Order to Take Evidence: Definition and Significance
The order to take evidence is a central instrument in civil and criminal procedural law and serves as the court’s instruction to gather evidence. It specifies which facts are to be established by which means of evidence and provides the basis for the taking of evidence during the proceedings. The order to take evidence protects the parties involved from surprise decisions and ensures an orderly and fair taking of evidence.
Legal Foundations of the Order to Take Evidence
Order to Take Evidence in Civil Proceedings
In German civil proceedings, the legal basis for the order to take evidence is found primarily in §§ 355 ff. Code of Civil Procedure (ZPO). After the court has evaluated the facts relevant to its decision, it determines the evidence to be collected that is essential for clarifying the facts of the case. The issuance of an order to take evidence is mandatory if evidence is to be obtained by hearing witnesses, expert opinions, inspection, or presentation of documents.
Content Requirements According to the ZPO
An order to take evidence in civil proceedings must contain:
- The precisely specified facts about which evidence is to be gathered,
- The specific means of evidence (for example, the name of the witness, specific document, precise description of the expert assignment),
- Where applicable, the person to be admitted as evidence.
The precise wording of the question to be proved is essential, since the court is bound in its evaluation of evidence to the facts specified in the order to take evidence (so-called “scope of evidence”).
Order to Take Evidence in Criminal Proceedings
In criminal proceedings, the order to take evidence is governed by § 244 of the Code of Criminal Procedure (StPO). The provision requires the court to determine the subject matter of the evidence to be collected and the methods by which this is to be done. Unlike in civil proceedings, the criminal court has broader discretion regarding the scope and continuation of the taking of evidence.
Functions in Criminal Proceedings
Through the order to take evidence, the parties to the proceedings are informed about the evidence to be collected and can comment on it. Particularly during preliminary investigations and the main trial, this ensures the fairness of the proceedings and the right to be heard for all parties involved.
Order to Take Evidence in Administrative and Other Proceedings
In administrative proceedings (§ 98 VwGO), labor proceedings (§ 46 ArbGG in conjunction with §§ 355 ff. ZPO), and social court proceedings (§ 118 SGG), the order to take evidence is also a central component of the collection of evidence.
Prerequisites and Procedure for an Order to Take Evidence
Prerequisites for Issuing an Order to Take Evidence
An order to take evidence is issued when, after the parties’ submissions and the evidence taken thus far, the court finds that a certain fact is not sufficiently clarified and that its decision depends on this fact. The principle of subsidiarity of evidence-taking means that the court must first evaluate the parties’ submissions and may only issue an order to take evidence if facts requiring clarification remain.
Process of Taking Evidence
- Issuance of the Order to Take Evidence: After discussing the facts of the case and the status of the dispute, the court, often after hearing the parties, decides in a public hearing which evidence is to be collected on which facts.
- Notification to the Parties: The order to take evidence is communicated and recorded in the minutes for the parties.
- Conducting the Collection of Evidence: The evidence taking as specified in content (e.g., examination of a witness, obtaining an expert opinion) is carried out based on the issued order to take evidence.
- Evaluation of Evidence: The court then evaluates the gathered evidence in its judgment and renders its decision taking the established facts into account.
Legal Remedies and Means of Review
Reviewability of the Order to Take Evidence
There is generally no direct legal remedy against an order to take evidence as such, since it is considered a procedural order. A challenge is therefore usually only possible in the context of an appeal against the final decision. An exception exists if the order to take evidence results in serious procedural errors, such as violations of the right to be heard.
Binding Effect of the Order to Take Evidence
The court is generally bound by the facts and evidence specified in the order to take evidence. An extended evidence collection is not permissible without a new decision and order. Changes or additions are possible by way of a supplementary or amended order to take evidence.
Significance of the Order to Take Evidence for the Parties
Legal Certainty and the Right to Be Heard
The order to take evidence ensures the parties’ right to be heard and protects against surprise collection of evidence. Through access to the file, motions, and statements, the parties can influence the content and conduct of the evidence gathering.
Particularities Regarding Motions to Take Evidence
If a party files a motion to take evidence, the court must expressly decide on it. The rejection of the motion must be substantiated (§ 244 paras. 3 – 6 StPO, § 244 para. 7 StPO in criminal proceedings; § 286 ZPO in civil proceedings).
Summary
The order to take evidence has major significance in German procedural law for ensuring proper, transparent, and fair collection of evidence. It determines, in the interest of legal certainty, which facts are to be clarified by which evidence, gives the parties the opportunity to comment, and serves to secure fundamental procedural principles under the rule of law in civil, criminal, and administrative proceedings.
Frequently Asked Questions
What happens if an order to take evidence is defective?
A defective order to take evidence can have serious consequences for the further proceedings. Errors may arise, for example, if the issues to be proved are too vaguely formulated or if the court has not sufficiently granted the parties the right to be heard. Incorrect selection or rejection of evidence is also included. In the event of a deficiency, the faulty conduct may be challenged by a legal remedy, such as an immediate complaint (in certain cases), or by way of an appeal or revision. The higher court will then review the order to take evidence for compliance with procedural rules. Depending on the seriousness of the procedural error, the taking of evidence may have to be repeated before the same or another court. However, if the error goes unchallenged and is not objected to within the applicable deadlines, this may sometimes result in the error being cured.
Who can request that an order to take evidence be made?
The initiative for an order to take evidence can originate from the court or the parties. Plaintiffs or defendants frequently request the taking of evidence in their briefs by expressly stating motions to take evidence and naming the facts to be proved and the relevant evidence. However, the court is not obliged to grant every motion, as it must independently assess whether the facts in dispute require further clarification. Additionally, the court may, ex officio and without express request from the parties, issue an order to take evidence and order the collection of evidence if, in its view, this is necessary to clarify the facts (principle of ex officio investigation).
Can matters to be proven be supplemented or changed during the proceedings?
A supplement or amendment of the points to be proven is generally possible if new facts arise during the proceedings or if previously collected evidence raises new questions. The court may—after hearing the parties—modify the original order to take evidence and specify, limit, or expand the points to be proven. The prerequisite is that the parties have sufficient opportunity to express their views on such changes (principle of the right to be heard). The introduction of new evidence for these supplemented points is also generally permitted, provided that procedural time limits (for example, § 296 ZPO in civil proceedings) are observed.
Must an order to take evidence always be in writing, and what are the minimum requirements?
Under German procedural rules (including § 358 ZPO, § 244 para. 3 StPO), an order to take evidence is generally to be issued if evidence is to be collected. The order may be informal and either delivered in writing or pronounced orally during the hearing. It must always be recorded in the minutes. The minimum requirement is that the order precisely defines the issue to be proved and clearly identifies the means of evidence. It must also be clear in relation to which facts the evidence is to be collected, so that the parties can recognize the scope of the evidence to be gathered and, if necessary, comment on it.
What significance does the order to take evidence have for the subsequent evaluation of evidence?
The order to take evidence sets the binding framework for the taking of evidence and thus determines the scope in which an expert or witness is heard or questioned. For the subsequent evaluation of evidence, it is decisive that the court adheres to the predetermined facts to be proved and uses them as the basis for its judgment. Testimonies or findings outside the scope of the order to take evidence are generally not to be considered unless the parties have been legally heard on these matters or have been expressly informed of them. In practice, the order to take evidence thus serves as a benchmark for the correctness and admissibility of the gathering and use of evidence.
Is an order to take evidence binding on the court and the parties?
The order to take evidence is binding for both the court and the parties with regard to the matters to be proved and the specified means of evidence. The court is generally obliged to collect evidence only on the facts and by the means set out in the order to take evidence. The parties are equally bound by it and cannot extend the taking of evidence to facts not specified. Any extension or alteration is only permissible by means of a further court order, which must again be properly communicated to the parties. The binding effect promotes procedural certainty and fairness to both sides.
How can an order to take evidence be challenged?
An order to take evidence can usually only be reviewed in the context of an appeal against the final judgment unless the law expressly provides for a legal remedy (e.g., in cases under § 406 para. 2 ZPO when an expert is rejected). In rare cases, if the order to take evidence causes irreparable harm, an immediate complaint is possible. Otherwise, a defective or incorrect order to take evidence remains initially binding until the judgment is reviewed in appellate or cassation proceedings. Parties may raise objections to errors in the order by lodging an objection (such as a claim of violation of the right to be heard) and later by appealing through legal remedies.
