Consequence of missed deadline for filing application for review of decision in absentia in the absence of valid reasons for its renewal is leaving such application without consideration - SC GC

Assessment of the validity of the reasons for missing the deadline for filing an application for review of a decision in absentia and the existence of grounds for its renewal is within the competence of the local court to which such an application is filed.

The consequence of missing the deadline for filing an application for review of a decision in absentia, provided that there are no valid reasons for its renewal, is leaving such an application without consideration under Part 2 of Article 126 of the Civil Procedural Code of Ukraine, rather than leaving it without satisfaction.

This conclusion was made by the Grand Chamber of the Supreme Court.

Under the circumstances of the case, which was pending before the Grand Chamber of the Supreme Court, the defendant filed an appeal against the decision of the court of first instance in absentia. In December 2022, the court of appeal returned the appeal and explained the right to apply to the court of first instance for a review of the decision in absentia in accordance with Article 285 of the Civil Procedural Code of Ukraine.

In January 2023, the defendant filed an application with the local court for review of the judgment in absentia, in which she requested that the judgment in absentia of 1 June 2021 be cancelled and that the time limit for filing an application for review of the judgment in absentia be extended.

The court of first instance, with which the court of appeal agreed, denied the motion to extend the deadline and left the application without consideration, as there were no valid circumstances that objectively prevented the defendant from applying to the court for review of the decision in absentia within the time limit set by law.

In the cassation appeal, the defendant noted, in particular, that the courts did not take into account the legal conclusion set out in the resolution of the Grand Chamber of the Supreme Court of 9 November 2021 in case No. 214/5505/16, according to which the local court is not empowered to leave the application for review of the decision in absentia without consideration.

Considering this case, the Grand Chamber of the Supreme Court noted that the defendant's right to access the court of appeal in the course of the trial in absentia by a local court is not absolute and is ensured subject to the defendant's compliance with the procedure for preliminary application to the court of first instance for review of the decision in absentia, including taking into account the time limits set by the procedural law. The time limit for applying to the court for review of an in absentia judgment established by part 2 of Article 284 of the Civil Procedural Code of Ukraine is one of the instruments for ensuring the principle of legal certainty.

As explained by the Grand Chamber of the Supreme Court, if the defendant files a motion to renew the missed deadline for filing an application for review of the decision in absentia, the court must apply Article 127 of the Civil Procedural Code of Ukraine, which states that the court, at the request of a party to the case, shall renew the missed procedural deadline established by law if it finds the reasons for its missed deadline to be valid.

The powers of the court of first instance provided for in part 3 of Article 287 of the Civil Procedural Code of Ukraine (in particular, to dismiss the application) relate to the essence of the application for review of the decision in absentia (including the defendant's submission or failure to submit evidence on the merits of the case and evidence of a valid reason for failure to appear at the court hearing at which the decision in absentia was made) and do not apply in the situation of missing the deadline for filing an application for review of the decision in absentia.

In view of the foregoing, the SC GC departed from the conclusion set out in the decision of 9 November 2021 in case No. 214/5505/16 and concluded that the assessment of the validity of the reasons for missing the deadline for filing an application for review of a decision in absentia is within the competence of the local court to which such an application was filed. The consequence of missing the deadline for filing an application for review of a decision in absentia, provided that there are no valid reasons for its renewal, is leaving such an application without consideration under Part 2 of Article 126 of the Civil Procedural Code of Ukraine, and not without satisfaction.

Agreeing with the conclusions of the courts of previous instances in this case, the Grand Chamber of the Supreme Court stated that since the defendant was well aware of the existence of court proceedings in the case, did not appear in court upon court summons, and later was aware of the opening of enforcement proceedings on the basis of the writ of execution issued in this case, the court of first instance reasonably questioned the objective inability of the defendant to file an application for review of the decision in absentia earlier than 11 November 2022. In addition, the defendant's filing of an appeal against the decision in absentia to the court of appeal, rather than an application for review of the decision in absentia to the court of first instance after receiving a copy of the decision, contrary to the procedural procedure established by law, cannot be considered a valid reason for missing the deadline for filing an application.

Resolution of the Supreme Court of 12 June 2024 in case No. 756/11081/20 (proceedings No. 14-25цс24) - https://reyestr.court.gov.ua/Review/119776617.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.