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Section 4. Civil procedure
Tkachuk Oleh S., Candidate of Legal Sciences, Docent, Judge of the High Specialized Court of Ukraine for Civil and Criminal Cases, Scientific Secretary of the Scientific and Consultative Board E-mail: [email protected]
Urgent tasks for judicial power in civil judicial proceedings of Ukraine
Abstract: The article deals with the analysis of contemporary issues of the judicial power of Ukraine while justice administering in civil cases. The author touches upon issues as for securing citizens' right to fair and unbiased judicial consideration basing on the principle of the rule of law. The author tried to find solution of complicated procedural contradictions of legislation and formed on this basis the determination of tasks of civil judicial proceedings.
Keywords: judicial power, justice, civil judicial proceedings, fundamental human rights.
According to the Constitution of Ukraine, the disputed rights, freedoms and interests of physical
judicial power performs leading role, namely it realizes the function of justice. However, under contemporary conditions of internal and external policies, the very existence of the judicial power does not tell about its existence as a separate, self-sufficient and effective power, which is consistent with the requirements of society. Only if a country citizens are convinced of the reliability of judicial protection, and verdicts of the judicial power are inviolable and perceived as fair and unavoidable duty or punishment, due to the presence of actual instrument of protection of citizen's rights and freedoms in society, including from legal tyranny and nihilism of the legislative or executive power, it is possible to talk about real but not declaratively proclaimed judicial power.
In our article we will touch upon issues of civil process, as a form of justice realization, which provides the guarantees of justice administering, as well as guarantees of citizens' right to judicial protection. This is connected with the fact that beyond civil judicial proceedings, which secure the guarantees of its administering, justice is impossible.
The objectives of civil justice are fair, impartial and well-timed consideration and resolution of civil cases to protect affected, unacknowledged or
persons, the rights and interests of legal persons, state interests (article 1 of the Civil Procedure Code of Ukraine) [1]. The noted objectives are undefeasi-ble. However, on the background of perfect juridical formulation, as it always happens on practice, there are urgent and, at the same time, very critical issues.
The first one of them is represented by the issue of removing controversies between Constitutional and procedural legislation concerning the existence of two cassation instances in fact in Ukraine.
On one hand, in Ukraine there are high specialized courts in civil, criminal, commercial, and administrative judicial proceedings. Particularly, the article 31 of the Law of Ukraine "On the Judiciary and the Status ofJudges" foresees that in the system of courts of general jurisdiction, there shall be high specialized courts operating as courts of cassation instance for civil and criminal, commercial, and administrative cases [2]. On the other hand, according to article 1 of the Law of Ukraine "On ensuring the right to a fair trial" of 12 February 2015, the Supreme Court of Ukraine shall have the right to reverse the court decision (s) in whole or in part and refer the case for a new trial to the court offirst, appellate or cassation instance; reverse the court decisions and termi-
nate the proceedings on the case; reverse the court decision (s) in whole or in part and refer the case for a new trial to the court which adopted the impugned court decision [3].
In our opinion, in such authority of the Supreme Court of Ukraine, features of cassation court are seen clearly. This court applies it completely, despite the fact that procedural authority of the Supreme Court of Ukraine, according to article 360-3 of the Civil Procedure Code of Ukraine is clearly determined and there are no functions of cassation review of judgements there.
Herewith, the Constitutional Court of Ukraine in its decision No. 8-pn/2010 ofll March 2010 concerning the official interpretation of terms "the highest judicial body", "high judicial body", "cassation appeal", which are mentioned in articles 125, 129 of the Constitution of Ukraine, indicated that cassation instance realizes its procedural rights within cassation proceedings only to examine the correctness of juridical estimation of a case circumstances in judgements of the first instance courts and appeal courts. The fact that the Supreme Court of Ukraine examines judgements of courts as a cassation instance after high courts cannot be justified from the viewpoint of securing the right to fair consideration of case within reasonable term. Besides, the presence of two cassation instances for the examination of judgements does not correspond to the principle of legal certainty.
Taking into account the abovementioned, the Constitutional Court ofUkraine concluded that only single cassation appeal and judgements review can be lawful. The Constitutional status of the Supreme Court of Ukraine as the highest judicial body in the system of general jurisdiction courts does not foresee its legislative authorization as a cassation instance as for judgements of high specialized courts, which perform the authority of cassation instance [4].
It would seem that everything is clear and understandable. Dual appeal must not be. By in its resolution No. 6-61 ^ 15 of 27 May 2015 the Supreme Court of Ukraine cancelled resolution of cassation instance court and directed the case to new consideration to this court only on the basis of the fact that in the case on loan debt for about 16 million UAH, in the resolution part of the judgement
of appeal court, which was supported by the High Specialized Court of Ukraine for Civil and Criminal Cases, not all components of the debt volume and the primary price of the mortgage subject in monetary terms were noted, though they were noted completely in the motivating part of the judgement [5].
Anyway, it is incorrect to cancel a judgement on the abovementioned formal basis. It violates reasonable terms of judicial consideration, terms for the protection of the violated right of creditor and, in our opinion, does not correspond to role, assignment and procedural authority of the Supreme Court of Ukraine, since judgements can be cancelled, if committed violations influenced on incorrect solution of dispute but not only on formal basis for review of considered case ignoring the principle of finality and obligatoriness of judgement, the principle of legal certainty guaranteed by the Constitution of Ukraine and proclaimed in the article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms [6, c. 99-107].
There are a lot of such judgements of the Supreme Court of Ukraine. In our opinion, such practice obviously contradicts to the Constitution of the state. Moreover, formally it corresponds to the Law and, at the same time contradicts to citizens' fundamental right to fair consideration of a case within reasonable term. The most important task for the judicial power here is the remedy of this default. It is not so easy to perform it, if we demonstrate that the principle of the rule of law is not an empty declaration, but a way to the construction of a legal state oriented at general human values. In this case on the scales of justice on one hand there is a wish "to correct" the solution of a civil case by means of additional, repeated investigation of evidences, on the other hand there is the parties' right to get final decision as for the case and the confirmation of legal rightness of the accomplished fact or inconsistency of arguments submitted to the court. Anyway, parties resort to court to get the settlement of conflict but not an endless and repetitive process.
In its opinion No. 401/2006 from 12 March 2007 the European Commission for Democracy through Law (Venice Commission) made remarks concerning the four-level judicial system. The experts pointed that the more complicated the system
of judiciary, the higher potential for procedural obstacles in cases consideration [7].
The second urgent task for Ukrainian justice is connected with the fist one, as well as with the Supreme Court of Ukraine. According to article 3601 of the Civil Procedure Code of Ukraine, judge of the Supreme Court of Ukraine after opening proceedings as for a case shall resort to corresponding specialists of the Scientific and Consultative Board of the Supreme Court of Ukraine for the preparation of scientific opinion as for a norm of law, which was unequally applied by a court (courts) of cassation instance, except for cases, when the decision on application of this legal norm in similar legal relations was received before by the Supreme Court of Ukraine [1]. And only after receiving such opinion it has right to appoint the case to be heard. Moreover, according to practice, such decisions of scholars became a component of motivating part of judgements of the Supreme Court of Ukraine.
For example, while consideration of the case under the suit of the Astra Close Joint-Stock Company to the State Export-Import Bank of Ukraine on the recognition of executive inscription of a notary officer as inexecutable one (case No. 3-111 re 11 from 17 October 2011), or while consideration of the case under the suit of an individual to Kirovohrad city master, communal maintenance company No. 3, Kirovohrad city council on reemployment and paying wages (case No. 6-156 ^ 12 from 26 December 2012), the Supreme Court of Ukraine in its resolutions pointed that this court requested scientific opinions as for application of corresponding legislation. The judgement is based on these scientific opinions [8].
Therefore, in our opinion, now there is a situation, which is unacceptable in principle. The court is guided and bases its decision even with non-expert opinion, which does not foresee the analysis and investigation of material, which are obvious for a judge and each participant of the process, discussion, but with the opinion of a scholar-lawyer. What is this conclusion — the queen of evidence? Expertise for the solution oflegal issues? No. Is it an indisputable judgement? No. It is known, where there are two lawyers, there are three opinions. But here there is one lawyer.
And again, this is a prescription ofLaw, procedural regulations. And again there is a question, is the Law higher than right to fair and public consideration of a case within reasonable term by an independent and unbiased court. The judicial power and the Supreme Court ofUkraine as its highest representative shall solve this task, since legislator, which to some extent flirt with part of society, cannot deal with such objective.
The Civil Procedure Code of Ukraine determines tasks of civil judicial proceedings in scientific communities in different ways.
Taking into account the abovementioned problems, we suggest to upgrade corresponding legal norm by pointing out that the tasks of civil judicial proceedings are represented by justice administering on the basis of fairness, legal certainty, the rule of law and priority ranking of fundamental human rights, as well as protection of violated, non-recognized or disputed rights, freedoms and interests of individuals, rights and interests of legal entities, state by means of solving individual disputes, which are impossible or cannot be solved in extra-judicial order according to Ukrainian legislation.
References:
1. Civil Procedure Code of Ukraine of 18.03.2004 № 1618 [E-resource]. - Access mode: http://zakon0. rada.gov.ua/laws/show/1618-15.
2. Law of Ukraine "On the Judiciary and the Status ofJudges" of 07 July 2010. [E-resource]. - Access mode: http://zakon5.rada.gov.ua/laws/show/2453-17
3. Law ofUkraine «On ensuring the right to a fair trial» of 12 February 2015. [E-resource]. - Access mode: http://zakon5.rada.gov.ua/laws/show/192-19
4. Constitutional Court of Ukraine. Judgement of 11 March 2010 № 8-pn/2010. [E-resource]. - Access mode: http://zakon5.rada.gov.ua/laws/show/v008p710-10.
5. Resolution of the Supreme Court of Ukraine of 27 May 2015 № 6-61 ^ 15//Official web-site of the Supreme Court of Ukraine. [E-resource]. - Access mode: http://www.scourt.gov.ua/clients/vsu/vsu. nsf/(documents)/B3BAA698A76892E0C2257B7B004B2029
6. Luspeny D., Sakara N. Ukrainian Model of Cassation Appeal ofJudgements on Civil Cases: Problems and Perspectives of Upgrading (Simplification)//Law of Ukraine - 2008. - № CDL-AD (2010)026-e Joint opinion on the law on the judicial system and the status of judges of Ukraine by the Venice Commission and the Directorate of Co-operation within the Directorate General of Human Rights and Legal Affairs of the Council of Europe Adopted by the Venice Commission at its 84th Plenary Session (Venice, 15-16 October 2010). http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282010%29026-e.
7. Resolution of the Supreme Court of Ukraine of17 October 2011 № 3-111 rc 11; of 26 December 2012 № 6-156 ^ 12//Official web-site of the Supreme Court of Ukraine. [E-resource]. - Access mode: http://www.scourt.gov.ua/clients/vsu/vsu.nsf/(documents)/B3BAA698A76892E0C2257B7B00 4B2029.
