Supreme Court Overturns Judgment After Counsel Was Excluded from Appeal Hearing

Written By Stanislav Batryn

Stanislav Batryn, Lions Lawyers

The Supreme Court of Ukraine upheld an appeal prepared by Lions Lawyers and overturned an appellate court judgment delivered without the participation of the claimant’s counsel. The case concerned a seemingly technical procedural issue with significant implications for the right to a fair hearing.

The issue

Counsel had submitted an application to participate remotely by videoconference in the appellate proceedings. The appellate court granted the application.

The first hearing was subsequently adjourned. However, when the case was listed for the next hearing, counsel was not invited to join the videoconference. The appellate court proceeded in counsel’s absence on the basis that no new application for remote participation had been submitted.

The court then determined the case without the claimant’s counsel.

The Supreme Court's decision

The Supreme Court accepted the appeal and set aside the appellate court's judgment.

The Court's reasoning reflects the fundamental principle that a party must be afforded a genuine opportunity to participate in proceedings and present its case. Failure to secure counsel's participation without sufficient grounds may deprive a party of its procedural rights and undermine the requirements of a fair hearing.

The approach is consistent with the Supreme Court's earlier case law, including its judgments in Case No. 905/2371/21 (23 March 2023) and Case No. 2602/5125/12 (19 March 2025).

In the latter case, the Supreme Court expressly held that where a court has granted an application for participation by videoconference, adjournment of the proceedings does not annul that decision. Unless the participant subsequently requests a different form of participation, the rescheduled hearing should continue to provide for participation by videoconference.

Why the decision matters

The case concerns more than videoconferencing. It concerns the right to be heard. A procedural mechanism approved by the court cannot subsequently be disregarded in a manner that prevents a party from participating in the determination of its case.

This principle is also consistent with Article 6 § 1 of the European Convention on Human Rights and the ECtHR's case law concerning effective participation and equality of arms, including Lazaris v Albania, Nadtochiy v Ukraine and Gurepka v Ukraine (No. 2).

Stanislav Batryn
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