Consequences of a plaintiff’s failure to appear in court in a civil case: with and without a good reason

Home / Reviews / Failure to appear in court: causes and consequences.

There is an expression, “getting into the millstones.” This is what they say when circumstances drag you in against your will, when you can’t expect anything pleasant from what’s happening. The millstones of legal proceedings are also marked by this, and a subpoena to court often does not cause a positive outcome.

Let us make a reservation that this does not apply, of course, to situations where you are the plaintiff, and you yourself are ready to ask the court not to forget to call you to the trial, with an ardent desire to personally participate and not miss anything. In other cases...

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:

1. If there is no notice of service of the summons indicating when the hearing will take place, the hearing will be adjourned.
2. 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.

1. 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.
2. 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.
3. 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.

criminal process

In criminal proceedings, the participation of the defendant, his defense attorney and the prosecutor (prosecutor or private prosecutor) is mandatory:

1. If the participation of a defense lawyer is not possible, either the lawyer is replaced or the hearing is postponed.
2. If the prosecutor fails to appear in court, it is possible to replace the state prosecutor, but until the circumstances of the failure to appear are clarified, the court hearing is usually postponed.
3. Failure of a private prosecutor (victim in private prosecution cases) to appear in court entails, firstly, clarification of the reasons for the absence. If the reasons are unjustified or the court recognizes them as such, then the case (prosecution) is terminated for lack of corpus delicti. If the reasons are valid, then the court itself decides whether to postpone the hearing or consider the case in the absence of the victim. There are situations when the court decides that the participation of the victim in the process is mandatory, and if the victim does not appear, he can be brought in.
4. If the defendant fails to appear, the consideration of the case is postponed, and an arrest may be applied against him and (or) the preventive measures may be changed. Consideration of cases of crimes of minor or medium gravity is possible in the absence of the defendant, if he has asked the court about this in advance. For other categories of cases, it is also possible to consider the case without the defendant, but only if he left Russia and (or) is hiding - in these cases, as a rule, the defendant is arrested in absentia and put on the wanted list, if this has not been done earlier.

The consequences of failure of a victim or witness to appear in court in a criminal case depend on the importance of their testimony, the position of the court, the prosecutor and the defense. Valid options include:

• adjournment of the proceedings until the appearance of the victim or witness is ensured;
• bringing a victim or witness;
• continuation of the proceedings without hearing and taking into account the testimony of the victim or witness;
• continuation of the proceedings with the announcement of the testimony of a witness or victim given during the preliminary investigation;
• the last resort is criminal liability for the refusal of a witness or victim to testify (Article 308 of the Criminal Code of the Russian Federation).

The court has the right not to consider a civil claim if the plaintiff does not appear in court - he will have to apply through civil law. However, the claim can still be considered if the plaintiff asked in advance to do so in his absence, the claim is supported by the prosecutor's office, or the defendant admits the claim in full.

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.

Application to call a witness

This is an application that must include the following information:

• Full name of the person who must testify in court;
• The residential address at which the person is registered;
• Facts of circumstances that only the witness knows.

Attention!
This statement does not have to indicate just one thing. For example, if the petition contains information only about a witness, and the reason why he must be present in court is not specified, then the petition will be invalid. Or, here’s another thing, if only initials are indicated in the petition, and the address is omitted, or vice versa, then such a statement will also be considered invalid, since the information about the person who must appear at this process is not entered correctly.

It should be noted that a proclamation to summon a witness to a trial can be made both in writing and orally.

In the second, this statement is announced if the calling of a witness is not planned in advance.

Information about this information must be indicated not only in written, but also in oral form of the application.

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.

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.

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.

Who can be a witness and who can't?

Such a person can be any person who knows about the facts of the event that interests the court.
The witness must tell how he knows this information, then his testimony will be accepted as evidence. He must behave calmly and balancedly in court and express himself in a form that is accessible and understandable to all participants in the process. There are restrictions in relation to persons who do not have the right to testify in court.

Such persons are:

— Representatives who know the information obtained through the exercise of these powers;

— The judges who discussed the issue in this case in the deliberation room.

There are also persons who may refuse to testify. These include:

• Deputies (persons with immunity);
• Relatives of those persons who have the most direct relation to the case under consideration.

Why is it important to ensure the attendance of all participants in the trial?

In order for the trial of any case - criminal, civil or administrative - to be as complete as possible, the judge must interview all persons who can provide important information on the merits of the case. The plaintiff and defendant, suspect and victim, as well as witnesses must appear in court and answer the judge’s questions in detail. The more diverse data there is on the case, the more objective the decision will be. And because it must be fair, it is imperative that all persons to whom court notices have been served be present in court.

What is the danger of a witness failing to appear in court in a criminal case?

Most people understand that victims, defendants, and witnesses must be present at trial. None of them has the right not to appear at the meeting, the time of which is set in advance. The witness should also be in the courtroom, because he plays an important role in the case and can even direct the investigation in a different direction. Let's consider what can happen if a person does not appear at the trial.

When a person's testimony is significant, the case may be postponed to another date. In other cases, they have the right to continue the trial even if the summoned witness is absent. As a rule, testimony is not made public in his absence. But if the citizen has failed to appear many times, the prosecutor will have the opportunity to ask for previous evidence to be read out. In this case, there will be a reference to extraordinary circumstances. However, the final decision on this point is made by the judge.

Important! The defense may object and disagree with the prosecutor's opinion. Because disclosing testimony without the person himself is a gross violation

Law enforcement agencies may believe that the failure to appear occurred because the person has something to hide. This means that representatives of the law will be more interested in the citizen. That is why it is better not to hide from court proceedings and remember the duties and rights of a witness. Then the participant in the case will not have any problems, and he will only be required to give testimony.

https://youtube.com/watch?v=B8Nal-OZIjI%3Ffeature%3Doembed

The result of the appearance of a judicial representative at a court hearing

The plaintiff's representative, a lawyer, stated during the meeting that in order to postpone the meeting, evidence was needed to justify the defendant's failure to appear. It was also stated that the defendant organization’s staff includes a director, deputy director, and the interests of the defendant are represented by a lawyer under the contract.

The court listened to the lawyer, took into account the circumstances of the case and the opinions of the parties. The court took into account that consideration of the case on the merits is possible based on the evidence presented in the case, that the defendant did not object to the completion of the preliminary hearing and the transition to consideration of the merits of the stated claims, that the defendant’s appearance was not recognized as mandatory. On these grounds, the court rejected the request to postpone the trial.

The result of the lawyer’s appearance at the court hearing was that the court completed the preliminary proceedings and immediately proceeded to consider the case on the merits of the stated claims, without postponing the court hearing to another day.

Why do they win in court?

Anyone who has ever encountered the judicial system knows that participation in a court hearing is mandatory. By participating in the trial personally, or through a professional representative, the party to the case will be able to defend their rights, avoid negative consequences, or minimize the consequences.

The court evaluates the evidence according to its internal conviction, based on a comprehensive, complete, objective and direct examination of the evidence available in the case (Article 67 of the Civil Procedure Code of the Russian Federation, Article 71 of the Arbitration Procedure Code of the Russian Federation).

Article 19.3 of the Administrative Code: should I go to court?

On the evening of December 30, the day of the verdict in the Yves Rocher Case, Moscow police detained about 250 people in the vicinity of Manezhnaya Square. The detainees were taken to 14 police stations, most of them were soon released without drawing up reports. About 70 people were kept under arrest until the morning on charges of disobeying lawful orders of police officers.

The relevant article, 19.3 of the Code of Administrative Offenses, provides for penalties ranging from a fine to arrest and, therefore, allows police officers to extend the period of detention from the standard three hours to two days. The next day, December 31, the Tverskoy District Court of Moscow, which has jurisdiction over the detentions on Manezhnaya Square, considered only two cases. Mikhail Kriger and Roman Nemuchinsky, who, according to others who spent the night at the Meshchansky police station, did not stand out in any way, were sentenced to 15 days of arrest and celebrated the New Year in special detention center No. 2 in Khoroshevo-Mnevniki.

For the remaining detainees who were released pending trial, having asked them to sign an “undertaking to appear” on January 12-19, we have prepared answers to several pressing questions.

If, after reading this material, you decide to go to court and need the help of a lawyer, leave a request in the “Help yourself” section on our website.

What punishment do I face under Article 19.3 of the Code of Administrative Offences?

Until recently, Article 19.3 of the Code of Administrative Offenses (disobedience to a lawful order of a police officer) provided for punishment in the form of a fine of five hundred to one thousand rubles or arrest for up to fifteen days. In the summer of 2014, legislators added a new, sixth part to it, introducing punishment for “repeated” disobedience to a police officer if it occurred at a public rally. Such an offense provides for much more severe sanctions: a fine of five thousand rubles or arrest for up to thirty days. It is still unclear how the new law will work and how the courts will circumvent the conflicts it creates.

Tatyana Glushkova , senior lawyer of the autonomous non-profit organization “Lawyers for Constitutional Rights and Freedoms” (YURICS):

Repeated commission of an offense should be understood as the commission of an offense within a year after the execution of the punishment imposed under the previous decision (that is, from the moment of payment of the fine or the end of the arrest period). If the police indicated in the protocol that a person is charged with the first part of Article 19.3, then the court does not have the right to reclassify his actions and impute part six, if the fact that the person was prosecuted under this article earlier became clear only in court. On the contrary, the court has the right to reclassify part six to part one. That is, it can improve, but not worsen, the position of the person being held accountable.

As you can see, Article 19.3 gives the courts a very wide discretion when imposing punishment. A person can be fined 500 rubles or imprisoned for 15 days. Based on my practice, I can say that arrest under this article, as a rule, is an exceptional measure that is applied to “especially distinguished” activists. Everyone else is given fines, the amounts of which are small. As an additional indicator, we can highlight the following: if a person was released from the police department before trial, then arrests are almost never used. As a rule, they are appointed only in cases where a person is brought to court directly from the police department the next day after arrest.

What is an obligation to appear at the police station?

Alexey Gorinov , lawyer of the Solidarity movement:

You should never sign such things. It is not clear why a citizen should appear at the police station. For what? For what purpose and in what status should he appear? If he is detained, then a report on the arrest must be drawn up; if he is charged with some kind of offense, then there must be a report. And that is all. Why else show up? For what reason, it is unclear.

Maxim Krupsky , lawyer at YURICS:

I have never encountered this in my practice. If there is an official order for what reason a person should have been summoned to the police station, in connection with which, he is given some kind of summons, signed by both the person who issues this summons and the person himself, indicating a clear date, a clear time when the person must arrive - in this case, the person probably has an obligation to appear at the police station. But if this document is drawn up in such a way, as I usually saw, as an obligation to appear in court, when we are talking about some piece of paper on which two words are written that you undertake to appear in court on such and such a date, it is unknown in for some time, no one knows why, then this, naturally, does not carry any legal consequences. Each call to the same police station must have a clear legal basis.

Tatyana Glushkova:

The obligation to appear at the police department in connection with a case of an administrative offense is a document that is not provided for by any current legal act. I don’t know who came up with it, but it was clearly done by analogy with the Code of Criminal Procedure, which provides for the opportunity to oblige a person to appear before an investigator or interrogator. Regardless of how one defines the legal nature of this document, there is no liability for failure to appear under such an “obligation”, and this, it seems to me, is the most important aspect in this case.

Explanation of the Public Verdict Foundation

What is an obligation to appear in court? What kind of subpoena is official?

Alexey Gorinov:

The obligation to appear does not entail any procedural consequences. Only the court itself can compel you to appear in court. Why is he being signed? This kind of protects both the police and the person who is being held at the police department from not being held until trial. The police also have limited resources to support citizens. If we are talking about Article 20.2, then I usually advise not to sign the obligation to appear, since it has no meaning, and in general it is not even provided for by the law. But when it comes to restricting freedom, a person is charged with part one of Article 19.3, then here it is at the discretion of the detainee himself: if he wants to follow the principle, he may not sign, but then there is no guarantee that he will be released from the police department before the trial. Therefore, in this case, you can sign.

Maxim Krupsky:

The obligation to appear in court is a document that has no legal force for the court or for the detainee. It does not entail any legal consequences, moreover, if there is no evidence in the case file confirming the fact that the court summoned the person with an official summons - this could be a receipt for sending a postal item or a telephone message, whatever - the person has the right to appeal the decision made following a hearing in his absence as illegal and unfounded, since the person will in fact be denied the right of access to justice and the right to access to participate in the court hearing and protect his rights.

Tatyana Glushkova:

In accordance with Article 25.15 of the Code of Administrative Offences, you can be summoned to court “by registered mail with return receipt requested, a summons with return receipt requested, by telephone message or telegram, by facsimile or using other means of communication and delivery that ensure that the notice or summons is recorded and served to the addressee." Thus, on the one hand, the “obligation to appear” still remains a document that is not provided for by any legal act, and on the other, the Code of Administrative Offenses does not contain formal requirements for the document by which a person must be summoned to court. The only important thing is that the fact of notification is documented. Until recently, courts did not consider “undertaking to appear” to be a proper form of notice. However, after the mass arrests in February-March 2014, the opposite practice began to emerge. It cannot be ruled out that the same tactics will be applied to cases in connection with the arrests that occurred on the 30th.

Can I be tried in absentia?

Maxim Krupsky:

It depends on what article and depending on whether the court has made any attempt to summon the person to court. If there is evidence that a subpoena was sent to the person, that he was officially summoned to court, that all the necessary conditions were created for the person to exercise his right to participate in the court hearing, then in this case - yes, if he fails to appear several times , if his bringing to the court hearing has not been formalized, then, in principle, they can consider him without him. If we are talking about Article 19.3, if we are talking about an arrest, then the absence of a person does not allow the court to order the arrest of this person in this situation.

Tatyana Glushkova:

Formally, no. In accordance with the Code of Administrative Offenses, when considering a case of an administrative offense that may lead to administrative arrest, the presence of the person held accountable is mandatory. Accordingly, the judge cannot consider the case without your presence. Instead, if you fail to appear without a valid reason, he is obliged to make a decision to bring you to court.

In practice, this never happens, and cases under 19.3 are very often considered in the absence of the persons involved.

Does the punishment depend on whether I came to court?

Maxim Krupsky:

According to the law, there is no connection between the imposition of a punishment, the amount of this punishment and the person’s appearance in court, that is, the punishment is imposed only for the act that the person committed at the time the offense was discovered and recorded. Everything that concerns whether a person appeared in court, did not appear, in what form he spoke in court, his attitude towards the judge or anyone - everything that does not relate to the offense cannot be the basis for choosing the amount of punishment and the form of punishment.

Tatyana Glushkova:

Formally and legally, no, it doesn’t depend. In practice, in general, it also does not depend, since if you are not tried immediately after arrest, then arrest, as a rule, is not ordered (“as a rule” in this case means that I am not aware of cases of arrest being ordered in such situations, but I do not I can guarantee one hundred percent that not a single such case has ever happened). Therefore, most likely, your appearance or failure to appear in court will not change anything.

So should I go to court or not?

Alexey Gorinov:

If a case has been filed and the court has accepted it for consideration and sets a date for consideration, then, of course, you have to go. But what about it? You must state your position in writing, calmly think through everything in writing, write it down, then by submitting a petition to the judge, attach your written explanations to the case materials.

Maxim Krupsky:

There can be two approaches here. On the one hand, I know the position of lawyers who believe that there is no point in coming to court, since the obligation to appear, as I have already said, is not an official summons. And a person who fails to appear in court in this situation cannot be sentenced to arrest, and most likely the courts will simply issue fines. But, again, this is not known for sure, because in our judicial system everything is possible, and in our country it is quite likely that a person can be sentenced to arrest. Anything can happen here. I do not presume to judge how the courts will act. Formally, they do not have the right to impose a sentence of arrest in the absence of a person, so from this point of view it would be advisable not to appear in court. If there is some ironclad evidence that a person stood next to the place where the action was taking place and did not participate in it in any way, there is a video recording, there is testimony from witnesses, the person himself wants to come to court and defend his position there in some way and participate directly at the court hearing in order to make some motions, for example, or to somehow actively participate in the process, then, naturally, it is worth appearing. That is, here the choice is up to the person himself, the citizen himself, the detainee himself. The position of the lawyers, which I first voiced, is, in principle, justified, but if the speech concerned me as a detainee, then I would appear in court in order to somehow justify and defend my position.

How to prepare for court?

If you decide to take the opportunity to get acquainted with the Russian judicial system from personal experience, carefully study the instructions for defending yourself in court. There you will also find a request form for free legal assistance in court. If you need one, we advise you to fill out and submit your request as soon as possible.

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.”

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.