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Secretary of the Grand Chamber of the Supreme Court,
LL.D., Professor,
Corresponding Member of the National Academy of Legal Sciences of Ukraine
Vitalii Urkevych
In 2023, the Grand Chamber of the Supreme Court continued its work aimed at achieving the unity of case law by reviewing cases referred to it on the grounds of an exceptional legal issue, the need to derogate from the previously formed opinions of the Supreme Court of Ukraine, cassation courts within the Supreme Court and the Grand Chamber of the Supreme Court, as well as determining the jurisdiction of disputes.
As a result of the full-scale invasion of Ukraine by the russian federation, the number of cases involving liability for damage has increased. Last year, the Grand Chamber of the Supreme Court resolved a topical issue concerning the procedure for obtaining compensation for forcibly expropriated (mobilised) property.
When considering cases, the Grand Chamber of the Supreme Court formulated important legal conclusions on the application of the law in certain categories of cases and answered the most complex legal questions that caused controversy in the process of applying the law. Such legal opinions were formulated in disputes, in particular, regarding the right of a member of an agricultural household to privatise a land plot from the land of this agricultural household, determining the criteria for classifying a state body as a law enforcement agency, the consequences of assigning a right of claim that has ceased, the possibility of recovering "compensation payments" from the state under Article 625 of the Civil Code of Ukraine for delay in the execution of a court decision, etc.
As in previous years, the Grand Chamber of the Supreme Court continued to develop a stable and consistent judicial practice in determining appropriate and effective ways to protect violated rights. Thus, the Grand Chamber of the Supreme Court determined the appropriate way to protect the violated right of the territorial community to the Tereshchenko estate, as well as the mechanism for returning the amount of the fine to the payer, the decision on the application of which was annulled by the administrative court.
In addition, in 2023, the Grand Chamber of the Supreme Court formulated important legal opinions in the context of the application of procedural law, which significantly facilitate access to justice. Among them are opinions on the possibility of exempting the defendant from paying the court fee when filing an appeal / a cassation appeal, as well as on the possibility of an individual applying to the court by official e-mail with a procedural document signed with a qualified electronic signature.
According to the circumstances of case no. 757/64569/16-ö, in July 2014, the plaintiff was forced to leave her house, property and land plot located in the city of Krasnohorivka, Mariinka district, Donetsk region, due to shelling. In August 2014, the Armed Forces of Ukraine liberated Krasnohorivka, after which they occupied the plaintiff's house and set up a stronghold there.
The plaintiff filed a lawsuit against the state of Ukraine seeking compensation for her forcibly expropriated house, property and land, believing that her property had been mobilised in connection with the emergency situation created by the anti-terrorist operation in response to armed russian aggression.
Considering the dispute, the Grand Chamber of the Supreme Court noted that Ukraine had legislation providing for compensation to citizens for property forcibly taken from them (mobilised). It may be obtained under the conditions and in accordance with the procedure laid down in the regulations.
The mobilisation of property is a form of its requisition (expropriation) within the meaning of the Civil Code of Ukraine and the Law of Ukraine "On the Transfer, Expropriation or Seizure of Property under the Legal Regime of Martial Law or State of Emergency". However, while Article 3 of this Law provides that property may be expropriated under the legal regime of martial law or a state of emergency with prior full compensation for its value, and only if it is impossible to obtain prior full compensation for the expropriated property, such property shall be expropriated with subsequent full compensation for its value, in the case of mobilisation of citizens' property pursuant to part 1 of Article 22 of the Law of Ukraine "On Mobilisation Preparation and Mobilisation", such compensation may only be subsequent.
Compensation for property expropriated under martial law, with subsequent full reimbursement of its value, is paid out of the state budget within five consecutive budget periods, and in the case of a state of emergency - within one consecutive budget period after the lifting of martial law or the state of emergency, provided that the property was expropriated and the person is entitled to such compensation.
The plaintiff did not prove that she had lost the ability to use her property as a result of the occupation of the house by the military of the Armed Forces of Ukraine, and not as a result of shelling by armed groups supported by the russian federation, which led to the plaintiff and her family moving to another settlement. The plaintiff actually raised the question of whether she had the right to compulsory purchase by Ukraine of her house and land plot, which she had abandoned when she and her family moved to another region under the threat of shelling.
The temporary presence of the Armed Forces of Ukraine and their property in the plaintiff's house and land for a certain period of time is not sufficient to qualify it as a compulsory expropriation (requisition) of the house and land by Ukraine.
The Grand Chamber of the Supreme Court also stated that in accordance with part 9 of Article 5 of the Law of Ukraine "On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine", compensation for material and non-pecuniary damage caused to the state of Ukraine, legal entities, public associations, citizens of Ukraine, foreigners and stateless persons as a result of the temporary occupation is fully the responsibility of the russian federation as the occupying power.
The Resolution of the Grand Chamber of the Supreme Court of 13 September 2023 in case no. 757/64569/16-ö: https://reyestr.court.gov.ua/Review/114203267.
In case no. 910/8413/21, the prosecutor on behalf of the state, represented by the City Council, filed a lawsuit to terminate the investment agreement on the reconstruction and restoration of the Tereshchenko estate in Kyiv, which is a cultural heritage site, and to oblige the investor to return the estate to the Kyiv territorial community. In particular, he argued that the Tereshchenko estate had not been taken out of communal ownership in accordance with the procedure established by law, since at the time when the disputed legal relations arose there was a legal prohibition on its alienation as a cultural heritage site, and therefore there were grounds for its return to the Kyiv territorial community.
Considering the dispute, the Grand Chamber of the Supreme Court stated that the entry into force of the Law of Ukraine "On the Protection of Cultural Heritage", which replaced the Law of the Ukrainian Soviet Socialist Republic "On the Protection and Use of Historical and Cultural Monuments" in regulating issues related to historical and cultural monuments, did not lead to the cancellation of the protected status of cultural heritage sites. Failure of the Cabinet of Ministers of Ukraine to fulfil its obligations to submit a draft list of monuments not subject to privatisation to the Verkhovna Rada of Ukraine for approval cannot be a reason for not applying the prohibition established by Article 1 of the Law of Ukraine "On Temporary Prohibition of Privatisation of Monuments of Cultural Heritage".
Thus, the Tereshchenko estate was subject to a ban on privatisation (alienation from communal ownership) of cultural heritage monuments in accordance with the Law of Ukraine "On Temporary Prohibition of Privatisation of Monuments of Cultural Heritage". The relevant legal regulation was accessible and understandable. Until 17 October 2008, it did not allow for any possibility of transferring a cultural heritage site from public to private ownership, either in accordance with the Law of Ukraine "On Privatisation of State Property" or, even more so, in a manner not provided for by the Law, in particular under the guise of an investment tender.
The Grand Chamber of the Supreme Court, resolving the issue of the remedy of the violated right, concluded that the transaction of alienation of a monument of cultural heritage, carried out despite the prohibition established by the Law of Ukraine "On Temporary Prohibition of Privatisation of Monuments of Cultural Heritage", violates public order and is void.
Under such legal regulation, the defendant could not have acquired ownership of the Tereshchenko estate under any circumstances. Despite the state registration of private ownership of the property, the owner has not lost possession of the property, so there are no grounds for a vindication action.
The proper way to protect the violated right of the territorial community as the owner of such a cultural heritage monument is to file a negative claim under Article 391 of the Civil Code of Ukraine.
Thus, the Grand Chamber of the Supreme Court found that the claim for the return of the Tereshchenko estate to the Kyiv territorial community was justified and subject to satisfaction.
The Resolution of the Grand Chamber of the Supreme Court of 12 September 2023 in case no. 910/8413/21: https://reyestr.court.gov.ua/Review/114228694.
In case no. 633/408/18, the defendant, who became a member of an agricultural household after its establishment and did not transfer the land plot to the household as a founder, applied to the Regional Office of State GeoCadastre with a request to transfer the land plot used by the household to his ownership. The Regional Office issued 12 orders transferring ownership of 12 plots of land to individuals, including the defendant.
The prosecutor filed a lawsuit to cancel the order of the Regional Office of the State GeoCadastre and to oblige it to return the land to the state.
The Grand Chamber of the Supreme Court stated that in order to exercise the right to privatise land, as defined in Article 32 of the Land Code of Ukraine and Article 13 of the Law of Ukraine "On Agricultural Household", an individual - the future founder of an agricultural household - must first obtain a plot of land for use in establishing an agricultural household.
A member of an agricultural household who has received a plot of land for the purpose of establishing an agricultural household and who has not previously acquired the right to a land share (unit) may privatise this plot of land within the limit of the land share (unit), provided that the right of use by the agricultural household is terminated.
If a person becomes a member of an agricultural household after it has been established, i.e. without having received a plot of land for such establishment, he/she is not entitled to receive free of charge the plot of land used by that agricultural household. To obtain ownership of a land plot, a person must apply to the relevant executive authority or local self-government body in accordance with the general procedure set forth in Articles 116 and 118 of the Land Code of Ukraine.
When considering a citizen's application for a plot of land for agricultural purposes, the executive authority or local self-government body (or, in the case of the dispute referred to court, the court) must assess the circumstances and information provided in the application, verify the applicant's arguments in support of the size of the plot, taking into account the prospects of the agricultural household, in particular the availability of labour and material resources.
The Resolution of the Grand Chamber of the Supreme Court of 20 June 2023 in case no. 633/408/18: https://reyestr.court.gov.ua/Review/112516537.
In case no. 204/2321/22, the applicant sent an appeal complaint signed by her representative using a qualified electronic signature (QES) to the court's e-mail. However, the court of appeal returned the complaint on the grounds that the signature of the person who filed it was missing.
The Grand Chamber of the Supreme Court held that the law allows an individual to file appeals in electronic form, as well as in paper form, through the Electronic Court and Electronic Cabinet subsystems, with the mandatory certification of the appeal with a QES of the party to the case or using an official e-mail address with the certification of the document by the QES.
An application by an individual to the court via the official e-mail of the court with an electronic procedural document signed with an electronic digital signature is a proper and legitimate way of applying directly to the court, which is equivalent to applying directly to the court via the office or traditional means of postal communication and should be qualified as a direct application to the court.
The above conclusions do not apply to lawyers, notaries, private enforcement officers, forensic experts, state and local governments, business entities of the state and municipal sectors of the economy, who register their official e-mail addresses in the Unified Judicial Information and Telecommunication System on a mandatory basis.
In this case the applicant did not lodge an appeal with the court in person, but through a lawyer, who can lodge an appeal either in writing or electronically using the Electronic Court Service.
The applicant's lawyer explained the impossibility of lodging an appeal through the Electronic Court subsystem by the lack of technical capacity of this service to accept procedural documents for "appeal against a court decision".
The court of appeal did not consider these circumstances and came to the premature conclusion that the appeal should be returned.
The Resolution of the Grand Chamber of the Supreme Court of 13 September 2023 in case no. 204/2321/22:https://reyestr.court.gov.ua/Review/113701392.
In case no. 910/19199/21, a financial company (the plaintiff) filed a lawsuit against a joint-stock company (the defendant) to declare an assignment agreement null and void and to apply the consequences of the nullity of the transaction. Pursuant to the said agreement, the defendant assigned to the plaintiff the right to a claim arising from an obligation that had ceased to exist (as a result of its performance) at the time the agreement was concluded, which is contrary to the provisions of Article 514 of the Civil Code of Ukraine and constitutes the basis for declaring such an agreement null and void pursuant to the provisions of Article 215 of that Code.
The court of first instance satisfied the claims in full. The court of appeal upheld the decision of the first instance court.
The Grand Chamber of the Supreme Court disagreed with the conclusions of the previous instances and held that the invalidity of the claim does not entail the invalidity of the relevant agreement under which such a claim was transferred, but rather the liability of the original creditor to the new creditor, as regulated by the provisions of the Civil Code of Ukraine. In these cases, transferring an invalid claim, by its legal nature, constitutes a failure to perform or improper performance of the agreement under which the invalid claim was assigned.
An assignment agreement may be declared void if there is a legal basis for doing so. For example, if such an agreement was entered into under the influence of a mistake (Article 229, part 1 of the Civil Code of Ukraine), fraud (Article 230, part 1 of the Civil Code of Ukraine), duress (Article 231, part 1 of the Civil Code of Ukraine), etc.
Therefore, the fact that the original creditor transfers the terminated claim to the new creditor creates a liability of the original creditor to the new creditor.
The assignment agreement contains all the features of a contract of purchase and sale of a claim, and therefore the provisions of the legislation on contracts of purchase and sale should apply to this agreement.
In view of the above, if the subject of the claim (debt) did not exist at the time of its transfer to the plaintiff, the latter has the right to unilaterally withdraw from the sale and purchase agreement and demand reimbursement in accordance with part 1 of Article 665 of the Civil Code of Ukraine.
At the same time, there are no grounds in this case for invalidating the assignment agreement and applying the consequences of the invalidity of this agreement.
The Resolution of the Grand Chamber of the Supreme Court of 08 September 2023 in case no. 910/19199/21: https://reyestr.court.gov.ua/Review/112873033.
In the circumstances of case no. 686/7081/21, the court ruled in favour of the plaintiff and recovered the value of the unreturned ordinary registered shares of the OJSC at the expense of the state budget of Ukraine. However, the state did not immediately enforce the court decision in this case. Therefore, the plaintiff sought to recover from the State Treasury Service of Ukraine 3% per annum and inflationary losses under Article 625 of the Civil Code of Ukraine.
The court of first instance partially satisfied the claim: it recovered inflationary losses and 3% per annum from the State Budget of Ukraine in favour of the plaintiff, but for the period from 18 March 2019 (the date of entry into force of the decision of the court of first instance in the case on recovery of the value of the unreturned ordinary registered shares of the OJSC) to 23 October 2019. The court of appeal dismissed the claim.
Resolving the issue of application of Art. 625 of the Civil Code of Ukraine to the disputed legal relations, the Grand Chamber of the Supreme Court came to the conclusion that in case of violation by the state-debtor of the term of execution of the court decision on recovery of funds from the state budget of Ukraine in favour of the recovering creditor (delay in performance of the monetary obligation of the state to compensate for the damage caused by it and confirmed by the court decision), Art. 625 of the Civil Code of Ukraine and part 1 of Article 5 of the Law of Ukraine "On State Guarantees for the Enforcement of Court Decisions" establish an effective compensation mechanism for protection against such violation, which allows the creditor to recover from the state 3% per annum of the amount not paid on time under a valid court decision and inflation losses for the period of delay in the execution of this decision.
The provision of part 2 of Article 625 of the Civil Code of Ukraine regarding the legal consequences of delay in the fulfilment of a financial obligation by a debtor (in particular, the state) applies to cases of violation of the state's financial obligation to compensate for the damage caused by it confirmed by a court decision from the day after the expiration of three months from the submission of the enforcement document to the State Treasury Service of Ukraine and inclusive of the day preceding the day of full execution of the court decision.
A different approach to determining the beginning of the state's delay (e.g. identifying such a moment with the date of the wrongful act or the date of the entry into force of a court decision on the recovery of compensation from the state) may lead to unfair behaviour on the part of the recovering party (in particular, failure to submit an enforcement document to the State Treasury of Ukraine for a long time in order to obtain an additional opportunity to recover 3% per annum and inflation losses from the state).
Thus, the application by the court of first instance of the provision of part 2 of Article 625 of the Civil Code of Ukraine to the disputed legal relations is correct. However, 3 % per annum and inflationary losses for delay in the execution of the court decision should be recovered in favour of the plaintiff not from the date of entry into force of the first instance court decision in the case on recovery of the value of the unreturned ordinary registered shares of the OJSC at the expense of the state budget of Ukraine, but from the day following the expiry of three months from the submission of the enforcement document to the State Treasury Service of Ukraine and inclusive of the day preceding the day of full execution of the court decision.
The Resolution of the Grand Chamber of the Supreme Court of 3 October 2023 in case no. 686/7081/21: https://reyestr.court.gov.ua/Review/114685579.
In the circumstances of case no. 910/3208/22, there was a contract for the supply of goods between the plant as seller and the company as buyer. The contract stipulated that any disputes arising out of or under it shall be settled by arbitration in accordance with the GAFTA Arbitration Rules No. 125. Subsequently, the plant, the company and the LLC as guarantor entered into an additional agreement to the contract, one of the clauses of which provided that the guarantor would assume all of the buyer's obligations under the contract, taking into account all existing and future amendments and additions to the contract.
As a result of the company's failure to meet its obligations, the plant filed a lawsuit against the LLC as guarantor to recover the principal debt and penalties under the contract.
The court of first instance dismissed the plant's claim on the basis of para. 7, part 1, Article 226 of the Commercial Procedural Code of Ukraine, finding that the parties to the contract, taking into account the supplemental agreement, had entered into an arbitration clause that was valid, had not expired and in respect of which the parties had not established the impossibility of its enforcement. Instead, the commercial court of appeal overturned the decision of the first instance court, stating that the supplemental agreement to the contract was a separate agreement that did not contain an arbitration clause.
The Grand Chamber of the Supreme Court held that the UN Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the Convention) should be interpreted in a pro-arbitration manner in view of the purpose of the Convention, i.e. in case of doubt, the courts should opt for the recognition of the arbitration agreement and the recognition and enforcement of the arbitral award (pro-enforcement bias).
Article II of the Convention imposes on each Contracting State the obligation to recognise a written agreement by which the parties undertake to submit to arbitration all or any disputes which have arisen or which may arise between them in connection with a particular contractual or other legal relationship, the subject matter of which may be submitted to arbitration.
The Grand Chamber of the Supreme Court concluded that the arbitration clause in the contract was a condition agreed by the parties and accepted by the LLC by entering into a supplemental agreement to the contract.
In addition, according to the established practice of the ECHR, the refusal to settle a dispute in court in favour of arbitration is generally acceptable in terms of compliance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, so the court's dismissal of a claim due to the existence of an arbitration agreement does not in itself constitute an unacceptable restriction of access to the court.
At the same time, the courts did not find, and the parties in the case did not argue, that they had terminated the arbitration agreement, excluded its application to disputes involving the LLC, or that it had otherwise expired or was not binding on the LLC.
In view of the above, the Grand Chamber of the Supreme Court held that the inclusion of an arbitration clause as a condition of an agreement by the parties entails the extension of the effect of that arbitration clause to legal relations under that agreement with the participation of another person who has entered into those legal relations as a party, has assumed the respective rights and obligations of a party to this agreement, and in doing so the parties have not terminated the arbitration agreement, nor excluded any particular dispute from its scope, nor deprived it of its binding force on that party, and the arbitration agreement has not lost its effect due to other circumstances.
The Resolution of the Grand Chamber of the Supreme Court of 1 November 2023 in case no. 910/3208/22:https://reyestr.court.gov.ua/Review/114685588.
In case no. 910/5880/21, the State Service of Ukraine for Transport Safety (Ukrtransbezpeka) imposed an administrative and economic fine on the company. The company challenged the decision to impose the fine but paid it. The administrative court cancelled the decision to impose the fine on the plaintiff, after which the latter filed a claim against Ukrtransbezpeka to recover from the defendant's budgetary allocations the amount of the administrative and economic fine paid to the state budget of Ukraine to comply with the said decision in the enforcement proceedings.
The courts of the previous instances satisfied the claim and recovered funds in favour of the LLC under Article 1212 of the Civil Code of Ukraine.
In the cassation appeal, the defendant stated that the procedure for the return of these funds was set out in the Procedure for the Return (Transfer) of Funds Mistakenly or Excessively Transferred to the State and Local Budgets of Ukraine, approved by Order of the Ministry of Finance of Ukraine No. 787 of 3 September 2013 (Procedure No. 787), and was extrajudicial.
The Grand Chamber of the Supreme Court held that at the time of the payment of the administrative and economic fine by the plaintiff, the legal basis for such payment was in place - the resolution imposing the fine was in force and enforcement proceedings had been initiated. Therefore, it cannot be assumed that the plaintiff paid the money by mistake. Similarly, given the circumstances of the case, there are no grounds to believe that he paid a fine in excess, i.e. in an amount greater than that specified in the said resolution. Subsequently, with the entry into force of the administrative court's decision to annul and repeal such a resolution, the relevant legal basis disappeared.
Procedure No. 787 applies to cases of returning erroneous or overpaid funds to the budget. Since the amount of the administrative and economic fine paid to the budget by the plaintiff was not erroneously or excessively credited, Procedure No. 787 does not apply to the disputed legal relations.
The Grand Chamber of the Supreme Court concluded that the amount of the fine paid to the budget on the basis of the resolution on the application of such a penalty, which was later found to be unlawful and annulled by the administrative court, can be recovered in favour of the payer under Article 1212 of the Civil Code of Ukraine, as it was unreasonably withheld. The provisions of the Civil Code of Ukraine on compensation for damages and Procedure No. 787 do not apply to such legal relations.
In addition, the Grand Chamber of the Supreme Court stated that since the funds paid by the payer to comply with this decision were kept in the state budget of Ukraine without a sufficient legal basis after the administrative court declared the resolution on the application of the administrative and economic fine to be unlawful and cancelled it, the return of these funds to the payer concerns the protection of his property rights as a business entity, and the claim for the return of these funds falls within the jurisdiction of the commercial court.
The Resolution of the Grand Chamber of the Supreme Court of 08 September 2023 in case no. 910/5880/21: https://reyestr.court.gov.ua/Review/113176434.
In the circumstances of case no. 633/195/17, a major of the Civil Protection Service, in his capacity as Chief Inspector of the Main Directorate of the State Emergency Service, inflicted light bodily harm on a lieutenant of the Civil Protection Service during a conflict with him.
The courts of first and appellate instances found the major guilty of committing a criminal offence under part 1 of Article 125 of the Criminal Code of Ukraine.
At the same time, the prosecutor filed a cassation appeal, arguing that the convict was a law enforcement officer and therefore his actions should be qualified under part 2 of Article 365 of the Criminal Code of Ukraine (abuse of power or authority by a law enforcement officer).
In considering the question of whether the State Emergency Service is a law enforcement agency and whether the convicted person is an employee of such an agency, the Grand Chamber of the Supreme Court held the following.
When interpreting the concept of "law enforcement agency" for the purpose of applying the provisions of the Criminal Code of Ukraine, the normative definition of the provisions of subpara. 1, para. 1, part 1, Article 2 of the Law of Ukraine "On State Protection of Judicial and Law Enforcement Officers" may be used, but only in relation to the function of law enforcement, which is implemented through the application of law.
The criteria for classifying public authorities as law enforcement agencies are institutional and functional characteristics that determine the legal status of such an agency in the system of public authorities.
When classifying a particular public authority as a law enforcement agency, attention should be paid primarily to how the relevant agency is defined in a special legal act regulating its legal status and to the powers exercised by that agency.
Law enforcement agencies should include public authorities defined in the laws of Ukraine as law enforcement agencies or those that perform a law enforcement function assigned to them by law.
When deciding whether a person is an employee of a law enforcement agency, it is necessary to proceed from a systematic analysis of the following: provisions of the Constitution of Ukraine, the Criminal Code of Ukraine, the Criminal Procedural Code of Ukraine, the Code of Ukraine on Administrative Offences, regulations governing the legal status of a public authority with which a person has an employment or service relationship; the powers of an employee under his or her job description, which provide for the implementation of the law enforcement function, in particular, the use of preventive and coercive measures defined by law, as well as measures provided for by criminal procedure legislation and legislation on administrative offences; legislation on pension provision for the relevant category of employee.
The Grand Chamber of the Supreme Court found that the State Emergency Service of Ukraine, as a central executive body, implements the state policy of supervision and control over compliance with legislation on fire and industrial safety, and that SES officers, in accordance with the legal status established by law, perform a law enforcement function.
At the same time, the Grand Chamber of the Supreme Court held that technical staff of the agencies referred to in subpara. 1 para. 1 part 1 Art. 2 of the Law of Ukraine "On State Protection of Judicial and Law Enforcement Officers" cannot be the subject of a criminal offence under Art. 365 of the Criminal Code of Ukraine.
The Resolution of the Grand Chamber of the Supreme Court of 30 August 2023 in case no. 633/195/17: https://reyestr.court.gov.ua/Review/113396900.
In case no. 906/308/20, the defendant appealed against the decision of the commercial court to recover the debt from him. At the same time, the defendant requested to be exempted from paying court fee, as the court fee for filing an appeal exceeded 5% of his annual income. In support of this, the complainant submitted an income certificate for the year 2022.
The court of appeal dismissed the application for exemption from court fees on the grounds that the provisions of para. 1 part 1 Art. 8 of the Law of Ukraine "On Court Fees" apply only to plaintiffs - individuals.
Considering the dispute, the Grand Chamber of the Supreme Court stated that there is no reasonable explanation why a defendant - an individual - cannot be exempted from paying court fees when appealing against court decisions in appeal or cassation proceedings, provided that the amount of the court fee exceeds 5% of the annual income of the defendant - individual - for the previous calendar year, while the plaintiff can be exempted from paying court fees under the same conditions both when filing a statement of claim and when further appealing against court decisions in appeal and cassation proceedings.
Failure to apply to an individual the provisions of para. 1, part 1, Art. 8 of the Law of Ukraine "On Court Fees" on the grounds that such a person is a defendant may violate the right to a fair trial (Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms). The above also does not comply with a number of constitutional principles and basic principles of commercial procedure: the principles of equality of all participants in the judicial process before the law and the court; ensuring the right to appeal and, in cases established by law, to cassation review of a court decision (paras. 1, 8, part 2, Art. 129 of the Constitution of Ukraine); equality of all participants in the judicial process before the law and the court; ensuring the right to appellate review of a case; ensuring the right to cassation review of a court decision in cases specified by law (paras. 2, 8, 9, part 3, Art. 2 of the Commercial Procedural Code of Ukraine).
Thus, the provisions of para. 1, part 1, Art. 8 of the Law of Ukraine "On Court Fees" may be applied to a defendant - an individual - if there is a relevant ground as defined by this provision.
Refusal to exempt a person from the payment of court fees on the ground that he is a defendant, without the court examining the evidence by which the defendant justifies the existence of grounds for the application of para. 1, part 1, Art. 8 of the Law of Ukraine "On Court Fees" violates the essence of the defendant's right of access to court.
The Resolution of the Grand Chamber of the Supreme Court of 29 November 2023 in case no. 906/308/20: https://reyestr.court.gov.ua/Review/115598835.
Author's column: https://so.supreme.court.gov.ua/authors/300/kliuchovi-rishennia-velykoi-palaty-verkhovnoho-sudu-za-2023-rik
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