In absentia consideration of a civil case: when can the court make a decision without the participation of the defendant and what consequences does this have?

Most citizens, when going to court, expect that the case will be considered with the mandatory participation of all parties to the dispute. However, the civil procedural legislation of Ukraine provides for a mechanism that allows the court to make a decision even in the absence of the defendant. This is a case of absenteeism – a special procedure designed to ensure timely consideration of disputes and prevent cases when one of the parties deliberately delays the legal process. At the same time, an absentee decision has its own characteristics, conditions for adoption and a separate review procedure, which are important for both plaintiffs and defendants to know about.

Lawyers from the law association “Repeshko and Partners” told about how the procedure for absentee consideration of civil cases is applied in Ukraine, under what conditions the court can make an absentee decision, what procedural guarantees the participants in the case have and in what cases such a decision can be reviewed or appealed.

Litigation, injunctive proceedings, separate proceedings – these legal terms sound quite distant from everyday life for most people. However, in civil proceedings there is another important procedural form that can significantly affect both the outcome of the case and the further scope of the rights of a person who has applied to the court for protection. This is the consideration of a civil case in absentia and the adoption by the court of a decision in absentia. First of all, it is worth understanding that a decision in absentia is possible only during the consideration of claims by the court. If the court considers the case in the order of separate proceedings, in particular regarding the establishment of legal facts, a decision in absentia is not adopted.

The court may make a default judgment based on evidence already in the case, but only if the following conditions are met:

• the defendant has been duly notified of the date, time and place of the court hearing;
• the defendant has failed to appear at the court hearing without good reason or without notice of the reasons;
• the defendant has not filed a response;
• the plaintiff does not object to such a decision on the case.

It is important to pay attention to the simultaneous nature of these conditions. If at least one of them is missing, the court cannot make a default judgment.

The need for such a procedural mechanism arises when the consideration of a civil case should not turn into an endless wait for the party who does not come to court or does not exercise his procedural rights properly. A default judgment gives the court the opportunity to move the case forward, preventing the defendant from unjustifiably delaying the process. Indeed, in practice, there are situations when it is not so much important for the defendant to win the case as to postpone its consideration for as long as possible.

Various methods can be used for this, which do not always go beyond the boundaries of procedural legislation. Therefore, the rules on absentee proceedings partially neutralize such actions and allow the plaintiff to count on a decision if he does not object to the absentee proceedings. Why the plaintiff’s consent matters is a question that deserves separate attention. In practice, a significant part of absentee decisions is not reviewed in the future and remains valid with all legal consequences.

According to Article 17 of the Law of Ukraine “On the Execution of Judgments and the Application of the Practice of the European Court of Human Rights” and Part One of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the right of a person to a fair and public hearing of his case within a reasonable time is associated with the obligation to exercise in good faith the procedural rights granted by law. The parties must refrain from actions that lead to a delay in the trial, and also use the measures provided for by procedural law to shorten the period of judicial proceedings. This was, in particular, noted by the European Court of Human Rights in paragraph 35 of the judgment of 07 July 1989 in the case of “Union Elementary Sanders v. Spain”.

At the same time, the obligation to administer justice promptly rests primarily with the relevant state judicial authorities. The expediency of the duration of judicial proceedings is assessed taking into account the specific circumstances of the case, its complexity, the conduct of the parties and the subject matter of the dispute. At the same time, the inability of the court to effectively counteract obstacles to the progress of the case, which are created in bad faith by the participants in the process, is a violation of Part 1 of Article 6 of the Convention. This approach is set out in paragraphs 66–69 of the judgment of the European Court of Human Rights of 08 November 2005 in the case of “Smirnova v. Ukraine”.

It should be noted that when several defendants participate in the case, an in absentia hearing is possible only in the event of the failure of all defendants to appear at the court session.

The court issues a ruling on the transition to an in absentia hearing. Further consideration of the case and adoption of a decision are carried out according to the rules of general or simplified claim proceedings, but taking into account the features that the Civil Procedure Code of Ukraine establishes specifically for in absentia hearing.

It should be noted that in its form and details, an in absentia decision generally does not differ from an ordinary court decision. The difference is that its title indicates that it is in absentia, and the deadline and procedure for submitting an application for its review are also necessarily indicated.

Defendants who did not appear at the court session are sent a copy of the in absentia decision within two days from the date of its preparation in full. If this is provided for by law, it is sent in electronic form. In the absence of an electronic account, a copy of the decision is sent by registered letter with a notification of delivery.

We would like to emphasize that the key feature of an absentee decision is that it can be reviewed by the same court that issued it, upon a written application by the defendant. The defendant may file an application for review of an absentee decision within thirty days from the date of its announcement. If a participant in the case was not served with the full absentee court decision on the day of announcement, he has the right to renew the missed deadline for filing an application for its review, provided that such an application is filed within twenty days from the date of service of the full absentee court decision.

The deadline for filing an application for review of an absentee decision may also be renewed in the event of its omission for other valid reasons. At the same time, explanations alone are not enough in such a situation: the reason must be not only valid, but also confirmed by appropriate evidence. These may include, in particular, train tickets, sick leave, travel orders, or other documents that confirm the circumstances to which the defendant refers.

An illustrative situation is the one that occurred in the reception room of a judge of one of the local courts. A few months ago, the husband decided to divorce. According to him, he contacted a lawyer, provided all the necessary documents, and paid for her services. The lawyer prepared a statement of claim for divorce, filed it with the court, paid the court fee, after which the court accepted the case for consideration and opened proceedings. A statement of claim on behalf of the husband was also attached to the claim for consideration of the case in his absence. In practice, this is a fairly common approach: the plaintiff does not want to go to court, does not know whether the other party will appear, and expects that sooner or later the decision will be made anyway.

However, the court was in no hurry to consider the case; about half a year passed, and in the end, a decision was made in absentia to dissolve the marriage. During this time, the couple managed to reconcile and decide that they would not divorce, but no one informed the court about this. The husband believed that if he did not come to court, the case would not be considered. In fact, such an approach could have made sense in the absence of an application to consider the case without his participation, but such an application had already been submitted. As a result, the court issued a divorce decree in absentia.

The wife, in turn, blamed the husband for the situation. It was he who filed the lawsuit, and therefore, it was he who should have filed an application to leave the lawsuit without consideration, if the spouses no longer intended to divorce. From a procedural point of view, this logic was correct. The judge, after listening to the emotional clarification of the circumstances in the reception room, suggested a procedural way out of the situation. Since the decision was made in absentia, the wife was recommended to file an application to review it. After the cancellation of the absentia decision, the husband, as the plaintiff, had to file an application to leave the lawsuit without consideration. As a result of such a procedural combination, the divorce actually lost its force, and the marriage continued to exist. This example clearly shows that a default judgment can be important not only for the plaintiff, but also for the defendant, who receives a separate procedural mechanism for its review.

As for the application for review of the default judgment itself, it is submitted in writing and must meet the requirements stipulated by the Civil Procedure Code of Ukraine. The application for review of the absentee decision must include:

• name of the court that issued the absentee decision;
• name or title of the defendant or his representative who files the application, their place of residence or location, telephone number, information on the presence or absence of an electronic account;
• circumstances indicating the validity of the reasons for failure to appear at the court session and or failure to notify the court of their absence, as well as the reasons for not submitting a response, and evidence to support these circumstances;
• references to evidence with which the defendant substantiates his objections to the plaintiff’s claims;
• petition for review of the absentee decision;
• list of materials attached to the application.

The application for review of the absentee decision is signed by the person who files it. Copies of the application according to the number of participants in the case, as well as copies of all materials attached to it, are attached to it. The exception is cases when such an application is submitted electronically through an electronic account. If the application is submitted through an electronic account, evidence of sending a copy of it and copies of the attached materials to other participants in the case is attached to it, taking into account the provisions of Article 43 of the Civil Procedure Code of Ukraine.

The application can be submitted in person or through a representative. If the application for review of the absentee decision is submitted by a representative of the defendant, a power of attorney or other document confirming his authority must be attached to it. It should be noted that the review of the absentee decision is not free of charge. A document confirming payment of the court fee is attached to the application for review of the absentee decision. The court fee for filing such an application in 2026 is 665.60 hryvnias for individuals.

The application for review of the absentee decision must also be accompanied by evidence to which the applicant refers. It is on how well-founded this evidence is that the success of the application and further consideration of the case largely depends. Therefore, the preparation of such an application should be approached carefully and all possible means of proof should be used.

It is important for the defendant to remember that the filing of an application in itself does not mean its automatic consideration on the merits. If the application for review of the absentia decision is drawn up in violation of the requirements of the law, the provisions of Article 185 of the Civil Procedure Code of Ukraine shall apply. In such a case, the judge shall issue a ruling to leave it without action within five days from the date of receipt of the application.

In the ruling, the court must specify what exactly the shortcomings of the application are, how they must be eliminated and within what period this must be done. Such a period cannot exceed ten days from the date of delivery of the ruling to leave the application without action. If the reason for leaving the application without action was the failure to pay the court fee or its payment was not made in full, the court must indicate the exact amount that must be paid or paid additionally.

If all shortcomings are eliminated within the period established by the court, the application is considered filed on the day of its initial submission to the court. If the deficiencies are not eliminated, the application is considered not filed and returned to the defendant.

After the properly executed application for review of the absentee decision is received by the court, the next stage of the procedure begins. The court immediately sends a copy of the application and copies of the materials attached to it to the other participants in the case, and also notifies them of the date, time and place of its consideration. The law establishes quite short deadlines: an application for review of the absentee decision must be considered within fifteen days from the date of its receipt by the court.

It should be noted that the consideration of the application takes place in a court session. At the same time, the failure to appear of persons who were duly notified of the date, time and place of the court session does not prevent its consideration. During the session, the presiding judge finds out which of the participants in the case appeared, establishes their identities, checks the powers of the representatives, announces the content of the application and hears the opinions of the parties and other participants in the case regarding the requirements for review of the absentee decision.

Based on the results of the consideration of the application, the court may adopt one of two decisions by its ruling: to dismiss the application or to cancel the absentee decision and assign the case for consideration under the rules of general or simplified claim proceedings.

The peculiarity of the absentee decision is also that the law actually provides for an additional procedural mechanism of protection for the defendant. If the court leaves the application for review of the absentee decision without satisfaction, the defendant does not lose the right to further appeal the decision itself. In such a case, the absentee decision may be appealed in the appeal procedure in accordance with the requirements of the Civil Procedure Code of Ukraine. In this case, the term for an appeal begins to be calculated from the date of the ruling on leaving the application for review of the absentee decision without satisfaction.

However, to cancel the absentee decision, it is not enough to simply refer to your own disagreement with its content. The court must establish that the defendant did not appear at the court hearing and or did not notify the reasons for his/her absence, and did not file a response to the claim for good reason. In addition, the evidence referred to by the defendant in his application must be of significant importance for the correct resolution of the dispute.

Unlike the defendant, the plaintiff and third parties do not have the right to review the absentee decision by the same court. They are provided with only a general procedure for appealing by filing an appeal with the court of appeal. If, after the cancellation of the initial absentee decision, the case is considered again and the court again adopts an absentee decision, both the plaintiff and the defendant may appeal such a repeated absentee decision in the general appeal procedure.

An absentee decision acquires final legal force only after the expiration of all the deadlines provided for by law for its review or appeal. If an application for review of the absentee decision or appeal is not filed within these deadlines, or if the decision is left unchanged as a result of the appellate consideration, it becomes legally binding and is subject to execution on general grounds.

Therefore, we advise you to be attentive to any court notices and not to leave the opening of proceedings in the case without responding. A default judgment may have the same legal consequences as a regular court judgment. If a default judgment has already been made, you should not delay in protecting your rights. It is necessary to use the mechanisms provided for by law for its review or appeal in a timely manner, having properly substantiated your position and confirming it with appropriate evidence.