07.04.2022
On April 6, 2022, the Constitutional Court of Ukraine adopted a Decision in the case upon the constitutional complaint of Polina Marho on the constitutionality of paragraph 1 of part five, part seven of Article 454 of the Code of Civil Procedure of Ukraine (hereinafter referred to as the Code).
In this Decision, the Constitutional Court of Ukraine noted that the right to judicial protection, guaranteed by Article 55.1 of the Constitution of Ukraine, encompasses not only the right to apply to the court, but also the possibility of its exercise without any limitations or obstacles. In particular, the constitutional provision cited afore guarantees a person the right to appeal in court the decision of an arbitration court.
Paragraph 1 of part five, part seven of Article 454 of the Code of Civil Procedure of Ukraine is unconstitutional in that it excludes the possibility of the court to renew the time limit for the submission by a person who is a party, a third party in a case, considered by an arbitration court, of an application to cancel the decision of an arbitration court.
A comparative analysis of the legal regulation of the issue of the procedure and terms for applying to the court with an application to cancel the decision of the arbitration court in civil proceedings, allowed the Constitutional Court to come to the conclusion that the legislator, having adopted the Law of Ukraine “On Amendments to the Code of Economic Procedure of Ukraine, the Code of Civil Procedure of Ukraine, the Code of Administrative Procedure of Ukraine and other legislative acts” of October 3, 2017 No. 2147-VIII (hereinafter – the Law No. 2147-VIII), in accordance with which the Code is set out in a new version, deprived persons who are parties, third parties in the case, considered by arbitral tribunal, of the guarantee that the court will consider the issue of resuming the term for submitting to the court an application for the cancellation of the arbitral tribunal’s decision, if it is filed after the expiration of the period established by the Code.
As a result, the safeguards laid down in Article 55 of the Constitution of Ukraine have been levelled and the said individuals have been deprived of the possibility of effective implementation of the right to judicial protection.
The Constitutional Court of Ukraine emphasised that the equality of all people in their rights and freedoms, guaranteed by the Constitution of Ukraine, means the necessity of providing them with equal legal opportunities, both material and procedural, for the implementation of the rights and freedoms identical in content and scope.
„In a state governed by the rule of law, the recourse to the court is a universal mechanism for protecting the rights, freedoms and legitimate interests of individuals and legal entities, and the observance of the general principles of equality of citizens before the law and the prohibition of discrimination, determined by the prescriptions of parts one and two of Article 24 of the Constitution of Ukraine, is an indispensable component of the realisation of the right to judicial protection“, the Decision states.
In accordance with this Decision, the provision of the Code, declared unconstitutional, shall become invalid three months from the date of termination or cancellation of martial law, introduced by the Decree of the President of Ukraine „On the introduction of martial law in Ukraine“ dated February 24, 2022 No. 64/2022, as amended.
The Verkhovna Rada of Ukraine, within three months from the date of termination or cancellation of martial law, must bring the normative regulation established by paragraph 1 of part five, part seven of Article 454 of the Code in accordance with the Constitution of Ukraine and this Decision.
