On December 22, 2021, the Supreme Court, as a member of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation, considered in written proceedings the case on the application of PERSON _1 to replace the debt collector in the writ of execution.
The court established that by the verdict of the local court, which was left unchanged by the decision of the appellate court and the decision of the Supreme Court, PERSON_2 was sentenced under the fourth part of Article 190 of the Criminal Code of Ukraine (hereinafter – the Criminal Code of Ukraine) to imprisonment for a term of 7 years with confiscation of property; PERSON_3 – according to the fourth part of Article 190 of the Criminal Code of Ukraine, to the penalty of imprisonment for a term of 5 years with confiscation of property. The civil claim for recovery of the amount of compensation for material and moral damage jointly with PERSON_2 and PERSON_3 in favor of PERSON_4 was satisfied. The debt collector in the enforcement letters issued by the local court indicated the victim in the criminal case PERSON_4, who died.
The court of first instance, with the conclusion of which the appellate court also agreed, satisfied the application and replaced the debt collector PERSON_4 in the writ of execution No. 232/1378/12, issued by the local court, with his legal successor PERSON_1.
The Supreme Court annulled the decision of the appellate court in accordance with paragraph 1 of the first part of Article 411 of the Civil Code of Ukraine and referred the case to the appellate court for a new consideration in view of the following.
PERSON_1 applied for the replacement of the debt collector in the writ of execution, issued to fulfill the court's judgment in the part of the civil lawsuit. The application was submitted within the framework of criminal case No. 232/1378/12.
A systematic analysis of the norms of articles 128, 537, 539 of the Criminal Procedure Code of Ukraine provides grounds for the conclusion that the competent court, which should consider the issue of replacing the debt collector in the writ of execution, is the corresponding court for consideration of criminal proceedings, which considers such an issue in the order of execution of a court decision – sentence court, and in the case of non-regulation of one or another procedural issue by the rules of the Code of Criminal Procedure of Ukraine, the rules of the Code of Criminal Procedure of Ukraine are subsidiarily applied.
According to parts one, two, four, five of Article 15 of the Law of Ukraine "On the Judicial System and the Status of Judges", cases in courts are considered by a judge alone, and in cases determined by the procedural law – by a panel of judges, as well as with the participation of jurors. A judge who hears a case alone acts as a court. The determination of a judge or panel of judges for consideration of a specific case is carried out by the Unified Judicial Information and Telecommunication System in accordance with the procedure determined by the procedural law. Cases are distributed taking into account the specialization of judges.
In assessing the appropriateness of the composition of the court that considered PERSON_1's application to replace the debt collector in the writ of execution, the Supreme Court took into account that the trial of the case in the court of first instance was carried out according to the rules of the Criminal Code of Ukraine with additional application of the rules of the Criminal Code of Ukraine, since the Criminal Code of Ukraine does not contain rules on replacing the party executive proceedings for the execution of the court verdict in the part of the settlement of the civil lawsuit.
Instead, in accordance with the content of the disputed resolution of the court of appeals, the consideration of this case in connection with the decision on the application for the replacement of the debt collector in the writ of execution was carried out by the panel of judges of the court chamber for consideration of civil cases according to the rules of the Code of Civil Procedure of Ukraine.
The analysis of the content of the decisions of the meetings of judges of the appellate court, contained in the case materials, as well as the rules of the Criminal Code of Ukraine regarding the procedure for considering issues that arise during the execution of the court verdict, in particular, on the replacement of the party in the writ of execution, shows that the appellate consideration of the statement of PERSON_1 about the replacement of the debt collector in the writ of execution for the execution of the court verdict in the part of the settlement of the civil claim was carried out by an unauthorized composition of the court – a panel of judges of the court chamber for consideration of civil cases of the court of appeals, which is an unconditional and mandatory basis for canceling the contested decision of the court of appeals with referral of the case to a new appeal proceedings.
The above led to consideration and resolution of the specified procedural issue not in the order of criminal proceedings, which would be correct, but erroneously in the order of civil proceedings.
You can read more about the text of the decision of the Supreme Court of December 22, 2021 in case No. 232/1378/12 (proceedings No. 61-8211св21) at the link https://reyestr.court.gov.ua/Review/102149376 .