From 80 to 100 cases a day: how judges of Civil Court of Cassation cope with workload

The primary task that the Civil Court of Cassation (the CCC) which is part of the Supreme Court (the SC), has set for itself is to create legal certainty. As of July 1, the CCC has already managed to cope with 11,582 cases, and in many of those cases new decisions have been made. Currently, the workload in the court is still quite high, and the court staff are looking forward to the second competition to the Supreme Court, as a result of which more new judges will come to the CCC. More details on how the workload is managed and how the problematic issues are solved in due course of work, were revealed by the judge of the CCC of the Supreme Court, Chairman of the Judicial Board Viktor Strilchuk in his interview to "Judicial and Legal Newspaper".

Original in Ukrainian: Judicial and Legal Newspaper, interview by Natalia Mamchenko

- Viktor Andreevich, what is the current workload of the judges of the Civil Court of Cassation of the SC, and how do they manage to cope with it?

— On June 27, 41 154 cases were pending at the Civil Court of Cassation of the SC As of June 27, I in particular had 1,830 cases, and my colleagues also had about the same amount. The workload of judges is quite high now, and the flow of incoming cases exceeds the amount we are coping with. But we are doing our best: working late hours (not only judges but also assistant judges and the staff), working on weekends. It is, of course, impossible to do things beyond human capacity, but we are trying to meet reasonable deadlines and make legitimate and fair decisions.

We hope for the second competition to the Supreme Court to be held, so that the number of vacancies stipulated by law on the judicial system and the status of judges, will be complete. Then, perhaps, the issue of cases transferred to us from the HSCU and those incoming directly to the CCC of the SC will be resolved. Probably, the legislator should also consider how to make cases solved timely and efficiently.

— Is the number of cases, transferred due to the liquidation of the HSCU, the so-called remains, getting lower?

— All the remains and they make approximately 28 thousand cases, are evenly distributed among the judges. But new appeals arrive daily. According to statistics, the workload of one judge is currently 12.5 cases and 5 appeals a day. In my observations, the amount of cases we are coping with is smaller than the amount of cases that comes daily. Therefore, the remains do not decrease. In order to make them lower, we need to have the amount of judges, which is established by law. After all, when the legislator forecasted the number of judges in courts of cassation, they must have done the analysis of the amount of cases that special courts solve, and the amount of cases that arrives to the new SC.

— Do the cassation filters, established in the new procedural codes, work? Which issues arise when cases are classified as minor?

— Speaking of minor cases — this is a real novelty for the civil process, and certain issues arise in its use. So, the court can classify practically any case as a minor one, except the categories directly listed in Art. 274 of the Code of Civil Procedure (the CCP) (disputes on family legal relations, in particular, on deprivation of parental rights, etc., disputes, where the value of a claim exceeds 500 subsistence minimums, i.e. 800 thousand UAH). But the question arises whether a case can be classified as minor, when the value of a claim seems to be clearly defined, and it is smaller than 100 subsistence minimums for citizens of working ability. As even in the cases that fall into the category of minor, the court of cassation may not always deny opening the proceedings, and is obliged to examine the case on its merits. These exceptions are provided for in Part 3, Art. 389 of the CCP.

In practice, we deal with issues in two occasions. The first is when the cassation complaint concerns the issue of law, which is of fundamental importance for the formation of a unified law enforcement practice. For example, a complaint was filed on a case where the value of a claim does not exceed 100 subsistence minimums, but a cassation appeal raised the issue of lower courts resolving this case contrary to the legal position and sound practice already formed by the Supreme Court. For example, the court charged the court costs from the consumer. The case is insignificant, the value of a claim is low, but the court made a decision that clearly contradicts the law and legal position of the SC. In cases like this, we open the proceedings and review the case on the merits, then make a decision in accordance with the previously formed legal position. The second occasion is when the case is of a significant public interest or exceptional value for the case party, which submits a cassation appeal. Of course, these are concepts of value. For example, an employee’s claim for a salary recovery, as a rule, does not exceed 100 subsistence minimums, i.e. it is a minor case. Which way do the judges of the Civil Court of Cassation solve it? If the employee appeals in cassation against the decision, we assume that this case is of an exceptional importance to them, because the salary as a rule is the main source of income for a person and their family. Thus, if the lower court rejected them, the court of cassation shall review the decision to determine whether the rule of law was applied properly. If an employer appeals against the decision, we resolve the issue based on the value of a claim.

These two items of Part 3, Art. 389 of the CCP raise a vivid discussion and certain difficulties for their use in the context of whether the decision is subject to appeal in cassation.

— Can the Grand Chamber put an end to this issue?

— I do not think that the Grand Chamber can put an end to the issue of assessment whether a case should be reviewed in cassation. The categories used by the legislator, are evaluative, every judge and the composition of the court take into account specific circumstances of a case. In the cassation appeal the applicant does not always indicate, that the decision contradicts the established legal position, but if we can see that an obvious violation of law takes place, we open the proceedings.

— Which categories of cases prevail now? — For many years, these have been the disputes that arise from contracts. Specifically, these are mainly loans and interim: mortgages and bail. There are a lot of cases on the claims of bank depositors; these are the disputes arising from the agreements on bank deposits or accounts. There are also a lot of cases related to the compensation for damage caused in a car accident; cases that arise from labor relations: re-employment, recovery of salary, appealing to orders for disciplinary proceedings. There are disputes on family and inheritance legal relations, and these are not simple ones — on deprivation of parental rights, on determining the place of residence for a child, on annulment of adoption.

Each case is complicated in its own way. We examine from 80 to 100 cases a day on average by a panel of 5 judges, and each judge who is the panel member, has from 10 to 20 cases, depending on the complexity, where they act as a rapporteur. So, the peculiarity of cassation proceedings is that when we are examining a case, the discussion would seldom have no lively debate, that will result in a single position, therefore it rarely ends before 6:00 pm. Though, all this is necessary to make a balanced, reasonable and fair decision.

— Do the parties often insist on attending the case hearing?

— On a number of cases, the parties file a petition to conduct a case examination in cassation with summons, so that they could be listened to. As a rule, we reject these petitions, because the case examination in cassation still has its own peculiarities: the cassation court shall check the correctness of applying the rules of substantive law to disputable legal relations by the previous courts, and shall also check whether these courts have not violated the rules of procedural law. The court of cassation has no right either to clarify new circumstances or investigate new evidence. That is what the parties want: either to report some new circumstances, or to inform that the court has incorrectly assessed the evidence, that is, exactly what the cassation court has no right to take into account. Although, from the point of view of the parties in a case, the court of cassation should listen to them, and should not examine the case without the participation of its parties. However, I think it would be correct here to proceed from the tasks of the court of cassation.

— Are there any problematic issues related to the jurisdictions demarcation?

— There are a lot of issues like this. But the Code of Civil Procedure solves it in such a way that the Grand Chamber shall still set the final point. If a cassation appeal has a reference to violation by the courts of previous instances of the rules of substantive or subjective jurisdiction, the cassation court of the SC shall refer the case to the Grand Chamber.

For example, the Supreme Court of Ukraine had a fairly well established position, when banks filed claims for recovery of a loan debt from individuals, with legal entities acting as guarantors, or vice versa. That is, when both an individual and a legal entity acted as defendants in a case, arose questions about the jurisdiction. The position that the SCU took was that in such cases it is necessary to examine in civil proceedings only the requirements for individuals, and in part of the requirements for a legal entity the case shall be closed, since it is subject to examination in the framework of economic legal proceedings. However, now the Grand Chamber also established their position that in this case the jurisdiction depends on who the main claim has been brought against. If this is the claim for a debt recovery under a loan agreement to an individual, but the guarantor is a legal entity, then this is a civil legal relationship, and if the debtor is a legal entity, and the guarantor is an individual this is economic legal relationship.

— Which cases have been transferred to the examination of the Grand Chamber?

— Our Board transferred to the GC a case on a dispute that arose out of credit-related legal relations. The bottom line was as follows. The bank sues an individual to recover the debt. The court issues a decision, recovers this debt. Some time later, the bank appeals to the court again claiming to recover the funds accrued after the court decision. Previously, the position of the Supreme Court of Ukraine on this issue was as follows: if the decision of the court on the debt recovery has not been executed, this does not terminate the obligations under the loan agreement and the accrual of funds continues.

Our Board has decided that it is not quite right. In our opinion, after the bank has changed the deadline to fulfill the main liability and filed a lawsuit in court, the court recovered all funds, and it is not possible to charge any further interest and other payments to the amount of debt. The Grand Chamber heard our position and made a legal conclusion that if a bank has changed the deadline to fulfill the main liability and sued the borrower, and the case was resolved in a court, after the court decision, the accruing of funds, stipulated in the loan agreement, shall not take place.

A similar position was taken on the appeal of the Cassation Economic Court in a case where a bank, without a court decision, issued a claim to the borrower and changed the deadline to fulfill the main obligation. The Grand Chamber noted that after the bank determined a new deadline to fulfill the liability as a whole, the charges stipulated by the agreement are not administered.

Also, our Board transferred to the Grand Chamber a case on the claim of a victim in a car accident, who suffered material damage, to the guilty party of the accident. The position of the SCU on this matter changed several times. Its last position was that the victim could make a choice either to claim the party guilty for the accident or to the insurance company which had insured the liability of the guilty party. Our Board decided to step away from this position. In our opinion, if an individual has insured their civil liability, the insurance company shall take liability for the damage in the first place. In such cases, the insurance company shall be involved to participate in the case and solve the issue of its liability, and then on the liability of the guilty party in the accident. The Grand Chamber has heard our position.

Another case that we transferred to the GC (though it did not take our position), is related to the use of Part 4, Art. 559 of the Civil Code in a case of the termination of bail due to the time expiry of its validity. This provision stipulates that the bail is terminated after the period of bail specified in the agreement expires, and if this time period is not established (which, is common practice, as a rule) - if within 6 months after the term of the main obligation comes, the creditor does not issue a claim to the guarantor. On this matter the Supreme Court of Ukraine expressed the following legal position: if the main obligation consists of monthly recurring payments, then a 6-month appeal period to the guarantor is applied to each recurrent payment. So to say, in order to get their claims satisfied, the bank, per se, needed to submit a claim to the guarantor 6 months later.

When our Board transferred the case to the GC, we assumed that, by their legal nature, the guarantor and the main debtor must show solidarity. And the solidarity lies in the fact that, unless otherwise provided by the agreement, the debtors in solidarity are liable in equal amounts. Assuming the position previously expressed by the SCU, it may happen that the principal debtor has fully recovered the debt (or, providing the statute of limitations, for 3 years), and the guarantor - only for the last 6 months. Thus, the principle of joint liability is leveled. We indicated in our definition, by which we transferred the case to the GC, that it was worth stepping away from this position and calculating a 6-month period from the moment of entering of the term to fulfill the obligation as a whole. But unfortunately, the GC did not agree with us, on the grounds that there has been an already established judicial practice.

— Does the CCP need amendments in your opinion?

— Undoubtedly, the new edition of the CCP is a step forward. The procedures for examining the cases have been improved; a simplified lawsuit has been introduced as well as the possibility of examining the cases in written proceedings. This is important not only for the cassation, but also for the courts of the first instance and appeal, so that a case could be resolved within reasonable time.

The CCP contains both positive aspects and problematic issues that need improvement. But the main thing, in my opinion, is not mainly in making the code perfect but in the fact that both the court and case participants shall abide by it.

It is possible to speculate about the issues of cassation examination for hours. We are trying to reach a common point of view and we discuss them at our meetings. Thus the fact that they arise, and that judges perceive some provisions differently, says that the code can and should be improved. In any case, problematic issues get resolved, and we find the right solution.

In particular, provision of Part 3, Art. 394 of the CCP states, regardless of the validity of the reasons for missing the deadline for cassation appeal, the cassation court denies opening the proceedings if the cassation appeal is filed after a year expired from the date since the full text of the court decision had been made, with two exceptions. The question arises: can we apply this one-year term in those cases that had been examined before the amendments to the CCP came into force? For example, the court made a decision in 2015, but the cassation appeal is filed only now. Or does this rule apply only to those cases where the decision was made after December 15, 2017? The positions of judges in this regard differ. We are now at the stage of discussing and developing a unified position. Similar provisions exist in both the CAPU (Code of Administrative Procedure of Ukraine) and the EPC (Economic Procedural Code). I think the legislator should clarify this provision.

The following issue also seems significant to me. The decisions in minor cases are not subject to cassation appeal, however, Art. 389 of the CCP contains a list of definitions that are subject to such appeal. For example, the specification about denying an additional decision or clarifying the decision, or denying to clarify it. It turns out that we are not reviewing the decision itself on the merits, the CCC of the SC shall consider the specification, by which the explanation was denied.

Another problematic moment, in my opinion, concerns the cases where an individual who did not participate in a case, appeals only to the decision of the appeal, that left the decision of the first instance unchanged (Part 4, Art. 389 of the CCP). In this case, a manipulation may take place to neglect the stage of appeal and then appeal in cassation only against the decision of the court of appeal.

— It is now recommended to establish the rates of complexity for all categories of cases…

— If you take by category, for example, a case of re-employment, it is obvious that it is complicated. Similarly the case of recognition of right of ownership of the property in the order of inheritance. But in my own experience I can say that a case that at a first glance may seem simple (for example, on debt recovery under a loan agreement) may turn out to be much more complicated than a case that is nominated complex by its category.

– How many rejections to open proceedings were there during the first six months of the CCC operation, and what were the grounds for them?

— In the first six months of 2018, 2,228 out of 13,200 cassation appeals got rejected in opening of proceedings. This is the fifth part. The reasons are as follows:

971 – minor cases;

510 - due to being ungrounded. In each case, we shall give grounds for refusal. The list of these cases is clearly defined by Art. 394 of the CCP;

747 - other grounds. This may be in case when the decision is not subject to appeal, the time period has expired with no valid reasons given to restore it, etc.

— Have you formed a dissenting opinion while working for the SC?

— I did not have any particular dissenting opinions in the Supreme Court. And for the whole 25 years of work as a judge, I wrote a dissenting opinion only once, many years ago. I do not think that this may indicate any deficiencies of work - I even think this of it as a plus. For the entire time of work of our Board, none of the judges has ever formed any dissenting opinions, although, as I said, our disputes are very lively, and the points of view sometimes differ significantly. The Supreme Court is a collegial body; all the decisions on the merits of disputes are made collectively. So, the fact that we did not express particular opinions testifies, first of all, the ability to reach a compromise, listen and hear, as well as convince others if your point of view is right.

The judge certainly has the right and should write their special opinion, but in exceptional cases only. When positions differ, I can admit that I can be wrong. Our decisions shall be looked up to and applied by local courts in their work. How can they look up to us if our positions on the same case differ? During the peer review our efforts should be aimed at achieving a unified position.

— Does the job of the Supreme Court judge meet your expectations?

— I have certain work experience both in the first instance and in appeal and I got professional training in the instance of cassation. Considering the information on the amount of cases that was made public, it was approximately what I imagined. I knew it would be difficult, but I went for it consciously. And as long as I have my energy and desire, I will be working and doing what society expects from me.