Convicted in absentia as sole defendant: opposition or appeal?

If you fail to appear as a defendant in a proceeding, you will be joined at mitre condemned. The claim is then usually granted because no defense was put forward against it. You can still enter an objection within a period of time calculated from the moment you became aware of the verdict. You can read how this works in a blog about default and resistance. That is the main rule. It is different when you were not the only defendant in the proceedings. Trial lawyer Robert van Ewijk explains how.

Default judgment if there are multiple defendants?

When there are multiple defendants and one of them appears in the proceedings, the default judgment is entered against the non-appearing defendants and proceedings continue between the plaintiff and the appearing defendant. If there is then a judgment, however, it does not count as a default judgment. In fact, the law provides in article 140 paragraph 3 Rv, that such a judgment is considered to be ‘a judgment adversary’ with respect to all defendants.

3. A single judgment shall be rendered between all parties, which shall be considered an adversary judgment.

(…)”

Judgment in contradiction: thus no opposition but only appeal

The effect of this rule is that the judgment, even against the non-appearing defendant, does not count as a default judgment. It is considered to be a judgment by counterclaim. That means a judgment rendered after the defendant has contradicted the claim. And thus: put up a defense. You can only appeal against a judgment by way of an adversary.

Term of appeal for unappealed defendant

The deadline to get into appeal to go, is usually three months after the first instance judgment is rendered. Among other things, in summary proceedings the deadline is shorter. The unappealed defendant runs an extra great risk here. Whereas in the case of a judgment in absentia, the time limit to file an appeal in principle only starts to run after he takes cognizance of the judgment, the time limit now already starts to run at the moment the judgment is pronounced. However, this does not mean that the convicted person actually has knowledge of the judgment. The appeal period can therefore pass unnoticed, which is somewhat less likely to happen with the opposition period in the case of a judgment in absentia.

Exception: excusable delay in appeal by defaulting defendant

Because to remove adverse consequence for the nonappearing defendant, the Supreme Court (ECLI:NL:HR:2015:1470) ten years ago ruled that there can be an excusable delay. In the case before the Supreme Court, a judgment had been rendered in 2007. In the case, the convicted person had not appeared, but the judgment was deemed to be a judgment by way of application of Section 140(3) Rv. More than six years later, the convict appealed. That is long and wide after the expiration of the deadline for appeal.

Appeals can sometimes be timely after six years

Nevertheless, the Supreme Court found that this was permissible. The preliminary summons had not been served on the defendant in person in 2007. Nor was the defendant previously aware of the judgment. When he became aware of the judgment in 2013, he appealed within two weeks. The Supreme Court ruled:

“3.4 In a case as referred to in art. 140 (3) Rv, in which the summons was not served in person and the judgment did not become known to the convicted person by default prior to the expiration of the appeal period, a declaration of inadmissibility for exceeding the time limit must be dispensed with if the convicted person has lodged an appeal within a period of fourteen days - or so much less as corresponds to a shorter statutory appeal period - after the judgment was served on the convicted person in person or the convicted person otherwise became aware of the judgment (cf. HR 3 October 2014, ECLI:NL:HR:2014:2894, rulings 3.4.2-3.4.3). In view of this, [plaintiff] rightly complains that the court should have given him the opportunity to express his views on this matter before declaring the inadmissibility. If it is established that the initiatory summons was not served on [plaintiff] in person, the circumstances mentioned above in 3.3 under (ii-iv) will result in [plaintiff]”s appeal being admissible. The parts were therefore rightly proposed."

Attorney on appeal or opposition

Choosing the wrong remedy following a judgment can have major consequences. Usually, by the time the judge declares you inadmissible, the deadline for filing the correct remedy has already passed. Therefore, take timely contact contact the litigation lawyer at Lexys Advocaten to find out which legal remedy you can use against a judgment. The litigation specialist can also tell you if there is still something to be done against a judgment, if at first glance the time limits seem to have expired.