Allegation on Falsification of Evidence During Arbitration

The word falsification derives from Late Latin word falsificationem, noun of action from past-participle stem of falsificare which means act of making false representation or being erroneous.

According to the reference literature (Explanatory Dictionary of the Russian Language by D. N. Ushakov, http://dic.academic.ru) the noun FALSIFICATION is feminine and derives from Latin falsificatio and has several meanings as follows.

1. Forging something. Being engaged in falsification of ancient manuscripts. Falsification of witness statements. Altering the appearance or property of an object for the purpose of deception, in order to pass it off as an object of another kind or quality. Falsification of comestible.
2. Figuratively, the substitution of something which is real and authentic by fake.
3. A counterfeit thing, pretending to be an authentic object. Example: it is not a true coffee, but a forgery.

Thus, the definition of the word “falsification” is a deliberate act of misrepresentation so as to deceive. 

At the same time, arbitration procedure legislation does not contain a specific definition of the term “falsification of evidence”, so when applying Article 161 of the Arbitration Procedure Code of the Russian Federation (hereinafter the Arbitration Procedure Code) should be guided by the concept used in criminal law.

Thus, the falsification of evidence should be understood as the distortion of factual data, which are material or written evidence, including the introduction of knowingly false information in the documents (their forgery, erasure), the destruction of material and other evidence, preparation of completely false evidence. The subject of falsification may be both official documents and written evidence coming from individuals. Falsification of written and physical evidence can be made in various forms as follows.

1) Intellectual forgery, which involves the initial compilation (creation) of evidence that does not correspond to the content of reality, false in substance;

(2) Substantive forgery, which means altering the original evidence by deleting part of the information and/or supplementing it with information which is untrue.

In adjective law, the allegation on falsification of evidence shall be applied to eliminate doubts about the objectivity and reliability of the evidence based on the claims or objections of the persons involved in the case, in respect of which the possibility of its production at the illegal discretion of the interested person is not excluded.

Within the framework of consideration of court disputes, in particular, economic disputes considered by arbitration courts, there are situations when one of the persons participating in the case has doubts as to the reliability of the evidence presented by the other party. For example, such doubts are connected with the date of creation of the document or with the authenticity of the signature in the document.

The question is what to do in this situation and what is the procedure for a person involved in a case who has doubts about the authenticity of a document or the information provided in it.

In accordance with the reasoning set forth in paragraph 1 of Article 161 of the Arbitration Procedure Code, the person participating in the case has the right to apply to the arbitration court with a written allegation on falsification of evidence submitted by another person.

In this case, according to the explanations given in paragraph 36 of the advisory circular of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 82 On some Issues of Application of the Arbitration Procedure Code of the Russian Federation, in accordance with paragraph 1 of Article 161 of the Code, in the case of an oral pleading on falsification of evidence, the court should reflect this pleading in the report and explain to the person participating in the case the right to submit a written allegation on falsification of evidence.

Thus, a person involved in a case who believes that another person has submitted falsified evidence must first prepare a written statement about the falsification.

The court, having received the corresponding statement, carries out the following legal proceedings:

1. Clarification of the criminal law consequences of such statement;
2. Exclusion of the contested evidence with the consent of the person who presented it from the evidence in the case;
3. Verification of the validity of the statement on falsification of evidence, if the person, who presented this evidence, has stated the objections concerning its exclusion from the evidence in the case.

Let us take a closer look at each of the mentioned legal proceedings separately and consider what they mean.

Clarification of the criminal consequences of the court to the person who claimed forgery and to the person who presented allegedly falsified evidence is to explain to these persons the content of Articles 303 and 306 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code). Offences under these articles are classified as crimes against justice. In particular, article 303 of the Criminal Code establishes criminal liability for falsification of evidence in a civil or administrative case by a person participating in the case or by his or her representative, while article 306 establishes criminal liability for knowingly false denunciation of an offence. After clarifying the criminal consequences, the court takes away from the above persons receipts that are attached to the case file.

The court further proposes that the person who presented the contested evidence exclude this evidence from the evidence in the case. If a person agrees to exclude this evidence, this circumstance is recorded in the record of trial, and the excluded evidence is not examined by the court.

At the same time, if a person objects to the exclusion of the contested evidence, the court shall verify the validity of the statement on falsification of evidence. The validity of the statement of forgery (falsification) has to be checked on the basis of the arguments relating to forgery recognized by the court as convincing. That is, the party claiming that the evidence is false (falsified), must have the appropriate arguments confirming the validity of the statement, which are a prerequisite for its subsequent verification by the court.

In this case, the arguments in favor of falsification (forgery) of evidence relate to counterfeiting, cleaning up, making corrections that distort the actual meaning and contain false information, as well as creating new evidence.

The person alleging falsification of evidence shall specify in the statement on falsification of evidence the circumstances that cause doubts about the authenticity of evidence or the information contained therein, and information about what exactly is expressed falsification of evidence called into question: a distortion of the form (means of proving) or information, the carrier of which is the questionable evidence.

At the same time, the applicant should clearly indicate in which part of the evidence is allegedly falsified: one of the details of the document (date, signature) is falsified, the content of the document is falsified due to erasures, additions to the text or the evidence contains inaccurate information in the absence of visible defects.

If the arbitration court finds the arguments of a person alleging a falsification of evidence convincing, it shall take measures provided by federal law to verify the authenticity of an allegation on falsification of evidence, including assigning an expert examination, claim other evidence or take other measures.

Surely, as it might seem, the court must always order an expert examination to verify whether the evidence has been falsified, but that is not entirely true.

Within the meaning of the provisions of the subparagraph 2 of paragraph 3 of Part 1 of Article 161 of the Criminal Procedure Code of the Russian Federation (hereinafter the Criminal Procedure Code), the presence of an application for falsification of evidence is not an unconditional basis for the appointment of a forensic examination, taking into account the fact that the reliability of the evidence can be verified by other means, including its evaluation in conjunction with other evidence in the manner provided for in Article 71 of the Criminal Procedure Code.

Appointment of an expert examination for the purpose of verification of an allegation on falsification of evidence is one of the measures that may be taken by the court to verify the validity of an allegation on falsification of evidence and, accordingly, the choice of such method and verification measure is the prerogative of the court.

It should also be noted that the legal significance of the expert examination report is defined by law as evidence that has no pre-determined force, is not binding, and by virtue of Article 71 of the Criminal Procedure Code is subject to assessment by the court on a par with other submitted evidence.

This legal approach is reflected in judicial acts, including those of higher courts, for example, in the ruling of the Supreme Arbitration Court of the Russian Federation of February 26, 2013 No. VAS-1749/13 in the case N A76-16977/2011.

Thus, to verify the validity of an allegation on falsification of evidence, the court does not always need to conduct an expertise. Thus, for example, in order to establish the actual date of the contract, if there is evidence of the parties' fulfillment of the terms of this contract (payment orders, delivery notes, act of work performed, etc.), the court does not need to appoint an expert examination of the statute of limitations for the preparation of documents or the statute of limitations for signing documents, because if the person involved in the case is disputed only the date of the contract, and other documents relating to this transaction is not disputed, the court may compare the date of the contract and the date of the transaction related to the contract.

At the same time, by virtue of paragraph 2, Article 71 of the Arbitration Procedure Code, the arbitration court evaluates not only the relativity, admissibility and reliability of each evidence, but also the sufficiency and mutual connection of the evidences in their totality. The evidence is recognized by the arbitration court as reliable, if as a result of its examination and research shows that the information contained therein is true.

With regard to Article 161 of the Code of the Arbitration Procedure Code, the allegation on falsification of evidence is intended to exclude the relevant evidence from the evidence in the case and to actually compel the party that submitted the evidence to base its arguments and objections regarding the subject matter and the basis of the claim on other evidence.

If, as part of the audit, the court found that the evidence was falsified, it should be excluded from the evidence in the case.