The CAS of the Supreme Court noted that according to the provisions of Part 1 of Article 293 of the CAS of Ukraine, participants in the case, as well as persons who did not take part in the case, if the court decided the issue of their rights, freedoms, interests and (or) obligations, have the right appeal the decision of the court of first instance in an appeal procedure, reports the press service of 5AAS.
"According to Part 5 of Article 251 of the Civil Code of Ukraine, to the participants of the case who were not present at the court session, or if the court decision was passed in written proceedings, a copy of the court decision is sent within 2 days from the day it was drawn up in full in in electronic form in accordance with the procedure established by law, if the person has an official email address, or by registered letter with delivery notice – if such an address is not available.
According to Article 295 of the Civil Code of Ukraine, an appeal against a court decision is submitted within 30 days from the day of its announcement. A party to the case who was not served with a full court decision or ruling on the day of its announcement or conclusion has the right to renew the missed deadline for an appeal against the court decision – if the appeal is filed within 30 days from the day the full court decision was delivered to him.
The deadline for an appeal may also be renewed in case of its omission for other valid reasons, except for the cases specified in part 2 of Article 299 of the Civil Code of Ukraine, namely: regardless of the seriousness of the reasons for missing the deadline for an appeal, the court of the appellate instance refuses to open an appeal proceeding in the event that the appeal of the prosecutor, the subject of authority is submitted after 1 year has passed from the date of drafting the full text of the court decision, except for the cases of filing an appeal by the subject of authority in a case about which he was not notified or before participating in to which he was not involved, if the court made a decision about his rights and (or) obligations.
In this case, the decision of the district administrative court was adopted by the court in the order of simplified proceedings without holding a court session, that is, the participants in the case were not informed about the date of consideration of this case. A copy of the court decision dated 02.04.2019 was received by the defendant on 06.30.2021. According to the information contained in the EDRSSR, the relevant decision of the district administrative court dated 02/04/2019 was sent by the court to the indicated register on 03/03/2021 and made public on 03/05/2021. Therefore, the given circumstances are an objective reason for the impossibility of the defendant to find out about the existence of such a decision earlier and to exercise his right to appeal it in a timely manner.
The CAS of the Supreme Court noted that in terms of exercising the right to an appeal by a party to the case, it is important for the court of first instance to comply with the procedure for promulgating and serving (sending) copies of court decisions, defined in Part 5 of Article 251 of the CAS of Ukraine. Non-observance of this procedure by the court of first instance may be grounds for extending the term for an appeal, taking into account other factual circumstances.
The provisions of Part 2 of Article 299 of the Civil Code of Ukraine contain an exception to the application of the consequences of missing the deadline for an appeal by subjects of authority, regardless of the reasons – the submission of an appeal by a subject of authority in a case, the consideration of which he was not notified. However, the appellate court in this case did not pay attention to the fact that the disputed situation falls under the above-mentioned exception and that the complainant's missing the deadline for an appeal in this case was not due to his subjective behavior and did not depend on his willpower," the report said.
Resolution of the Supreme Administrative Court of Ukraine dated February 11, 2022 in case No. 160/7319/18 .
