THE RESOLUTION OF THE PLENUM OF THE SUPREME SPECIALIZED COURT OF UKRAINE ON CONSIDERATION OF CIVIL AND CRIMINAL CASES

of March 1, 2013 No. 3

About some questions of jurisdiction of general courts and determinations of cognizance of civil cases

For the purpose of realization of the constitutional guarantees of the right to judicial protection, exception of possibility of cases of groundless refusal in reception of applications, ensuring the correct and identical application by courts of the legislation, in case of the solution of question of jurisdiction and determination of cognizance of civil cases, being guided by article 36 of the Law of Ukraine "About judicial system and the status of judges", the plenum of the Supreme specialized court of Ukraine on consideration of civil and criminal cases decides to make to courts the following explanations:

1. The constitution of Ukraine affirms the right of everyone to judicial protection and it is provided that jurisdiction of courts extends to all legal relationship arising in the state (Articles 55, of 124), and No. 2453-VI "About judicial system and the status of judges" (further - the Law No. 2453-VI) is determined by article 18 of the Law of Ukraine of July 7, 2010 that courts of law specialize in consideration of civil, criminal, economic, administrative cases, and also cases on administrative offenses.

Courts shall consider that providing to everyone the rights to fair trial and the realization of the right of the personality to judicial protection shall be enabled taking into account regulations of the Convention on human rights protection and fundamental freedoms (ROME, 4.XI.1950, further - the Convention of 1950), and also practicians of the European Court of Human Rights who according to article 17 of the Law of Ukraine of February 23, 2006 No. 3477-IV "About accomplishment of decisions and application of practice of the European Court of Human Rights" are applied by courts by hearing of cases as source of law.

2. According to Item 1 of article 6 of the Convention of 1950 everyone in case of dispute decision concerning its civil laws and obligations has the right to fair and public treatment of its case for reasonable time by the independent and impartial court established by the law.

Nobody can be deprived of the right to consideration of its case in court to which cognizance it is carried by the procedural law (article 8 of the Law No. 2453-VI).

Resolving issue of opening of proceeedings, courts shall check belonging of cases to their jurisdiction and cognizance.

The civil jurisdiction is the set of powers of courts determined by the law concerning consideration of the civil cases carried to their competence (Article 15 GPK). Cognizance determines circle of civil cases in disputes which decision belongs to powers of specific Trial Court (Article 108 - 114 GPK).

3. Resolving issue of opening of proceeedings, courts shall recognize that according to Articles 15, 16 GPK according to the procedure of civil legal proceedings courts consider cases on protection of the broken, unrecognized or disputed rights, freedoms or interests arising from civil, housing, land, family, employment relationships and also from other legal relationship, except cases when consideration of such cases on the Code of administrative legal proceedings of Ukraine (Article 17) (further - KAS), the Economic Procedure Code of Ukraine (Articles 1, 12; further - HPK), by the Criminal Procedure Code of Ukraine (further - the Code of Criminal Procedure) or the Code of Ukraine about administrative offenses (further - КУоАП) it is carried to competence of administrative, economic courts, to criminal proceedings or to production on cases on administrative offenses. By the law consideration of another matters on civil procedure rules can be provided.

Due to given courts shall recognize that criteria of otgranicheniye of cases of the civil jurisdiction from others is, first, availability at them of dispute on the civil law (cases on the claims arising from any legal relationship except cases when consideration of such cases is carried out by rules of other legal proceedings), secondly, subject structure of such dispute (one of the parties in dispute the physical person is, as a rule).

As according to Article 16 GPK are not allowed consolidation in one production of the requirements which are subject to consideration by rules of different types of legal proceedings if other is not established by the law, the court opens proceeedings regarding the requirements relating to the civil jurisdiction and refuses opening of proceeedings concerning requirements when their consideration is carried out by rules of other type of legal proceedings. At the same time the court also shall consider that according to the procedure of civil legal proceedings are subject to consideration of the case if one of the parties is the physical person, and requirements are interconnected among themselves and their separate consideration is impossible.

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