THE DEPARTMENT OF CIVIL CASES: NEW ADJUDICATION OF A CASE DUE TO NEWLY DISCOVERED CIRCUMSTANCES IS NOT AN ALTERNATIVE TO APPEAL OR CASSATION
19 November, 2015
This year, the Department of Civil Cases of the Supreme Court recognised as founded and satisfied only two applications on transfer of a case for new adjudication in the first instance court due to newly discovered circumstances, although number of such applications, comparing to tenth months of previous year, multiplied by 5.3.
Having assessed deficiencies admitted in applications, the Department of Civil Cases comes to conclusion – respective civil procedural measure has not always been used in accordance with its meaning and purpose.
The Department of Civil Cases draws attention to the fact that an application on new adjudication of a case due to newly discovered circumstances should be submitted only if a participant to proceedings has a ground to believe that any of newly discovered circumstances, which are enlisted in Section 479* of the Civil Procedure Law, exists. The application on new adjudication of a case due to newly discovered circumstances may not be considered as an alternative to appellate or cassation complaint. The Department of Civil Cases comes to conclusion that applicants in their applications, which have been received in the court, often ask the court to carry out new assessment of evidence already assessed by the court, which rendered the appealed ruling, or they ask to assess new evidence, which, in accordance with Section 93of the Civil Procedure Law, could be and had to be filed to the court during adjudication of a case on merits. Also, parties to a case, having received a refusal of the Department of Civil Cases of the Supreme Court to accept their cassation complaints, express their request to verify accuracy of application of provisions of substantive law or possible violation of provisions of procedural law in application on new adjudication of a case due to newly discovered circumstances. Thus, parties to the case actually try to re-submit a cassation complaint against unfavourable judgement of the lower court.
Applications on new adjudication of a case due to newly discovered circumstances have often been submitted to the Department of Civil Cases against court rulings, which may not be contested by such application. For example, applicants had filed applications on rulings rendered by the Department of Civil Cases within cassation proceedings (assessment of initiation thereof). There have also been received applications regarding rulings of lower courts, which do not terminate adjudication of a case on merits. The Department of Civil Cases refuses acceptance of such applications, because the application on new adjudication of a case due to newly discovered circumstances may be filed only against such decision or judgement of a court, by which adjudication of a civil case on merits is terminated, for example, against judgement of the appellate instance court.
The cassation instance court, namely, the Department of Civil Cases of the Supreme Court, verifies lawfulness of judgements of lower courts instead of adjudication of a case on merits. In accordance with essence of legal regulation concerning cassation instance, its activity is directed towards protection of public interests, but individual’s personal interests have been protected in cassation instance insofar as it serves for purposes of protection of public interests. Such purposes are development of uniform case-law and further development of law. Fair resolving of particular case (resolving on merits) is a task of the first and the appellate instances. The main task of the cassation instance, however, is adjudication of such legal issues, which are important not only in the particular case, but also in other cases.
Having analysed received applications, it must be concluded that applicants often do not include or include only general indications to circumstances, which, in applicants’ opinion, must be considered as newly discovered circumstances, which may serve as a ground for new adjudication of a case. For effective protection of one’s lawful interests, it has been recommended to characterize those circumstances, which, in accordance with Section 479of the Civil Procedure Law, may be considered as newly discovered circumstances, as precise as possible.
Precise and substantiated applications on new adjudication of a case due to newly discovered circumstances promote not only effective protection of applicant’s lawful interests, but also reduce unreasoned load of courts. It, in turn, facilitates termination of proceedings in reasonable terms and appropriate ensuring of right of access to court.
Information prepared by Dr.iur. Rihards Gulbis, the Scientific Adviser to the Department of Civil Cases of the Supreme Court
E-mail: email@example.com, telephone 67020318
* In accordance with Section 479 of the Civil Procedure Law, the court may establish following newly discovered circumstances: 1) essential facts of a case which existed at the time of the adjudicating of the proceeding but were not and could not have been known to the applicant; 2) the determination, pursuant to a court judgment which has entered into lawful effect regarding a criminal case, that there was knowingly false testimony of witnesses, expert opinions, or interpretations, or fraudulent written or real evidence, upon which the rendering of a judgment was based;3) the determination, pursuant to a court judgment that has entered into lawful effect regarding a criminal case, of criminal acts due to which an unlawful or unfounded judgment has been rendered or a decision taken; 4) the setting aside of such court judgment or such decision by another institution as was a basis for the rendering of the judgment or taking of the decision in this case; 5) the acknowledgement of a norm of law applied in the adjudication of the case as not in conformity with a superior norm of law in lawful effect; 6) an adjudication of the European Court of Human Rights or other international or trans-national court in such matter, from which it arises that court proceedings should be commenced anew.