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Taking of evidence - Germany

TABLE OF CONTENTS

1 The burden of proof

1.1 What are the rules concerning the burden of proof?

In principle, in civil proceedings, each party bears the burden of proof for facts pertaining to the conditions of a rule of law in its favour. For this reason, the distribution of the burden of proof is often based on substantive civil law, as this contains bases of claim, auxiliary rules, legal defences and other objections. If a legal principle is fulfilled which assigns facts as a legal consequence to a claim (for example: conclusion of a contract of sale), it is generally the party deriving the claim from this (in the example, payment of a purchase price) which must present these facts (principle of production of evidence) and – if the opposing party contests them – must prove them. On the other hand, the opposing party must assert and prove entitlement to any opposing rights or objections (e.g. performance). If there is still doubt about an essential factual point after all the procedurally admissible evidence has been exhausted, a decision has to be taken about where the burden of proof lies. The party which, according to the rules of the burden of proof, has to adduce evidence of the fact at issue loses the case if it fails to discharge this burden.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

German law provides for various forms of relaxation of the burden of proof up to reversal of the burden of proof. In particular:

1. Reversal of the burden of proof

In civil proceedings, the burden of proof can be reversed if the basic rule that each party must prove the facts in its favour is reversed. Reversal of the burden of proof results in the opposing party having to disprove a fact in favour of the other party. For example, Section 476 of the Civil Code (Bürgerliches Gesetzbuch) contains a clause on reversal of the burden of proof in sales law (‘If, within six months after the date of the passing of the risk, a material defect manifests itself, it is presumed that the thing was already defective when risk passed, unless this presumption is incompatible with the nature of the thing or of the defect.’) In this case, the buyer does not have to prove that the defect was already present at the time of delivery, but the onus is on the seller to prove that the defect was not already present initially.

2. Relaxation of the burden of proof

a. The statutory presumption (gesetzliche Vermutung) orders by law that, in certain circumstances (basis for presumption), the existence of further circumstances is to be assumed and that these are to be taken as a basis for the legal assessment. Statutory presumptions relax the burden of proof on one of the parties, which has to plead and prove only the facts that justify the presumption. The opposite may be admissibly proven pursuant to Section 292 of the Code of Civil Procedure (Zivilprozessordnung, ZPO). Statutory presumptions may relate to facts, an example being the presumption that a mortgage certificate has been transferred to the creditor by virtue of possession of the certificate (Section 1117(3) of the Civil Code). They may also relate to rights, an example being the presumption that the holder of a certificate of inheritance has the status of heir (Section 2365 of the Civil Code).

b. A factual assumption (tatsächliche Vermutung) exists if a court – on the basis of its own or expert experience – can conclude unproven facts from proven facts (Link opens in new windowcircumstantial evidence). For example, it can be concluded from the circumstantial evidence that the temperature at a specific time was well above zero, and therefore, based on general experience, that a specific person could not have slipped on black ice at that time. The opposing party can challenge the assumption by means of facts that cast serious doubt on whether the occurrence was indeed typical in the ordinary course of events.

3. Case-law is increasingly defining the burden of proof on the grounds of equity and a fair balancing of interests in specific areas of risk. The most significant examples are as follows:

  • Product liability (pursuant to Section 823(1) of the Civil Code)

The burden of proving that a product is defective, that legal rights have been infringed and that there is a causal relationship between the two falls on the injured party. On the other hand, the burden of proof lies with the manufacturer that it has complied with the obligations incumbent upon it in terms of organisation, instructions, post-marketing surveillance and hazard prevention, and therefore that no fault can be attributed to it.

  • Duties to inform and advise

If specific contractual or pre-contractual obligations to inform and advise are not satisfied, the party at fault has the burden of proving that the damage would have occurred even if they had complied with their obligations. There is a presumption that the injured party acted in accordance with the information provided.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

Section 286 of the Code of Civil Procedure lays down the fundamental principle under the law of civil procedure of the free assessment of evidence (Freiheit der Beweiswürdigung). Under this principle, the court has to make its own decision about whether an alleged fact is true or false in the light of the entire content of the proceedings and the conclusions it draws from any evidence.

A preponderant or high degree of probability alone is not sufficient to prove a fact, but on the other hand all doubt does not have to be excluded. There must be a degree of certainty which is sufficient in practice and which silences any remaining doubt, without necessarily ruling it out entirely.

There is an exception regarding the necessary degree of proof in cases where the law accepts that prima facie evidence suffices (for example, in the case of interim relief). An allegation is prima facie correct if there is a preponderant probability that it is correct. In proving prima facie correctness, the parties are not obliged to follow the strict rules of proof (witnesses, documents, inspection by the court, expert evidence or examination of the parties). For example, an affidavit is also admissible (Section 294 of the Code of Civil Procedure).

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

The principle in civil proceedings is that it is for the parties alone to put forward the issues and the relevant evidence. The court may not itself identify material and use it as a basis for its decision. At most, the court has the duty to inform and advise under Section 139 of the Code of Civil Procedure.

In some cases, the court may exceptionally take evidence of its own motion, contrary to the principle of party presentation, but it must do so with a view to a well-founded presentation of the case by the parties, and may not seek to investigate the facts itself.

Hence the court may, of its own motion, order inspections and expert reports (Section 144 of the Code of Civil Procedure), the presentation of documents (Section 142) and further questioning of a party (Section 448). A party may also be questioned by the court of its own motion (Section 448). However, there must be a certain degree of initial probability for the fact to be proved.
In non-contentious proceedings and in family matters which are not disputes (i.e. are not governed by the law of evidence under the Code of Civil Procedure), the principle of ex officio investigation applies pursuant to § 26 of the Act on Proceedings in Family Matters and in Non-contentious Proceedings (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit, FamFG). This means that the court itself, of its own motion, must establish the facts relevant to the decision and collect the evidence it deems appropriate if doubts arise as to the accuracy of certain facts. In this respect, the court is not bound by applications for evidence submitted by the parties.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

Formal evidence:

Where the facts are disputed by the parties, the Code of Civil Procedure orders the formal evidence procedure, which allows the taking of evidence by the following means of proof: expert testimony, visual inspection by the court, documents, witness testimony and examination of the parties (see below). After a party has offered evidence, the court orders the taking of evidence on facts that need to be proved. This is generally done without specific formality at the hearing or by an order for evidence under Section 358 of the Code of Civil Procedure. According to Section 359 of the Code, the order for evidence must specify the facts in dispute for which evidence is to be taken, must specify the evidence to be taken and state the names of the witnesses and experts to be questioned or of the party to be questioned, and must specify the party that is relying on the evidence.

Evidence is then taken in accordance with the relevant legal provisions (Sections 355 to 484 of the Code of Civil Procedure). In particular, the principles that evidence should be taken directly (Section 355) and that the parties may attend (Section 357) must be observed.

The first of these principles provides that the evidence must be given before the trial court itself, because it is this court that has to assess the evidence. Exceptions apply only where, in accordance with statute, responsibility for taking evidence can be transferred to one member of the trial court (Section 361 of the Code of Civil Procedure) or to another court (Section 362). Under the principle that parties may attend, the parties have a right to be present during the hearing of witnesses and also have the right to question witnesses (Section 397).

Under Section 285 of the Code of Civil Procedure, the results of the evidence are then debated in the oral proceedings. Under Section 286 of the Code, the court must establish the facts on the basis of the entire content of the proceedings, including the evidence taken; in doing so, it assesses the evidence freely.

Informal taking of evidence:

In contrast to formal evidence, informal taking of evidence allows the facts to be established by any means of proof considered necessary by the court and may take place largely without formal requirements. Under Section 284 of the Code of Civil Procedure, informal taking of evidence in civil proceedings is admissible only if the parties have given their consent.

If, in the proceedings under the Act on Proceedings in Family Matters and in Non‑contentious Proceedings, no formal evidence is sought under the provisions of the Code of Civil Procedure pursuant to § 30(2) and (3) of the Act, the court takes the necessary evidence in a suitable manner, in accordance with § 29(1) of the Act. The parties may refer certain evidence to the court, but the court itself determines the necessity and extent of the taking of evidence and the nature of the taking of evidence at its discretion.

2.3 In which cases can the court reject an application by a party to obtain evidence?

An application to admit evidence can be rejected on procedural grounds or under the rules governing evidence if:

  • the facts do not have to be proved by evidence, i.e. the facts have already been proved, or are obvious or undisputed;
  • the facts are not material, i.e. cannot have any influence on the decision;
  • the evidence is unsuitable for proving the fact alleged (this is rare, as evidence may not be assessed before it is taken);
  • the evidence cannot be obtained;
  • the evidence is inadmissible, e.g. as a result of an unsubstantiated allegation in abuse of process or a conflicting confidentiality obligation of the witness (unless they are released from this obligation);
  • the taking of evidence is at the court's discretion, e.g. in the assessment of damages in accordance with Section 287 of the Code of Civil Procedure;
  • the fact was established finally in other proceedings and is binding on both parties;
  • the application was not submitted in time (Section 296(1) of the Code of Civil Procedure);
  • the taking of evidence is hampered by an obstacle of uncertain duration, the relevant time limit has elapsed and the proceedings would otherwise be delayed (Section 356 of the Code of Civil Procedure).

2.4 What different means of proof are there?

The five types of formal taking of evidence are:

  • Visual inspection by the court, Sections 371-372a of the Code of Civil Procedure

This consists of any direct, sensory inspection by the judge for evidential purposes. Contrary to the somewhat misleading term used, ‘Augenschein’, ‘visual inspection’, it may also include sensory inspection by touching, smelling, listening and tasting. Consequently, sound and video recordings and data storage media are also included.

  • Witness testimony, Sections 373-401 of the Code of Civil Procedure

Witnesses can testify to past events which they themselves have observed. Only a person who is not a party to the dispute may be a witness.

If the witness must have specialised knowledge in order to understand the facts, the witness is referred to as an expert witness (sachverständiger Zeuge, Section 414 of the Code of Civil Procedure): an example would be the statement of an emergency doctor in the case of injuries sustained in an accident.

  • Expert testimony, Sections 402-414 of the Code of Civil Procedure

The expert (Sachverständiger) provides the judge with the specialised knowledge the latter needs to assess the facts. Experts do not establish the facts themselves. They are expected to give their assessment purely on the basis of the facts referred to them (Anschlusstatsachen)

Only if specialist expert knowledge is required to establish the facts themselves can an expert be asked to give their own conclusions. An example would be a doctor's diagnosis.

A private expert report commissioned by one of the parties may be admitted as expert evidence only in exceptional cases and only with the consent of both parties.

  • Documentary evidence, Sections 415-444 of the Code of Civil Procedure

Documents within the meaning of the Code of Civil Procedure are written declarations, which are capable of providing evidence for disputed submissions of a party. In terms of evidential value, the law draws a distinction between public documents (Sections 415, 417 and 418 of the Code) and private documents (Section 416).

  • Examination of the parties, Sections 445-455 of the Code of Civil Procedure

The questioning of parties is subsidiary to other forms of evidence and admissible only in order to present the main evidence (Section 445(2) of the Code of Civil Procedure). In principle, the party with the obligation to provide evidence can only file the petition that the opposing party be examined (Section 445, first sentence). Apart from that, the parties may be questioned only with the consent of the other side or of the court.

In the informal taking of evidence, the court may take the necessary evidence in a suitable manner. No decision on evidence is needed for the investigative activities of the court and the taking of evidence to flow seamlessly into one another. The formal means of evidence may include, for instance, official information from authorities, informal telephone or written inquiries, use of sound and video recordings and data recordings. The results of the taking of evidence are to be placed into the record, Section 29(3) of the Act on Proceedings in Family Matters and in Non-contentious Proceedings.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

All evidence has equal status, because of the principle that the court is free to assess the evidence; there are no differences in evidential value. The only differences are in the types of evidence-gathering:

Witnesses

Each witness must be examined individually and not in the presence of witnesses who are to be heard subsequently (Section 394(1) of the Code of Civil Procedure). Witnesses whose testimonies conflict may be brought face to face (Section 394(2)).

Before witnesses are questioned, they are warned that they must tell the truth and that they may subsequently be required to swear an oath (Section 395(1)). Witnesses are first asked to give their personal details (Section 395(2)) and are then questioned on the subject‑matter of the case (Section 396). The court tries to ensure that their testimony remains relevant to the matter on which they are being questioned. It may also put further questions to witnesses to clarify points or to ensure testimonies are complete.

Parties have the right to be present when witnesses are questioned and to put questions to them. Generally, the parties themselves, in proceedings with mandatory representation by a lawyer, are only allowed to submit questions to be put to witnesses, whereas legal counsel can question a witness directly (Section 397).

The rules governing the questioning of witnesses apply to evidence provided by expert witnesses and to the questioning of the parties themselves (Sections 402 and 451).

Documents

In principle, documentary evidence is presented by submitting the document. If the party presenting the evidence does not have the document in question, but the document is in the possession of the opposing party or a third party, the party presenting the evidence may request that the opposing party or third party be required to produce the document (Sections 421 and 428 of the Code of Civil Procedure). The obligation to produce documents is a requirement of civil law and applies where the person presenting the evidence is entitled to demand that the opposing party or a third party surrender or produce a document (Section 422). There must be prima facie grounds to justify this obligation (Section 424(5), second sentence). Written expert reports or opinions are documents within the meaning of the Code of Civil Procedure.

2.6 Are certain methods of proof stronger than others?

In principle, no. Under the principle that the court is free to assess the evidence, in accordance with Section 286 of the Code of Civil Procedure, all evidence has equal status. All the evidence gathered provides a basis for the assessment to be made by the court. Only in exceptional cases do binding rules of evidence have to be observed by judges: examples are those applying to the evidential value of the record of the proceedings under Section 165 of the Code of Civil Procedure, or of the judgment under Section 314, or of other documents under Sections 415 to 418.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

No, the Code of Civil Procedure in principle does not stipulate any obligatory forms of evidence to prove particular facts.

There are exceptions in certain types of proceedings. In proceedings relating to deeds and bills of exchange, evidence establishing the facts on which the claim is based may be given only in the form of documents, and evidence of all other facts only in the form of documents or by questioning the parties (Sections 592 et seq. of the Code).

In certain proceedings involving in-depth intervention in terms of fundamental rights, the Act on Proceedings in Family Matters and in Non-contentious Proceedings provides for the mandatory obtaining of an expert opinion, for instance prior to the appointment of a custodian pursuant to Section 280 of the Act or prior to an involuntary commitment measure pursuant to Section 312 of the Act.

2.8 Are witnesses obliged by law to testify?

All witnesses who are subject to the jurisdiction of the German courts and have been properly summoned are required to attend court hearings, to testify and to swear an oath.

A witness’s duty to testify also includes a duty to check what he or she knows on the basis of documents and to refresh his or her memory (Section 378 of the Code of Civil Procedure). Witnesses are not obliged to inquire into facts of which they are unaware.

2.9 In which cases can they refuse to give evidence?

The Code of Civil Procedure draws a distinction between the right of witnesses to remain silent on personal grounds (Section 383 of the Code of Civil Procedure) and on material grounds (Section 384). The witness’s right to refuse to testify under Section 383 of the Code of Civil Procedure is based on the witness’s family relationship or obligation of professional trust. It is intended to avoid conflicts of interest.

The right of witnesses to remain silent on personal grounds applies to betrothed persons (No 1), spouses (No 2) and parties in a civil union (No 2a) for the duration of, and even after the end of, their marriage or civil union. Any person who is or was directly related to a party, either by blood or by marriage, or who is or was related as a collateral relative to the third degree, or who is or was a collateral relative by marriage to the second degree, cannot be obliged to testify either (No 3). Collateral relationship means not directly related, but descended from the same third person. The degree of blood relationship or of relationship by marriage is determined by the number of intermediary births.

Under Section 383(1) No 4 of the Code, clerics, people who are or have been involved professionally in the preparation, production or distribution of periodicals or radio and TV programmes (No 5), and persons who, by virtue of their office, position or profession, are entrusted with information which cannot be disclosed because of its nature or by virtue of a legal provision (No 6), are not obliged to testify.

The right of witnesses to refuse to testify for professional reasons covers all information known to the persons referred to above by virtue of their particular position.

On the other hand, a witness’s right not to testify under Section 384 of the Code of Civil Procedure is intended to protect witnesses from adverse consequences of having to testify. It gives them only the right not to reply to particular questions, but does not entitle them to refuse to testify at all.

The right not to testify pursuant to Section 384 applies where answering the question would cause direct financial damage to the witness or a person with one of the family relationships listed in Section 383 of the Code (No 1), or would expose them to dishonour or the risk of criminal or administrative prosecution (No 2). Nor do witnesses have to answer questions if this would oblige them to disclose a trade or business secret (No 3).

Section 385 of the Code of Civil Procedure sets out a number of exceptions to the witnesses’ rights not to testify described. Particular importance is attributed to Section 385(2), which releases clerics and persons who are required not to testify under substantive law in accordance with Section 383(1) No 6 from their obligation to remain silent, and consequently restores their obligation to testify.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

Yes. If a witness who has been properly summoned does not attend, the court will impose an administrative fine under Section 380(1) of the Code of Civil Procedure, and if this is not paid it will impose a custodial sentence. The fine is €5 to €1 000 (Section 6(1) of the Act introducing the Criminal Code (Einführungsgesetz zum Strafgesetzbuch)), and the custodial sentence is one day to six weeks (Section 6(2) of the same Act). Witnesses are also required to pay the costs occasioned by their failure to attend.

A witness who fails to attend for a second time can be forcibly brought to the hearing under Section 380(2) of the Code of Civil Procedure, as well as incurring an administrative penalty. These measures will not be enforced if the witness provides an adequate explanation of his or her absence in good time. If no such explanation is received in good time, the witness will have to show that he or she was not responsible for the delay (Section 381 of the Code).

If a witness refuses to testify or to swear an oath without giving a reason, or gives a reason that has been finally declared to be irrelevant, the same measures can be taken under Section 390(1) of the Code of Civil Procedure as those applying to a witness who fails to attend without explanation. If a witness refuses to testify a second time, he or she may, on application, be detained in order to compel him or her to testify, but only for the duration of the current trial (Section 390(2) of the Code).

2.11 Are there persons from whom evidence cannot be obtained?

No, there is no general disqualification from being a witness. Any person who has the maturity to make factual observations, to understand questions about them and to answer can be a witness, irrespective of their age or ability to enter into legal transactions.

There are no special rules for people who have previously been punished for deliberately making false statements or committing perjury.

However, a person cannot be a witness if they are directly involved in the proceedings, as a party or as the legal representative of a party. There is an exception for joint parties in relation to facts which solely concern other joint parties. In certain circumstances, an agent may be a witness if the subject-matter of the examination is outside the scope of the agency relationship. A registered representative may, for example, testify in relation to facts that are not related to their duties in proceedings to which the person they represent is a party.

The relevant time at which a person must qualify to appear as a witness is always the time at which they are to be heard.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

Witnesses are questioned by the judge or judges. The examination of witnesses may also be allocated to one member of the trial court or to another court, if in particular it can be assumed from the outset that the trial court will be able to assess the result of the evidence appropriately even without a direct impression of the course of the taking of evidence.

Each witness must be examined individually, and not in the presence of witnesses who are to be heard subsequently (Section 394(1) of the Code of Civil Procedure). Witnesses whose testimonies conflict may be brought face to face (Section 394(2)).

Parties have the right to be present when witnesses are questioned and to put questions to them. Generally, the parties themselves, in proceedings with mandatory representation by a lawyer, are allowed only to submit questions to be put to witnesses, whereas legal counsel can question a witness directly (Section 397).

Witnesses may be heard via videoconferencing if the court permits this on application by (only) one of the parties, Section 128a(2) of the Code of Civil Procedure.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

In principle, legislation that prohibits the court from considering particular evidence does not exist in civil procedure. The only exception is that a court may not consider judgments which have been removed or which are to be removed from the Federal Central Register (Section 51 of the Act governing the Federal Central Register (Bundeszentralregistergesetz)).

However, the court may be prohibited from considering evidence in civil proceedings under the case‑law of the Federal Constitutional Court (Bundesverfassungsgericht) if there is unlawful interference in the constitutionally protected fundamental positions of the party contesting the evidence – in particular human dignity and general personal rights – which is not justified by way of exception. It is necessary to weigh up the benefits and interests, taking into account all circumstances of the individual case.

Under this case‑law, for example, the court may not generally hear evidence obtained by means of secret sound recordings, the use of mini-transmitters, directional microphones or intercoms to listen in to conversations, and the use in evidence of illegally obtained personal records, such as diaries or intimate letters.

However, in all these cases, it may be decided on a case-by-case basis that by way of exception there are counterbalancing rights that justify the admission of illegally obtained evidence, always provided that this does not impinge on the core area of private life.

The question whether evidence must be excluded as a result of the infringement of a procedural rule must be decided separately for each such rule. Deficiencies affecting the proceedings and the way the hearing is conducted can be remedied under Section 295(1) of the Code of Civil Procedure. The examination of a particular party as a witness is, for example, a procedural deficiency that can be waived, i.e. the evidence can be used if the parties waive the rule or have not raised an objection against the error by the end of the subsequent hearing. Failure to provide information about a witness’s right to refuse to give evidence may also be remedied under Section 295(1) of the Code.

Compliance with rules in the public interest cannot, however, be waived (Section 295(2)). Examples include all points to be considered by the court of its own motion, such as the requirements for the proceedings, the admissibility of an appeal or the disqualification of people to be judges.

3.2 As a party to the case, will my own statement count as evidence?

As has already been explained at 2.4, the examination of parties may under certain circumstances be admitted as evidence. The weight given to such evidence is left to the court's discretion (Section 286 of the Code of Civil Procedure).


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Last update: 05/11/2019