THE RIGHT OF THE DEFENDANT TO REVIEW A DECISION IN ABSENTIA: LEGALIZATION OF PROCEDURAL SABOTAGE ON THE PART OF THE DEFENDANT OR REALIZATION OF THE RIGHT TO BE HEARD

Abstract

Background. The article addresses the doctrinal study of the defendant's right to review the decision in absentia through the prism of the time limit of the legal construction of the implementation of the said right.

Results. The legal consequences of the defendant's submission of an application for review of a decision in absentia in violation of the term established by the Civil Procedure Code of Ukraine are highlighted, and in the absence of legal grounds for renewing the specified term, the discretionary powers of the court to review a decision in absentia in civil proceedings are modeled. Emphasis is placed on the active application in judicial practice until November 9, 2021 of a single, scientifically substantiated and justified in practical aspect approach in solving the issue of the defendant missing the deadline for submitting an application for review of the decision in absentia and in the absence of grounds for its renewal. Taking into account the conducted detailed and thorough study of the motivational part of the resolution of the Grand Chamber of the Supreme Court dated by November 9, 2021, the main circumstances that became the basis for the formation of the panel of judges of the Grand Chamber with regard to the legal consequences and, accordingly, actions of the court in the event of submitting an application for review of the decision in absentia are highlighted with a missed deadline and in the absence of grounds for its renewal. Relying on the legal position formed by the Grand Chamber of the Supreme Court in case No. 214/5505/16 on November 9, 2021, according to which the court leaves an application for review of a decision in absentia submitted outside the time limit established by law and in the absence of grounds for its renewal, without satisfaction, a legal assessment was made of the legal nature of the deadline for submitting the specified application and, taking into account the provisions of Article 120 of the Civil Procedure Code of Ukraine, it was classified as procedural deadlines. Examining the requirements for the application for the review of a decision in absentia legally established in the Civil Procedure Code of Ukraine, the criteria of a "properly executed" application for the review of a decision in absentia, which, pursuant to Article 286 of the Civil Procedure Code of Ukraine, is subject to acceptance by the court for review on its merits, have been formulated.

Conclusions. In view of the legal nature of the institution of absentee hearing, which is a kind of procedural sanction for the defendant and, accordingly, provides for the defendant certain limitations in the procedure of appealing such a decision, in particular in terms of the legislative establishment of the deadline for submitting an application for review of the absentee decision, expressed the opinion that the failure to consider the application for review of the decision in absentia on the grounds of missing the statutory deadline for submission cannot be qualified as a violation of the defendant's rights and deprivation of his right to appeal the decision in general. It is emphasized that it is impossible to pass a resolution on leaving the application for the review of the decision in absentia without satisfaction on the grounds of missing the deadline set by the law and in the absence of grounds for its renewal, since this would contradict both the provisions of Article 126 of the Civil Procedure Code of Ukraine and the grounds for issuing a court decision based on the results of consideration of the application for review of the decision in absentia on the merits.