An application to establish a fact that has legal significance, namely, about the identity of a person, is not subject to consideration in a separate proceeding. This conclusion was made by the Supreme Court in resolution No. 464/6696/20, the text of which is printed.
The Supreme Court explained why the court cannot establish the identity of the persons
In the name of Ukraine
December 8, 2021, Kyiv #464/6696/20
The Supreme Court as part of the panel of judges of the second judicial chamber of the Civil Court of Cassation:
chairman – M.E. CHERVYNSKAI (reporter),
judges: BURLAKOVA S.Yu., Zaitseva A.Yu., KOROTUNA V.M., TITOVA M.Yu.,
interested person — the Lviv City Department of State Registration of Civil Status Acts of the Western Interregional Department of the Ministry of Justice (Lviv) considered, in the order of written proceedings, without notifying the parties to the case, the cassation appeal of Person 1 against the decision of the Sykhiv District Court of Lviv dated 20.01.2021 and the decision of the Lviv Appellate Court of the court dated 19.07.2021, established:
Brief content of the statement
In December 2020, Person 1 applied to the court with a statement in which he asked to establish the fact that Person 1 and Person 2 are one and the same person, namely Person 1.
She based her claims on the fact that she was born Information 1, in her birth certificate No. 2 dated 04.17.70 she is listed as Person 2. Instead, in all her other documents her name is recorded as Person 1 (Person 1).
Referring to the above, she asked to satisfy the application.
Summary of the decision of the court of first instance
By the decision of the Sykhiv District Court dated January 20, 2021, the application of Person 1 was refused.
The court of first instance assumed that courts do not establish the identity of persons, and the applicant did not indicate the purpose of establishing such a fact.
Summary of the decision of the appellate court
The decision of the Sykhiv District Court dated January 20, 2021 was left unchanged by the resolution of the LAS dated July 19, 2021.
The appellate court agreed with the conclusions of the local court, considered the court decision as having been adopted in compliance with the norms of substantive and procedural law, and noted that the legal fact of establishing the identity of a person is not subject to judicial review by law.
Summary of the requirements of the cassation appeal
14.08.2021 Person 1 appealed to the Supreme Court with a cassation complaint, in which, referring to the incorrect application by the courts of both instances of the norms of substantive law and violation of the norms of procedural law, he asks to cancel the contested court decisions and send the case to a new trial.
As the basis of the cassation appeal, the applicant notes the incorrect application by the court of the norms of substantive law and the violation of the norms of procedural law, namely, the court applied the norm of law without taking into account the conclusion on the application of the norm of law in similar legal relations, set out in the resolution of the Grand Chamber of the Supreme Court of May 29, 2019 in case No. 310/11024 /15-ts (clause 1 part 2 of article 389 of the Civil Procedure Code).
Arguments of the participants in the case
Arguments of the person who filed a cassation appeal
The cassation appeal is based on the fact that the courts did not fully investigate the circumstances of the case, did not provide them with a proper legal assessment and reached erroneous conclusions when deciding the application <…>.
The position of the Supreme
Motives from which the Supreme Court comes out, and the applied norms of law
According to Part 1 of Article 293 of the Code of Civil Procedure, a separate proceeding is a type of non-suitable civil proceedings, in which civil cases are considered to confirm the presence or absence of legal facts that are important for the protection of the rights and interests of a person or the creation of conditions for his personal non-property or property activities rights or confirmation of the presence or absence of undisputed rights.
The interpretation of Part 1 of Article 293 of the Code of Civil Procedure indicates that the court examines cases of establishing facts of legal significance in order to confirm the presence or absence of such facts.
In the resolution of the Supreme Court of Justice of April 10, 2019, in case No. 320/948/18, it was concluded that fact-finding cases are considered in separate proceedings, subject to certain conditions. Namely, if: according to the law, such facts give rise to legal consequences, that is, the emergence, change or termination of personal or property rights of citizens depends on them; the current legislation does not provide for another procedure for their establishment; the applicant has no other opportunity to receive or restore a lost or destroyed document that certifies a fact of legal significance; the establishment of the fact is not connected with the subsequent resolution of the dispute on the right.
The current civil procedural legislation refers to the jurisdiction of the court cases of establishing facts, which depend on the emergence, change or termination of the subjective rights of citizens. However, not always this or that fact of legal significance can be confirmed by a corresponding document due to its loss, destruction of archives, etc. Therefore, the law in certain cases provides for a judicial procedure for establishing such facts. Matters concerning the establishment of facts of legal significance belong to the court's jurisdiction under the following conditions: the facts to be established must have legal significance, that is, the emergence, change or termination of personal or property rights of citizens must depend on them. To determine the legal nature of the fact, it is necessary to find out the purpose of the establishment; the establishment of the fact is not connected with the further resolution of the dispute about the right.
Article 315 of the Civil Procedure Code defines the list of cases on the establishment of facts of legal significance, which are subject to consideration by the court in the order of a separate proceeding. This list is not exhaustive, and other facts may be established in a court of law, on which the emergence, change or termination of personal or property rights of individuals depends, unless the law provides for another procedure for establishing them.
The procedure for making changes to records of civil status acts is provided for by the law "On State Registration of Civil Status Acts" dated July 1, 2010 and the rules for making changes to civil status acts, their renewal and cancellation. These norms provide that changes in civil status records are made by civil status registration authorities if there are sufficient grounds and in the absence of a dispute between interested parties. Refusal of civil status registration authorities to correct or change the record can be appealed to the court.
In accordance with Article 4, 26 of the Law "On State Registration of Civil Status Acts" dated 07.1.2010 (as amended by the Law dated 12.02.2015 No. 191-VIII), the bodies of state registration of civil status acts (central body, departments of state registration of civil status acts of the main administrations of justice in oblasts, district administrations in cities, city-district administrations of justice belong to executive bodies. Actions or inaction of an employee of the state registration of civil status acts can be appealed to the central body of executive power that implements state policy in the field of state registration of civil status acts, the Ministry of foreign affairs and/or to the court.
According to Clause 6, Part 1, Article 315 of the Civil Code of the Civil Code, the court considers cases of establishing the fact of ownership of title documents to a person whose surname, first name, patronymic, place and time of birth specified in the document do not coincide with the surname, first name name, patronymic, place and time of birth of this person indicated in the birth certificate or passport.
The above shows that in the event that the institutions that issued the legal documents cannot correct the mistakes made in them, individuals have the right to apply to the court to establish the fact of the ownership of the legal documents in accordance with the provisions of the specified norm. When considering these cases, the court establishes the identity of the person of the document, and not the identity of persons who are named differently in different documents.
When deciding whether to accept an application to establish a fact that has legal significance, the judge, in addition to checking the compliance of the submitted application with the requirements of the law in terms of form and content, is obliged to clarify the issue of jurisdiction and jurisdiction. Since the current legislation provides for the out-of-court establishment of certain facts that have legal significance, the judge, accepting a statement, must check whether this statement can be considered in court and whether its consideration is not referred to the powers of another body.
If, by law, the application is not subject to judicial review, the judge, by a reasoned decision, refuses to open the proceedings, and when the case has already been opened, closes the proceedings in it.
Analysis of the content of the application shows that the applicant is asking to establish the fact of the identity of the person, namely that Person 1 and Person 2 are the same person, which contradicts the requirements of Article 315 of the Code of Civil Procedure.
The first-instance court, with the conclusions of which the appellate court also agreed, proceeded from the lack of grounds for granting the application given the fact that the legal fact of establishing the identity of a person is not subject to judicial review by law.
At the same time, the courts of previous instances did not pay attention to the fact that the submitted application to establish a fact that has legal significance, namely the identity of a person, is not subject to judicial review in a separate proceeding.
The above excludes the possibility of considering an application to establish the fact of the identity of persons, as well as the name, patronymic and surname of persons recorded differently in the document, in particular, the fact that Person 1 and Person 2 are the same person, in the order of civil proceedings, which is the basis for closing the proceedings in the case on the basis of Clause 1 Part 1 of Article 255 of the Code of Criminal Procedure.
Supreme Court as a member of the panel of judges of the Administrative Court of Cassation in the decision of 28.11.2019 in case No. 592/7612/17 concluded that the concept of "a dispute that is not subject to consideration in the order of administrative proceedings" should be interpreted in combination with the provisions of part 3 Article 124 of the Constitution and in a broader sense, that is, as a concept that refers to those disputes that are not subject to consideration in courts.
According to Clause 1, Part 1, Article 255 of the Civil Procedure Code, the court, by its decision, closes the proceedings in the case, if the case is not subject to consideration in civil proceedings.
Taking into account the above, the contested court decisions are subject to cancellation with the closure of the proceedings in the case on the grounds provided for in clause 1 part 1 of article 255 of the Code of Civil Procedure.
Since these claims are not subject to judicial review, the court does not indicate which court has jurisdiction over their decision.
Guided by Articles 255, 256, 400, 414, 416 of the Code of Civil Procedure,
The cassation appeal of Person 1 is partially satisfied.
The decision of the Sykhiv District Court of Lviv dated January 20, 2021 and the decision of the Lviv Court of Appeal dated July 19, 2021 are to be annulled.
Proceedings on the application of Person 1 to establish a fact that has legal significance, the interested person — Lviv City Department of State Registration of Civil Status Acts of the Western Interregional Department of the Ministry of Justice (Lviv) to close.
The resolution enters into force from the moment of its adoption.
The ruling is final and cannot be appealed.