The Russian Supreme Court has given explanations on certain issues of the application of procedural legislation associated with the consequences of the COVID-19 pandemic
On 21 April 2020 the Praesidium of the Russian Supreme Court approved its Review No. 1 of certain issues of case law associated with the application of the legislation and measures on preventing the spread of the new coronavirus infection (COVID-19) in the Russian Federation.
In the areas of procedural legislation the special attention should be given to the particular explanations specified below.
The Russian Supreme Court has explained that the introduction of restrictive measures aimed at preventing the spread of the coronavirus cannot serve as an unconditional ground for postponing court proceedings.
The suspension of proceedings on a case is possible if persons involved in the case have no opportunity to participate in the court hearing in connection with such measures.
The complexity of the consideration of the case in the conditions of restrictive measures being in force can also serve as a ground for extending the timeframes of the case.
However, please note that these instructions are not unconditional. The court should resolve the issue concerning the need to postpone a hearing, suspend proceedings or extend the timeframe for the consideration of a case, taking into account the circumstances of the specific case and the need to comply with the timeframes for the consideration of the case and a reasonable timeframe for court proceedings.
Therefore, the Supreme Court has slightly extended the Resolution dated 8 April 2020 by establishing a wider and more open list of cases which can be considered.
Nevertheless, the recommendation to monitor court cases (including by receiving the latest information by telephone from assistants of judges) becomes even more topical.
Thus, when answering question 2 of the Review, the Russian Supreme Court, referring to provisions of procedural legislation, specifies that the deadlines calculated by days do not include non-working days, and if the last day of the procedural deadline is a non-working day, then the day when the deadline expires is considered the next working day.
Regardless of these provisions of procedural legislation, the Russian Supreme Court further clarifies that the “non-working days in the period from 30 March until 30 April 2020 are included in procedural deadlines and do not serve as a ground for rescheduling the expiration of the procedural deadline on the next working day”, since the regime of non-working-days does not cover federal executive bodies, including courts.
It should also be noted that this explanation is retrospective in nature. According to the Review, even if the last day of a procedural deadline (for example, for filing an appeal) was in the period before this Review was adopted, i.e. before 21 April 2020, then it still should be calculated according to the procedure provided for by the Review. Accordingly, if the corresponding procedural action was not performed then the deadline for its performance will be considered missed.
RECOMMENDATIONS: Regardless of the stated contradictions, we recommend presuming that non-working days introduced by decrees of the Russian President have no influence on the calculation of the procedural deadlines and performance of all procedural actions within the established deadlines.
However, if the deadline has been (or will be) missed then it is necessary to file a petition asking for the missed procedural deadline to be restored. It is noted in the Review that the restrictive measures associated with the prevention of the spread of the coronavirus, such as the restriction of the free movement of the public, or changes in the work of bodies and organisations, can serve as a ground for the restoration of procedural deadlines. Nevertheless, it is obvious that this approach will be applied taking into account the specific situation (the continuation of the work of the company, format of its work, number of representatives, restrictions in the specific region, and similar).
It is impossible to foresee the approach of courts to the restoration of deadlines missed in connection with the restrictive measures. For this reason we recommend avoiding formalism when drafting motions and to fill them with the maximum possible quantity of arguments and evidence.
In the areas of procedural legislation the special attention should be given to the particular explanations specified below.
I. Issues of the application of procedural legislation
1. The postponement of court proceedings, a suspension of proceedings on a case, and the extension of the timeframes for consideration of the case
The Russian Supreme Court has explained that the introduction of restrictive measures aimed at preventing the spread of the coronavirus cannot serve as an unconditional ground for postponing court proceedings.
The suspension of proceedings on a case is possible if persons involved in the case have no opportunity to participate in the court hearing in connection with such measures.
The complexity of the consideration of the case in the conditions of restrictive measures being in force can also serve as a ground for extending the timeframes of the case.
However, please note that these instructions are not unconditional. The court should resolve the issue concerning the need to postpone a hearing, suspend proceedings or extend the timeframe for the consideration of a case, taking into account the circumstances of the specific case and the need to comply with the timeframes for the consideration of the case and a reasonable timeframe for court proceedings.
RECOMMENDATIONS: In such situation we believe that it is crucial to monitor the status of the case and when it is scheduled for hearing (during the ‘non-working period’) to file motions to postpone with a detailed substantiation of the impossibility (or significant difficulty) for the representatives to participate in the court hearing, referring to the restrictive measures taken in the specific region (the region of the representative and the region where the court is located) and the impossibility for the case to be considered in their absence.
Please note that, irrespective of the possibility to hold hearings in separate regions, the measures taken in these regions may cover the representatives of parties that have arrived from other constituent entities of the federation (mandatory quarantine, etc.). The court may not see the grounds for postponing a hearing in such situation, and in connection with this we recommend using the opportunity of holding hearings using video-conference calls and online video-conferences.
In addition, the following cases must be considered:
Please note that, irrespective of the possibility to hold hearings in separate regions, the measures taken in these regions may cover the representatives of parties that have arrived from other constituent entities of the federation (mandatory quarantine, etc.). The court may not see the grounds for postponing a hearing in such situation, and in connection with this we recommend using the opportunity of holding hearings using video-conference calls and online video-conferences.
2. The categories of cases whose consideration is possible within the period when restrictive measures are in force
The Russian Supreme Court has directly confirmed the possibility of considering cases that can be delayed. The courts independently decide concerning the possibility to consider the specific case taking into account its circumstances, the opinion of the parties to the proceedings, and taking into account the specifics and restrictions introduced in each constituent entity of the Russian Federation.In addition, the following cases must be considered:
- all cases considered under the ordered or simplified procedure, parties to which have filed motions for the case to be considered in their absence;
- appeals and submissions that should be considered without a court hearing being held;
- issues for the consideration of which a court hearing is not required (correction of errors, typos, mistakes).
This explanation relates more to employees of courts (since at the beginning of the period of non-working days many courts fully stopped not only considering cases, but working as well). The Russian Supreme Court has in fact explained that the consideration of cases should continue in the scope in which the personal presence of the parties (their representatives) is not required, and the specifics of the situation in each region should be taken into account, in view of which not only the cases that cannot be delayed can be considered.
Therefore, the Supreme Court has slightly extended the Resolution dated 8 April 2020 by establishing a wider and more open list of cases which can be considered.
Nevertheless, the recommendation to monitor court cases (including by receiving the latest information by telephone from assistants of judges) becomes even more topical.
3. Expiration of procedural deadlines
Resolving the issue of the influence of non-working days from 30 March until 30 April 2020 on procedural deadlines, the Russian Supreme Court gives contradictory explanations.Thus, when answering question 2 of the Review, the Russian Supreme Court, referring to provisions of procedural legislation, specifies that the deadlines calculated by days do not include non-working days, and if the last day of the procedural deadline is a non-working day, then the day when the deadline expires is considered the next working day.
Regardless of these provisions of procedural legislation, the Russian Supreme Court further clarifies that the “non-working days in the period from 30 March until 30 April 2020 are included in procedural deadlines and do not serve as a ground for rescheduling the expiration of the procedural deadline on the next working day”, since the regime of non-working-days does not cover federal executive bodies, including courts.
This approach not only contradicts the provisions of the procedural legislation concerning deadlines, but is also at odds with the position of the Russian Supreme Court which was stated in Letter No. 7-VS-1848/20 dated 1 April 2020[1].
It should also be noted that this explanation is retrospective in nature. According to the Review, even if the last day of a procedural deadline (for example, for filing an appeal) was in the period before this Review was adopted, i.e. before 21 April 2020, then it still should be calculated according to the procedure provided for by the Review. Accordingly, if the corresponding procedural action was not performed then the deadline for its performance will be considered missed.
RECOMMENDATIONS: Regardless of the stated contradictions, we recommend presuming that non-working days introduced by decrees of the Russian President have no influence on the calculation of the procedural deadlines and performance of all procedural actions within the established deadlines.
However, if the deadline has been (or will be) missed then it is necessary to file a petition asking for the missed procedural deadline to be restored. It is noted in the Review that the restrictive measures associated with the prevention of the spread of the coronavirus, such as the restriction of the free movement of the public, or changes in the work of bodies and organisations, can serve as a ground for the restoration of procedural deadlines. Nevertheless, it is obvious that this approach will be applied taking into account the specific situation (the continuation of the work of the company, format of its work, number of representatives, restrictions in the specific region, and similar).
It is impossible to foresee the approach of courts to the restoration of deadlines missed in connection with the restrictive measures. For this reason we recommend avoiding formalism when drafting motions and to fill them with the maximum possible quantity of arguments and evidence.
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[1] “If the last day of the deadline to which the court proceedings are postponed is a non-working day (including days that were announced non-working for the purposes of ensuring the sanitary and epidemiological safety of the public), then taking into account article 114(4) of the Russian Commercial Procedure Code the day when such deadline expires is the next working day”.