It is known that the procedural codes of Ukraine contain provisions that establish the right of the parties to judicial proceedings (and in some cases, also other persons) to appeal against judgments. In most cases, the procedural codes contain a specific list of court decisions that are subject to appeal. However, they also contain provisions limiting the right to appeal against a number of court decisions. In other words, not all judgements are subject to immediate appeal (Article 392 of the Code of Criminal Procedure, Article 293 of the CCP, Article 185 of the CACS, Article 106 of the CEP).
Article 8 of the Constitution of Ukraine provides that “the Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it”.
In accordance with the paragraph 8 of part 2 of Art. 129 of the Constitution of Ukraine, one of the main principles of the proceedings was “the provision of statutory and cassation appeal of a court decision, except for the cases established by law”.
In this regard, the provisions of the procedural codes on the limitation of the right to appeal a number of court decisions to a certain extent met the requirements of the Constitution of Ukraine. However, the existence of such restrictions caused considerable questions and discussions about the conformity of their practice with the European Court of Human Rights.
More recently, the Law of Ukraine No. 1401-VIII of 02.06.2016 amended the article 129 of the Constitution of Ukraine, and now the paragraph 8 of part 2 of this article defines such a principle of legal proceedings as “ensuring the right to appeal review of the case and in the cases defined by law – on the cassation appeal against the judgment”.
In other words, the possibility to limit the right to appeal was removed from this norm. It should be noted that this approach is more correct in relation to the legal positions of the European Court of Human Rights and the Convention on Human Rights and Fundamental Freedoms.
In the Decision of the European Court on Human Rights of 21.02.1975 in the case of Golder against the United Kingdom an important rule was fixed, namely: Part 1 of Art. 6 of the Convention on Human Rights and Fundamental Freedoms presupposes an inalienable right of access to court. In this case, the Court drew attention to the following: if the Article 6 of the Convention did not protect the right to the fact that the case would be considered, then such a norm would be ineffective and generally devoid of meaning.
Consequently, Article 6 of the Convention establishes the right of a person to a fair trial, which implies the right to review his case. In turn, the right to review the case means:
– the right to apply to the court;
– the right that the case will be examined and decided by the court.
In this case, the person should be provided with the opportunity to exercise these rights without any obstacles or complications. The need to obtain permits to apply to the court, in turn, constitutes a violation of the right of access to the court. The ability of the person to obtain judicial protection without hindrance is the content of the notion of access to justice.
In such circumstances, the norms of the procedural codes restricting the right to appeal against certain judgments are inherently contrary to the paragraph 8, part 2, Article 129 of the Constitution of Ukraine.
Therefore, when appealing against decisions of the court that are not appealed themselves on appeal (in accordance with the provisions of the procedural codes), in our opinion, it is advisable to refer to the above-mentioned norm of the Constitution of Ukraine as a norm of direct action.