How to report falsification of evidence in arbitration court?

The opponent presented fake evidence to the court: how to defend your interests?

An application for falsification of evidence must be submitted to the court of first instance in writing and justify why the evidence is a forgery. The court has no right to leave such an application without consideration. If you fail to convince the court that you are right, you can contact law enforcement agencies. The court's verdict in a criminal case will be the basis for reviewing the decision in a civil case.

Says:

Yulia Sheyanova,

Lawyer at Exiora Law Firm

“Falsification of evidence” means that the person involved in the case or his representative tried to distort the actual content of the evidence presented in civil, arbitration or criminal proceedings (Resolution of the Federal Antimonopoly Service of the North-Western District dated 07/09/2010 in case No. A56-69989/2009).

Falsification can be:

production of a fake document in its entirety,
entering deliberately false data into a document,
forgery of the signature of the person certifying the document,
counterfeiting of seals and stamps,
mechanical removal of part of the text,
removing text with chemical reagents and various solvents,
introducing new words, phrases or individual characters into the document,
pasting individual sheets, replacing them,
photo pasting,
aging of the document, etc.

If you are sure that the evidence presented in the case is falsified, you need to file an application for falsification of evidence.

Allegation of falsification of evidence

The main purpose of a statement of falsification of evidence is to exclude a forged document or other falsified evidence from the case file.

An application for falsification must be submitted in writing (Article 161 of the Arbitration Procedure Code of the Russian Federation). The court will not consider an oral statement (Resolution 15AAC dated March 21, 2021 in case No. A53-25471/2020).

If falsified evidence in the case materials became known already during the trial, the falsification of evidence can be reported orally. The court must reflect this statement in the protocol and explain to the person participating in the case who made an oral statement the right to submit a written statement (clause 36 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 82). But then the application still needs to be submitted in writing.

It is important to file a statement of falsification when considering a case in the first instance . This requirement follows from Art. 268 of the Arbitration Procedure Code of the Russian Federation, according to which an appeal can consider evidence only if the applicant did not have the opportunity to present it to the court of first instance. The applicant will have to prove objective reasons why he was unable to file an application for falsification during the first consideration of the case (Determination of the Supreme Court of the Russian Federation of October 26, 2017 No. 309-ES17-9988 in case No. A07-2906/2016).

On a note

In some cases, a statement of falsification can be submitted not only to the court of first instance:

if the appeal proceeds to consideration under the rules of the first instance, persons participating in the case have the right to make statements of falsification;
If the appeal accepts new evidence, which was not in the case when considered in the court of first instance, then the persons participating in the case have the right to make a statement of falsification in relation to such evidence.

The statement must justify why you believe that the disputed evidence is falsified . If the formal requirements are met, the court cannot leave the application for falsification of evidence without consideration (Resolution of the Moscow District Court of August 15, 2016 in case No. A40-68558/15). However, the court may reject the application if it does not contain a justification for why the applicant considers the evidence to be fake (Part 1 of Article 159 and Article 161 of the Arbitration Procedure Code of the Russian Federation, Resolution of the Arbitration Court of the North-Western District of October 17, 2016 in case No. A56-12918/2014 , Resolution of the Administrative Court of the East Siberian District dated 07/09/2015 in case No. A19-9085/2014). As justification, you can point out, for example, contradictory data in copies of the same document presented by the applicant and his opponents, attach handwriting samples, and present your expert opinion.

Please note: a statement of falsification can significantly delay the dispute resolution process. The court will postpone the trial to verify its validity (Part 5 of Article 158 of the Arbitration Procedure Code of the Russian Federation).

Procedure of the court

Having received an application for falsification of evidence, the court:

explains the criminal legal consequences - Art. 303 of the Criminal Code of the Russian Federation (liability for falsification of evidence) and Art. 306 of the Criminal Code of the Russian Federation (liability for knowingly false denunciation),
excludes the disputed evidence from evidence in the case if the person presenting it agrees with this, or
checks the validity of the statement about falsification of evidence if the person who presented this evidence objects to its exclusion from the list of evidence in the case (Article 161 of the Arbitration Procedure Code of the Russian Federation).

CASE STUDY

In the bankruptcy case of a citizen, a company in which this citizen was the general director and the only participant tried to be included in the register with its claims against the citizen.
Another creditor tried to counter this, believing that the agreement between the debtor and his company was falsified and aimed solely at creating artificial debt. This creditor outlined its arguments about the falsification of the agreement in its response to the company's application for inclusion in the register. Moreover, according to the audio transcript of the court session, after a break, the creditor’s representative, when asked by the trial court about whether the persons participating in the separate dispute had any petitions, explained that he had a petition to falsify the agreement. However, the court did not consider this petition, justifying its decision by the fact that a break in the court session was announced to issue a judicial act on the merits of the dispute. At the same time, before the break, the court of first instance did not announce the completion of the stage of examining the evidence.

The courts of three instances rejected the creditor's arguments, finding that he:

did not file an application for falsification of the agreement in accordance with Art. 161 Arbitration Procedure Code of the Russian Federation,
did not apply for the appointment of an examination of the prescription of the production of documents.

The Supreme Court of the Russian Federation did not agree with this decision and noted that:

the court violated the requirements of the Arbitration Procedure Code of the Russian Federation by not accepting the creditor’s petition for falsification of the agreement for consideration,
the court could not leave without consideration the application for falsification of the agreement due to the fact that the creditor did not apply for a forensic examination.

The dispute was returned for reconsideration to the court of first instance.

Ruling of the Supreme Court of the Russian Federation dated November 16, 2017 No. 307-ES17-1676 in case No. A56-71402/2015

To verify the validity of an allegation of falsification of evidence, the court may:

appoint an examination.

The applicant may request an examination along with a statement of falsification. However, the court is not obliged to grant this request - this is its right, not its obligation. He may limit himself to the analysis of other arguments and evidence (clause 36 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 08/13/2004 No. 82, Resolution of the Moscow District Arbitration Court dated 01/24/2020 in case No. A40-219648/2018);

request other evidence.

Ordering an examination is not the only way that allows the court to verify the validity of an application for falsification of evidence. The court can evaluate the disputed evidence in conjunction with other evidence in the case by comparing it and identifying logical relationships: primary documents, testimony of witnesses, correspondence of the parties, draft documents, etc. (Resolution of the Court of Justice of the West Siberian District dated March 10, 2020 in case No. A45- 28521/2018, Decision of the Court of Justice of the Irkutsk Region dated 12/09/2019 in case No. A19-4859/2019);

take other measures.

For example, in one case, the courts came to the conclusion that there were no facts confirming the falsification of the tax audit report, having interviewed the head of the tax inspectorate and the inspector (Determination of the Supreme Court of the Russian Federation of May 28, 2018 No. 302-KG18-5558 in case No. A19-17107/2016).

Contacting law enforcement agencies

If you are sure that the evidence is falsified, but you were unable to convince the court hearing the case of this, you can go another way - contact the Investigative Committee with a statement about the signs of a crime under Part 1 of Art. 303 of the Criminal Code of the Russian Federation, on the fact of falsification of evidence.

In this case, the consideration of the civil case is suspended until the consideration of the criminal case on the fact of falsification (clause 1, part 1, article 143 of the Arbitration Procedure Code of the Russian Federation, Resolution of the Central District Court of July 23, 2015 in case No. A64-2955/13).

If the court in a criminal case confirms that the evidence is falsified, this will have prejudicial significance for a civil case, the materials of which contain controversial evidence. A verdict in a criminal case on falsification of evidence is the basis for reviewing judicial acts in the corresponding civil case based on newly discovered circumstances (clause 4.1 of the Resolution of the Constitutional Court of the Russian Federation of December 21, 2011 No. 30-P).

On a note

For falsification of evidence, confirmed by a court verdict, the convicted person faces a fine of 100 thousand to 300 thousand rubles or in the amount of salary or other income for a period of 1 to 2 years, or compulsory work for a period of up to 480 hours, or corrective labor for a period up to 2 years, or arrest for up to 4 months (Part 1 of Article 303 of the Criminal Code of the Russian Federation, Appeal Resolution of the Moscow City Court dated 07/09/2020 in case No. 10-10962/2020).

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Tags: Arbitration Procedure Code of the Russian Federationevidenceprocedurecriminal casefalsificationpetitionshortread

How is the reliability of evidence verified?

Upon receipt of a complaint from a person who is a participant in the process and has provided a controversial evidence base, or an objection to the exclusion of a particular document, the Arbitration Court begins the verification procedure. The relevant code of the Russian Federation provides for several options for action. The first of these is the appointment of a special examination. In most cases, the court uses documents as evidence. Thus, to confirm or refute the falsification of evidence, the following types of examinations can be assigned:

handwriting,
examination of the prescription of the document.

The specific choice is made taking into account the nature of the arguments presented by the party, as well as the actual circumstances of the case. If the signatories are on the same side that provided the documents, ordering a handwriting test is unprofitable. As for the examination of the prescription of a document, its productivity is determined by the urgency of the audit. Today, in many regions of the Russian Federation, the queue for special examination is quite long. Thus, during the period of the audit, the technical possibility of clarifying how long ago the document was drawn up is lost. The relatively high cost of the examination is also a decisive factor. Its use is not advisable in all cases. You can apply for an expert review at the same time as filing applications for falsification of evidence.

To carry out an audit to confirm or refute the falsification of evidence, the court may require certain documents. For example, in the case of challenging the certificate of ownership of real estate, the most rational and accessible method of verification is to request documents from the state register.

Depending on the court's position, alternative verification methods may be used. For example, the court may involve a third party to provide the necessary explanations, send relevant requests to authorities or officials, compare other information from the evidence base, and so on, taking into account the circumstances of the proceedings.

The final court decision based on the results of the adoption of an allegation of falsification of evidence and its consideration is subject to mandatory entry into the protocol. If the court takes certain procedural measures, then at the same time it issues an appropriate ruling.

What does judicial practice show?

Judicial practice in arbitration cases in which attempts were made to refute certain evidence shows the following:

1. If a participant in arbitration proceedings refuses to exercise the right to check regarding falsification of evidence, expert opinions that were obtained after the court decision entered into legal force do not become a sufficient independent basis for re-examining the case due to newly discovered circumstances. Thus, falsification of evidence when critically assessed by a participant in the proceedings cannot be delayed and must be checked immediately.
2. Today there is a subjective attitude of courts towards verification. Thus, the results of the audit are considered by the courts in the context of other evidence in the case. For example, in one of the court proceedings, an allegation of falsification of evidence was received with the requirement to order and conduct an examination. The applicant provided confirmation of payment for this examination along with the petition, but the court refused to verify it, taking into account the totality of the remaining evidence and evaluating it in the system. The appeal commission also did not consider the evidence controversial and agreed with the court decision.
3. It is important to note that even in conditions where evidence is excluded from the evidentiary base, it can significantly strengthen the position of the party to the trial to whom this evidence was provided.

Analysis of evidence is one of the most labor-intensive procedures within the framework of procedural activities. It requires a responsible and thoughtful approach. It is extremely important to prepare a substantiated statement regarding falsification of evidence to the Arbitration Court and timely request verification in order to use this right to obtain a positive outcome in the case. If the evidence presented by the opposite party seems unreliable to you, but you do not have experience with falsification and analysis of evidence, then contacting the competent lawyers of the Moscow Municipal Bar Association becomes the optimal solution. Our specialists will help you exercise the right to petition for false information and achieve the maximum possible positive result in the Arbitration Court.