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Court podcasts: representation and self-representation

Participants: Sixth ACA judge Andrii Kuchma, courtroom secretaries Daria Surkova and Yuliia Korol, court press secretary Olha Shkil. 
 
 

Olha Shkil, court press secretary: Dear listeners, you are greeted by the Sixth Administrative Court of Appeal. Today we will deviate a little from our tradition, as the questions to the judge will be asked by the courtroom secretaries Daria Surkova and Yuliia Korol.

Daria Surkova, courtroom secretary: Congratulations to our listeners!

Yuliia Korol, courtroom secretary: I also greet our listeners!

Daria Surkova: Today we will talk to the judge Andrii Kuchma about the delimitation of such concepts as: representation, self-representation, of course we will talk about changes to the Constitution of Ukraine that took place in 2016, what is the current situation in view of these changes and whether the right to go to court personally.

Yuliia Korol: We will also talk about the difference between the representation of individuals and legal entities and subjects of power. So, let's get started.

Daria Surkova: Mr. Andrii, let's start with the topic of the representation. How can a person be involved in a case?

Andrii Kuchma, Sixth ACA judge: Greetings to our listeners. Representation by its nature is an organizational legal relationship, the content of which is the authority of one person (representative) to act on behalf of another person, which arises from the contract, law, act of a public authority. In addition, the representation is the activity of the representative aimed at exercising the powers granted to him. The content of the relationship of representation is the powers without which its cannot exist. Powers are understood as a system of two subjective rights of a representative, one of which is absolute, the other - relative. The absolute right of the representative includes the possibility to perform certain actions on behalf and in the interests of the person, and the relative right is that the representative has the right to expect that all legal consequences created by his actions will arise only for the person he represents, and not for the representative himself. In general, there are two types of representation: legal and voluntary.

The first type does not depend on the will of the party represented. The law stipulates that the interests of certain categories of persons must be represented by another representative party. These categories, in particular, include: minors, incapacitated or partially incapacitated persons, missing persons.

Voluntary representation may be carried out by a person who has a duly executed power of attorney. If the defense is provided by a lawyer, he or she must have a warrant or contract for legal assistance, respectively.

Daria Surkova: Since 2016, the Constitution of Ukraine has been amended regarding the representation. Despite the fact that 2016 is far behind, this topic is still relevant. What changes have taken place?

Andrii Kuchma: The main change is still the composition of the representatives. In 2016, the legislator recognized that representation should be carried out professionally. Be sure to be a professional, be sure to be specific individuals, that is, lawyers or a prosecutor. In principle, according to a certain legal burden, these are identical persons, as they are specialists in the field of law, have the appropriate licenses, ie they have passed a certain state certification. The state authorized and provided the opportunity to practice law. He is a self-employed person and has the right to practice law only. And then, in June 2016, amended the Constitution and established that from January 1, 2017 in the Supreme Court, from January 1, 2018 in the courts of appeal and courts of first instance from January 1, 2019 representation is carried out exclusively by lawyers or prosecutors. That is, as of January 1, 2020, lawyers or prosecutors should actually participate in court hearings of all parts of the judiciary. That is, from January 1, we received the fact that, in fact, the institution of representation of public authorities and local self-government remained at the same level as it was in 2016. Representatives, powers of attorney - and began to build a new mechanism, the so-called self-representation, when the representative is endowed with the full powers of the head of the body he represents. For this purpose, a certain practice was developed by the Supreme Court and certain changes took place, regulations and instructions were developed, and persons were entered in the state register as persons who have the right to represent the interests of the relevant body without a power of attorney. Is this correct? This, in my opinion, slightly transformed the changes that were made to the Constitution. However, this provides access to justice. This is a significant problem. Public authorities are not endowed with such funding to purchase the services of lawyers. These are expensive services. The professional lawyer and the state must bear the costs. Of course, if viewed in full context, this would be appropriate. Then there would be no "empty" cases, which are almost artificially created, when legal or natural persons are forced to defend themselves from public authorities in court. And, realizing this, the state would not take such possible risks as litigation. If, say, the tax authority has a legal department in the state, then why not sue. What are the costs here. Thus, we got a situation in which the positive effects of changes to the Constitution were leveled off in a few years, and in fact we remained in the same state. Quality is the question here.

Daria Surkova:  Is there a right to go to a court in person?

Andrii Kuchma: Of course, both individuals and legal entities can apply to the court in person. And for this purpose legal entities have a head or other authorized body; an individual, of course, can go to court on his own. At the same time, there is such an insistent request: if possible, apply through lawyers who have a professional specialization in such categories of cases.

Yuliia Korol: Are there exceptions when a person represents the interests of another by power of attorney and, at the same time, he is not a lawyer?

Andrii Kuchma: Such exceptions may now exist. They concern, as a rule, such insignificant cases. There is a list of insignificant cases defined by law. These are cases determined by the Code of Administrative Proceedings of Ukraine. There really can be such questions when a person represents by power of attorney. Although some filter, a measure in this case must exist. You don't have to use too much formalism all the time. There are those limits within which the law provides an opportunity to represent such interests by power of attorney, and this should be limited and not require additional workload, additional costs, additional problems, but to ensure high-quality court proceedings for those authorized representatives and participants in the case. speaking, appeared and participated.

Yuliia Korol: Yes, let's give examples of insignificant cases.

Andrii Kuchma: Article 12 (part 6) of the Code of Administrative Proceedings of Ukraine contains a list of these cases:

• admission of citizens to public service, its passage, dismissal from public service, except for cases in which the plaintiffs are officials who in the sense of the Law of Ukraine "On Prevention of Corruption" occupy a responsible and especially responsible position;

appeal against the inaction of the subject of power or information manager regarding the consideration of the appeal or request for information;

appeals by individuals of decisions, actions or omissions of subjects of power regarding the calculation, appointment, recalculation, implementation, provision, receipt of pension benefits, social benefits for disabled citizens, benefits for compulsory state social insurance, benefits and benefits for children of war, social benefits, surcharges, social services, assistance, protection, benefits;

termination at the request of the subject of power of legal entities or entrepreneurial activity of natural persons-entrepreneurs in the cases specified by law, or cancellation of state registration of termination of legal entities or entrepreneurial activity of natural persons-entrepreneurs;

appeals by individuals of decisions, actions or omissions of the subjects of power regarding entry (exit) into the temporarily occupied territory;

appeal against the decision of the subject of power, on the basis of which he may file a claim for recovery of funds in an amount not exceeding one hundred times the subsistence level for able-bodied persons;

recovery of sums of money based on the decisions of the subject of power, in respect of which the established by the Code of Administrative Proceedings of Ukraine has expired;

appeal of normative-legal acts, which reproduce the content or are accepted for execution of the normative-legal act, recognized by the court as illegal and invalid in full or in its separate part;

stay of foreigners or stateless persons on the territory of Ukraine;

as well as standard cases and other cases in which the court concludes that they are insignificant, except for cases that cannot be considered under the rules of summary proceedings.

Therefore, in accordance with the Art. 131-2 of the Constitution of Ukraine and part two of Art. 16 Code of Administrative Proceedings of Ukraine.

But I forgot that cases in which proceedings are open before September 30, 2016, ie when the relevant changes came into force, continue and complete the proceedings with those representatives who were in the case. Of course, if the party does not want to change such a representative.

Daria Surkova: Let's talk in more detail about the lawyer's exercise of his powers. Is there a problem with the proper execution of the power of attorney?

Andrii Kuchma: The procedure and conditions for providing legal assistance, the rights and responsibilities of lawyers and other legal professionals who participate in the administrative process and provide legal assistance are determined by the Code of Administrative Proceedings of Ukraine and the Law of Ukraine "On the Bar and Legal Practice".

As practice shows, one of the problems in the field of representation of the parties in court is the affiliation and admissibility of documents to confirm the authority of the representative.

It should be noted that the content of the agreement under which one party (lawyer, law firm, bar association) undertakes to protect, represent or provide other types of legal assistance to the other party (client) is due to the terms of the contract, including the obligation to pay the provision of legal aid and the actual costs necessary to perform the contract for the provision of legal aid.

At the same time, to confirm his authority, the representative of the party, other participants in the case, according to the Art. 59 CAS of Ukraine, provides the court with a power of attorney or a warrant issued in accordance with the Law of Ukraine "On the Bar and Legal Practice".

A power of attorney is a written document issued by a principal to a representative to certify his authority to third parties in the process of representation. 

The power of attorney of an individual must be notarized or, in cases specified by law, certified by another person. The power of attorney of a natural person, on whose application the decision to provide free secondary legal aid has been made, may be certified by an official of the body (institution) that made such a decision.

The power of attorney on behalf of the legal entity is issued under the signature (electronic digital signature) of the official authorized to do so by the law and the constituent documents.

Here is the question of the existence of the contract between the client and the lawyer. It is possible to formulate the question that certain limits of advocate secrets cover this agreement as well.

It may contain certain items that are not subject to disclosure. Different lawyers, bar associations try to do it in different ways. Sometimes by signing annexes to the contract that are not public and are kept by the bar association. Sometimes this even applies to payment issues, they are not included in the general text of the contract, but are included at the end, because it is a secret between the client and the lawyer, which they agreed and discussed. That is, in this case it is not always advisable to require a contract for the representation of interests. Although, as a rule, lawyers provide it together with a power of attorney to confirm that the agreement still exists, and this will be an opportunity for them to reimburse the costs of legal aid in the event that the decision is made in favor of the party. However, it should be clearly understood that there are certain limits of authority, and if the power of attorney does not contain any exceptions, reservations, the lawyer is endowed with all, fully, the rights of a party in the process. This is so in order to understand a little bit about formalism, not formalism and what that agreement can affect. It affects the fact that from the contract you can see some removal from the powers of the representative. Although, as a rule, they should be discussed in the power of attorney.

Yuliia Korol: Is there a problem with the proper execution of the order?

Andrii Kuchma: A warrant is a written document that, in cases established by the Law “On the Bar and Legal Practice” and other laws of Ukraine, certifies a lawyer's authority to provide legal assistance. The standard form of the order is approved by the Bar Council of Ukraine.

There are certain Regulations on the order for the provision of legal assistance and the procedure for maintaining the register of orders, which provides for the procedure for its execution. As for warrants. A warrant is a simple document that confirms the authority to represent the interests of a particular client, legal entity or individual. The order usually does not contain any reservations or additional conditions. A warrant is only a kind of certificate. At the same time, again, there is the problem of a copy of the warrant, how many warrants should be issued for the case. It is clear that one warrant is issued for the case, and accordingly the original warrant exists, and in this case, copies of the warrant, they will still be certified by someone. It is quite appropriate and clear that they can be certified by the lawyer himself, as well as by the bar association, the law firm. Any other person, including a judge, may not certify a copy of such a warrant. That is, if the original is examined at the court hearing and a copy is attached to the case file, then the judge certifies it because he is convinced.

In any other case, the judge may no longer provide a copy that is valid. Similarly, the client cannot personally certify this warrant, it will not be valid, because the warrant confirms the authority of the lawyer. With regard to the execution of warrants, the following formula is now used, which on the reverse side states the reservation on the restriction of the lawyer's rights to exercise his rights in court. How appropriate is this? This has already become a practice. Although, as a rule, we understand that a lawyer has all the powers. As in the past, there was a practice regarding proxies, which should be mentioned only in case of any withdrawals. And here I believe: if there are no other notes on the warrant, then the lawyer is endowed with all the powers.

If you look at the case, there really are warrants on the back written "no reservations" or "no restrictions".

Trying to avoid additional red tape, leaving without movement with some no confirmation of authority and so on. That is, lawyers are now trying to take everything into account in order to issue the warrant as correctly as possible and submit it to the court. But here again it is necessary to tell “but”. Let's start from the situation that this warrant is issued by the lawyer himself. That is, the presence or absence of reservations should be covered by legal ethics and should not be reviewed in court. That is, it is a relationship between the client and the lawyer, and if the lawyer distorts the scope of authority given to him by the client, and during the issuance of the order does not indicate reservations or writes that there are no reservations, and he does it himself ... Is it appropriate? This is, after all, the ethics of a lawyer. And there is a lever of influence on lawyers in the event that a lawyer abuses his authority, but this is the interaction between the client and the lawyer. Therefore, I'm not sure that it is very necessary to make some additional notes on the warrant. Especially since the Bar Council and the National Bar Association did not stipulate this in any way. And someone else invented it, but not them. They believed that with such levers of influence and control of lawyers, just such a direct order and all was enough. Without authority, without approvals, without rights, without anything. That's why this is the situation here.

Dariia Surkova: Tell us, please, what typical mistakes do you note in the execution of a warrant or power of attorney in your practice?

The first and most important thing is still the improper execution of document copies. Usually, documents that are used very often, have developed forms, they are fixed. First problem: the wrong person verify a copy.

We often had problems with the tax authorities when the representative himself verified his power of attorney. No one described what the problem was here, at the same time it became necessary to verify a copy of the power of attorney not by representative, but to his authorized person or manager, who issued this power of attorney.

It wasn’t understandable, the practice came to the conclusion that, as far as the person has the right to submit documents to the court and personally sign them, accordingly the person has the right to sign a copy and verify a copy of such a power of attorney. But it concerns the power of attorney. At the same time, the same persons verify copies of the documents that they provide to the court. There was inconsistency, but we escaped it.

There were no problems with attorneys’ warrants, as lawyers professionally perform their work, therefore there weren’t any particular comments there. 

Certain comments have already arisen in relation to the body in which the representation is carried out. And here again the opinions were divided, the situation went through the approval procedure for a certain time. Now it is finally determined that in the attorney’s warrant should be indicated the specific organization in which the representation is carried out.

Why is this such a problem that was noticed, which has been practiced for a very long time in the judicial system? Because, on the one hand, it can be understood that a person authorizes his representative to represent, represent interests in considering a specific dispute. This dispute, as a rule, passes at least two, or even three instances, and more than once is possible. In this case, is it necessary to list all the courts and possible chambers in which he may fall? On the one hand, it seems to be unnecessary. What for?

Of course, the case, representation in court. What court is this? On the other hand, the issue related to the reimbursement of legal aid expenses will be distributed among the authorities. That is, suitably matched powers, suitably matched work and suitably matched payments for legal assistance. That is, they nevertheless came to the conclusion that the attorney’s warrant should specifically indicate the institution in which the representation should be carried out.

In our case it is Sixth Administrative Court of Appeal. Then we clearly know that in our court this lawyer is authorized to represent interests. Accordingly, their question with the client will already be decided at the next stage, on their own, and they will determine whether this lawyer will continue to represent and whether the warrant or contract for providing legal assistance will be continued.

The questions were still related to the execution of attorneys’ warrants, but I think that they are not very problematic, they are sometimes resolved directly by the lawyer, if there are mistakes in document execution, he can even rewrite the warrant before the court hearing, and this caused some kind of discontent. No, the lawyer has such a right, and even if we saw a mistake, it’s completely advisable to give the opportunity to eliminate and continue the trial, rather than assuming that the lawyer is not empowered, because the warrant is incorrectly executed or problems with the power of attorney exist that cannot be fixed now. That is, the main thing should be to allow participants in the process and provide a high level of legal proceedings so that the parties are satisfied with the decision.

Of course, they are not satisfied, because the case was considered in court and the parties received a decision, as far as the decision enables the party to decide. Accept a decision and execute, appeal it, and whether the person received a redress in a judicial institution. The redress in understanding the evidence of violation of his rights. Sometimes there are situations when a person believes that his right has been violated, but during the trial it was established that the right was not violated in any way. It happens. But nevertheless, we must be aimed at resolving the dispute on the merits, and not on procedural issues, somehow tighten it or return it in general, and so on.

Daria Surkova: Can we give any suggestions to our listeners?

Andrii Kuchma: Perhaps, to be more careful about the paperwork regarding the representative office, to check them additionally. It is not very difficult. When you submit documents, check that all, including the documents for the representative office, are drawn up correctly, and then there will be no questions regarding the progress of the case in terms of confirmation of the representative office. Everything will be simple here.

Yulia Korol: Legal entities may use the services of lawyers, or may represent themselves. A warrant or power of attorney is enough for a lawyer. What documents are needed for self-representation?

Andrii Kuchma: In this case, the legal entity has the status of registered and, accordingly, there is the head or authorized body of the legal entity that is entered in the register, and in this register we can check whether the person is really authorized to provide such a power of attorney or enter into an agreement with a lawyer or lawyer association. That is, our representatives will be the head or the authorized body - this is self-representation.

We may have a lawyer whose authority is confirmed by relevant documents. That is, in this way, a legal entity participates in court hearings and confirms the authority of its representatives. 

As a rule, legal entities, properly formalize their representation, they do not have any problems with this, as far as the head, understanding who the owner of the press is, he usually signs.

We didn’t have such a question that a person who has the right to financially sign, the right to a second signature, and so on, so I did not encounter what the head of the legal department or some department signed. It is always signed by the director, we already have no presidents. Some associations have presidents, but still the first person signs.

Other problematic issues arise, but they are beyond the scope of our review. When we see that the signature may not coincide with the signature on other documents, but this is exclusively a personal opinion, to which we are not entitled in any way to give an assessment. We cannot say that the signature is not made personally, but it is a facsimile. We cannot verify all this. This is the party in a case and its internal problems.

If someone forges a document, power of attorney, authority - it does not apply to the court. The court is not empowered, we can do nothing, we do not have legal and procedural levers for this. We cannot appoint examinations ourselves, call the police here, and so on. Namely, “Oh, it seems to me that here the signature does not respond a bit, on the power of attorney and on the contract they do not match”. Although, in fact, there have been such situations, this is noted to the side, representatives so that they can somehow react and do something. In general, that’s all.

Dariia Surkova: What about subjects of power? According to the changes in 2016, what are the problems with the representation of these entities?

Andrii Kuchma: Everything is a bit more complicated here. From a conventional power of attorney, relatively speaking, from the last year to the present, we have come a long way; there were certain lists of documents that must be submitted to confirm the authority of the representative.

The first is still self-representation when the head represents the body, but if it is not the head himself, then it should be an authorized person. And here additional documents are already being submitted: orders for appointment, positions on departments, job descriptions, extracts from registers.That is, those documents that make it possible to clearly determine that this person, representing the self-governing body at the hearing, is in the corresponding position, endowed with the appropriate powers in the relevant structural unit, etc., and a person has the right to represent this authority in full least. 

Now almost all bodies have taken measures and their representatives are included in the register as persons who have the right to represent, but there are certain mistakes. For example, they provide job descriptions (editorial notes), instructions on the department, and the representation of the courts must be clearly defined in the document. What is the representation? Representation in the manner of self-representation with entry in the Unified State Register. This is not in the document, but such materials are provided to us.

I understand that in the case the documents were provided and it’s ok. But there is already a problematic attitude of the representative and the level of his training, as far as he understands what exactly he represents to the court, and how to confirm it. And when we provided the opportunity, we postponed court hearings for some time so that the representatives put the documents in order, because there might not be a representative at all. Already there are recommendations of the Supreme Court, a list of documents has been clearly written. But instead, we got that no one representative tried to do anything, they collected another set of documents. When there is a specific question, on what account you appeared in court, it turns out that the provision states that the representative can participate in the lawsuit. What for lawsuit and representation of interests? Now practice has more or less formed, and changes have been made to the Register.

This is a significant load, as far as the personnel reserve in state bodies is not very stable. Departmental workers often quit, again it will be necessary to make changes, registration changes. Why it has been done is not understandable. We return to our beginning when a good, clear, correct step was taken: there are two categories: lawyers and prosecutors. If the state is represented by a lawyer or prosecutor, the state will have professional, high-quality legal protection.

The state will understand where the violation of rights happens when the prosecutor says that there is no violation of rights, the state confirms that no one has violated anything - this is a completely different level of consideration. And now we have a problem with the participation of prosecutors, as far as the prosecutor can only participate in certain cases. Although the Constitution clearly said to represent the interests of the state.

Why do we all  pay attention on the criminal process? Only there can be a lawyer and a prosecutor. That is, two experts on different sides between themselves make decisions and evidence of guilt. And what is wrong in the administrative process? In the administrative process, the state is accused then who should protect the state? In this case, the prosecutor. And it would be quite understandable. And then the prosecutor’s office would have seen the systematic violations that they exist in the schemes. And, perhaps, a more dynamic and high-quality transformation of state bodies would take place, when there are systemic violations confirmed by the court and not single ones, and no one will eliminate them, as far as there is no “one representative”.

This issue has arisen from self-employed persons on single social security tax. When they were told to pay single social security tax both as individual entrepreneurs and as self-employed persons, that is, twice. These were the attempts of individual tax officials, the possibility of a new violation was decided whether it exists or not, but it got a systemic character, there were a lot of lawsuits. There is a practice, that it has already been confirmed that the state is not right, solving tax issues in that way. But if there had been a prosecutor, there would have been no such problems between the tax authorities: that a different region, or a different district, or the level of the city, or even the Kiev region. Suppose: five prosecutors represent the state’s interests, they all keep in mind, they all know.

Why do I think that this step was a positive one? We would get more protection. Both the state and citizens. Returning to the question, now all these has been more or less streamlined, and the representation takes place by the same representatives, who for six months or more came just with  powers of attorney.  Now they are also coming, but with a larger package of documents.

Olha Shkil: So, dear listeners, we thank our colleagues for such an interesting conversation. Let us summarize this big, significant and problematic topic - representation and self-representation. Firstly, we have already understood that this issue is debatable. If a person represents someone’s interests, then this is a representation, if he represents his own interests, then this is self-representation. 

In practice, the last one can be exercised by both subjects of authority and legal entities, using this right through the heads or authorized persons who are entered into the register or who have the corresponding powers enshrined in the regulation, in the job description, and the like.

Secondly, changes to the Constitution of Ukraine in 2016. Representation is carried out by prosecutors or lawyers in the Supreme Court from January 1, 2017. In the courts of appeal - from January 1, 2018, and in the first instance - from January 1, 2019. From January 1, 2020, exclusively prosecutors or lawyers represent the interests of state authorities and local self-government in courts. Should note that in cases in which proceedings are open before September 30, 2016, representation is carried out according to the old rules. 

Not being a lawyer, a person can represent the interests of another in cases of minor complexity (their list is given in part 6 of article 12 of the Code of Administrative Proceedings of Ukraine) and also in cases  which proceedings are open until September 30, 2016.

By drawing up a power of attorney and warrant. Previously, there was a problem with who should certify copies of the power of attorney, but in practice, we proceed from the fact that the person to whom the power of attorney was issued can certify its copies. 

As for the warrants, it is necessary to indicate the specific institution in which the representation will be carried out.

A warrant or power of attorney is sufficient for representation to a lawyer. For self-representation of subjects of authority, the list of documents is slightly wider. There must be a power of attorney, job description or document that clearly states the representative’s right to defend interests, or this representative must be entered in the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Associations.

We hope this podcast was helpful for you. Don’t forget to listen to the previous one! And we are already preparing for the 6th podcast.

Sincerely with you.

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