Date of publication: 8 August 2024
Oleh Trokhymchuk, Attorney at Law, Counsel, Co-Head of Dispute Resolution Practice
Andrii Konoplia, Attorney at Law, Counsel, Insolvency Receiver, Co-Head of Dispute Resolution Practice
Source: Yurydychna Gazeta
From 18 October 2023, each participant in a court proceeding must have an electronic cabinet within the Unified Judicial Information and Telecommunication System (UJITS). This requirement is now enshrined in the legislation.
Lawyers, notaries, public and private enforcement officers, insolvency receivers (for civil and economic processes), forensic experts, state authorities, local self-government bodies, and other legal entities are all required to register an electronic cabinet with UJITS.
However, there are certain exceptions: individuals are not obligated to register, and private law entities were required to register for the purpose of participating in economic processes starting on 18 October 2023. For administrative and civil processes, registration was required by 20 February 2024.
Beginning on 18 October 2023, courts have been enforcing negative procedural consequences for those obligated to register but who have failed to do so. These consequences include leaving procedural documents without movement, returning them, or dismissing them without consideration.
Having covered the path from initial resistance from the legal community and to its current mandatory everyday use, the electronic cabinet within UJITS has evolved into a convenient and functional tool for communication between the court and legal process participants.
While traditional paper submissions are still allowed, our law firm’s lawyers increasingly prefer electronic communication with the court. This approach saves both time and money, particularly for clients who would otherwise incur additional costs for document preparation, submission, and distribution.
Notably, current legislation offers a 0.8% reduction coefficient in court fees for documents submitted through electronic court, a benefit our firm consistently utilizes.
At the same time, it should be noted that regulatory innovations regarding UJITS, especially in the early stages (starting from the date of entry into force of changes to the procedural codes), introduced several regulatory challenges, the answers to which are still provided by law enforcement practice.
One significant area of uncertainty from 18 October 2023 to 04 November 2023, concerned the registration of electronic cabinets for foreign companies.
Registering an electronic cabinet with UJITS requires a qualified electronic signature, which in turn requires a tax number (taxpayer registration identification card number). This requirement implies that foreign companies would need to establish a representative office or branch in Ukraine, appoint a director, and register an electronic cabinet with UJITS.
Given the involvement of Ilyashev & Partners in numerous court cases involving foreign companies, it sought clarification from the State Judicial Administration, which confirmed that foreign companies are not required to register an electronic cabinet with UJITS.
Subsequent amendments to the procedural codes clarified this further and introduced the term “other legal entities registered under Ukraine’s legislation”.
During the initial use of UJITS modules, several practical issues arose, particularly concerning the correct entry of information in procedural documents about the registration of the party and the lawyer in the electronic cabinet in UJITS.
Verification of an electronic cabinet in UJITS is done using either the identification code from the Unified State Register of Enterprises and Organizations of Ukraine (USREOU) (for legal entities) or the taxpayer registration identification card number (for individual persons). While the USREOU code is publicly accessible, the taxpayer registration identification card number raises some questions.
There have been instances where procedural documents submitted via mail or in person indicated that the party and the attorney-representative had an electronic cabinet, yet these documents were left without movement because the attorney-representative’s taxpayer registration identification card number was missing from the case files. This made it impossible for the court to verify the existence of an electronic cabinet.
This inconsistency in legislation suggests that if procedural laws had required representatives to include their taxpayer registration identification card number when submitting claims to court, UJITS modules would have been more effective.
Since then, the judicial system has provided some clarity.
In a judgment dated 22 April 2024, issued in case No. 910/11661/23, the Cassation Commercial Court ruled that an attorney-representative must indicate in the procedural document whether they have an electronic office and include information that allows the court to verify compliance with the legal requirements for registering an electronic cabinet.
At the same time, in the judgment of the Commercial Court of Cassation, it was stated that: “32. The court agrees that Article 170 of the Economic Procedure Code of Ukraine does not require attorneys to indicate their taxpayer registration identification card number in the application (motion, objection). Therefore, on this basis, the court has no right to return the relevant application without consideration. At the same time, it is with the use of the registration number of the taxpayer’s account card that the court can verify the presence of an electronic cabinet”.
Similarly, in a judgment by the Grand Chamber of the Supreme Court on 31 January 2024, in case No. 990/330/23, the court confirmed that the taxpayer registration identification card number is the relevant information for verifying an attorney’s compliance with the obligation to register an electronic office.
Another significant aspect of working with UJITS modules is the right not to send documents to a legal entity that is a party to the case if that entity was required to register an electronic cabinet in UJITS but failed to do so. Especially in complex bankruptcy cases involving multiple parties, this significantly simplifies the process of submitting documents to the court and saves time for the lawyer.
The Cassation Economic Court affirmed this approach in its judgment dated 14 June 2024, issued in case No. 908/2005/23, stating that “…by virtue of the provisions of Article 42(7) of the Economic Procedure Code of Ukraine PERSON_1 as a plaintiff in a counterclaim within the scope of this case, taking into account the provisions of paragraphs 8.21.1–8.24 of this judgment, was exempted from the obligation to send a copy of the appeal with attachments to the Company, and therefore the court imposed such an obligation on the appellant of the appellate instance contradicting the norms of the Economic Procedure Code of Ukraine”.
Our experience with UJITS subsystems shows that courts consistently apply Article 170(4) of the Economic Procedure Code of Ukraine: the court, having established that the written statement (petition, objection) was submitted without complying with the requirements of part 1 or part 2 of this article, returns it to the applicant without consideration. In addition, the court returns the written statement (petition, objection) to the applicant without consideration even if it was submitted by a person who, in accordance with Article 6(6) of the Economic Procedure Code of Ukraine was obliged to register an electronic cabinet, but did not register it. It sometimes surprises us that our procedural adversaries make so small, at first glance, mistakes that have a significant negative impact on our cases.
Established judicial precedents, such as the Commercial Court of Cassation Ruling dated 15 November 2023, which was issued in case No. 904/9070/21, shows that courts consistently reject such applications without consideration.
Additionally, some cases involve the submission of documents sealed with a qualified electronic signature via email, bypassing UJITS modules. Such cases are not isolated. Courts react to such cases differently. Commercial courts mainly return such applications based on the previously mentioned Article 170(4) of the Economic Procedure Code of Ukraine, justifying its decision by the fact that the submission of documents to the court in electronic form can be carried out exclusively through EUITS modules. An example of the above law enforcement practice is the judgment of the Commercial Court of Cassation dated 12 December 2023, which was issued in case No. 927/561/21.
In conclusion, we may confidently state that UJITS modules have become an integral part of the interaction between court parties and the judiciary. While the initial implementation of UJITS and its separate modules, particularly the electronic court, faced some challenges, the system is now a convenient tool that enhances court efficiency.
By adhering to current judicial practices and regulatory requirements, lawyers can ensure the effective and high-quality use of UJITS subsystems in their work.
