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13.12.2001 | Konstantin Ustimenko, Dnepropetrovsk.

Right of cassation in the Supreme Court: myth or reality?

   

The Ukrainian Constitution envisages that a court decision may be appealed, and the new version of the Civil-Procedural Code (CPC) of Ukraine stipulates, since July 2001, that the cassation instance is the Supreme Court of Ukraine.

According to Article 320 of the CPC, the right to appeal is limited with one condition: a court decision may appealed only because of the violation by the court of norms of the material or procedural right, which led to the incorrect decision. Here a question arises: who determined whether this condition is violated – a citizen, who has the right to appeal, or judges representing the Supreme Court?

The new version of the CPC implies that the condition, under which a citizen may realize the right to appeal, is determined by the Supreme Court. This condition is determined by different organs of the cassation instance after different criteria, procedures and with different rights.

The consideration of a cassation by the Chamber in charge of civil cases of the Supreme Court envisages the participation of the citizen in the trial, and, hence, taking account of his arguments on violating legal norms in the court decision.

The new version of the CPC is paradoxical, since, before the cassation is passed to the Chamber, it is obligatorily considered by another organ of the cassation instance – a collegium of three judges. The collegium has the right, according to Article 329 of the CPC, to take a decision either to pass the case to the Chamber, or to reject the cassation.

The both decisions are taken without the presence of the person, who handed the cassation, and the decision of the Supreme Court collegium may not be appealed. Thus, the law stipulates the opportunity of consideration in absentia and the refusal to satisfy the cassation.

May one speak in such a situation about the right for cassation? It is impossible to realize this right in absentia, without competition and proving the violations of legal norms in the appealed court decision!

The Chamber of the Supreme Court, having agreed with the arguments of the cassator and having being convinced in the violation of the norms of the material or procedural right, is obliged to cancel the court decision being appealed.

At the same time, the collegium of the Supreme Court, even having found in absentia some violation of the norms of the material or procedural right, is not obliged to pas the case for the consideration by the Chamber. The case must be passed by all means to the Chamber only if the cassation contains proofs of incorrect application of the norms of the procedural right (part 3 Article 328 of the CPC). If the appeal contains arguments on violating the norms of the material right, then the collegium may or may not pass the case to the Chamber (part 4 Article 328 of the CPC).

One may be sure about how the collegium, as always overloaded with work, will act. Below we shall give an example of the choice.

Article 342 of the CPC reads: ’according to the results of the consideration of the case the court of the cassation instance issues the decision ’on rejecting the cassation’…’. Article 343 of the CPC defines such a decision, but these legal norms do not concern the decisions about the rejection of the cassation, issued by the judge collegium according to part 4 Article 329 of the CPC.

This ambiguity of law presents vast opportunities for court arbitrariness. For example, let us consider the decision of the judge collegium of the court Chamber in charge of civil cases of the Supreme Court of Ukraine of 8 October 2001. According to this decision, the cassation by K. Ustimenko was not satisfied.

The beginning of the decision: ’having considered the cassation of K. Ustimenko about the decision of the district court of 9 August 2000 and the decision of the Dnepropetrovsk oblast court of 23 October 2000’ -- is already false, since the cassation also contained the protest the decision of the Dnepropetrovsk oblast court of 12 March 2000, which cancelled the decision of the district court of 10 December 1999 about satisfying Ustimenko’s claim to pay him the wages.

This mistake enabled the judges to circumvent the concept ’guaranteeing unambiguous application of law by Ukrainian courts’) Article 328 of the CPC) and not to notice the request presented in the cassation complaint: to leave valid the court decision of 10 December 1999.

The cassation complaint contains references to the proofs in the case documents, which demonstrate the violations by the court of the norms of the material right (Articles 97, 103 of the Labor Code and Article 22 of the Law ’On payment for the labor’) and the norms of the procedural right (Articles 30, 62, 202 and 203 of the CPC), which led to the incorrect decision.

Leaving the cassation without satisfaction, ’since the arguments presented in the appeal do not indicate at any incorrect application of the norms of the material and procedural rights by the court’, the collegium judges do not mention not a single argument out of the six presented in the cassation, which, according to Article 343 of the CPC, is necessary for taking a decision by a cassation instance.

The existing situation concerning the right of cassation is convenient for judges: they get an opportunity to violate the judge’s oath without any control and punishment. The situation is convenient for advocates: they will take their fee for compiling the cassation in any case. The situation is convenient for the Supreme Court: it will take the taxes for all appeals considered in absentia and left without satisfaction. The only loosing side is a citizen, who, for the umpteenth time, is fooled with the reference to the constitutional basis of justice.

In my opinion, some state figures are quite right, when they demand to control the independent activities of judges.

’PL’ commentary:
As is known, the European court on human rights, having acknowledged the complaint Kucherenko vs. Ukraineas invalid because of the expiration of the term of handing complaint (6 months), concluded that that appeal to the Supreme Court in the surveillance order is not an efficient instrument of legal protection. Thus, the cassation instance is the last efficient instrument of legal protection.

Is the Supreme Court an efficient instrument of legal protection as a cassation instance after the recent changes in the CPC and the Criminal-Procedural Code? The majority of professional regard that it is, so appeals to the cassation instance are necessary for exhausting all possible means of legal protection.

In our opinion, the circumstance presented by K. Ustimenko (preliminary consideration of the cassation complaint by the collegium of three judges in the absence of the complainer and his advocate, a similar norm is also contained in the Criminal-Procedural Code) may be a ground to acknowledge the cassation instance as an inefficient instrument of legal protection. So, it is reasonable to turn to the European court after the decision of the appellation instance, which does not exclude handing a cassation complaint.

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