Holding a court hearing during air alert in the absence of the parties is a violation of their rights to participate in court proceedings and grounds for cancellation of a court decision - SC CivCC

The court must decide whether to postpone the hearing if an air raid alert is in effect at the beginning of the hearing, and proceed from the fact that the absent party did not appear in court for objective and valid reasons, unless there is a request to consider the case in his absence.

This conclusion was reached by the Supreme Court as part of the panel of judges of the Second Judicial Chamber of the Civil Cassation Court.

In the case under review, at the time of the court hearing (26 November 2024 at 13:00), an air raid alert was in effect, the signal of which was announced at 12:37.

Despite this fact, the court of appeal considered the case, while issuing a certificate stating that the parties did not appear at the hearing.

The panel of judges of the Civil Cassation Court of the Supreme Court agreed with the arguments of the cassation appeal of the defendant's attorney that, considering the case during the air alert, which began before the court hearing, the court of appeal had to decide on the postponement of the case, applying the relevant procedural rules, taking into account the general principles of civil proceedings, observance of guarantees of the rights of a person to participate in the consideration of his or her case, as well as the obligation of the court to assist the participants in the trial in exercising their procedural rights.

Article 55 of the Constitution of Ukraine guarantees everyone the right to judicial protection.

Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which, in accordance with Article 9 of the Constitution of Ukraine, is part of the national legislation of Ukraine, stipulates that everyone is entitled to a fair and public hearing within a reasonable time by a proper and impartial tribunal established by law.

This right must be ensured by judicial procedures that must be fair.

The completion of the appellate review of the case in the absence of representatives of the parties who had objective obstacles to appear in court due to the announcement of the ‘Air Alert’ signal indicates that the appellate court did not properly fulfil its obligations to ensure the comprehensiveness, completeness and fairness of the trial.

When cancelling the decision of the court of appeal and sending the case for a new appeal hearing, the CivCC of the Supreme Court found that, when deciding whether there are grounds for postponing the consideration of a case in which the ‘Air Alert’ signal was announced at the beginning of the court hearing, the court should be guided by the priority of preserving human life and health, and the court's duty is to assist litigants in exercising their procedural rights, including the right to participate in court proceedings, and to assume that the absent litigant did not appear in court for objective and valid reasons, unless there is a request to consider the case in his or her absence.

Resolution of the Civil Cassation Court of the Supreme Court of 26 February 2025 in case No. 752/8937/24 (proceedings 61-16567св24) - https://reyestr.court.gov.ua/Review/125556389.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.