Adoption of the Law “On Judicial System and Status of Judges” and amendments to the Code of Administrative Proceedings of Ukraine introduced thereby
On 7th of July 2010 the Law “On Judicial System and Status of Judges” No. 2453-VI was adopted. The mentioned Law introduced amendments into a number of laws governing different spheres (administrative, civil etc.). Inter alias, the Code of Administrative Proceedings of Ukraine (hereinafter – “the Code”) has been amended. Herein we would like to overview the most important changes introduced into the Code.
First of all, attention should be paid to the amendments related to terms of filing claims to administrative courts and consequences arising in case of failure to file claim within such terms.
According to the previous version of the Code, claims were accepted and considered by the administrative court regardless the fact that the term for filing claim expired. Expiry of the term for filing the claim was regarded as a ground to deny the claim, if one of the parties claims for such denial. The new version of Article 100 of the Code provides, that in case the terms for filing claim expired, the claim shall not be accepted for consideration by the court (of course, unless the court finds grounds for renewal of such term).
At the same time the term for filing claim to the court was cut. New version of para. 2 of Article 99 of the Code provides for six months term for filing a claim, which starts on the date when claimant found out or should have found out that the claimant’s rights, freedoms or interests were infringed (in comparison with one year term in previous version).
Along with reduction of general term for filing claims to administrative courts, the Law “On Judicial System and Status of Judges” introduced changes into Article 99 of the Code, listing the number of cases, in which the claim shall be filed within one month. Among such cases are the following:
- in case the law establishes the procedure of pre-trial dispute resolution and the claimant resorted to it. In this case the term shall start on the date when the claimant became aware of the decision of the state authorities taken upon consideration of claimant’s claim in respect of decisions, acts of the state authorities or failure of the state authorities to act (para. 4 of Article 99 of the Code);
- contesting in administrative court a decision of the state authorities based on which the state authorities could claim collection of funds (para. 5 of Article 99 of the Code).
We would like to draw your attention that the discussed version raises concerns regarding deadlines for filing claims against decisions, where the law provides for the pre-trial procedure of dispute resolution, and, at the same time, where such decisions could be the basis for claiming collection of funds (for example, tax notifications). The date, from which the term starts, is quite controversial: it might be understood either as the date, when the claimant became aware of the decision taken by the state authorities upon consideration of the claimant’s claim, or as the date, when the contested decision was taken. In fact, there is a question which provision of law is special: para. 4 or para. 5 of Article 99 of the Code.
Another controversial issue is that the newly introduced para. 5 of Article 99 the Code, unlike the foregoing paragraphs thereof, does not mention the date, from which one month term starts. The approach, under which such term starts on the date mentioned in paragraph 3 (i.e. on the date when the claimant found out or should have found out about violation of the claimant’s rights, freedoms or interests) is at least disputable.
The Law “On Judicial System and Status of Judges” introduced limitations on filing statements on challenge to judge. According to para. 3 of Article 30, statement on challenge to judge should be submitted before the stage of hearing the case on the merits started. Statements on challenge to judge filed after such hearing started will not be accepted, even if grounds for the challenge was not known before the hearing.
It should be noted that the new version of Article 38 of the Code provides that if the claimant indicated e-mail address (or fax/ telefax number) and did not object to using it for receiving court rulings and other documents, the court may use the mentioned means of communication for sending writs, rulings and other court documents. It is not entirely clear, when the courts will start using the mentioned procedure. Paragraph 2 of Article 38 of the Code do not directly establish the mention procedure, but makes a reference to paragraph 1 of the discussed Article, establishing the procedure of sending subpoenas to state authorities by electronic means of communication. At the same time the date when the courts shall start using the procedure of para. 1 of Article 38 of the Code is postponed. According to para. 1 of Section XII “Final Provisions” of the Law “On Judicial System and Status of Judges” the provisions of the mentioned Law in respect of sending subpoenas to state authorities by electronic means of communication shall become effective on the date of notification by the State Judicial Administration of Ukraine in respective governmental mass media that the Uniform database of electronic addresses of state authorities started operating. Thus, it is not entirely clear, whether this means that the courts will start using electronic means for sending court documents to the participants of court proceedings, other than state authorities, right now or only after the mentioned notification of the State Judicial Administration of Ukraine is issued.
Quite important change is elimination of the requirement to file notice of appeal when contesting court rulings of the court of first instance. It should be noted that while eliminating the mentioned requirement the legislator failed to respectively amend the provisions of para. 1 of Article 254 of the Code, which establishes the procedure of entering into force by court rulings and writs. According to the mentioned paragraph court rulings and writs of the court of first instance shall enter into force upon termination of the term for filing notice of appeal. Since the term for filing notice of appeal does not exist anymore, it is unclear when the rulings and writs of the court of first instance shall come into force.
In addition to eliminating the requirement to file notices of appeal, the legislator cut the terms within which appeal can be filed. Based on new provisions, the appeal (without notice of appeal) shall be filed within ten days (rather than twenty days under previous version) from the date when the court ruling was declared (Article 186). In case only introductory part of the court ruling and its resolution were declared during the court sitting, while the whole text of the court ruling was executed later as provided by Article 160 of the Code, the mentioned term shall start on the date when the full text of the court ruling was received. We would like to remind that previous version of the Code stipulated that the term for filing appeals against court rulings (the full text of which was executed later than their introductory part and resolution declared) started on the date when the full text was executed.
As regards the appeals against court writs, they shall be filed within five days starting from the date when the writ was declared.
Apart from the above the legislator cut the term within which cassation claim shall be filed. Currently cassation claim shall be filed within twenty days from the day when the court ruling or court writ was declared by the court of appeals. If the full text of the court ruling was executed after the court sitting during which it was declared, the mentioned term shall start on the date of executing the full text of the ruling. We would like to remind that in previous version one month term for filing cassation claims was set.
The Law “On Judicial System and Status of Judges” changed the term within which the administrative case shall be resolved. Article 122 of the Code stipulates that the case shall be considered within a reasonable period of time but not longer than within a month, starting from the date when the court opened the case (as compared with two months term provided for by previous version). In addition to that the Law “On Judicial System and Status of Judges” set the terms for considering the case in the courts of appeals and court of cassations. Newly introduced Articles 195-1 and 214-1 of the Code require that appeals/cassation claims should be considered within one month starting from the date when the court of appeals/ cassations opened the case.
Appeals against the writs of the courts of first instance shall be considered within fifteen days from the date when the court of appeals opened the case.
The innovation of the Code is the introduction of short proceedings (Article 183-2 of the Code). Article 183-2 of the Code list the cases when the mentioned proceedings are resorted to. Among such cases we may found collecting funds based on the decisions of state authorities after expiry of the terms for challenging such decisions set by the Code. The short proceedings imply that the terms within which the case shall be considered are quite limited, the case is considered by one judge and without inviting the parties to the case. Particular attention should be paid to para. 10 of the discussed Article: in case the appeal against the court decision taken within short proceedings, the writ of the court of appeals shall be final and shall not be subject to cassation. To avoid short proceedings, the tax payers should challenge in the court all the decisions of the state authorities on applying administrative and economic sanctions (for example, those related to cash turnover or fine in the sphere of foreign economic activity), rather than wait till respective state authorities file a claim with respect to collecting funds based on such decision.
We trust that the above information will be useful for you.
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.
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