3/10/2025

On October 1, 2025, the Second Senate of the Constitutional Court of Ukraine deliberated the case upon the constitutional complaint of Oleksandr Kasminin in public part of the plenary session in the form of written proceedings.

During the plenary session, the Judge-Rapporteur in the case, Serhiy Riznyk, presented the content of the constitutional complaint and the applicant's arguments.

As noted by the Judge-Rapporteur, the applicant appealed to the Constitutional Court of Ukraine with a constitutional complaint regarding the constitutionality of subparagraphs “a” and “c” of paragraph 2 of Article 328.5 of the Code of Administrative Procedure of Ukraine (hereinafter, the “Code”).

The contested provisions of the Code establish that court decisions in cases of minor complexity and other cases deliberated under the rules of simplified proceedings (except for cases which, in accordance with this Code, are deliberated under the rules of general proceedings) are not subject to cassation appeal, except in cases where:

•        the cassation appeal concerns a legal issue that is of fundamental importance for the formation of a uniform law enforcement practice;

•    the case is of significant public interest or is of exceptional importance to the party to the case filing the cassation appeal.

In substantiating the unconstitutionality of the contested provisions, the subject of the right to a constitutional complaint emphasises that, in particular, the right of access to the cassation instance is made dependent on the existence of exceptions specified in paragraph 2 of Article 328.5 of the Code, which are evaluative in nature and based on the discretion of the court, which is unacceptable in a democratic society, as it provides opportunities for arbitrariness. In his opinion, such a “cassation filter” creates risks for effective judicial protection, since the absence of clear and predictable criteria for accepting cases for cassation review leads to arbitrary restrictions on the right to a fair trial within the meaning of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the guarantees provided for by the Constitution of Ukraine.

Therefore, Oleksandr Kasminin requests the Court to verify subparagraphs “a” and “c” of paragraph 2 of Article 328.5 of the Code for compliance with Articles 8.1, 8.2, 22, 24.1, 55.1, and paragraph 8 of 129.2 of the Constitution of Ukraine.

The Judge-Rapporteur also informed that in order to a full and objective deliberation of the case and the delivery of justified decision by the Court, he had sent requests to state authorities, scientific institutions and higher education establishments and members of the Scientific Advisory Council of the Court. The judges will be informed in detail about the content of the responses during the in-camera part of the plenary session.

After examining the case materials in the public part of the plenary session, the Second Senate proceeded to the in-camera part of the plenary session for a decision.

The plenary session was attended by the subject of the constitutional complaint, Oleksandr Kasminin, the authorised representative acting on behalf of the subject of the constitutional complaint, lawyer Oleksandr Leshchenko, and other citizens of Ukraine.

The video recording of the plenary session is available on the Court’s official website in the Section “Archive of Video Broadcasts of Sessions”.