The overview of legal positions was prepared by the Higher School of Advocacy of the National Bar Association of Ukraine.
The first priority in cases of recognizing an individual as legally incapable is for the court to determine whether the applicant has legal personality.
📌 Resolution of the Supreme Court composed of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated December 25, 2024 in case No. 209/2893/22
In accordance with Part Three of Article 296 of the Code of Civil Procedure of Ukraine, an application for recognition of an individual as legally incompetent may be submitted by members of his or her family, close relatives, regardless of their joint residence, a guardianship and trusteeship body, or a psychiatric care institution.
The legislation does not provide an exhaustive list of family members and does not define criteria for determining whether individuals constitute a family. Such criteria for classifying members of the same family are cohabitation (with the exception of the possibility of spouses living separately for good reason and a child with his parents), common life and mutual rights and obligations of persons who have come together to live together.
In refusing to satisfy PERSON_1’s application to declare PERSON_3 incompetent and establish guardianship over him, the appellate court proceeded from the fact that the applicant did not provide proper and admissible evidence to confirm that PERSON_3, INFORMATION_2, is indeed his relative, and therefore did not prove that he is a subject within the meaning of Part Three of Article 296 of the Civil Code of Ukraine, who has the right to apply to the court with an application to declare a person incompetent.
The Supreme Court draws attention to the fact that the primary task in this category of cases is for the court to determine whether the applicant has legal personality, namely, whether he belongs to a certain group of persons who have the right to file an application for recognition of a person as incapacitated, establishment of guardianship and appointment of a guardian.
Having established that PERSON_1 did not prove that he was a family member or close relative of PERSON_3, whom he requested to be declared incompetent and to be placed under guardianship, and therefore did not confirm the procedural legal personality of the applicant in this case, the appellate court came to a well-founded conclusion that there were no legal grounds to grant his application.
🔗 Source: https://reyestr.court.gov.ua/Review/124084938
Regarding the mandatory participation of a person in respect of whom a case is being considered for recognition of his/her incapacity
📌 Resolution of the Supreme Court composed of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation dated October 23, 2024 in case No. 306/1802/21
A systematic analysis of the above norms of procedural law indicates that the participation of the person in respect of whom the case of recognition of his incapacity is being considered was mandatory, both at the time of the applicant’s application for recognition of the person as incapacitated and the appointment of a guardian, and at the time of consideration of the case by the courts of first and appellate instance, and from August 3, 2023, the requirements of the procedural law provide for the mandatory participation of a lawyer in this category of cases. The mandatory participation of the person in respect of whom the case of recognizing him as incapacitated is being considered during the consideration of cases of recognizing an individual as incapacitated is explicitly provided for by Part Five of Article 293 of the Code of Civil Procedure of Ukraine and Part One of Article 299 of the Code of Civil Procedure of Ukraine in its current version.
However, as evidenced by the case materials, PERSON_2 never participated in court hearings in the court of appeal during the review of the decision of the Svalyavskyi District Court of the Transcarpathian Region of January 18, 2023. Moreover, on April 29, 2024, PERSON_2 filed an application with the Court of Appeal, in which she requested to postpone the court hearing scheduled for April 30, 2024, noting her desire to participate in the court hearings. A similar application was filed by her lawyer Dudurich I. IN. January 31, 2024, in which the latter noted PERSON_2’s intention to take direct part in court hearings in the court of appeal. However, the appellate court ignored this and considered the case in the absence of the person against whom the case of recognizing him as legally incompetent is being considered, thereby violating the constitutional right of such a person to participate in the court session and the requirements of the Code of Civil Procedure of Ukraine.
In addition, the Supreme Court draws attention to the fact that a notification by a party to the case via the Viber messenger cannot be considered a proper notification of such a party about the consideration of the case within the meaning of Articles 128, 130 of the Code of Civil Procedure of Ukraine.
In the appeal, PERSON_2 referred to the fact that almost a year after PERSON_1 applied to the court of first instance with this application, neither she nor her lawyer were summoned to court sessions, and without her participation and the participation of the lawyer, the court of first instance ordered a forensic psychiatric examination and an additional forensic psychiatric examination, with the conclusions of which PERSON_2 categorically disagrees.
If there is sufficient evidence of a mental health disorder of an individual, the court shall order a forensic psychiatric examination to establish his or her mental state. In exceptional cases, when a person against whom proceedings have been initiated in a case to restrict his/her civil capacity or declare him/her incapacitated, clearly evades undergoing an examination, the court in a court session with the participation of a psychiatrist may issue a ruling on the compulsory referral of the individual for a forensic psychiatric examination (Article 298 of the Code of Criminal Procedure of Ukraine).
An analysis of the content of the specified norm indicates that such an examination is conducted with the participation of the person in respect of whom the case of recognizing him as incapacitated is being considered.
The panel of judges notes that cases of recognizing a person as legally incompetent are cases of separate proceedings, which have a special procedure for consideration and resolution, related both to the need to protect the interests of a person who cannot acquire civil rights for himself and exercise them independently, as well as create civil obligations for himself by his actions, independently fulfill them and bear responsibility in case of their failure, and to the need to establish the mental state of such a person.
Considering that, as a result of improper investigation and evaluation of the collected evidence, the appellate court did not establish the factual circumstances that are important for the correct resolution of the case, the court decision adopted by it cannot be considered lawful and justified, and therefore is subject to cancellation with the transfer of the case for a new trial. The Supreme Court took into account that the appellate court did not eliminate all violations committed by the local court during the consideration of the case, and therefore, for the purpose of procedural economy and taking into account the powers of the appellate court defined by procedural law, concluded that the case should be referred for a new appellate consideration.
🔗 Source: https://reyestr.court.gov.ua/Review/123410495
By court decision, an individual is declared incompetent in full, and not in relation to a specific transaction committed by him/her.
📌 Resolution of the Supreme Court composed of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation dated August 21, 2024 in case No. 201/1531/23
Leaving the application without consideration, the court of first instance, with which the appellate court agreed, concluded that since PERSON_1 and PERSON_2 filed an application to declare PERSON_4 incompetent and establish guardianship over him (in the event of his being declared incompetent), but PERSON_4 has an official assistant who provides constant care for him, there is a dispute over the right.
However, the panel of judges cannot agree with this conclusion of the lower courts for the following reasons.
The subject of judicial activity in this case is the direct determination of the presence of grounds for establishing such a legal status of an individual as incapacity. By court decision, an individual is declared incompetent in full, and not in relation to a specific transaction committed by him.
If the recognition of a marriage, contract, or other transaction as invalid depends on the time of the onset of incapacity, the court, taking into account the conclusion of a forensic psychiatric examination and other evidence regarding the mental state of the person, may determine in its decision the day from which he or she is recognized as incapacitated (Part Two of Article 40 of the Civil Code of Ukraine).
The presence of an assistant to PERSON_4 does not indicate a dispute over the right.
Under such circumstances, the conclusion of the court of first instance, with which the court of appeal agreed, to leave the application without consideration is incorrect, in connection with which the contested court decisions, in accordance with Article 411 of the CPC of Ukraine, are subject to cancellation with the case being referred for a new consideration to the court of first instance.
🔗 Source: https://reyestr.court.gov.ua/Review/121222017
To ensure the correct and timely consideration of cases on the recognition of a certain circumstance, in each case after its initiation, the court, depending on the purpose of establishing the legal fact, is obliged to find out which individuals or state authorities may be interested in resolving this case.
📌 Resolution of the Supreme Court composed of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated April 17, 2024 in case No. 686/12049/23
Involving all interested parties in the separate proceedings is important because it helps the court avoid making an illegal decision and exclude the possibility of a competing decision with another interested party in the future, and also aims to fully and comprehensively investigate all the circumstances of the case.
When deciding which interested person should be involved in a separate proceeding, in addition to the above, one should also take into account the relationship with the applicant in connection with the circumstances that are subject to recognition and that may affect their interests and (or) obligations.
In the case under review, the recognition of PERSON_3 as incapacitated may affect the rights and obligations of PERSON_4, since the latter is the acquirer of PERSON_3’s property under the gift agreement concluded with him on January 29, 2010, and the applicant requests that PERSON_3 be recognized as incapacitated precisely from the moment of the conclusion of this agreement.
Therefore, the court of first instance must properly determine the subject composition of the participants in the case, explain to the applicant the right to file a motion regarding the involvement of PERSON_4 in the case as an interested person, assist the participants in the case in the exercise and protection of their rights and interests, and make a lawful and reasoned decision based on the evidence available in the case materials.
During the new review, the court must take into account the above, properly determine the subject composition of the participants in the case, explain to the applicant the right to file a motion regarding the involvement of PERSON_4 in the case as an interested person, assist the participants in the case in exercising and protecting their rights and interests, consider the case within reasonable time limits established by law, observing the requirements of substantive and procedural law, investigate and properly evaluate the evidence collected in the case, give a legal assessment of the arguments and objections of the participants in the case, and adopt a lawful and fair judicial decision in accordance with the established circumstances and the requirements of the law.