Supreme Court: Without Restoration of Lost Proceedings, the Appellate Court Cannot Resolve Procedural Issues

The Supreme Court, composed of judges from the Third Judicial Panel of the Cassation Civil Court, reviewed a case regarding the recognition of paternity, amendments to the child's birth record, and alimony recovery.

The Court concluded that in the absence of case materials, the appellate court had no legal grounds to decide on the opening of appellate proceedings without first restoring the lost court proceedings.

Circumstances of the Case

The plaintiff filed a lawsuit to recognize the defendant as the father of her minor child, to make corresponding changes to the birth record, to exclude information about another person as the child's father, and to recover alimony amounting to one-fourth of all types of the defendant's earnings (income), but not less than 50% of the subsistence minimum for a child of the respective age until the child reaches adulthood.

After the first instance court's decision, the defendant's representative filed an appeal in October 2024, requesting to restore the deadline for its submission. The cassation complaint stated that the defendant was unaware of the case hearing, did not sign the statement recognizing the claim referenced by the appellate court, and from November 2019 to June 2023 participated in activities necessary for Ukraine's defense.

During the appellate review, it was established that the paper materials of the civil case were not received by the court to which territorial jurisdiction was transferred after the martial law began. The appellate court only received electronic case materials.

Decisions of the First Instance and Appellate Courts

The Novopskov District Court of Luhansk Region, by its decision dated November 12, 2021, satisfied the claim. The court recognized the defendant as the child's father, obliged the civil registration authority to make the appropriate changes to the birth record, and ordered the defendant to pay alimony amounting to one-fourth of his income, but not less than 50% of the subsistence minimum for a child of the respective age, starting from the date of the decision until the child reaches adulthood.

The Dnipro Appellate Court, by its ruling dated November 25, 2024, refused to open appellate proceedings. The court reasoned that the defendant was notified of the case hearing and submitted a notarized statement recognizing the claim. Since there was no evidence that another person signed this statement, the appellate court concluded there were no grounds to restore the appeal deadline and applied the provisions of part two of Article 358 of the Civil Procedure Code of Ukraine.

Legal Conclusions of the Supreme Court

In case No. 942/924/21, the Supreme Court noted that the right to appellate review is one of the fundamental principles of justice, guaranteed by paragraph 8 of part three of Article 129 of the Constitution of Ukraine, as well as a component of the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court emphasized that Articles 488–489 of the Civil Procedure Code of Ukraine provide a special procedural mechanism for restoring fully or partially lost court proceedings. Such proceedings can be restored either at the request of a party or on the court's initiative, and their restoration is a procedural guarantee of the right to judicial protection, including the right to review a court decision in appellate and cassation procedures.

The panel of judges stressed that restoring lost court proceedings is a mandatory prerequisite for resolving any procedural issues in the case. Without restoring the case materials, deciding on the opening of appellate proceedings is impossible.

The Supreme Court established that at the time of considering the issue of opening appellate proceedings, the civil case materials were absent because the paper proceedings were not received by the court to which territorial jurisdiction was transferred. Under these circumstances, the appellate court prematurely refused to open appellate proceedings without addressing the issue of restoring the lost court proceedings.

The Court also referred to clarifications set out in the Resolution of the Plenum of the Supreme Court of Ukraine dated June 12, 2009, No. 2, as well as its own legal conclusion formulated in the ruling dated April 17, 2024, in case No. 2-1597/2003, according to which, in case of loss of case materials, the court must first ensure their restoration before deciding on further procedural progress.

In view of the above, the Supreme Court concluded that the appellate court's ruling does not meet the requirements of legality and reasonableness, partially satisfied the cassation complaint, annulled the ruling of the Dnipro Appellate Court, and remanded the case to the appellate court for further consideration.

During the new review, the appellate court must decide on restoring the lost court proceedings and then decide on the opening of appellate proceedings.

The cassation court's ruling enters into legal force upon its adoption, is final, and is not subject to appeal.

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