Under what conditions can an application of a limitation period be filed in the apeal?

The limitation period, that is, the period within which a person may apply to the court for the protection of his civil right or interest, is established in accordance with Article 257 of the Civil Code of Ukraine for a term of three years.

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At the same time, a court can apply it only on the application of a party in a dispute made before the decision is made (Article 267 of the Civil Code of Ukraine).

Therefore, in the context of the general rules of law, the application of a limitation period may be considered if it is filed during the trial of the case in the court of first instance.

An application for the expiration of a limitation period may be set out in response to a claim or in the form of a separate petition, written or oral, which complies with the requirements of procedural law.

At the same time, according to the Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to a fair trial of his case by a court. Creating equal opportunities for the participants in the process of accessing the court and for the realization and protection of their rights is part of the guarantees of fair justice, in particular the principles of equality and adversarial parties.

A defendant who was not properly informed (in accordance with the requirements of the procedural law) of the time and place of the trial in the court of first instance has no equal opportunities with the claimant to submit evidence, to investigate and prove this to the court their convictions, and can not equalize with the plaintiff to prove in the court of first instance those circumstances which he refers to as grounds for his objections.

Therefore, if the court of first instance, without informing the defendant properly of the time and place of the case, will adjudicate a decision in absentia, the defendant is entitled to declare the application of the limitation period in the application for review of such a decision. In case of refusal of the court of first instance to comply with this application, the defendant may declare the application of a limitation period in an appeal against an extrajudicial decision of the court of first instance.

Moreover, if the defendant, who was not properly informed by the court of first instance about the time and place of the case, did not participate in such a proceeding, this would be the basis for the decision of the appellate court to resolve the application of the defendant's application for a limitation period, even if such an application was not filed by him. in the court of first instance. In particular, such a conclusion was reached by the Supreme Court in a ruling of 10/24/2018 in the case № 317/3698/15-ts.

In addition, in this context it is worth recalling the ruling of the Grand Chamber of the Supreme Court dated April 17, 2018 in the case № 200/11343/14-ц, in which, in order to effectively guarantee the right to a fair trial, the Grand Chamber of the Supreme Court departed from the conclusion of the Supreme Court of Ukraine, formulated in the Decrees of September 30, 2015 in the case No. 6-780tss15 and from October 11, 2017 in the case No. 6-1374ts17, that the court of appellate instance is not entitled to consider the application for the application of the limitation period.