In principle, each party is required to list all the factual claims justifying his application (persuasive burden) and to provide the appropriate evidence (Sections 226(1) and 243(2) of the Austrian Code of Civil Procedure (ZPO)). If the facts of the case remain unclear (a "non liquet" situation), the court must nevertheless reach a decision. In these circumstances, the rules on the burden of proof come into play. Each party carries a burden of proof to ensure that the all the conditions of the rules favourable to it are met. Under normal circumstances, the plaintiff must assert any facts which justify his claim, while the defendant must assert any facts which justify his objections. The plaintiff also bears the burden of proof that the procedural requirements are met.
For the purposes of a decision, significant facts require proof unless they are exempt. No proof is required for conceded facts (Sections 266 and 267 of the ZPO), obvious facts (Section 269 of the ZPO) or legally presumed facts (Section 270 of the ZPO).
A conceded fact is one which a party accepts to be a correct claim by the opposing party. The court is in principle required to accept a conceded fact as correct and to reach its decision without further examination.
A fact is obvious when it is known generally (is known or reliably perceptible without difficulties at any time to a large number of persons) or known to the court (to the trial court on the basis of its own official finding or is clearly apparent from the files).
The court is required ex officio to take account of obvious facts in its decision but they need not be claimed or proved.
A legal presumption results directly from the law and has the effect of reversing the burden of proof. The opposing party of the party benefiting from such an presumption must provide evidence to the contrary. It must prove that, despite there being a basis for a legal presumption, the presumed facts or legal situation do not exist.
The purpose of court proceedings is to convince the judge of a fact. Generally speaking, a "substantial likelihood" must be assumed; "absolute certainty" is not required to convince the judge.
Degrees of the standard of proof are established by statutory or case law ranging from "significant likelihood" (e.g. Section 138(1) or Section 163(1) of the General Civil Code) to "likelihood bordering on certainty". In the former case, presumption or a certificate are sufficient as a standard of proof under the Code of Civil Procedure (Section 274). Prima facie evidence also leads to a reduction of the standard of proof and plays a role in overcoming difficulties in providing evidence in damages actions. If there is a typical course of events for which experience of life suggests a specific causal link or fault, these conditions are deemed to be proved on the basis of prima facie even in individual cases.
Evidence may be taken by a judge on his own motion or following the application of a party. In proceedings of a purely investigative nature (the court is required to establish the decisive facts of the case on the judge's own motion), there is no need for an application by the parties. In standard proceedings under the Austrian Code of Civil Procedure, the judge is able on his own motion to take any evidence relevant to significant facts. The judge may instruct the parties to produce documentary evidence, require a local inspection to be carried out or order the taking of evidence in the form of expert opinions or an examination of the parties. However, documentary evidence may be presented only if at least one of the parties has referred to it; documentary evidence may not be admitted or witnesses heard if this is opposed by both of the parties. In all other cases, evidence is taken on an application by one of the parties.
In principle, evidence is taken at the oral hearing. During the so-called preparatory meeting (Section 258 of the Code of Civil Procedure), a trial schedule is drawn up jointly by the court and the parties and/or their representatives which also contains a schedule for the taking of evidence. Where necessary, however, a further discussion concerning the progress of the proceedings may take place at any time. After evidence has been taken, the outcome is discussed with the parties (Section 278 of the Code of Civil Procedure). Evidence must be taken directly by the judge who will decide on the matter. In those cases expressly covered by law, evidence may also be taken during the mutual assistance procedure. The parties must be called for the taking of evidence and have various rights of participation, such as the right to put questions to witnesses and experts. Evidence is always taken on the judge's own motion, in principle even if, despite being called, the parties are not present.
An application by a party to obtain evidence must be rejected if the court considers it to be irrelevant (Section 275 of the Code of Civil Procedure) or if it is submitted with the intention of delaying proceedings (Sections 275 and 278 of the Code of Civil Procedure). It is also possible to set a deadline on the taking of evidence if it is likely to delay the proceedings (Section 279 of the Code of Civil Procedure); once the deadline has elapsed, the application to take evidence may be rejected. It may also be rejected if it is not necessary because the court has already been convinced, if the fact does not need to be proved or if the taking of evidence is prohibited. Where the taking of evidence gives rise to costs (e.g. expert evidence), an advance payment must be obtained from the applicant party. If this is not paid within the deadline set, the evidence may subsequently be given only if this does not give rise to any delay in the proceedings.
The Austrian Code of Civil Procedure provides for five "classical" means of proof: documentary evidence (Sections 292 to 319), the testimony of witnesses (Sections 320 to 350), expert evidence (Sections 351 to 367), judicial inspection (Sections 3687 to 370) and examination of the parties (Sections 371 to 383). In principle any source of information may be admitted in evidence and will be classified as one of the above means of proof according to the form it takes.
Witnesses are heard individually in the absence of witnesses to be heard subsequently. This prevents them from influencing each other's testimony. If the testimony of witnesses is contradictory, they may be examined concurrently. The examination of witnesses begins with an informative questioning designed to determine whether the witness is disqualified from giving evidence, whether there are grounds for refusing his testimony or whether there are any factors preventing him from taking oath. After reminding witnesses of their duty to tell the truth and of the consequences under criminal law of giving false testimony, the actual examination begins with the witness being asked to provide his personal particulars. The witness is then questioned on the case itself. The parties may take part in the witness examination and, if approved by the court, put questions to witnesses. The judge may reject inappropriate questions. In principle, witnesses must be examined before the sentencing court. Under certain conditions, however, it is possible to examine witnesses through the channels of mutual judicial assistance.
An expert is deemed to "assist" the court. While the witness gives testimony concerning facts, the expert supplies with judge with knowledge which the latter cannot have. Expert evidence must in principle be taken before the trial court. An expert may be also called without restriction on the judge's own motion. An expert is required to submit his findings and a report. An oral report must be given during the oral hearing. Written reports must be explained by the expert during the oral hearing if this is requested by the parties. The findings and report must be substantiated. Private reports are not considered to be expert reports within the meaning of the Code of Civil Procedure. They have the status of a private document.
An exclusively written procedure is not permitted under Austrian law. However, since the means of proof are not in any way limited, the possibility does exist of witnesses giving their testimony in writing. Such evidence must however be regarded as documentary evidence and is subject to the free assessment of the court. If the court considers it necessary, the witnesses must appear before the court if either of the parties does not oppose the collection of his testimony.
The principle of the "free assessment of evidence" is enshrined in the Code of Civil Procedure (Section 272). The assessment of evidence is the examination of the results of the evidence taken by the judge. In carrying out his assessment, the judge is not bound by any statutory rules regarding the evidence but must judge in accordance with his personal conviction whether the evidence is correct or not. There is no hierarchy applicable to methods of proof. Written evidence is deemed to be documentary evidence unless it is an expert report. Austrian public documents are presumed to be genuine, i.e. it is assumed that they are indeed attributable to the issuer indicated. Their accuracy is also fully presumed for the purposes of evidence. Provided they are signed, private documents are also fully accepted as evidence that the statements they contact are attributable to the person signing them. Their accuracy is always subject to the free assessment of evidence.
The Austrian Code of Civil Procedure does not require certain methods of proof to be considered in specific cases. The amount of the claim has no bearing on the choice of method of proof.
Witnesses are obliged to appear before the court, to give testimony and, if asked, to take oath. If a duly called witness does not attend the oral hearing without sufficient reason, the court must first impose an administrative penalty and, if the witness does not attend a second time, order that he be brought to the hearing by force. If the witness refuses to give testimony without indicating grounds or on unjustified grounds, he may be forced to give testimony. False testimony by a witness before the court will result in criminal proceedings against him.
Where there are grounds for refusing to give evidence (Section 321 of the Code of Criminal Procedure), the witness is entitled to refuse to answer a question or individual questions. There is no full right to refuse to give evidence. Such grounds are scandal or the risk of criminal prosecution for the witness or a person close to him, a direct financial disadvantage for the same persons, state-recognised obligations to remain silent, the potential disclosure of artistic or business secrets and the use of a voting right which has been declared secret by law. The court must inform the witness of these grounds before he is examined. If the witness wishes to make use of his possibility to refuse to give evidence, he must indicate the grounds for so doing.
It is up to the court to decide whether the refusal by a witness to give evidence is lawful. If the witness refuses to give testimony without indicating grounds or on grounds not deemed justified by the court, he may be forced to give testimony (Section 345 of the Enforcement Code). This can be done by means of fines or, to a limited extent, imprisonment. The witness is also liable vis-à-vis the parties for any damage caused as a result of an unjustified refusal to give evidence.
Evidence cannot be obtained from persons who were or are unable to witness the facts to be proved or to communicate what they have witnessed, i.e. persons who have an "absolute" physical inability to give evidence (Section 320 Z 1 of the Code of Civil Procedure). In the case of mentally ill persons, minors, etc. it must therefore be decided on a case-by-case basis whether they are unable to give evidence. There are also three cases of "relative" inability to give evidence (Section 320 Z 2 to 4 pf the Code of Civil Procedure): religious professionals in respect of information entrusted to them during confession or in other contexts covered by professional secrecy, state officials in the context of their professional secrecy, provided they are not released from it, and mediators in respect of information entrusted in them or to which they otherwise become party in certain proceedings.
The court is required to ask witnesses appropriate questions on those facts which have to be proved by means of their testimony and on circumstances on which their knowledge is based. The parties may participate in the examination of witnesses and, with the court's consent, ask them questions aimed at clarifying or completing their testimony. The judge may reject inappropriate questions. The witness's testimony has to be recorded as to its essential content or, if necessary, verbatim (see point 5(b)). Video and audio recorders and the data recorded on them are generally deemed to be objects of inspection. Inspection evidence is the result of the direct sensory perception of characteristics or conditions of things by the court. In view of the principle of the material directness of the taking of evidence, such evidence is only admissible if direct evidence, e.g. a witness, is not available. The examination of witness using video technology is possible in principle, but there are no special statutory rules governing it. Consideration is currently being given to creating a framework for examination using video technology.
If a party infringes a contractual obligation, a provision of private law or the accepted principles of morality in order to obtain a piece of evidence, the court may accept and assess the evidence but the party will nevertheless be liable to pay compensation. If, in obtaining evidence, the party infringes a provision of criminal law protecting the core basic rights and freedoms laid down by the Constitution (e.g. physical injury, kidnapping, coercion of a witness to give testimony), the evidence so obtained is inadmissible and may not be accepted by the court. If there is doubt as to whether a criminal act has been committed, the court may interrupt the civil proceedings until a final judgment has been given in the criminal proceedings. If the criminal act committed to obtain evidence does not infringe the core basic rights and freedoms laid down by the Constitution, the party in question is deemed criminally liable, but the evidence is not inadmissible. Only illegally obtained evidence which has infringed the court's duty to establish the truth and thus undermines the guarantee of truth and accuracy of the judgment is inadmissible.
The examination of the parties also constitutes evidence. Like witnesses, the parties also have a duty to attend, give testimony and take oath. However, they cannot be forced to appear before the court or to give testimony. Any unjustified failure by a party to attend the proceedings or to give testimony must be judged by the court with careful assessment of all the circumstances. Only in paternity or matrimonial proceedings is it possible to use force to ensure that the parties appear before the court. A failure by a party to meet his duty to tell the truth – unlike with witnesses – is not a criminal offence unless a false statement is given under oath. The examination of the parties may be ordered by the judge on his own motion.
Austrian legislation may be consulted in the legal information system of the Republic of Austria (http://www.ris.bka.gv.at/). Further information concerning Austrian law can be found on the home page of the Austrian Ministry of Justice (http://www.bmj.gv.at/).Top
Last update: 04-05-2007