The Administrative Cassation Court Within the Supreme Court Has Determined That Access to Electronic Justice in Ukraine Is an Additional Constitutional Guarantee of the Right to Judicial Protection

The citizen lodged a cassation complaint with the Supreme Court against the decision of the court of appeal, which had returned his (the plaintiff's) appeal against the decision of the court of first instance.

The court of appeal proceeded from the fact that the appeal with a qualified electronic signature was filed on behalf of the plaintiff by his representative through the Electronic Court system, a copy of the power of attorney generated with the same signature in this system being attached. However, there was no original or copy of the notarized power of attorney issued by the plaintiff in the name of the representative in the case file.

Therefore, the court of appeal, referring to part 2 of Art. 59 of the Code of Administrative Proceedings of Ukraine, came to the conclusion that since the appeal had been signed by a person whose right to perform such actions was not confirmed in accordance with the procedure established by law, the court had no grounds for accepting such an appeal for consideration, and therefore returned it to the complainant.

The Supreme Court disagreed with such conclusions of the court of appeal, reversed the decision of the court of appeal and returned the case to it for further consideration.

Having examined the provisions of articles 18, 44, 55, 57 and 59 of the Code of Administrative Proceedings of Ukraine, the panel of judges of the Administrative Cassation Court within the Supreme Court came to the conclusion that the established order of sending procedural documents in electronic form provided the use of the Electronic Court service, placed under the link https://cabinet.court.gov.ua/login, subject to the preliminary registration of the official e-mail address (Electronic Office) and with the mandatory use of its own electronic signature by such a person.

Thus, an alternative for the parties to the case to apply to the court with the statements of claim, complaints and other legally defined procedural documents, paper-based (in hard copy) and signed directly by the case participant or his representative is to apply with procedural documents in electronic form with the mandatory electronic signature of the participant in the case through the Electronic office subsystem.

Taking into account the Regulation on automated system of court workflow approved by the decision of the Council of Judges of Ukraine of November 26, 2010, No. 30, the court also came to the conclusion that an electronic power of attorney, which can be provided using the Electronic Court subsystem, is issued if the respective principal and his representative have personal electronic accounts in the Electronic Court subsystem, which requires that such persons have an electronic digital signature.

An electronic power of attorney is issued only if it is signed with an electronic key by the principal using the algorithms defined in the Electronic court subsystem. In the future, such an electronic power of attorney is automatically added to the claim submitted by the representative on behalf of the principal through the Electronic court subsystem. At the same time, users have no possibility to influence in any way the content and type of such an electronic power of attorney, that is, it is formed by the Electronic Court subsystem independently, in accordance with the chosen scope of the representative's powers.

The Supreme Court issued a legal opinion according to which to confirm his authority the representative of the participant in the case may submit a power of attorney or a warrant in electronic form signed with an appropriate electronic signature. Such an opportunity for the representative of the party should be considered as an additional constitutional guarantee provided for in Articles 55 and 129 of the Constitution of Ukraine: everyone has the right to appeal a court decision, both personally and through the use of professional legal assistance. The current state of e-justice in Ukraine takes into account the advanced world standards in the field of information technology, makes it convenient for a person to use, and for the court to avoid excessive formalism when providing such a person with access to justice.

The Resolution of the Supreme Court of February 10, 2022, in case No. 560/11791/21 (administrative proceedings No. К/9901/43626/21) – https://reyestr.court.gov.ua/Review/103129035.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - lpd.court.gov.ua/login.