The position of the Grand Chamber of the Supreme Court regarding the general principles of reviewing court decisions based on newly discovered circumstances
On the twenty-fifth of May 2021, the Grand Chamber of the Supreme Court, within the framework of case No. 752/4995/17 , proceedings No. 14-41ts21 (EDRSRU No. 98483124), investigated the issue of general principles of reviewing court decisions under newly discovered circumstances.
The grounds for such a review are, in particular, circumstances essential to the case, which were not established by the court and were not and could not be known to the person making the application at the time of the case review ( part one and paragraph 1 of part two of Article 423 of the Civil Procedure Code of Ukraine) . Precepts similar in content are found in part one and point 1 of part two of Article 320 of the Commercial Procedure Code of Ukraine, part one and point 1 of part two of Article 361 of the Code of Administrative Procedure of Ukraine.
The procedure for revising the final court decision based on newly discovered circumstances is not the same as a new trial and does not involve a re-evaluation of all the arguments of the parties. The court should review the previously adopted decision only within the newly discovered circumstances. The basis for such a review is not the shortcomings of the court's consideration of the case (illegality and (or) unfoundedness of the court decision, resolution or decision, incorrect application of the norms of substantive law by the court, violation of the norms of procedural law), but the fact that at the time of the decision the court was not able to take into account a significant a circumstance that could significantly affect the resolution of the case, since its participants did not know about this circumstance and, accordingly, could not confirm it in court. That is, the revision of the case in connection with the newly discovered circumstances is not aimed at eliminating judicial errors, but at the revision of the court decision in the already considered case, taking into account the circumstance, the existence of which became known after the adoption of such a decision (see the resolution of the Grand Chamber of the Supreme Court in case no. 19/028-10/13 dated June 30, 2020 (clauses 7.4-7.5)).
Newly discovered circumstances are legal facts that are of significant importance for the consideration of the case, existed at the time of its consideration, but were not and could not be known to the applicant, as well as circumstances that arose after the court decision entered into force and are classified by law as newly discovered circumstances. The question of what circumstances are considered essential is an assessment one. The court decides it in each specific case, taking into account whether these circumstances could refute the facts underlying the court decision and influence the conclusions of the court at the time of its adoption in such a way that if the indicated circumstance was known to the persons participating in the case, then the content of the court decision would be different (see the decision of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated October 21, 2020 in case No. 726/938/18 ).
According to Clause 1 of Part Two of Article 423 of the Civil Code of Ukraine, newly discovered circumstances are: included in the subject of proof in the relevant case; justify the claims or objections of the parties; may affect the court's conclusions about the rights and obligations of its participants or have other significant significance for the correct resolution of the dispute; existed at the time of consideration of the case, the decision of which is being reviewed; deny the factual data underlying such a decision; were not established when the court made this decision; were not and could not be known at the time of consideration of the case to the person applying for review of the decision; became known only after its adoption (see the decision of the Grand Chamber of the Supreme Court in case No. 127/10129/17 of January 22, 2019 (paragraph 26)).
It is important . A circumstance that is based on a reassessment of the evidence that has already been assessed by the court in the process of considering the case is not a newly discovered circumstance. In addition, the court decision cannot be revised in connection with newly discovered circumstances if the circumstances provided for by the second part of Article 423 of the Civil Code of Ukraine are absent, and also if the circumstances defined by the second part of Article 423 of the Civil Code of Ukraine were or could be known to the applicant at the time of consideration of the case (see the mentioned resolution in case No. 127/10129/17 (paragraphs 27, 28)).
Newly discovered circumstances that arose or changed after the court made a decision, new evidence or new justification for claims or objections to the claim do not belong to newly discovered ones. A circumstance that is based on a reassessment of the evidence that was already evaluated by the courts during the hearing of the case cannot be considered newly discovered (see the decision of the Grand Chamber of the Supreme Court in case No. 9901/819/18 of April 14, 2021 (paragraph 6.38)).
Instead of a conclusion
Newly discovered circumstances include facts of objective reality, on which the claims and objections of the parties are based, as well as other facts that are important for the correct resolution of the dispute. Necessary and general signs of newly discovered circumstances are: the existence of these circumstances during the consideration and resolution of the case and the adoption of the court decision, the review of which is submitted; at the time of consideration of the case, these circumstances could not objectively be known to either the applicant or the court; the materiality of these circumstances for the consideration of the case (that is, when taking these circumstances into account by the court would result in the adoption of a different court decision than the one that was adopted). Newly discovered circumstances differ from new circumstances, changed circumstances, and new evidence in terms of time, the subject of evidence, and the materiality of the impact on the court decision.
Source: Legal Bulletin of Ukraine