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

Last update: 21-09-2007
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Taking of evidence and mode of proof - Romania

 

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 that 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 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 gathering of evidence is approved, what steps follow? a)
b) In which cases may 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 experts? 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 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 party to a case, will my own statement count as evidence? 9.

 

I. The burden of proof

Principal legislation on the subject: international legal assistance in civil and business matters, Law No 105/1992 on the regulation of matters of private international law.

Code of Civil Law, Code of Civil Procedure, Code of Business Law, Law No 189/2003 on.

1.

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

(With which party does the burden of proof lie and for which actions? What are the implications if there are doubts concerning a certain fact which cannot be resolved?)

The claimant must prove his or her case. Where the defendant cites exceptions in order to freeze the applicant's claims, the burden of proof lies with the defendant. In case of presumptions, the burden of proof is switched from the person in whose favour they have been made to the opposing party.

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

Legal presumptions are determined by the law and against absolute presumptions evidence to the contrary is allowed only in the form of testimony, and sometimes not even in this form. There is also an intermediary or mixed category of legal presumptions characterized by the fact that they can be rebutted by evidence to the contrary, but only by certain evidence, in certain circumstances or only by certain people. Evidence to the contrary is allowed against conditional legal presumptions.

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Facts of common knowledge (where proof is based on common knowledge of the fact) and laws, regardless of their form of expression, are not subject to the burden of proof. It is presumed that they are known by all citizens.

Authentic documents do not require anyone who invokes them to produce any evidence because they are produced in due accordance with the law by a civil servant entitled to operate in the place where the document was concluded. Most deeds are drafted at offices of notaries or public offices or are court orders, acts recorded in the civil registry or documents issued by state administration bodies, etc.

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

(Must the court be completely convinced of the fact or is it enough for the fact to be very probable, with some doubts remaining?)

Evidence cannot be used unless it satisfies certain conditions regarding legality, credibility, pertinence and conclusiveness. The first rule of the administration of evidence is that the evidence must be obtained before the commencement of the main trial hearings, and the second rule is that the evidence and the evidence to the contrary must be produced wherever possible at the same time.

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?

At the request of the parties, the following evidence may be taken: expert evidence, witness evidence given by the claimant in the action and by the defendant in the plea of defence or, at the latest, on the first day of the trial; the confessions following a summons to attend an interview, at the request of the interested party to obtain some admission from the opposing party; admission (through confession/a summons to attend an examination).

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The judge may request expert evidence; the establishment of facts in situ, witness evidence, testimony in response to questioning, etc.

The Code of Civil Procedure provides rules on situations in which a document cited as evidence by one of the parties is not in its possession, situations in which the document is in the possession of the opposing party and situations in which the document is kept by an authority or by a third party.

4.

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

The court gives its opinion on evidence requested by the parties after examining its admissibility. It cannot accept evidence until after it has been called into question by the parties.

The first rule of submitting evidence is that evidence must be submitted before the facts of the case are discussed, and the second rule is that the evidence and rebutting evidence must be produced simultaneously, wherever possible.

The securing of evidence is an adversarial procedure for producing and preserving evidence if there is a danger that it might disappear or that future difficulties might arise in relation to its submission. The fundamental criterion for requests to secure evidence is pressing need. The request is dealt with by the court in whose jurisdiction the object of the investigation is located or where the witness lives.

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

(As in cases where evidence is not suitable, tangible or admissible)

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The evidence is presented by the applicant in an application to start proceedings and by the defendant in a plea of defence or, at the latest, on the first day of the trial. Evidence not presented under these conditions or, at the latest, on the first day of the trial may not be used in the trial. However, the sanction of exclusion is not applied in certain specific situations where evidence is not presented in limine litis which will be presented later.

The law makes no provision for other legal means of proving acts or legal facts. However, there are some restrictions when using some evidence (e.g. proof of legal acts by testimony, the ban on an oral examination for establishing grounds for divorce).

With regard to questions of credibility, relevance and conclusiveness, evidence may be accepted if it leads to the conclusion of the trial.

5.

a) What different means of proof are there?

Documents, witness statements, presumptions, confession in the course of questioning in court, establishment of facts in situ, expert evidence.

b) What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from experts? What are the rules in relation to the submission of written evidence and expert reports/opinions?

Usually, witnesses are proposed in limine litis by the parties, by the applicant in the application and by the defendant in the plea of defence or, at the latest, on the first day of trial. Failure to submit evidence under these conditions results in loss of the party’s right to submit evidence throughout the trial, unless provision has been made to the contrary. In the interest of establishing the truth, the court may hear evidence even if the parties object to it. All legal acts with a value in excess of RON 250 can be certified only by authentic deed or by deed concluded by private signature. Witness evidence against or concerning the contents of a deed is inadmissible. This restriction is applicable only to previously concluded deeds. There are several important exceptions to these two restrictive rules on the admissibility of witness evidence: witness evidence is not applicable where a written evidence procedure has begun and where creditors are not able to procure written evidence of the debt or to preserve the evidence obtained.

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When establishing certain facts, the court considers it necessary to obtain the opinion of specialists, it appoints, at the parties' request or ex officio, one or three experts, determines the points on which their views are sought and the time within which they must perform the expertise.

Evidence is submitted in courts unless the law provides otherwise. When evidence is to be taken elsewhere, it must be taken by delegation by a court of the same level or a lower level, if there is no court of the same level in that town. If the type of evidence allows and the parties agree, the court that takes the evidence may be exempted from summoning the parties to appear.

c) Are certain methods of proof stronger than others?

Authentic documents are often accepted by the parties owing to the advantages they offer which include the presumption of truth on the part of the person who submits certified documents as evidence. The date of the authentic deed represents evidence until proven false. Authentic deeds that establish debts have the power of a writ of execution and may be enforced without obtaining a judgment. Legal documents relating to a matter with a value in excess of RON 250, even when deposited voluntarily, must be original documents concluded by private signature. Witness evidence against or concerning the contents of the document or about what it is claimed to have been said before, during or after the drafting of the deed is not admissible even where the value does not exceed RON 250.

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

All legal documents concerning a subject with a value in excess of RON 250 can be proven only by means of the original document or a document concluded by private signature. This restriction does not apply to material facts; these circumstances can be proven by the parties directly concerned, by third parties and by the use of any evidence. However, there are also material facts that, in principle, cannot be proven by witness testimony, such as births and deaths or goods purchased jointly by spouses.

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Witness evidence is inadmissible against and about the contents of a document. This restriction applies only to documents produced beforehand. Articles 1197 and 1198 of the Civil Code provide some important exceptions to the restrictions on the admissibility of witness evidence:

  • witness evidence cannot be used where written evidence procedure has begun;
  • the creditor is unable to procure written evidence regarding the claim or to preserve evidence already obtained.

The law requires documents to be certified if they are to validate the judicial operation to which they refer. This applies to donations, conventional mortgages and land ownership deeds.

There are some exceptions to the general rule: private documents are valid if one condition is fulfilled, namely that they are signed by the party entering into the undertaking. Other requirements must also be met. A first exception concerns synallagmatic agreements, which the law requires to be produced in multiple copies. Another exception is the requirement of an endorsement of confirmation indicating in letters the sum and signature on private documents in which one party undertakes to pay a sum of money to another.

Private documents acquire validity (enforceable against third parties) when they are submitted to a public institution, registered in public records or have their contents reported or, even summarised, in documents drafted by civil servants.

6.

a) Are witnesses obliged by law to testify?

See answer to Question c).

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

[e.g. if the witness is related to one of the parties (which?) or the testimony might damage the witness]

The Code of Civil Procedure lays down the conditions for taking witness evidence, not the reasons why witnesses may refuse to testify. See answer to Question d).

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

The court fines a witness who fails to appear in court or refuses to testify when present in court, apart from where the witness is a minor. A fine is not imposed if they have been prevented from meeting their obligations for a sound reason.

The court can issue an order to appear to any witness who fails to appear in response to the first court summons. In urgent matters, witnesses can be ordered to appear even at the first hearing. If the witness fails to appear in court after being ordered to do so, the court will proceed with the trial. The court may agree to hear the witness at his or her home if they are incapable of appearing in court.

If the party refuses to answer questions designed to prove the ownership of the document or if the evidence produced reveals that it was hidden or destroyed, or where there is a refusal to produce the deed after its ownership has been established, the court will consider as proven the claims of the party that requested the producing of the deed. Therefore, in such circumstances, there is a simple presumption that the court can rule by taking into account the attitude of the party called to appear for questioning.

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The second hypothesis concerns the situation in which the document is kept by an authority or another person. In such a situation, the court orders the document to be produced on the due date.

The holder of a document who fails to produce the document can be fined and, at the request of the interested party, the person who, wilfully or negligently failed to produce the document may be ordered to pay compensation for the damage caused by the delay.

There are exceptions to the rule that the court can order the transfer of documents, namely land registry documents and blueprints, public records and original deeds deposited with courts or notaries. All these deeds may, however, be examined by the court at the office concerned or under letters rogatory.

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

(adults without legal capacity, minors, persons sharing interests with one of the parties, persons who have been convicted of certain offences)

Persons who cannot be heard as witnesses or are exempt from the obligation to testify, are relatives and kin up to the third degree of kinship, including spouses, even if the couple are separated, wards and persons legally declared unfit to testify and persons convicted of perjury.

In civil law and divorce trials, relatives and kin may be heard as witnesses. For reasons of ethics, the law does not allow descendants to be heard at such trials. It is forbidden to use witness examinations to prove grounds for divorce. Wards, persons legally declared unfit to testify and persons convicted of perjury are not allowed to testify.

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Those exempted from testifying are church ministers, doctors, midwives, pharmacists, lawyers, notaries public and any other servants bound by law to confidentiality concerning matters they have heard in the course of their professional activities (unless they are released from the duty of confidentiality by the persons authority concerned); active and former public servants in connection with secrets they learnt in their professional capacities (unless they are released from the duty of confidentiality by the persons or authority concerned); or persons who, through their answers, might incriminate themselves or other persons or expose themselves or other persons to public contempt.

The provisions concerning the hearing of relatives and kin, and of the spouse, even if the couple are separated, are of a conditional nature, as they have been laid down in the interest of the parties. This is why it has been decided that relatives and kin may be heard as witnesses if the party who has obtained such an interdiction does not object to their being heard.

Wards, persons legally declared unfit to testify and persons convicted of perjury are not allowed to testify under any circumstances.

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?

(Who examines a witness? Can the judge ask the witness questions? Is the other party allowed to cross-examine the witness?)

The Code of Civil Procedure contains some important rules on the examination of the witnesses.

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First, the court summons the witnesses to appear and can fine anyone who fails to appear. In land cases, witnesses are not summoned to appear as it is the task of the party that proposed them to ensure their presence in court on the date of the hearing. The order in which witnesses are to be examined is set in court. Each witness must be examined separately. Those not yet examined may not be present during the examination of a witness. After the hearing, the witness must remain in the court room until the end of the proceedings, unless the court decides otherwise. This is required by law so that witnesses examined do not influence in any way witnesses not yet examined.

Before examination, the witness is asked by the presiding judge to provide the following information: name, profession, place of residence and age; whether he/she is related to any of the parties and, if so, what is the nature of the relationship; whether he/she is employed by one of the parties and whether he/she is in litigation, bears a grudge against or shares the interests of any of the parties. These details are needed for an exact identification of the witness and ultimately for the appreciation of the value of the statement made before the court. Another legal requirement concerns taking the oath or affirming. After the oath has been taken, the presiding judge informs the witness that if he/she does not tell the truth, he/she is committing perjury. Under the Romanian system of civil procedure, witnesses under 14 years of age cannot take the oath; however, they are instructed to tell the truth.

After the witness has testified, the parties may ask questions. The party that proposed the examination of the witness asks the first questions and is followed by the opposing party. The witness may not read a previously written answer, but may use notes with the judge's agreement, but only regarding numbers and names. The witnesses may be reexamined if the court finds it necessary. The same provisions allow for the cross-examination of witnesses whenever their statements do not tally.

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III. The 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?

(such as illegal audio recordings)

A document that cannot be authentic because of a lack of competence or incapacity on the part of the civil servant or because formalities have not been observed is valid as a private document if it is signed by the contracting parties.

In all situations where the writing or signature is challenged, the authenticity of the document is determined by means of a procedure called the verification of records. The verification of records is the procedure used when the party does not recognise the writing or signature on a document. After verification, the court can form an opinion on the authenticity of the documents. If the court is unable to cannot form an opinion on the authenticity of the document after the direct verification of records, an expert opinion is called for.

Fraud is established by a special and complex procedure that is triggered after a report by the interested party lodged personally or through a legal representative with special power of attorney. The party wishing to use the document must present the original copy. The court may order the suspension of the civil trial until the public prosecution service has completed its fraud investigation.

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

When the defendant is taken to court for a financial debt acknowledges the debt and declares that he/she wishes to pay it to the person designated by the court, he/she does not need to stand trial if he/she deposits the sum owed. If the defendant acknowledges a part of the applicant’s claims, the court, at the latter’s request, issues a partial ruling of recognition.

Claimants may renounce the claim at any time during the trial before the court, even if the defendant objects. The claimant's renunciation has no bearing whatsoever on the defendant’s claims. Divorce cases may be concluded by a reconciliation on the part of the spouses at any phase of the trial, even if the case has been referred to a court of appeal or judicial review or if the appeal or the review is not stamped in conformity with the law. The claimant may however, lodge a new claim after the reconciliation and, in this case, he/she can use the old facts as well.

If the persons indicated as bearer acknowledges the claims of the defendant and the claimant agrees, he/she may take the the place of defendant, against whom proceedings are dropped. Where a person summonsed fails to appear before the court or contests the defendant's appearance before the court, the person against whom the action was brought may intervene in his/her own interest, and the judgment is binding on him/her.

Further information

(Links to internet sites, etc.)

www.just.ro română

international judicial cooperation

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

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Last update: 21-09-2007

 
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