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Alla LESKO,

Judge, The Supreme Court

AMOUNT OF CLAIM IN THE CONTEXT OF EXERCISING THE RIGHT TO CASSATION APPEAL OF JUDICIAL DECISION

The article is devoted to research of legislative provisions on determining the amount of the claim when court of cassation instance is deciding the issue on opening the cassation proceeding. Determination of the amount of the claim is considered in terms of exercising the right of a person to cassation appeal of judicial decision taking into account the norms of civil procedural legislation of Ukraine and practice of the ECtHR.

There are formulated practical proposals as well as it was noted a necessity to improve the legislation which defines the authority of the Supreme Court in terms of the grounds to open cassation proceeding.

On the basis of the requirements regarding the form and the content of the statement of claim, which are established by the item 3 of the third paragraph of the article 175 of the Civil Procedure Code of Ukraine, a statement of claim must contain an indication of the amount of the claim if the claim is subject to monetary valuation, and also a reasonable calculation of the amounts being collected or contested. It is put an emphasis on an importance to indicate the actual amount of the claim by the plaintiff or by the lower court. This has significance for further movement of the case, as well as for the possibility to exercise the right of a person to cassation.

Based on the analysis of civil procedural legislation and the judgment of the European Court of Human Rights in the case of ZUBAC v. CROATIA (application no 40160/12) at a public hearing on 5 April 2018, it was concluded that change in stated claims in terms of the amount of the claim, which is specified in the statement of the claim, can only take place in the statement on merits, which is foreseen in the second paragraph of the article 174 of the Civil Procedure Code of Ukraine. This ensures not only a possibility for further cassation appeal of judicial decision, but also a necessity to comply with the defendant’s right to be notified about the change of the claim and the right to object to this circumstance in accordance with the procedure prescribed by the procedural code.

It is substantiated the proposition that burden of evidence of amount of claim in terms of admissibility to consider a case in the court of cassation instance should be clearly prescribed in the Civil Procedure Code of Ukraine.

Key words: the amount of the claim, the cost of the subject of claim, burden of evidence, cassation.

References

Zivilprozessordnung. Ausfertigungsdatum: 12.09.1950 (Januar 2019) URL: https://www.gesetze-im-internet.de/zpo/__511.html. [deu.]

Tayisa Denisovna Azyukovska v. Ukraine (Application no. 26293/18) URL: https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Azyukovska%22],%22itemid%22:[%22001-187765%22]}.[ukr]

Code de procédure civile. Version consolidée au 29 janvier 2019. URL: https://www.legifrance.gouv.fr/affichCode.do;jsessionid=ACD0602F5FA4BEE0C160720E7A4A4830.tplgfr24s_1?cidTexte=LEGITEXT000006070716&dateTexte=20190210.[fr.]

ECtHR decision  (Zubac v. Croatia) від 5 квітня 2018 р. URL: https://hudoc.echr.coe.int/app/conversion.[engl.]