Сourt fee can not be returned in case of rejection of the appeal

When the cassation proceedings are closed, no return of the court fee is provided.

This decision was made by the Supreme Court, which distinguished meanings of "closing the proceedings" and "closing the cassation proceedings".

Briefly about the substance of the dispute:

- the plaintiff appealed to the Supreme Court with a cassation appeal requesting the annulment of the decision of the court of appeal

- later, the plaintiff sent to the Supreme Court a claim to dismiss the cassation complaint on the basis of Part 5 of Art. 337 CAS of Ukraine and petition to return the court fee for filing a cassation appeal.

Main findings of the Supreme Court:

⚖️ Reimbursement of the court fee is possible only in case of closing (termination) of the proceedings in the case (unless the proceedings are closed in connection with the refusal of the claimant and such refusal is recognized by the court), including in appellate and cassation instances (n 5 Part 1, Article 7 of the Law of Ukraine "On Judicial Fee").

⚖️ In Art. 7 of the Law of Ukraine "On Judicial Fee" exclusive grounds for the return of the court fee (in the presence of a petition of the person who paid the court fee) are established, namely:

1) reduction of the size of the claims or the introduction of a court fee in a larger amount than established by law;

2) return of the application or complaint;

3) refusal to open proceedings in a court of first instance, appeal and cassation proceedings in a case;

4) leaving the statement or complaint without consideration (unless such statements or complaints are left without consideration in connection with the plaintiff's failure to return or leave the court without valid reasons and failure to file a statement of case in his absence, or the failure of the plaintiff to request the court materials, or at his / her request (request);

5) closure (termination) of the proceedings (unless the proceedings are closed due to the refusal of the claimant and such refusal is recognized by the court), including in the appellate and cassation instances.

⚖️ The consequence of the closure of the proceedings in the case is the absence (cancellation) of the decision, which ended the trial on the merits, whereas the closure of the cassation proceedings will result in the decision of the court of appeal being upheld.

In view of the foregoing, the Supreme Court noted that the concepts of "closing the proceedings" and "closing the cassation proceedings" were different and that they could not be identified.

Therefore, in the opinion of the Supreme Court, the return of the court fee in the event of closing of the cassation proceedings on the basis of paragraph 5 of Part 1 of Art. 7 of the Law of Ukraine “On Court Fee” is not provided, which makes it impossible to satisfy the request for the return of the court fee.

Full Judgment of the Supreme Court of 22 November 2019 in Case No. 816/731/16 (Administrative Procedure No. K / 9901/9639/19) is available at the link.

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