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The Supreme Court, as a member of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation, considered case No. 161/3482/21 , in which it emphasized the fact that it considers the conclusion of the appellate court about the existence of grounds for recognition as unfiled and the return of the appeal with reference to the impossibility of appeal to be erroneous at the same time in one appeal complaint of independent procedural documents – decision and additional decision of the court.
The circumstances of the case
It is known from the case materials that the plaintiff appealed to the court with a claim against Joint Stock Company "A", a private notary of the Lutsk City Notary District to declare the deed invalid, to declare it illegal, and to cancel the decision of the private notary on the state registration of ownership rights to immovable property and the obligation to action
The lawsuit was satisfied by the decision of the Lutsk City District Court of the Volyn Region.
Disagreeing with the said decision of the court of first instance and the additional decision of the court of first instance, the private notary appealed them.
By the decision of the Volyn Court of Appeals, the appeal of a private notary against the decision of the Lutsk City District Court of the Volyn Region dated April 14, 2021 and the additional decision of the Lutsk City District Court of the Volyn Region dated April 20, 2021 was recognized as not filed and returned.
The decision of the appeals court is motivated by the fact that the demand of the appeals court on the need to eliminate the shortcomings of the appeal, provided for in clause 4 of the second part of Article 356 of the Civil Code of Ukraine, is set out in the decision of the Volyn Appeals Court of July 19, 2021 regarding the impossibility of appealing at the same time in one appeal of independent procedural documents – the decision and the additional decision of the court, which the other parties to the dispute appealed separately, were not fulfilled by the defendant, therefore the appellate court, referring to the requirements of the third part of Article 185 of the Civil Code of Ukraine, recognized the appeal of the private notary of the Lutsk City Notary District as unfiled and returned it.
The analysis of the requirements of articles 270, 352, 356, 357 of the Civil Code of Ukraine does not provide grounds for the conclusion that the procedural law does not provide for the possibility of challenging in one appeal at the same time two procedural documents – the court decision and the additional court decision adopted by the court of first instance.
The court established that by an additional decision of the Lutsk City District Court of the Volyn Region, the defendants JSC "A", the private notary of the Lutsk City Notary District, in favor of the plaintiff, incurred and documented court costs in the amount of UAH 2,724.00 and court costs were collected in equal parts from the defendants for legal aid in the amount of UAH 15,000.00.
With the specified additional decision, the court of first instance resolved the issue of the distribution of court costs incurred by the plaintiff in the court of first instance, which were subject to recovery from the defendants in connection with the satisfaction of his claims by the decision of the Lutsk City District Court of Volyn Region dated April 14, 2021.
Therefore, such an additional decision, although it is a separate procedural document, but due to the requirements of paragraph 3 of the first part of Article 270 of the Civil Code of Ukraine, it is an integral part of the main court decision and can be appealed in one appeal together with the main court decision, since the procedural law it is not forbidden.
The Supreme Court reminded that in accordance with Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, every natural or legal person is guaranteed the right to a court hearing within a reasonable time of a civil, criminal, administrative or economic case, as well as a case of an administrative offense, in which she is a party.
In this way, the "right to a trial" is exercised, which, according to the practice of the European Court of Human Rights (hereinafter – the ECtHR), includes not only the right to initiate proceedings, but also the right to obtain a "resolution" of the dispute by the court (the decision in the case "Kutić v. Croatia" by March 1, 2002).
The Supreme Court emphasized that Ukraine, as a member of the Convention, should create conditions to ensure access to justice as a universally recognized international standard of fair trial.
The ECtHR determined that the right to access to court must be "applied in practice and be effective" (decision in the case "Belle v. France" dated December 4, 1995).
Therefore, based on the norms of the Constitution of Ukraine, the norms of international law and the provisions of the Civil Procedure Code of Ukraine, the return of the appeal on formal grounds made it impossible for the defendant to access justice to protect his rights and interests through a trial.
In connection with the above, the panel of judges considers the conclusion of the appellate court about the existence of grounds for recognizing the appeal as unfiled and returning the appeal with reference to the impossibility of appealing at the same time in one appeal of independent procedural documents – the decision and the additional decision of the court – erroneous.
The Supreme Court noted that the appellate court did not comply with the requirements of the civil procedural law, therefore the contested decision of the appellate court cannot be considered legal and justified and is subject to cancellation with the referral of the case to the appellate court for further consideration from the stage of deciding the issue of opening appellate proceedings.