Court podcasts: court order on leaving statements of claim, appeal/cassation without moving and terms on defect correction during the quarantine
With the judges’ assistances of the Sixth ACA, we are talking about court orders on leaving the appeal without motion:
• types of an appeal defects;
• terms on defect correction and their course, especially during quarantine;
• legislators’ reaction on the quarantine of and expected changes in legislation.
Participants: judges’ assistants Mariia Donyk and Juliia Koliada, court press secretary Olha Shkil.
Olha Shkil, court press secretary: Dear listeners, welcome to the Sixth Administrative Court of Appeal. We continue to record our podcasts about the work of the court.
Today we are going to discuss an actually theme on the isolation period – court orders on leaving statements of claim, appeals/cassations without moving.
In particular, we are talking about the concept of defects in these documents, about the terms, and especially about the terms during quarantine, and generally about issues that somehow relate to such decisions.
Okey, let’s start.
We have prepared a quite long list of questions to discuss and asked Mariia Donyk and Juliia Koliada to explain them.
Juliia, you will be the first. Let's start with introductory notions. Please explain us what the defects are?
Juliia Koliada, judge assistant: Greetings to our listeners. In the Code of Administrative Proceedings of Ukraine there is no definition of the concept of defects. But by the systemic interpretation of the Articles 169, 298 and 332 of the Code we can conclude that statements of claim, appeals/cassations defects are their inconsistency with the requirements that are directly fixed by the rules of the procedural code. In particular, for a statement of claim, these are Articles 160, 161 of the Code; for appeal - 295, 296; for a cassation appeal - 329, 330.
As we are the first instance court, let’s talk about the appeal defects. We can mark four main categories of the defects.
The first category includes defects in a paperwork irregularity. The most typical defects are failure to indicate the details of the parties, lack of requirements' substantiation of a person who submitted an appeal indicating what exactly is the incorrectness or incompleteness of the study of evidence.
Olha Shkil: Juliia, when we talk about reference details, does it mean only address or anything else?
Juliia Koliada: Yes, it can be unspecified addresses, phone numbers, email address, fax as both the plaintiff, defendant, and a third party in the case.
Mariia Donyk: Also an identification code or number. In fact, appeals printed in 8th type, with coffee stains or in draft copies, sometimes come to the court. Of course, it’s a defect in our everyday understanding, but it is not a defect in the understanding of the Code of Administrative Proceedings of Ukraine.
Juliia Koliada: The second and the most common defect of the appeal is related to the payment of a court fee. Namely, the payment of the court fee isn’t in full, to the wrong account, indication of incorrect details on the case or purpose of payment. In addition, parties often don’t attach proper evidence of a difficult financial situation or the availability of benefits to the appellant when submitting the relevant application. The third category is related to appeal’s apps. For example, failure to provide copies of appeal for parties.
If, in addition to the appellant, five more participants take part in the case, however, the appellant added only one copy of the appeal, the court, without excessive formalism, can independently produce a sufficient number of copies.
In addition, there is a practice when an appellant in the appeal refers to many documents at the same time does not provide any of them. At the level of court fees, there is a category related to the failure to provide evidence of respect for missing terms for going to court.
The third part of the Article 298 provides that an appeal remains motionless also in cases where it has been filed after the terms established by the Article 295 of the Code, and the person who filed it does not raise the issue of restoring this period or if the grounds indicated by him in the application are recognized as disrespectful.
Olha Shkil: Juliia, remind please our listeners what does article 295 provide?
Juliia Koliada: 295 provides a term for appeal. An appeal on a court decision is submitted within 30 days, and on a court order - within 15 days from the date of his / her proclamation.
Olha Shkil: Mariia, tell me please if the defects that Juliia mentioned are in the appeal, then who decides, and most importantly, how much time is given for their correction?
Mariia Donyk: The term during which the participant in the case has an opportunity to correct defects must be indicated in the decision on leaving an appeal without movement.
It is determined in different ways and depends primarily on what defects indicated by Julia were discovered.
If the reason for leaving an appeal without a movement is a deadline for appeal, the case participant is given a 10-day period, started from the date of receipt of the relevant decision. The deadline is set directly in the Code.
Olha Shkil: Please tell me, what kind of problem exists with starting a calculation of these 10 days?
Mariia Donyk: Often the parties mistakenly think that the course of this period begins on the day the decision is made. But in fact, it is calculated from the date of receipt of its copy.
If there are other defects (the court fee hasn't been paid or the details of the appeal aren't indicated, for example, the participant’s identification number), the time period for defects’ correction is determined by the court. The Code of Administrative Proceedings of Ukraine sets only certain scopes. This period cannot exceed 10 days from the date of receipt of a copy of the decision to leave an appeal without movement. The Code also establishes a rule according to which the period must be reasonable, that is, sufficient for a procedural action including specific circumstances.
Mariia Donyk: Juliia, what do you pay attention on when determining a reasonable time?
Juliia Koliada: In my case, an approach to each case is individual. I take into account the number of defects in appeal, a personality of the appellant.
In my opinion, a subject of power, a lawyer, a specialist with a higher legal education needs much less time to correct defects, in comparison with a person who independently, without legal assistance, goes to court.
Mariia Donyk: I want to add that on practice the term for defects’ correction established by indicating the event. I mean, in the decision we don’t mark a specific day, for example, May 23. We indicate that the defects must be remedied within 10 days of receiving a copy of the decision. It should also be remembered that the period is considered non-working calendar days.
Olha Shkil: The term is actually okay in order to correct all defects. Moreover, in the decision does not indicate a specific date. But in practice it happens in different ways. What party need to do if the term is not sufficient?
Juliia Koliada: Continuation of the procedural period is regulated by the part 2 of Article 121 of the Code of Administrative Proceedings of Ukraine, according to which the court has established the procedural period may be extended by the court at the request of the participant in the case, filed before the expiration of this period, or at the initiative of the court.
In practice, if, within the time period which setted by the court, a party cannot correct defects of the appeal, then it can appeal to the court with an application to extend the procedural period indicating the reasons for the impossibility of fulfilling the requirements of the decision to leave an appeal without movement.
it is interesting to note that the appellant must make such a statement precisely at the time determined by the court decree to leave an appeal without movement.
This is important, taking into account the requirements of the Article 298 of the Code of Administrative Proceedings of Ukraine, according to which is provided that the issue of returning an appeal to the court of appeal is resolved within 5 days from the date of receipt of an appeal or from the date of expiration of the period for defects’ correction.
This is important in order to avoid premature return of an appeal.
Olha Shkil: As I understand, if an application for an extension of the procedural period is filed after the expiration of the term for defects’ correction, then can a participant rely on it consideration?
Mariia Donyk: In fact, it all depends on the state of the proceedings. If it has been already made a decision to return an appeal or to refuse in opening appeal proceedings, then your application can no longer be considered by the court.
Olha Shkil: Throughout the podcast, I waited for the moment when I could raise the quarantine issue, since quarantine has affected on all of us, of course, and life will not be the same as before. Mariia, tell me, please, did the quarantine affect on the terms of defects’ correction and, if so, how?
Mariia Donyk: Certainly, a procedure of quarantine and restrictive measures related, for example, with the movement of public transport, the new rules of access to the premises or the supply of correspondence, influenced the ability to correct defects within the period which is established by law or by the court.
Of course, the participants in the case have the right to file the application, which Julia told us about. However, the courts understand that the participants in the case couldn’t immediately figure out how they can deliver such an application to the court.
Olha Shkil: Please, tell me how quickly legislators reacted to quarantine?
Mariia Donyk: Here listen. Quarantine period in Ukraine started on March 12, and a law that changed the approach for setting procedural terms during quarantine period entered into force on April 2.
Olha Shkil: Masha, then tell me what is the new approach for setting a term for defects’ correction?
Mariia Donyk: In the final provisions of the Code of Administrative Proceeding of Ukraine were made changes which provide that the time limit sets by the court in its decision cannot be less than the duration of the quarantine associated with preventing the spread of coronavirus disease.
Olha Shkil: So between the introduction of quarantine and changes to the Codes has passed a month. Julia, tell me, in what situation were the courts in this period?
Juliia Koliada: Between March 12 and April 2 of this year, there was such a legal uncertainty, since judges were not legally restricted by quarantine measures until April 2. That is, the issue of extending the term or returning an appeal each judge decided at his discretion.
Olha Shkil: So should we expect new changes to the law?
Juliia Koliada: A draft of legislation №3383 has been already registered according to which it is proposed to set out a paragraph 6 of the final provisions of the Code of Administrative Proceeding of Ukraine in a new version: a court continues or resumes the procedural terms precisely at the request of the participant in a case.
Mariia Donyk: That is, if today, setting the term for defects’ correction, court takes into account quarantine, then potential changes suggest returning to the general rules: The term should be reasonable and not exceed 10 days. The quarantine becomes the basis only for the continuation of an already set term at the request of the participant.
Olha Shkil: So, dear listeners, let's summarize. In fact, there are so many points that we need to remember:
• requirements for a statement of claim, appeal or cassation, the non-compliance of which is the basis for leaving these documents without movement, specified in the following articles: statement of claim is 122, 160, 161; appeal - 295, 296; cassation appeal - 329, 330;
• term for defects’ correction depends on what requirements have been violated; term for defect’s correction begins from the date of getting a decision about leaving an appeal without motion; also count dates as calendar days, not working;
• as for the appellant, he has a right to apply for an extension of the procedural period, in particular, referring to quarantine; by the way, a template for such a request is on the website of the Sixth Administrative Court of Appeal;
• from April 2, the term for defects’ correction cannot be less than the period of quarantine;
Finally, we advise you not to forget to monitor the changes that are introduced into the procedural codes and legislation in general.
For our part, we will post these changes on the our official website.
We hope the podcast has been helpful to you.
Sincerely with you.