Appeal of the decision to refuse to open proceedings

In the course of protecting their rights and legitimate interests, citizens often face the need to go to court. However, initiating a trial does not always guarantee its commencement. One of the possible results of consideration of an application or complaint may be a court order to refuse to open proceedings.

Why can the court refuse to open proceedings?

Article 122 of the Civil Procedure Code of Ukraine (hereinafter – CPC of Ukraine) defines an exhaustive list of grounds under which the court may refuse to open proceedings in the case. These include:

• The lack of jurisdiction of the case to this court. This means that the applicant appealed to the wrong court, which is authorized to consider this category of cases.
• Failure to comply with the requirements of the law to the application. The application submitted to the court may not be properly executed, contain incomplete or inaccurate information.
• Omission of limitation period. As a general rule, a lawsuit can be filed within a certain period, which is established by law.
• The plaintiff has no right to claim. This may be if the plaintiff is not the owner of the right for the protection of which he goes to court.
• The existence between the parties to the dispute of a previously adopted court decision that has entered into legal force.
• Filing an application by a person who does not have legal capacity.
• The death of the plaintiff or defendant if the disputed right or duty does not permit inheritance.
• Plaintiff’s refusal of the claim.
• Settlement agreement between the parties.

What are the reasons for refusing to open proceedings that are illegal?

Illegal reasons for refusal to open proceedings may be:

1. Incorrect application of the rules of law: if the court when making a decision to refuse to open proceedings incorrectly applied the rules of law.
2. Groundlessness of the court’s conclusions: if the court’s conclusions set forth in the ruling are not based on the investigated evidence.
3. Failure of the court to investigate all the circumstances of the case: if the court has not examined all the circumstances of the case that are relevant for making a legitimate and informed decision.

How to appeal a decision to refuse to open proceedings?

• Term for appeal: 15 days from the date of the decision.
• Where to file an appeal: to the court of appeal through the court of first instance, which issued the ruling.
• What should the appeal contain:

1. Name of the court of appeal;
2. Name of the court of first instance;
3. Name of the plaintiff, defendant and other participants in the case;
4. Contested definition.

• Also, the complaint must contain:

1. Appellant requirements: clearly state what you want to achieve as a result of the appeal proceedings. For example, you can ask: Cancel the decision to refuse to open proceedings; To oblige the court of first instance to open proceedings in the case.
2. Justification of the appeal: describe in detail why you consider the challenged ruling illegal and unreasonable. Refer to the norms of the current legislation, which, in your opinion, were violated by the court;
3. Attachments to the appeal: attach to the appeal all the documents that confirm your arguments. For example, copies of the statement of claim, evidence, responses to the claim, explanations, etc.

Why is it important to use the help of an experienced lawyer?

Using the help of an experienced lawyer when appealing a decision to refuse to open proceedings is very important. These has several important advantages:

1. An experienced lawyer has knowledge and understanding of the procedures and legal norms associated with appealing such decisions. He can carefully analyze your case, identify legal arguments and develop an appeal strategy.
2. The specialist will help to collect all the necessary documentation and evidence that will support your position in the appeal. It may also draw up all the necessary legal documents for lodging an appeal or complaint accordingly.
3. A professional can represent you in court or before the relevant authorities considering your case. This will allow you to have a professional defender of your interests and increase the chances of a successful outcome.
4. An experienced expert will help to avoid potential mistakes or misunderstandings that may arise when independently challenging the decision. He will be able to pay attention to any shortcomings in the decision and respond to them in a timely manner.
5. With the help of an experienced lawyer, you can maximize your chances of a successful outcome when appealing a decision to refuse to open proceedings.

Therefore, in view of the above advantages, it is important to use the help of a professional in appealing the decision to refuse to open proceedings to ensure effective and competent representation in court and maximize your chances of a successful outcome.

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