On December 1, 2021, the Supreme Court, as part of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation, considered in the order of simplified legal proceedings the case of the claim of the Joint-Stock Commercial Innovative Bank "UkrSybbank" (hereinafter – JSC "UkrSybbank") against PERSON_1 for the collection of debt under the credit agreement.
Erroneous calculation by an appeal of the term for appealing a decision in absentia from the time of drawing up its full text may endanger a person’s constitutional right to appeal a court decision
The court established that the claim was satisfied by the absentee decision of the local court in December 2008. The court decision was not appealed and became legally binding.
The representative of the defendant PERSON_2 applied to the court for a review of the decision in absentia, referring to the fact that PERSON_1 learned about the adopted court decision in May 2021 after his representative received a copy of the court decision.
The local court refused to grant the application due to the fact that PERSON_1 received court summonses for the consideration of the case on the court session, which was confirmed by a return notice, and the defendant received a copy of the full text of the court decision in January 2009.
The appeal was filed by PERSON_2 in June 2021, i.e. 13 years after the court's decision.
The appellate court refused to open an appeal proceeding against the decision of the local court in absentia, adopted in December 2008.
The Supreme Court annulled the decision of the appellate court and sent the case for a new consideration to the appellate court in view of the following.
According to the first part of Article 354 of the Civil Code of Ukraine, an appeal against a court decision is filed within thirty days, and against a court decision – within fifteen days from the day of its announcement. If only the introductory and final parts of the court decision were announced at the court session, or in the case of case consideration (resolution of the issue) without notice (summons) of the participants in the case, the specified term is calculated from the date of the full court decision.
The Code of Civil Procedure of Ukraine establishes a special procedure for the defendant to appeal a decision in absentia – by submitting to the court that passed it an application for review of this decision (Article 284 of the Code of Criminal Procedure of Ukraine), as well as a general procedure – appeal (part four of Article 287 of the Code of Criminal Procedure of Ukraine).
In accordance with the fourth part of Article 287 of the Civil Procedure Code of Ukraine, if an application for review of a decision in absentia is left unsatisfied, the decision in absentia may be appealed in the general procedure established by this Code. In this case, the term for appealing the decision begins to count from the date of the decision to leave the application for review of the decision in absentia without satisfaction.
When deciding on the opening of appeal proceedings based on the defendant's appeal, the appellate court assumed that the applicant had missed the deadline for appealing the decision in absentia. Such a conclusion of the appellate court contradicts the requirements of the law and the case materials, since PERSON_1 filed an appeal in June 2021, i.e. in within the limits of the period provided for by the fourth part of Article 287 and the first part of Article 354 of the Civil Procedure Code of Ukraine, the period for appealing the absent decision of the local court from December 4, 2008, which starts counting from May 31, 2021 – from the date of the decision on the refusal to grant the application for the review of the absent decision. Thus, PERSON_1 did not miss the deadline set by procedural legislation for filing an appeal.
The appellate court did not take into account that the term for an appeal against a decision in absentia is calculated not from the moment of the adoption of the decision in absentia or receipt of its copy, but from the date of the decision to leave the defendant's application for review of the decision in absentia without satisfaction (part four of Article 287 of the Code of Civil Procedure of Ukraine).
The appellate court's reference to the impossibility of renewing the one-year time limit established by the second part of Article 358 of the Civil Code of Ukraine for an appeal is not relevant to the circumstances of this case, since this rule applies to appeals filed after the deadline for an appeal has been missed. However, in the case under review, although PERSON_1 filed an appeal after 13 years had passed since the date of drafting the full text of the decision in absentia, he did not miss the deadline for appealing it, which, according to the rules of the fourth part of Article 287 of the Civil Code of Ukraine, begins to count from the date of the decision to leave without satisfaction of the application for review of the decision in absentia.
Under such circumstances, the appellate court's erroneous calculation of the term for appealing an absent decision from the time of drafting its full text, and not from the moment of completion of the special procedure for appealing such a decision to the court that passed it, contradicts the principle of legal certainty regarding the predictability of the application of normal procedural legislation, does not provide the defendant has a clear and practical opportunity to appeal the decision in absentia and may jeopardize the constitutional right of a person to ensure an appeal of a court decision.
You can read more about the text of the decision of the Supreme Court of December 1, 2021 in case No. 2-4679/08 (proceedings No. 61-11802св21) at the link: https://reyestr.court.gov.ua/Review/101712121 .