Proof in civil proceedings seems simple and straightforward at first glance: the parties must prove the circumstances on which their claims and rebuttals are based, unless circumstances do not need to be proved in accordance with the procedure established by the Code of Civil Procedure. Only the presumption of Contra spoliatorem in the case-law means that, if a party conceals, destroys or refuses to give evidence, this shall be deemed to be the existence of facts which are unfavorable to it and which would have been corroborated by that evidence (Order of the Supreme Court of Lithuania of 14 June 2010 in civil case No. 3K-3-176/2010). The definition presupposes alternative conditions for the application of the presumption: 1) the party of the proceedings has evidence which the court has ordered to be provided but which conceals or refuses to provide it; 2) the party of the proceedings had evidence which the court has ordered to be provided but destroyed it. Given that one condition eliminates another, only one of them can exist.
In many cases, it is not clear why a party to proceedings does not provide the evidence they have (or had) the question may therefore arise as to whether the mere failure to provide the documents necessary for the proceedings may lead to a presumption of contra spoliatorem. In response to this question, the Supreme Court of Lithuania in its ruling of 9 January 2015 in civil case no. 3K-3-66/2015 has stated that for the application of the presumption contra spoliatorem it is important to determine not only the refusal of a party to provide the required evidence, but also the reasons for such refusal and the circumstances leading to them. The case referred the defendant’s refusal to provide an annex of the contract, arguing that this is confidential information related to the material issues of the company’s activities and the disclosure of the specified information may lead to unforeseen consequences for the company. The Supreme Court of Lithuania considered such arguments to be important, providing grounds to conclude that the unconditional fulfillment of the requirement to submit annexes to the contract may upset the balance of rights and obligations of the participants in the case. In the present case, the reasons for not providing an annex of the contract precluded the application of the presumption contra spoliatorem. The example of the case in question makes it possible to identify another necessary condition for the application of the presumption of contra spoliatorem: the taking of evidence must not violate the balance of rights and obligations between the parties.
One of the first cases confirming the application of the presumption contra spoliatorem was the case concerning the recognition of paternity, in which the court of first instance considered, in the light of the facts, the defendant’s refusal to carry out a paternity test as proof of paternity. The Supreme Court of Lithuania upheld this practice, noting that the defendant’s refusal to conduct an expert examination had reasonably regarded it as a deliberate evasion of the taking of evidence and as a sufficient basis for considering the most unfavorable facts (presumption of contra spoliatorem) for the defendant to be confirmed by failure to provide evidence (Order of the Supreme Court of Lithuania of 28 October 2002 in civil case No. 3K-3-1235/2002).
The presumption of contra spoliatorem also applies widely in insolvency proceedings. The Lithuanian Court of Appeal heard a case in which the director of the company did not provide data on the company’s financial data in the case of a bankruptcy. The Court of Appeal noted that the former director of the company was aware of the bankruptcy proceedings and had deliberately refused to cooperate in determining the company’s financial situation, therefore, under the presumption of contra spoliatorem, the non-disclosure was assessed to the detriment of the party required to file for bankruptcy (Order of the Court of Appeal of Lithuania of 15 October 2015 in civil case No. 2-1924-943/2015).
After assessing the content of the presumption of contra spoliatorem, the categories of cases in which it is most commonly applied and the problems the relationship between the circumstances presumed by law (Article 182 (4) of the Code of Civil Procedure) and not rebutted by the general order and the presumption of contra spoliatorem. In particular, the essential difference contra spoliatorem from the presumptions set out in Article 182 (4) of the Code of Civil Procedure is that the presumption contra spoliatorem is not yet enshrined in law, which precludes it from being classified in that article. For example, Vytautas Nekrošius believes that any exception to the general burden of proof can only be established by law (Driukas A., Jokūbauskas Č. and others. Lietuvos Respublikos civilinio proceso kodekso komentaras. II part. Vilnius: Justitia, 2005, p.13), however, in the case of a presumption of contra spoliatorem, the situation appears to be somewhat different. Secondly, the presumption of contra spoliatorem is a universal presumption – it can be applied in different categories of cases (for ex. in paternity cases, bankruptcy cases, etc.), while Article 182 (4) of the Code of Civil Procedure directs to other legal (substantive law) presumptions which are adapted only to specific categories of cases (e.g., presumptions applicable to loan legal relationships). Third, the presumption of contra spoliatorem can be regarded as having adverse consequences for a defendant who fails to fulfill his burden of proof.
ARTICLE PREPARED BY:
Černiauskas and Partners Law Firm Advocate’s assistant Irma Lisauskaitė.
