An application for a review of a decision in absentia, if it is submitted outside the time limit specified by law and in the absence of grounds for its renewal, must be dismissed (and not dismissed). This was noted by the Grand Chamber of the Supreme Court during the consideration of case No. 214/5505/16 .
Thus, the court accepts and examines an application for review of a decision in absentia, drawn up in accordance with the requirements established by parts one to seven of Article 285 of the Civil Code of Ukraine, in accordance with the procedure provided for by Articles 286 and 287 of the Civil Code of Ukraine. Pursuant to the content of the first sentence of the first part of Article 286 of the Civil Code of Ukraine, the court is obliged to accept for consideration the application for review of the decision in absentia, if it meets the specified requirements, that is, it is properly executed.
The procedure for consideration of an application for review of a decision in absentia, defined in Article 287 of the Civil Code of Ukraine, is applicable both to consideration of the substance of this application and to consideration of compliance with the deadline for its submission. As a result of consideration of the application for review of the decision in absentia, the court may by its decision: 1) leave the application without satisfaction; 2) cancel the decision in absentia and appoint the case for consideration according to the rules of general or simplified legal proceedings (the first sentence of the third part of Article 287 of the Civil Procedure Code of Ukraine).
In the case of refusal to grant an application for extension of the deadline for submitting an application for review of a decision in absentia, the court shall, for this reason, refuse to grant such an application for review. Then the defendant who filed it can appeal the decision in absentia in an appeal procedure, substantiating, in particular, the seriousness of the reasons for missing the deadline for submitting an application for review of this decision. The special rule on the beginning of the countdown for the appeal of a decision in absentia provided for in the second sentence of the fourth part of Article 287 of the Civil Code of Ukraine is applicable only to those decisions that the court made according to the rules effective from December 15, 2017.
The form of the application for review of the decision in absentia, requirements for its content, signing of annexes, and the number of copies are determined by parts one to seven of Article 285 of the Code of Criminal Procedure of Ukraine. The provisions of Article 185 of this Code (part eight of Article 285 of the Civil Code of Ukraine), which regulates the procedure for leaving a claim without action and its return, apply to an improperly executed application for review of a decision in absentia.
This prescription should be understood as one that refers to non-fulfilment of exactly those requirements provided for in parts one to seven of Article 285 of the Civil Code of Ukraine. If a party to the case filed an application for review of a decision in absentia without complying with the specified requirements, i.e. improperly, the provisions of Article 185 of the Civil Code of Ukraine shall apply to this application. In other cases, its provisions are inapplicable to the application for review of the decision in absentia. The decision to return such an application can be challenged in an appeal procedure separately from the decision in absentia (Clause 22, part one, Article 353 of the Civil Procedure Code of Ukraine).
After accepting a duly executed application for review of a decision in absentia, the court immediately sends a copy of it and copies of the materials attached to it to other participants in the case. At the same time, the court informs the participants of the case about the date, time and place of consideration of the application. The application for review of the decision in absentia must be considered within fifteen days from the date of its receipt.
The right to perform a procedural action is lost with the expiration of the term established by law or the court. Documents submitted after the expiration of the procedural terms remain without consideration, except for the cases provided for by this Code (Article 126 of the Code of Criminal Procedure of Ukraine).
Therefore, not in all cases when documents were received by the court after the expiry of the procedural term, these documents should be left without consideration. Yes, if the defendant submitted an application for review of the decision in absentia outside the time limits established by the second and third parts of Article 284 of the Civil Code of Ukraine, then in accordance with the provisions of Chapter 11, Section III of the Civil Code of Ukraine, this does not exempt the court from the obligation to apply the procedure specified in Article 287 of the Civil Code of Ukraine , and decide due to missing the deadline for submitting an application for review of the decision in absentia of the decision to leave this application unsatisfied, if there are no grounds for satisfying the application for renewal of the relevant deadline.
As a result of consideration of the application for review of the decision in absentia, the court may by its decision: 1) leave the application without satisfaction; 2) cancel the decision in absentia and appoint the case for consideration according to the rules of general or simplified legal proceedings (part three of Article 287 of the Civil Procedure Code of Ukraine).
Since the court is obliged, in accordance with the first sentence of the first part of Article 286 of the Civil Procedure Code of Ukraine, to accept each duly executed application for review of a decision in absentia and to immediately send a copy of it and copies of the materials attached to it to other participants in the case, there are no solid grounds to believe that the provisions of Article 287 of the Civil Procedure Code of Ukraine Ukraine's procedure for considering an application for review of a decision in absentia is applicable only to the consideration of the substance of this application and is not applicable to the consideration of compliance with the deadline for its submission. Therefore, since the special legal regulation provided for by Chapter 11 of Chapter III of the Civil Procedure Code of Ukraine covers the procedure for reviewing an application for review of a decision in absentia submitted outside the established time limit, there is no reason to leave it without consideration on the basis of Article 126 of the Civil Procedure Code of Ukraine.
The procedural law does not provide that the court, after considering a duly executed application for review of a decision in absentia (in particular, on the subject of whether there are grounds for considering this application on the merits due to missing the deadline for its submission), may take other actions than those provided for in part three of Article 287 of the Civil Code of Ukraine. Therefore, if the court deems it impossible to renew the deadline for submitting an application for review of a decision in absentia, it should leave it without satisfaction on this basis.
If the application for review of the decision in absentia is left without satisfaction, 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 (part four of Article 287 of the Civil Procedure Code of Ukraine).
In view of the above prescriptions, in the event that the court of first instance refused to grant the application for the extension of the deadline for submitting an application for review of the decision in absentia and for this reason left the last one without satisfaction, the person can challenge the decision in absentia in the appeal procedure, substantiating, in particular, the validity of the reasons for skipping such a period. The special rule on the beginning of the countdown for the appeal of a decision in absentia provided for in the second sentence of the fourth part of Article 287 of the Civil Code of Ukraine is applicable only to those decisions that the court made according to the rules effective from December 15, 2017.