The most common reason for delaying the trial is the failure of persons involved in the case to appear. But what actions does the court take if the plaintiff fails to appear at the court hearing?
Persons participating in the case, including the plaintiff, are summoned to court and notified of the place and time of the court hearing. At the time appointed for the hearing of the case, the judge opens the court session, and the secretary of the court session reports to the court which of the persons summoned in the civil case has appeared, whether the persons who did not appear have been notified, and what information is available about the reasons for their absence.
In accordance with the provisions of Art. 6 of the Federal Code of Law “On the Judicial System of the Russian Federation”, calls from federal courts, magistrates and courts of the constituent entities of the Russian Federation are mandatory for all state authorities, local governments, public associations, officials, other individuals and legal entities without exception and are subject to strict execution throughout territory of the Russian Federation.
In case of failure to appear, the persons participating in the case are obliged to notify the court of the reasons for the failure to appear and provide evidence of the validity of these reasons (Part 1 of Article 167 of the Code of Civil Procedure of the Russian Federation).
If the plaintiff does not appear at the court hearing and there is no information about the notice regarding him, the hearing of the case is postponed in any case. The same applies to other participants in the process. Also, the trial of the case is postponed if the reasons for failure to appear are considered valid.
The court may also postpone the hearing of the case at the request of a person participating in the case due to the failure of his representative to appear for a valid reason.
At the same time, according to Part 3 of Art. 167 of the Code of Civil Procedure of the Russian Federation, the court has the right to consider the case in the event of the failure of any of the persons participating in the case and notified of the time and place of the court hearing, if they do not provide information about the reasons for the failure to appear or the court recognizes the reasons for their failure to appear as disrespectful.
In addition, the plaintiff has the right to ask the court to consider the case in his absence and to send him copies of the court decision.
What happens if the plaintiff does not appear in court?
The judge must consider the claim within 2 months from the date of its receipt (Article 154 of the Code of Civil Procedure of the Russian Federation).
The official sets the date and time of the meeting. The magistrate has 1 month to consider the application. Both parties must be informed when the meeting will take place. In Art. 123 of the Constitution of the Russian Federation states that legal proceedings are based on competition and equality of the parties. Accordingly, the persons participating in the process point out the facts that are important for making a decision and examine the evidence of the case. If the interested party fails to appear, he will not be able to participate in the process and provide his arguments regarding the issues under consideration.
The consequences of failure of participants in the trial to appear in court are regulated by Art. 167 Code of Civil Procedure of the Russian Federation:
- If there is no notice of service of the summons indicating when the hearing will take place, the hearing will be adjourned.
- The applicant may request that the proceedings proceed without him and that a copy of the decision be sent to him by registered mail. These rules also apply to the defendant.
Reference! In Art. 167 of the Code of Civil Procedure of the Russian Federation states that a person is obliged to warn an official that he will not be able to attend the meeting.
- If the applicant is absent from the first hearing, but has previously expressed his position, and there is sufficient evidence in the case, then the decision can be made without him. The complexity of the case determines whether the claim will be considered or the hearing will be postponed.
- The consideration of the case is postponed if the evidence is incomplete and additional research is required. When the decision does not affect the rights and interests of the parties or third parties, it is allowed to be made in the absence of the plaintiff.
- If the defendant does not appear at the hearing, but was warned in a timely manner, and he does not have valid grounds, then the case is considered without him. In this case, a decision is made in absentia, which can be canceled at the request of the defendant. If necessary, the new decision can be appealed through the appellate or cassation procedures.
Liability provided for failure to appear of persons participating in the case
The law provides for liability in the form of a fine or monetary penalty for persons who fail to appear in court for unexcusable reasons.
But this requires the simultaneous coincidence of two circumstances:
- The person failed to appear at the court hearing for an unexcused reason;
- The person was duly notified of the need to appear in court.
What happens if you don't appear in court? The issue of imposing a fine or monetary penalty is considered in a court hearing, and a ruling or resolution is issued based on the result. It is worth noting that the application of such a measure of liability is the right of the court, and not its obligation.
If a witness has been fined for failure to appear at a hearing, this determination can be appealed by filing a private complaint.
Another measure used against a “truant” is a judicial summons. If a participant in the proceedings does not want to come to court on his own, then bailiffs go to his place of residence or place of work and forcibly bring this person to court.
This measure cannot be applied to children under 14 years of age, pregnant women, or persons who, for health reasons, cannot participate in a court hearing.
Witness liability
The liability of witnesses for failure to appear at a court hearing is provided for in all branches of procedural law:
- Part 2 Art. 168 Code of Civil Procedure of the Russian Federation – a fine of 1000 rubles;
- Part 2 Art. 157 Arbitration Procedure Code of the Russian Federation and Part 1 of Art. 119 of the Arbitration Procedure Code of the Russian Federation - a fine not exceeding 2,500 rubles.
- Art. 117 of the Code of Criminal Procedure of the Russian Federation - monetary penalty not exceeding 2500 rubles
- part 8 art. 51 CAS RF and Art. 122 CAS RF - a fine not exceeding 5,000 rubles.
Example from practice. When considering a criminal case, a penalty of 2,500 rubles was imposed on the witness. The witness did not agree with such a punishment because he did not appear at the court hearing for a good reason, as he was on sick leave. But the appellate court did not accept the arguments of the complaint, because the witness was repeatedly summoned to court, and during the arrest he refused to go with the bailiff. In addition, the witness did not report the reasons for his absence and did not provide medical documents confirming the validity of the reasons.
What happens if the plaintiff fails to appear in court twice?
If a citizen fails to appear at a meeting twice, then in accordance with Art.
222 of the Code of Civil Procedure of the Russian Federation, the application may be left without consideration. This rule applies when the applicant did not request a hearing in his absence, and the defendant does not request consideration of the case on the merits. The court makes a ruling that the claim remains without consideration, that is, the case remains without a decision. The document indicates the deadlines and methods for eliminating the circumstances that prevented the verdict. A citizen will be able to go to court again only after all of them have been eliminated.
To cancel the determination, the applicant may provide documents proving the existence of a valid reason and the impossibility of reporting it in a timely manner. For example, if a person was sick for a long time and was on outpatient treatment or was outside the region or country.
The citizen will need to write a petition to the court to cancel the ruling and attach documentary evidence to it. If the official refuses to grant the request, the applicant has the right to file a private complaint.
Your own informant
The arbitrators must have evidence that the representative of the plaintiff or defendant received a copy of the court decision sent to him or refused to serve it.
It is not for nothing that we have drawn the attention of readers in all details to how judges are obliged to bring to the attention of the participants in the proceedings the initial data on the consideration of their dispute. The fact is that in the last days of October 2010, very important and equally controversial additions to Article 121 of the Arbitration Procedure Code of the Russian Federation came into force. Their essence boils down to the fact that now the obligation to notify the parties to the dispute has been shifted from the arbitrators to the participants in the process themselves (clause 6 of Article 121 of the Arbitration Procedure Code of the Russian Federation). Agree, such an innovation can lead to a lot of unpleasant moments for top officials of enterprises. We will now talk not only about failures to appear, supposedly indicating contempt of court, but about much more serious complications.
Now company managers need to pay the closest attention to working with correspondence in order to avoid a situation in which the treasured envelope with the first (and now only!) notice from the court will be accidentally thrown off the table, and then automatically thrown out by the cleaning lady. Or it will simply be lost in the bowels of a large enterprise, migrating from department to department.
“When I performed the duties of a secretary in the company, in order not to lose a single letter, I acted as follows,” suggests the head of the personnel department, Inna Savina. – When receiving envelopes at the post office, right there, by hand, I made a list of them (I prepared a sheet of paper with an empty plate in four columns and the maximum number of lines in advance). Then, while sorting out the letters, she put a “tick” in front of each one and noted which incoming number was assigned to which document and to whom it was handed over against receipt. Such foresight actually saved me several times when, returning from the post office, I dropped envelopes in the car and in the office corridor, or “buried” them on the table among other papers.”
Please note that if the letter with the determination to accept the claim is lost, the result will be as follows. The company simply will not know that it has become a party to litigation, and its management will be very surprised when the bailiff knocks on the door. At the same time, it will be impossible to appeal such a decision, the adoption of which the company did not know, since the arbitrators will have evidence of the proper first (and last) notice (Resolution of the Federal Antimonopoly Service of the Moscow District dated December 28, 2010 No. KG-A41/16807-10) .
“To further protect yourself from such incidents,” advises Sergei Zherdev, “the company’s management can oblige employees of the legal department to periodically (for example, once a month) review information on the website of the local arbitration court by the name of their company. And if such searches unexpectedly yield a positive result, then clearly monitor changes in the situation in the relevant proceedings.”
Failure to appear without a valid reason
The absence of one of the parties from the hearing without a valid reason may serve as grounds for holding a hearing without him. This applies to situations where the citizen knew when the hearing would take place, but he did not notify the court that he would not be there and did not ask to consider the case in his absence.
After filing a claim and initiating a case, a citizen is obliged to notify an official about a change of residence. In accordance with Art. 118 of the Code of Civil Procedure of the Russian Federation, a summons about the date and time of the meeting will be sent to the last known address of the plaintiff. Even if a citizen moved but did not notify the judicial authorities, the notice will be considered delivered.
How to act as a defendant
It makes no sense to report your failure to appear in court by telephone; it is better to write a written statement outlining your circumstances. A document has meaning, unlike words, which are not recorded anywhere. Moreover, court employees deal with dozens of people every day, and someone’s call can easily be lost in the secretary’s memory. Even if the call is not forgotten, it is still considered a failure of the defendant to appear in court in a civil case without a valid reason.
And the written application must be accompanied by certificates and other documents that can confirm the validity of the absence in court.
Failure to appear for a valid reason
Failure to appear for a valid reason may be grounds for rescheduling the hearing.
The plaintiff must notify the official in advance that he will not be able to attend on the specified date, and request that another time be set for the proceedings. If a citizen is unable to promptly notify the court of his absence due to a valid reason, then he subsequently has the right to ask for the decision to be cancelled. Confirmation is provided by documents proving why the citizen did not come to the hearing of the case in a timely manner.
What is considered a valid reason?
Valid reasons for failure to appear include:
- lack of notice of date and time;
- failure to receive a summons in a timely manner;
- illness of the plaintiff himself;
- illness or death of a close relative;
- long business trip;
- emergencies.
The presence of a valid reason must be documented. This could be a sick leave certificate, a travel certificate. If the interested citizen does not appear due to the death or illness of a close relative, then the relationship will need to be confirmed.
At the beginning of the hearing, the secretary announces the persons participating in the process and their presence. If one of the parties is not in the room, then the reason for this or its absence is announced.
Attention! When a case is being considered to declare a citizen incompetent, holding a hearing in his absence is allowed only if the court considers the grounds for failure to appear disrespectful.
Mandatory attendance at the meeting
The presence of the participants in the case, especially the plaintiff and defendant, provides them with the opportunity to defend their position. The summons is sent in advance, and, therefore, the party has the opportunity to pre-notify about the impossibility of appearing on the appointed day.
If a defendant fails to appear in court in a civil case, there are two options for the development of events:
- The party reports an inability to attend the trial and it is adjourned.
- The party does not react in any way to the court’s call, and the case is resolved without its participation.
The failure of a defendant to appear in court in a civil case must be justified and respectful from the point of view of the court. For example, the summons arrived too late, and there was no time to take time off from work and/or seek legal assistance.
Assessment of circumstances
Failure of a defendant to appear in court in a civil case for a valid reason obliges to postpone the consideration of the dispute. In other situations, the right is given to postpone the meeting, but it is impossible to delay the process indefinitely. In practice, one omission is considered tolerable. If it is followed by a second one, the judge continues the hearing without the defendant.
If there is a periodic absence within the framework of the trial, the judge proceeds from the circumstances of the case.
As a rule, everything is decided by the defendant’s ability to provide new information. It is easier to wait for the next meeting than to later risk having the decision overturned by the appellate court. Missing a deadline for considering a case is a lesser evil.
Judges easily make decisions without a defendant in credit disputes, recognition of rights to property, and in cases where the court acts as a means of drawing up documents for property. In family disputes involving children's rights, such as which parent they should live with, judges behave differently.
