Reasons for failure to appear in court
In cases where the summoned person does not appear at the trial, the court ascertains the reasons for the failure to appear. Such reasons can be respectful and disrespectful - they have different consequences.
At the beginning of the trial, the secretary reports to the court who appeared at the trial, how the participants in the meeting were notified and for what reasons they did not appear. After which the court determines whether these reasons are valid. Based on this, it is determined whether the person needs to be held accountable for failure to appear or whether he can be notified again.
Additional features and nuances
In criminal cases, participants in the proceedings should be informed about the meeting at least 5 days before the date of its holding. For other matters, a person may be notified by telephone a day before the meeting.
If the defendant deliberately delays the trial by not attending the hearing, then the law allows the case to be considered in his absence. In this case, the reason for the absence is unimportant.
Signs of intentionally delaying the consideration of a case include the following:
- evading receipt of subpoenas;
- providing false information about the reasons for failure to appear in the courtroom in the past;
- concealment or destruction of existing evidence;
- influencing witnesses through threats and deception.
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.
Good reasons are the main factor in the absence of violation
Negative consequences, in particular fines and imprisonment, are applied only in cases where the failure to appear in court was not due to valid reasons . In this case, two situations are possible: the absent person did not justify his absence in any way, or the court did not recognize the specified reasons as valid.
As a rule, valid reasons for failure to appear in court are:
- illness confirmed by medical documents;
- receiving a notice from the court (summons) too late, for example, directly on the day of the hearing;
- personal difficult circumstances, such as the death of a close relative or his illness, which required presence;
- a business trip due to which it was objectively impossible to come to the trial;
- Emergency situations, accidents, etc. incidents in which it was necessary to take part in eliminating the consequences or due to which it was not possible to come to court;
- participation in another legal process;
- being in custody, including administrative detention.
Having a good reason is not a sufficient circumstance in itself . Documentary evidence is required. And in any case, the court will make an assessment of the circumstances, their respectful nature and the evidence presented.
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.
I received a subpoena. What to do?
You have been served with a subpoena.
Firstly, without panic, nothing completely terrible or irreparable happened. You - 100% - will need a lawyer or other lawyer, but this is not a reason to panic.
Secondly, everything is serious. And we must take what is happening seriously. Your life will no longer be the same, because you are a participant in legal proceedings, and you have no options (in any case, it’s easy to lose this status using “home remedies”). You must participate in the case (you don’t have to go in person, this can be done lawyer, but participation is a must!).
Doctors, if someone “feels bad,” as a rule, give some simple, basic advice (how to lay the victim down, give him something to drink, etc.), carry out a simple diagnosis (my favorite advice is to ask the stroke patient to smile It sounds funny, but this is the right action!), and then - they always say: call an ambulance or, in any case, see a doctor.
I won’t be original and tell you a little about “first aid” and “diagnosis”, but the advice - to contact a lawyer in any case if you are called by the court - will always be both first and foremost. “Self-medication” in this case may not be as life-threatening as in medicine, but it can still greatly (and sometimes irreparably) ruin your life.
So, you have received a summons.
Subpoenas, as well as any mailings, must be received by mail. Both in the sense that they won’t bring it home to you, and in the sense that you still have to receive it.
According to existing rules, “judicial” items are stored at the post office only for 7 days from the date of receipt. Not from the day you received notification of the letter, not from the day it was dropped into your mailbox, but precisely from the day it arrived at the post office.
Therefore, rule one
: on the same day (please, this is important!),
on the same day as you received the notice - immediately by mail, receive a summons or other mail from the court.
Otherwise, the letter will be sent back, and the post office will not even be able to tell who called you, not to mention why, where, and when. Therefore, as soon as you have a “judicial” notice in your mailbox, run to the post office. Don't forget your passport.
At the post office you will be given an envelope, which in 90% of cases will contain a subpoena. There may be something else, but this is what is important to us now. (Save everything that will be in the envelope, as well as the envelope itself!)
Currently, two formats of summons are used in courts: form No. 30 - filled out by hand, and form No. 30-SDP - for printing summonses from an automatic system. The first gradually gives way to the second.
The subpoena states a lot of things you will need to talk to a lawyer. And there's a lot you need right now. So, let's look at the agenda.
First of all, we look at where exactly you are being invited. The name of the court in red in the figure.
where the case is being heard. This may not necessarily be a district or city court, it may also be a judicial district. Typically, the name of the court or court district is stamped (or printed) and can be read. Court districts often have numbers rather than names. For example, it could be something like “Judicial precinct No. 297 of the Sokolinaya Gora district of Moscow.” The words “judicial area” are often abbreviated to “C/U”. The names of courts, as a rule, are written in full, but the combinations “district court” or “city court” are abbreviated. It might be, for example, “Istrinsky district police station,” but, in any case, you can find the name of the court on the summons. This is key information. Knowing where the case for which you are being called is being heard, you can find the rest of the information. But without knowing in which court or judicial district the case is being heard, finding it is a task for Hercules (if solvable at all).
Then we look at the essence of the case, and its number, as well as the plaintiff and defendant
(highlighted
in green ).
In handwritten summonses, these fields are often not filled in, but only the case number is written. But if you were lucky and were able to read the names, a lot becomes clear. Of course, we are not being sued unexpectedly or suddenly. If you owe rent, don’t be surprised that the management company will take you to court. Or, for example, the name of the ex-husband as the plaintiff gives you reason to assume (unless, of course, the essence of the claim is directly described in the summons) that the case is about the division of property, or a dispute about children. Additional information is provided (highlighted in yellow ) by your procedural position
on business. Most likely, you will be summoned to court either as a defendant or as a third party. It is very rare that a house summons will be sent to a witness. Defendant - this means that the claim is directed against you, that is, they demand something from you. Third party - there may be completely different situations, but, in general, this means that your rights and obligations are also affected by this claim, however, you did not violate the rights of the plaintiff.
Please pay attention to the date and time
the court hearing to which you are summoned (highlighted
in blue ).
Mark this time on your calendar immediately. It may happen that after consulting with a lawyer, you decide that you personally do not need to go to this meeting, and that your legal representative will go instead of you, but you cannot simply ignore this event. If it so happens that the summons arrived after the specified time had passed, do not be alarmed in advance; most likely, your case has been postponed. In any case, if this is the first subpoena that the court sent you. Contact a lawyer - he will tell you what to do next.
If the meeting is today or tomorrow, and you just can’t go to it, it makes sense to still go to a lawyer so that he can help you draw up an application to postpone this meeting, which you obviously don’t have time for.
As a last resort, open the Internet, look for the court’s phone number - and ask how you can inform the judge that you just received a summons and cannot appear. Please note the courtroom number
(highlighted
in purple ), this is the key to finding both the right phone number (sometimes the phone numbers of assistant judges are posted) and to determining which district or city court judge is hearing your case.
With the court districts the matter is simpler, there is always only one judge, and no matter what phone number you call (and this is usually not an easy task), your information will reach the judge. Also on the court’s website, using even incomplete information from the summons (for example, case number), you can find out in more detail about the upcoming case. For example, the name of the judge will become clear, as well as whether this is the first hearing in the case, or whether it has already been held before this moment. Sometimes there may not be any information on the case in the “electronic office”. This is not a reason to tense up, much less relax. Most likely, this information was simply not included there for some reason, but there is a matter, and the next meeting for which you received an agenda will happen.
So, after reading the summons and taking immediate self-help measures, contact a lawyer.
By making an appointment, you can already tell us when your case is being heard and what its essence is. You will be very lucky if you can get to a good lawyer simply by walking into the office from the street; most likely the good lawyer will still be busy in the coming days; For example, I have appointments two weeks in advance, but this is rare, but the average option is that the day after tomorrow you can already find time, although it’s not always possible. Therefore, while not losing sight of your court date, be prepared that the meeting may not take place immediately.
I already wrote about how to look for a lawyer, but I will repeat the main point: the main thing is trust. If you don’t trust a person, he is not your lawyer.
So, when you make an appointment, you can already tell which court and when your case is. And the lawyer, even with a pencil, will already be able to mark this time in his calendar.
To the appointment, take with you the agenda, envelope and everything that was in the envelope.
Well, what happens next is a completely different story.
Anton Zharov, lawyer, head of the “Team of Lawyer Zharov”
11.06.2017
Consideration of the case in case of failure of the plaintiff to appear
The court may resolve the case in the absence of the plaintiff if he asked to resolve the claim in his absence. Such situations arise when the plaintiff has a representative whom he completely trusts to conduct the case, or when the plaintiff lives in another city and cannot appear at the court hearing. An application to consider the case in the absence of the plaintiff is submitted to the court before the trial.
If the plaintiff does not appear at the trial 2 times
If the plaintiff did not ask to consider the claim without him, did not come to court twice, and the defendant does not ask to consider the case on the merits, then the judge will leave such a claim without consideration, guided by Art. 222 Code of Civil Procedure of the Russian Federation.
A ruling that leaves a claim without consideration cannot be appealed to a higher court. Such a determination can be canceled by filing an application for its cancellation with the same court. In this case, it is necessary to provide the court with evidence that confirms the valid reasons for failure to appear.
Arbitration process (Arbitration Procedure Code of the Russian Federation)
The consequences of failure to appear in an arbitration court are somewhat different than in civil proceedings:
- The parties have the right to decide for themselves whether they will participate in the case or not. If participation in the process is not planned, it is necessary to submit a corresponding application or notify the court in another way. In this case, the reasons for absence do not need to be specified - they do not play any role.
- If the defendant or plaintiff does not appear in court, but was duly notified of the time and place of the hearing, then the court has the right to continue the proceedings in the absence of a party to the case. If both parties fail to appear, the trial may take place without them at the discretion of the court.
- The failure of representatives of the parties, third parties and their representatives, who were duly notified of the court hearing, to appear in court does not prevent the consideration of the case.
- Failure of a witness, translator or expert who has been properly notified of the hearing to appear in court entails the adjournment of the trial, except in cases where the parties ask the court to continue the consideration of the case in the absence of the person who failed to appear.
- If, according to a court decision, a participant in the process (plaintiff, defendant, third party, their representatives) was obliged to appear at the hearing, but did not appear, penalties may be applied to him (up to 2,500 rubles for citizens, up to 5,000 rubles for officials, up to 100 thousand rubles – legal entity).
- If a witness, expert or translator does not appear at the hearing, justifying his absence with valid reasons, and the court does not recognize these reasons as valid, then penalties may also be applied - both to the parties to the proceeding and their representatives.
Consequences of missing a court hearing
If someone interested in the outcome of the case misses the court hearing for an unexcused reason, the judge will decide to postpone the trial. But in case of repeated failure to appear, the court has the right to consider the case in the absence of this person. This means that the chance to defend one’s position and protect one’s rights and interests will disappear.
Consequences of missing a process in administrative proceedings
The consequences of failure to appear for persons participating in the case and their representatives are described in Article 150 of the CAS RF. If the defendant, an individual, repeatedly fails to appear at the trial, the judge can issue a summons against him and postpone the hearing. If the representative of the participant in the case does not appear at the trial again, then a fine will be imposed on him.
Article 122 of the Code of Arbitration Procedures of the Russian Federation specifies the upper limits for the amount of fines imposed on persons participating in the case. Fines for failure to appear in the process are quite high and reach 100 thousand rubles. For citizens, the maximum fine is 5 thousand rubles. The issue of imposing a court fine is resolved in a separate court hearing, as a result of which a ruling is made.
Reference. A ruling to impose a court fine can be appealed by filing a private complaint within 30 days of receiving a copy of the ruling.
Consequences of skipping a trial in a criminal trial
If the defendant, victim or witness does not appear at the trial of a criminal case, then a summons may be issued against them. Failure of a witness to appear in court in a criminal case for an unexcused reason will result in a fine of 2,500 rubles.
What are the dangers of not showing up?
A claims lawyer can help you qualify the specific reasons for your failure to appear. The consequences of failure to appear are determined by the peculiarities of the litigation, as well as the role of the participants in the trial. In criminal and civil proceedings, there are certain nuances associated with the lack of persons necessary to consider the case.
In civil proceedings, ignoring the court's requirements may result in consideration of materials in the absence of the plaintiff or defendant. In such a scenario, the defendant will not be able to formulate objections to the statement of claim, convey his position to the court, or present arguments indicating the unlawfulness of the claims.
At the same time, a plaintiff who fails to appear in court provides the opposing party with enormous opportunities to challenge the main provisions of the claim. The absence of a valid reason will significantly reduce your chances of a positive outcome when appealing materials to higher judicial authorities.
In criminal proceedings, the failure of a witness to appear may be regarded as his attempt to hide existing information or evade responsibility under the law. Failure to appear may result in prosecution, which is carried out with the involvement of law enforcement officials.
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.
Administrative process
In accordance with the Code of Administrative Proceedings, as well as the Civil Procedure Code, the meeting will be postponed (Article 150 CAS) if:
- it cannot be established whether any of the absent participants were notified of the process;
- the defendant or a representative of one of the parties did not come - if the court recognizes participation as mandatory.
A citizen whose presence is not considered obligatory can skip the trial without harm to himself; thus, he voluntarily renounces the right to present his point of view.
In case of the first failure to appear, in accordance with Article 122, part 1 of the same document and Article 105, part 1 of the Code of Civil Procedure, a penalty not exceeding 5 thousand rubles may be imposed on other persons. As practice shows, the fine is usually in the range of 1–2.5 thousand rubles.
After the second failure to appear, a person who, in the opinion of the judge, must certainly testify, may be forcibly brought in (Article 150, paragraph 1 of part 4 of the CAS). In accordance with Part 2 of Article 120 of the same source, this norm does not affect:
- pregnant women;
- children under eighteen years of age;
- other categories of citizens absent for valid reasons.
In addition, the judge has the opportunity to postpone the trial if individuals do not participate; the decision to postpone the meeting, as follows from Article 169, Part 1 of the Code of Civil Procedure, is made based on specific circumstances.
If the plaintiff twice neglected his duty, and the defendant does not apply for consideration on the merits, the judge, as follows from Article 222 of the Code of Civil Procedure, has every right to terminate further consideration of the claim.
Procedural consequences
Dispute consideration without the participation of the defendant is allowed in two forms:
- absentee proceedings;
- consideration in the general manner if at least one defendant appears.
A default judgment is made with the participation of only the plaintiff under certain conditions:
- There is confirmation that the defendant has received the summons.
- The defendant did not ask to hold the hearing in his absence.
- There were no requests to postpone the hearing due to valid reasons for non-appearance.
The essence of an absentee decision is that it is made only on the basis of arguments and evidence received from the plaintiff and other participants in the process who arrived at the meeting.
After the issuance of a judicial act in absentia, 7 days are given to submit an application for revocation to the judge, who accepted it from the moment the defendant received the documents. If this deadline is missed, an appeal is filed.
By the way, judges often overturn their decisions in absentia.
For the failure of the defendant to appear in court in a civil case, liability is provided in the form of consideration of the dispute without him, and thereby his procedural rights are limited.
What should you do if the judge unreasonably delays the trial over and over again? You can either write a request in advance to hold a hearing in the absence of the defendant, or make a written application to the chairman of the court to speed up the trial process.
