Procedure for holding a preliminary court hearing in civil proceedings

When is it appointed?

After accepting the statement of claim, the official issues a ruling on preparing the case for consideration.
The preparatory stage has the following goals:

• clarification of the circumstances of the case, which will help to present the situation more clearly;
• determination of the composition of participants in the trial;
• provision of evidence by interested parties;
• application of measures to reconcile the parties.

In accordance with Art. 152 of the Code of Civil Procedure of the Russian Federation, an official may schedule a preliminary hearing to clarify the circumstances of the case. This procedure is not mandatory, so it is not carried out in all civil cases. Therefore, the question often arises as to why a preliminary examination of the case is necessary.

The hearing is scheduled to confirm the parties' actions in preparation for the trial.

Including:

• if the plaintiff refuses the application;
• to reconcile the parties and conclude an agreement;
• when the defendant acknowledges the claims, etc.

The official may schedule a preliminary meeting to resolve the following tasks:

• consideration of the circumstances of the case that will affect its resolution;
• determining the sufficiency of evidence presented by both parties;
• bringing forward issues related to the subject of the dispute;
• consideration of reasons for missing deadlines for filing an application.

Reference! In one case, a judge may hold several preliminary hearings in preparation for trial.

Order of conduct

In Art.
152 of the Code of Civil Procedure of the Russian Federation regulates how the preliminary court hearing takes place in civil proceedings. The official makes his or her own determination as to whether a hearing is necessary during the preparation phase. The decision is brought to the attention of the participants in the process. The plaintiff and defendant are notified of the date and time of the preliminary hearing. Participants in the trial have the right to file a petition and present evidence at a preliminary hearing in accordance with Art. 56 Code of Civil Procedure of the Russian Federation. The failure of one of the parties to appear at the hearing is not an obstacle to its holding.

The preliminary examination of the case has the following features:

• It is conducted by a single judge.
• The official decides independently which issues will be considered.
• Parties are allowed to participate in the meeting and present their arguments and evidence.

At the preparatory stage, debates between the plaintiff and the defendant are excluded.

Speaking about whether a meeting is mandatory or not, it should be noted that the judge has the right to independently decide whether the procedure is necessary. If the court considers that the case is completely ready for consideration, then an appropriate decision will be made and a date for the main hearing will be set.

The procedure for holding the meeting is regulated by Art. 158 Code of Civil Procedure of the Russian Federation. The judge opens the hearing by announcing the civil case and what issues will be heard. The parties have the right to present arguments and make statements. At the same time, the official examines in full only those evidence that relate to the limitation period. The remaining arguments will be considered during the main hearing.

The procedure for conducting a preliminary hearing in criminal proceedings

Based on Art. 234 of the Code of Criminal Procedure of the Russian Federation, a preliminary hearing in a criminal case takes place in the following mode.

The parties call by notice, which must be sent in advance - at least three days before the date of the preliminary hearing. The accused may be absent if a corresponding petition is sent on his behalf or on behalf of one of the parties. If other participants notified on time do not appear at the hearing, it will not be postponed and will take place without them.

In case of an exclusive evidentiary request of the party, which is submitted within the framework of Art. 235 of the Code of Criminal Procedure of the Russian Federation, the judge determines whether there are any objections. If there are none, such a request is granted. Then a court hearing is scheduled.

A request for additional evidence or items submitted by the defense will be granted if these additions are valuable to the case.

Those who know anything about the investigative actions carried out, the seizure and inclusion of documents in the criminal record, can (at the request of the parties) be questioned as witnesses. Only holders of witness immunity are not interrogated in this regime (clause 40 of Article 5 of the Code).

Minutes are taken during the hearing.

Deadlines

The preparatory consideration of the case must be scheduled within the period of the main proceedings (Article 154 of the Code of Civil Procedure of the Russian Federation).
In accordance with the legislative act, a response to the statement of claim must be given within 2 months from the date of receipt of the petition by the judicial authority. An exception is made for proceedings on the following grounds:

• collection of alimony;
• demolition of self-built buildings;
• labor disputes regarding reinstatement at work;
• bringing unauthorized buildings into compliance, etc.

These cases are considered within 1 month from the date of receipt of the application. The time limit does not include the time for which the meeting was postponed to reconcile the parties.

Attention! The magistrate is required to review the document and schedule a hearing within 1 month.

In Part 3 of Art. 152 of the Code of Civil Procedure of the Russian Federation states that an official has the right to schedule a hearing later than the established deadlines if the case is classified as complex. Time may be required in cases where research, expert assessment, etc. are necessary to clarify the circumstances.

Preliminary hearing: what is it?

A preliminary hearing (PTH) is a procedure conducted by judges alone as part of the preparation of a case for the main proceedings.

It is assigned in individual cases on the basis of Art. 152 of the Code of Civil Procedure of the Russian Federation, if the judge still has questions without which it is impossible to objectively consider the dispute.

Reasons for appointment

The basis for assigning a PSZ may be:

1. Consolidation of the administrative actions of the participants: modification or waiver of claims, conclusion of a settlement agreement, recognition of claims by the defendant.
2. Reinstatement of a missed statute of limitations. The plaintiff provides evidence of the reason why he failed to file the claim in a timely manner. If the court finds the evidence admissible, the case is scheduled for trial.
3. Identification of significant circumstances: requesting additional documents, interviewing the parties, obtaining additional information for objective decision-making.
4. Determining the sufficiency of evidence: requesting additional evidence, filing petitions to call witnesses, order an examination.

Note! When considering disputes about children between parents within the framework of the legal settlement, the court has the right to determine their place of residence with one of the spouses, with mandatory consideration of the opinions of minors. The judge is guided solely by their interests. The participation of representatives of the guardianship authorities is mandatory.

When is it appointed?

To understand at what stage the PSZ is carried out, it is enough to familiarize yourself with the step-by-step algorithm:

1. Receipt of an application to the court. Within 5 days, the judge makes a decision on accepting the documents for production, and the parties are notified.
2. Preparation for the trial. After consideration of the application, a determination on preparation is made; it is a mandatory stage of legal proceedings. Appointed to clarify factual circumstances, determine legislative norms for proceedings, resolve the issue of the number and composition of participants, provide additional evidence, reconcile the plaintiff and the defendant. If necessary, a PSZ is prescribed.
3. Trial. Based on the results of the preparation, the court determines a trial, unless a settlement agreement is concluded. During the hearing, the attendance of the participants is checked, the composition of the court is announced, and rights and obligations are explained. Witnesses are also questioned, experts are invited, explanations are accepted from participants, and judicial debates are held.
4. Decision-making. At the end of the trial, the court retires to the deliberation room to make a decision.

Thus, the PZ is appointed by the judge only if procedural confirmation of the actions of the participants and the presentation of additional documents is required, if the evidence presented is insufficient to clarify the circumstances, and the case cannot be assigned for consideration in court proceedings.

Time frame for preparing for the trial

The Civil Procedure Code of the Russian Federation does not limit the preparation time - they are set by judges depending on the complexity of the process and other circumstances.

However, they are required to adhere to the general deadlines for the consideration of disputes:

• total period – 2 months;
• within 1 month, issues of collecting alimony, challenging dismissal with subsequent reinstatement, demolition of unauthorized buildings, challenging acts of municipal authorities on demolition, etc. are considered (Article 154 of the Code of Civil Procedure of the Russian Federation).

For certain processes, shortened trial periods are established:

Important! The calculation of deadlines begins from the day the citizen submits an application to the court. If necessary, they can be extended for no more than 1 month. The periods for which proceedings are postponed for conciliation procedures are not included in the total period.

As for the PSZ, it is assigned within 5-10 days from the date of receipt of the statement of claim, depending on the situation. The issue is decided by the judge individually. In particularly complex cases, the court may assign a legal period beyond the general time limits for legal proceedings, taking into account the opinions of the parties.

Preliminary and main meeting: differences

The preliminary hearing is the second step used in preparing for the trial, while the main hearing is the third step, during which witnesses are heard, experts are invited, and debates are held. Essentially, these are different stages of legal proceedings.

According to the Code of Civil Procedure, a stage-by-stage review is required, so preparation is indispensable. At the same time, a court order is appointed only if there are grounds for a court ruling to accept the statement of claim for proceedings, prepare for proceedings, or schedule the main trial.

Results

As a result of the preliminary hearing, the judge may make the following determinations:

• suspension of the proceedings;
• leaving the application without consideration;
• cessation of production.

The court decision can be appealed privately. If one of the parties was not present at the meeting, then a copy of the decision is sent to it within 3 days after its adoption (Article 227 of the Code of Civil Procedure of the Russian Federation).

The preparatory stage often involves finding out the facts of missing deadlines for applying to the court. The court considers all arguments and evidence related to this issue.

Based on the results of the proceedings, decisions may be made:

• assignment of the case to trial;
• refusal to accept the claim.

The case is assigned for further consideration if the court finds the reasons for missing the deadline to be valid. The legislation does not clearly define these circumstances.

Valid reasons may include:

• plaintiff's illness;
• being on a long business trip;
• death of a close relative;
• the need to care for seriously ill patients, etc.

If the court makes a ruling on the expiration of the statute of limitations and refusal to accept the petition, then further circumstances of the case are not considered. The official's decision may be appealed.

In cases where court proceedings involve children, a preliminary hearing is held for the following purposes:

• determining the place of residence of minors before a final court decision is made;
• clarification of the order of parental rights of one of the parties during the main trial.

The meeting is held in the presence of representatives of the guardianship authorities. Based on the results of consideration of all the circumstances, a determination is made. The decision of the official is carried out on the basis of the characteristics of the parents, the conclusion of the guardianship authorities, and the opinion of the minors themselves.

Based on the results of the preparatory stage, a protocol is drawn up. The progress of the meeting and the decision taken are included in it. A note is made in the document if the parties have reached a common decision and entered into a settlement agreement.

Article 259 of the Code of Criminal Procedure of the Russian Federation. Protocol of the court session (current version)

1. During each court hearing, minutes are kept. During the court hearing of the courts of first and appellate instances, a protocol is drawn up in writing and recording is carried out using audio recording devices (audio recording). When considering a criminal case in a closed court session in the cases provided for in Article 241 of this Code, the use of audio recording devices is not permitted.

2. The protocol can be written by hand, or typed, or prepared using a computer. To ensure the completeness of the protocol when maintaining it, shorthand recording, as well as technical means, can be used.

3. The minutes of the court session must indicate:

1) place and date of the meeting, its start and end time;

2) what criminal case is being considered;

3) the name and composition of the court, information about the assistant judge, secretary, translator, prosecutor, defense attorney, defendant, as well as the victim, civil plaintiff, civil defendant, their representatives and other persons summoned to court;

4) information about the identity of the defendant and the measure of restraint chosen in relation to him;

5) the actions of the court in the order in which they took place during the court hearing;

6) statements, objections and petitions of persons participating in the criminal case;

7) rulings or decisions made by the court without retiring to the deliberation room;

rulings or decisions made by the court with removal to the deliberation room;

9) information on explanations to participants in criminal proceedings of their rights, duties and responsibilities;

10) detailed content of the testimony;

11) questions asked to the interrogated and their answers;

12) the results of inspections and other actions to examine evidence carried out at the court hearing;

13) circumstances that participants in criminal proceedings ask to be included in the protocol;

14) the main content of the speeches of the parties in the judicial debate and the last word of the defendant;

15) information about the announcement of the verdict and an explanation of the procedure for familiarizing yourself with the minutes of the court hearing and making comments on it;

16) information on the explanation of the acquitted and convicted persons of the procedure and deadline for appealing the verdict, as well as on the clarification of the right to petition for participation in the consideration of a criminal case by the court of appeal.

4. The protocol also indicates the measures taken against the person who violated order at the court hearing.

5. If during the trial photography, audio and (or) video recording, filming of interrogations, broadcast on radio, television or on the Internet were carried out, then a note about this is made in the minutes of the court session. In this case, photographic materials, audio and (or) video recordings, and filming are attached to the materials of the criminal case. When broadcasting a court session, the minutes of the court session also indicate the name of the media outlet or website on the Internet through which the broadcast was carried out.

6. The protocol must be prepared and signed within 3 days from the date of the end of the court session by the presiding officer and the secretary of the court session, and if the presiding officer has entrusted the keeping of the protocol to an assistant judge, by the presiding officer and the assistant judge. The protocol during a court session can be prepared in parts, which, like the protocol as a whole, are signed by the presiding officer and the secretary, and if the presiding officer entrusts the keeping of the protocol to an assistant judge, by the presiding judge and the assistant judge. At the request of the parties, they may be given the opportunity to familiarize themselves with parts of the protocol as they are prepared.

7. A request for familiarization with the protocol and audio recording of the court session is submitted by the parties in writing within 3 days from the date of the end of the court session. This period may be restored if the application was not submitted for valid reasons. The petition is not subject to satisfaction if the criminal case has already been sent to the appellate instance or, after the expiration of the period provided for the appeal, is in the execution stage. The presiding officer provides the parties with the opportunity to familiarize themselves with the protocol and audio recording of the court session within 3 days from the date of receipt of the petition. The presiding officer has the right to provide the opportunity to familiarize himself with the protocol and audio recording to other participants in the trial at their request and insofar as it relates to their testimony. If, due to objective circumstances, the protocol of the court session was prepared after 3 days from the date of the end of the court session, then the participants in the trial who filed petitions must be notified of the date of signing the protocol and the time when they can familiarize themselves with it. The time for familiarization with the protocol and audio recording of the court session is set by the presiding officer depending on the volume of the specified protocol and audio recording, but cannot be less than 5 days from the start of familiarization. In exceptional cases, the presiding officer, at the request of a person familiarizing himself with the protocol and audio recording, may extend the established time. If a participant in the trial clearly delays the time of familiarizing himself with the protocol and audio recording, the presiding judge has the right, by his decision, to set a certain period for familiarizing himself with them.

8. Copies of the protocol and audio recordings are made at the written request of a participant in the trial and at his expense.

Failure of one of the parties to appear at the hearing

The legislation states that the absence of a plaintiff or defendant at a preliminary hearing is not a valid reason for it not to take place.
But in practice, the judge can schedule a meeting in order to clarify the circumstances of the case, including from one of the parties. Therefore, if there are no participants in the process, the preliminary hearing may be postponed to another date. The plaintiff or defendant may file a motion not to participate in the preparatory hearing of the case. The application will need to indicate a valid reason for failure to appear. A representative of one of the parties may be present at the meeting if there is a notarized power of attorney.

The question of what a preliminary court hearing is in civil proceedings and why it is necessary often arises among the participants in the process. The procedure involves consideration of the circumstances of the case and the availability of evidence from both parties at the preparatory stage. A preliminary hearing may not be ordered by the judge if he believes it is not necessary.

Thus, the preparatory meeting is not related to the consideration of the case on the merits. The procedure is a set of measures to prepare for the main process. The issues considered during the hearing relate to procedural or organizational issues. The preliminary hearing is designed to help prepare the case in such a way that it can be examined on its merits as quickly and efficiently as possible.

Preliminary hearing in a criminal case

Very often our clients ask the question, what is a preliminary hearing in court ? Today I will try to answer this question. So let's start from the very basics.

After the case is submitted to the court for consideration on its merits, the following happens:

The court has two options to begin the trial - either immediately schedule a court hearing (main hearing), or first hold a preliminary hearing (preparatory hearing).

A preliminary hearing (Chapter 34 of the Code of Criminal Procedure) is not yet the “court” itself in its everyday understanding (i.e., not a classic trial at which the issue of guilt is decided). This is also a court hearing with the parties summoned, but it is held behind closed doors (that is, without relatives and just spectators in the courtroom). It can be carried out without the accused if he requests it (Part 3 234 of the Code of Criminal Procedure).

This is only preparation for the main “trial”, during which organizational issues are resolved - for example, in what form to conduct the trial further (and whether it is worth conducting it at all).

Both the defense and the prosecution may request a preliminary hearing, or the court itself may order it on its own initiative.

Let us remind you that the accused can ask for this at the stage of familiarization with the criminal case, at the so-called “217th” or within 3 days after receiving the indictment (Part 3 229 of the Code of Criminal Procedure).

When is a preliminary hearing held?

And it will be carried out if (Part 2 229 of the Code of Criminal Procedure):

— One of the parties before the start of the trial declares the exclusion of some specific evidence available in the case. It is clear that most often it is the defense that asks for this, since the prosecution already has “levers” not to add evidence to the case that it does not like.

— If there are grounds to return the case to the prosecutor (237 Code of Criminal Procedure) due to “film mistakes” in the indictment. These “blunders” can be seen by the court itself when studying the case received by it, and the defense can see them. The prosecutor’s office, as a rule, resists the return of the case on this basis (it’s their fault, they didn’t notice). Another point is that the prosecutor’s office may ask to return the case if it suddenly turns out that after the indictment was approved, the crime turned into a more serious one (for example, the victim died in the hospital).

— If there are grounds to return the case or terminate it altogether. For example, if the accused “got on the skis” (suspension) or it turned out that the statute of limitations had expired (termination). If the accused did not “go on the run”, but initially hides abroad, then he can be convicted without it, but this is a special procedure (Part 5 247 of the Code of Criminal Procedure), the application of which is also decided at the preliminary hearing.

- If the accused asks for a jury trial.

— If there are grounds for separating the case (and sending it to another court), or one of the parties asks to join the criminal cases.

Again, a preliminary hearing is not always held, but only if there are grounds for it.

After the preliminary hearing, a main, full-fledged court hearing is scheduled, in which the case is examined on the merits.

!!! Significant violation: the absence in the case of such a document as a decision to schedule a court hearing entails the cancellation of the verdict. It happens like this - the judge scheduled a preliminary hearing, decided some issues at it (for example, extended the arrest period), notified everyone of the date of the next hearing against signature, but did not issue a separate ruling on the date of the hearing (or did not reflect the decision in the ruling on extending the arrest about the date of the meeting). This violation is called “lack of procedural decision following a preliminary hearing.”

But the result of the preliminary hearing can be not only a transition to consideration:

- the case may be returned to the prosecutor (and it is not always clear when and in what form it will come to court again); - the case may be sent to another court according to jurisdiction; - the case can be separated (and the allocated “piece” can also be sent to another court), the case can be dismissed (but this happens quite rarely). By the way, theoretically, at this stage, God’s grace may “descend” on the prosecutor’s office and the charges may be dropped completely or partially; - the court can terminate the case with a judicial fine (clause 4.1, part 1, 236 of the Code of Criminal Procedure), if, of course, all the conditions for this are met.

If the case moves further, then a court hearing is scheduled either in the usual manner, or in a special manner (Chapter 40 of the Code of Criminal Procedure), or with the participation of jurors.

This is a preliminary hearing in a criminal case. But it’s better to seek advice from a lawyer at the Kurgan City Bar Association “PARITET”

With respect to you, lawyer of the Kurgan City Bar Association “Paritet” V.N. Vagin