On May 13, 2024, the Second Senate of the Constitutional Court of Ukraine at its plenary session delivered the Decision in the case upon the constitutional complaint of Volodymyr Lopushanskyi on the constitutionality of certain provisions of the Law of Ukraine “On Court Fees”.
The applicant appealed to the Constitutional Court of Ukraine to verify the compliance of Articles 3.2, 4.2.1.9 of the Law of Ukraine “On Court Fees” No. 3674– VI dated July 8, 2011, as amended, (hereinafter, the “Law”) with the Constitution of Ukraine.
The respective provisions of the Law establish the obligation of the plaintiff (recoverer in enforcement proceedings) to pay a court fee for filing a complaint against decisions, actions or inactions of a state enforcement officer or other official of the state enforcement service upon filing appellate and cassation complaints against a judge’s ruling issued upon deliberation of a complaint against a decision, actions or inactions of a state enforcement officer.
The author of the petition stressed that the application of the disputed provisions of the Law in the final court decision in his case violated his right to judicial protection and to appeal in court against decisions, actions or inactions of the bodies of state power, local self-government bodies, officials and employees (Articles 55.1, 55.2 of the Constitution of Ukraine) and did not ensure the state’s enforcement of the court decision and control over its execution (Article 1291 of the Fundamental Law of Ukraine).
In resolving the issues raised in the constitutional complaint, the Constitutional Court of Ukraine declared Articles 3.2, 4.2.1.9 of the Law of Ukraine “On Court Fee” No. 3674-VI dated July 8, 2011, as amended, as inconsistent with the Constitution of Ukraine (unconstitutional) in that they allow for the collection of court fees when filing appellate and cassation complaint against a court ruling issued upon the adoption of the deliberation of a complaint against a decision, actions or inactions of a state enforcement officer or other official of the state enforcement service or a private enforcement officer in the course of enforcement of a court decision delivered in accordance with the Civil Procedure Code of Ukraine.
In the Decision, the Court emphasised the importance of the provisions of Articles 55.1, 55.2 of the Constitution of Ukraine regarding the right of everyone to defend in court their rights and freedoms that are violated or infringed as a result of decisions, actions or inactions of the bodies of state power, and also stated that the provisions of the third sentence of Article 3.2, Articles 8, 55.1, 55.2 of the Fundamental Law of Ukraine oblige the state to introduce at the legislative level a legal mechanism for exercising the right to judicial protection that will provide procedural opportunities for real protection and restoration of violated rights and freedoms.
The Court holds that the right to judicial protection established by Article 55.1 of the Constitution of Ukraine should be considered with regard to the fundamental principles of judicial proceedings, as defined by the provisions of Article 129.2 of the Constitution of Ukraine, and taking into account the right to a fair trial (which includes the obligation of the state to execute a court judgment) guaranteed by Article 6 of the Convention, as interpreted by the European Court of Human Rights.
The court stated that there was an unjustified interference with the recoverer's right of access to court, since a person who paid the court fee for filing a claim with the court, gained access to the court and obtained a binding court decision in his/her favour, has to pay an additional (repeated) court fee for judicial review over the execution of the court decision.
The above indicates the failure to create adequate legal mechanisms for exercising the right of access to court, as well as the lack of real judicial control at the stage of enforcement of a court decision, since there is a complication of the practical exercise of the right of access to court by a person, which is a violation of the constitutional principles of justice and the principles of civil procedural law.
In view of the foregoing, given that a person appealing against a ruling of the first instance court primarily seeks to eliminate the consequences of violation of his/her rights caused by non-enforcement of a court decision, the legislator did not act in accordance with the principles of fairness, reasonableness, proportionality, ensuring a balance between the interests of the state in collecting court fees and the interests of the applicant in access to court and enforcement of a court decision, and did not ensure the ultimate goal of justice – protection of rights and freedoms.
The Court held that Articles 3.2, 4.2.1.9 of the Law contradict Articles 8.1, 55.1, 55.2, 1291 of the Constitution of Ukraine.
The provisions of the Law declared unconstitutional in this aspect shall cease to be effective six months after the date of this Decision delivery by the Constitutional Court of Ukraine.
The judge-rapporteur in the case is Galyna Yurovska.
The text of the Decision will be available on the Court's official website on May 14, 2024.
