024, the plaintiff’s representative, a lawyer, applied to the appellate court with a request to postpone the hearing due to her business trip to Lviv.
According to the ruling of the Sixth Appellate Administrative Court dated December 4, 2024, the judicial panel, after consultation, deemed the reasons for the absence of the plaintiff’s representative disrespectful and continued the case hearing, issuing the challenged decision on that day.
In the cassation complaint, the plaintiff emphasized that his request to postpone the hearing in the appellate procedure was unjustifiably denied.
The Supreme Court has repeatedly in its decisions, including the rulings of April 27, 2020, in case No. 802/562/18-a, of June 21, 2018, in case No. 826/4504/17, pointed out that the authority to postpone a court hearing based on a motion submitted by the participants in the judicial process is discretionary.
However, the fact that the court’s relevant powers are discretionary does not exempt them from scrutiny regarding the appropriateness of applying the court’s discretion in the cassation review of the case for compliance with the goals and tasks facing the administrative court and in terms of the conformity of such actions with the rule of law as a restraining factor.
Any legislative provision establishing certain limits of discretion must be assessed for compliance with the fundamental requirements of the rule of law, particularly regarding the proportionality to the goal for which the law provides for such restriction or which resulted from the court’s exercise of discretion.
In response to the appellate complaint, the law firm requested a hearing with its representative’s participation and submitted a motion to postpone the hearing, citing, in its opinion, valid reasons for doing so.
The appellate court, considering the case without the participation of the law firm’s representative and deeming the reasons for the absence at the court hearing disrespectful, effectively violated the Plaintiff’s right to access to justice.
In the Court’s opinion, the appellate court erroneously failed to consider that the order to assign a lawyer was dated December 3, 2024, the day preceding the court hearing, which in fact precluded the possibility of the company to ensure the presence of other representatives at the court hearing.
This indicates that the appellate court, in resolving the dispute, did not comply with the requirements of Article 2 of the Code of Administrative Court Procedure of Ukraine regarding fair judicial review, leading to the case being heard in the absence of the plaintiff’s representative in violation of the general principles of administrative justice; the discretionary powers to decide on the postponement of a court hearing were used by the appellate court without observing the principle of proportionality.
In accordance with Article 129 of the Constitution of Ukraine, the main principles of judicial proceedings include, among other things, the adversarial nature of the parties and the freedom of the parties to provide their evidence to the court and to prove its persuasiveness.
The principle of adversarial proceedings encompasses, among other things, the ability to comment on the evidence and explanations presented in the proper form and within the established time.
The European Court of Human Rights has established stable approaches to understanding the principle of adversarial proceedings as one of the basic guarantees of the right to a fair trial, which should and, to some extent, must be taken into account by the courts of Ukraine when considering a case and making decisions.
The principle of adversarial proceedings, together with the principle of equality, is one of the fundamental elements of the concept of the “right to a fair trial” guaranteed by the Convention.
In view of the above, the Court concluded that the appellate court, in resolving the case without the plaintiff’s representative, who expressed a desire to be present at the court hearing, in order to ensure the right of the parties to participate in the judicial process, should have taken procedural actions to ensure a fair judicial review.
The Court concluded that the appellate court violated the norms of procedural law and the plaintiff’s right to a fair appellate review of the case, as well as the principles of adversarial proceedings, the official clarification of all circumstances in the case. This constitutes a mandatory reason for overturning the court decision and referring the case for a new review to the appellate court.