RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of June 26, 2003 No. 7

About practice of consideration of civil cases according to the procedure of judicial supervision

Having discussed materials of generalization of court practice about consideration of civil cases according to the procedure of judicial supervision, for the purpose of remedial action and uniform application of the procedural legislation the Plenum of the Supreme Court

decides:

1. Draw the attention of Supervisory Courts to need of strict observance of the procedural legislation regulating procedure for proceedings in Supervisory Court, having at the same time in type that owing to p.1 Art. 445 GPK by hearing of cases according to the procedure of supervision rules GPK for hearing of cases in Trial Court with withdrawals and amendments, predusmotrennymiglavy 33 GPK are applied.

The Supervisory Court has the right to apply also by analogy the procedural rules regulating proceedings in cassation procedure.

2. Owing to Chapter provisions 33 GPK case according to the procedure of supervision can be initiated only at the initiative of the officials having rights of bringing of protests to the court decrees which took legal effect (the Art. 439 GPK). The bases to bringing of protests are fundamental breaches of regulations of substantive and procedural law. As review according to the procedure of supervision is exclusive procedure for test of legality and justification of court decrees, protests on court decrees only on the formal bases cannot be brought.

3. The fundamental breaches of regulations of the substantive right attracting cancellation of court decrees are the violations provided by the Art. 403 GPK if they led to the wrong permission of case on being.

The wrong application of regulations of the substantive right in itself is not the basis for cancellation according to the procedure of supervision correct on the substance of the court decree based on reliable, fully and correctly established circumstances.

4. Explain to courts that if the mistake made by court of the first, cassation or supervising instance in case of application or interpretation of regulations of the substantive right was the reason of removal of illegal decision, but on case collecting or additional verification of proofs as circumstances are established fully and correctly is not required, the Supervisory Court has the right to change or cancel the court decree with pronouncement of the new decision, without submitting the case on new trial to Trial Court (item 5 of the Art. 447 GPK).

5. Fundamental breaches of regulations of procedural law are the violations provided by the p. 2 of the Art. 404 GPK as they are connected with non-compliance with constitutional rights of citizens on judicial protection and the basic principles of civil legal proceedings.

Other violations of regulations of procedural law are recognized essential and attract cancellation of court decrees if they brought or could lead to the wrong permission of case.

6. The resolution of the Trial Court and determination of court of cassation instance to which in case of cancellation of resolution of the Trial Court the new decision on the dispute resolution in essence is passed are unreasonable if the court in defiance of the Art. 300 GPK did not determine what circumstances matter for case, gave the wrong assessment to proofs, researched proofs with abuse of regulations of relevancy and admissibility, in case of creation of motivation part of the decision did not give arguments on which these or those proofs are rejected.

7. Courts when checking case according to the procedure of supervision should mean that subitem provisions 4, 5 these resolutions extend also to resolutions of the Trial Court in which motivation part is absent on the bases provided by the law (the Art. 305 GPK).

At the same time according to Art. provisions 300, of the p. 2 of Art. 305 and the Art. 402 GPK reasons for resolution of the Trial Court contain in its motivation part. Due to not creation of motivation part in the decision there are no assessment of proofs, and also arguments on which these or those proofs are rejected. Therefore such decision can be reviewed on the groundlessness bases in cases of discrepancy of the conclusions stated in its substantive provisions, to the facts having legal value, established by the proofs which are available in case, insufficiency of such proofs, abuse of regulations of their relevancy and admissibility, representation of the materials testimonial of unauthenticity of proofs.

8. The Supervisory Court is not given the right change or pronouncement of new court decrees based on the researched case papers and new proofs which were not object of research of courts of the first and cassation instances (the Art. 447 GPK). Owing to this fact the Supervisory Court has no right to use the additional materials provided with the supervising claim or protest as evidentiary fact.

At the same time in case of confirmation by additional materials of the first and cassation instances of the actual circumstances established by courts the Supervisory Court has the right to refer along with the proofs which are available in case to them in reasons for leaving of the court decree without change or pronouncement of the new decision on the basis of the wrong application of regulations of the substantive right.

Additional materials can be the basis for protest and cancellation of court decrees if confirm failure to carry out by courts of the requirements established st.st.20 and 233 GPK on rendering to the parties and other persons of assistance in their reclamation and representation to court who are legally interested in the outcome of the case, and also inaccuracy established in the matter of the actual circumstances.

9. According to item 4 of the Art. 447 GPK Supervisory Court can uphold one of earlier taken out in the matter of court decrees, without submitting the case on new trial if circumstances are established in it fully and correctly.

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