By Decree No. 206 On Declaring Non-Working Days in the Russian Federation dated 25 March 2020 ("Decree No. 206") the President of the Russian Federation announced that from 30 March 2020 until 3 April 2020 would be considered non-working days in the Russian Federation. On 2 April 2020, the President of the Russian Federation issued Decree No. 239 On Measures to Ensure Sanitary and Epidemiological Wellbeing of the Population in the Russian Federation due to the Spread of a New Coronavirus Infection (COVID-19) ("Decree No. 239"), thus extending this period until April 30, 2020. Both had a profound impact on the procedural time limits and functioning of courts in the Russian Federation.
To eliminate the uncertainty that has arisen in this regard, providing for the right to a reasonably speedy trial, in Letter No. 7-VS-1848/20 dated 1 April 2020 Deputy Chairman of the Supreme Court of the Russian Federation (the "Supreme Court") - Chairman of the Judicial Board for Economic Disputes of the Supreme Court, Oleg M. Sviridenko, gave the following recommendations (the "Recommendations"):
- if the trial is postponed until, or scheduled for, a day, which is a non-working day, it will recommence on the first working day (6 May 2020)
- on the first working day, the trial will be postponed, a new hearing will be scheduled, the persons participating in the case and other participants of the commercial (arbitrazh) proceedings will be notified of this1
- the period for which the trial is postponed does not affect its length
1. Non-working days
According to article 114(4) of the Commercial (Arbitrazh) Procedure Code of the Russian Federation (the "CPC"), if the last day of a time limit falls on a non-working day, the time limit will expire on the first working day.
The Plenum of the Highest Commercial (Arbitrazh) Court of the Russian Federation (the "Highest Commercial Court") once clarified2 that the term "non-working days" means weekend days (Saturdays and Sundays) and public holidays identified as such in the labor legislation of the Russian Federation.
However, the non-working days established in Decree No. 206 and Decree No. 239 are not considered weekend days or public holidays (based on the general approach in the recommendations to employees and employers in connection with Decree No. 206).3 This constitutes an uncertainty.
In our view, unfortunately, the Recommendations do not fully address the issue.
2. Terms of stays of proceedings
The Recommendations advise on the timing of stays of proceedings (in accordance with article 158 of the CPC), leaving unattended the matters of filing documents after the statutory deadline has expired.
According to case law, if the applicant had an opportunity to file documents by registered mail with delivery notification or through the "Moi Arbitr" information system, courts will not restore missed procedural deadlines in accordance with article 117 of the CPC.4
Until 8 April 2020, filing documents to many courts was quite difficult, given the high-alert regimes implemented in almost every constituent entity of the Russian Federation, as well as the ever-evolving regulations.5
In this regard, on 8 April 2020, the Presidium of the Supreme Court and the Presidium of the Council of Judges of the Russian Federation adopted Resolution No. 821 (the "Resolution"),6 which recommended that the courts, in particular:
- ensure timely reception, processing and registration of documents submitted by registered mail with delivery notification and through the "Moi Arbitr" information system
- decide disputes during the period of non-working days established in Decree No. 239 (taking into account the circumstances of the case, opinions of the participants in the proceedings and conditions of the high-alert regime in the constituent entity of the Russian Federation)
- decide disputes by using video conferencing systems if technically possible
The clarifications set out in the Resolution may affect the restrictions imposed by the courts and, consequently, access to justice. Moreover, in our opinion, the Recommendations are largely abstract and, in some parts, contradictory. For example, independent decision-making in relation to resolution of disputes, which are not related to urgent cases,7 cannot be resolved in writ (summary) proceedings, among others, during the period of non-working days established in Decree No. 239, makes the list of exceptions in paragraph 3 of the Resolution rather meaningless.
Therefore, we assume that some courts will restore missed procedural deadlines for filing documents if the applicant proves that it was not possible to comply with the requirements of the law. However, in our opinion, it is sensible to adhere to the requirements established by the law and take reasonable efforts to send documents to the court (for example, by e-mail, through the "Moi Arbitr" information system, by registered mail with delivery notification).
3. Fair and reasonably speedy trial
According to article 118(1) of the CPC, the procedural time limits established by a court may be extended at the request of a person participating in the case.
This raises the following uncertainty: whether the implementation of the Recommendations will be carried out by the courts themselves or whether the stay of proceedings will be effected at the request of persons participating in the case (taking into account the circumstances set out in section 2 of this alert).
In any case, in our opinion, a conservative approach should be followed: it is sensible to regularly monitor information about the status of the case on the official website of the court on the Internet, clarify the court's working hours (for example, by e-mail) and send requests to the court in advance to postpone the trial (unless the court's consideration of the case in the absence of the parties is more appropriate).
This alert is not an exhaustive description of all positions set out in Decree No. 206, Decree No. 239, the Recommendations and Resolution, does not constitute a legal opinion on the issues set out therein, and does not constitute and cannot replace a legal advice in a specific situation.
1 For the most part, no trial will be held during the period of non-working days. However, this matter will ultimately be resolved by the specific court
2 See paragraph 2 of ruling No. 99 of the Highest Commercial Court On Procedural Time Limits dated 25 December 2013
3 See the recommendations to employees and employers in connection with Decree No. 206 (26 March 2020) available at https://rosmintrud.ru/labour/relationship/379
4 See, e.g., rulings of the Commercial (Arbitrazh) Court of the Moscow District No. F05-9901/2019 dated 17 June 2019 in case No. A40-194337/2017 and No. F05-11566/2017 dated 31 July 2017 in case No. A41-67122/2016, ruling of the Commercial (Arbitrazh) Court of the Northwestern District No. F07-5381/2016 dated 23 June 2016 in case No. A56-62050/2015
5 At the same time, as case law demonstrates, courts do not generally recognize the emergency regime imposed on the territory a constituent entity of the Russian Federation as a valid reason for restoring missed procedural deadlines (see, e.g., ruling of the Commercial (Arbitrazh) Court of the Far Eastern District No. F03-1586/2018 dated 25 April 2018 in case No. A59-1173/2016, decision of the Federal Commercial (Arbitrazh) Court of the East Siberian District dated 23 May 2013 in case No. A69-1520/2012, ruling of the Federal Commercial (Arbitrazh) Court of the Far Eastern District No. F03-3678/2009 dated 10 August 2009 in case No. A59-2942/2008)
6 The Resolution declared invalid Resolution of the Presidium of the Supreme Court and the Presidium of the Council of Judges of the Russian Federation No. 808 dated 18 March 2020
7 The Resolution provides for a non-exhaustive list of urgent cases that may be considered by courts during the period of non-working days established by Decree No. 239
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.