On January 20, 2025, the Second Senate of the Constitutional Court of Ukraine (hereinafter, the “Court”) at a plenary session deliberated the case upon the constitutional complaint of Petro Kontorskyi regarding the compliance of Articles 4.2.1.7, 8.1 of the Law of Ukraine “On Court Fee” No. 3674–VI dated July 8, 2011 (hereinafter, the “Law”) with the Constitution of Ukraine.
Pursuant to Article 4.2.1.7 of the Law, a court fee rate for filing a cassation appeal against a court decision, an application for joining a cassation appeal against a court decision is set at 200 percent of the rate payable when filing a claim, other application and complaint in the amount of the disputed sum.
In accordance with Article 8.1 of the Law, taking into account the financial status of a party, the court may, by its ruling upon its application, defer or instalment payment of the court fee for a certain period of time, but not longer than until the court decision in the case is delivered, provided that the conditions specified in this Article are met.
The Applicant believes that as a result of the application of the disputed provision in the final court decision in his case, his right to judicial protection on the grounds of unsatisfactory financial status was violated (due to his financial inability to pay the court fee for filing a cassation appeal in the amount determined by the court on the basis of Article 4.2.1.7 of the Law).
Also in his constitutional complaint, Petro Kontorskyi stated that «the construction of Article 8.1 of the Law, according to which “the court, taking into account the property status of the party, may...”, determines that the issue of exemption, reduction, deferral or instalment of a court fee for persons not specified in Article 5 or in cases with a subject matter of dispute not covered by Article 5 is a right, not an obligation of the court, even if one of the conditions for such exemption, reduction, deferral or instalment is met».
The Court proceeds from the fact that according to the provisions of the Fundamental Law of Ukraine, the legal positions of the Court, which are consistent with the provisions of the Convention and the case law of the European Court of Human Rights, the right to judicial protection, in particular in terms of access to the court of cassation, is not absolute.
The payment of court fee as a requirement for access to court does not contradict the essence of the right to judicial protection guaranteed by Article 55.1 of the Fundamental Law of Ukraine. The law may establish an obligation to pay court fee. Therefore, the Court stated that the disputed provision is clear and understandable and meets the requirement of legal certainty, and the purpose of regulating the court fee for filing a cassation appeal is legitimate.
In the Decision, the Court pointed out that in a state governed by the rule of law, the exercise of the right of access to court should depend primarily on the nature of the dispute and other significant circumstances related to the issues of law in the case, and should not depend primarily or exclusively on the financial capacity of the party to the legal dispute.
It is the law that should establish the procedure for determining the court fee rate, the amount of which will ensure that a fair balance is achieved in a particular civil case between the public interest in obtaining a court fee to finance the administration of justice and the private interest in paying a proportionate amount of court fee.
Taking into account the role, place and powers of the Supreme Court as a court of cassation in civil cases, the legislator should establish by law the procedure for determining the court fee rate, which should be used to set a proportionate amount of court fee for filing a cassation appeal by a party to a civil case.
If the law establishes an unreasonably high court fee for filing a cassation appeal by a party to a civil case, the possibility of exercising the right to cassation appeal against a court decision guaranteed by the provisions of Articles 55.1, 129.2.8 of the Constitution of Ukraine will be theoretical and illusory.
The subject of the right to a constitutional complaint had to pay a court fee for filing a cassation appeal, which amounted to a large part of his annual income and a significant share of the subsistence minimum determined by law, which made it impossible for him to exercise the right guaranteed by Articles 55.1, 129.2.8 of the Constitution of Ukraine.
In view of the above, the Court considers that the individual provision of Article 4.2.1.7 of the Law does not comply with the principle of proportionality, since it restricts a person's access to the Supreme Court as a court of cassation in civil cases solely on financial grounds.
In view of the above, the Constitutional Court of Ukraine holds that the individual provision of Article 4.2.1.7 of the Law contradicts Articles 3.2, 8.1, 55.1, 129.2.8 of the Constitution of Ukraine.
When examining the compliance of Article 8.1 of the Law with the Constitution of Ukraine (constitutionality), the Court proceeds from the fact that the law should establish the procedure for determining the court fee rate, the amount of which will ensure that a fair balance is achieved in a particular civil case between the public interest in obtaining a court fee to finance the administration of justice and the private interest in paying a proportionate amount of court fee (Article 92.1.14 of the Fundamental Law of Ukraine).
At the same time, granting the court discretionary authority under Article 8.1 of the Law to defer or install the payment of court fees for a certain period of time based on the party’s financial status has a legitimate purpose – to ensure access to court and is an additional means of affirmative action by the state in the area of realisation of the right to judicial protection for persons in difficult financial circumstances.
According to Article 8.1 of the Law, a court has its own discretionary power, independent of the legislator, to defer or install the payment of court fee by a party for a certain period of time, taking into account its financial status. This power can be exercised only taking into account the specific circumstances of the civil case, primarily the financial situation of the party.
The use of such power by the court ensures the implementation of the norms-principles set forth in Articles 3.2, 8.1 of the Constitution of Ukraine, which oblige the state to guarantee and ensure human rights and freedoms in the manner and within the scope determined by the Constitution and laws of Ukraine, and the possibility of exercising the constitutional right guaranteed by Articles 55.1, 129.2.8 of the Constitution of Ukraine.
In view of the above, the Constitutional Court of Ukraine concludes that
Article 8.1 of the Law does not contradict Articles 3.1, 8.1, 55.1, 129.2.8 of the Constitution of Ukraine.
The individual provision of Article 4.2.1.7 of the Law, which was declared unconstitutional, shall cease to be effective six months after the date of delivery of this Decision by the Constitutional Court of Ukraine.
The Judge-rapporteur in the case is Oleh Pervomaiskyi.
The text of the Decision will be published on the official website of the Court.
