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

Last update: 09-11-2006
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Taking of evidence and mode of proof - Luxembourg

 

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?

The basic principle is that the person requesting enforcement of an obligation must prove his case. Similarly, a person who claims to be no longer bound by an obligation must prove that he has made the payment or performed the act which relieved him of his obligation.

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?

In certain cases Luxembourg law provides for presumptions which release a person from having to prove a fact if it would be difficult or impossible to do so. Presumptions are conclusions which a court or a magistrate draws about an unknown fact on the basis of a known fact.

The law distinguishes between two kinds of presumption: firstly there are legal presumptions which are attached to certain acts or facts by a special law. Then there are presumptions which are not established by law and which are left to the discretion of the judge, who will only accept presumptions which are serious, precise and consistent.

Generally speaking, it is possible to provide evidence to rebut presumptions. For example, the father of a child born to a married couple is presumed to be the mother’s husband. However, an action mat be brought to contest paternity.

More rarely, presumptions can be irrebuttable and in that case it is not possible to produce evidence against them.

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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?

Appraisal of the facts is left to the discretion of the court, which is absolute. If in doubt, the judge will verify whether there is serious, precise and consistent evidence and will accept or reject the evidence depending on the probability of the alleged facts.

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 measure of inquiry can be ordered by the judge at the request of a party. However, the judge can also take evidence of his own motion.

4.

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

The judge informs the appointed expert of the nature of his task. The parties to the case and third parties who are required to assist the investigation are summoned by the expert. Under the adversarial principle the taking of evidence must be carried out in the presence of the parties.

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

A measure of inquiry can be ordered whenever a judge does not have enough information on which to base a decision.

A measure of inquiry cannot be ordered into a fact unless the party making the allegation does not have sufficient evidence to prove it. In no circumstances may the taking of evidence be ordered in order to compensate a party’s failings when producing the evidence.

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The judge must also limit the choice of measure to what is sufficient for resolving the dispute; he must opt for the simplest and cheapest solution.

5.

a) What different means of proof are there?

The different means of proof are documentary evidence, oral evidence, presumptions, admission and sworn 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?

There is no difference between an expert’s oral opinion and his written report. The decision as to whether a witness should be heard is left to the judge’s discretion. In some cases, the judge is bound by the written evidence if it is not contested by the other party.

c) Are certain methods of proof stronger than others?

An authentic instrument is issued by a public official (notary, bailiff, etc.) acting in his official capacity. It continues to be deemed authentic unless a plea of forgery is entered.

A private agreement is drawn up, without the intervention of a public official, by the parties themselves and signed by them. It is authentic in the absence of evidence to the contrary.

Oral evidence, as well as other methods of proof, is left to the judge’s discretion.

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

Written proof is necessary for the drawing up of a legal document (contract) the value of which exceeds 2500 euros. But the form of evidence of a fact (accident, etc.), is discretionary.

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6.

a) Are witnesses obliged by law to testify?

The law requires witnesses to cooperate in legal proceedings with a view to discovering the truth.

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

People who can prove that they have a legitimate reason may be exempted from giving evidence. Parents or other relatives in direct line of one of the parties may refuse to give evidence, as may a party’s spouse, even if they are divorced.

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

Defaulting witnesses may be summoned to appear at their own expense if their testimony is felt to be required. Defaulting witnesses and persons who, without good cause, refuse to give evidence or to take an oath may be subject a civil penalty of between € 50 and € 2 500.

If a person can prove that he was unable to attend on the day stipulated the fine and costs may be waived.

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

Anyone can be called as a witness except persons who are judged unfit to do so.

People who are unable to give evidence may nevertheless be heard under the same conditions but without taking an oath. However, descendants may never give evidence on the complaints lodged by spouses in an application for divorce or separation.

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 judge hears evidence from witnesses separately, in the order decided by him and when the parties are present or have been called. Witnesses may not read from a script.

The judge may hear evidence from or question the witnesses on any matter on which evidence may be taken by law, even if these matters are not mentioned in the decision ordering the investigation. He may recall witnesses, confront them with each other or the parties, and, if necessary, hear their evidence in the presence of a technical expert.

The parties may not interrupt, question or attempt to influence witnesses who are giving evidence, or address them directly, under pain of exclusion. If he deems it necessary, the judge may ask the witness questions submitted to him by the parties following cross-examination.

The judge may have an audio or video recording made of all or part of the preparatory inquiries. The recording is kept at the court registry. Either party may ask for a copy or a transcription at their own expense.

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?

The court will not accept evidence obtained by illicit means, such as a hidden camera or a telephone tap of which the person was unaware.

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

Statements made by a party to the case have no evidential value.

Further information

  • www.legilux.lu français

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Last update: 09-11-2006

 
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