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DECISION OF THE SECOND SENATE OF THE CONSTITUTIONAL COURT OF UKRAINE

of April 6, 2022 No. 2-r (II)/2022

On case on the constitutional claim of Margo Polina Aleksandrovna on compliance of the Constitution of Ukraine (constitutionality) of Item of 1 part five, part seven of Article 454 of the Code of civil procedure of Ukraine

Case No. 3-9/2019(206/19)

The second senate of the Constitutional Court of Ukraine in structure:

Golovaty Sergey Petrovich (chairman of meeting, speaker),

Gorodovenko Victor Valentinovich,

Lemak Vasily Vasilyevich,

Moysik Vladimir Romanovich,

May Day Oleg Alekseevich,

Slidenko Igor Dmitriyevich,

Yurovskaya Galina Valentinovna,

considered case on the constitutional claim of Margo Polina Aleksandrovna on compliance of the Constitution of Ukraine (constitutionality) of Item of 1 part five, part seven of Article 454 of the Code of civil procedure of Ukraine at plenary meeting.

Having heard Golovaty S. P. judge-speaker and having researched case papers, including line items which stated the deputy minister of justice of Ukraine Smachilo I. V.; scientists of Research institution of private law and entrepreneurship of name of the academician F. G. Burchak of National academy of legal sciences of Ukraine - the senior research associate of department of jurisdictional forms of legal protection of subjects of private law, Candidate of Law Sciences Getmantsev M. A., the Kiev national university of Taras Shevchenko - professor of department of justice of law department, the doctor of jurisprudence Prityka Yu. D., National legal university of Yaroslav the Wise - the associate professor of civil process, Candidate of Law Sciences, associate professor Rozhnov A. V., associate professor of civil process, Candidate of Law Sciences, associate professor Sakara N. Yu. the Khmelnytskyi university of management and the right of Leonid Yuzkov - professor of department of the civil law and process Bondarenko-Zelinskaya N. L., the Uzhhorod national university - the dean of law department, the doctor of jurisprudence, professor Lazur Ya. V., associate professor of the economic right, Candidate of Law Sciences Roshkanyuk V. M.; the director of Research institution of the comparative public law and international law of the Uzhhorod national university - the doctor of jurisprudence, professor Savchin M. V.; the national adviser for legal issues of the Project coordinator of OSCE in Ukraine, Candidate of Law Sciences Vodyannikov A. Yu., Constitutional Court of Ukraine

established:

1. Margo Polina Aleksandrovna with the petition appealed to the Constitutional Court of Ukraine to consider question of compliance of the Constitution of Ukraine (constitutionality) of Item of 1 part five, part seven of Article 454 of the Code of civil procedure of Ukraine (further - the Code).

According to Item of 1 part five of article 454 of the Code the statement for cancellation of the decision of reference tribunal moves within ninety days "the party, the third party on the case considered by reference tribunal - from the date of decision making by reference tribunal".

According to part seven of article 454 of the Code "the application submitted after the term established by parts five or the sixth this Article returns".

The author of the petition claims that Item of 1 part five, part seven of article 454 of the Code there do not correspond Article parts three 22, to parts one, the second Article 55, of Article part one 64, to Items 1, of 3, 8 parts two of article 129 of the Constitution of Ukraine.

1.1. The Ukrsotsbank public joint stock company (further - Bank) on February 15, 2008 concluded with Margo P. A. the guarantee agreement according to which she undertook the obligation to Bank solidary to be responsible for execution of credit agreement obligations of the credit No. 334/08/8-K by Zhavzharov R. S. of February 15, 2008.

The permanent Reference tribunal under Association of the Ukrainian banks (further - Reference tribunal) on May 5, 2015 made the decision on collection with Margo P. A., Zhavzharova R. S. for benefit of bank of debt on the agreement of the credit No. 334/08/8-K of February 15, 2008 in the amount of 495106 UAH 29 kopeks and arbitration collection in the amount of 5351 UAH 06 kopeks. The decision of Reference tribunal after acceptance was sent to defendants by the registered mail to the address specified in the agreement about what witness materials of arbitration case of Margo P. A., Zhavzharova R. S., provided by reference tribunal upon the demand of the Constitutional Court of Ukraine.

The Dnieper district court of the city of Kiev granted on August 7, 2015 the application of Bank for issue of writ of execution on forced execution of the decision of Reference tribunal of May 5, 2015.

Margo P. A. On July 3, 2018 appealed to Appeal Court of the city of Kiev as in Trial Court with the statement for recovery of submission due date of the statement for cancellation of the decision of reference tribunal and cancellation of the decision of reference tribunal of May 5, 2015 based on Items 1, 2 parts two of article 458 of the Code on which the decision of reference tribunal can be cancelled if case on which the decision of reference tribunal, to not subordinated reference tribunal according to the law (Item 1) is made; the decision of reference tribunal is made on the dispute which is not provided by the arbitration agreement, or this decision resolves the issues which are going beyond the arbitration agreement (Item 2). In Margo P. A. statement., in particular, noted that of May 5, 2015 she knew of the decision of Reference tribunal on June 15, 2018, that is from the date of receipt of the requirement of the state contractor of Shevchenkovsky department of the public executive service of the city of Zaporizhia to be for the solution of question of accomplishment of the decision of the Dnieper district court of the city of Kiev of August 7, 2015.

The Appeal Court of the city of Kiev the resolution of July 20, 2018 returned Margo P. A. the statement in connection with the expiration on filing of application about cancellation of the decision of the reference tribunal established by part five of article 454 of the Code.

The Supreme Court the resolution of October 11, 2018 the petition for appeal of Margo P. A. left without satisfaction, having noted that "Margo P. A. statement. 454 GPK of Ukraine are given after term, to stipulated in Item 1 part five of Article <...>. This term established by the procedural law is limiting, the possibility of its recovery is not provided by regulations of GPK".

1.2. The person of law on the constitutional claim claims that as a result of application by court of Item of 1 part five, part seven of article 454 of the Code its right to access to court guaranteed by article 55 of the Constitution of Ukraine is violated.

According to Margo P. A., the disputed instructions of the Code "actually exclude the whole category of decisions, obligatory to execution, from under judicial control, make impossible their review for the purpose of correction of explicit miscarriage of justice or effects of abuse of the right".

In the constitutional claim it is specified that "almost for all cases of appeal (review) of judgments of GPK provides possibility of renewal of term on such appeal <...> the term of appeal of the specific judgment by the participant of case which was not present at declaration of such decision is estimated from the date of receipt by the participant of case of data on such decision".

Margo P. A. considers that the Code in edition of the Law of Ukraine "About modification of the Economic Procedure Code of Ukraine, the Code of civil procedure of Ukraine, the Code of administrative legal proceedings of Ukraine and other legal acts" of October 3, 2017 No. 2147-VIII, unlike the edition of the Code operating before entry into force of this law does not contain possibility of recovery by court of term for filing of application about cancellation of the decision of reference tribunal that demonstrates narrowing of content and amount of the right to judicial protection and consequently, about violation of part three of article 22 of the Constitution of Ukraine.

2. According to the Constitution of Ukraine human rights and freedoms and their guarantees determine content and orientation of activities of the state; approval and providing human rights and freedoms is the main obligation of the state (Article part two 3).

One of general bases of the Ukrainian constitutional system is the guarantee appeal to the court for protection of constitutional rights and freedoms of man and citizen directly based on the Constitution of Ukraine (the second offer of part three of article 8 of the Constitution of Ukraine).

The right to judicial protection of rights and freedoms of man and citizen is guaranteed by the instruction of part one of article 55 of the Constitution of Ukraine.

"Approval of the constitutional state according to instructions of Article 1, of the second offer of part three of Article 8, of part one of Article 55 of the Fundamental Law of Ukraine consists, in particular, in guaranteeing to everyone judicial protection of the rights and freedoms, and also in implementation of the effective mechanism of such protection" (paragraph two of subitem 2.3 of Item 2 of motivation part of the solution of the Constitutional Court of Ukraine of June 13, 2019 No. 4-r/2019).

The constitutional court of Ukraine stated that "part one of article 55 of the Constitution of Ukraine should be understood so that protection of the rights and freedoms judicially is guaranteed to everyone. The court cannot refuse justice if the citizen of Ukraine, the foreigner, the person without citizenship consider that their rights and freedoms are broken or are broken, are created or obstacles for their realization are created or other infringements of the rights and freedoms take place" (Item 1 of substantive provisions of the Decision of December 25, 1997 No. 9-zp); "judicial protection of rights and freedoms of man and citizen needs to be considered as type of the state protection of rights and freedoms of man and citizen. And the state undertakes such obligation according to part two of article 55 of the Constitution of Ukraine"; "The constitution of Ukraine guarantees everyone judicial protection of its rights within the constitutional, civil, economic, administrative and criminal trial of Ukraine" (the paragraph the fifteenth Item 3, the paragraph third item 4 of motivation part of the decision of May 7, 2002 No. 8-rp/2002).

So, instructions of Article 8, parts one of article 55 of the Constitution of Ukraine oblige the state to guarantee at the legislative level to everyone sales opportunity of its right to judicial protection. The legislator shall establish such amount of the right of persons to judicial protection which would provide its efficient realization, and the refusal of courts in realization of such opportunity can lead to violation of the right to judicial protection guaranteed by the Constitution of Ukraine. In the context of consideration of the constitutional claim of Margo P. A. the amount of judicial protection established by the legislator concerning appeal of the decision of reference tribunal shall be provided by means of effective judicial control.

2.1. Guaranteeing judicial protection from the state, the Constitution at the same time recognizes the right of everyone as any means which are not prohibited by the law to protect the rights and freedoms from violations and illegal encroachments (Article part six 55).

One of methods of realization of the right of everyone any means which are not prohibited by the law to protect the rights and freedoms from violations and illegal encroachments in the field of civil and economic legal relationship is the appeal to reference tribunal (paragraph one of Item 5 of motivation part of the Solution of the Constitutional Court of Ukraine of February 24, 2004 No. 3-rp/2004).

According to the Law of Ukraine "About reference tribunals" of May 11, 2004 No. 1701-IV with changes (further - the Law No. 1701-IV) the reference tribunal is non-state independent body that it is formed under the agreement or the relevant decision of the interested physical persons and/or legal entities according to the procedure, established by the Law No. 1701-IV, for resolution of disputes, arising from civil and economic legal relationship (Article part one paragraph two 2).

In due time the Constitutional Court of Ukraine, considering case on tasks of reference tribunal, noted that "arbitration of disputes of the parties in the field of civil and economic legal relationship is type of non-state jurisdictional activities which reference tribunals perform based on the laws of Ukraine by application, in particular, of arbitrirovaniye methods. Implementation of protection function by reference tribunals <...> No. 1401-VIII] is implementation not of justice, but arbitration consideration of disputes of the parties by them in civil and economic legal relationship within the right determined by part five of article 55 of the Constitution of Ukraine" [Article 55 in edition before modification by the Law of Ukraine "About introduction of amendments to the Constitution of Ukraine (concerning justice)" of June 2, 2016 (the paragraph the fifth item 4 of motivation part of the Decision of January 10, 2008 No. 1-rp/2008). The constitutional court of Ukraine stated that "arbitration consideration is not justice, and decisions of reference tribunals are only acts of non-state jurisdictional activities for the dispute resolution of the parties in the field of the civil and economic relations.

<...> Follows from the analysis of provisions of the Law that reference tribunals are non-state independent bodies of protection of the property and non-property rights and the interests of physical persons and/or legal entities protected by the law in the field of civil and economic legal relationship. According to article 7 of the Law arbitration consideration is performed by permanent reference tribunals and reference tribunals for permission of specific dispute.

Thus, reference tribunals do not perform justice, their decisions are not acts of justice, and they are not a part of the system of courts of law" (paragraphs the eighth, tenth, eleventh item 4 of motivation part of the Decision of January 10, 2008 No. 1-rp/2008).

According to part two of article 1 of the Law No. 1701-IV any dispute arising from civil and economic legal relationship except the cases established by the law can be by agreement of the parties transferred to reference tribunal. Exhaustive list of exceptions is contained by article 6 of the Law No. 1701-IV. In sense of part two of article 51 of the Law No. 1701-IV appeal of the decision of reference tribunal is outside arbitration consideration and belongs to jurisdiction of courts.

Follows from article 125 of the Constitution of Ukraine that reference tribunals do not belong to system of judicial system, respectively the decision of reference tribunal is not the act of justice.

Therefore, reference tribunals are not state bodies, they are not carried to system of judicial system, they do not perform justice. The appeal to reference tribunals on consideration and permission of the jurisdictional disputes which are within their competence which is based on free declaration of will of the parties of dispute is one of methods of implementation of the right of everyone guaranteed by part six of article 55 of the Constitution of Ukraine any means which are not prohibited by the law to protect the rights and freedoms from violations and illegal encroachments.

2.2. In aspect of consideration of the constitutional claim of Margo P. A. The constitutional court of Ukraine notes that the right to judicial protection is guaranteed by part one of article 55 of the Constitution of Ukraine and covers not only the right to appeal to the court, but also sales opportunity of this right without restrictions or barriers, including guarantees to person the right to appeal in court of the decision of reference tribunal.

Sales opportunity of the right to judicial protection is provided, in particular, with part one of article 454 of the Code according to which "the parties, the third parties, and also persons who were not taking part in case if the reference tribunal resolved issue of their rights and obligations have the right to take a legal action with the statement for cancellation of the decision of reference tribunal". The term during which the party, the third party on the case considered by reference tribunal has the right to submit the application for cancellation of the decision of reference tribunal constitutes ninety days from the date of decision making by reference tribunal (Item of 1 part five of article 454 of the Code).

Person who takes a legal action with the statement for cancellation of the decision of reference tribunal according to the procedure the established Section VIII "Production on cases on appeal of decisions of reference tribunals, contest of decisions of the international commercial arbitrations" of the Code, shall specify, in particular, the basis for appeal (contest) and cancellation of the decision of reference tribunal (Item 7 parts two of article 455 of the Code).

The exclusive list of the bases for cancellation of the decision of reference tribunal is determined in part two of article 458 of the Code, namely:

1) case in which the decision of reference tribunal, to not subordinated reference tribunal according to the law is made;

2) the decision of reference tribunal is made on the dispute which is not specified in the arbitration agreement, or this decision resolves the issues which are going beyond the arbitration agreement; if the decision of reference tribunal resolves the issues which are going beyond the arbitration agreement, then only that part of the decision which concerns questions which go beyond the arbitration agreement can be cancelled;

The arbitration agreement the court nullified 3);

4) the structure of the reference tribunal which made the decision did not meet the requirements of the law;

5) the reference tribunal resolved issue of the rights and obligations of persons who were not taking part in case.

Follows from given that person in case of the decision reference tribunal of question of its rights and obligations has the right to take a legal action with the statement for cancellation of the decision of reference tribunal and thus to exercise the right to judicial protection.

2.2.1. Performing check of whether there are restrictions on realization by person of the right to judicial protection in that amount as it is guaranteed by part one of article 55 of the Constitution of Ukraine, as a result of application of the civil jurisdiction of part seven of article 454 of the Code by courts according to which the court returns the application submitted after the term established by part five of this article of the Code, the Constitutional Court of Ukraine notes the following.

Content of the right to judicial protection established by part one of article 55 of the Constitution of Ukraine should be determined, among other things, taking into account content of the right to fair trial guaranteed by article 6 of the Convention on human rights protection and fundamental freedoms of 1950 (further - the Convention) and interpreted by the European Court of Human Rights.

In the decision in the matter of Delcourt v. Belgium the European Court of Human Rights noted that "in democratic society in the light of understanding of the Convention the right to rendering fair justice takes so important place that the narrowing interpretation of Item 1 of Article 6 (Art. 6-1) would not answer the purpose and purpose of this instruction" [the decision of January 17, 1970 (the statement No. 2689/65), §25].

The European Court of Human Rights stated that Item 1 of article 6 of the Convention contains guarantees of fair legal proceedings, one of aspects of which is access to court, and also that "the access level provided by the national legal system shall be sufficient for providing to person of "the right to court", considering the principle of right ownership in democratic society. In order that the right to access to court was effective, person shall have accurate practical opportunity to appeal the decision [act] which constitutes intervention in its rights" [the decision in the matter of Bellet v. France of December 4, 1995 (the statement No. 23805/94), §36].

The European Court of Human Rights noted that the right to court, one of aspects of which is the right to access to court, is not absolute, it on the content can be subject to restrictions, especially concerning conditions of the acceptability of the claim to the decision; however such restrictions cannot limit realization of this right thus or to such an extent that the essence of the right was broken; these restrictions shall answer the legitimate purpose, there shall be reasonable proportionality degree between the used means and effective objectives [the decision in the matter of Musht against Ukraine of November 18, 2010 (the statement No. 8863/06), §37].

2.2.1.1. According to the Law of Ukraine "About modification of the Economic Procedure Code of Ukraine, the Code of civil procedure of Ukraine, the Code of administrative legal proceedings of Ukraine and other legal acts" of October 3, 2017 the Code is reworded as follows No. 2147-VIII (further - the Law No. 2147-VIII).

The analysis of contents of the explanatory note to the bill of Ukraine on modification of the Economic Procedure Code of Ukraine, the Code of civil procedure of Ukraine, the Code of administrative legal proceedings of Ukraine and other legal acts (рег. to No. 6232) accepted as the Law No. 2147-VIII demonstrates that the person of law of the legislative initiative proved need of adoption of the specified bill, in particular, so: "In Ukraine repeatedly specified imperfection of judicial protection in the decisions concerning Ukraine the European Court of Human Rights, specifying such problems of the Ukrainian judicial system as insufficient legal definiteness <...> restriction of right of access in court <...> and so forth". In the explanatory note it is also specified that "adoption of the bill "About Modification of the Economic Procedure Code of Ukraine, the Code of Civil Procedure of Ukraine, the Code of Administrative Legal Proceedings of Ukraine and Other Legal Acts" will promote overcoming procedural problems which interfere with effective judicial protection in Ukraine, in particular: <...> imperfection, and sometimes - lack of effective procedural tools for protection of the rights and interests of persons which take a legal action <...>. Rules of the Code of civil procedure of Ukraine, the Economic Procedure Code of Ukraine and the Code of administrative legal proceedings of Ukraine in the bill are most harmonized, and regarding general provisions, the used terminology - are unified for the purpose of ensuring unity of law-enforcement practice".

So, the Law No. 2147-VIII according to which the Code is reworded as follows, accepted, in particular, for the purpose of increase in efficiency of judicial protection in Ukraine, including by elimination of legislative shortcomings which lead to restriction of the right to access to court.

2.2.1.2. Comparative analysis of legal regulation of question of procedure and circulation periods in court with the statement for cancellation of the decision of reference tribunal according to the procedure of civil legal proceedings testifies to the following.

In part two of article 389-1 of the Code in edition before modification by the Law No. 2147-VIII it was established: "The statement for cancellation of the decision of reference tribunal is filed a lawsuit in the place of consideration of the case by reference tribunal by the parties, the third parties within three months from the date of decision making by reference tribunal, and persons who did not take part in case if the reference tribunal resolved issue of their rights and obligations, - within three months from the date of when they learned or shall learn about decision making by reference tribunal". Comparative analysis of content of part two of article 389-1 of the Code in edition before modification by the Law No. 2147-VIII and parts seven of article 454 of the Code demonstrates that regarding determination of term during which person could take a legal action with the statement for cancellation of the decision of reference tribunal the regulation remained invariable.

The part three of article 389-1 of the Code before modification by the Law No. 2147-VIII contained such formulation in edition: "The application submitted after the term established by part two of this Article remains without consideration if the court according to the statement of person which gave it does not find the bases for renewal of term about what determination is taken out".

According to the disputed instructions of the Code the application for cancellation of the decision of reference tribunal is submitted within ninety days: the party, the third party on the case considered by reference tribunal - from the date of decision making by reference tribunal (Item of 1 part five of Article 454), the court returns the application submitted after the term established by parts five or the sixth this Article (Article part seven 454).

Given demonstrates that the legislator, having adopted the Law No. 2147-VIII according to which the Code is reworded as follows, deprived of faces which are the parties, the third parties on the case considered by reference tribunal, guarantees of consideration by court of question of recovery of term for giving in court of the statement for cancellation of the decision of reference tribunal if it is given after the term established by the Code whereas according to instructions of the Code in edition before modification by the Law No. 2147-VIII they had such warranty.

2.2.1.3. Researching question of probable restriction of the right of persons who are subjects of appeal to the court according to Item of 1 part five of article 454 of the Code, on judicial protection (access to court) in that amount as it is guaranteed by part one of article 55 of the Constitution of Ukraine, the Constitutional Court of Ukraine is guided, in particular, by the Solution of May 22, 2018 No. 5-r/2018, in which the following legal line item is formulated:

"As Article 22 is in Chapter II "The rights, freedoms and obligations of man and citizen" Constitutions of Ukraine and in it the general requirement of rather legislative regulation of the existing rights and freedoms is formulated, provisions of part three of this Article need to be interpreted in interrelation with provisions of parts one, the second Article 22, of Article part one 64, of part one of Article 157 of the Fundamental Law and to understand as such which extend to all existing human rights and freedoms guaranteed by the Constitution of Ukraine.

Narrowing of content and amount of the existing constitutional rights and human freedoms is their restriction. The Verkhovna Rada of Ukraine is authorized to adopt the laws setting restrictions according to the following criteria: "restrictions on realization of constitutional rights and freedoms cannot be willful and unfair, they shall be established only by the Constitution and the laws of Ukraine, to pursue the legitimate aim, to be caused by social necessity of achievement of this purpose, pro rata and reasonable, in case of restriction of constitutional right or freedom the legislator shall enter such legal regulation which will give the chance optimum to achieve the legitimate goal with the minimum intervention in implementation of this right or freedom and not to violate intrinsic content such right" (the paragraph third subitem 2.1 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine of June 1, 2016 No. 2-rp/2016).

According to Item of 1 part one of article 92 of the Constitution of Ukraine only the laws of Ukraine determine rights and freedoms of man and citizen, guarantees of these rights and freedoms. But, determining them, the legislator can only expand, but not narrow, content of constitutional rights and freedoms and to establish mechanisms of their implementation.

Therefore, provisions of part three of article 22 of the Constitution of Ukraine need to be understood so that in case of adoption of the new laws or introduction of amendments to current laws narrowing of content and amount of the existing constitutional rights and human freedoms is not allowed if such narrowing leads to violation of their essence" (paragraphs of the seventh - the tenth subitem 2.2 of Item 2 of motivation part).

Based on stated the Constitutional Court of Ukraine came to conclusion that, having adopted the Law No. 2147-VIII according to which the Code is reworded as follows, the legislator lowered the access level in court of persons which are subjects of appeal to the court according to Item of 1 part five of article 454 of the Code than limited their right to judicial protection in that amount as it is guaranteed by part one of article 55 of the Constitution of Ukraine. Thus, the prohibition of narrowing of content and amount of the available rights and freedoms in case of adoption of the new laws or introduction of amendments to current laws established in part three of article 22 of the Constitution of Ukraine is broken than the possibility of effective realization of the right to judicial protection and effectiveness of the mechanism of judicial control of the decision of reference tribunal is leveled.

3. In Ukraine the principle of supremacy of law (part one of article 8 of the Constitution of Ukraine) is recognized and is effective.

According to parts one, the second article 24 of the Constitution of Ukraine citizens have equal constitutional rights and freedoms and are equal before the law; there cannot be privileges or restrictions on signs of race, skin color, political, religious and other convictions, floor, ethnic and social origin, property status, the residence, on language or other signs.

The foreigners and stateless persons which are in Ukraine on legal causes have the same rights and freedoms, and also perform the same duties, as well as citizens of Ukraine, - behind the exceptions established by the Constitution, the laws or international treaties of Ukraine (part one of article 26 of the Constitution of Ukraine).

The equality of all people in their rights and freedoms guaranteed by the Constitution means need of providing equal legal opportunities of both material, and procedural nature with it for realization identical on content and amount of the rights and freedoms; in the constitutional state appeal to the court is the universal mechanism of protection of the rights, freedoms and legitimate interests of physical persons and legal entities (the paragraph the fifth subitem 2.2 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine of April 12, 2012 No. 9-rp/2012).

In the report on right possession of the European commission "For democracy through the right" (The Venetian commission) it is determined that elements of right possession are, in particular, the prohibition of discrimination and equality before instructions of the right (§41), and also it is specified that" <...> any unjustified unequal relation according to instructions of the right is forbidden, and all persons have the guaranteed same and efficient protection from discrimination on any sign - because of race, skin color, floor, language, religion, political or different views, national or social origin, property, on class origin or according to other statuses" (§64); "equality before instructions of the right means that each person submits to the same regulations and one person or group of persons cannot have special legal privileges" (§65) (CDL-AD (2011)003rev).

The Venetian Commission in that part of the special Research "Right Possession Criterion" which concerns different aspects of right possession, noted that "The legislation shall protect the principle of equality: it shall treat homogeneous situations equally, and excellent situations - differently and to guarantee equality concerning any basis of rather potential discrimination" (CDL-AD(2016)007, the Item II.D.3.70).

3.1. The principle of equality before the law and inadmissibility of discrimination of the personality are fundamental values of the world community about what it is noted in the universal declaration of the human rights ("Universal Declaration of Human Rights") of 1948 (Article 1, of 2, of 7), and also other international acts concerning protection of rights and freedoms of man and citizen which are ratified by Ukraine, in particular, in the International Covenant on Civil and Political Rights of 1966 (Article 14, of 26), Conventions (Article 14), the Protocol No. 12 to the Convention (Article 1).

According to practice of the European Court of Human Rights, "that there was question within article 14 of the Convention, there shall be distinction in the attitude towards persons who are in similar or significantly similar situations. Such distinction in the address is discrimination if it has no objective and reasonable justification; in other words, if it does not answer the lawful (legitimate) purpose or if there are no reasonable relations of proportionality between the used means and the aim which is pursued by it. Certain space of considering (margin of appreciation) in determination of the actions in estimation of that is provided to the State Party, distinctions in other similar situations justify the excellent relation and in what measure" [the decision in the matter of Khamtokhu and Aksenchik v. Russia of January 24, 2017 (the statement No. 60367/08, No. 961/11), §64].

Summing up stated, the Constitutional Court of Ukraine notes that the equality of all people in their rights and freedoms guaranteed by the Constitution of Ukraine means extremity of providing equal legal opportunities of both material, and procedural nature with it for realization identical on content and amount of the rights and freedoms. In the state managed by right possession, appeal to the court is the universal mechanism of protection of the rights, freedoms and legitimate interests of physical persons and legal entities, and respect for the general principles of equality of the citizens before the law and prohibition of discrimination determined by instructions of parts one, the second article 24 of the Constitution of Ukraine is indispensable component of realization of the right to judicial protection.

3.2. Considering that reference tribunals solve the disputes arising from civil and economic legal relationship (part two of article 1 of the Law No. 1701-IV), the Constitutional Court of Ukraine considers that there is need to research questions of procedure and terms of appeal of the decision of reference tribunal and possibility of their recovery according to instructions of the Economic Procedure Code of Ukraine (further - HPK of Ukraine) which was reworded as follows according to the Law No. 2147-VIII.

According to article 122-1 HPK of Ukraine in edition before modification by the Law No. 2147-VIII "the statement for cancellation of the decision of reference tribunal moves in Economic Court of Appeal in the place of consideration of the case by reference tribunal by the parties, the third parties within three months from the date of decision making by reference tribunal, and persons who did not take part in case if the reference tribunal resolved issue of their rights and obligations, - within three months from the date of when they learned or shall learn about decision making of reference tribunal" (part two); "the application submitted after the term established by part two of this Article remains without consideration if the economic court according to the statement of person which gave it does not find the bases for renewal of term about what determination (part three) is taken out.

According to article 346 HPK of Ukraine "the application for cancellation of the decision of reference tribunal is submitted to Economic Court of Appeal in the place of consideration of the case by reference tribunal by the party, the third party within ninety days from the date of decision making by reference tribunal, and person who was not participating in case if the reference tribunal resolved issue of its rights and (or) obligations - within ninety days from the date of when it learned or owed learn about decision making of reference tribunal (part two); "the application submitted after the term established by part two of this Article returns. The court according to the petition of the applicant can recover the missed submission due date of the statement for cancellation of the decision of reference tribunal if recognizes the reasons of its omission valid" (part three).

Comparative analysis of instructions of HPK of Ukraine regulating procedure for appeal of the decision of reference tribunal (Article 346), and instructions of HPK of Ukraine in edition before modification by the Law No. 2147-VIII regulating the same question (Article 122-1), demonstrates that the legislator, having adopted the Law No. 2147-VIII, established possibility of renewal by legal process of the passed terms for appeal of the decision of reference tribunal for the parties (third parties) of arbitration consideration on permission of economic dispute, and, therefore, provided efficient realization of their right to judicial protection.

Similar approach of the legislator is traced in question of settlement of procedure and submission due dates of the statement for recognition and provision of permission to execution of the decision of the international commercial arbitration. So, in part four of article 475 of the Code it is determined that "the application submitted after the term established by part three of this Article returns without consideration. The court according to the petition of the applicant can resume the passed term on filing of application about recognition and provision of permission to execution of the decision of the International commercial arbitration if recognizes the reasons of its omission valid". At the same time the article 454 Code does not give opportunity to recover legal process the passed term on giving by the party, the third party on the case considered by reference tribunal, statements for appeal of the judgment.

Considering that according to instructions of the Code there is no opportunity to recover legal process the passed term on giving by physical person - the party, the third party on case in which the reference tribunal resolved dispute over civil legal relationship, statements for cancellation of the decision of reference tribunal at the same time such opportunity (recoveries of the passed term for appeal of the decision of reference tribunal) exists for legal entities according to instructions of HPK of Ukraine there are bases for conclusion about distinction concerning the legislator to participants of the private relations - physical persons and legal entities of private law, provision of different legal opportunities of the procedural nature for realization guaranteed to these persons by article 55 of the Constitution of Ukraine identical on content and amount of the right to judicial protection by it. Brought is sufficient to understand discrepancy of Item of 1 part five, parts seven of article 454 of the Code in their interrelation of Article part one 8, to parts one, the second article 24 of the Constitution of Ukraine.

4. According to part two of article 152 of the Constitution of Ukraine, article 91 of the Law of Ukraine "About the Constitutional Court of Ukraine" the laws, other acts or their separate provisions recognized as unconstitutional void from the date of acceptance by the Constitutional Court of Ukraine of the decision on their illegality if other is not established by the decision, but not earlier than day of its acceptance.

The constitutional court of Ukraine considers that in Ukraine in connection with military aggression of the Russian Federation against Ukraine martial law is imposed (The presidential decree of Ukraine "About introduction of warlike situation in Ukraine" of February 24, 2022 No. 64/2022, No. 2102-IX approved by the Law of Ukraine "About approval of the Presidential decree of Ukraine "About introduction of warlike situation in Ukraine"" of February 24, 2022, the Presidential decree of Ukraine "About prolongation of effective period of warlike situation in Ukraine" of March 14, 2022 No. 133/2022, No. 2119-IX approved by the Law of Ukraine "About approval of the Presidential decree of Ukraine "About prolongation of effective period of warlike situation in Ukraine"" of March 15, 2022).

Considering stated, the Constitutional Court considers necessary to delay loss of force of Item of 1 part five, part seven of article 454 of the Code contradicting the Constitution of Ukraine for three months from the date of the termination or cancellation of the warlike situation imposed by the Presidential decree of Ukraine "About introduction of martial law in Ukraine" of February 24, 2022 No. 64/2022 with changes.

With respect thereto the Verkhovna Rada of Ukraine within three months from the date of the termination or cancellation of the warlike situation imposed by the Presidential decree of Ukraine "About introduction of martial law in Ukraine" of February 24, 2022 No. 64/2022 with changes shall bring normative regulation, stipulated in Item 1 parts five, part seven of article 454 of the Code, into compliance with the Constitution of Ukraine and this Decision.

Considering stated and being guided by Articles 147, of 150, 151-1, 151-2, 152, 153 Constitutions of Ukraine, based on Articles 7, of 32, of 36, of 65, of 67, of 74, of 84, of 88, of 89, of 91, of 92, of 94, 97 Laws "About the Constitutional Court of Ukraine"

Constitutional court of Ukraine

decided:

1. Recognize not answering to the Constitution of Ukraine (are unconstitutional), Item of 1 part five, part the seventh Article 454 of the Code of civil procedure of Ukraine that they make impossible recovery of the term by court on representation by person which is the party, the third party in the case considered by reference tribunal of the statement for cancellation of the decision of reference tribunal.

2. The Item of 1 part five, part seven of Article 454 of the Code of civil procedure of Ukraine recognized as unconstitutional void in three months from the date of the termination or cancellation of the warlike situation imposed by the Presidential decree of Ukraine "About introduction of martial law in Ukraine" of February 24, 2022 No. 64/2022 with changes.

3. To the Verkhovna Rada of Ukraine within three months from the date of the termination or cancellation of the warlike situation imposed by the Presidential decree of Ukraine "About introduction of martial law in Ukraine" of February 24, 2022 No. 64/2022 with changes to bring normative regulation, stipulated in Item 1 parts five, part seven of Article 454 of the Code of civil procedure of Ukraine, into compliance with the Constitution of Ukraine and this Decision.

4. The solution of the Constitutional Court of Ukraine is obligatory, final and cannot be appealed.

The solution of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine".

 

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