Is litigation easy?

Once new procedural codes became effective, certain forms of legal proceedings became explicitly formulated. It also applies to administrative proceedings carried out as adversary proceeding (general or simplified).

Like some other innovations, this classification of cases is aimed at simplifying citizens’ access to judicial procedure, including by the way of reducing the time limits for consideration of at least certain categories of cases.

According to legislator’s intention, simplified adversary proceedings are designated for consideration of cases of minor complexity and other cases for which quick resolution of case is a priority.

What is a minor complexity case?

The concept of an administrative minor complexity case (minor case) is covered in clause 20 Part 1 Article 4 of the Code of Administrative Proceedings of Ukraine (hereinafter – the “CAP of Ukraine”), according to which it is an administrative case where the nature of matters in controversy, the fact to be proven and composition of participants do not require conducting preliminary proceedings and/or holding court hearing for the full and complete establishment of circumstances thereof. CAP of Ukraine defines 11 categories of minor cases (Part 6 Article 12):

  • concerning public service;
  • concerning access to information;
  • concerning pensions and social benefits;
  • concerning winding-up of legal entities, individuals entrepreneurs;
  • concerning departure to a temporarily occupied territory;
  • concerning challenge of decisions made by an authority on the basis of which it is possible to collect funds up to 100 living wages for able-bodied persons;
  • concerning collection of funds under decisions of an authority for which period of appeal has expired;
  • model cases;
  • concerning challenge of a legal act adopted in pursuance of an act recognized by court as unlawful and invalidated in whole or in part;
  • which are recognized by court as minor;
  • concerning the stay of foreigners or stateless persons in the territory of Ukraine.

At the same time, following a substantiated petition filed by plaintiff, according to the rules of simplified adversary proceedings, any other matter case may be considered, except for those that are mandatorily prohibited to consider under simplified proceedings (Part 4 Article 257 of the CAP of Ukraine).

In any case, the following categories of cases may not be considered under simplified proceedings:

  • concerning challenge of regulations, except in cases specified by this Code;
  • concerning the challenge of decisions, actions and inaction of an authority, if a plaintiff has filed a claim for compensation for damage caused by such decisions, actions or inaction, in the amount exceeding 500 living wages for able-bodied persons;
  • concerning compulsory alienation of a land plot, other real estate items located thereon for reasons of social necessity;
  • concerning challenge of decision made by an authority on the basis of which a claim may be filed for collection of funds in the amount exceeding 500 living wages for able-bodied persons.

Defendant may object to consideration of a case under simplified proceedings. Depending on the substantiation, court rejects or grants it and schedules consideration of a case under the rules of general adversary proceedings and replacement of a hearing of a case on the merits by a preliminary hearing.

However, taking into account the specific aspects of functioning of our authorities, it is unlikely that they will ignore transition to simplified proceedings in cases not directly provided for in Part 6 Article 12 of the CAP of Ukraine. Therefore, in most such cases court will have to deal with defendant’s objections.

When, what and where to file?

If a dispute does not fall under any of the categories provided for in Part 6 Article 12 of the CAP of Ukraine, plaintiff’s petition for consideration of a case under the rules of simplified adversary proceedings must be filed in writing simultaneously with a claim or may be contained therein and must concern the consideration of a case as a whole.

Filing of applications on the merits of a case also has its features. Thus, defendant must submit a statement of defense to court within 15 days from the date of a ruling to commence proceedings. While under general proceedings, statement of defense is to be submitted within at least 15 days.

Plaintiff’s reply to statement of defense and defendant’s objections shall be filed within time limits set by court in a ruling to commence proceedings, which will be less than those set for general proceedings. Third parties are entitled to submit an explanation to a claim within time limits set by the court, and in to a statement of defense – within 10 days after the day it was received.

When can a plaintiff expect a court decision?

A case shall be considered by court under simplified adversary without notifying the parties based on available case file, should there be no petition of any of the parties to the contrary.

However, should there be such a petition, there are cases when court may refuse to grant it and considers a case under written proceedings (Article 263 of the CAP of Ukraine), in particular:

  • concerning access to information;
  • concerning pensions and social benefits;
  • concerning winding-up of legal entities, individuals entrepreneurs;
  • concerning collection of sums of money under decision made by an authority for which period of appeal has expired, and the amount of which does not exceed 100 living wages for able-bodied persons;
  • concerning departure to a temporarily occupied territory;

Cases specified in part 1 of this Article shall be considered by court within no more than 30 days after the date of commencement of proceedings in a case.

In general, court considers cases under the rules of simplified adversary proceedings within no more than 60 days after the date of commencement of proceedings in a case.

A preliminary hearing shall not be conducted when considering a case under the rules of simplified adversary proceedings. The first court hearing in a case shall be held within no more than 30 days after the date of commencement of proceedings in a case. If a court hearing is not held, procedural actions the term of which is limited to the first court hearing in the case may be performed within 30 days, and in cases specified in Articles 263 of the CAP of Ukraine (written proceedings) may be performed within 15 days after the date of commencement of proceedings in a case.

Therefore, although according to certain categories of cases plaintiffs hoped that they would not have to wait for months and even years for their cases to be considered, while many lawyers (let alone ordinary citizens) have not yet realized that they have no time to “swing”, especially under simplified proceedings. However, whether simplified proceedings meet expectations for it and whether they ensure the proper implementation of principles of administrative proceedings, we can only find out in the future.

Oleksandr Krenets, senior associate, dispute resolution practice,

exclusively for «Yurydychna gazeta» №17, 24.04.2018