Concept and significance of the free evaluation of evidence
The concept free evaluation of evidence refers, under German law, to a special form of taking evidence in which no strict rules of evidence apply. Unlike the formal (bound) evaluation of evidence, where the permissible types of evidence (e.g., witness, document, expert) are exhaustively listed and subject to certain formal requirements, the free evaluation provides considerable discretion regarding the selection and application of evidentiary means. In free evaluation proceedings, the court may use all information sources generally recognized as suitable, including those that would not be permissible in strict (formal) evidence proceedings.
The free evaluation of evidence is intended in particular to enable the investigation of facts that do not directly relate to the main subject matter of the dispute (i.e., the disputed legal relationship), but are only significant for the procedural aspects themselves.
Areas of Application of the Free Evaluation of Evidence
Facts of procedural relevance
The free evaluation of evidence is used in particular for the determination of so-called procedural facts Such facts include all those that do not relate to the core subject matter of the proceedings, but affect the course and admissibility of legal proceedings, for example:
- Service and receipt of documents
- Compliance with deadlines and missing deadlines
- Legal and procedural capacity of parties
- Restitution to the previous status
- Jurisdiction of the court
- Legal aid/Granting of advisory and procedural cost assistance
- Facts related to procedural obstacles (e.g., pendency of an action, double jeopardy)
Types of Proceedings and Court Branches
The free evaluation of evidence is relevant for all branches of the courts, but especially in civil proceedings, administrative proceedings, labor court proceedings, and social court proceedings. In criminal proceedings, the free evaluation is also applicable, for example in preliminary proceedings or when deciding on procedural obstacles.
Differences to Formal (Strict) Evaluation of Evidence
Definition of Strict (Formal) Evaluation of Evidence
The strict evaluation of evidence is the opposite of the free evaluation of evidence. Here, legally prescribed types of evidence are exhaustively listed in procedural codes (such as § 284 ZPO for civil proceedings). The taking of evidence takes place according to formal procedural rules. Typical types of evidence are:
- Witness testimony
- Documentary evidence
- Expert opinion
- Inspection of objects and locations
- Examination of parties
Criteria for distinction
The distinction between free and strict evaluation of evidence is made according to the subject of evidence. While strict evaluation is concerned exclusively with establishing facts relevant to the subject matter of the dispute (e.g., prerequisites or exclusions for claims), free evaluation primarily concerns procedural facts and ancillary decisions that do not directly affect the plaintiff’s claim.
Permissible Evidence in the Free Evaluation
Within the scope of the free evaluation, the selection and assessment of evidence are generally not subject to significant restrictions. Permissible means include in particular:
- Written and oral statements by parties and third parties
- Information and inquiries from authorities and organizations
- Inspection of any available objects of evidence
- Telephone calls, emails, letters, fax transmissions, administrative files
- Documentary proof of any kind (including copies and extracts)
In contrast to strict evaluation, the court in the free evaluation procedure is allowed to conduct its own research and, for example, consider printouts from the internet or excerpts from public registers regardless of formal requirements.
The aim is to quickly and efficiently obtain a complete picture of the relevant procedural aspects, considering all available sources of information.
Limitations and Principles
Although the free evaluation of evidence is not bound by strict evidentiary rules, the judge’s assessment of evidence remains subject to their task of forming conviction. The parties’ rights (in particular the right to be heard under Art. 103(1) of the Basic Law) must always be observed. Inadmissible evidence, especially such obtained in violation of fundamental procedural principles or by infringing data protection and privacy rights, cannot be used even in the free evaluation of evidence.
Legal foundations and statutory anchoring
Civil Procedure Law
In German civil procedure law, the principles of the free evaluation of evidence are particularly recognized in connection with procedural prerequisites. The Code of Civil Procedure (ZPO) does not contain an explicit provision for the free evaluation of evidence, but allows for it under the court’s procedural management and duty of investigation (see § 139 ZPO, § 296 ZPO in connection with deadlines).
Administrative law and other procedural codes
In administrative proceedings, the free evaluation of evidence is explicitly regulated (§ 108(1) VwGO: “The court shall investigate the facts of the case ex officio…”). Similar provisions exist for the social court system (see § 103 SGG). This leads to an obligation to establish the truth completely without the constraints of strict evidentiary rules.
In criminal proceedings, the free evaluation of evidence also applies in interim and ancillary proceedings, for example when deciding on procedural obstacles.
Constitutional and procedural framework
Right to be heard and fairness
The principle of the right to be heard (Art. 103(1) Basic Law) also applies in free evaluation proceedings. Parties must have the opportunity to take notice of evidence and to comment on it.
Court’s duty to give reasons
The court must also provide comprehensible reasons for its decision in free evaluation proceedings and disclose the decisive grounds (see § 286 ZPO, applied analogously). The comprehensibility of the judge’s findings is crucial for appellate review.
Practical significance and distinction
The free evaluation of evidence is of considerable practical importance for the efficiency and flexibility of judicial decision-making, especially in interim, ancillary, and cost proceedings. Its use contributes to the prompt and appropriate resolution of purely procedural questions without burdening the taking of evidence with formal obstacles.
At the same time, careful distinction from strict evaluation of evidence is essential to ensure procedural fairness and to protect personal rights.
References and further reading
- Thomas/Putzo, Zivilprozessordnung, current edition, § 286 para. 1 et seq.
- Zöller, Zivilprozessordnung, current edition, § 286 para. 1 et seq.
- Stein/Jonas, Commentary on the Code of Civil Procedure, various registers
- Baumbach/Lauterbach/Albers/Hartmann, ZPO, current edition, Introduction para. 54 et seq.
- Schlaich/Korioth, The Federal Constitutional Court, 12th edition, overviews of jurisprudence
Summary
free evaluation of evidence is a procedural institution that allows for the investigation of procedurally relevant facts independent of fixed evidentiary rules. It permits flexible and practical gathering of evidence in areas where there is no need for an immediate decision on the main subject matter, but rather on procedural questions. However, compliance with procedural fundamental rights and careful judicial assessment of evidence remain central requirements—even in proceedings involving free evaluation of evidence.
Frequently Asked Questions
When is the free evaluation of evidence permissible in German civil proceedings?
The free evaluation of evidence is always permissible in German civil proceedings when the law does not expressly require strict evidence. This means the free evaluation of evidence typically applies to so-called “procedural facts,” i.e., questions that pertain to the procedural aspects themselves and do not directly decide on substantive law. Examples include the admissibility of the claim, service of documents, restitution to the previous status, legal aid, or the concern over a judge’s potential bias. Unlike strict evidence, where only those means of proof regulated by law (witnesses, documents, expert opinions, inspections, examination of parties) may be used, the free evaluation allows the court to use, in principle, all available sources of information as long as they appear suitable for fact-finding. The aim is to provide the court with a flexible and practical basis for decisions. Statutory bases for the admissibility and limits of free evaluation of evidence can be found, for example, in §§ 128, 297, 495a, 572 para. 1 sentence 2 ZPO.
What types of evidence are permissible in proceedings based on the free evaluation of evidence?
Under the free evaluation of evidence, all types of evidence are generally admissible as long as they appear suitable to clarify the facts. Typically, in addition to the types of evidence provided by law in strict evidence (such as witnesses, documents, etc.), other sources of information are also permitted that would be inadmissible in strict proceedings. These particularly include written statements from third parties, private expert opinions, statements outside the courtroom (e.g., telephone calls), police investigation reports, official information, statutory declarations, and even inspection of objects without formal procedure. Since there are no rules on exclusion of evidence, the court may consider all sources at its discretion. However, the right to be heard remains; parties must have the opportunity to comment on the evidence.
What are the procedural consequences of the free evaluation of evidence?
Applying the free evaluation of evidence means that the court is not bound by the strict formal rules governing evidence in fact-finding. In particular, the court dispenses with formal taking of evidence and its associated requirements, such as specific notice periods and record-keeping. This accelerates and simplifies the proceedings because facts can also be established summarily or in writing. The parties do not bear any special burden of proof here; rather, the court decides at its own discretion which sources of information it uses and what conviction it forms. Nevertheless, the court is still obliged to consider all relevant aspects and uphold the right to be heard, which also means that the court must base its decision on understandable reasons.
Are there any limitations to the free evaluation of evidence in court proceedings?
Although the free evaluation of evidence grants great flexibility, it is not without boundaries. Statutory prohibitions and fundamental constitutional requirements, such as the general right of personality or the right to informational self-determination, must be observed. In addition, the court remains bound by the requirement of procedural truth and may use only those sources of information that are reliable and satisfy the requirements of a fair trial. Evidence obtained in violation of public policy, through substantial coercion, or in breach of procedural principles is inadmissible. Evidence that is excluded under data protection law may also be subject to evidentiary prohibitions that limit the free evaluation.
Can a judgment based on the free evaluation of evidence be challenged?
A judgment based on the free evaluation of evidence is in principle just as subject to challenge as a judgment based on formal taking of evidence. Grounds for appeal exist, for instance, if the court failed to consider critical evidence, did not satisfy the right to be heard, or did not adequately explain its reasoning (§ 286 ZPO analogously). In appeal or complaint procedures, legal remedies can be based on the fact that the court applied the free evaluation improperly or ignored rules on the exclusion of evidence. What is decisive is that the parties had sufficient opportunity to comment during the proceedings and that the court’s decision is comprehensible. The court must also present its reasoning in the grounds for its decision under the free evaluation of evidence.
Can the free evaluation of evidence be applied in criminal proceedings?
Although the free evaluation of evidence is primarily used in civil and administrative procedure, there are also situations in criminal proceedings where it is permissible. This is typically the case in procedural matters such as detention and interim orders, reopening of proceedings, or decisions on the rejection of a judge due to concerns about bias (§ 28 StPO). As in civil proceedings, all suitable sources of information may be considered without being bound by the evidentiary rules of the main hearing. For decisions on the merits (guilt or sentence), however, the free evaluation is excluded and the strict rules of criminal procedure apply.
To what extent does the right to be heard apply in free evaluation proceedings?
The right of the parties to be heard (Art. 103 (1) Basic Law, § 33 (1) ZPO) must be fully respected in proceedings involving the free evaluation of evidence. This means each party must have the opportunity to present its position on the facts and evidence relevant to the decision. The court may not use sources of information in free evaluation proceedings to which the party did not have the opportunity to comment. If, for example, official information, written statements, or foreign-language documents are used, these must be made known to the opposing party to allow an appropriate response. A violation may constitute a procedural error that can result in the judgment being set aside.
