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Article of Olga Leontyeva, trainee lawyer, titled «On Ensuring Reliability of Personal Evidence upon Examination of Civil Cases in Russia, England and the» in «Chelovek i Zakon» magazine

11 October 2010

A problem of development of optimum means to achieve reliability of personal evidence in particular upon administration of justice always existed for the civil procedure science of any country. As a general rule, this evidence includes pleadings of the parties and third parties, testimony of witnesses, and expert opinions.

In the history of Russian law of civil procedure it was usually deemed that only a person skilled in his/her art deserving confidence in the public opinion can be a reliable witness. Grounds for demurrer to evidence set by the Rules of Civil Procedure of Russia of November 20, 1864, – Articles 444-445; 704-709; 712-717 of the Rules – served as a formal guide for such evaluation of specific persons. Moreover, contrary to modern warning of criminal responsibility of an expert for false opinion which is incorrectly regarded by some modern researchers as a guarantee of its objectiveness, the Rules required that they should be put on oath. As far back as the period of reforms of Peter the Great the oath was perceived by everyone who was put on it not as a threat of criminal punishment, but as a moral test in which anyone who broke “the purifying oath” doomed himself/herself to “eternal damnation”. In public opinion the oath was associated with readiness to appear before the God’s judgement in case of its breaking and, therefore, as a guarantee of provision of reliable information by the interrogatee it made more sense than warning of criminal responsibility for violation of assumed obligation to tell the truth. Nowadays, according to A.A. Eksarkhopulo, warning of criminal responsibility for failure to give evidence or for false evidence gradually loses its significance. (Эксархопуло А.А. Специальные познания и их применение в исследовании материалов уголовного дела. СПб.: Издательский дом СПбГУ, 2005. C.28-29 (A . A . Eksarkhopulo . Special Knowledge and Its Use in Examination of Files of Criminal Case. Saint Petersburg: Publishing House of Saint Petersburg State University, 2005. Pages 28-29))

As E.V. Vaskovsky noted in due course, “generally speaking, testimony of litigants themselves cannot provoke confidence. Being interested in gaining success in action, the litigants rarely preserve ability to impartially state facts on which they base their rights. It is hard for an unfair party to vanquish temptation to withhold or to distort facts which are disadvantageous for it, and due to the fact that it is sure that it is right, a fait party involuntarily tends to interpret and present circumstances of the case in a way favorable for it. It is this character of testimony of the litigants that explains old procedural rule: one cannot be witness in his/her own case (nemo testis idoneus in causa propria). However, sometimes testimony of the parties can also have meaning of evidence. …informing the court of any fact, the litigant can confirm validity of its testimony by a solemn religious vow. Such sworn testimony is capable of inspiring confidence by the mere fact that any ethical and religious person will not break the vow. However, it acquires meaning of absolutely indubitable evidence in case the parties agreed to establish any doubtful circumstances through taking an oath by one of them. Then legal validity of sworn testimony is based on agreement of the parties binding on them.” (Васьковский Е.В. Учебник гражданского процесса. М.: Зерцало, 2003. С.248 (E . V . Vaskovsky . Textbook on Civil Procedure . Moscow : Zertsalo , 2003. Page 248)) The vow shall “impose” moral requirement to tell the truth on person consciousness; it shall prevent him/her from lying even if such desire appears.

Lie detection is not only the science, but also the art. And this art is mastered only through practice as Paul Ekman, author of Telling Lies book, notes. In his opinion, “people always make mistakes while telling lies.” (Экман П. Психология лжи. Обмани меня, если сможешь. СПб.: Питер, 2010. С.21 (P. Ekman. Telling Lies. Lie to Me If You Can . Saint Petersburg : Piter , 2010. Page 21) ) . Deception is successful only because the victim does not notice errors of the liar preferring to interpret ambiguities in behavior of the information provider to its advantage hence turning a blind eye to lie.

It is necessary to lay special emphasis on the oath (vow) that we have already mentioned as an efficient legal tool for ensuring reliability of pleadings of the parties, witnesses, and experts. The said terms are often confused, but we will not delve into their literal meanings. In its turn, it cannot be said that the oath is an indispensable condition for putting trust in the person taking the oath, moral catch for this person if he/she faces temptation to violate one or another legal rule. It determines high moral, and professional and ethical requirements imposed on the person taking the oath. For officers it refers to their employment and extraoccupational activities, and for everyone else, to the period of fulfillment of obligations in connection with which they take the oath.

At present, in Russia adjuration (or administration of oath) is provided for on the federal level for the following categories of citizens which I.R. Medvedev arbitrarily divides into two groups. The first group includes the President of the Russian Federation, the Commissioner for human rights in the Russian Federation, employees of bodies of internal affairs of the Russian Federation and equivalent categories of officers, authorities controlling traffic of drugs and psychotropic substances, customs authorities, military personnel, judges, bailiffs, public prosecutors and investigator of prosecutor’s office, Cossacks. Physicians can also be referred to this category . Though they do not adjure, but make a vow, however, in actual fact it is just the same. The second group consists of lawyers, notaries, jury members, arbitration court assessors, persons holding a procedural position of an expert or a witness upon hearing of a case by the Constitutional Court of the Russian Federation ( Медведев И . Р . О науке гражданского процесса ( Эссе ), Ответственность сторон за ложные объяснения в суде ( Научное исследование ). М.: Волтерс Клувер, 2006. С.152-153 (I.R. Medvedev. On the Civil Procedure Science (Essay), Responsibility of the Parties for False Pleadings in Court (Scientific Research). Moscow : Wolters Kluwer, 2006. Pages 152-153) ) .

In civil procedure where there is also an opportunity to adjure (objure) the Russian legislator, however, did not make provision for it: participants are dispensed with an oath by the law. In particular, witnesses are only warned of criminal responsibility for false testimony or failure to give evidence, and they sign a note to this effect which is attached to the minutes of juridical session (Part 2, Article 70, Article 176 of the Code of Civil Procedure of the Russian Federation of November 14, 2002). Psychological efficiency of this procedure is insignificant . As a general rule, rights, responsibilities and liabilities are promptly explained without regard to personal characteristics of the person being warned in circumstances lacking solemnity. That is why witnesses do not manage to become aware of the essence of the action performed by them.

Unlike Russia, all countries of Anglo-Saxon legal system and a number of states of continental legal system mean the vow (with elements of piousness, holiness (in the past), value of authority) while specifying the oath in the law, and they attach great importance to the procedure of its taking making special provisions for detailed regulation. It concerns adjuration both upon accession to office by public officers and upon hearing of any legal cases.

As Geoffrey Lane, one of judges of the Supreme Court of England, noted “...we think that issue of oath legality does not depend on any details of the procedure for its taking provided for by a certain religion exercised by “the witness in a broad sense” (i.e. witnesses, parties, third parties, experts – author’s note). The main thing is to reply to two questions . The first one – is the oath taken by the witness at court deemed to be an act “binding his/her consciousness” with an obligation to tell the truth, in terms of the law? And the second one which is more important – does the witness himself/herself consider the taken oath to be binding on him/her?” ( I . R . Medvedev . Op. cit. Page 162).

The laws are kept to be changed to correct texts of oaths. It refers not only to countries of Anglo-Saxon legal system, but also to all other systems (Romano-German, Scandinavian, etc.). A proviso relating to use of “I swear by God Almighty” phrase was introduced into original texts. If a person exercises another religion and, in particular, does not recognize the Bible (the Holy Writ) as the sacred writings, he/she shall be afforded an opportunity either to swear on the sacred writings of his/her religion with observance of a ceremony required for it (oath) or to give the oath without religious confirmation (affirmation). Text of the affirmation is the same as text of the oath, but instead of references to the God it includes indications about responsibility for false testimony under oath (perjured testimony).

In all considered legislative systems the law specifies certain ways to increase probative value of personal evidence, in particular, detailed regulation of the oath and conditions when relevant information on facts is accepted as evidence. Therefore, it is rather difficult to find any obstacles for incorporation of the above-described method for ensuring reliability of the mentioned evidence into legal mechanism for administration of justice with regard to civil cases in the territory of Russia.

O . Leontyeva

Chelovek i Zakon magazine No. 9 of 2010


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