Failure to appear in court due to anxiety

In the current conditions of martial law, issues of procedural rights and guarantees for participants in judicial proceedings have acquired special significance. Military aggression, constant missile threats, and systematic air raids have created a situation in which participation in court hearings may become physically impossible or dangerous. Against this backdrop, the Supreme Court of Ukraine has formulated a legal position: the absence of a party in court due to the announcement of an air alarm constitutes a valid reason for postponing the consideration of the case or for recognizing the absence of a party’s representative as justified.

Normative and Procedural Foundations
According to Articles 223 and 240 of the Civil Procedure Code of Ukraine, a court may adjourn the case if circumstances arise that make its consideration impossible, or if the absence of a party is recognized by the court as valid. Similar provisions are also found in the Commercial Procedure Code (Article 202) and the Code of Administrative Procedure (Article 223).

The validity of reasons for non-appearance is evaluated by the court in each specific case. However, the key principle is the real opportunity to exercise the right to participate in the proceedings. Violation of a party’s right to be heard (principle audi alteram partem) may result in the annulment of the court’s decision due to procedural violations.

Supreme Court Assessment: Martial Risks as Force Majeure
In a number of its decisions (including cases No. 380/1538/23, No. 761/11408/22, No. 420/13474/22), the Supreme Court stressed that during martial law, circumstances related to air raids are objective and insurmountable. They do not depend on the will of the participant, and hence are considered valid reasons for non-appearance. The Court emphasized that civil and administrative proceedings must take security realities into account, and procedural duties cannot outweigh the constitutional right to life and personal safety.

The Supreme Court stated that an air alarm or other threats to the safety of process participants are grounds for:

• postponing the consideration of the case;
• summoning persons again to the court hearing;
• restoring procedural terms;
• recognizing the absence of a party as valid when the case is considered in their absence.

Such conclusions are based not only on procedural rules, but also on the provisions of Articles 3, 27, and 55 of the Constitution of Ukraine, which guarantee everyone the right to protection of life, safety, and judicial protection.

Practical Aspects of Proving Air Alarms
For the court to consider absence as valid, a participant should provide evidence of the time and place of the air alarm announcement. This may include:

• official notifications or screenshots from governmental applications (such as “Air Alarm”);
• data from the official resource alerts.in.ua or regional military administration websites;
• copies of internal orders/notices of the institution regarding evacuation during alarms;
• written explanations about the person’s whereabouts during the danger.

Documentary evidence helps prevent abuse of procedural rights, but even without such evidence, courts have the right to ascertain the fact of an air alarm in a particular region on the relevant date and time, on their own initiative.

Balancing Procedural Economy and Safety
The Supreme Court emphasizes that lower courts must maintain a balance between procedural economy and respect for participant rights. A formal approach to assessing reasons for non-appearance is unacceptable. If security risks are objective, the court has no right to consider the case in the absence of a party, even if statutory timeframes are violated.

The Court also noted that process participants must act in good faith: notify the court in advance of the reasons for absence, and use videoconferencing or remote communication if available under safe conditions.

Systemic Nature of the Supreme Court’s Position
The Supreme Court’s position is intersectoral and applies to all types of proceedings. It reflects the doctrine of reasonable exercise of procedural rights under extraordinary conditions. In its decisions, the Court has repeatedly emphasized that excessive formalism in applying procedural deadlines and sanctions contradicts the principle of fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

For example, in its ruling of 11 April 2024, the Supreme Court noted that safe participation in judicial proceedings is an element of access to justice. Therefore, any actions or decisions that force a party to choose between safety and procedural duty are unacceptable.

Conclusion
Thus, the Supreme Court has formulated a fundamental approach for wartime: an air alarm is an objective, insurmountable reason that makes participation in judicial proceedings impossible. Such a reason is recognized as valid regardless of the form of proceedings—civil, administrative, or commercial. By adhering to the principles of the rule of law, courts must ensure that participants have a real opportunity to exercise their right to judicial protection without being exposed to danger.

This approach aligns not only with national legislation but also with European standards of access to justice under extraordinary circumstances. Accordingly, Supreme Court decisions are important not only for specific cases, but also for the development of humanitarian judicial practice that puts human safety above procedural form.

Svitlana Krutorohova – attorney at the law firm “WINNER”.
If you have any questions or issues related to resolving similar procedural situations or need protection of your rights in court, contact our team for professional legal support and consultation. Your protection and safety are always our priority.