Concept and significance of evidentiary proceedings in law
Das Evidentiary proceedings are a central component of judicial proceedings across various branches of law, particularly in civil law, criminal law, and administrative law. It governs the manner in which facts relevant to resolving a legal dispute are established in court. The aim of evidentiary proceedings is to form the court’s conviction regarding the existence or non-existence of disputed facts through the application of admissible means of evidence and adherence to legally prescribed procedures.
Legal framework of evidentiary proceedings
Fundamentals and function
The evidentiary procedure is typically governed by the codes of procedure, for example the Code of Civil Procedure (ZPO), the Code of Criminal Procedure (StPO) as well as the Code of Administrative Court Procedure (VwGO) . These statutes stipulate which means of evidence are admissible, how evidentiary proceedings are to be initiated and conducted, and which principles must be observed in the assessment of evidence.
The purpose of the evidentiary procedure is to clarify factual circumstances relevant to the court’s decision. It ensures that the court does not base its decision merely on assumptions or allegations, but rather on verifiably established facts.
Legal principles in evidentiary proceedings
Key principles of evidentiary proceedings are:
- Die Allocation of burden of proof: Determines which party bears the risk if a fact cannot be proven.
- Der Principle of immediacy: Obligates the court to take evidence as directly as possible, i.e., itself rather than through third parties.
- Der Principle of free assessment of evidence: The court is free in its assessment of the evidence, provided that the reasoning is understandable (§ 286 ZPO).
- Der Principle of publicity and oral presentation: The evidentiary procedure generally takes place in a public main hearing and orally.
Course of the evidentiary procedure
Initiation of the evidentiary procedure
The evidentiary procedure is generally initiated by an application to take evidence. The party bearing the burden of proof requests the court to determine certain facts by appropriate means of evidence. The court then decides whether the offered evidence is admissible and schedules an evidentiary hearing.
Conduct of the evidentiary procedure
The taking of evidence is carried out through various means of evidence, the admissibility and usability of which are governed by law:
Overview of means of evidence
- Testimonial evidence: Statements by individuals who have personally perceived the disputed facts.
- Documentary evidence: Submission of documents intended to prove facts.
- Expert evidence: Obtaining expert opinions from specialists on technical questions.
- Inspection (physical evidence): The court itself examines the matter with its own senses (e.g., inspection of an accident site or an object).
- Examination of parties: Hearing of a party about facts concerning them.
Taking of evidence
The taking of evidence is conducted before the competent court in a structured evidentiary hearing. The court ensures that means of evidence are properly introduced and documented.
Evaluation of evidence
After the taking of evidence has concluded, the court evaluates the evidence according to its free conviction (§ 286 ZPO). The judgment must expressly contain the court’s reasoning concerning the evaluation of the evidence.
Special aspects in different types of proceedings
Evidentiary procedure in civil proceedings
In civil proceedings, the party claiming a fact beneficial to themselves usually bears the burden of proof. The course of evidentiary proceedings is essentially governed by §§ 355 et seq. ZPO. Evidence is taken by the judge or, in some cases, by a commissioned or requested judge.
A special instrument is the independent evidentiary procedure (§§ 485 et seq. ZPO), which is used for precautionary preservation of evidence before or outside of principal proceedings. It is especially employed in cases of imminent loss of evidence or for judicial clarification of evidentiary issues, e.g., in cases of construction defects.
Evidentiary procedure in criminal proceedings
In criminal proceedings, evidentiary procedure is decisively shaped by the principle of official investigation. The court is obliged to ascertain the truth ex officio (§ 244 StPO). The available means of evidence are similar to those in civil proceedings; additionally, the application to take evidence is particularly protected. Any rejection of such an application must be justified in detail.
Evidentiary procedure in administrative proceedings
Similar rules generally apply in administrative proceedings as in civil proceedings. Under § 98 VwGO, the provisions of the ZPO apply accordingly. The court also evaluates the evidence at its own discretion.
Exclusionary rules and inadmissibility of evidence
The evidentiary procedure is permeated by rules of inadmissibility of evidence. Evidence obtained in violation of procedural rules or fundamental rights may not be used under certain circumstances. These prohibitions aim to ensure fair proceedings and the safeguarding of procedural fundamental rights.
Independent evidentiary procedure
Definition and purpose
The independent evidentiary procedure under §§ 485 et seq. ZPO is a separate judicial procedure solely for securing evidence and clarifying evidentiary issues, without the principal action being pending. It is primarily intended to avoid legal disputes or to preserve evidence that might later become impossible or difficult to obtain.
Course of the independent evidentiary procedure
The independent evidentiary procedure is initiated by an application specifying the fact to be proven and the means of evidence. After the evidence has been taken, the court prepares a record of the result, which may serve as evidence in possible future principal proceedings.
International aspects of evidentiary procedure
In the international context, the rules on taking evidence are governed by the Hague Evidence Convention of 18 March 1970 and EU regulations (such as those on cross-border taking of evidence in civil and commercial matters). These provisions govern the cross-border taking of evidence, for example when witnesses or evidence are located abroad.
Significance of the evidentiary procedure for the administration of justice
Evidentiary proceedings are essential for the accuracy of judicial decisions and the realization of procedural justice. They ensure that courts base their decisions on an objective factual foundation and that the parties’ rights are protected within the framework of an orderly procedure.
Conclusion:
The evidentiary procedure is a multifaceted and highly regulated element of judicial proceedings and is central to the establishment of facts. Its careful conduct and compliance with procedural rules are prerequisites for fair and lawful decisions by German courts. Special forms, such as the independent evidentiary procedure, as well as national and international regulations, ensure comprehensive legal safeguards for the taking and evaluation of evidence.
Frequently asked questions
What deadlines apply in evidentiary proceedings and how are these calculated?
Various deadlines apply in evidentiary proceedings, which can differ depending on the type of evidence, the stage of proceedings, as well as state-specific regulations. Typical deadlines include those for submitting documents (§ 142 ZPO), for naming witnesses, or for filing an application in the independent evidentiary procedure (§§ 485 et seq. ZPO). The calculation of these deadlines is generally in accordance with §§ 186 to 193 BGB, unless special provisions exist. Deadlines set by the court (e.g., for comments or to offer evidence) begin with the service of the relevant order or directive; statutory deadlines arise from the law, for example a two-week period to respond. Failure to comply with a deadline can have serious consequences, such as exclusion of evidence (§ 296 ZPO) or rejection of late submissions. Extensions are possible upon application, provided there is no exclusion period or overriding interests of the opposing party. In the independent evidentiary procedure, additional deadlines for conducting or suspending the proceedings should be observed.
In what cases can the court reject applications to take evidence?
The court may reject an application to take evidence under certain circumstances, for example when the offered evidence is unsuitable for proving the asserted fact, the application is filed too late, or the alleged fact is already considered proven or undisputed (§ 244 para. 3 StPO, § 296 ZPO). Rejection also occurs if the fact is not relevant to the decision, i.e., legally irrelevant (§ 284 ZPO). In civil proceedings, procedural economy also plays a role, so the court may exclude late applications for evidence, for example if they were not announced in time as required by § 282 ZPO, if allowing them would delay the resolution of the dispute. In criminal proceedings, the standards are stricter: here, an application to take evidence may only be rejected under narrowly defined circumstances, such as manifest irrelevance or if the evidence is unattainable.
How does the independent evidentiary procedure work and what are its advantages?
The independent evidentiary procedure primarily serves the pre-litigation preservation of evidence, especially in cases where rapid determination is required or a party is considering filing a claim but does not yet have sufficient clarity about the facts. The application is filed with the court having subject-matter and local jurisdiction and must specify the fact to be proven, the desired means of evidence (e.g., expert opinion), and the interest in preserving the evidence in concrete terms (§ 487 para. 2 ZPO). The court orders the taking of evidence and usually conducts it without the taking of further evidence. The parties and any appointed experts are summoned, and the results are recorded in the minutes. The advantage of the procedure is that the facts established are bindingly documented for any subsequent main proceedings and valuable time can be saved. This is particularly relevant for evidence at risk of loss (e.g., material damage that must be remedied promptly).
Can an application to take evidence be limited to the examination of specific witnesses, and when is this advisable?
An application to take evidence can generally be limited to individual or several specifically named witnesses. This limitation is particularly advisable when certain individuals have exclusive knowledge of facts relevant to the case, making the taking of evidence more efficient. There is no obligation to name all conceivable witnesses; rather, the applicant must demonstrate that the chosen witness has the decisive perceptions. The precise specification of the fact to be proven and the witness is required (§ 373 ZPO). Should the court determine that the evidence is incomplete or another witness appears necessary, it may, at its discretion, arrange for the examination of additional witnesses (§ 358 ZPO).
What role does the duty of parties to cooperate play in taking evidence?
Under § 138 ZPO, the parties are obligated to cooperate in establishing the facts, in particular by providing substantiated denials of opposing claims and by identifying means of evidence for disputed facts. They must follow relevant directions issued by the court and contribute to the complete clarification of the matter. In the context of taking evidence, they are, among other things, obliged to produce documents upon request (§ 142 ZPO), to name witnesses, and to note any summons. If a party fails to fulfill its duty to cooperate, the court may interpret this to the party’s disadvantage, for example by assuming an admission (§ 138 para. 3 ZPO) or through decisions regarding the burden of proof. In particular, in the independent evidentiary procedure, lack of cooperation—such as failing to provide objects for inspection—may result in considerable disadvantages.
Under what conditions is it possible to challenge an expert?
An expert may be challenged for the same reasons as a judge, such as concern over bias (§§ 406, 42 ZPO). The party must file an application stating specific grounds for the challenge, for example prior professional or personal connections to a participant, proven partiality, or lack of neutrality in a written or oral opinion. The application must be submitted immediately after the grounds become known. The court then decides—if necessary, after obtaining the expert’s statement—on the challenge. If the application is granted, the court will appoint another expert.
What happens if evidence is lost or becomes unusable during proceedings?
If a piece of evidence is lost or becomes unusable during the proceedings, the court must determine whether and how the taking of evidence can continue. If, for example, documents have been lost, their duplicates, copies, or other reproductions can be used. In cases where objects are destroyed, such as during an independent evidentiary procedure before the main proceedings, an already prepared record or expert opinion can serve as a basis. In any case, it must be determined whether the loss of evidence disadvantages a party. The so-called secondary burden of proof may apply, or the court may take the parties’ conduct into account when freely evaluating the evidence under § 286 ZPO. If a party willfully destroys evidence, this can also lead to procedural disadvantages, such as a reversal of the burden of proof or the exclusion of certain claims.
