Lecture No. 16. Proceedings in court with the participation of foreign citizens

1. Procedural rights and obligations of foreign persons

In civil proceedings, foreign persons are understood to mean both foreign persons and stateless persons, foreign and international organizations. The legal status of foreign citizens in the Russian Federation is determined by the Federal Law of July 25, 2002 No. 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation". According to this federal law foreign citizen - an individual who is not a citizen of the Russian Federation and has evidence of citizenship (nationality) of a foreign state; a a stateless person - an individual who is not a citizen of the Russian Federation and does not have evidence of citizenship (nationality) of a foreign state.

Foreign organization - an organization established abroad. There is no specific definition of an international organization in the legal literature. In the science of public international law, signs of international organizations are distinguished, in accordance with which it is possible to define an international organization.

International organization - an association of states or national societies, associations, citizens of various states, established on a permanent basis, having governing bodies and acting to achieve certain goals.

According to Art. 62 of the Constitution of the Russian Federation, foreign citizens and stateless persons enjoy rights in the Russian Federation and bear obligations on an equal basis with citizens of the Russian Federation, except in cases established by federal law or an international treaty of the Russian Federation. According to Art. 398 Code of Civil Procedure of the Russian Federation, foreign citizens, stateless persons, foreign organizations, international organizations have the right to apply to the courts in the Russian Federation to protect their violated or contested rights, freedoms and legitimate interests. However, the Code of Civil Procedure of the Russian Federation also provides for such a provision that the Government of the Russian Federation may impose retaliatory restrictions on foreign persons of those states in whose courts the same restrictions on the procedural rights of Russian citizens and organizations are allowed.

It should also be pointed out that foreign citizens cannot be representatives in court or act in defense of the rights and legitimate interests of citizens of the Russian Federation.

2. Legal capacity of foreign international organizations

The Code of Civil Procedure of the Russian Federation stipulates that the civil procedural legal capacity and legal capacity of foreign citizens, stateless persons are determined by their personal law. In Art. 399 Code of Civil Procedure of the Russian Federation defines personal law. This is the right of the country of which the citizen has citizenship. If a citizen, along with Russian citizenship, also has foreign citizenship, his personal law is considered to be Russian law.

If a citizen has several foreign citizenships, his personal law shall be the law of the country in which the citizen has a place of residence. If a foreign citizen has a place of residence in the Russian Federation, Russian law is considered his personal law.

The personal law of a stateless person is the law of the country in which this person has a place of residence. A person who is not procedurally capable on the basis of a personal law may be recognized as procedurally capable in the territory of the Russian Federation if, in accordance with Russian law, he has procedural capacity.

With regard to the legal capacity of a foreign and international organization, it is determined in accordance with the personal law of a foreign organization or with an international treaty. According to Art. 400 Code of Civil Procedure of the Russian Federation personal law of a foreign organization considered the law of the country in which the organization is established. On the basis of the personal law of a foreign organization, its procedural legal capacity is determined.

A foreign organization that does not have procedural legal capacity in accordance with a personal law, as well as a foreign person, may be recognized on the territory of the Russian Federation as legally capable in accordance with Russian law. The procedural legal capacity of an international organization is established on the basis of an international treaty in accordance with which it was created, its constituent documents or an agreement with the competent authority of the Russian Federation.

Foreign citizens or foreign and international organizations may conduct their cases in court through representatives. Representatives in this case can be citizens of the Russian Federation, a lawyer, a law firm (having a permit or license), as well as a foreign lawyer and law firm.

3. Jurisdiction of cases involving foreign citizens

The jurisdiction of cases involving foreign citizens is determined in accordance with the provisions of Ch. 3 Code of Civil Procedure of the Russian Federation.

Courts in the Russian Federation are also entitled to consider cases involving foreign persons in cases where (Article 402 of the Code of Civil Procedure of the Russian Federation):

1) the governing body, branch or representative office of the foreign entity is located on the territory of the Russian Federation;

2) the defendant has property located on the territory of the Russian Federation;

3) in the case of the recovery of alimony and the establishment of paternity, the plaintiff has a place of residence in the Russian Federation;

4) in the case of compensation for harm caused by injury, other damage to health or death of the breadwinner, the harm was caused on the territory of the Russian Federation or the plaintiff has a place of residence in the Russian Federation;

5) in the case of compensation for damage caused to property, the action or other circumstance that served as the basis for filing a claim for compensation for damage took place on the territory of the Russian Federation;

6) the claim arises from an agreement under which full or partial performance must take place or took place on the territory of the Russian Federation;

7) the claim stems from unjust enrichment that took place on the territory of the Russian Federation;

8) in the divorce case, the plaintiff has a place of residence in the Russian Federation or at least one of the spouses is a Russian citizen;

9) in the case of protection of honor, dignity and business reputation, the plaintiff has a place of residence in the Russian Federation.

The exclusive jurisdiction of courts in the Russian Federation includes (Article 403 of the Code of Civil Procedure of the Russian Federation):

1) cases on the right to immovable property located on the territory of the Russian Federation;

2) cases on disputes arising from the contract of carriage, if the carriers are located on the territory of the Russian Federation;

3) cases of divorce of Russian citizens with foreign citizens or stateless persons, if both spouses have a place of residence in the Russian Federation;

4) cases on the case of establishing a fact of legal significance, or a fact that needs to be established, has taken place or is taking place on the territory of the Russian Federation;

5) cases, if a citizen in respect of whom an application for adoption (adoption) is being filed, on limiting the legal capacity of a citizen or on declaring him incompetent, on declaring a minor as fully capable (emancipation), on involuntary hospitalization in a psychiatric hospital, on extending the period of involuntary hospitalization of a citizen , suffering from a mental disorder, about a compulsory psychiatric examination, is a Russian citizen or has a place of residence in the Russian Federation;

6) cases where the person in respect of whom an application is filed for recognition as missing or declared dead is a Russian citizen or had the last known place of residence in the Russian Federation, and the establishment of the rights and obligations of citizens with a place of residence in the Russian Federation depends on the resolution of this issue. Russian Federation, organizations located in the Russian Federation;

7) cases on recognizing a thing located on the territory of the Russian Federation as ownerless or on recognizing the right of municipal ownership to an ownerless immovable thing located on the territory of the Russian Federation;

8) cases on the invalidation of a lost bearer security or order security issued by a citizen or a citizen who has a place of residence in the Russian Federation, or an organization or organization located on the territory of the Russian Federation, and on the restoration of rights in respect of them (call proceedings).

The parties among themselves, if one of the parties is a foreign person, may conclude a prorogation agreement, that is, change the jurisdiction of the case in advance before the court accepts it for consideration. The case, which was accepted by the court of the Russian Federation for proceedings, is resolved by it on its merits, even if due to a change in citizenship, place of residence or location of the parties, or other circumstances, it became within the jurisdiction of the court of another country (Article 405 of the Code of Civil Procedure of the Russian Federation).

4. Recognition and enforcement of decisions of foreign courts

Documents issued, drawn up or certified in accordance with foreign law in the prescribed form by the competent authorities of foreign states outside the Russian Federation in relation to Russian citizens or organizations or foreign persons are accepted by the courts in the Russian Federation in the presence of legalization, unless otherwise provided by an international treaty of the Russian Federation or federal law .

At the same time, documents drawn up in a foreign language must be submitted to the courts in the Russian Federation with a duly certified translation into Russian (Article 408 of the Code of Civil Procedure of the Russian Federation).

Decisions of foreign courts, including decisions on the approval of amicable agreements, are recognized and enforced in the Russian Federation, if this is provided for by an international treaty of the Russian Federation. The decision of a foreign court may be brought for enforcement within 3 years from the date of entry into force of the decision of a foreign court (Art. 409 Code of Civil Procedure of the Russian Federation). A claimant may file a petition for enforcement of a foreign court decision at the place of residence of the debtor or at the location of the debtor in the Russian Federation. If the location of the debtor in the Russian Federation is unknown, then the petition is filed with the court at the location of his property.

A petition for the enforcement of a foreign court decision must contain (Article 411 of the Code of Civil Procedure of the Russian Federation):

1) the name of the exactor, his representative, if the application is submitted by a representative, an indication of their place of residence, and if the exactor is an organization, an indication of its location;

2) the name of the debtor, an indication of his place of residence, and if the debtor is an organization, an indication of its location;

3) the request of the exactor for permission to enforce the decision or for an indication of the moment from which its execution is required.

Documents provided for by an international treaty of the Russian Federation are attached to the application, and if this is not provided for by an international treaty, the following documents are attached:

1) a copy of the decision of the foreign court, certified by a foreign court, for permission for the enforcement of which a petition has been initiated;

2) an official document stating that the decision has entered into legal force, if this does not follow from the text of the decision itself;

3) a document on the execution of the decision, if it was previously executed on the territory of the relevant foreign state;

4) a document from which it follows that the party against whom the decision was made and which did not take part in the proceedings was notified in a timely manner and in the proper manner of the time and place of the consideration of the case;

5) certified translation of documents into Russian.

The court may refuse to enforce the decision of a foreign court if there are the following grounds (Article 412 of the Code of Civil Procedure of the Russian Federation):

1) the decision, under the law of the country in whose territory it was made, has not entered into force or is not subject to execution;

2) the party against whom the decision was made was deprived of the opportunity to take part in the proceedings due to the fact that the notice of the time and place of the consideration of the case was not delivered to it in a timely and proper manner;

3) consideration of the case falls within the exclusive jurisdiction of the courts in the Russian Federation;

4) there is a court decision in the Russian Federation that has entered into legal force, adopted on a dispute between the same parties, on the same subject and on the same grounds, or there is a case in the proceedings of a court in the Russian Federation, initiated on a dispute between the same parties, on the same subject and on the same grounds before initiating a case in a foreign court;

5) the execution of the decision may damage the sovereignty of the Russian Federation or threaten the security of the Russian Federation or is contrary to the public policy of the Russian Federation;

6) the term for presenting the decision for enforcement has expired, and this term has not been restored by the court in the Russian Federation at the request of the exactor.

Author: Gushchina K.O.

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