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Often, plaintiffs and especially defendants try to delay the civil or arbitration process in their own interests. In this article we will look at all the most common cases.
However, it is worth noting that the court may regard all sorts of excessive tricks as “abuse of law” and turn the case not in favor of the party who is trying in every possible way to stall for time. The judge also has her own deadlines and it is not in her interests to drag out the case. Moreover, any business sooner or later still ends with a certain decision.
Request to postpone the hearing
It can be stated either orally or in writing.
Most common reasons:
- present evidence that is in the possession of another person (not a participant in the process),
- you need to request proof from another person,
- the need to discuss a settlement agreement (a pseudo-agreement, by the way, can be brought to court for credibility),
- it is necessary to call a witness for questioning or a third party whose interests may be affected,
- familiarize yourself with the case materials.
Possible reasons for preparing a petition
You can file a complaint against a judge for delaying the process only for improper performance of their official powers. If a citizen holding a judicial post committed an unlawful act outside the performance of his professional duties, then such a conflict will be considered separately, without taking into account the position held.
Petitions against illegal actions of a judge should only be related to a violation of the law during the performance of human rights activities or a violation of the procedure for considering claims.
In practice, conflicts with judges most often arise under the following circumstances:
- violation of deadlines established by procedural legislation (concerns not only delays in consideration of claims, but also refusals to postpone hearings and provide additional time for collecting evidence);
- entering false information into the minutes of a meeting or concealing certain facts;
- bias towards one of the parties during the participation of the plaintiff and defendant in the dispute, which is accompanied by a refusal to accept evidence or listen to the opinion of the party;
- the judge’s interest in the outcome of the dispute (concerns financial incentives, as well as the presence of family or friendly ties with the participants);
- violation of judicial ethics.
This list of reasons is indicative. In fact, not only the procedural actions of a judge, but also his personal behavior can become the basis for a petition. A citizen who believes that the chief judge violates or limits his rights, questions the interests of the participants and does not take into account the principles of fairness and equality can prepare a letter of complaint. This needs to be done as early as possible.
Attention! If the petition is sent before the consideration of the claim is completed, then the court can be disqualified. The main thing is to confirm the presence of sufficient grounds. After the consideration of the dispute is completed, you will have to additionally prepare a complaint to the appellate authority.
○ Who benefits from delay?
Such red tape can be beneficial to both the other party and the judge.
✔ Second side.
For the defendant, delaying the trial is almost always beneficial. There can be many reasons for this. For example:
- A debt collection case is being considered, and the defendant is deliberately stalling for time, hoping to collect the required amount during this period.
- The defendant wants to reconcile with the plaintiff, and he is trying to get more time to do this.
- The defendant wants to involve a witness in the case who cannot appear in court immediately for good reasons (sick, is abroad, etc.). If the court does not want to cooperate and postpone the process, the participant has to resort to artificially delaying it.
In most cases, increasing the time for consideration of the case is beneficial to the defendant, because it delays the execution of the sentence if he loses it.
✔ Judicial authorities.
It is not beneficial for the judge to delay the process, because for him it is unfinished work that needs to be returned to. Therefore, he can resort to this only in extreme cases. For example, a lot of cases have accumulated in production on which decisions must be made and decisions must be written. But this practice is rare; as a rule, the process is delayed by the second participant.
What to do if the judge delays the process?
The court, as a rule, has no interest in delaying the process.
However, the court may allow the parties to manipulate their procedural rights and thus extend the process over time.
For example, the court constantly accepts requests from a legal entity to postpone a meeting, motivated by the illness of a representative or director. This can be combatted by submitting to the court objections regarding the satisfaction of the party’s request and considering the case without a representative of this party on the basis that not only the director (or a representative by proxy, etc.) can represent the interests of a legal entity.
Another example is that the court constantly accepts and considers unfounded requests from a party with the same content. Then it is necessary to object to the court against their consideration due to the party’s abuse of their procedural and rights.
USEFUL : read more at the link on how to complain about a judge, and also watch a video on the topic
Why is the court case being delayed?
Stretching out the trial over time often plays into the hands of one of the parties and greatly spoils the affairs of the other party in the case. Therefore, very often one of the parties deliberately delays the process. For what?
It's simple. Plaintiffs, if they resort to artificially delaying the process, do so with the aim of mentally exhausting the defendant, causing him moral distress (if he is a citizen) or gaining time to formalize a position and provide evidence. The defendants have a clearer motive - to delay the onset of the need to fulfill their obligations.
Ways to postpone a case
There are several of them. Let's briefly look at each of them.
1. Application for postponement due to the need to provide additional evidence (part 4 of article 136, part 5 of article 158 of the Arbitration Procedure Code of the Russian Federation).
The problem with opposition is that the court cannot assess the impact of the missing evidence on the resolution of the case. Whether it was necessary or whether it will not affect the decision in any way can only be said upon direct examination.
What if the defendant is denied, and on appeal it turns out that this evidence changes the whole picture?
One of the grounds for overturning the decision on appeal is that the court of first instance did not examine all the evidence in the case.
Therefore, just in case, the trial will most likely be postponed.
But the plaintiff has a chance. You need to pay attention to the content of the application:
- what kind of evidence is being presented;
- the reasons why the defendant was unable to immediately provide evidence;
- What are the guarantees that the required evidence will be provided within the prescribed time limit?
The plaintiff should also have with him absolutely all documents related to the case. Perhaps the required evidence will be in his possession and the postponement of the case will be avoided.
2. Partial fulfillment of the obligation.
The amount of execution may be purely symbolic, but this is enough to file a motion for adjournment so that the plaintiff can recalculate and clarify the claims.
It makes sense for the plaintiff to ask the court to adjourn for a couple of days rather than postpone the case. During this time, check the receipt of payment and prepare a petition to clarify the claims.
3. Request for adjournment to resolve the dispute amicably (Part 1 of Article 138 of the Arbitration Procedure Code of the Russian Federation).
According to Part 2 of Art. 158 of the Arbitration Procedure Code of the Russian Federation, in order to postpone the case on this basis, a petition from both parties is required. However, the arbitration court must take all measures to ensure that the parties settle the dispute amicably. This is the trick.
In my practice, there was a case when the case was postponed to resolve the dispute peacefully. Although no one requested this.
The plaintiff should state that he did not receive the draft settlement agreement; he himself made more than once attempts to peacefully resolve the dispute, but the defendant ignored them. Why suddenly start negotiations now?
Of course, the defendant can respond that the draft settlement agreement has been sent and even show the postal receipt with the remark that it is still in the mail and has not yet reached you.
4. Adjournment for familiarization with the case materials or preparation for the debate (parts 3, 4 of article 65 of the Arbitration Procedure Code of the Russian Federation).
Often, the defendant’s representative does not want to study the case materials himself, but to familiarize the principal. If there is a large volume of documents, he may say that he himself needs to read it more carefully.
If the process lasted a very long time, the case is complex and ambiguous, you can postpone it to prepare the defendant for the debate.
5. Request for adjournment for the appearance of the principal.
The proxy representative may refer to the fact that he himself cannot answer a particular question. Only the principal has information about this. In this connection, a petition is being filed.
Or a representative can bring to the hearing a statement from the principal himself regarding personal participation in the court hearing.
In general, it is an indicator of unprofessionalism. This phenomenon practically never occurs in arbitration courts. If it occurs, then only in cases where the principal is a “physicist”.
“Protracted” collection of evidence and familiarization with the case
If a party does not provide the evidence required by the court, this leads to repeated postponement of the process, because without some documents it is impossible to consider the case, which means that the consideration of the dispute is delayed (resolution of the Arbitration Court of the North Caucasus District dated November 22, 2021 No. F08-8242/16 on case No. A32-47443/2014, resolution of the Arbitration Court of the East Siberian District dated August 17, 2015 No. F02-3730/15 in case No. A33-18105/2014).
Sometimes persons convicted of abuse of law try to delay the process as a whole, stretching out its individual components. This may be the choice of an expert bureau that conducts an examination within six months (appeal ruling of the Moscow City Court dated March 20, 2021 No. 33-6450/17), or studying the case for too long, for example, short time periods of 14 days instead provided by the court 10 (appeal ruling of the Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation dated November 17, 2015 No. 49-APU15-44).
○ How not to break the law?
When countering the delay of a court case, one should be careful, because if one abuses one’s rights, the plaintiff also faces punishment. Therefore you need:
- Follow the regulations.
- Avoid insulting the defendant.
- Don't be overly persistent.
- Do not complain about the judge without reason.
Thus, there are many ways to delay the consideration of a court case. But you can also prevent this if you act correctly and carefully.
Where to contact
The algorithm for considering a complaint about the delay of the trial by a judge depends on where the application is sent, as well as on what the representative of Themis is accused of.
Principles for resolving emerging conflicts:
- the decision period is strictly limited and is 30 days (if there is no need to conduct additional checks, the period can be reduced to two weeks, and if necessary, it can be increased to two months);
- the complaint is considered without the presence of the applicant;
- the applicant is notified in writing of the results of the measures taken.
In practice, there are four authorities where you can submit a letter of complaint. You can contact any of the authorities, but it is better to start with the smallest and work your way up to the highest. This will help prove that the citizen tried to resolve the conflict at the local level without involving law enforcement and government agencies. So, you can contact:
- to the chairman;
- in the KKS (qualification board);
- prosecutor's office;
- The president.
Example of a complaint to the chairman
Involvement of the Chairman
On the basis of each district court there is a Chairman who controls the activities of the assigned district judges and employees of the magistrate’s court. Therefore, it will be convenient to complain about the actions of the magistrate. The letter to the Chairman must detail the essence of the stated claims and legal requirements.
Important! The petition must be submitted before a final decision on the dispute is made. Otherwise, you will have to appeal the decision that has already been made, but not with the Chairman, but in the appellate instance.
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Appeal to the board about delaying the trial
The chairman who received the petition of the injured party must assess the objectivity of the request to delay the trial, as well as the existence of grounds for conducting an official investigation. If there are any, then the letter is forwarded further to the qualification board of judges. This is a body operating in the judicial branch of government to resolve conflicts between judges and individuals/legal entities.
The Collegium is authorized to consider letters of complaint for:
- district and magistrate judges;
- appellate workers
- complaints against the actions of the arbitration judge.
And this is the only authority that is authorized to apply disciplinary sanctions to judges.
You can see an example of a complaint to the commission here
Prosecutor's office
The prosecutor's office is a supervisory body, but judges are endowed with procedural independence, so the prosecutor cannot impose a penalty or conduct an internal audit against an employee of Themis. If the actions of an official constitute a criminal or administrative offense, the prosecutor is obliged to initiate registration of the ERDR case (unified register of pre-trial investigations) in order to bring the perpetrators to justice.
In practice, it happens that applicants send letters to the President of the Russian Federation. Such complaints are not prohibited by law and, as statistics show, every fifth letter receives a satisfactory answer. But this only applies to significant violations by the court. You can send your appeal online at https://letters.kremlin.ru/letters/send.
If you need assistance, we will assist you in filing complaints.
Video:
Rules for filing a complaint about the delay of the trial by a judge
Complaints are considered only if they are filed correctly. A letter is drawn up in Russian, taking into account the rules of document flow. The content cannot contain obscene language or ambiguous phrases. The essence is presented consistently and briefly. The letter will contain the following categories of information:
- name of the body to which the petition is sent;
- personal information of the applicant (full name, registration and actual residence address, contact telephone number);
- details of the judge whose inaction/action the complaint is being filed;
- determination of the grounds for the dispute, as well as clarification of the procedural paperwork in which the conflict arose;
- legal requirements within the framework of violations (cancel the decision, issue a challenge, appoint another judge);
- signature and date of writing the letter.
Note! To increase the chances of a speedy consideration of the complaint and a positive decision in favor of the applicant, additional evidence must be submitted. Copies of official documents, certificates, and explanations of witnesses may serve as evidence.
Presentation of an unfounded counterclaim
In some cases, courts may consider filing a counterclaim an abuse of right if the defendant did so, in particular, immediately before the court hearing and in the absence of additional arguments and objections. The Supreme Court of the Russian Federation, under similar circumstances, reminded the parties that, within the meaning of procedural legislation, the court may accept a counterclaim if, among other things, its joint consideration with the original one will lead to a faster and more correct consideration of the case. Accordingly, when this condition is not met, the acceptance of a counterclaim will lead to an unreasonable delay in the trial, since the joint consideration of two claims will only complicate the process, which would violate the rights of the plaintiff (decision of the Supreme Court of the Russian Federation of May 20, 2015 No. 304-ES15-4395, determination of the Armed Forces of the Russian Federation of April 6, 2015 No. 305-ES15-2655).
Unreasonable challenge of the court
The court may consider an attempt by a party to challenge the judges or the composition of the court to be a delay in the process (decision of the Supreme Court of the Russian Federation of July 20, 2015 No. 305-ES15-7212). We are talking about applications for recusal, which, according to the court, are repeated, unmotivated and not supported by evidence. In the case under consideration, the applications for the recusal of judges contained offensive language and expressions addressed to the judges.
Let us note that in each trial there is a closed list of cases when a judge’s recusal is required. For example, it is necessary if the judge is a relative of the person participating in the case (clause 2, part 1, article 16 of the Civil Procedure Code, clause 3, part 1, article 61 of the Criminal Procedure Code, clause 4, part 1, art. 21 of the Arbitration Procedure Code, clause 3 of part 1 of article 31 of the Code of Administrative Proceedings).
No-show
Persons participating in the case may simply not appear at the trial, without providing evidence that this happened for a good reason (appeal ruling of the Moscow City Court dated March 2, 2021 No. 33-7735/17, resolution of the Moscow City Court dated 19 July 2021 No. 10-11700/16). In such situations, courts, as a rule, pay attention to the repetition and lack of motive of such actions.
For example, the plaintiff fails to appear in court three times after filing a cassation appeal. First - to a preliminary court hearing due to being busy at work, then - to another preliminary hearing, which he asks to postpone due to his being on sick leave, and after that he does not come directly to the court hearing - without explaining the reasons at all. In this case, the court indicated, in particular, that the plaintiff had the right to entrust the conduct of the case to a representative, but did not exercise this right. In this regard, the court determined that such behavior of the plaintiff indicates his improper use of his procedural rights. As a result, the court did not once again postpone the consideration of the case, considering that this would lead to an unreasonable delay in the proceedings (appeal ruling of the Judicial Collegium for Civil Cases of the St. Petersburg City Court dated January 12, 2021 in case No. 33-262/2017) .
Ignoring subpoenas
As a rule, persons participating in the case appear at the court hearing after receiving court notices. The courts send such documents to the addresses previously specified by the parties, but if, despite this, the persons participating in the case do not receive summons to any of these addresses, the court may regard this as a delay in the trial (resolution of the Kemerovo Regional Court of November 30, 2015 No. in case No. 4A-1276/2015). However, in a particular case, the judge also made an attempt to notify the party at the cell phone numbers he provided, but the subscriber did not answer any of them.
Accordingly, it is necessary to take into account the specific circumstances of the case, because a party may not receive a summons for another reason, for example, if it was sent by the court too late. Let us recall that at the beginning of last month, the Supreme Court of the Russian Federation indicated that it is unacceptable to notify a party about a court hearing after it has been held.
