The Dutch law of procedure proceeds from the principle that ‘whoever asserts a fact must prove it’. In other words, any party will be required to offer evidence of facts that he has asserted or been required to assert if he is to rely on them for legal purposes. But on some occasions the burden of proof may lie differently under specific statutory rules or under principles of reasonableness and fairness.
The statutory rules on evidence in the Code of Civil Procedure (sections 149-207 CCP) apply in summons proceedings and are also applicable in application proceedings, unless the nature of the case makes this undesirable. They are not mandatory in interlocutory proceedings, and they do not automatically apply in arbitration cases, although parties to an arbitration proceeding may agree that they will apply if they so wish.
Facts that are alleged by one of the parties and not disproved by the opposing party must be treated by the court as proved. But there is an exception, namely situations where accepting this would entail legal consequences that are not freely available to the parties. In that event the court can demand evidence.
Evidence is not required of facts or circumstances that are deemed to be universally known or rules of general experience. These may be used by the court whether or not they are alleged by the parties. ‘Facts or circumstances that are deemed to be universally known’ means facts or circumstances that any normal person knows or can know. ‘Rules of general experience’ means causal relations that everybody knows about. And there is no need to prove facts of which the court itself acquires knowledge during the proceedings – trial facts, as they are known.
Statutes sometimes determine presumptions. Certain facts or circumstances are regarded as being so probable that a party pleading them does not need to prove them. The opposing party must provide evidence to rebut them. And the court can use rules of general experience to derive a presumption from certain facts that are pleaded before it. There again, the opposing party still has the possibility of rebutting the presumption.
The court is free to evaluate the evidence before it except where the law provides otherwise. This exception concerns rules about the conclusive evidential value of evidence. In cases of conclusive value the court is under an obligation to accept as true certain forms of evidence or at least acknowledge their value. But here again there is a possibility of rebuttal.
The courts can base their decisions only on facts that adequately comply with the rules of evidence.
In certain cases (inspection of accounts, witness evidence) the court places the duty to provide evidence on one of the parties if one of them so requests or of its own motion, i.e. at the court’s initiative. In both cases one of the parties is responsible for providing the evidence.
Likewise at the request of one of the parties or of the court’s own motion, the court can order an expert report or a visit to or inspection of premises. It is the court that appoints the expert, with the expert reporting to the court, and it is the court that undertakes visits to premises. The parties are under a duty to assist with expert reports.
The parties are entitled to make their views known and to present requests in the case both of an expert report and of a visit to premises.
Once a request to provide evidence has been made, the court will allow one of the parties to do so. That is then the party that bears the burden of proof. The burden of proof entails a duty to provide evidence of certain alleged facts. The opposing party may always provide evidence to the contrary, unless the law expressly precludes this.
If a party does not clearly state what he wishes to prove or if his request is not relevant to the case, the court can decline to admit the evidence.
In the Netherlands the freedom-of-evidence rule applies, that is to say that evidence may be supplied in any appropriate form except where the law provides otherwise. The law specifies a number of forms of evidence:
Witness evidence must be allowed by the law and is given at the request of one of the parties or is imposed on one of the parties of the court’s own motion. The parties can also give evidence as witnesses (see point 9 below). Where witness evidence is to be given, it is the parties who call the witnesses.
Witness evidence is given in the form of testimony. It is taken when the court is in session in the form of oral testimony. A witness statement is admissible as evidence only if it relates to facts of which the witness has personal knowledge. A party who asks to be allowed to present witness evidence will be allowed to do so if the facts to be proved are in dispute and can help to resolve the dispute.
At the request of one of the parties or of the court’s own motion, experts can present written or oral reports (section 194 CCP). In the event of a written report, the court sets a deadline for presentation. In the event of an oral report, the expert gives evidence on the date set for the trial.
In the event of an expert investigation, the court designates the expert after consulting the parties. An expert must produce his report on the basis above all of his personal knowledge and experience. The court is free to determine the fees for an expert report that it commissions.
b) Even if there has been no call for them to produce evidence, the parties may always submit documents to the court. Written evidence can be presented very simply by being attached to one of the formal procedural documents. This does not interrupt the usual procedure. In the event of an expert report, oral or written, there must first be a decision by the court calling for the evidence to be submitted and specifying when (see also point a)).
There is a distinction between conclusive and non-conclusive evidence. In the event of conclusive evidence, the court is required to accept the content of the evidence as true or to recognise the strength of that form of evidence as determined by the law. Counter-evidence may also be offered in the event of conclusive evidence except where the law precludes it. Authentic deeds and judgments by the criminal courts are examples of conclusive evidence.
The court is free to determine the evidential value of non-conclusive evidence.
In certain circumstances a document constitutes perfect proof. An example is a personal recognisance. In certain circumstances the document is also essential for a specific personal right to come into being. An example of this might be a pre-nuptial agreement or a will, for which an authentic deed is necessary.
The basic principle is that anybody who is called on by law to give evidence is under a duty to do so. The duty is to appear at the trial and make the required statements in court.
In certain circumstances it is possible to be released from the duty to testify.
Exemption from the duty to testify is enjoyed first of all by close family relatives of the parties. These include (ex-)spouses or (ex-)registered partners of the party, relations by blood or marriage of the party or his/her spouse or registered partner up to and including the second degree – parents, children, grandparents, grandchildren, brothers and sisters.
There is also an exemption on a functional basis. This is available to people who are required to observe secrecy by virtue of a privileged relationship on account of their profession, occupation or other status, such as clergy, doctors, advocates and notaries.
Witnesses can also plead the exemption when answering specific questions if the answer would expose the witness or a relative by blood or marriage in the ascending or descending line or a collateral in the second or third degree, or his/her (ex-)spouse or (ex-)registered partner to the risk of criminal prosecution (section 165(3) CCP).
If a witness has been summoned to appear by registered letter and fails to appear at the trial, the court may set a date at the request of the party concerned on which the witness may be summoned by writ. If the witness still fails to appear, the court may order him/her to be brought to court by the police. If a witness appears but refuses to make a statement, the relevant party may ask the court to remand him/her in custody for contempt of court. The requesting party will then have to pay the costs of the remand in custody. The court will make a custody order only if it believes that this is justified with a view to ascertaining the truth.
Basically everybody is under the duty to give evidence, except for those who are entitled to the exemption (see answer to question 6b).
Witnesses are heard and questioned by the court. The court hears each of the witnesses in the absence of the other witnesses summoned to appear at the same session who have not yet testified, except in the case of a party witness. Parties and their lawyers can also put questions to the witnesses. The court, of its own motion or at the request of one of the parties, may confront witnesses with each other and with the parties. After the witness has testified, it may put questions to the parties and the parties may put questions to each other.
The Dutch rules of evidence are silent on the matter of videoconferencing. It will generally be possible to act on a request for a videoconference under Article 10(3) of the EC Evidence Regulation. Dutch law does not exclude this procedure and, in principle, there little in the way of practical difficulties.
Illegal evidence can be subclassified as evidence illegally obtained and evidence illegally used. The fact that evidence is obtained illegally does not mean that using it will be illegal. It is always at the discretion of the court whether, given the circumstances of the case, the evidence should be regarded as illegal or not.
Parties can be heard as parties in the case. In that case the statements they make will not be treated as evidence influencing the outcome of the case as regards the party heard as witness, unless the testimony serves to clarify other inadequate evidence (section 164 CCP).
Part of the information given above come from sections 149-207 of the Code of Civil Procedure (Wetboek van Burgerlijke rechtsvordering) (webpage in Dutch only):
In the international context, see the EC Evidence Regulation (Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters) and the Hague Evidence Convention 1970 (Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, The Hague, 18 March 1970).Top
Last update: 16-04-2007