Definition and Significance of Evidence
Evidence comprises all objects, facts, or information used in the context of judicial or administrative proceedings to determine the facts relevant to the decision. The purpose of using evidence is to provide the court or deciding authority with a reliable basis for assessing the dispute. Evidence plays a central role in almost all types of proceedings—especially in civil law, criminal law, administrative law, labor law, and social law.
Legal Basis and Systematics
The legal provisions concerning evidence are primarily set out in the procedural codes, such as the Code of Civil Procedure (ZPO), the Code of Criminal Procedure (StPO), the Code of Administrative Court Procedure (VwGO), the Fiscal Court Code (FGO), as well as other special laws. The applicable regulations determine which types of evidence are permissible, how they are to be assessed, and which rules of evidence apply.
Evidence is generally distinguished as direct and indirect (circumstantial) evidence. Furthermore, the law differentiates between classical, codified types of evidence and other forms of evidence.
Types of Evidence
Main types of evidence according to German procedural law
The most important types of evidence within German procedural law are exhaustively defined in the respective procedural codes. These include:
Testimonial Evidence
In testimonial evidence, a natural person is questioned about events, facts, or circumstances they have perceived. Witnesses are obligated to testify truthfully. The examination of witnesses is of great importance for judicial fact-finding.
Documentary Evidence
Documentary evidence refers to the submission and use of written documents (e.g., contracts, letters, invoices, public registers). Through documents, the court can establish facts documented therein or that result from them.
Expert Evidence
Experts are called upon when the court requires special expertise to determine or assess facts (for example, medical opinions, structural engineering assessments, or evaluations of economic circumstances).
Inspection
With an inspection, the court directly observes an object, location, or situation with its own senses (e.g., viewing an accident scene, examining objects, demonstration of evidence items).
Examination of the Parties
In certain cases, the parties themselves can also be admitted as means of evidence. This is possible in civil proceedings, for example, by the examination of the parties as per § 445 ZPO. This involves questioning a party for the purpose of clarifying the facts of the case.
Other Evidence
In addition to expressly codified types of evidence, other materials may also play a role in practice, such as photographs, audio and video recordings, technical data carriers, or electronic documents. The admissibility and use of such evidence depend on the relevant legal requirements and fundamental rights, especially data protection and personal rights considerations.
Standard of Proof and Evaluation of Evidence
Standard of Proof
The standard of proof refers to the degree of conviction the court must have regarding an alleged fact in order to consider it proven. In civil proceedings, the principle of ‘full proof’ generally applies; in criminal proceedings, the judge’s conviction of the truth of a fact (‘in dubio pro reo’) is decisive. Sometimes, a lower standard of proof suffices, such as ‘substantiation’ in interim legal protection.
Freedom of Evidence Assessment
The assessment of evidence is generally free (§ 286 ZPO, § 261 StPO). The court must evaluate the evidence presented comprehensively and without contradiction and must provide reasoning in the judgment as to how it reached its conviction. There is generally no binding to formal rules of evidence, with few exceptions.
Principle of Free Evidence Taking and Prohibitions
Under German law, the principle of free evidence taking generally applies. Restrictions arise from prohibitions of evidence based on statutory provisions, fundamental rights (e.g., human dignity, right to a fair trial, data protection), or the prohibition on using evidence obtained unlawfully. An exclusion of evidence especially exists in cases of serious violations of fundamental procedural rights or the core area of private life.
The Role of Evidence in Proceedings
Evidence essentially determines the course of proceedings and the procedural position of the parties. In civil proceedings, the burden of proof generally lies with the party asserting a fact favorable to them (§ 138 ZPO). In criminal proceedings, the prosecution bears the burden of proof for the defendant’s guilt.
The court is generally required to take significant evidence that has been offered, unless it is unsuitable for legal or factual reasons. Failure to consider motions for evidence may be constitutionally questionable.
Evidence in Practice: Digital and Electronic Evidence
The importance of digital evidence is steadily increasing, particularly in connection with emails, files, measurement logs, surveillance cameras, electronic data records, and blockchain technologies. Introducing digital evidence requires special technical and legal scrutiny to ensure authenticity, integrity, and evidentiary value.
Summary
Evidence is a central element of judicial and administrative proceedings and ensures appropriate and fair decisions based on substantiated facts. The respective procedural codes regulate the type, admissibility, gathering, assessment, and use of evidence in detail. Alongside classical forms of evidence, electronic and digital evidence are becoming increasingly important. Prohibitions on the use of evidence and fundamental rights limit the admissibility of evidence and contribute to the protection of a fair trial and the personal rights of those involved.
Frequently Asked Questions
What types of evidence are recognized under German law?
The German legal system essentially distinguishes five classical types of evidence: documents, witnesses, experts, inspection, and examination of the parties. Documents are written items of evidence that can provide information about facts, such as contracts or invoices. Witnesses are individuals who testify about their own perception of relevant facts. Experts contribute specialized knowledge when special expertise is required in the proceedings, for example, in technical or medical reports. Inspection covers the court’s immediate sensory observation of things or circumstances, for instance during a site visit to an accident scene or reviewing photographs. The examination of the parties is the formal questioning of a party regarding disputed facts when other types of evidence have been exhausted or are insufficient. Each type of evidence is subject to its own rules on admissibility and evaluation, particularly concerning credibility, form, and the judge’s conviction.
How is it decided whether evidence is admitted in proceedings?
The admission of evidence in legal proceedings is determined by the competent court in accordance with the respective procedural rules, for example § 244 StPO in criminal cases or §§ 355 et seq. ZPO in civil cases. The decisive factor is whether the evidence refers to a legally relevant fact and there are no statutory grounds for exclusion. Grounds for exclusion may arise from prohibitions on evidence, such as the exclusion for statements obtained under torture (§ 136a StPO). Furthermore, the evidence must be submitted with sufficient specificity; vague or unsubstantial offers of evidence are generally inadmissible. The court also has some discretion, particularly regarding the rejection of motions for evidence if it considers the facts already sufficiently established or the evidence obviously unsuitable to prove the asserted fact.
What is meant by prohibitions on the use of evidence?
Prohibitions on the use of evidence refer to legal limits that result in evidence, which is otherwise available, not being considered in proceedings. Such prohibitions are mainly intended to protect higher-ranking legal interests, such as human dignity or the inviolability of the privacy and telecommunications secrecy. They may arise from procedural errors in gathering evidence (for example, failing to caution a witness), from infringements of fundamental rights (as in statements made under coercion), or from special statutory provisions. A distinction is sometimes made between absolute prohibitions, where evidence is inadmissible in any case, and relative prohibitions, where a balancing of interests—such as considering the seriousness of the violation—is required. The concrete application and scope of such prohibitions are often the subject of judicial rulings.
Can evidence also be provided indirectly, for example by circumstantial evidence?
In German law, so-called circumstantial evidence is a recognized form of proof. In circumstantial evidence, the main fact to be proven is not established directly, but through auxiliary facts—so-called indications—from which the court, by forming its conviction, may infer the main fact. This is particularly significant in criminal law when there is no direct witness to the act but a multitude of indications creates a coherent overall picture. The requirement is that the indications are conclusive and, taken as a whole, are suitable to convey sufficient conviction of the main fact. Circumstantial evidence is subject to the same strict standards for the evaluation of evidence as other forms of evidence.
What duties of cooperation do the parties have regarding evidence?
In civil proceedings, the so-called principle of party presentation applies, meaning the parties are responsible for presenting and proving facts favorable to their case. They must actively present and specifically identify evidence. In criminal proceedings, however, the principle of ex officio investigation applies, meaning the court itself must investigate the facts; nonetheless, the parties may also propose motions for evidence. Additionally, there are duties to cooperate, particularly toward the court, such as submitting documents (§ 142 ZPO). Violations of such duties may result in procedural disadvantages, for example, the assumption of adverse facts (‘preclusion’) or enforcement measures to compel disclosure. It should be noted that each party retains the right not to incriminate themselves (the nemo tenetur principle).
What role does the credibility of witnesses play in the evaluation of evidence?
The credibility of witnesses is a central aspect of the free assessment of evidence (§ 286 ZPO, § 261 StPO). The court must critically examine whether a witness’s testimony is credible, which must be considered in light of numerous factors: these include the internal and external consistency of the statement, the witness’s memory, possible self-interests, emotional involvement, any motives to incriminate or exonerate, as well as the history of the statement. The court is required to clearly set out its considerations in the evaluation of evidence. There are no general presumptions of credibility under German law; each case must be assessed individually.
Are there deadlines for submitting evidence?
Yes, both in civil and criminal proceedings, deadlines for submitting evidence may exist. In civil cases, such deadlines are often set by the court during the early first hearing or later in the proceedings to promote an efficient process (§ 273 ZPO, § 296 ZPO). If evidence is submitted late, the court may reject its consideration, especially if the delay is due to gross negligence or the proceedings would be unnecessarily delayed. In criminal proceedings, there are fewer formal deadlines; however, the late submission of evidence, such as shortly before the end of the hearing of evidence, may also be viewed by the court as abusive and lead to its rejection if, as a result, the conduct of the proceedings would be significantly disrupted. In both procedural codes, deadlines are therefore relevant to ensure an effective and fair gathering of evidence.
