The appellate court reviewed the summary proceedings without notice to the parties and partially satisfied the appeal against the decision of the district court, which upheld the claim for protection of honor, dignity and business reputation and compensation for moral damages.
The Supreme Court, as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation, annulled the decision of the Court of Appeal, and referred the case to the Court of Appeal for a new hearing, making the following legal conclusions.
According to Clause 8 Part 2 of Art. 129 of the Constitution of Ukraine, one of the main principles of the judiciary is ensuring the right to an appellate review of the case and, in cases specified by law, to a cassation appeal of a court decision.
The European Court of Human Rights noted that the right to a public hearing enshrined in Clause 1 of Art. 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms provides for the right to an "oral hearing".
Article 43 of the Civil Code of Ukraine specifies that persons participating in the case have the right, in particular, to participate in court hearings, to submit their arguments, arguments regarding issues that arise during the trial, and objections to the motions, arguments and arguments of others persons
By the decision of the appellate court, the case was assigned for consideration in the appellate court in the order of simplified legal proceedings without notification of the parties to the case and without holding a court session.
But the appellate court did not pay attention to this.
The provisions of Part 1 of Art. 369 of the Civil Procedure Code of Ukraine regarding written proceedings based on the materials available in the case can be applied by courts of appellate instance only in the event that the claimant only claims property and the amount of the price of the claim is less than one hundred amounts of the subsistence minimum for able-bodied persons, except for those that are not subject to review in the order of simplified legal proceedings.
If there are claims of a non-property nature in the case, then consideration of such a case in the court of appeal is carried out in a court session with notification of the parties to the case.
In the case under review, the plaintiff, in addition to the claim for compensation for moral damage (property claim), presented claims of a non-property nature, namely the protection of honor, dignity and business reputation and refutation of false information.
Under such circumstances, the appellate court made an erroneous conclusion about the possibility of an appellate review of this case in a simplified legal proceeding without holding a court session and notifying the parties to the case (written proceedings).
This deprived the parties of a reasonable opportunity to represent their interests as participants in the case in the conditions provided for by procedural legislation, in particular in the conditions of an open and public trial. This prevented the parties from properly using the provisions of Art. 43 of the Civil Procedure Code of Ukraine procedural rights.
Resolution of the Supreme Court dated January 19, 2022 in case No. 331/3298/20 (proceedings No. 61-16503св21) – https://reyestr.court.gov.ua/Review/102765607 .