June 14, 2023 The Supreme Court, as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation in case No. 308/10650/19, satisfied the cassation appeal of the LLC, which was unjustifiably denied the opening of appeal proceedings.
The LLC appealed to the court with a lawsuit, in which it asked to declare illegal and cancel the decision on the state registration of rights and their encumbrances, to cancel the records of ownership.
By the decision of the city district court of December 19, 2022. the claim was refused on the grounds that the method of legal protection chosen by the plaintiff is ineffective and will not restore his violated rights.
By the decision of the Court of Appeal dated March 23, 2023. the opening of appeal proceedings on the appeal of the LLC was refused with reference to the fact that the plaintiff’s representative was present at the court hearing on December 19, 2022. and knew about the issuance of the resolution and decision of December 19, 2022. At the same time, the court indicated that in the decision of December 19, 2022 (introductory and operative parts) it is stated that the full decision will be drawn up on December 28, 2022.
In addition, on January 13, 2023, the representative of the LLC filed an appeal against the decision of December 19, 2022, while being aware of the court’s decision. However, the plaintiff filed an appeal against the court’s decision only on March 3, 2023. The plaintiff’s representative did not apply to the court with an application for the issuance of the decision, and the arguments given in the motion for renewal of the deadline are that the full text of the court decision was sent by the court to the USSR only on February 2, 2023 ., is not a valid reason for renewing such a term .
In the cassation complaint, the LLC noted that the reasons for missing the deadline for appealing the court decision are valid .
The Supreme Court indicated that the appellate court did not take into account the fact that on December 19, 2022 the court of first instance announced the introductory and final parts of the court decision, the full text of the court decision was not sent to the plaintiff, but the decision of the city district court dated December 19, 2022 was sent to the EDSRSR. was sent by the court on February 2, 2023. and published on February 6, 2023. At the same time, the court of first instance did not indicate in the court decision the date of drafting the full text of the court decision, which is of significant importance for consideration by the appeals court when opening appeal proceedings and the plaintiff’s exercise of the right to access to justice.
However , without receiving the full text of the court’s decision, it is impossible to fulfill the requirements of the Civil Code of Ukraine regarding the proper motivation of the appeal .
Recognizing the reasons for missing the deadline for an appeal, stated by the applicants, as invalid, the appellate court did not pay attention to the fact that the court of first instance did not fulfill the requirements Art. 272 The CPC of Ukraine regarding the delivery of the court decision did not refute the plaintiff’s arguments that a copy of the decision of the court of first instance was not sent to their addresses and was not delivered, did not assess the fact that the publication of the text of the court decision in the EDRSR does not fulfill the function of the court regarding the delivery of the court decision.
An exhaustive list of cases that confirm the date of delivery of the court decision is given in h 6 Art. 272 CPC of Ukraine, and in this list, the date of publication of a court decision in the EDRSR is not equated to the day of delivery of the court decision. The opportunity to learn about the decision of the court of first instance from the USSR is only the right of the applicant. At the same time , the publication of a court decision in the EDRSR does not cancel the court’s obligation to send copies of court decisions to the parties in a timely manner .
Similar legal conclusions are set forth in the resolutions of the Supreme Court dated July 14, 2022. in case No. 285/2686/20-ts , dated November 3, 2021. in case No. 2-3552/10 , dated January 19, 2022. in case No. 752/19105/21 , dated February 25, 2021 in case No. 679/219/20 , dated August 11, 2020. in case No. 404/4551/19 , dated November 16, 2022. in case No. 752/24301/19 .
Therefore, the Supreme Court annulled the decision of the appellate court and transferred the case to the appellate court for further consideration to resolve the issue of opening appellate proceedings.
Prepared by Leonid Lazebnyi