5 reasons why «insignificant cases» should be left in the Civil Procedure Code, presented by the UNBA

The exclusion of the term «minor case» from the Civil Procedure Code is inconsistent with the Constitution and will result in a restriction of the right of a person to access the cassation instance.

This conclusion was made by the UNBA Committee on Civil Law and Procedure based on the analysis of the draft Law No. 11053 dated 29.02.2024 «On Amendments to the Civil Procedure Code of Ukraine to Bring it in line with the Decision of the Constitutional Court of Ukraine dated November 22, 2023 No. 10-r(II)/2023».

As a reminder, on November 22, 2023, the Second Senate of the Constitutional Court of Ukraine issued a decision in the case on the constitutionality of clauses 1, 5, part 6 of Article 19, clause 2, part 3 of Article 389 of the Code of Civil Procedure. The Constitutional Court decided that the amount of the claim price specified in the Code, as a criterion for classifying a case (dispute) as minor, exceeds the subsistence minimum and minimum wage and does not correspond to the understanding of the case and dispute as minor. However, in addition to lowering the criterion, Draft Law 11053 also proposes to change the terminology. The author of the initiative points out that since the beginning of the implementation of the provisions of the procedural codes, the question has arisen that the term "minor cases" levels their importance for the state. After all, in his opinion, these disputes are not insignificant for the parties, but may be significant for them. Therefore, in this case, it is proposed to use the term «cases of minor complexity».

The UNBA considers such an approach inappropriate and unreasonable in view of the following.

Firstly, according to the law, in such category of cases, the parties to the proceedings do not have the right to appeal the court decision in cassation. Therefore, a significant increase in the limit of cases of minor complexity essentially restricts the right of a person to access to court. In fact, there is a significant expansion of the category of cases where individuals lose access to justice. And the UNBA has consistently defended the position that it is unacceptable to restrict the human right to access the court of cassation.

Secondly, granting the right to be represented in «cases of minor complexity» to any person over the age of 18 is inconsistent with Article 131-2 of the Constitution and undermines the quality of legal aid. The Basic Law allows representation by non-attorneys only in «minor disputes» but not in «cases of minor complexity»! Therefore, access to professional legal aid will also be significantly reduced.

Third, the Constitution uses the term «minor dispute». Therefore, the exclusion of this concept from the Code of Civil Procedure will lead to inconsistency of the Code with the Basic Law. At the same time, such a replacement will not solve the main problem formulated by the Constitutional Court - the discrepancy between the price criteria for classifying cases as minor and the realities of Ukrainian life.

Fourthly, the replacement of concepts will contradict the very decision of the Constitutional Court, which emphasized the need and expediency of introducing the definition of «minor dispute».

Fifthly, a significant narrowing of access to the court of cassation will also have a negative impact on the work of the Supreme Court itself. After all, cassation appeals in such cases are still filed, but the Supreme Court refuses to open proceedings or closes them as «mistakenly» opened. At the same time, the court itself complains that it performs a lot of work that does not lead to a high-quality procedural result.

All of this confirms the erroneousness of the approach that restricts citizens' access to the cassation instance.

These and other comments and suggestions of the UNBA to the Draft Law No. 11053 can be found in full here.