Standards of Proof in Judicial Proceedings

The current procedural legislation governing the process of legal proceedings in the Russian Federation establishes different rules for proving certain facts and circumstances of the case, depending on the type of proceedings.

The main types of legal proceedings in the Russian Federation are arbitration, civil, administrative, criminal, administrative and constitutional proceedings.

The first two types of legal proceedings relate mainly to the regulation of the procedure for resolving disputes in the field of private law, with a difference primarily in the composition of subjects – arbitration legislation regulates legal proceedings in the field of entrepreneurial and other economic activities, it also includes rules on challenging decisions of state bodies related to such relations.

Civil proceedings, on the contrary, are aimed at resolving disputes in the field of private law, the subject composition of which includes individuals.

Both arbitration procedural legislation and civil procedural legislation include rules related to proof.

A general rule in the said procedural legislation is the rule that each party is obliged to prove the circumstances to which it refers as the basis for its claims and objections (Article 56 of the Civil Procedure Code of the Russian Federation and Article 65 of the Arbitration Procedure Code of the Russian Federation).

With regard to the evaluation of evidence, the following rules are specified in these procedural codes:

• the court evaluates the evidence according to its inner conviction based on a comprehensive, complete, objective and direct examination of the evidence available in the case (Part 1 of Article 67 of the Civil Procedure Code of the Russian Federation, Part 1 of Article 71 of the Arbitration Procedure Code of the Russian Federation);
• the court assesses the relevance, admissibility, reliability of each piece of evidence separately, as well as sufficiency and the interconnection of evidence in their totality (Part 3 of Article 67 of the Civil Procedure Code of the Russian Federation, Part 2 of Article 71 of the Arbitration Procedure Code of the Russian Federation)

Similar rules are contained in Article 84 of the Code of Administrative Procedure of the Russian Federation.

However, I believe that these rules do not give any idea of the standards of proof applied by the courts in these types of proceedings, leaving the decision on these issues to the discretion of the court.

At the same time, in the sphere of public legal relations, the standards of proof are defined more clearly and are reflected in the current procedural legislation.

Thus, Part 3 of Article 14 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Criminal Procedure Code of the Russian Federation) states that all doubts about the guilt of the accused, which cannot be eliminated in accordance with the procedure established by the said Code, are interpreted in favor of the accused.

A similar rule is present in Part 4 of Article 1.5. of the Code of Administrative Offenses of the Russian Federation: Irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person.

The above norms indicate a fairly high standard of proof, since any irremovable doubts may interfere with the establishment of a particular circumstance, and, consequently, in the establishment of guilt.

First of all, this is due to the fact that in the case of the Criminal Procedure Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation, we are talking about the deprivation of liberty of a person, as well as the application of other measures of punishment and influence to him - such standards of proof are dictated by the purpose of minimizing the number of situations in which such punishment is applied to an innocent person.

In addition, the collection of evidence in criminal proceedings and in proceedings in cases of administrative offences is carried out by law enforcement agencies, which have special powers related to the conduct of searches, seizure of property, detention, interrogation, operational-search activities, etc.

In cases with arbitration, civil, administrative proceedings, we are talking about private disputes between individuals and business entities, state and municipal bodies, as well as administrative disputes related to challenging the actions (inaction) of state bodies.

Since in private disputes the parties to these disputes are engaged in the collection of evidence themselves, without having the powers that law enforcement agencies have, the standards of proof should be much lower.

For example, in the ruling dated 22.02.2023 in case No A40-230993/2020, the Intellectual Property Court noted that It is inadmissible to impose on a party the obligation to prove certain circumstances in a situation where it is impossible for it to obtain evidence due to the fact that it is in the possession of the other party to the dispute, which does not disclose it.

Court practice

As mentioned above, the standards of proof in the claim proceedings are not enshrined in the current procedural legislation, so we will turn to judicial practice.

As follows from the ruling of the Supreme Court of the Russian Federation dated 30.09.2019 No. 305-ES16-18600(5-8), in a general claim process with equal opportunities for the disputing parties to collect evidence, the usual standard of proof is applicable, which can be referred to as a "reasonable degree of reliability" or "Balance of probabilities».

Deviations from it must be due to weighty circumstances indicating the obvious inequality of the parties in the possibility of proving circumstances significant for the case (conditions of bankruptcy, affiliation, etc.).

The usual standard of proof assumes the likelihood of satisfying the plaintiff's claims when he presents evidence with a reasonable degree of reliability confirming the circumstances on which the claim is based.

This standard of proof is also used by the Intellectual Property Court, for example, the Resolution of the Presidium of the Intellectual Property Court dated 17.09.2024 in case No SIP-76/2024: The conclusions of the court of first instance in this part correspond to the standard of proof "balance of probabilities" applicable in relation to this issue.

Resolution of the Intellectual Property Court dated 20.12.2023 in case No A41-68274/2022: The evaluation of circumstantial evidence (and in this case the parties did not refer to the presence of direct evidence of borrowing) is carried out in cases of action proceedings based on the "balance of probabilities" standard of proof.

The balance of probabilities involves an analysis in terms of factual circumstances of how likely it is that the toys were created by the defendants themselves, without processing the plaintiff's work of design.

Resolution of the Presidium of the Intellectual Property Rights Court dated 21.10.2019 in case No SIP-250/2017: At the same time, it is impossible not to take into account the fact that the court of first instance in the present case incorrectly applied the standard of proof "beyond reasonable doubt", characteristic of criminal law, while the present case is considered in the action proceedings taking into account the Probability Balance.

Based on the above, in claim proceedings, including in the field of resolving disputes relating to intellectual property, when evaluating evidence in a case, as a general rule, the standard of proof "balance of probabilities" is to be applied, that is, a circumstance can be recognized as established if, based on the evidence submitted by the parties, it was more likely than not (i.e., the most probable circumstance is recognized as established).

At the same time, in criminal proceedings, as well as in proceedings on administrative offenses, the courts use a different standard of proof, called "beyond reasonable doubt".

The legal doctrine also mentions the standard of proof "Clear and convincing evidence", which, in terms of the level of proof of a particular circumstance, is located between the "balance of probabilities" and "beyond reasonable doubt", and is used mainly in bankruptcy cases.

The application of a stricter standard of proof to bankruptcy cases than to the standard of action proceedings is due to the purpose of protecting the interests of bona fide creditors.

For example, in the resolution of the Arbitration Court of the Ural District dated 30.12.2020 N F09-8100/20 in case N A50-17260/2018 it is stated that Since bringing the debtor's controlling persons to subsidiary liability for its obligations is an extraordinary mechanism for protecting the violated rights of creditors, that is, an exception to the principle of limited liability of participants and the rule on the protection of the business decision of managers, the initiation of litigation implies the need for Providing clear and convincing evidence to the court the validity of the bankruptcy trustee's claims.

This standard of proof is also mentioned in the ruling of the Judicial Chamber for Economic Disputes of the Supreme Court of the Russian Federation dated 30.09.2019 in case No A40-51687/2012: However, the courts, concluding that losses were caused by the disputed transaction, ignored the content of other competing judicial acts. In this situation, the inequality of the transaction in itself did not indicate that the persons who entered into it were obliged to compensate for losses, especially taking into account the fact that the standard of proof for claims (Article 53.1 of the Civil Code of the Russian Federation) for the recovery of losses from persons who have the actual ability to determine the actions of a legal entity (clear and convincing evidence) differs from the relevant standard for disputes on the invalidation of transactions on special grounds of bankruptcy legislation (balance of probabilities).

In conclusion, I would like to emphasize that the application of various standards of proof came to Russian law enforcement practice from the practice of the United States, where such standards are applied everywhere.

One of the most famous cases of its application is the case of football player and actor O.J. Simpson - he was acquitted in a criminal case of the murder of his ex-wife Nicole Simpson and Ronald Goldman, but lost a civil trial on the same charges, in which he was ordered to pay compensation to the families of the victims - this situation arose due to the fact that, Based on the evidence presented, he was more likely to have committed these murders than not, but there were still some reasonable doubts about this.

At the same time, the Russian law enforcement practice does not have such cases, which is due to the fact that the existing approaches to the application of standards of proof are not enshrined in the norms of the current procedural legislation.