What affects evidence in civil proceedings?

Chapters of the article

• Principles applied to evidence
  • Dispositional principle
  • Obligation to allege
  • Duty of proof
  • Burden of proof
  • Reversal of the burden of proof
  • Principle of inquiry
  • Principle of free evaluation of evidence
• Means of proof
  • Documentary evidence
  • Witness interviews
  • Expert reports
  • Interviews with the parties themselves
  • Inspection
  • Conduct and evaluation of evidence

Principles applied in evidence

There are a number of principles that the court applies during civil proceedings. These are:

The dispositional principle

Civil proceedings are different from most other proceedings (e.g. administrative or criminal proceedings) in that it is primarily at the parties’ discretion where the trial will go. It therefore depends on their activity, submissions and proposed evidence. To a large extent (especially in contested proceedings) the court is guided by the parties’ submissions.
The opposite of this principle is the so-called principle of formality, which is, of course, typical mainly of criminal proceedings (the courts initiate and proceed with proceedings ex officio); in civil proceedings, it is encountered in the sense that, once proceedings have been initiated, the court must continue them, even if the parties are subsequently essentially inactive.

Obligation to claim

It is directed in particular at the applicant and implies for him that he must state truthfully what he claims and what the relevant facts are.

The burden of proof

This obligation is enshrined directly in a provision of the Code of Civil Procedure, according to which “The parties shall be obliged to adduce evidence to prove their allegations, the court deciding which of the evidence offered it shall take.”

Again, therefore, the emphasis is on the activity of the parties, who must themselves come forward with proposals for evidence to substantiate their claims. The court (or other authority) will not itself be active in this respect (this applies mainly to contested proceedings, another situation might be proceedings concerning minor children).

Burden of proof

The parties to the proceedings are burdened with the so-called burden of proof. The burden of proof lies primarily with the claimant. This means that it is up to them to identify and substantiate all relevant facts and evidence. If they do not, the court will normally base its decision only on evidence that has already been taken. However, as stated above, the court is not obliged to take all the evidence proposed. On the contrary, it may take evidence other than that proposed by the parties, in particular where it is necessary to establish the facts.

For example, the burden of proof in a claim for damages imposes on the injured party the obligation to establish the existence of the wrongful act of the wrongdoer, the occurrence of the injury and the existence of a causal link between the act and the injury.

Another example would be an action for the protection of personality. Here, the burden of proof is quite difficult to bear, and we are dealing with concepts such as interference with honour, privacy or dignity, according to the assessment and quantification of non-pecuniary damage and so on. Such an action usually requires consultation with an experienced lawyer.

Reversal of the burden of proof

The law allows for an interesting situation where the burden of proof is reversed, namely in discrimination litigation. For example, if you allege that an employer discriminated in the workplace on the basis of sex by denying all men access to training, the burden is on the employer (or the defendant generally) to prove that its actions were not discriminatory.

The investigative principle

Applied primarily in so-called uncontested proceedings where the public interest is usually at stake. Therefore, here the court is obliged to take evidence, if necessary, other than that offered by the parties. This does not mean that the duty to allege does not apply. However, if the burden of proof is not met or if a party fails to discharge the burden of proof, it should not be decided against that party simply because of that.

The principle of the free evaluation of evidence

The principle of the free evaluation of evidence means that there are no precise rules as to how to evaluate and take into account any evidence (hypothetically, imagine, for example, a rule that says that the testimony of two witnesses is to be taken as conclusive evidence, or that the testimony of two women is equivalent to that of one man).

On the other hand, this principle does not say that the court has a choice in its decision (in its deliberations over it) which of the evidence it evaluates and which it does not, or which of the evidence it relies on for its factual conclusions (findings) and which it omits. If he does not wish to take any of the evidence proposed, he must give proper reasons for his decision.

Means of proof

Almost anything can be used as evidence to establish the state of the case. The most commonly used are:

Documentary evidence

For example, contracts, invoices, notarial records. A distinction is made between public documents (such as notarial deeds), the authenticity of which is automatically presumed, and if someone disputes it, they must prove it. On the other hand, in the case of private documents (such as contracts), it is sufficient to challenge the authenticity and then the person who submitted the document must prove it.

Interviews of witnesses

Witnesses cannot be the parties themselves. Otherwise, however, there is no limit to the number of witnesses, who may be a close relative of a party or a minor (provided that his or her mental capacity enables him or her to perceive and communicate a certain situation to the court). Anyone who is invited by the court to appear as a witness is obliged to testify. The right to refuse to testify in such a case may be exercised if it would result in a threat of criminal prosecution or prosecution of persons close to the witness. In such a case, however, the court would assess whether the refusal to testify is justified.

A different situation is the prescribed secrecy which the witness may not break. This applies, for example, to doctors, lawyers or priests. However, a party may also break secrecy concerning his or her own person, for example, by submitting his or her medical records as evidence.

The witness is entitled to so-called witness fees, i.e. the cost of transport, accommodation and lost earnings at work.

Expert reports

These are used, for example, to verify the authenticity of documents or psychological reports. The expert is usually selected from a list of forensic experts. If there is no person on the list for a particular area, someone else may be appointed on an exceptional basis.

Interviewing the participants themselves

The court tends to resort to this in cases of evidentiary necessity, as the parties may be presumed to have an interest in the outcome of the dispute which will affect their testimony. In some types of proceedings (e.g. family disputes), however, the questioning of the parties is the rule.

Inspection

The subject matter may be any object or the human body. It can be carried out directly at the court hearing if the nature and size of the matter in question allows it. Otherwise, the examination must be carried out on the spot and all the parties to the proceedings, or other persons such as experts, etc., must be invited.

Civil law does not work much with concepts such as direct or circumstantial evidence, which we are typically familiar with from criminal law. Direct evidence directly implies the fact to be proved (an example is a contract presented to prove that a purchase has taken place). Circumstantial evidence is usually only one of several pieces of evidence that are intended to prove something (an example in the same dispute might be the testimony of a witness who heard someone say that a contract of sale was made).

Conduct and evaluation of evidence

As mentioned above, it is for the parties to prove their claims and to propose and present evidence. In turn, it is for the court to determine which evidence is to be taken.
The evidence is taken during the hearing itself, at which the parties are present.
Each piece of evidence is evaluated individually by the court and all the evidence is also evaluated in relation to each other.