On September 20, 2021, the Supreme Court as part of the Joint Chamber of the Civil Court of Cassation in case No. 638/3792/20 specified the conclusion regarding the closure of the proceedings on the basis of Clause 2, Part 1 of Article 255 of the Code of Civil Procedure of Ukraine.
The woman appealed to the court with a lawsuit against her ex-husband with a claim for the division of the marital property.
The District Court, referring to the decision of the Supreme Court dated May 13, 2020 in case No. 686/20582/19 , closed the proceedings regarding claims for property division, recognition of ownership rights and collection of real estate objects, citing the fact that the dispute regarding the division of joint immovable property of the spouses was decided by the parties by concluding an agreement on the division of the property of the spouses, and therefore there are no grounds for consideration of this dispute in court.
The appellate court overturned the decision of the district court regarding the closure of the proceedings, the case was sent to the court of first instance for further consideration, with the indication that the closure of the proceedings on the grounds provided for in Clause 2, Part 1 of Art. 255 of the Civil Code of Ukraine, it is possible only in a court session, and not during a preparatory court session. At the same time, referring to the decisions of the Supreme Court dated April 10, 2019 in case No. 456/647/18 and dated May 13, 2020 in case No. 686/20582/19 , he indicated that the court can close the proceedings in the case of due to the absence of the subject of the dispute, if he establishes that the subject of the dispute was absent precisely at the time of filing the claim.
Having considered the cassation appeal of the defendant, the Supreme Court indicated that the concept of "legal dispute" should be interpreted broadly, based on the approach of the European Court of Human Rights to the interpretation of the concept of "legal dispute" (clause 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ). In particular, the European Court of Human Rights notes that, in accordance with the spirit of the Convention, the concept of "legal dispute" should not be considered purely technically, it should be given an essential, not a formal meaning.
Under such circumstances, closing the proceedings on the grounds provided for in Clause 2, Part 1, Art. 255 of the Civil Code of Ukraine, it is possible only in a court session, and not during a preparatory court session, since according to Art. 200 of the Code of Criminal Procedure of Ukraine, namely its fourth part, the closing of the proceedings is possible at this stage of the process on two grounds: refusal of the claim, recognition of the claim and conclusion of a settlement agreement, defined in Art. 206, 207 of the Civil Code of Ukraine.
In the decisions of the Supreme Court dated April 10, 2019 in case No. 456/647/18; dated May 13, 2020 in case No. 686/20582/19 ; dated September 9, 2020, in case No. 750/1658/20, it is stated that the closure of the proceedings due to the absence of the subject of the dispute is possible only if the subject of the dispute is not present at the time of filing the lawsuit.
According to the legal opinion expressed by the Grand Chamber of the Supreme Court in the decision of June 26, 2019 in case No. 13/51-04, examples of the absence of a subject of dispute can be the actions of the parties or the occurrence of circumstances, if there is no agreement between the parties in this regard unsettled issues or disputed issues settled by the parties themselves. The court closes the proceedings in the case due to the absence of the subject of the dispute, in particular, in the case of the termination of the existence of the subject of the dispute, if there are no unresolved issues between the parties in this regard.
In view of the approach adopted by the Grand Chamber of the Supreme Court in the ruling on case No. 13/51-04 , the Supreme Court deviated from the conclusion formulated in the above-mentioned rulings, specifying this conclusion in such a way that the closure of the proceedings on the basis of Clause 2 h 1 Art. 255 of the Code of Criminal Procedure of Ukraine is possible if the subject of the dispute was absent both at the time of the filing of the claim and at the time of the adoption of the court decision by the court of first instance.