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13.01.2022

The irregularity of the civil process cannot limit the right of applicants to judicial protection, including in cases of separate proceedings

On September 15, 2021, the Supreme Court, as part of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation in case No. 367/2656/20 , satisfied the cassation appeal of the applicant, stating that the courts should be guided, first of all, by the tasks of civil justice.

The person appealed to the court with a statement to establish the fact of the death of a citizen of Ukraine who died on the occupied territory of the Republic of Cyprus, namely on the territory of the unrecognized "Turkish Republic of Northern Cyprus" in the northern part of the city of Nicosia.
The decision of the city court, upheld by the appeals court, refused to open proceedings on the grounds that, according to the materials provided by the applicant, the death of a citizen of Ukraine occurred on the territory of the unrecognized "Turkish Republic of Northern Cyprus". However, the Civil Code of Ukraine does not provide for the possibility of establishing the fact of a person's death on the territory of a foreign state by a court.
In the cassation appeal, the applicant insisted that the courts did not take into account that the so-called "Turkish Republic of Northern Cyprus" was condemned by the world community and declared illegal. Non-recognition of this territory by the international community and, in particular, by Ukraine, makes it impossible to protect Ukrainian citizens from the diplomatic institutions of Ukraine.
The Supreme Court indicated that in accordance with the first and second parts of Art. 2 of the Civil Procedure Code of Ukraine, the task of the civil judiciary is the fair, impartial and timely consideration and resolution of civil cases in order to effectively protect the violated, unrecognized or contested rights, freedoms or interests of individuals, the rights and interests of legal entities, and the interests of the state. The court and the participants in the legal process are obliged to be guided by the task of civil justice, which prevails over any other considerations in the legal process. According to Clause 5, Part 2 of Art. 293 of the Code of Criminal Procedure of Ukraine, the court shall consider in separate proceedings cases on the establishment of facts of legal significance.
In accordance with Clause 8, Part 1, Art. 315 of the Civil Code of Ukraine, the court considers cases of establishing the fact of the death of a person at a certain time in case of impossibility of registration of the fact of death by the state registration body of acts of civil status.
The court of first instance, with the conclusions of which the appellate court agreed, came to the erroneous conclusion that the Civil Code of Ukraine does not provide for the possibility of the court establishing the fact of a person's death on the territory of a foreign state. The fallacy of such conclusions lies in the fact that the uncertainty of the rules of procedural law cannot be interpreted against the applicants and limit their right to judicial protection, including in cases of separate proceedings, since in Ukraine the jurisdiction of the courts extends to any legal dispute.
Under such circumstances, the courts of the first and appellate instances made premature conclusions about the refusal to open proceedings in the case, which led to a violation of the rules of procedural law.
Therefore, the Supreme Court annulled the court decisions and referred the case to the court of first instance for further consideration (to resolve the issue of opening proceedings).
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