European Commission > EJN > Taking of evidence and mode of proof > Belgium

Last update: 05-01-2007
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Taking of evidence and mode of proof - Belgium

 

TABLE OF CONTENTS

I. The burden of proof I.
1.
a) What are the rules concerning the burden of proof? a)
b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence? b)
2. To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact? 2.
II. The taking of evidence II.
3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion? 3.
4.
a) If the application of a party concerning the taking of evidence is approved, what steps follow? a)
b) In which cases can the court reject an application of a party to obtain evidence? b)
5.
a) What different means of proof are there? a)
b) 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? b)
c) Are certain methods of proof stronger than others? c)
d) In order to prove certain facts, are certain methods of proof obligatory? d)
6.
a) Are witnesses obliged by law to testify? a)
b) In which cases can they refuse to give evidence? b)
c) Can a person who refuses to testify be sanctioned or forced to give evidence? c)
d) Are there persons from whom evidence cannot be obtained? d)
7. 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 new technology such as television or videoconferencing? 7.
III. The evaluation of the evidence III.
8. Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment? 8.
9. As a party to the case, will my own statement count as evidence? 9.

 

I. The burden of proof

1.

a) What are the rules concerning the burden of proof?

In the Belgian legal system a distinction is made between civil law and commercial law. Commercial law is special law applicable to traders; civil law is the general law.

The law of evidence in the civil law is found in sections 1315 et seq. of the Civil Code (CivC.). It is a closed system with tightly regulated forms of evidence (details below at 5 a).

The law of evidence in the commercial law is found in section 25 of the Commercial Code (ComC.). The most significant feature is the openness of the system and the relative freedom as to forms of evidence in commercial cases. Section 25 ComC. reads: “In addition to the forms of evidence allowed for the purposes of the civil law, evidence of commercial relationships may also be given by witnesses in all cases where the court orders this to be admitted, except as otherwise provided for specific circumstances. Evidence of sales and purchases may be given in the form of a receipted invoice, without prejudice to other forms of evidence admissible under statutes in commercial matters.”

Technical procedural aspects relating to evidence in civil and commercial matters are governed by sections 870 et seq. of the Judicial Code (JudC.). Section 876 JudC. provides that the court in which the action is proceeding is to come to its decision on the basis of the rules of evidence applicable to the type of action concerned. The action will be either civil or commercial.

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Evidence of a fact, a hypothesis or an allegation must be furnished by the party relying on it. A person who claims performance of an obligation must prove that the obligation exists. Conversely, a person who claims that he should be released from an obligation must prove that the obligation has been discharged by payment or otherwise (section 1315 CivC.). In a legal dispute each party must furnish evidence of the facts that he alleges (section 870 JudC.: “actori incumbit probatio”). It is then for the opposing party to refute the evidential value of the facts, if that is possible and allowed.

b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence?

Provided there are no objections on grounds of public policy or national security, all facts are allowed to be proved. There are three restrictions on the right to provide evidence in the course of proceedings. First, the fact that is to be proved must be relevant to the case. Then, the fact must be conclusive, that is to say that it will contribute to convincing the court of the decision to be reached. Third, the fact must be one of which evidence is admissible: private life, business secrecy and the secrecy of correspondence may not be violated.

Presumptions are generally rebuttable by the opposing party. Only irrebuttable presumptions (“iure et de iure”) cannot be challenged; it is even illegal to provide evidence to rebut them. Rebuttable presumptions (“iuris tantum”) can and may be challenged by evidence to the contrary: the forms of evidence acceptable here are regulated in the civil-law context but not in the commercial law.

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

The court must be convinced of the points submitted by the parties. The court must be convinced on the basis of the evidence and its credibility. If the court comes to the conclusion that the point submitted to it can help settle the dispute and that the point as submitted reliably reflects the truth of the matter, it attributes evidential value to the point. It is only when the court has attributed evidential value to some point or other that it can be properly regarded as evidence.

Evidential value is somewhat subjective, whereas actual proof is strictly objective. Status as proof depends on the reliability that the evidence is required to have. Evidence will be legally regarded as proof only if it has an adequate level of reliability, as the court is always deprived of its discretion. Such is the case of documentary evidence. If the court interprets the content of a document that has been obtained lawfully in a manner that is incompatible with its actual wording, it violates the status of formal documents as proof. The losing party can rely on this as a ground for an appeal to the Court of Cassation.

II. The taking of evidence

3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion?

A party making an allegation must be able to prove it. In some cases the court can instruct a party to provide evidence, as where persons are deemed to be under oath (section 1366 CivC.). The court may, subject to strict conditions, require a party to make a statement under oath, either in order to make the settlement of the dispute dependent on it or simply in order to determine the amount to be awarded.

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The court may question the parties and order witnesses to be questioned, except where the law forbids this (section 916 JudC.). It can also commission an expert report to determine specific facts or to provide it with technical advice (section 962 JudC.).

4.

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

Measures of investigation must be applied for by one of the parties in the form of a principal application or incidental application. The court’s judgment on that matter may agree or decline to accept the application, stating reasons.

In the event of a documentary investigation (section 883 JudC.) or a forgery investigation (section 895 JudC.) the court orders the parties to appear before him (with or without legal representation) and to bring with them all deeds, documents and agreements or the document alleged to be forged. The court may hear and determine the case immediately or order it to be deposited at the registry, after which it may itself order measures of investigation or have them carried out by experts. The court ultimately gives judgment on the issue of the documentary investigation or the forgery investigation.

If a party offers to provide evidence via one or more witnesses, the court may admit the evidence if it is admissible (section 915 JudC.). If the law does not forbid this, the court may order the witnesses to be questioned. The witnesses are summoned by the court registrar at least eight days before the day set for the hearing. They must take the oath and are questioned separately by the judge. The court may put questions to the witness of its own motion or at the request of one of the parties. The testimony is taken down in writing, read out, corrected and amplified if required, and the hearing of the witness is then closed.

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The court may order an expert investigation in order to settle the dispute or prevent it from arising. The investigation may concern only factual findings and technical advice (section 962 JudC.). The expert undertakes his mission under supervision by the court. The parties provide the expert with all requisite documents and meet all reasonable demands from him. The report must be presented by a date set by the court order. If the report conflicts with the court’s own convinced belief, the court is not obliged to follow the expert’s advice.

The court, of its own motion or on application by the parties, may order an investigation in situ (section 1007 JudC.). The investigation, at which the parties may or may not be present, will be conducted by the judge ordering it or by a person officially charged with conducting it. An official report recording all things done and all findings reached is produced and transmitted to the parties.

b) In which cases can the court reject an application of a party to obtain evidence?

The court is never under an obligation to accept a party’s request for measures of investigation. But if an official instruction is transmitted to a judge, he must carry it out (section 873 JudC.).

5.

a) What different means of proof are there?

There are five types of means of proof in the (ordinary) civil law: documentary evidence, witness statements, presumptions, admissions by parties, and sworn statements (affidavits) (section 1316 CivC.).

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Documentary evidence (section 1317 CivC.) may be supplied in the form either of an authentic document (deed) or of a private document. An authentic document (deed) is a document drawn up in the form prescribed by the law by an authorised public officer (such as a notary or a registrar of births, marriages and deaths) and constitutes, both between the parties and in relation to third parties, perfect proof of whatever is recorded in it. A recognised private document signed by all relevant parties and reproduced in as many copies as there are parties constitutes perfect proof as between the parties. A written document must be produced for items in a sum or of value exceeding €375 (section 1341 CivC.).

Evidence given by witnesses (section 1341 CivC.) is not admissible to contradict or amplify the content of written documents. If there is only prima facie documentary evidence or if it is impossible to produce documentary evidence, witness evidence will be admitted.

Presumptions (section 1349 CivC.) are conclusions drawn by the law or by the court from a known fact in order to decide an unknown fact. Presumptions cannot override the content of written documents but they can, like witness evidence, constitute prima facie evidence to be amplified by written evidence and replace written documents where it is impossible to produce them.

Admissions by parties (section 1354 CivC.) are made either in the judicial context or outside the judicial context. An admission in the judicial context is a statement made by a party or a person authorised to act for him in a legal connection which can be relied on against the person making it. An admission outside the judicial context, on the other hand, is subject to no formal requirements.

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A sworn statement (section 1357 CivC.) is either made by one or other party (decisive oath) or ordered by the court. In the case of a decisive oath, the statement is conclusive evidence only for or against the person who swore it.

Evidence in commercial matters (section 25 ComC.) is unregulated, but there is a specific form of evidence, namely the receipted invoice in the case of contracts of sale. A trader can always use a receipted invoice to create valid evidence, whereas other written documents must emanate from the opposing party if they are to serve as evidence.

b) 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?

Witness evidence is regulated as an independent form of evidence by the Civil Code; the Judicial Code regulates the technical procedural aspects of witness evidence. The expert report is one form of evidence among others and is governed by the Judicial Code. Thee parties can ask the court to summon witnesses, but they cannot designate experts of their own motion. Only the court can do that.

Documentary evidence has evidential value and the court must respect its content, but the same does not apply to expert reports and opinions. If the report or opinion is in conflict with the judge’s own convictions, he is not obliged to follow it (section 986 JudC.).

c) Are certain methods of proof stronger than others?

There is a hierarchy in the regulated forms of evidence. Admissions and sworn statements rank highest. A written document always ranks above witness statements and presumptions. Authentic documents (deeds) constitute perfect proof as between the parties and in relation to third parties, whereas a recognised private document constitutes perfect proof as between the parties. Witness evidence and presumptions may be relied on only if the documentary evidence is incomplete or if it is impossible to produce documentary evidence of the relationship that is to be proved.

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

Depending whether the fact is classified as being a civil or a commercial matter, the law of evidence is either regulated or unregulated. In the civil law, a written document (deed or private document) must be produced for items in a sum or of a value exceeding €375 (section 1341 CivC.). Only such documents can be admitted as evidence; witness evidence and presumptions are not admitted. In commercial matters, however, witness evidence and presumptions are admissible, ranking above the contents of documents or countering them.

6.

a) Are witnesses obliged by law to testify?

No; witnesses are heard, if so requested, by the parties or summoned by the court (section 915-916 JudC.).

b) In which cases can they refuse to give evidence?

If a witness is summoned who submits that he has legally valid grounds for declining to give evidence, the question is put to the court. The witness’s business secrecy obligations are regarded as a valid ground, among others (section 929 JudC.).

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

A person summoned as a witness is under a duty to appear. If he does not appear, the court, on application by one of the parties, may summon him by writ served by a bailiff (section 925 JudC.). A person summoned as a witness who does not appear is liable to a criminal fine (section 926 JudC.).

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d) Are there persons from whom evidence cannot be obtained?

Witness evidence is invalid if it is given by a person who does not have the requisite standing (section 931(1) JudC.).

A minor aged under fifteen may never be questioned under oath. Any statement he makes can only be used as information (section 931(1) JudC.).

A minor who has the requisite capacity of discernment can be questioned by the judge or by a person designated by the judge in any court proceeding, at the minor’s own request or by order of the court, though in the latter case the minor may refuse to be questioned (section 931(3) to (7) JudC.).

Blood relatives in the descending line may not be questioned in cases in which their relatives in the ascending line have an interest (section 931(2) JudC.).

7. 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 new technology such as television or videoconferencing?

The parties may not speak direct to witnesses or interrupt them but must always address the court (section 936 JudC.). The court, of its own motion or on application from a party, may put any question to the witness that will help to clarify or amplify the evidence (section 938 JudC.).

Indirect testimony is valid. There are no provisions or principles of law to oppose it. Moreover, section 924 JudC. allows the court to decide that, where a witness can show that it is impossible for him to appear in person, his testimony may be received where he actually is.

III. The evaluation of the evidence

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

Evidence obtained by unlawful means may not be used in court. The court must disregard it in coming to its judgment. If privacy, business secrecy or the secrecy of correspondence has been violated in obtaining the evidence, thus is unlawful and inadmissible.

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

Documents emanating from a party may not be used as evidence for that party. Only in the commercial law is an invoice (accepted by the customer) in a sales transaction valid as evidence that a trader can offer to prove his own case, even though it is a document emanating from himself. Properly kept accounting books can be accepted by the court as evidence of transactions between traders.

An admission in the judicial context is a statement made by a party or a person authorised to act for him in a legal connection. Such a statement constitutes perfect proof against the person making it.

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Last update: 05-01-2007

 
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