Legislation in question: Third part of Article 333 of the Civil Procedure Code
Legal issue: The constitutionality of consideration of an appellate application regarding the litigation expenses in the absence of the parties to the dispute and without notifying them.
Ratio decidendi: The rule in question does not contradict the Constitution. The federal legislator does have discretion regarding the possibility to provide for consideration of certain types of civil cases by the second instance court without hearings, and this implies consideration of the question before the court mostly on the basis of written evidence submitted by the parties. Likewise, in the opinion of the European Court of Human Rights, the oral consideration is not a necessary form of an adversarial procedure (particularly in superior instances where procedures in writing can be more expedient), given that it does not involve those issues of law or fact which cannot be adequately resolved solely on the basis of the file of the case and written explanations of the parties.
The purpose of the contested regulation is to create conditions which would simplify and expedite the consideration by the court of those questions that due to their nature and the degree of complexity do not require the participation of the parties and their representatives in court hearings. Thus, the regulation in question aims at increasing the efficiency of justice by way of realization in the most rational way of the citizens’ right to judicial protection and of the right to court consideration within a reasonable time.
The court of appellation instance must hold hearings only if a party submits new evidence, which was not submitted by it in the first instance court due to some valid reason.
The rule regarding non- notification of parties about the time and place of court hearings should not, in the absence of special simplified (written) procedure introduced by law, deprive them of their procedural rights, guaranteed by other rules of law; on the contrary, it just creates obstacles to the realization of such rights. In is not in accord with the right to judicial protection. This circumstance was taken into account by the Constitutional Court in its judgment of 30 November 2012 № 29-П, which then also became the subject of Justice Zilin’s dissent.
The division of litigation expenses is a matter of substantive law and, as a general rule, is subject to solution in the respective court decision. Most probably, when formulating part 3 of article 333 of the Civil Procedure Code, the legislator overlooked the peculiarity of the rulings regarding the division of court expenses and therefore not included them in the list of those rulings which are reviewed by appellate instance court with notification of persons taking part in the case. This is a legislative omission whose rectification is necessitated by the very logic and purpose of the disputed provision. It violates citizens’ rights by virtue of the fact that it makes the notification or non-notification entirely dependent upon purely formal characteristics: namely, in which procedural form – by a decision or a ruling, before or after coming into legal form the question of division of litigation expenses was resolved by the court of first instance.