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

Last update: 19-04-2007
Printable version Bookmark this page

Taking of evidence and mode of proof - Germany

 

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 certain circumstances? Is it possible to refute 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. 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 the 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 provide 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 other 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 video conferencing? 7.
III. Evaluation of 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 the party in the case, will my own statement account as evidence? 9.

 

I. The burden of proof

1.

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

(On which party does the burden of proof lie and for what does the proof have to be provided? What are the consequences if doubts about a fact cannot be resolved?)

The rules governing the burden of proof are based on the rules governing the presentation of pleadings by disputing parties, i.e. substantive law. The general principle is that all parties must prove the facts in their favour. The law also contains some explicit rules governing the burden of proof.

If there is still doubt about an essential point after all procedurally admissible means of bringing evidence have been exhausted, a decision has to be taken to determine which party has to prove the facts which could not be proved.

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

Under German law exemption of certain facts from the burden of proof takes the form of a shifting of the burden of proof from the party on whom the burden of proof lies to the opposing party or a relaxation of the requirement to provide proof for the party on whom the burden of proof falls.

  1. Shifting of the burden of proof

    The burden of proof is shifted from the party on whom it normally falls to the opposing party. In some cases this is known in legal parlance as the rule-exception relationship. The burden of proof then falls on the party invoking the exception. The legislator, for example, assumes the buyer's good faith under Sections 932(1)(1), 892(1)(1) and 2366 of the German Civil Code. The shifting of the burden of proof is of particular significance in cases involving liability under the law on defective performance, where the debtor (defendant) must prove that he is not liable for the failure to comply with an obligation under Section 280(1)(2) of the Civil Code.

    TopTop

  2. Relaxation of the burden of proof
    1. Statutory presumptions are a relaxation for the party on whom the burden of proof falls as the latter simply has to demonstrate and prove the facts on which the presumption is based (Section 292 of the ZPO (Code of Civil Procedure)). Statutory presumptions may apply to facts such as the presumption that a mortgage certificate is transferred to the creditor by virtue of possession of the certificate (Section 1117(3) of the Civil Code). They may also relate to rights such as presumption that the holder of the certificate of inheritance has the status of heir (Section 2365 of the Civil Code).

      Legal presumptions can, in principle, be rebutted in accordance with Section 292 of the ZPO provided no other legal provisions apply.

    2. Statutory presumptions are comparable a priori to actual presumptions on which prima facie evidence is based. Prima facie evidence is where a fact to be proved is a typical occurrence in the normal course of events where all the undisputable and established circumstances of the case are taken into account. Prima facie evidence can be used in particular to establish causality and fault, e.g., fault where a car is driven into a tree.

      The opposing party can challenge the presumption on the basis of facts which cast serious doubt on whether a typical occurrence is involved.

    3. Case law is increasingly defining the burden of proof by specific area of risk on the grounds of equity and fair balancing of interests. The most significant examples are:
Product liability (Section 823(1) of the Civil Code)

The burden of proof relating to defective products, infringement of legal rights and the causal relationship between the two falls on the complainant, whereas the manufacturer has to prove non‑existence of fault.

TopTop

Medical liability

In this case relaxations of the burden of proof can include shifting of burden of proof on the grounds of inadequate or incorrect medical documentation (operation reports and patient files). In the case of gross medical error all the complainant has to prove is that this could have caused the alleged injury. If actual causality has to be established the relaxation of the burden of proof for the complainant may include shifting the burden to the doctor.

Clarification and advice obligations

If special contractual clarification, information and advice obligations are not satisfied, the offender must prove that the injury would have been incurred even if he had acted in accordance with his obligations. There is a presumption that the injured party would have acted in accordance with the information provided.

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

(Does the Court have to be wholly convinced of the truth of a fact or is a high degree of probability sufficient even if there is some doubt?)

Section 286 of the ZPO sets out the fundamental procedural principle of free assessment of evidence. Under this principle the court has discretion to decide in the light of the entire content of the proceedings and the conclusions of any evidence taken whether an actual presumption is true or false.

An overwhelming or high degree of probability is not sufficient to prove a fact, but all doubt does not have to be excluded. According to case law, all there has to be is a feasible degree of certainty in normal day-to-day life which allows some element of doubt without completely excluding it.

TopTop

There is one exception regarding the necessary degree of proof in cases where the law accepts that facts are shown to be credible. A presumption is credible if there is overwhelming probability that it is correct. To prove credibility parties do not have to provide strict proof (witnesses, documents, inspection by the court, expert evidence or questioning of the parties). Confirmation under oath may be allowed for example under Section 194 of the ZPO.

II. 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 the evidence on his own motion?

Under the principle that in civil proceedings action must proceed on the basis of facts and applications by the parties, the parties have to present the facts at issue and the relevant evidence. The court cannot present the facts itself as a basis for its decision. These restrictions result from the court's information and clarification obligations under Section 139 of the ZPO.

In some cases evidence may be taken by the court contrary to this principle, but this must be for the purposes of a well-founded presentation of the facts by the parties and may not be used for an investigation of the facts.

The court may order inspections and expert reports (Section 144 of the ZPO), the presentation of documents (Section 142 of the ZPO) and further questioning of a party (Section 448 of the ZPO). A party may also be questioned by the court (under Section 448 of the ZPO) where the conclusions of the hearing or evidence taken is not sufficient to convince the court of the truth or falsehood of a fact to be proved. There must also be a certain degree of initial probability for the fact to be proven.

TopTop

4.

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

The court will order a party to gather the evidence after it has presented the issues on which evidence is to be taken. As a general rule this is in the oral hearing or by a formal order to take evidence under Section 358 of the ZPO. According to Section 359 of the ZPO this must include a description of the facts at dispute for which evidence is to be taken, a description of the means by which evidence is to be taken, with the names of the witnesses and experts to be questioned or the parties to be questioned and a description of the parties invoking these means of evidence.

Evidence is then taken in accordance with the relevant legal provisions (Sections 355 to 484 of the ZPO). The principles of directness (Section 355 of the ZPO) and parties' openness (Section 357 of the ZPO) have to be observed.

Under the principle of directness the evidence has to be presented before the trial court as it also has to assess the evidence. There is only one exception in statutory cases where responsibility for evidence taking can be transferred to a member of the procedural court (Section 361 of the ZPO) or another court (Section 362 of the ZPO). Under the principle of parties' openness parties have a right to be present in the preliminary hearing of witnesses and also have the right to question witnesses (Section 397 of the ZPO).

Under Section 285 of the ZPO the evidence gathered forms the basis for the oral proceedings following a hearing with the parties. Under Section 286 of the ZPO the court has to establish the facts under its freedom of discretion on the basis of the findings of the proceedings and the evidence taken.

TopTop

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

An application to obtain 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, are obvious or undisputed;
  • the facts are not substantial, i.e. cannot have any influence on the decision;
  • the means used to gather evidence to prove the alleged facts are unsuitable (in very few cases as evidence does not have to be assessed before it is taken);
  • the means of evidence taking are unfeasible;
  • the means of evidence taking are inadmissible, e.g. as a result of an illegal "shot in the dark" claim or witnesses' obligation to remain silent (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 ZPO;
  • the facts were established in other proceedings as having legal force and are binding on both parties;
  • the application to present evidence is rejected on the grounds that it was not submitted in time (Section 296(1) of the ZPO);
  • the taking of evidence is hampered by an obstacle of uncertain duration, the relevant time limit has elapsed or the proceedings have been delayed for other reasons (Section 356 of the ZPO).

5.

a) What different means of proof are there?

Judicial inspection (Sections 371 to 372a of the ZPO)

TopTop

This is direct physical inspection of the evidence by the judge. This is also understood to include touching, smelling, listening and tasting. Consequently sound and video recordings and computer records can also be inspected.

(2) Witness evidence (Sections 373 to 401 of the ZPO)

Witnesses can confirm events which took place in the past which they themselves witnessed and are therefore irreplaceable unlike experts.

Witnesses are not parties to the dispute.

If a witness calls a particular expert to examine the facts, the latter is not an expert witness (Section 414 of the ZPO), e.g. a doctor in the case of injuries sustained in an accident.

(3) Experts (Sections 402 to 414 of the ZPO)

Experts provide the judge with the specialist knowledge he does not possess in order to assess the facts. Experts do not establish the facts themselves. They are simply required to give a value judgment on the basis of established facts.

Only if specialist expert knowledge is required to establish the facts can an expert be asked to give his 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 with the consent of both parties.

(4) Documents (Sections 415 to 444 of the ZPO)

Documents within the meaning of the ZPO are written declarations. The law draws a distinction between the evidential value of public documents (Sections 415, 417 and 418 of the ZPO) and of private documents (Section 416 of the ZPO).

(5) Questioning of parties (Sections 445 to 455 of the ZPO)

The questioning of parties is subsidiary to other forms of evidence and only admissible solely for the purposes of the main evidence (Section 445(2) of the ZPO). Parties may only be questioned with the consent of the opposing party or the court.

TopTop

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?

All forms of evidence have the same evidential value as the court has discretion in assessing the evidence. The only difference is the method used to take evidence.

Under Section 394(1) of the ZPO all witnesses have to be questioned individually and not in the presence of the witnesses who are to be subsequently heard. Witnesses who give conflicting testimonies may be confronted face to face ( Section 394(2) of the ZPO).

Before witnesses are questioned they are warned that they must tell the truth and that they may subsequently be required to swear an oath under Section 395(1) of the ZPO. Witnesses are asked to give their personal details (Section 395(2) of the ZPO) and are then questioned on the subject matter of the case (Section 396 of the ZPO). The court does all it can to assist witnesses in giving evidence. It may also put further questions to witnesses to clarify points or ensure their testimonies are complete.

Parties have the right to be present when witnesses are questioned and to put questions to them. As a general rule, the parties themselves are only allowed to submit questions to be put to witnesses, whereas legal counsel can directly question a witness (Section 397 of the ZPO).

The rules governing the questioning of witnesses also apply to expert witnesses and the questioning of the parties involved (Sections 402 and 451 of the ZPO).

TopTop

Documentary evidence has to be submitted. If the party presenting the evidence does not possess the document in question but this is in the possession of the opposing party or a third party, the opposing party or third party will be asked to submit the document (Sections 421 and 428 of the ZPO). The obligation to present documents is laid down in the Civil Code and applies where the person presenting the evidence can request the opposing party or a third party to publish or submit a document (Section 422 of the ZPO). The grounds for this obligation must be substantiated (Section 424(5)(2) of the ZPO). Written expert reports or opinions are also documents within the meaning of the ZPO.

c) Are certain methods of proof stronger than others?

(e.g. written evidence versus witness statements, certified versus private documents)

In principle no. All forms of evidence have the same weight under the principle that the court has discretion in assessing evidence (Section 286 of the ZPO). According to this principle all the proof gathered as evidence provides a basis for an assessment by the court. Only in exceptional cases do binding evidence rules have to be observed by judges, e.g. those applying to the evidential value of the record of the proceedings (Section 165 of the ZPO) or of the judgment (Section 341 of the ZPO) or other documents (Sections 415 to 418 of the ZPO).

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

(for example in the case of debts exceeding a certain amount, is written evidence required?)

TopTop

No, the ZPO does not stipulate any obligatory forms of evidence to prove particular facts.

There is one exception but this applies only to certain types of proceedings. In proceedings involving claims relating to documents, bills of exchange or cheques evidence relating to the claim itself may only be presented in the form of documents and evidence regarding any other facts is only admissible in the form of documents or questioning of the parties concerned (Section 592 et seq. of the ZPO).

6.

a) Are witnesses obliged by law to testify?

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

Under Section 378 of the ZPO a witness's duty to testify also includes a duty to check what he knows on the basis of documents and refresh his memory. There is no obligation to question witnesses about facts unknown to them.

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

(If witnesses are, for example, related by blood or by marriage to a party to the proceedings (to what degree?) or if their testimony would be to their detriment)

The relevant rules of the ZPO govern the right of witnesses to remain silent in view of their personal relationship with one of the parties (Section 383) and the right not to respond to particular questions for good reasons (Section 384).

Witnesses' right to refuse to testify under Section 383 of the ZPO is based on their family relationship or their obligation of professional trust and is intended to avoid conflicts of interest.

TopTop

This applies to betrothed persons (1), spouses (2) and life partners (3) during the duration and even after the end of their marriage or life partnership. Any person who is or was related by blood or by marriage or has or had a collateral relationship in the third degree or in the second degree by marriage (3) may also not be obliged to testify. Collateral relationship does not mean a direct relationship but descendency from the same third person. The degree of blood relationship or relationship by marriage is determined by the number of births.

Under Section 383(4) of the ZPO priests and religious professionals, persons who are or have been involved professionally in the preparation, production or distribution of periodicals or radio and TV programmes (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 (6) are also 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.

Witnesses' right not to testify under Section 384 of the ZPO is intended to protect witnesses from the consequences of having to testify. It gives them the right not to reply to particular questions but does not give them a right not to refuse to testify at all as Section 383 of the ZPO does.

The right not to testify under Section 384 of the ZPO applies to questions which would cause the witness or a person with a family relationship listed in Section 383 of the ZPO direct financial injury (1) or would expose them to dishonour or the risk of criminal or administrative prosecution (2) if they answered them. Nor do witnesses have to answer questions if this would oblige them to disclose a trade or business secret (3).

TopTop

Section 385 of the ZPO sets out a number of exceptions to witnesses' right not to testify under Sections 383 and 384 of the ZPO. Of particular note is Section 385(2) which releases priests and religious professionals and persons who are required not to testify under substantive law in accordance with Section 383(1)(6) of the ZPO from the obligation to remain silent and consequently restores their obligation to testify.

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

Yes. If a witness who has been summoned does not attend, the court will impose an administrative fine under Section 380(1) of the ZPO and if this is not paid, will impose a custodial sentence. The fine is €5 to €1 000 under Article 6(1) of the EGSTB (Criminal Code Introductory Act) and the custodial sentence is one day to six weeks under Article 6(2) of the EGSTB. Witnesses are also required to pay the costs incurred by virtue of their non-attendance.

If the witness fails to attend for a second time, he/she can be forcibly brought to the hearing under Article 380(2) of the ZPO in addition to an administrative penalty being imposed. These measures will not be enforced if he/she provides an adequate apology in time. If an apology is not submitted in time the witness must explain why he/she is not responsible for the delay (Section 381 of the ZPO).

If a witness refuses to testify or swear an oath without giving a reason or giving a reason which is deemed to be legally unsubstantial, the same measures can be taken against him/her under Section 390(1) of the ZPO as those applying to a witness who does not attend and does not provide an apology. If a witness refuses to attend for a third time, he/she may be detained in order to testify on application but solely for the duration of the court hearing (Section 390(2) of ZPO).

TopTop

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

(adults who cannot enter into legal transactions, minors, persons with the same interests as those of one of the parties, persons convicted for criminal offences)

No, there is no general disqualification from being a witness. Any person who has the mental capacity to understand and answer the relevant questions, irrespective of their age or ability to enter into legal transactions, can be a witness.

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

Any person who is directly involved as a party or as the legal representative of a party to the proceedings cannot be a witness. There is one exception which applies to joint parties in relation to facts which solely concern other joint parties. In certain circumstances a representative may be a witness if the subject of the hearing is not related to the matters he/she represents. A registered representative may, for example, testify in relation to facts which are not related to his/her duties in proceedings to which the person he/she represents is a party.

A person's suitability to be a witness is decided at the hearing stage.

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 video conferencing?

(Who leads the questioning of witnesses? Can the judge question witnesses? Is the opposing party entitled to put questions to the witnesses?)

TopTop

The court conducts the questioning of witnesses. A member of the trial court may be appointed as a judge to question witnesses. Section 375(1a) of the ZPO often applies here.

Every witness has to be heard individually and not in the presence of the witnesses to be subsequently heard (Section 395(1) of the ZPO). Witnesses giving conflicting testimonies may be confronted face to face (Section 394(2) of the ZPO).

Parties are entitled to be present and to put questions to witnesses during their hearing. Parties are, as a general rule, allowed only to submit questions to witnesses whereas their legal counsel may directly question witnesses (Section 397 of the ZPO).

Witnesses may be heard via video conferencing if the parties concerned are consulted and give their consent (Section 128a(2) of the ZPO). The consent of witnesses or experts is required as the transmission affects their rights as individuals.

III. Evaluation of evidence

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

(e.g. in the case of illegal records, etc)

The court may be prohibited from disposing of evidence under particular statutory rules, e.g. prohibition on the disposal of judgments erased or to be erased from the Federal Central Register (Section 51 of the BZRG (Act governing the Federal Central Register).

The court may be prohibited from disposing of evidence under the case law of the Federal Constitutional Court in cases where individual rights which are safeguarded by the Constitution would be harmed by the taking of evidence and disposal of the evidence cannot be justified exceptionally by balancing the interests involved.

TopTop

Under this case law, for example, the court may not dispose of the evidence where secret sound recordings have been taken. This also applies to the use of mini-transmitters, microphones or sound systems to listen into conversations or to illegally obtained personal documents such as diaries or intimate letters.

However in all these instances, a decision may be taken on the basis of a case-by-case balancing of conflicting rights that use may be made of illegally obtained evidence provided this does not affect an essential area of private life.

A separate decision has to be taken to determine whether such a prohibition conflicts with procedural law in the case of each individual provision. Deficiencies in the proceedings and in particular in the way the hearing is conducted can be corrected according to Section 295(1) of the ZPO. The hearing of a party as a witness is, for example, an optional procedural deficiency, i.e. evidence can be used if the parties do not avail themselves of the provision or do not lodge an objection against the error until the conclusion of the subsequent oral hearing. Failure to provide information about a witness' right to refuse to give evidence may also be corrected under Section 295(1) of the ZPO.

Compliance with rules in the public interest is not, however, optional (Section 295(2) of the ZPO). Examples include all points to be taken into account by the court such as the preconditions for proceedings, admissibility of legal remedies and exclusion of persons to serve as judges.

9. As the party in the case, will my own statement account as evidence?

As has already been explained under points 5(a) and (c), the questioning of parties may under certain circumstances be admitted as a means of obtaining evidence. The assessment of such evidence is left to the court's discretion (Section 286 of the ZPO).

« Taking of evidence and mode of proof - General information | Germany - General information »

TopTop

Last update: 19-04-2007

 
  • Community law
  • International law

  • Belgium
  • Bulgaria
  • Czech Republic
  • Denmark
  • Germany
  • Estonia
  • Ireland
  • Greece
  • Spain
  • France
  • Italy
  • Cyprus
  • Latvia
  • Lithuania
  • Luxembourg
  • Hungary
  • Malta
  • Netherlands
  • Austria
  • Poland
  • Portugal
  • Romania
  • Slovenia
  • Slovakia
  • Finland
  • Sweden
  • United Kingdom