Who is the owner? Newly discovered circumstances and the principle of legal certainty in a single case study

The CPC of Ukraine provides a right to review a court decision in case of newly discovered or exceptional circumstances (Arts. 423-429). This is a proceeding according to which a decision of the court, which was final after the case consideration and has become binding and enforceable, may be revised according to newly discovered or exceptional circumstances specified in the law (Art. 423 of the CPC Code of Ukraine).

The finality of the decision, which may be challenged in this procedure, is essential in the Ukrainian legal doctrine.Kurs of Civil Procedure, ed by V Komarov (Pravo 2011); IO Izarova, Ryu Khanyk-Pospolitak, Civil procedure of Ukraine (VD `Dakor' 2019).

This proceeding of newly discovered or exceptional circumstances is also called `out of instance, since the appealed court decision is reviewed by the court that ruled it, in contrast to the general rule for reviewing a court decision by a court of highest instance.

The procedure of newly discovered circumstances was introduced in civil proceedings in the middle of the last century to solve problems with decisions that were adopted on the basis of incomplete circumstances of the case, which were essential for its consideration. After the expiration of a certain time, these circumstances became known to the participants of the case, who applied respectively for revision of the decision. A classic example of such a newly discovered circumstance is a will that came to light after a case had been settled in a court and a decision had come into force. We should mention that the time run up from the middle of the last century make very rarely meet the obstacles in a case consideration, or circumstances which were not and could not be known at the time of case consideration. In the case of our classic example, wills are included in the register of the wills and inheritance cases.Regulation on the Unified Register of Wills and Inheritance <https://nais.gov.ua/rn/str_31> accessed 20 December 2021. Therefore, the situation of an undiscovered will is now difficult to imagine.

The essential difference between the procedure for newly discovered circumstances and general appeals of a court decision is the different basis for initiating it. The main focus of this procedure should be not the violation of the procedural or substantiative rules but circumstances that were not known and could not be known by the participants in the case and the court.This is the most general view on the procedure in Ukrainian sources. See I Izarova, `Problems of realization of the principle of collegial consideration of civil cases in proceedings in connection with newly discovered circumstances' in Almanac of Law. Fundamental principles of law as its value dimensions. Scientific and practical legal journal. Vip. 3 (V.M. Koretsky Inst. of State and Law NAS of Ukraine 2012) 332-336.

During the period of Ukraine's independence, such grounds as the establishment by an international judicial body, whose jurisdiction is recognised by Ukraine, of a violation by Ukraine of international obligations in resolving a case by a court have also been added to the category of newly discovered and exceptional circumstances. This made it possible to change the decision that became the subject of criticism of the ECtHR.See IO Izarova, `Grounds for review of court decisions due to newly discovered circumstances' (2012) 3 Scientific Bulletin of NULS 36-39; IO Izarova, `Idea and novelty of newly discovered circumstances in civil proceedings' (2011) 3(22) Bulletin of the Bar Association of Ukraine 57-61.

The newly discovered circumstances in the CPC include the following:

1) circumstances that are essential to the case (significant circumstances) that were not established by the court and were not and could not be known to the person submitting the application at the time of the consideration of the case (which were not and could not have been known, at the time when the case was being considered, to the person applying for such reconsideration);

2) circumstances established by a judgment or ruling on the closure of criminal proceedings and the release of a person from the legal liability of giving a knowingly incorrect expert opinion, knowingly false testimony of a witness, knowingly wrong translation, falsification of written, material, or electronic evidence that led to the adoption of an illegal decision in this case (the intentionally false testimony of a witness, intentionally incorrect expert conclusions, intentionally incorrect translations, or forged documentary or material evidence leading to the adoption of an unlawful or unsubstantiated judgment, as established by a final judgment in a criminal case);

3) the cancellation of the court decision, which became the basis for the adoption of a judicial decision that is subject to reviewCivil Procedure Code of Ukraine No 2147-УШ wording of 3 October 2017 <http://zakon3.rada.gov.ua/ laws/show/1618-15/print> accessed 20 December 2021. (the quashing of a judicial decision on which the judgment or ruling in issue was based);

4) a decision of the Constitutional Court declaring unconstitutional a law or another normative act or a part thereof, which had been applied by the court when deciding on the case, if its judgment had not already been enforced.

Reassessment of the evidence assessed by the court during the trial, as well as evidence not assessed by the court regarding the circumstances established by the court, is no reason to review a court decision for newly discovered circumstances.Despite the widely known grounds for reopening the procedure with newly discovered evidence, in Ukraine, the doctrine and the law maintain the notion of `newly discovered circumstances'. See RD Markovits, `Federal Civil Procedure - Newly Discovered Evidence - Diligence Required in Order to Obtain New Trial' (1968) 44(2) North Dakota Law Review Article 7; Penny J White, `Newly Available, Not Newly Discovered' (2000) 2 J. App. Prac. & Process 7 <https://lawrepository.ualr.edu/ appellatepracticeprocess/vol2/iss1/3> accessed 20 December 2021; Mary Ellen Brennan, `Interpreting the Phrase "Newly Discovered Evidence": May Previously Unavailable Exculpatory Testimony Serve as the Basis for a Motion for a New Trial Under Rule 33?' (2008) 77 Fordham L. Rev. 1095 <https:// ir.lawnet.fordham.edu/flr/vol77/iss3/4> accessed 20 December 2021. Ukrainian tradition goes back to the Soviet past, where the institution of newly discovered circumstances were introduced first. See V Komarov (n 11); IO Izarova, Ryu Khanyk-Pospolitak (n 11); VV Komarov, DD Luspenik (eds), Legal positions of the Supreme Court in civil, commercial and administrative cases (2019).

Our case study is particularly interesting because, in her appeal, the applicant claimed the fact that the house renovation happened under her representative supervision (see p. 10 of the ECtHR judgment). As far as was noted in para. 1 of Part 2 of Art. 423, the grounds for reopening and reconsidering a case should be circumstances that 1) are essential to the case, 2) were not established by the court, and 3) were not and could not be known to the applicant at the time of the consideration of the case.

As we can see from the above, the disputed house was in the possession of the vendor, who sold the disputed house for the second time in 2003. The second buyer limited or hindered the first buyer's right to possess this house. The fact of the supervision of the renovation was stated by the court and the appellant in this case. It is difficult to imagine that the proofs of these circumstances were not examined by the court when the case was considered. For instance, in another case, the Supreme Court noted that the Court of Appeal did not take into account that the newly discovered circumstances, as a legal fact relevant to the case and referred to in her application was not and could not have been known to the applicant at the time of the appealed judgment - the fact of invalidity of the insurance certificate `Green Card', which existed at the time of the case and the court's decision and which the applicant requested to review, and not the documents themselves, which established the circumstances of invalidity of such an insurance certificate.The Supreme Court of Cassation clarified the grounds and conditions for reviewing the court decision based on newly discovered circumstances <https://supreme.court.gov.ua/supreme/pres-centr/ news/1022658/> accessed 20 December 2021.

In addition, we should be aware that in this case, the circumstances that were claimed as essential to this case were related to the transformation of the object- the house renovation, which may not be directly related to the contract obligations and condition assessment performed a few years earlier.

The newly discovered circumstances drew the attention of the highest courts of Ukraine at this time and prompted a generalisation and the Resolution of the High Specialized Court of Ukraine on Civil and Criminal Cases.Resolution of the High Specialized Court of Ukraine on Civil and Criminal Cases on 30 March 2012 on ^{the application of the civil procedure legislation within the review of the court decision on the ground of newly discovered circumstances <}https://zakon.rada.gov.ua/laws/show/v0004740-12#Text> accessed ^{December 2021.} This document is very important for the definitions of `newly discovered circumstances' and `new circumstances' in a case. According to this Resolution, newly discovered circumstances are legal facts that are essential for the consideration of the case and existed at the time of the hearing but were not and could not be known to the applicant, as well as circumstances that arose after the court decision came into force and are classified by law as newly discovered circumstances.

We would like to highlight two very essential issues in the above-mentioned Resolution. The first thing is that newly discovered circumstances must be confirmed by factual data (evidence), which disprove the facts underlying the court decision in the prescribed manner. In our case, this renovation was considered an essential change of the disputed house to such an extent that it could no longer be considered an object of this case.

The second and very important thing is that the court has the right to overturn a court decision on the grounds of newly discovered circumstances only if these circumstances might affect the legal assessment of the circumstances made by the court in the court decision under review. This means that the renovation of the disputed house might affect the legal assessment of the decision on the validity of the sale contract, in other words.

As the ECtHR noted, the very essence of the procedure on newly discovered circumstances `does not appear to be in itself incompatible with the requirements of a fair hearing' (p. 21). The ECtHR has found valid grounds for the requested review of this decision, with the further explanation that this should be added to the court decision to reopen the case.

We can only state that according to the register of court decisions in Ukraine, the tradition of reopening a case on vague grounds is widespread. The main problem we have found, as is evident in this case, is the mechanism of the court decision in issuing the application for reopening a case. According to Art. 427 of the CPC of Ukraine, initiation of proceedings on newly discovered or exceptional circumstances includes two stages. In the first stage, an application for such a review of a court decision on newly discovered circumstances must be submitted to a court, when the automatically a judge or a panel of judges determined in accordance with the law. In the second stage, a judge or a judge-rapporteur shall verify its compliance with the requirements of Art. 426 of the CPC within five days of the receipt of the application by a court and decide on the opening of proceedings on newly discovered or exceptional circumstances.

Therefore, according to the above-mentioned provision, a judge should decide whether valid grounds for reopening a particular case exist, without any response from the opposite parties, without equal representation, and without other arguments against the claim.

In the above-mentioned resolution, an important note was made:

The question of what circumstances may be considered material is evaluative and is decided by the court in each case, taking into account whether these circumstances could refute the facts underlying the judgment and influence the conclusions of the court during its adoption in such a way that if this circumstance was known to the persons involved in the case, the content of the court decision would be different (para. 2 part 7).

This means that a judge should be aware of both parties' positions not when the questions of the case initiating was already answered.

This is the real basis for the violation of the principle of legal certainty embodied in Art. 6 § 1 of the Convention and cannot lead to the discovery of `circumstances of a substantial and compelling character'.

Further consideration of an application in a court session within thirty days from the date of opening proceedings for newly discovered circumstances by the court according to the rules of this court, and in the court of first instance, within a simplified proceeding with notification of the participants of the case. Therefore, the opposite parties may be heard by the court when the procedure has already been opened and challenged.

The ECtHR considers this an extraordinary procedure for appealing a final and enforceable decision - therefore, more attention should be paid to the validation of grounds for its reopening.

Keeping in mind that in its decision, according to the results of review, the court may refuse to accept the application for review of a court judgment in newly discovered circumstances and leave a corresponding judicial decision in force; or satisfy the application for review of a court decision in newly discovered circumstances, cancel the relevant court decision, and make a new decision or change the decision; or cancel the court decision and close the proceedings in the case or leave the claim without consideration; upon review of the court decision in newly discovered circumstances, the Supreme Court may also cancel the court decision (court decisions) in full or in part and refer the case for a fresh consideration to the court of first or appellate instance; issue or send a judicial decision to the participants of the case in accordance with the established procedure, provided by the CPC; approve the coming of a new court decision into force or the loss of the legal force of all other court decisions of other courts in this case.¹⁹

Though continuing the idea of the wrong first stage of the initiating of the newly discovered procedure we argues, that even the power to refuse of accepting the application for review of a court judgment in newly discovered circumstances and leave a corresponding judicial decision in force, challenging the legal certainty of the decision binding and enforceable is difficult due to the fact of opening the very procedure - to some extend the court recognised the valid grounds for open the procedure, therefore, more grounds for refusing the application should be discovered. Civil Procedure Code of Ukraine No 2147-VIII wording of 3 October 2017 <http://zakon3.rada.gov.ua/ laws/show/1618-15/print> accessed 20 December 2021.

In this case, after the case was reopened, it was sent to another court in Kyiv due to jurisdiction.

The vendor changed the grounds and subject of the claim. It is worth noting that this is now impossible according to the existing CPC because changing the grounds and the merit of the claim leads to another case. A few rounds of considering this case occurred from 2009-2016 until the High Specialized Court for civil and commercial matters put an end to it.

In addition, attention should be drawn to the timing of this application. The law restricts the timing of the application for such a review - it must be within thirty days from the day when the person learned or could learn about the circumstances that became the basis for the review of the court decision, but no later than three years from the date of entry into force of such a court decision (and no later than 10 years without the right to renew the term) (Art. 424 of the CPC).

Concluding remarks

In its conclusion, the Court logically found that in this case, reopening the case on the grounds of newly discovered circumstances was a violation of Art. 6 § 1 of the Convention and Art. 1 of Protocol No. 1.

However, in this case, the ECtHR noted that the very essence of the procedure on newly discovered circumstances `does not appear to be in itself incompatible with the requirements of a fair hearing' (p. 21). Therefore, the reopening of a case may be fair and benefit the general goals of justice.

In the meantime, this procedure of reopening the case on the grounds of the newly discovered circumstances plays an essential role in case of a serious judicial mistake or a miscarriage of justice. In Ukrainian legislation, there is the condition of essentiality of a circumstance for the case. In case law, the tradition of reopening a case without valid grounds according to the view of ECtHR is widely shared, unfortunately.

In other words, we should reconsider the procedure for validating the application for reopening a case in Ukrainian law in light of ECtHR practice and the right to a fair trial. The valid grounds of newly discovered circumstances should be given a further explanation and added to the court decision on reopening the case.

References