Concept and legal classification of the application to take evidence
Der Application to take evidence is a central instrument in German procedural law and serves to initiate a judicial taking of evidence regarding a specific fact. By submitting an application to take evidence, the court is expressly and formally requested to admit and hear a specific item of evidence on a defined subject of proof. The application to take evidence is used in almost all types of court proceedings, in particular in criminal, civil, administrative, social, and labor court proceedings.
Definition and function
An application to take evidence is a formal request by a party to have a specific fact that is relevant to the case established through a concrete means of evidence—such as witnesses, documents, expert opinions, or inspection. The application obliges the court to address the evidentiary request in a structured manner and either conduct the requested taking of evidence or—only under statutory conditions—reject it.
Legal basis
Criminal proceedings
The legal provisions for applications to take evidence in criminal proceedings can be found in particular in Sections 244 et seq. of the Code of Criminal Procedure (StPO). The StPO distinguishes between Application to take evidence und Application to investigate evidence. The application to take evidence must be decided by the court; a rejection is only possible under certain, narrowly defined conditions (see Section 244 (3-6) StPO).
Civil proceedings
In civil proceedings, the application to take evidence is asserted pursuant to Sections 355, 359, 373 of the Code of Civil Procedure (ZPO). Unlike in criminal proceedings, there is no statutory obligation to admit every application; the court decides at its own discretion whether and which evidence is to be taken (Section 286 ZPO – principle of free evaluation of evidence).
Other types of proceedings
The application to take evidence is also significant in other types of proceedings, such as administrative proceedings (Section 98 VwGO), social court proceedings (Section 103 SGG), and labor court proceedings (Section 58 ArbGG). In all types of proceedings, it serves to specifically guide the judicial determination of the facts.
Substantive requirements for the application to take evidence
Required components
Certain formal and substantive requirements apply to the admissibility of an application to take evidence:
- Subject of proof: The application must specify exactly which particular fact is to be clarified.
- Evidence: The specific item of evidence (e.g., name of the witness, precise description of the document, etc.) must be stated.
- Causality: It must be evident for what reason the proposed evidence might lead to clarification of the alleged fact.
An application that is unclearly presented or imprecisely formulated may be classified as a so-called application to investigate evidence, which does not give rise to a binding obligation for the court to take evidence.
Form
An application to take evidence can generally be submitted in writing or orally during the hearing. In criminal proceedings, the application is often recorded orally during the main hearing, while in civil proceedings, the application is usually made in written pleadings.
Differences between application to take evidence and application to investigate evidence
In contrast to the Application to take evidence, which is directed at the taking of a specific, precisely defined item of evidence, an Application to investigate evidence merely calls for investigations to be conducted, without designating a specific means of evidence or concrete subject of proof. The application to investigate evidence generally does not create a judicial obligation to take evidence. The court decides on this at its proper discretion.
Admissibility and rejection of applications to take evidence
Judicial obligation to decide
If a proper application to take evidence is submitted, the court must decide on it. The rejection of an application to take evidence is regulated by law in criminal proceedings. Key grounds for rejection include, for example:
- Obvious lack of relevance (Section 244 (3) Sentence 2 StPO)
- Unavailability of the evidence (Section 244 (3) Sentence 2 StPO)
- Abusive filing of the application (for example, to delay proceedings)
- Fabrication of subjects of proof (so-called fallback arguments)
In civil proceedings, an application to take evidence may be rejected if the subject of proof is irrelevant, already proven, or undisputed. The court is not bound by the application and may also order the taking of evidence without an application.
Legal remedies in case of rejection
If an application to take evidence is rejected, this can be subject to appeal (e.g., appeal on points of law under Section 337 StPO). In civil proceedings, the improper rejection of relevant applications is only material to the decision if a reversal of the burden of proof occurs or if the judgment is based on the omission to take evidence (Section 286 ZPO).
Significance of the application to take evidence for court proceedings
An application to take evidence safeguards the procedural rights of the parties and is often a prerequisite for a thorough clarification of the facts. In criminal proceedings, it also serves as an essential defense instrument against the state’s criminal prosecution. In civil proceedings, it enables a party to fulfill its burden of presentation and proof in a targeted manner and can be decisive for the outcome of the proceedings.
Special cases and practical aspects
Late applications to take evidence
Various provisions exist in procedural codes to prevent abuse or delay of proceedings due to late filing of applications (for example, Section 296 ZPO in civil proceedings and Section 244 (6) StPO in criminal proceedings). Late or dilatory applications to take evidence may therefore be rejected by the court under certain circumstances.
Independent evidentiary proceedings
In construction or contract law, applications to take evidence may also be submitted as part of independent evidentiary proceedings pursuant to Section 485 ZPO. The aim is to have a disputed condition judicially established independently of any main proceedings that are pending.
Applications to take evidence in administrative and social law
While the principle of official investigation applies in these proceedings (Section 86 (1) VwGO, Section 103 SGG), applications to take evidence are nonetheless possible and useful, in order to draw the court’s attention to appropriate evidence or to urge necessary steps to take evidence.
Summary
The application to take evidence is a central procedural tool and has a direct impact on the judicial establishment of the truth. Each party can influence the progress of proceedings through targeted applications. The admissibility and scope of applications to take evidence as well as the judicial handling of such applications are comprehensively regulated in procedural law and subject to a nuanced legal framework, which also serves to safeguard the procedural rights of the parties.
Careful handling of the application to take evidence significantly contributes to fairness, procedural economy, and well-founded decision-making. Knowledge of the relevant provisions and the legal particularities of applications to take evidence is therefore of crucial importance for effective litigation before a court.
Frequently asked questions
Who is entitled to file an application to take evidence?
In criminal proceedings, both the defense and the prosecution may generally submit an application to take evidence. The court may also order the taking of evidence on its own initiative (“ex officio”), but does not require a formal application to do so. In civil proceedings, it is the parties who submit applications to take evidence, either personally or through their legal representatives. In administrative proceedings, the participating party may basically file an application to take evidence. The entitlement to submit an application is always determined by the relevant procedural law, which defines who qualifies as a party and in what capacity an application may be presented.
What formal requirements must an application to take evidence meet?
An application to take evidence is subject to certain formal requirements, which depend on the type of proceedings. In general, the application must be clear and specific, i.e., it must precisely state the subject of proof (“What is to be proven?”), the means of evidence (“By what means is it to be proven?”) and—as far as possible—the assertion to be proven. In criminal proceedings, a precise specification is required; otherwise, the application will be deemed a request to investigate evidence or will be rejected as inadmissible. The application may be submitted orally or in writing; in civil proceedings, confirmation in the record is required. Especially in criminal proceedings, clear and comprehensible explanation of the evidentiary fact and its connection to the subject of the proceedings is essential to enable the court to make a judicial determination regarding the taking of evidence.
In which cases may the court reject an application to take evidence?
The court is generally obliged to pursue an admissible application to take evidence, unless statutory grounds for exclusion apply. Grounds for rejection include the insignificance of the fact to be proven, obvious irrelevance or notoriety (i.e., when a fact is obvious or generally known). Further grounds for rejection may include an already established conviction of the court regarding the subject of the application, errors in record-keeping or form, abusive filing of the application, or if the issue has already been finally adjudicated (“res judicata”). In particular, in criminal proceedings, an application may also be rejected where its purpose is to delay proceedings or it is clearly aimed at the investigation of matters unsuitable for clarification.
What types of applications to take evidence exist?
German procedural law distinguishes between several types of applications to take evidence. The classic form is the strict application to take evidence, which is aimed at the taking of a particular admissible means of evidence (for example, witness testimony, expert opinion, document proof). In addition, there is the so-called application to investigate evidence, in which the applicant does not make a specific assertion of proof, but merely suggests that particular facts be investigated. The latter does not oblige the court to act but merely gives it an indication. A special form is the exploratory application for evidence, which is inadmissible because it is based only on speculation and requires evidence “in the dark.” Finally, in civil proceedings, there are also applications of the parties to have the parties themselves examined as a means of evidence.
What consequences does the rejection of an application to take evidence have for the proceedings?
The rejection of a formal application to take evidence can have significant procedural consequences. In criminal proceedings, the court must give reasons for its decision to reject an application in the main hearing; furthermore, the rejection can be challenged by way of objection in appeal proceedings if the rejection occurred in breach of form or law. An incorrect rejection can consequently lead to the judgment being set aside. In civil proceedings, the rejection can also be deemed a procedural error, for example if the right to a fair hearing was violated, which can justify an appeal or further appeal. Thus, careful handling and deciding of applications to take evidence is a central element of the right to be heard and of due process.
What distinguishes an application to take evidence from a suggestion to take evidence?
An application to take evidence is distinguished from a suggestion to take evidence by its degree of binding legal effect. An application to take evidence is a formal and legally binding request for the taking of evidence, made by a party setting out a specific assertion of fact and designating a means of evidence, and the court is generally bound by it. By contrast, a suggestion to take evidence is merely an informal indication to the court, recommending that certain inquiries or evidence be gathered. The court is not bound by a suggestion and may reject it without special reasoning. While the application to take evidence is subject to formal rules and judicial protection, this mechanism of legal redress is lacking in the case of evidence suggestions.
Can an application to take evidence be withdrawn once submitted?
An application to take evidence may generally be withdrawn by the applicant prior to the court’s decision on the application. In criminal proceedings, this is possible up to the point at which the court has decided on the request. After that, withdrawal is no longer possible; however, it remains open to the party to submit a new application, provided the requirements are met. Withdrawal has the effect that the court is no longer required to decide on the application. In civil proceedings, similar standards apply; however, in individual cases, the court may nonetheless, ex officio, order the taking of evidence if this appears necessary for clarification of the facts.
