The complaint of forgery is a civil procedural instrument that allows the authenticity of a document to be contested by asking for its falsity to be ascertained. Let’s see what it consists of and how it is regulated by our civil procedural system.
INDEX
- What is the forgery lawsuit?
- What are the prerequisites?
- How is a forgery complaint proposed?
- The procedure
What is the forgery lawsuit?
When the production of the documentary proof cannot be denied because it is a public deed or a recognized, authenticated or verified private deed, it is only possible to resort to the complaint of forgery.
Disciplined by articles 221 and following of the code of civil procedure, the complaint of forgery can be lodged both incidentally (i.e. within the procedure in which the document was produced), and principally by establishing an autonomous procedure to have the declaration the non-authenticity of the document.
If proposed in the course of the casethe judge must first hear the party who produced the document to ask if he intends to use it in court. If the party declares that he does not want to do so, the document cannot be used in the case, if instead the party intends to make use of the document, the judge opens the judgment on the authenticity and arranges the necessary investigative means to ascertain the falsity.
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What are the prerequisites?
The procedure for the complaint of forgery , for constant direction of the jurisprudence, has the purpose of depriving “a public deed (or a recognized private deed) of its intrinsic suitability to ‘make faith’, that is, to serve as proof of relationships, thus aiming, through its declaration, to achieve the result of causing the complete removal of the document value, eliminating, in addition to the effectiveness of its own, any further effect ascribed to it, under another aspect, by law.
for this reason, the lawsuit forgery can only be proposed for the purpose of depriving a document (public deed or private agreement) its suitability to be authentic as proof of certain relationships.
The falsehood can affect the extrinsic profile of the document (we speak of the so-calledmaterial falsity ), or in its “genuineness”, manifesting itself both in the forms of counterfeiting (eg the formation of the document by someone who is not the apparent author) and of the alteration (eg modification of the original document ).
On the other hand, when the falsity concerns the “truth” of the document, that is the false statement of its content, we speak of ” ideological falsehood “, which, according to jurisprudence, can be the subject of a false complaint, limited to what concerns the “extrinsic” of the document, as in the case of the public deed of the notary which falsely certifies the truthfulness of a declaration made before him.
Anyone who has an interest in filing a false claim is entitled tooppose the probative efficacy of a document bearing privileged faith in relation to a claim that is based on it, not excluding the same party that produced it in court.
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How is a forgery complaint proposed?
The complaint of forgery can be proposed primarily but also in the course of the case in any state and degree of judgment and until the truth of the document has not been ascertained by a final judgment.
For the purposes of the feasibility of the complaint of forgery, art. 221 cpc does not place any limitations whatsoever as to the degree and status of the judgment “precisely in consideration of the particularity of the remedy and the rigorous forms that govern the experiment” (Cass. N. 8162/2012).
According to jurisprudence, the provision must be understood “in the sense that the relative request, in the first or second instance, must in any case intervene before the case is referred for decision, therefore at the latest by the hearing to specify the conclusions” (cf . Cass. N. 17900/2011 which declared the inadmissibility of the false complaint proposed with the reply statement).
The complaint of forgery can be proposed with a writ of summons or with a declaration to be added to the minutes of the hearing , personally by the party or by means of the defender with special power of attorney.
In the latter case, the special power of attorney, suitable for allowing the prosecutor to propose the complaint of forgery,
In any case, the deed, whether by the party personally or through a special proxy , must be signed, under penalty of inadmissibility.
As for the content, for the express provision of art. 221 cpc, the lawsuit must contain, under penalty of nullity, “the indication of the elements and the falseness tests”, they can not be deducted from the new elements subsequently to the proposition of the lawsuit itself ..
According to the law, in fact, the lawsuit civil forgery, both main and incidental, can be proposed in any state and grade of the trial, as long as the truth of the document has not been ascertained by a final judgment.
Therefore, the complaint of forgery can no longer be proposed against that document, the truth of which has been declared by irrevocable sentence in civil and criminal forgery.
Therefore, the law precludes the complaint of forgery whenever a sentence (civil or criminal) has effectively ascertained the existence of a specific right or legal situation, by virtue of documentary evidence relevant to the decision and implicitly considered genuine. , since no action (main or incidental) of forgery has been proposed.
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The procedure
When a party proposes a complaint of forgery in the course of the case, the judge, pursuant to art. 222 of the Italian Civil Code, questions the party who produced the document to ask if it intends to make use of it in court (so-called “ruling”).
If the answer is negative, the document cannot be used in court and the lawsuit has not followed up.
For the purposes of ascertaining the falsity of the document, the judge admits the investigative means that he deems suitable and relevant and also establishes the methods and terms of their engagement.
The sentence on the falsity of the document, according to the provisions of art. 225 cpc, is always pronounced by the court in collegial composition, even if the trial takes place before the investigating judge, who can refer the parties to the panel for the decision on the complaint regardless of the merits.
In this case, at the request of a party, the GI can arrange for the discussion of the case to continue in front of him in relation to the questions that can be decided independently of the contested document.
Therefore, following the decision-making phase, three different situations can arise :
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- the investigating judge suspends the entire trial and remits the decision on the complaint to the college;
- the GI remits the case to the college, both for the decision on the complaint and for the merits;
- finally, the judge can split the merits of the case, ordering the prosecution limited to the questions that he deems independent of the question of untruthfulness, leaving the latter instead to the college.
The sentence that decides on the complaint of forgery by the college is subject to the normal means of appeal . Even where, according to jurisprudence, “the substantive proceeding in which the document was produced is a special proceeding, or has as its epilogue a sentence not subject to appeal”.
