Russian procedural legislation establishes rather short deadlines for consideration of these legal disputes.
As a general rule, the case must be considered in the court of first instance within three months from the date the application was received by the court.
Unfortunately, often the increase in these terms has nothing to do with objective reasons (the complexity of the dispute, the volume of evidence, the need for an examination), but is caused solely by dishonest actions of other participants in the trial aimed at artificially delaying it.
Such persons may pursue various goals: to postpone the execution of a judicial act, to maintain a certain status quo between the parties to the dispute for negotiations, or to maintain the interim measures taken.
How to effectively delay the trial and what to do if the process is delayed?
For each meeting, prepare a plan of procedural actions, including objections to possible delaying options that opponents may use based on the actual circumstances of the case.
Involvement of third parties
Filing a petition to involve third parties in the case who are not making independent claims is the most popular way to delay the trial. And all because the basis for their involvement, provided for in Art. 51 of the Arbitration Procedure Code of the Russian Federation allows for a fairly broad interpretation. However, in order to satisfy such a request, there is a certain standard of proof that must be met by the applicant.
A third party without independent claims is an alleged participant in a material-legal relationship related in object and composition to the legal relationship that is the subject of the proceedings in court. The basis for the entry (involvement) of a third party in the case is a pronounced material interest in the future, for example, the possibility of filing a claim against a third party or the emergence of a right to claim, due to the interconnectedness of the main controversial legal relationship between the party and the third party.
The purpose of attracting a third party should be to prevent adverse consequences for him (resolutions of the Presidium of the SIP dated January 23, 2015 in case No. SIP-713/2014, AS of the Central District dated March 17, 2015 in case No. A08-4058/2012, AS of the East Siberian District dated 08/07/2015 in case No. A33-23319/2014, AS of the Moscow District dated 08/26/2015 in case No. A40-207731/14).
To avoid unreasonably delaying the consideration of the case, lawyers in Dubrovka recommend:
- do not abuse your right to amend and clarify the claim;
- correctly formulate the claims in advance, indicate in the claim all the necessary contact information about the parties, and include in it all possible third parties whose rights may be affected;
- carefully prepare for filing a claim, collect all the necessary evidence, make copies of all documents for attachment to the statement of claim, send copies of the claim with attachments to all participants in the process.
If you want to correctly draw up a statement of claim and send it to the court, read our instructions for drawing up statements of claim
What to do if a party delays the process by involving a third party
To counter unfounded requests for the involvement of third parties, it is necessary in each such case to present to the court a reasoned legal position confirming non-compliance with the described standard of evidence and the absence of a threat of causing adverse consequences to the person whose involvement the opponent is asking for.
A striking example is disputes related to the termination of legal relations that became the basis for the transfer of property for rent, trust management, etc. The abusive party files petitions to involve subtenants of the property as third parties, while in reality, judicial acts on such disputes are as a general rule do not affect the interests of these persons
(Determination of the Supreme Arbitration Court of the Russian Federation dated November 2, 2011 No. VAS-11990/11 in case No. A70-6711/2010, resolution of the Federal Antimonopoly Service of the Moscow District dated February 26, 2013 in case No. A40-61263/10-91-495, Fourteenth AAS dated April 22, 2014 in case No. A13-11536/2013).
The main method of combating this mechanism is to notify a potential third party of the commencement of the proceedings. Thus, if there is a risk of involving a significant number of people in the case, it is advisable to take preventive measures to notify them about the process, in particular by placing an announcement about the proceedings in the media, which in court will be evidence of their awareness.
Thus, the action or inaction of a potential participant following the notification will be an expression of his will to participate in the case. A similar goal may be pursued by sending a targeted notification to a potential participant in legal proceedings with a request for intention to enter into the process, the response to which will indicate the possibility of considering the dispute without the participation of the person involved.
Notification of foreign persons - Participants
A special mechanism for delaying the consideration of a case is the involvement of a foreign person in it, associated with the need to comply with special rules for notifying him. The procedure for notifying foreign persons of court proceedings provided for by the procedural law makes it possible to increase the time frame for consideration of the case by the court to six months, since it involves sending an order for the delivery of court documents to a justice institution or other competent body of a foreign state.
Confirmation of service is returned to the Russian court in the form of a certificate, which is filed in the case materials and indicates proper notification of the foreign person. In practice, the presence of a foreign person becomes a reason for the court to postpone the hearing of the case for as long as possible, despite the presence of effective international legal notification mechanisms designed to prevent an unreasonable increase in the duration of the proceedings.
For example, a claim against a foreign company, filed on August 31, 2015, was scheduled for consideration by the Moscow Arbitration Court on May 31, 2016, i.e., nine months later (case No. A40-159095/2015), which jeopardizes the very possibility of effective protection of the right in connection with the need to notify the foreign party.
What to do if a foreign person is involved in court
Let us note that the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (The Hague, November 15, 1965) (hereinafter referred to as the Convention) establishes for persons established in accordance with the legislation of the countries party to the Convention the possibility of notifying a foreign person by a Russian court or lawyer of the other party in the case by sending a postal notice to the addressee (Article 10 of the Convention).
In this way, the court or lawyer can provide proper notice to the foreign company within a short period of time.
In judicial practice, the maximum effectiveness of this method is noted (resolutions of the Federal Antimonopoly Service of the North-Western District dated 02.21.2013 in case No. A5673854/2010, Ninth AAS dated 02.19.2014 in case No. A40-51217/1124-313b). To exercise the right of a lawyer to notify a foreign company in the manner prescribed by the Convention, it is necessary to petition the court to impose this obligation on him, as well as all costs associated with notification (resolution of the Federal Antimonopoly Service of the North-Western District dated July 18, 2013 in case No. A56-24567 /2012, dated 09/05/2013 in case No. A56-8626/2012). In addition, judicial practice confirms the possibility of sending notifications not only by official state postal services, but also by international courier services, for example DHL (Determination of the Supreme Arbitration Court of the Russian Federation dated November 14, 2012 No. VAS-14362/12 in case No. A40-30754/10-42-269 , decisions of the FAS Far Eastern District dated January 10, 2007 in case No. A59-2724/04-C8, FAS Ural District dated December 22, 2011 in case No. A60-19356/2010, FAS Moscow District dated February 14, 2014 in case No. A40-34148/ 2013).
Of course, the notification procedure must be adjusted to take into account the state of the legal entity and the declaration by that state of reservations regarding the application of the Convention. But for those states that have limited the use of Art. 10 of the Convention, notification by a lawyer is also possible by sending the relevant documents to the authorized body of a foreign state. You can also help the court speed up the procedure by ensuring that notification is sent through courier services, paperwork is executed, etc. Consequently, a court hearing to consider the case on the merits can be scheduled in compliance with the general deadline provided for by the Arbitration Procedure Code of the Russian Federation, and without unreasonably postponing it for notification foreign persons.
Complaint about delay in the trial
A complaint about the court delaying the process is submitted to the chairman of the court if a party to the case believes or has evidence that the court has taken measures to delay the process.
Such a complaint should be filed only if there are circumstances clearly indicating that the court is delaying the process - missed deadlines, other circumstances.
A complaint to the chairman of the court can be submitted by hand - through the court office, through the electronic appeal form on the court’s website, or by email or post.
The complaint must contain:
- Sender information, including reply address, phone number
- Information about recipients - the chairman of the relevant court
- The main part of the complaint should be written clearly and structured. At the beginning of the complaint, it is necessary to make it clear which party to which case the complainant is. Next, indicate the circumstances and specific deadlines indicating that, in your opinion, the court process has been unreasonably prolonged
USEFUL : watch the video on how to draw up any complaint or order the help of our lawyer
Failure to provide all evidence
Violations of deadlines for disclosure of evidence are also quite common. Provisions of Art. 65, 135 of the Arbitration Procedure Code of the Russian Federation formally direct the parties to the need to disclose evidence at the stage of preparing the case for trial. However, the recommendations of the Supreme Arbitration Court of the Russian Federation actually made this optional. Moreover, they authorized the “portioned” presentation of evidence and, as a result, an increase in the time frame for consideration of cases.
Thus, “evidence that was not disclosed by the persons participating in the case before the start of the court hearing, presented at the stage of examining the evidence, must be examined by the arbitration court of first instance, regardless of the reasons why the procedure for disclosing evidence was violated” (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 13.08 .2004 No. 82).
Of course, it should be noted that the cited provision is aimed at ensuring the establishment of objective truth in the case. But the participants in arbitration proceedings, as a rule, are legal entities, parties to business relations, and therefore I would like to hope for a more balanced approach of the courts to the relationship between the time frame for consideration of the case and the possibility of presenting evidence, not limited by the time limits and stages of the arbitration process. It is unthinkable that in an English court a party would fail to disclose evidence in a timely manner.
Procedure for considering an application to speed up trial
The chairman of the court considers the application within five days from the date of its registration in court, after which he issues a reasoned ruling , which may set the time limit for the court hearing in the case, and may also indicate the actions that must be taken to speed up the process of consideration of the case.
An example of the definition of the chairman of the court
In fact, the determination of the chairman of the court is:
- an established fact of red tape allowed by a specific judge;
- instructions to the judge about the further progress of the consideration of the case in order to expedite it.
What to do if a party does not provide evidence
For abuse of procedural rights, including untimely disclosure of evidence, all legal costs are borne by such party, regardless of the outcome of the dispute. For failure to comply with a court ruling, a court fine may also be imposed on the party. But these sanctions do not fully protect the bona fide party from the consequences of violating the deadlines and procedures for disclosing evidence.
Such abuses disrupt the adversarial, orderly course of the process, influence the formation of the court’s conclusions based on the results of the assessment of evidence, and also lead to the aggravation of the case materials with evidence that is not related to its essence and the displacement of the subject of proof. The described violation does not entail any significant consequences, and therefore failure to comply with the deadlines for disclosure of evidence and failure to fulfill the obligation to prove occurs everywhere.
Thus, the parties: do not comply with both the court’s proposal to present evidence and the court’s ruling on their collection; present new evidence after a significant time has passed after the start of the consideration of the case on the merits, without motivating the impossibility of presenting it earlier; present significant evidence at a court hearing without ensuring that other participants in the process are familiarized with it in advance; repeatedly file motions to postpone the court hearing in order to present additional evidence and fail to provide it; untimely submit requests for documents that are not relevant to the case, which they could have obtained themselves. All of the above actions are abuses of procedural rights and should lead to the refusal to admit untimely submitted evidence.
The admissibility of such a refusal directly follows from Art. 159 of the Arbitration Procedure Code of the Russian Federation, and is also confirmed by judicial practice (decrees of the Seventeenth AAS dated 02/07/2012 in case No. A60-10944/2010, from 07/16/2014 in case No. A60-41090/2013, the Fifteenth AAS dated 10/22/2012 in case No. A53- 9680/2012, dated 05/07/2014 in case No. A32-36523/2013, Decision of the Administrative Court of the Krasnoyarsk Territory dated 12/16/2014 in case No. A33-16515/2014).
If the opponent “overwhelms” the court with documents or, on the contrary, avoids presenting them, it is advisable to petition for the establishment of a period during which the party must disclose evidence in support of its claims and objections, indicating a list of them. Failure to comply with this court ruling, even if it only “invited” the party to present evidence on time, can be qualified as contempt of court and punishable by a court fine, which, despite its relatively small size, has a significant disciplinary effect on the party abusing its rights ( resolution of the Federal Antimonopoly Service of the North-Western District dated July 21, 2011 in case No. A45-20150/2010, Second AAS dated May 22, 2013 in case No. A29-8227/2012, Seventeenth AAS dated March 27, 2014 in case No. A5019460/2013, Third AAS dated 06/02/2015 in case No. A33-24367/2014).
If a party avoids presenting evidence, it is advisable to qualify this as a refusal to refute the fact, the presence of which, with reference to specific documents, is indicated by the procedural opponent, and to submit to the court a document clarifying the circumstances that should in fact be recognized by the court as established. The Presidium of the Supreme Arbitration Court of the Russian Federation directly speaks about the possibility of using this countermeasure in its precedent Resolution No. 12505/11 dated March 6, 2012. Currently, this position has been adopted by arbitration courts (decrees of the Central District Court of 09/03/2014 in case No. A23-4961/2013, the North Caucasus District Court of 07/13/2015 in case No. A15-2027/2014, the Moscow District Court of 07.17.2015 in case No. A41-57040/14, AS of the Volga District of 08.27.2015 in case No. A65-26144/2014). A similar logic is applied by the RF Armed Forces (Determination of the RF Armed Forces dated December 15, 2014 in case No. 309-ES14-923).
How to resist delays in the legal process?
In order to actively resist the delay of the judicial process, it is necessary to carefully monitor the actions of the party and prevent judicial red tape.
Object to the party's actions and the court's granting of motions. Build your objections both on the procedural unreasonability of the party’s requests, and using the argument about the party’s bad faith when using their procedural rights.
Some lawyers, in cases where the court endlessly satisfies a party’s requests to postpone hearings on the grounds of “refining the position”, “gathering evidence” and the like, disclose all available evidence and procedural position so that the court has the opportunity to make an informed decision, reject a procedurally unfounded argument to adjourn the meeting and consider the case.
If the parties present their counter-calculations, objections, counterclaims at the last moment before the meeting, this can be countered by actively monitoring these documents using the court’s electronic resources and timely preparation of reviews.
If they plan to arrange red tape using the time it takes to send correspondence by mail, you need to ask the court to entrust delivery to the parties.
What to do if a party files a parallel or counterclaim
A preventive measure against the general suspension of proceedings with the help of related claims was the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 No. 57. It explains that the initiation of independent proceedings on a claim to challenge a contract does not in itself mean the impossibility of considering a case of recovery under a contract in the courts of the first , appellate, cassation and supervisory authorities, and therefore should not lead to the suspension of proceedings in this case.
The above position of the Supreme Arbitration Court of the Russian Federation does not contain a general rule and applies only to a certain category of disputes, which does not allow the implementation of this mechanism for other categories of cases. Thus, neither legislation nor law enforcement practice has yet been able to completely eliminate the initiation of parallel processes. The key way to combat this method of delay is to constantly monitor cases involving the plaintiff and defendant, as well as persons associated with them, using the electronic Arbitration Case File, as well as promptly prepare objections to the issue of the inadmissibility of suspending or postponing proceedings until new claims are considered.
In addition, a bona fide party to the dispute should emphasize the possibility of establishing all the circumstances of the dispute within the framework of the original case.
Time limits for consideration of civil cases in court
District and city courts must consider each case before the expiration of two months from the date of receipt of the statement of claim in court. The period for consideration of cases by justices of the peace has been reduced to one month.
A similar period of one month is established for the consideration of certain categories of civil cases: reinstatement at work and collection of alimony.
Federal laws and the Civil Procedure Code of the Russian Federation may establish other deadlines for judicial consideration of cases, which are usually less than the above deadlines.
Appealing court rulings
The ways to counteract such a mechanism of delaying legal proceedings, such as appealing various rulings of the arbitration court, are significantly limited. Thus, the consideration of the case is subject to postponement until the consideration of appeals against the rulings: on the transfer of the case to jurisdiction or on the refusal to do so; refusal to satisfy a request for a co-plaintiff to join the case; involving a co-defendant; refusal to satisfy a request to combine or separate cases into one proceeding, etc. (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 No. 36).
Accordingly, a party wishing to delay the consideration of the case can sequentially file the listed petitions, then appeal the rulings made by the court and, moreover, prevent the return of the case from a higher authority by filing petitions for the correction of technical errors, clarification of the judicial act, etc. As a result, the judicial the proceedings will drag on for years.
How to win almost any administrative offense case (part 2)
In his previous article Pravorub: How to win almost any case regarding administrative rights... the “four-handed game” technique was described, where the court apparatus was chosen as the weak link.
In this publication, the weak link is the Russian Post together with the district court and, if you’re lucky, then with the official, since the termination of the case depends on all of them, together or separately, after the expiration of the statute of limitations for bringing to administrative responsibility.
The “trick of the ears” I propose, or whatever you prefer, will work where the case of an administrative offense is being considered by an official, and the statute of limitations is 2 months.
To protect the interests of our clients, we act as follows; it goes without saying that at the stage of consideration of the case, before the decision is made, we should delay time in every possible way, so that, as they say, “Service does not seem like honey.”
But someday the “taffe” will end and the decision will be made, but there will be 10 days to appeal.
Step 1 : we count down 9 days and on the tenth day, by mail, we send a complaint against the decision to the same official, thereby, with a 50/50 chance, uncertainty is introduced into the actions of the well-functioning mechanism for issuing fines.
Expected effect:
1. While the official gets the idea to transfer the complaint to the right person, time will pass for its further consideration, which already works for the applicant; it is possible that the complaint will simply disappear somewhere...
2. It is possible that the official will consider the complaint against the decision and refuse to satisfy it, but it often happens that in this case the official will forget to notify you about the place and time of its consideration, which will be an absolute basis, in the future, for canceling the decision on the complaint in court and sending the case for a new consideration, but in the meantime, back and forth, the statute of limitations is almost guaranteed to expire.
Well, what if the official works flawlessly and makes a decision on the complaint and notifies the applicant? Then
Step 2:
We go to the district court, but, as Comrade Saakhov said: “Eh, nah... no need to rush.” If a complaint against a decision is filed according to all the rules within 10 days, indicating the result of appealing the decision to an official, then the court will have enough time to leave it without satisfaction.
The question arises: how is it guaranteed to last another 1-1.5 months so that the statute of limitations expires by the time the complaint is considered in court?
The solution to the issue is quite simple, take advantage of the hole in the legislation.
The Code of Administrative Offenses of the Russian Federation does not in any way regulate the content of a complaint against a decision on a complaint against a decision. The law only establishes a 10-day period for appealing a decision on a complaint after receiving a decision on a complaint to a district court.
The procedure for subsequent actions , the complaint to the district court must be filed with a temporary reserve, on the 2-3rd day after its receipt, and in the complaint itself we only appeal the decision, but we modestly hush up the fact of appealing the decision to a higher official.
Expected effect: by court ruling, the complaint against the decision will be left without consideration, since the 10-day period has been missed and returned to the applicant with an explanation of the procedure for appealing it.
As a rule, for the above-mentioned return of the complaint, a 2-month period from the moment the statute of limitations began to run, and this is the date of drawing up the protocol or issuing a decision, will expire.
Step 3: how to go beyond the statute of limitations
We re-file the complaint against the decision, the decision on the complaint. Be sure to indicate that the complaint against the decisions was already considered by the official, and his decision was appealed to the court on time with a margin of 7-8 days and it did not depend on the applicant that the court, together with the post office, did not consider it and did not return it, for example, the next day , thus there is every reason to ask the court to restore the missed deadline, with copies of the envelopes attached.
Result: the period for appeal will be restored, the complaint will be accepted by the court for consideration, the case will be requested from the administrative body, and this will take another month or two. The statute of limitations is guaranteed to have expired by the time the case goes to court.
Thus, if the decision is canceled, the case will not be sent for review. In general, as my experience shows, with a greater degree of probability, the case will simply be “buried.”
I recommend using this technique only in cases where there are procedural grounds for canceling the decision, but if the case is sent for a new consideration, then it will be considered as before, and the “trump card” will already be played, so be more careful.
To be continued.
