The applicant did not come to court. About consultations. (the plaintiff did not appear in court)

Publication date: 2013-11-20
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When you receive a subpoena or otherwise find out that you have a case in court, you ask yourself: is it possible not to go to court? And if not, what are the consequences of failing to appear in court?

The topic is of interest to many. Ordinary citizens who have never dealt with the judicial system and are in awe of officials are often afraid to go to court. Another option is that they believe that everything will be decided without their participation, because the outcome of the case is predetermined and everything has been bought.

Entrepreneurs also have an excuse for not appearing in court: you don’t show up, you don’t present the documents that the court asks for, and in the absence of the necessary evidence, the claim will be denied. That is, if you come to court, you will only make things worse.

In fact, all of the above is a delusion, and here's why.

Participate - influence

By not appearing in court, you deprive yourself of the opportunity to be heard. The court is obliged to find out the position of the party to the process - so why not use it? Your words can shake the confidence of the judge, even if at first the case seemed unambiguous to him.

Additionally, you can state your position in writing and submit it to the court. Such a review will certainly be attached to the case. And even if the court does not listen to your opinion, in the future, when appealing against the adopted judicial act, you can always refer to what you said about it.

And what if you submit such a review to the court office, but do not appear at the hearing? It is possible, but the written position may require clarification. Being present at the court session, you will answer the questions of the judge, and at the same time ask questions to the opposite side of the process.

Plus, just being in court, you will be able to substantiate your petitions. For example, why do you consider it necessary to conduct an expert examination on the case, why do you consider it necessary to demand additional evidence in the case or to challenge the judge.

It often happens that it is inappropriate to show some evidence to the other party at the very beginning of the trial, including attaching it to the recall. In this case, just by appearing at the court session, assessing the situation during the process, you will be able to decide whether or not to declare such evidence.

Attorney Vladimir Chikin will tell you about the prospects for your case, prepare documents and represent your interests in court. Write to or call + 7 499 390 76 96.

Silence is consent

This applies to the arbitration process. According to paragraph 3.1 of Article 70 of the Arbitration Procedure Code, the circumstances referred to by a party in support of its claims or objections are considered recognized by the other party, unless they are directly disputed by it or disagreement with such circumstances does not follow from other evidence substantiating the submitted objections regarding the substance of the stated claims. .

In other words, if you did not appear, did not dispute what the other party referred to in the trial, then you agree with this. The court without your objections will not check the reliability of these circumstances. Thus, failure to appear in court may, in fact, be an admission by you of a claim filed against you.

Turnout is a duty

It must be admitted that there are no sanctions for failure to appear in a district or arbitration court to consider a civil case.

If you do not appear for the consideration of the case on an administrative offense, there will also be no sanctions, but another negative consequence is possible - a drive. It is possible in case of non-appearance without a valid reason of an individual or a legal representative of a legal entity in respect of which proceedings are being conducted on an administrative offense, a legal representative of a minor who is brought to administrative responsibility, as well as a witness. At the same time, the court must come to the conclusion that the absence of these persons prevents a comprehensive, complete, objective and timely clarification of the circumstances of the case and its resolution in accordance with the law.

Similarly, the drive is provided for in the consideration of criminal cases in case of failure to appear on a call without good reason for the suspect, the accused, as well as the victim or witness.

Understanding the importance of participating in a court session and appearing on a court summons, you may be wondering: how to correctly state your position, how not to harm the case, how to win it? Self-study of legal literature before the court session, perhaps, will only give rise to more questions or (worse) lead you to some deliberately false solution to the problem.

Our recommendation is to trust the professionals. A lawyer specializing in litigation will help you choose the best litigation strategy and win it. He knows not only the options for resolving the dispute, but also the intricacies of participating in court hearings.

Litigation is a complex and serious process. When the case is ready for trial, the judge sets the date and time for the trial. Further, the parties to the trial and its other participants are notified when and at what address the case will be considered. To do this, they are sent subpoenas, called court notices. There are certain rules for serving subpoenas. In particular, this is done against signature, by registered mail with notification. The person who has received the summons is obliged to appear at the court session, unless there are valid reasons for not appearing in court.

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

To ensure that the trial of any case - criminal, civil or administrative - is as complete as possible, the judge must interview all persons who can report important information on the merits of the case. The plaintiff and the defendant, the suspect and the victim, as well as witnesses must appear before the court and answer the questions of the judge in detail. The more diverse data on the case, the more objective the decision will be. And since it must be fair, it is imperative that all persons to whom court notices have been sent are present in court.

Failure to appear in court without a good reason - what are the consequences?

The obligation of a person who has received a summons to appear on the appointed day and time at the court session is established by law. If a person, duly summoned to court, has ignored this duty without good reason, this is regarded as contempt of court and entails certain liability.

The degree of responsibility and sanctions depend on the capacity of a person to be summoned to court. So, if we are talking about the failure to appear at a hearing in a civil or administrative case of a participant in the process, the amount of the fine ranges from 5 thousand rubles (for an individual) to 100 thousand rubles (such a significant fine can be imposed on state authorities). When a witness misses a criminal court session without good reason, the fine may be up to 2,500 rubles.

There is also the concept of forced bringing to the court session of a participant in the process who systematically does not appear at the sessions. This is usually applied in criminal cases.

Which of the reasons for being absent from a court session are recognized as valid?

Sometimes persons summoned to a court session cannot be present for good reasons. Their list is not in legislative acts, but in practice it has long been formed. What are the valid reasons for not appearing in court?

Quite a serious illness of a participant in the trial. A serious disease is one that makes it impossible to appear in person in court. This also includes the presence of the summoned person for treatment in the hospital of a medical institution.
Too late receipt of the court summons, for example, directly on the day of the meeting, due to which the summoned person could not appear in court.
Being on a business trip or leaving for any good reason is a common good reason for the defendant or another participant in the process not to appear in court.
Inability to attend the meeting due to difficult personal circumstances (illness or death of relatives).
Force Majeure. Force majeure circumstances - various kinds of catastrophes, accidents, accidents. For example, a temporary inability to get by transport from a settlement or a pipe break in a house.

As a rule, valid reasons for failure to appear in court are limited to the above. But in each case, the court decides this issue on an individual basis.

Reasons for non-attendance that are not recognized as valid

Here everything depends on the court's assessment of the circumstances of the summoned person's failure to appear. Practice shows that, for example, leaving on a tourist voucher, even if purchased in advance, is not recognized by the court as a valid reason. A person who lives within walking distance of the court building will not be able to refer to the impossibility of getting to the court session due to transport problems.

In addition, documentary evidence of the reasons cited by the person is required. A certificate from the hospital with a doctor's signature and a seal, a travel list, a certificate from the housing department about the accident of utility systems in the house - such documents must be provided to confirm good reasons for not appearing in court.

Actions exempting from the consequences of failure to appear in court

There is a legal possibility to miss a court session and avoid liability for failure to appear. It is enough to apply to the court in advance with a request to postpone the scheduled meeting or consider the case in your absence. In this case, there is no need for special good reasons for not appearing in court, it is enough to refer to the impossibility of attending the meeting “for family reasons”. Usually the court is loyal to such statements and postpones the court session without negative consequences for the applicant.

Both marriage and divorce is a procedure that is possible only with the knowledge of the spouses. Being divorced without knowing anything about it is impossible.

But if an administrative divorce (through the registry office) requires the obligatory presence of a husband and wife, then a divorce through the court can be made without the presence of one or even two spouses. In this case, the court must notify the parties - the plaintiff and the defendant - about the beginning of the trial, about the appointment of court hearings, about the decision on the case.

According to Art. 113 of the Code of Civil Procedure of the Russian Federation, the main method of notification is to send a subpoena to the place of residence of the spouses ...

by registered mail;
by telegram;
telephone message;
SMS message;
other means of communication.

The notice must contain the date, time and place of the court session. It is sent in advance so that the parties have enough time to prepare for the upcoming court session. If one of the parties received the notification too late - on the day of the meeting or several days before - this is a good reason to file a motion to postpone the meeting.

A notice properly sent is deemed to have been received. The materials of the court case must contain a document (a notice of delivery of a registered letter, a “stub” of a court summons) signed by the plaintiff or the defendant, notified of the date, time and place of the upcoming court session.

What if a husband or wife (usually the defendant) refuses to receive a registered letter or subpoena? The way out of this situation can be ...

issuance of a summons to the plaintiff for transfer to the defendant (according to Article 115 of the Code of Civil Procedure of the Russian Federation). If the defendant refuses to accept the summons from the hands of the plaintiff, it is necessary in the presence of a witness to make an appropriate note on the summons and return it to the court.
use of the respondent's personal or work phone number. The law does not contain a ban on notifying the parties by telephone or SMS, including through the employer.
sending a telegram to the defendant at the place of residence with a notification of delivery to the addressee. If the defendant refuses to accept the telegram from the hands of the postman, you need to make an appropriate note on it: “The telegram was not delivered due to the refusal of the addressee” and return it to the court.

According to Art. 117 Code of Civil Procedure of the Russian Federation, in each of the listed cases, the defendant who refused to accept the notification is considered to be duly notified.

Thus, in order to consider a divorce case without violating the procedural rights of the parties, it is not so much the appearance or absence of the parties that is important, but the proper notification of the parties about the date, time and place of the court session.

What happens if you don't go to divorce court?

On the appointed day and time, the parties must attend the court. Or, if there are valid reasons preventing attendance, inform the court and ask to postpone the meeting.

The civil procedure law does not provide for any penalty applicable to parties for missing court hearings. Fines are not collected from the plaintiff and defendant and other measures of administrative liability for missing court sessions are not applied. A fine may be collected only from an interpreter, witness, expert or specialist, if the court invites them to participate in the court session.

But, according to Art. 99 Code of Civil Procedure of the Russian Federation, the court may recover in favor of one of the parties monetary compensation for the lost time, if the other party filed an unfair claim or otherwise prevented the correct and timely consideration of the case. The expediency of applying such a measure and the amount of monetary compensation shall be established by the court.

Will they divorce if one of the spouses did not come to court?

One of the most common questions that our lawyers are asked is: will the court divorce the spouses, one of whom will not attend court hearings?

Question

I decided to divorce my wife, but she categorically does not support my decision. The wife did not come to the first, preliminary court session. It was decided to postpone the court session, but the wife is unlikely to agree to come next time. Will my wife and I be divorced if she never appears at any court session?

Answer

Even if the spouses did not agree on the dissolution of the marriage, this does not mean that the court will refuse to satisfy the claim. You can't force a wife to agree to a divorce. But you cannot be forced to stay married against your will either. The claim will be accepted and considered, even if your spouse expresses categorical disagreement, no matter how it is expressed, including non-attendance of court hearings.

Divorce in the absence of one of the spouses is possible. But for this, the following conditions must be met:

If the plaintiff or defendant is unable to attend court, he must prepare and file a petition for consideration of the case in his absence(according to paragraph 5 of article 167 of the Code of Civil Procedure of the Russian Federation).
If the plaintiff or the defendant filed a motion in which he asked to postpone the court session due to the occurrence of valid reasons, the court may adjourn the meeting. The final decision is not made, the consideration of the case is postponed, the parties are sent a ruling on the postponement of the court session and the agenda indicating its date, time and place.
If a party fails to notify the court of the presence of valid reasons for the absence, the court has the right to consider the case without the absent party- subject to proper notice;

Let us consider in more detail what are the features of skipping court hearings by the plaintiff or the defendant.

Plaintiff did not come to court

It is one thing if the defendant “boycotts” the trial, for example, with a categorical unwillingness to divorce, but it is quite another thing if the direct initiator of the divorce procedure does not appear on the appointed day and time.

Missing a court session on the part of the plaintiff is the reason for delaying or even terminating the trial. Of course, the absence of the plaintiff at the very first court session will not entail the refusal of the court to consider the case. What will the court do in such a case? If the plaintiff has not previously informed the court of the reason for his absence and has not filed a motion to consider the case without him, the court is likely to reschedule the trial. The parties will be re-sent notifications of the date and time of the next meeting.

At the same time, the court will clarify the defendant's position on the subject of the family dispute. If it turns out that the defendant does not want to get a divorce, another missed court session by the plaintiff will be fraught with the termination of the trial and the return of the claim. If the defendant does not object to the divorce, he can prevent the return of the claim and ask the court to make a decision without the presence of the plaintiff.

In most cases, repeated non-appearance of the plaintiff - the basis for the return of the claim and termination of the trial. At the same time, the law does not forbid the plaintiff to re-file the claim, or to challenge the court ruling on the return of the claim, if the reasons for missing the court session were nevertheless valid.

Defendant did not come to court

Deliberate boycott of the divorce process by the defendant is a very common occurrence. Many people think that skipping court hearings is a way to “buy time” or even avoid divorce. But it's not.

What does the court do if the defendant does not come at the appointed time?

If the defendant notified the court in advance of the impossibility of attending the court session, the course of the case may be as follows:

case review and adjudication without defendant, if he expressed his opinion in writing;
adjournment of a court session if the reasons for the non-appearance of the defendant are valid, which is confirmed by the necessary documents (according to Art. 167 of the Code of Civil Procedure of the Russian Federation).

As a rule, the court session is postponed even if no notice has been received from the defendant. But such a transfer is possible no more than three times. Summons are sent to the parties again. And if the respondent, duly notified, does not receive a response, the case is considered without it - in absentia. A court decision in absentia may be canceled if, within 7 days, a corresponding application is received from the defendant, accompanied by arguments and evidence that may affect the court decision.

Sometimes the defendant does not come to court just because he does not even know about the divorce proceedings. For example, if he does not live at the address indicated in the statement of claim. Is from the side of the wife or husband.

Both spouses did not come

If the spouses agree to a divorce, they can take steps in advance to avoid attending court hearings at all.

What is needed for this?

from the plaintiff- petition for consideration of the case in his absence;
from the defendant– a written and notarized consent to divorce and a petition for consideration of the case in his absence;
from the plaintiff and/or defendant– a notarized power of attorney to represent interests in court by a trustee (with a list of powers).

If one of the spouses did not appear for divorce at the registry office

Administrative divorce (through the registry office) is a much simpler and faster procedure than a judicial divorce process, but a number of conditions must be met for it to be carried out.

Consent of husband and wife to divorce.
Childlessness of a married couple;
The absence of disputes between husband and wife (for example, on the division of housing, on the collection of payments for a disabled spouse) that require litigation.

The first condition - the consent of the spouses to divorce - must be expressed in the simultaneous visit of the husband and wife to the registry office and.

True, there is an exception for those spouses who, for various reasons, cannot apply together. In this case, only one of them is sent to the registry office, but not as a joint application, but with two separate applications. The signature on the application of the absent spouse must be notarized.

Thus, the presence of a husband and wife when applying for a divorce at the registry office is mandatory. But the marriage is not dissolved immediately, but 30 days after the application is submitted, and during the procedure for dissolution of the marriage, the presence of at least one of the spouses is sufficient. The absence of both divorcing spouses is the basis for the annulment of the application for divorce. If, for valid reasons, the appearance of the spouses at the registry office at the appointed time is not possible, you need to warn about this and ask for the transfer of the registration procedure.

Unilateral divorce in the registry office, when the presence of the second spouse is impossible or not necessary - this is an exception provided for in paragraph 2 of article 19 of the RF IC. Such a course of action is possible if the second spouse ...

Sentenced to imprisonment for a term of 3 years;
Recognized in judicial order dead or missing;
Incompetent, as established by a court decision.

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The trial is full of surprises and surprises. It happens that one of the parties does not appear at the hearing when considering the case. It can be both the plaintiff and the defendant. In such cases, the court has the right to consider the dispute without their participation, that is, in absentia. The result of such consideration will be the corresponding decision of the court.

Notice of place and date of trial

The obligation to notify the parties of the date and place of consideration of the filed claim lies with the court. This is done by serving subpoenas to each of the defendants (if there are several). The employees of the post offices are obliged to hand over the summons against receipt.

If the procedure for notifying the defendants is violated, i.e., failure to notify them of the date and place of the trial with their participation, notifying them untimely or in violation of the procedure for such notification, the consequences provided for by the provisions of the current civil procedural legislation may arise. In particular, the defendant has the right to appeal a court decision in absentia issued in a case in which he is a party.

Rights of plaintiff and defendant

After the defendant has received a summons to appear in court in the case, he has the right to notify the court of the impossibility to appear in court for a good reason. These reasons should be understood as:

inability to appear due to illness;
the action of force majeure or natural circumstances that prevent the appearance;
stay on a business trip or abroad, which makes it impossible to timely appear in court and others.

In such cases, the defendant has full right file an application for the postponement of the date of consideration of the case.

The plaintiff, in the event of the defendant's failure to appear at the hearing, has the right to file an application for adjournment of the trial until the defendant's appearance or to agree to conduct a trial in absentia in the absence of the other party.

Also, the trial will be postponed if the plaintiff expands or changes the subject of his statement of claim or the other party has exercised his right to file a counterclaim. In the latter case, both parties must be involved in the proceedings. The defendant, however, as well as the plaintiff, may participate in the case through their representatives. In this case, the representatives must have the appropriate authorizing documents - a power of attorney, an agreement or an attorney's order.

Can I appear in court without a summons?

You can appear in court without a summons, but then you will need to explain to the court why you do not have a letter with a summons and how you were notified of the date and time of the court session. The main thing is that you, as a participant in the process, appear in court, as this plays to your advantage and there are chances to win the case. If you know that there will be a loss in the case, then you can send a notice to the court that the case be considered in your absence and attach documents confirming your absence for a good reason, and the presence of the summons itself is not a prerequisite if you are going to go to court on one's own. It is important for the court to know whether you were notified of the hearing or not.

The summons arrives by letter in advance before the appointed date of the court, but provided that there are no failures in the work of the Russian post office, then there will be time to receive a registered letter with a summons, and of course to prepare for the court, as well as familiarize yourself with the materials of the criminal or civil case.

Attention

Important: If a letter with a subpoena has arrived, then do not waste time and find out in what case you are called and in what capacity.

Important

The summons can come, as already mentioned, only by registered mail and only you can receive it.

People often ask me, and after how many days a letter with a subpoena arrives, I’ll tell you as it usually happens. The plaintiff files a lawsuit, and the court considers the statement of claim, and if it accepts, then preparations are underway for the court session with the notification of other participants in the process, whether it is a criminal or civil case. Here the notification of the date and time of the court session itself takes place by telephone, that is, they can simply call you on the phone and tell you about the date and time of the court session, but at the same time they send the summons by registered mail and say for what exact time the summons will reach the addressee to anyone it is not known, but for example, in Moscow such letters from the ASC take about 7 days.

What happens if you don't show up in court?

All the same, if you have already received the subpoena, then either you need to come to court or send an appropriate notice about the impossibility of appearing at the court session, otherwise the court may think about delaying the case, which is not very good. Also, if the court ruled that the attendance of a participant in the process is mandatory, then the court will be postponed very often and for a long time, and the person to whom the obligation to appear will be brought to court forcibly or fines will be imposed on this participant in case of evasion.

The court sometimes sends the summons to the place of work, if it was not possible to deliver the summons to the address of permanent registration, but it also comes to the point that the letter carrier can hand the summons personally to you and notify you of the court case. Of course, if the case concerns an administrative offense, then more often the courts issue decisions in absentia, but it’s better not to bring it to this, but it is desirable to defend your rights and win!

Called as a witness and what happens if you don't show up?

The law is arranged in such a way that witnesses are the most significant participants in the process and without their testimony, a criminal or civil case can be considered from a different angle, and here the court always warns witnesses who come to court about criminal liability for giving false testimony and I want to note that the plaintiff and the defendant they are not warned about criminal liability, so I think it is now clear that for a correct and fair decision of the court it is desirable that there are witnesses in the case and preferably not one. However, if you have received a subpoena in a criminal case, and the person who is being defended is not familiar to you, then it is better not to refuse to go to court, as in this case you may be forcibly taken to court.

You can talk for a long time about subpoenas, letters, correct notifications, but the main thing here is the timing of notifications and your control. If you don’t know what to do, then write to me and we’ll think about what to do, since everyone has their own case and it is individual and do not delay the solution of the issue in civil and especially criminal cases. Sincerely, Your Law