On November 1, 2021, the Supreme Court, as part of the combined chamber of the Civil Court of Cassation, considered in written proceedings the case on the claim of PERSON_1 against PERSON_2, third parties: the Executive Committee of the Odesa City Council, the Office of State Registration of the Legal Department of the Odesa City Council, a private notary of the Odesa City Notary of the district, on the establishment of the fact of living in one family of a man and a woman without marriage, the invalidation of the construction investment agreement in terms of the definition of the investor, the invalidation of the donation agreement, the recognition of the property as joint joint property and the recognition of the right of ownership.
At the stage of the preparatory session, the court repeatedly issued rulings based on the plaintiff's requests to demand evidence, to appeal to the presiding judge, to return an appeal against the court's decision to refuse to grant the request to demand evidence, to take measures to secure the claim. PERSON_1 submitted a petition to the court to appoint a forensic handwriting expert in the case.
Based on the results of consideration of PERSON_1's petitions, the court of first instance passed three resolutions on refusal to grant them.
By three decisions of the local court, the petitioner's request for the appointment of a forensic handwriting examination in the case and the demand for evidence were left unsatisfied.
PERSON_1 filed three appeals against the rulings of the local court, which the appellate court returned to the applicant.
The Supreme Court left unchanged the decisions of the Court of Appeal in view of the following.
The procedural mechanism for securing evidence, in particular by demanding it, is intended to obtain/preserve evidence for which there are sufficient grounds to believe that it may be irretrievably lost over time. Securing evidence is not only a way to obtain evidence that relates to the subject of evidence and is important/necessary for solving the case, but primarily a way to simultaneously prevent their probable loss in the future. That is, the risk of such a loss must be based on objective facts, and only in the aggregate of all the above conditions can the court take measures to provide evidence.
Participants in the case, persons who did not take part in the case, if the court decided the issue of their rights, freedoms, interests and (or) obligations, have the right to appeal in the appeal procedure the decisions of the court of first instance separately from the court decision only in the cases provided for Article 353 of this Code. Appeals against court decisions, which are not provided for in Article 353 of this Code, are not allowed separately from the court decision (part two of Article 352 of the Civil Code of Ukraine).
Objections to decisions that are not subject to appeal separately from the court decision are included in the appeal against the court decision (part two of Article 353 of the Civil Code of Ukraine).
Separately from the court decision, decisions of the court of first instance regarding the provision of evidence, refusal to provide evidence or cancellation of the decision on the provision of evidence may be appealed in the appeal procedure (paragraph 2 of part one of Article 353 of the Code of Criminal Procedure of Ukraine).
The analysis of these norms shows that the interpretation and application of the provisions of Article 353 of the Civil Code of Ukraine should take into account the possibility/impossibility of the person who files an appeal to renew his rights in a different way than by appealing in the appeal procedure the decision of the court of first instance separately from the decision court At the same time, any court decision is subject to appeal review independently or together with the court decision. The legislator distinguishes between the rulings of the court of first instance on the demand of evidence and on the provision of evidence.
If a request is made to provide evidence by demanding it, that is, if there are grounds for providing evidence and paying a court fee for submitting an application for providing evidence, then the decision of the court of first instance to refuse to grant such a request can be challenged in the appeal procedure on the basis of paragraph 2 the first article 353 of the Civil Code of Ukraine.
There is no ruling of the court of first instance on the refusal to grant the request for evidence in the list defined by paragraph 2 of the first part of Article 353 of the Civil Code of Ukraine. The decision of the court of first instance on the refusal to grant the request for evidence cannot be appealed in the appellate procedure, because taking into account the stage of consideration of the case, the person who files the appeal is not deprived of the opportunity to renew his rights in another way – by challenging such a decision in the appellate procedure together with the decision of the court of first instance.
You can read more about the text of the decision of the Supreme Court dated November 1, 2021 in case No. 520/14132/18 (proceedings No. 61-13531svo21) at the link https://reyestr.court.gov.ua/Review/100817047 .