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

of October 17, 2014 No. 11

About some questions of observance of reasonable times of consideration by courts of civil, criminal cases and cases on administrative offenses

According to article 6 of the Convention on human rights protection and fundamental freedoms (ROME, 4.XI.1950) which according to part one of article 9 of the Constitution of Ukraine is part of the national legal system of Ukraine everyone has the right to fair and public trial of case in reasonable time by the independent and just trial established by the law which will solve dispute on its rights and obligations or will establish justification of any criminal charge brought against it.

Non-compliance with terms of consideration of civil, criminal cases and cases on administrative offenses violates constitutional right on the judicial protection guaranteed by article 55 of the Constitution of Ukraine and negatively influences efficiency of justice and authority of judicial authority.

Materials of court practice demonstrate that the shortcomings of activity of the courts connected first of all with the unsatisfactory organization of legal procedure are basic reasons of violation of procedural terms. There are cases when contrary to requirements of the procedural laws and without any bases for this purpose civil cases and criminal proceedings intend for legal proceedings with violation of stipulated by the legislation terms including when defendants are in custody.

Owing to the shortcomings allowed by preparation of civil cases for legal proceedings, insufficient studying of materials of pre-judicial investigation in case of preparatory production of the untimely notification of participants of legal procedure and other subjective reasons hearing of cases is repeatedly postponed. At the same time motives of adjournment are not always given in judgments, date of new trial is specified.

In some cases courts it is groundless refuse to interested persons the right to judicial protection on civil cases, for example, by refusal in opening of proceeedings and return of the statement.

Quite often cursory examination of civil cases and criminal proceedings, ignoring of regulations of substantive and procedural law leads not only to cancellation of judgments in appeal or cassation procedure, but also to fundamental breach of terms of decision making on the substance of production, and in case of proceedings about administrative offenses - to closing of production owing to the expiration of terms of administrative prosecution.

Appeal Courts and court of cassation instance not always pay attention and do not react to violations by courts of the terms of hearing of cases established by the law.

The plenum of the Supreme specialized court of Ukraine on consideration of civil and criminal cases notes that violation of terms of hearing of cases is caused also by such negative factors as considerable loading, first of all on judges of the first instance, unsatisfactory material logistics of courts, shortcomings of work of divisions of law-enforcement bodies, untimely accomplishment of the judgments about the drive of persons in criminal proceedings and on cases on administrative offenses, impossibility to provide participation of lawyers in legal procedures, duration of time necessary for delivery of legal notifications about date of judicial session and so forth.

For the purpose of ensuring compliance by courts with procedural terms of consideration of civil, criminal cases and cases on administrative offenses, and also in connection with emergence of questions at courts in case of application of some regulations of the procedural legislation, 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. When implementing justice courts should take into account that according to Item 1 of article 6 of the Convention on human rights protection and fundamental freedoms (ROME, 4.XI.1950) (further - the Convention) everyone has the right to legal proceedings of the case in reasonable time.

According to practice of the European Court of Human Rights, determining borders of current of such terms, it is necessary to proceed from the following.

In criminal proceedings both the period of pre-judicial investigation, and the period of legal proceedings and appeal production is considered. At the same time the current of terms in criminal proceedings begins with the moment when to person it is reported about suspicion or from the moment of detention of person on suspicion of making of criminal offense, and comes to an end at the moment when the sentence took legal effect or criminal proceedings is closed in general or concerning the particular person.

The current of terms of legal proceedings on civil cases begins with the moment of receipt of the action for declaration in court, and comes to an end with acceptance of the final decision on case if it not for benefit of person (case of "Skopelliti against Italy" of November 23, 1993), or accomplishment of the decision made for benefit of person (case "Papakhelas against Greece" of March 25, 1999).

Thus, according to article 6 of the Convention execution of the judgment is component of legal proceedings, closing stage of judicial proceedings. With respect thereto by consideration of questions of delay, payment by installments, change or establishment of method and procedure for execution of the decision, and also by consideration of claims to decisions, actions or failure to act of the state contractor or other official of the public executive service courts need to observe requirements of the Convention on accomplishment of the judgment in reasonable time (put "Gornsbi against Greece" of March 19, 1997, "Romashov against Ukraine" of July 27, 2004, "Dubenko against Ukraine" of January 11, 2005, "Nechiporuk and Yonkalo against Ukraine" of April 21, 2011 and others).

2. The terms established by the Code of civil procedure of Ukraine (further - GPK), the Criminal Procedure Code of Ukraine (further - the Code of Criminal Procedure), the Code of Ukraine about administrative offenses (further - КУоАП), are obligatory for courts and participants of legal procedures as determine duration of each stage of process or time during which legal proceeding shall be made (for example, the term of appeal of the judgment, submission due date of notes according to the magazine of judicial session). Specified is task of civil legal proceedings and criminal proceedings (Article of 1 GPK, article 2 Code of Criminal Procedure).

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