The modern legal system of the Russian Federation may be attributed to the Romano-Germanic legal family, and Great Britain is a part of the common law family. Each of these systems has its own identifying features. In this article, we are looking into different approaches of the countries to admissibility as a property of evidence.
The general rule in Russia is that courts, when administering justice, may not use evidence obtained in violation of the federal law. This rule is clearly set out in the Russian Constitution (art. 50(2)) and in Russian procedural codes. In Great Britain, courts have a discretion to exclude inadmissible evidence, that is, the legal power of English courts to accept evidence is not limited by a rule regarding whether it is admissible.
According to the provisions of the Commercial (‘Arbitrazh’) Procedure Code of the Russian Federation (the “APC RF”) and the Civil Procedure Code of the Russian Federation (the “CPC RF”) evidence in a case is information about the facts obtained in the manner prescribed by law, based on which courts establish whether or not there are circumstances that justify the claims and objections of the parties to the dispute, as well as other circumstances that are relevant to the correct consideration and resolution of the case (art. 64(1) of the APC RF, art. 55(1) of the CPC RF). This information may be obtained from such sources as explanations of the persons involved in a case, expert opinions, witness statements, audiotapes and videotapes, as well as other documents and materials. Thus, the list of possible evidence is non-exhaustive.
However, Russian courts accept only evidence that conforms to a set of certain criteria specified in the APC RF and the CPC RF. According to these criteria, each item of evidence must be relevant, reliable and admissible. Evidence is relevant when it helps a court to establish the facts of the case (art. 67 of the APC RF, art. 59 of the CPC RF) and is reliable when it contains accurate data about any fact in issue (art. 71(3) of the APC RF, art. 67(3) of the CPC RF). As for the criterion of admissibility, the procedural codes state two rules.
Under the first rule, when the facts of a case are to be confirmed by certain types of evidence stipulated by law, they cannot be confirmed by other types of evidence (art. 68 of the APC RF, art. 60 of the CPC RF). In other words, evidence is admissible if it is in the proper form; any lack of the proper form of evidence results in the evidence in question having no legal force and being unable to be used by a court when taking a decision.
Written evidence must be presented as originals or notarially certified copies. Where the facts of a case are confirmed only by a copy of a document, courts cannot consider these facts to be proved if (a) the original document has been lost and is not presented in court, and (b) the copies of a document presented by each of the parties to a dispute are not identical, and (c) it is impossible to establish the true content of the original document with the help of other evidence (art. 67(7) of the CPC RF, art. 71(6) of the APC RF).
For example, in case No. А68-2718/2017, a court found that two copies were present of a rent agreement indicating different rental prices and that the original of the disputed agreement was absent. A forensic report on the market value of the rent failed to establish the true content of the original rent agreement. As a result, the court concluded that tenant’s debt was not confirmed by the claimant, and, accordingly, the claim should not be upheld.
In intellectual property disputes, such evidence as screenshots is admissible evidence if such screenshots (a) are certified by parties to a case, (b) have a URL-address and (c) display the accurate time at which the screenshots were taken. Similar requirements are applicable to the form of screenshots that confirm the fact that the mandatory pre-trial dispute resolution procedure has been followed. As for screenshots of correspondence in messaging apps such as WhatsApp or Facebook Messenger, these may be ruled to be inadmissible evidence owing to the inability to identify the sender and recipient of messages.
Courts accept email correspondence as admissible evidence if it is established that e-mail addresses belong to the parties and the terms of an agreement between them provide for the possibility to send legally significant messages via electronic mail. Moreover, email correspondence must be certified by a notary with the drawing up of a protocol of inspection of evidence. It should be noted that not only notaries have the power to certify email correspondence. Courts, if necessary, can themselves examine email correspondence and inspect a mailbox.
Photographs are admissible evidence if they show the date, time and location at which they were taken, as well as information about the person who took the photographs. It should be noted that courts may pay particular attention to whether photographs contain the digital date and time; if the date and time are indicated under the photographs using computer technology, courts might not accept them as admissible evidence.
As for the second rule, evidence is admissible if it was obtained in accordance with the relevant federal law. The APC FR and CPC RF do not explicitly state this rule with regard to the admissibility of evidence. It derives from art. 50(2) of the Russian Constitution (“when administering justice it shall not be allowed to use evidence obtained by violating the federal law”), from the definition of evidence mentioned above (“evidence in a case is information about the facts obtained in the manner prescribed by law”), and from art. 64(3) of the APC RF and art. 55(2) of the CPC RF, according to which evidence obtained in violation of the federal law has no legal force and cannot form the basis of a court decision.
For example, there is a mandatory requirement to obtain the consent of a person in respect of whom an audiotape is being made, if the conversation concerns the private life of this person; the lack of consent makes such an audiotape inadmissible evidence.
The said rule is based on art. 23 of the Russian Constitution, which states that everyone shall have the right to privacy of telephone conversations, and is enforced by art. 137 of Russian Criminal Code, which establishes criminal liability for the collection or dissemination of information about the private life of a person that constitutes a personal or family secret of his, without his consent. The right to privacy extends to the sphere of life that relates to a person, concerns only that person and, if his / her actions are not illegal, is not subject to control by society and the state.
In case No. 33-12405/2019, a court did not accept an audiotape as admissible evidence because it contained a record of a personal quarrel between the defendant and an heir and was obtained without prior notice being given to these persons.
Hence, audiotapes that violate the right to privacy may not be used as evidence even if they could confirm the circumstances referred to by the disputing party.
However, in intellectual property disputes, for audiotapes or videotapes to be admissible evidence it is not required to obtain the consent of a person in respect of whom they are made. The explanation for this is that when an act of infringement is openly recorded on a video, the infringer may immediately stop the infringement and the fact of the infringement will not be recorded. For this reason, covert audio and video recording is recognized as a permissible self-defence of civil rights.
In addition, audiotapes are admissible evidence when the recording of a conversation was made by one of the persons involved in the conversation in question, and it concerned circumstances related to a contractual relationship between the parties, not their private life.
A further example of inadmissible evidence is documents that were obtained by an unauthorized person.
In case No. А40-42546/10-131-360, a claimant provided the court with copies of account statements of Pinya LLC. Under art. 857 of the Russian Civil Code, a bank guarantees the secrecy of a bank account and bank deposit, transactions via the account and data about the client. Data constituting a bank secret may be provided only to clients themselves or their representatives. However, Pinya LLC did not receive these account statements and did not pass them to the claimant, so the court concluded that they were obtained in violation of art. 857 of the Russian Civil Code, and therefore, they were inadmissible evidence.
Therefore, the institution of the admissibility of evidence in Russia has a mandatory nature. Evidence must not only be relevant and reliable, but also admissible, that is, it must be in the proper form and must have been obtained in a legal manner.
However, the English courts take the opposite approach, according to which any relevant evidence is admissible, even if it was obtained illegally. In other words, if evidence helps to establish whether a circumstance that is relevant to the case is absent or present, such evidence is admissible regardless of how and by whom it was obtained.
The English courts apply this approach even if the parties to the dispute are foreign persons, and the law of their country prohibits the court from using illegally obtained information as evidence in a case.
For example, in our practice we came up against a situation where the claimant submitted to the High Court of Justice an account statement of a company owned by the defendant and records concerning the crossing by the defendant of the state border. As mentioned above, account statements contain information that constitutes bank secrecy, and therefore only clients can receive them from the bank. However, the legal representatives of the company did not receive this account statement and did not transfer it to third parties; in other words, the account statement was obtained by the claimant illegally. As for the records on the crossing by the defendant of the state border, there is no publicly available database in Russia containing information on the dates on which Russian citizens entered and left the country; therefore, the claimant could have gained access to this kind of information only through illegal means as well.
Despite the said circumstances, the account statement and the records were accepted by the court as admissible evidence, since they helped to prove the facts in issue.
Such an approach has a rational explanation, according to which the task of a court is to establish the truth in the case. The exclusion of relevant evidence that may help to achieve this task seems to be an ineffective measure for justice. Consequently, the Civil Procedure Rules 1998 (“CPR”) set a power rather than a duty of the English courts to exclude evidence that would otherwise be admissible (CPR Part 32.1).
In Jones v University of Warwick [2003] EWCA Civ 151, the claimant in a personal injury action was surreptitiously filmed at home by an inquiry agent. The video footage showed no injuries on the claimant’s body. The court hearing this action had to decide whether the defendant could use such video footage as admissible evidence. On the one hand, the recognition of the video footage as admissible evidence met the main task of justice; however, on the other hand, the video footage had been obtained in violation of the claimant’s right to privacy.
Resolving the contradiction that had arisen, the court noted that in a situation where the claimant practically does not have any physical signs of bodily injuries, the presence of which is confirmed only by the claimant’s complaints, surreptitious video footage is a method that can help to establish the truth in the case. Thus, the video footage, obtained in violation of the claimant’s right to privacy, was accepted by the court as evidence. The court noted in particular as follows:
“This is not a case where the conduct of the defendant’s insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case.”
Another possible explanation of English approach to the admissibility of evidence may be found in the rules of disclosure and inspection of documents prescribed by CPR Part 31. According to these rules, a party to a dispute has a duty to give disclosure of the documents on which he/she relies, and documents, which adversely affect his/her own case or another party’s case, or support another party’s case. This duty is limited to documents that are or have been in control of the relevant party to the dispute (CPR Part 31.6, CPR Part 31.8).
In Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349, Ras Al Khaimah Investment Authority (RAKIA) has filed a claim against the American airline operator (Farhad Azima), accusing the latter of fraudulent misrepresentation. The claimant’s position was mainly based on confidential documents that it obtained as a result of hacking into the defendant’s email accounts. Farhad Azima believed that the claim should be dismissed by the court, since the claimant had gained access to his documents illegally. In response to this objection, the claimant stated the following:
“Even if … RAKIA had been responsible for obtaining documents unlawfully from Mr Azima, the public interest in the court reaching the correct decision on the basis of all the evidence available would substantially outweigh any such unlawfulness.”
The case came to the England and Wales Court of Appeal, which upheld the claimant’s position. The court noted that the hacked materials should have been disclosed by the defendant in any event. Accordingly, the dismissal of the claim on the grounds that the claimant illegally obtained access to documents that confirm the defendant’s misconduct would put the violator in an unreasonably favourable position, which, in the court’s opinion, does not meet the objectives of the public interest to a much greater extent than the illegal method of obtaining of evidence.
It should be noted that despite the dispositivity of the approach under consideration, there are examples of evidence that has been recognized as inadmissible, regardless of whether it has the property of relevance. In particular, evidence obtained through torture is always inadmissible evidence, that is, its exclusion from the list of evidence in a case does not depend on the discretion of the court.
In accordance with art. 15 of the United Nations Convention Against Torture 1984 the United Kingdom as a State Party has an international obligation to ensure that any statement made as a result of torture shall not be invoked as evidence in any proceedings, except in proceedings against an alleged torturer. In A & Ors v. Secretary of State for the Home Department [2005] UKHL 71, Lord Hope said at para 112:
“The use of such evidence is excluded not on grounds of its unreliability – if that was the only objection to it, it would go to its weight, not to its admissibility – but on grounds of its barbarism, its illegality and its inhumanity”.
The above example is a rare exception to the general admissibility test used by the English courts. On the contrary, the Russian case law, as discussed above, contains many examples of relevant evidence that has not been accepted by the courts due to its inadmissibility, that is, the proper form or legal method of obtaining it was absent.
By Andrei Gusev, Managing Partner, and Elena Lebets, Associate, Borenius