Defending the Motherland is a duty that requires total dedication and often pushes other aspects of life to the background. Military personnel may find themselves in a situation where they lose the opportunity to timely exercise their procedural rights in courts. This is especially true for issues related to the filing of lawsuits, appeals, statements or complaints, where timely compliance with deadlines is critical for successful protection of interests.
How is the legal mechanism for renewal of terms implemented? What nuances are taken into account by the courts when making decisions? Lawyers of the “Repeshko and Partners” Bar Association comment on the specifics of the application of these norms, consider court practice, and also provide useful recommendations on how to prevent military personnel from losing their right to a fair trial.
Everyone remembers well that the general statute of limitations is three years. But this rule applies exclusively in civil proceedings according to the norms of the Civil Procedure Code of Ukraine. At the same time, there are a number of issues that are decided both by local courts and district administrative courts, but in the order of administrative proceedings and even in such a case, existing legal relations are regulated by the Code of Administrative Proceedings of Ukraine.
Yes, almost all issues related to military personnel must be considered in the order of administrative proceedings: the appointment of pensions, payment of military service, non-payment of additional rewards, and others. And here lies an insidious trap – the three-year term does not apply here in any way. Pursuant to Article 122 of the Code of Administrative Procedure of Ukraine (KASU), a lawsuit may be filed within the term of appeal to the administrative court established by this Code or other laws. At the same time, for applying to the administrative court for the protection of the rights, freedoms and interests of a person, a six-month period is established, which, unless otherwise established, is calculated from the day when the person learned or should have learned about the violation of his rights, freedoms or interests.
Note that in order to protect the rights, freedoms and interests of a person, this Code and other laws may establish other terms for applying to the administrative court, which, unless otherwise established, are calculated from the day when the person learned or should have learned about the violation of his rights and freedoms or interests Therefore, a six-month period applies to appeal to the court in the order of administrative proceedings. No exceptions.
There is Article 121 of the Civil Code of Ukraine, according to which the court, upon the application of a party to the case, renews the missed procedural term established by law, if it considers the reasons for its omission to be valid, except for cases when this Code establishes the impossibility of such renewal. It should be noted right away that the law does not list the same “good reasons” for missing the term of appeal to the court. In each specific case, the court decides whether “respectability” took place or not. However, judicial practice, namely the Supreme Court as part of the panel of judges of the Administrative Court of Cassation on case No. 823/2363/18 named four conditions for recognizing the reasons for missing the deadline to apply to the court as valid.
According to the position of the court, valid reasons should be understood only as those circumstances that were objectively insurmountable, i.e. did not depend on the will of the person who filed the administrative lawsuit, and/or were connected with really significant circumstances, obstacles or difficulties that made it impossible timely appeal to the court. Such circumstances must be confirmed by appropriate and proper evidence.
The reason for missing the deadline for applying to the court can be considered valid if it meets all of the following conditions at the same time:
1) it is a circumstance or several circumstances, which directly makes impossible or complicates the possibility of taking procedural actions within the term defined by law;
2) it is a circumstance that arose objectively, regardless of the will of the person who missed the deadline;
3) this reason arose during the missed period;
4) this circumstance is confirmed by proper and admissible means of proof.
At the same time, the panel of judges notes that clearly defined and identical terms for all parties to the case to apply to the court, the implementation of other procedural actions are a guarantee of ensuring the equality of the parties and other parties to the case.
If a person submits a lawsuit after the expiration of the terms established by law, without a statement on renewal of the missed deadline for applying to the administrative court, or if the grounds specified by him in the statement are recognized by the court as invalid, the lawsuit remains without action. At the same time, within ten days from the date of delivery of the decision, a person has the right to apply to the court for an extension of the term of appeal to the administrative court or to indicate other reasons for the extension of the term.
If the application is not submitted by the person within the specified period or the grounds specified by the person for renewing the application period to the administrative court are deemed invalid, the court returns the claim application. At the same time, if the fact that the claimant missed the deadline for applying to the administrative court is discovered by the court after the opening of the proceedings in the administrative case and the claimant does not apply for the renewal of the missed deadline for applying to the administrative court, or if the grounds indicated by him in the application are deemed by the court to be invalid, the court leaves the claim application without consideration.
It is worth knowing if, after the opening of the proceedings in the case, the court comes to the conclusion that the conclusion of the court, set out in the decision to open the proceedings in the case, regarding the recognition of valid reasons for missing the deadline for applying to the administrative court was premature, and the court will not find other grounds for recognizing the reasons for missing the deadline for applying to the administrative court. of the administrative court are respected, the court leaves the statement of claim without consideration.
However, no one has canceled martial law in the country, as well as military operations, in connection with which a serviceman does not always have the opportunity to dispose of himself freely. Therefore, the Supreme Court in case No. 120/359/24 satisfied the cassation appeal of the war veteran, who challenged the return of his statement of claim without consideration by the courts of previous instances. Under the circumstances of this case, in January 2024, a person appealed to the administrative court with a lawsuit against one of the regional Head Offices of the Pension Fund of Ukraine regarding recognition as illegal and annulment of the decision of the Pension Fund of Ukraine on the refusal to award an early retirement pension and the obligation to make a decision on the appointment early age pension.
At the same time, the claim was left without consideration by the court of first instance, with which the court of appeals agreed, based on the fact that since the claimant appealed to the court outside the established Article 122 of the Civil Code of Ukraine period (6 months), and the circumstances indicated by the plaintiff’s representative in the application for renewal of the term are not valid reasons for the plaintiff’s missing the deadline to apply to the court, then the statement of claim should be returned to the plaintiff without consideration. The courts have indicated that military service from March 16, 2022 cannot be considered a valid reason for missing the deadline to appeal to the court, because such a circumstance arose much later than the beginning of the deadline for appeal to the court (the decision of the Main Directorate of the Pension Fund of Ukraine was dated January 13, 2022 and letter (answer) dated January 20, 2022). In addition, the courts took into account the fact that the plaintiff applied to the pension authority in July 2022 with a statement about the appointment of a pension, and therefore had an objective opportunity to file a lawsuit in court. The courts also took into account that the location of the military unit is an address that did not and does not belong to the territories of hostilities.
Disagreeing with the decisions of the courts of the first and appellate instances, considering them to have been adopted in violation of the norms of procedural law, in particular the provisions of articles 122, 123 CAS of Ukraine, the person filed a cassation complaint with the Supreme Court, justifying his position by the fact that the courts of the first and appellate instances came to illegal conclusions that the reasons for missing the deadline for applying to the court specified in the application for renewal of the deadline are invalid. The complainant indicated that the courts unlawfully did not take into account that the plaintiff is a war veteran, a participant in hostilities and who, in connection with the military aggression of the Russian Federation, has been mobilized into the ranks of the Armed Forces of Ukraine since March 16, 2022 to fulfill his constitutional duty to protect sovereignty and independence of the State of Ukraine. Thus, the plaintiff believed that the circumstances specified in the application for extension of the deadline objectively affected the possibility of him complying with the procedural deadline and are important for satisfaction.
Therefore, the court of cassation sided with the plaintiff, noting the following. In connection with the military aggression of the Russian Federation against Ukraine, based on the proposal of the National Security and Defense Council of Ukraine, in accordance with paragraph 20 of the first part Article 106 of the Constitution of Ukraine, the Law of Ukraine “On the Legal Regime of Martial Law”, by the Decree of the President of Ukraine dated February 24, 2022 №64/2022 martial law was introduced in Ukraine from 05:30 on February 24, 2022 for a period of 30 days, which was subsequently extended several times by Presidential Decrees.
Although the panel of judges of the Supreme Court agreed with the conclusion of the courts of previous instances that the very fact of the introduction of martial law in Ukraine, without substantiating the impossibility of applying to the court by the plaintiff himself within the established terms, in connection with the introduction of such, cannot definitely be considered a valid reason for unconditional renewal of these terms. But at the same time, in the opinion of the court of cassation, the courts of previous instances did not pay attention to the fact that the plaintiff is a participant in hostilities, which is confirmed by a copy of the certificate and in accordance with of the Law of Ukraine “On mobilization training and mobilization”, Decree of the President of Ukraine dated February 24, 2022 №65/2022 “On General Mobilization” mobilized in the first wave (operational reservists, former military personnel and veterans of the ATO and OOS). The specified circumstances indicate that the deadline for the plaintiff to apply to the court for the protection of his rights has been missed for good reasons and is the basis for the court to renew the deadlines established by part two Article 122 of the Civil Code of Ukraine.
The court also noted that during the entire period of the martial law imposed on the territory of Ukraine in connection with the armed aggression of the Russian Federation, the strict application of procedural terms by administrative courts in relation to applying to the court with claims, appeals and cassation complaints, and other procedural documents may have signs unjustified restriction of access to the court, guaranteed by articles 55, 124, 129 of the Constitution of Ukraine, Article 14 of the International Covenant on Civil and Political Rights and Article 6 Convention on the Protection of Human Rights and Fundamental Freedoms.
Based on the above, the panel of judges formulated the following legal opinion regarding the application of the provisions of the articles 122 and 123 CAS of Ukraine in legal relations, the omission of the procedural term in which is connected precisely with the call for mobilization to the Armed Forces of Ukraine to fulfill the constitutional obligation to protect the sovereignty and independence of the State of Ukraine:
“The completion of military service by a person called up for mobilization in the Armed Forces of Ukraine may be grounds for renewing the term of appeal to the court for several reasons related to the special status of military personnel and the nature of their service:
- Limitation of access to legal aid: during service, military personnel may be in remote, including dangerous, locations where there is no access to lawyers or other legal resources, which limits the possibility of timely appeal to the court.
- Performance of service duties: military personnel, especially under martial law, are often in a state where it is physically or psychologically impossible to engage in private affairs, in particular to initiate legal disputes.
- Time factor: the participation of a serviceman in long-term operations, exercises or business trips may make it impossible to comply with the time limit for applying to the court, defined by the procedural law.
- Respect for the special status of military personnel: taking into account the performance by military personnel of an important function for the protection of the state, legislation and judicial practice should take into account the circumstances related to the completion of military service as a valid reason for renewing the term.
- The duty of the state to ensure the implementation of the principle of equal access to justice: military service can significantly complicate the implementation of this right by individuals, and therefore, in order to properly ensure the specified principle, it can be recognized as an objective reason for missing the procedural term.
On such grounds, the cassation appeal was upheld and the military serviceman’s failure to apply to the court was deemed to have occurred for valid reasons.
This court decision is very important from a practical point of view. Although we do not have precedent law, as in the USA, the conclusion of the court of cassation on a separate case is a generalization of judicial practice and a reference point for lower courts when making a decision on a similar case. Thus, without making changes to the current legislation, the court established that the completion of military service by a person called up for mobilization in the Armed Forces of Ukraine can be grounds for renewing the term of appeal to the court.
Military servicemen defending their rights need to know that this opinion of the court of cassation regarding the renewal of court terms is a key reference point in similar cases. The court found that a person’s military service, in particular, a call for mobilization to the Armed Forces of Ukraine, is a valid and valid reason for renewing the term of appeal to the court.
Thus, even without making changes to the current legislation, military personnel who, due to the objective circumstances of service, missed the procedural deadlines, have the opportunity to restore their right to judicial protection. This conclusion emphasizes the importance of taking into account the special conditions of military service, and also strengthens the legal guarantees for those who defend the state.
