Organization of supervision over the legality of court decisions in civil cases in the context of appeal

In accordance with Part 2 of Article 125 of the Constitution of the Republic of Belarus, the prosecutor's office supervises the compliance of court decisions in civil cases with the law.

In accordance with Article 23 of the Civil Procedure Code of the Republic of Belarus (hereinafter referred to as the CPC), the Prosecutor General and prosecutors subordinate to him supervise the legality and validity of court decisions in civil cases, as well as compliance with legislation during their enforcement.

The prosecutor is obliged at all stages of civil proceedings to take timely measures provided for by law to eliminate any violations of the law, regardless of who committed these violations.

The prosecutor exercises his powers in civil proceedings independently of any bodies and officials, guided solely by legislative acts and obeying the instructions of the Prosecutor General.

It should be noted that the prosecutor occupies a special place in the civil process. The subject of supervision is the legality and validity of court decisions in civil cases, as well as compliance with legislation during their enforcement. The prosecutor is obliged to protect not the interests of specific individuals or departments, but the law, thereby contributing to the achievement of social justice.

The authors of the Russian Civil Procedure Code believed that "the adversarial process does not provide sufficient guarantees for the attainment of truth if, in addition to judges, there were no representatives of precise reason acting under the law and defenders in the name of the law for those persons, legal and physical, who, by the natural order of things, cannot, by their position, take part in the case." (Каменков В.С. Прокурор в гражданском и хозяйственном процессе – одна из гарантий защиты прав и законных интересов)

In this regard, I believe that the procedural status of the prosecutor, as an independent participant possessing high professional skills and legal culture, contributes to ensuring compliance with legislation during the consideration of the case, and in no way violates the principles of disposition and adversarial proceedings.

According to Part 2 of Article 81 of the CPC

A prosecutor has the right to join a case at any stage thereof if it is required by the interests of the state, as well as for the purpose of protecting the rights and legally protected interests of citizens.

The obligation to verify the legality of court decisions in civil cases is enshrined in the order of the Prosecutor General of the Republic of Belarus dated March 27, 2009 No. 27 "On the organization of supervision over the compliance of court decisions in civil cases with the law".

According to subclause 1.5.1 of the order, prosecutors must mandatorily verify the legality of court decisions issued in cases: where the prosecutor's participation is mandatory; affecting the interests of the Republic of Belarus, its administrative-territorial units, state legal entities; affecting the labor rights of citizens, the rights of citizens who cannot defend them independently, in cases of housing disputes on depriving citizens of the right to use residential premises; on complaints about the actions (inaction) of state bodies and other legal entities, organizations that are not legal entities, and officials that infringe upon the rights of citizens; on complaints (protests) against decisions, actions (inaction) of a bailiff, head of an enforcement authority.

The appellate system for verifying the legality of court decisions in civil cases differs from the cassation system in its focus on the final resolution of each case directly in the appellate court. The law expands the powers of the second instance court for the direct examination of evidence. In this regard, the requirements for the content of appellate complaints and protests have changed.

Thus, the complaint and protest must formulate a request regarding whether the decision is protested in whole or in part, and what changes are required to be made to it. It should be indicated which evidence the court did not examine and why it was not presented to the court.

The subject and limits of the case review in the appellate court are determined by the claims filed in the first instance court, as well as by the arguments presented in the complaint and protest.

The legality and validity of a court decision are checked only in the part that is appealed or protested. Article 418 of the Civil Procedure Code allows the appellate court to go beyond the grounds of the appeal and protest, to check the legality of the decision as a whole, while the appellate court must motivate this conclusion in its ruling.

Due to the expansion of the powers of the appellate instance, the issue of overturning the decision and sending the case for a new trial due to incomplete investigation of the circumstances of the case cannot be raised.

A case can be sent for a new trial only if the court has committed a substantial violation of procedural law, which cannot be eliminated in the appellate proceedings or prevents the appellate court from investigating new evidence or establishing facts that were not the subject of investigation by the court of first instance. Substantial violations of procedural law are set out in Part 4 of Article 424 of the Civil Procedure Code.

The period for appellate protest is 15 days and is calculated from the date of the decision or the date of delivery to the person entitled to appeal (protest), at his request, of the decision with the reasoning part. In accordance with Article 305 of the Civil Procedure Code, a prosecutor who did not participate in the case cannot request the reasoning part of the decision. For him, the reasoning part can be prepared in case of filing a protest.

It is understandable that writing a sufficiently reasoned appellate protest in a case in which the prosecutor did not participate is difficult. In addition, unlike the norms of the Criminal Procedure Code regulating appellate proceedings, according to Article 409 of the Civil Procedure Code, additions and amendments to the appellate protest can be filed within the 15-day period of appellate protest, which also complicates the prosecutor's work on preparing the protest.

In this regard, legally interested parties, including prosecutors, are required to have a sufficiently high level of knowledge of both substantive and procedural legislation, and judicial practice. At the international seminar on appellate proceedings in civil casesProfessor of the Department of Civil Procedure and Labor Law, Kolyadko Ivan Nikolaevich, rightly noted that in the future, the legislator needs to define categories of civil cases that should be considered with the mandatory participation of lawyers, including in appeals.

I cannot say that our citizens are ready for such changes, especially the socially unprotected part of the population. Far from everyone can afford to pay for legal services and bear court costs. In this regard, I believe that it is precisely prosecutors who will have to play a special role in protecting the violated or disputed rights, freedoms, and legitimate interests of citizens guaranteed by the Constitution of the Republic of Belarus.

Head of the Department for Supervision
of Compliance with the Law of Judicial Decisions
in Civil Cases of the Vitebsk Regional Prosecutor's Office
Titkova I.N.