Article 167 of the Code of Civil Procedure of the Russian Federation. Consequences of failure to appear at a court hearing by persons participating in the case and their representatives (current version)

The defendant as a participant in the court

The defendant is a party to the lawsuit who has in some way violated or infringed the rights of the plaintiff. Any capable citizen can be the defendant.

Persons under the age of 14 are not subject to criminal liability and cannot act as defendants. Their parents or guardians will speak for them in court. Minors - from 14 to 18 years old - are responsible for their own actions.

The term “defendant” applies to administrative and civil law. If the claim is satisfied, the defendant is punished by being forced to fulfill certain obligations, for example, payment of established material damages in favor of the plaintiff, fulfillment of alimony obligations and other property claims.

If the defendant is incapacitated but has caused harm to the plaintiff, then the defendant is the guardian or legal representative. The defendant essentially has the same rights and obligations and participates in all stages of the legal process as the plaintiff.

Isn’t it time to “kill” absentee proceedings under the Civil Procedure Code?

Absentee proceedings are considered a means of speeding up the consideration of a case. However, is this really so?

Do the changes introduced by Federal Law No. 451-FZ dated November 28, 2018 (came into force on October 1, 2019, the so-called “procedural revolution” contribute to such acceleration); the original draft of the law is contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 3, 2017 No. thirty)?

It seems that there are several points that will make it possible to painlessly exclude the rules on absentee proceedings from the Code of Civil Procedure.

1. The rules on proceedings in absentia are optional (optional): if the defendant fails to appear, the court may make a decision not in absentia.

The rules on absentee proceedings were introduced into the Civil Procedure Code of the RSFSR by Federal Law of November 30, 1995 No. 189-FZ and initially looked like a kind of trial, a test, since they allowed, in the event of the defendant’s failure to appear, both an absentee decision, which could be overturned by the court of first instance, and an ordinary decision ( Part 3 of Article 157), which could only be appealed to the court of second instance.

For some reason, nothing changed with the adoption of the Code of Civil Procedure of 2002: a decision in absentia is only an alternative to a regular decision, which can also be made in the absence of the defendant (Part 4 of Article 167).

For this reason, the chapter on absentee proceedings looks alien, not built into the code system. For those who rarely encounter courts of general jurisdiction, the relationship between a default judgment and an ordinary judgment in the absence of the defendant is not always immediately clear.

At the same time, the Charter of Civil Proceedings of 1864 provided that if the defendant failed to appear and did not ask to consider the case in his absence, the court could only make a decision in absentia (Article 145, 718-719) [1].

The initiative in choosing a procedure under the Civil Procedure Code belongs to the court; only consent is required from the plaintiff.

For both types of decisions, the conditions are the same, including the need for proper notification of the defendant.

In practice, courts more often make decisions in absentia precisely in cases where there are doubts that the defendant knows about the process. The developers of the Charter of Civil Procedure of 1864 (“reasoning” to Article 718) also proceeded from the “uncertainty of the court about the validity of delivery of the summons to the defendant.”

2. It is difficult to determine when a default judgment comes into force.

The date when the default judgment comes into force is tied to the moment when its copy is served on the defendant.

In practice, this leads to the fact that the “time of delivery”, if the defendant did not actually receive the decision, is understood differently by the courts.

For example, in one of the regions, a stable practice has developed when the court assigned the delivery of a copy of the default decision to the defendant to the plaintiff if the postal decision was returned. [2]

In other regions, the courts waited for the return of the repeated mailing with a copy of the decision.

Thanks to this, the absentee decision entered into legal force almost a month later compared to a regular decision.

But that's not all. Current rules allow a default judgment to be set aside after a significant period of time has passed on the application of a defendant who has not received a copy of it, which has sometimes led to serious abuses.

Thus, in one of the cases, the absentee decision on debt collection in 2002 was canceled in 2010 (ruling of the Supreme Court of the Russian Federation dated March 29, 2011 No. 14-G11-9).

In another case in 2008, a default judgment on divorce in 1998 was canceled (after 10 years!). Since the plaintiff had died by that time, the proceedings were discontinued. It was possible to cancel the ruling only in the Supreme Court (ruling of the Supreme Court of the Russian Federation dated October 13, 2009 No. 22-B09-12).

The cancellation of a default judgment on divorce several years after it was made, after the death of the plaintiff, and the termination of proceedings in the case looks like a “scheme”, and, apparently, not without “extra-procedural influence” on the court. The goal here is obvious - to change the composition of the heirs.

It was possible to find an example (apparently not the only one) where a judge paid with his powers for just one fact of canceling a default judgment on divorce after the death of the plaintiff (decision of the Supreme Court of the Russian Federation dated December 16, 2008 No. GKPI08-1969).

In such a situation, the Supreme Court was forced to give a contra legem interpretation.

In the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2015), approved by the Presidium of the Supreme Court of the Russian Federation on June 26, 2015 (question 14), it is proposed to consider that in the absence of information about the delivery of a copy of the decision in absentia to the defendant, it enters into legal force upon the expiration of the total of the following deadlines : 1) a three-day period for sending a copy of the decision to the defendant, 2) a seven-day period for filing an application to cancel the decision and 3) a month for appealing the appeal.

At the same time, it is prohibited to restore the deadline for filing an application to cancel a decision in absentia if a copy of the decision was handed to the defendant after the expiration of the period for his appeal.

These explanations are not always supported by lower courts. So, in 2021, in one of the cases with my participation, the court was waiting for the return of the re-sentence with a copy of the default judgment.

In addition, there have been cases where the courts, knowing about these clarifications, directly refuse to be guided by them.

Thus, the regional court upheld the ruling, which restored the deadline for filing an application to cancel the default judgment. The default judgment was made in final form on 03/04/2016, the application for cancellation was submitted on 06/02/2016, that is, clearly later than 1 month and 10 days mentioned in the Review.

It is noteworthy that the court refers to the Review, but does not adhere to the interpretation given in it about the time frame for the entry into force of a default judgment (appeal ruling of the Novosibirsk Regional Court dated September 13, 2016 in case No. 33-9713/2016).

Ignoring these clarifications is also explained by the fact that it is impossible to appeal a ruling to cancel a decision in absentia: its appeal is not provided for by law, and it does not exclude further progress of the case (Part 1 of Article 331 of the Code of Civil Procedure). For the same reason, the ruling refusing to satisfy the application to cancel the default decision cannot be appealed.

Thus, the court that made a decision in absentia can cancel it without any consequences even if the conditions for cancellation listed in Art. 242 of the Code of Civil Procedure, for example, when the defendant does not report valid reasons for his absence.

An attempt to eliminate uncertainty regarding the moment at which a decision in absentia enters into legal force was made in the bill proposed by Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 3, 2017 No. 30 (the so-called “procedural revolution”). In it, the rules for serving a copy of the default judgment on the defendant were linked to the new notification rules, similar to the rules of the APC. They should have been contained in Art. 167.1 of the Code of Civil Procedure, which was not included in the final text of Law No. 451-FZ.

In addition to the mentioned review, paragraph 68 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of June 23, 2015 No. 25 can come to the rescue, which makes it possible to apply the rules of Part 1 of Art. 165.1 Civil Code of the Russian Federation. It seems that with this approach, the moment of delivery of a copy of the decision in absentia to the defendant coincides with the day of expiration of the storage period for the postal item (the day of return dispatch); according to another opinion, this is the day when the letter was returned to the court.

3. Issuance of a default judgment does not reduce the overall burden on the courts.

According to judicial statistics [3], in 2021, 653,653 decisions were made in absentia, that is, almost 20% of all decisions to satisfy the claim, not counting court orders and decisions made in summary proceedings (I assume that in the event of a denial of the claim, the absentee no decisions were made), but 35,470 were overturned by the court of first instance, that is, 5.4%.

As you can see, absentee proceedings are in great demand among courts (remember that it is the court that initiates absentee proceedings).

There are no separate statistics on the number of decisions made in absentia in the absence of the defendant (Part 4 of Article 167 of the Code of Civil Procedure).

The possibility of overturning a decision by the court itself that made it clearly finds support in the judicial community.

Thus, proposed in the bill introduced by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 3, 2017 No. 30, a new article 294.1 CAS “Cancellation of a court decision in an administrative case considered in summary (written) proceedings by the court that made the decision” was included in the law unchanged form.

Supporters of such decisions talk about reducing the burden on the court. As an argument, they usually cite a small percentage of cancellations of absentee decisions.

However, it is easy to notice that the rules on absentee proceedings in cases where the defendant does not agree with the decision and intends to appeal it, including in an appeal, lead to at least one more court hearing - a meeting at which the application to cancel the absentee decision is considered .

Changes to the chapter on proceedings in absentia, proposed by Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 3, 2017 No. 30 and nevertheless included in the final text of Federal Law No. 451-FZ dated November 28, 2018, certainly do not help reduce the workload on the court: from October 1, 2019 the defendant can file an appeal only after attempting to cancel the default judgment in the court of first instance, even if, for example, he does not see the grounds for such a cancellation provided for in Art. 242 of the Code of Civil Procedure, but sees only grounds for an appeal (for example, if the court only incorrectly applied the rules of substantive law, and the defendant does not have evidence of valid reasons for failure to appear).

The Charter of Civil Procedure of 1864 did not know such a rule: according to Art. 734 of the Charter, the defendant’s right to appeal was not conditioned by the need for a “revocation” (an application to cancel a default judgment in modern terminology).

The procedure for proceedings in absentia and the new rules for appealing a decision in absentia do not reduce the burden on the appellate court: the defendant who files an application to cancel the decision in absentia, in case of refusal, will most likely appeal, as well as the plaintiff in the event of cancellation of the decision in absentia by the court first instance and subsequently making a decision to reject the claim (however, to study this issue, data on the appeal is needed, which is not reflected in the statistics).

Thus, maintaining the rules on absentee judgment does not fit into the principles of reforming the civil process proposed by the Resolution of the Plenum of the Supreme Court dated October 3, 2017 No. 30 (the main one is procedural economy).

The APC, which is considered a more modern code, does not provide for the possibility of overturning a decision by the court of first instance itself (except for writ proceedings, which appeared there relatively recently).

It seems that the exclusion of the chapter on absentee proceedings from the Code of Civil Procedure will give more advantages than disadvantages. The latter includes fewer opportunities for a defendant who was unaware of the process to reverse an illegal decision, for example, on a non-existent debt. However, there are obviously fewer such cases than abuses of this institution by defendants.

Otherwise, it is necessary to significantly revise the rules on proceedings in absentia, bringing them at least closer to the Charter of Civil Proceedings of 1864: first of all, to make the procedure for proceedings in absentia the only possible one in the event of the failure of the defendant to appear, who did not send a response to the claim and did not ask to consider the case in its absence; set deadlines for canceling a default judgment.

______

[1] Judicial statutes of November 20, 1864, with a statement of the reasoning on which they are based. Part one // https://civil.consultant.ru/reprint/books/115/

[2] N.V. Kozlova. Problems of absentee proceedings in the civil process of the Russian Federation//Official website of the Supreme Court of the Republic of Bashkortostan https://vs.bkr.sudrf.ru/modules.php?name=press_dep&op=3&did=1, publication date 10.22.2008, access date 13.01. 2020.

[3] https://www.cdep.ru/index.php?id=79&item=4891

Summoning the defendant to court

If the plaintiff and defendant have not resolved their problems pre-trial and have not reached a settlement agreement, then both parties are invited to court as part of the lawsuit. But here the plaintiff is an interested party and, accordingly, is not inclined to delay the consideration of the material.

The defendant is very often not even familiar with the claims. In this regard, he must be properly notified of the need to appear at the meeting.

The ideal option is when, after filing a claim, the plaintiff notifies the defendant in writing and sends him information through the post office. At the same time, copies of all documents necessary for review are transferred. To do this, it is advisable to know the defendant’s residential address.

Otherwise, even if the court fully satisfies the claim in a situation where the defendant did not appear, he will be able to appeal the decision in the future. If it is proven that he was not properly notified of the meeting, this may lead to the cancellation of the decision.

A common method of notifying a defendant is a subpoena, which is served against signature. If the address is indicated incorrectly, the person who delivered the summons makes a corresponding note.

In addition, court notices and notifications are provided.

Formally, a person is considered notified if the case file contains a mark on the time and method of notification. The court is not required to prove that the defendant was not properly notified.

There is a form of writ proceedings, when the judge issues an order alone. In legal proceedings, the process can also take place without the participation of one of the parties.

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.

If the defendant fails to appear in court

A person who fails to appear in court must take action and provide notice of the reason for the failure to appear. What will the judge do if the defendant does not appear in court? Regardless of the method of notification, as a rule, the meeting is postponed.

Reasons for failure to appear at a meeting by any of the parties to the proceeding are considered valid if they relate to the following situations:

It also happens when there are several defendants, and the process can be deliberately delayed by them, due to the regular failure of one of them to appear.

If the defendant did not appear on the summons and did not notify the reason for his absence, and the judge does not have information about the reason for his absence, then the judicial consideration of the case materials is postponed. Also, the process will be postponed if the reason for failure to appear is considered valid.

The judge has the right to begin consideration of the case and make a decision on it from the first meeting in the absence of the defendant, or to postpone the trial until measures are taken to properly inform the party.

In the event of a claim to declare a citizen incompetent and failure to appear in court for unexcusable reasons, the decision will be made in absentia.

If a summoned witness, specialist, expert or translator does not appear at the meeting for unexcusable reasons, then a fine of up to 1000 rubles may be imposed on him. In cases where a witness repeatedly fails to appear without good reason, he may be subject to forced arrest.

Release from liability

Persons may be released from liability for failure to appear at a court hearing in two cases: with inadequate notification and if there are good reasons for failure to appear.

To find out how a person was notified of the process, the judge checks the case materials and examines the evidence of notification of the parties. Such evidence includes:

• notification receipts,
• information about sending a registered letter,
• notification of delivery,
• telephone messages and telegrams,
• report on sending a message by fax,
• other recorded information proving delivery of the judicial notice.

If such information is absent from the case materials, the person who failed to appear cannot be held liable for failure to appear at the trial. The court should decide whether to postpone the court hearing, since consideration of the case in the absence of the person who failed to appear may lead to a violation of his rights.

In May 2021, the Supreme Court reminded the courts that considering a case without proper notification of the parties is a gross violation of procedural law. The RF Supreme Court overturned the ruling of the court, which considered the case in the absence of the plaintiff, despite the request of his representative to postpone the hearing.

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Valid reasons for failure to appear in court

The legislator does not regulate what reasons for failure to appear are valid. Therefore, respect is determined by the courts independently, on the basis of evaluative concepts.

Punishment for failure to appear in court when summoned

To be present at a court hearing is the right of the defendant, and not his obligation, therefore, fines, forced transportation and other penalties are not provided for by civil law.

In case of failure to appear, the court has the right to make a decision in absentia. If the defendant does not agree with it, he will have to challenge or appeal the decision on appeal within the period prescribed by law. As a rule, this is one month.

Thus, a defendant who fails to appear in court punishes himself by not exercising his civil rights:

• did not familiarize himself with the statement of claim and the circumstances on which it is based;
• did not have the opportunity to express objections to the claims presented;
• give comprehensive explanations and testimony on the merits of the case;
• provide the necessary evidence.

If the defendant fails to appear, the plaintiff may request consideration of the claim without his presence. But at the same time, the consideration may be postponed repeatedly for various reasons, including due to failure to appear.

In criminal proceedings, a civil claim may also be brought against the accused.

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.

Criminal offense and civil action

If the accused of a criminal offense caused harm to the victim, which is compensated within the framework of civil law relations, for example, compensation for the value of property that the accused disposed of after the theft (robbery, robbery, fraud) at his own discretion, then he also bears civil liability.

During the trial, the investigator, inquiry officer or judge makes a decision recognizing the accused as a civil defendant. In this case, the following coercive measures may be applied to the civil participant in the process:

• obligation to appear;
• drive unit;
• monetary recovery.

However, as a defendant in a civil lawsuit, a person has the right not to testify against himself or his loved ones. A civil defendant may be subject to such enforcement measures if he caused harm to the plaintiff in the course of a criminal offense.

If you become a participant in litigation and doubt your ability to competently represent your interests in court, it is better to seek professional legal assistance.

What to do if the witness does not come?

Not only the plaintiff may not come to the hearing for various reasons. During the trial, the judge often examines witnesses who can provide important information about a particular case. Eyewitnesses, other victims or experts may be involved as interrogators.

If a witness does not come to the hearing, this leads to a delay in the process. At the same time, the degree of importance of his testimony is assessed. If a witness is considered important, then he will not be able to avoid testifying, since in his absence the judge simply will not be able to consider the case in detail. If a citizen does not have compelling reasons for failure to appear, he will have to pay an additional large fine for obstructing the investigation.

Drawing up and submitting a petition to the court

Drawing up a petition in which citizens or representatives of legal entities ask to consider the case without their participation is not very difficult. However, it requires certain details that must be specified:

1. the court in which your application is addressed
2. personal data and procedural status
3. name of the application - Petition for consideration of the case in the absence
4. details of the civil case for which the petition is being filed
5. request to consider the case without your participation
6. date and signature of the applicant

Additionally, in the petition you can request that a copy of the court order be sent by mail to your home address.

A request to consider a case in absence can be filed as a separate statement, but it is also permissible to include it in the text of other petitions and statements. addressed to the court. Plaintiff. For example. may declare the consideration of the case without his participation already in the statement of claim. and the defendant in the submitted objections.

The petition can be submitted to the court in person (to the judge or through the office) or sent to the court by mail. Your representative can also deliver such a statement. There are no special requirements for this action.

A request to consider a case in the absence of its participants is resolved by the court at a court hearing, the court issues a ruling indicating the possibility of considering the case in the absence of persons participating in the case.