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

Last update: 15-06-2006
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Taking of evidence and mode of proof - Spain

 

TABLE OF CONTENTS

1.
1.a) Which party bears the burden of proof? 1.a)
1.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? 1.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.
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.
4.a) If the application of a party concerning the taking of evidence is approved, what steps follow? 4.a)
4.b) In which cases can the court reject an application of a party to obtain evidence? 4.b)
5.
5.a) What different means of proof are there? 5.a)
5.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? 5.b)
5.c) Are certain methods of proof stronger than others? 5.c)
5.d) In order to prove certain facts, are certain methods of proof obligatory? 5.d)
6. Are witnesses obliged by Spanish law to testify? 6.
7. Are there persons from whom evidence cannot be obtained? 7.
8. What is the role of the judge and the parties in the hearing of a witness? 8.
9. What is the value of witnesses’ statements in terms of evidence? 9.
10. Can corporate persons or entities without legal personality be examined? 10.
11. How are witnesses examined? 11.
12. What is the value of statements made by the plaintiff and the defendant? 12.
13. How are the testimonies and replies by the parties during the examination documented? 13.
14. Does evidence obtained illegally have any value? 14.
15. Can evidence be taken before the proceedings? 15.
16. Where can I obtain further information on legal proceedings? 16.

 

To have a right recognised before a court, evidence must be provided of the facts being alleged. This involves recourse to a procedural activity, the steps and timing of which are regulated.

It is essential for anyone wishing to resort to the courts to analyse beforehand his chances of being able to prove what he is alleging in order to avoid wasting time and money (legal costs) if he is unable to do so. It is necessary in this respect to have some knowledge, even very general and basic, of the rules governing the evidential stage of proceedings.

The evidential stage in Spanish law is regulated by Chapters V and VI of Title I (Articles 281 to 386) of the Code of Civil Procedure (Law 1/2000 of 7 January 2000), although some proceedings (those initiated before 8 January 2001, which is when Law 1/2000 came into force) are still governed by the former Code of Civil Procedure (Law of 3 February 1881). The new Code of Civil Procedure contains several general comments on evidence in Section XI of the introduction (technically known as the preamble) which may be of interest to anyone wishing to find out how the Spanish legislator views the evidential stage of proceedings.

1.

1.a) Which party bears the burden of proof?

Each of the parties taking part in the proceedings must prove the fact that he is alleging and on which his claims are based. Therefore the plaintiff must provide evidence of the facts in his petition, while the defendant must be able to prove facts preventing, cancelling or weakening the legal effectiveness of the facts in the petition. This is the general rule applying to the burden of proof, except where a legal provision contains special criteria.

The party with the burden of proof is the one who suffers the prejudicial consequences of a lack of proof. Thus, if when it comes to issuing the judgment or similar decision, the party has not proven the facts he is alleging, the court will dismiss his claims. Notwithstanding this, the rules on the burden of proof do not follow rigid principles but are adapted to each case, depending on the nature of the facts being asserted or denied and the greater opportunity or facility each party has to provide proof. One example of this is in consumer affairs, where imposing the burden of proof on the consumer is regarded as an unfair clause when the contracting party should bear the burden of proof.

1.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?

The facts on which the parties base their claims must be proved. Custom and foreign law must also be proved, but proof of custom is not necessary if the parties agree with its existence and content, and this does not run counter to public policy.

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It is not necessary to prove facts that are completely and generally known or facts on which the parties are agreed, except in those cases in which the subject matter of the proceedings is beyond the control of the parties, in other words proceedings on the capacity of persons, filiation, annulment, separation and divorce, guardianship and custody of minors and maintenance claimed by a parent from the other on behalf of minors, opposition to administrative decisions adopted in relation to the protection of minors, and proceedings concerning the need for consent regarding adoption.

Certain presumptions laid down by law dispense the party benefiting from the presumption from providing proof of the presumed fact. In the case of such presumptions, evidence to the contrary is admitted unless expressly prohibited by law. Presumptions laid down by law include the joint ownership of property and money acquired by either or both spouses after marriage except where it can be proven that they belong privately to either one of the spouses, the presumption that spouses live together, and the presumption that a missing person was alive until the time when his death was declared.

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 facts which the parties allege in the writ of complaint and in the response must be proven, with the manner in which this is done depending on the circumstances of the case, bearing in mind all the evidence taken and its nature (for instance, a public document does not have the same value as a statement by one of the parties). The weighing-up of the evidence and the reasons why the judge reaches certain conclusions must be set down in the judgment. In addition to direct evidence, there is also indirect evidence, which means that once a fact has been admitted or fully proven, the court may presume that another fact is true provided that there is a precise and direct link between the two facts. The court must set down in the judgment the reasoning which led it from the proven fact to the presumed fact.

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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?

According to the dispositive principle which governs civil proceedings, the parties must propose to the court the evidence they intend to put forward during the proceedings. However, the judge may decide on his own motion that certain evidence can be taken only in the cases laid down by law. Thus during the preliminary hearing in ordinary civil proceedings, if the judge considers that the evidence proposed by the parties is insufficient to elucidate the disputed facts, he may state to the parties which fact could be affected by the insufficiency of the evidence, and also indicate what evidence the parties might propose.

In proceedings concerning the capacity of persons, filiation, marriage and minors, the judge may, regardless of the evidence that the parties or the Public Prosecution Service may request, take whatever evidence he considers necessary to decide the proceedings.

4.

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

In oral proceedings (claims up to €3 000), following the proposal and admission of evidence during the hearing, the judge proceeds to take evidence in the actual proceedings.

In ordinary proceedings (claims exceeding €3 000), following the admission of evidence in the preliminary hearing (in which procedural issues are also settled), a date is set for the proceedings and the taking of evidence is postponed until then. Witnesses that the party was unable to bring to court himself are summonsed, experts are summonsed when the parties wish to obtain clarification or explanations concerning the opinions expressed, and institutions holding documents that the parties were unable to enclose with the application and reply will be approached, provided that the parties have indicated the archives where these documents are located. Any evidence that does not need to be taken during the proceedings (such as visits to the scene of the events) is taken prior to them. In the event that the only evidence admitted in the preliminary hearing is documents, and they have not been challenged, or when an expert’s report is produced, and no party has asked for the presence of the expert in the preliminary hearing, the court will proceed to issue a decision following the preliminary hearing, without having to set a date for proceedings.

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The general rule is that evidence is taken by the same judge or court hearing the case, even when the witness does not reside in the district and must travel to the seat of the court on the day summonsed (however with the right to claim from the party who proposed him the corresponding compensation established by the court and without prejudice to the subsequent right of that party to claim it from the other party if he wins legal costs). Only in exceptional cases, for example because of the considerable distance involved, can judicial assistance be requested in order to receive the statement in the court of the place of residence of the witness. In this case a rogatory letter is addressed to the other court (at national level) or a mechanism set up by the rules on international judicial cooperation is used, depending on where the statement is to be received. In this last case, the parties must hand over in writing the questions to be asked. Video conferencing is being increasingly used, in which case the formulation of questions in advance is not necessary, and it is enough to request a video conference from the court in the place where this is to be carried out.

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

The court will never admit as evidence any activity which is prohibited by law or any evidence which is not relevant to the subject of the proceedings, or any evidence which according to reasonable and certain rules and criteria will not contribute to elucidating the disputed facts.

Any evidence not requested at the right time during the proceedings will also be rejected.

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5.

5.a) What different means of proof are there?

The means of proof that may be used in proceedings are: examination of the parties, public documents, private documents, expert testimony, judicial examination, witness testimony and means of reproduction of words, sounds and images, as well as instruments that permit the storage, retrieval and reproduction of words, figures, data and mathematical operations carried out for accounting purposes or other purposes that are relevant to the proceedings.

5.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?

If one of the parties wishes to make use of expert testimony, the expert opinion on which his claims are based must be submitted with the application or reply, except where this is not possible, in which case he must indicate the opinions of the experts he intends to use. He must produce them as soon as they are available, and in any case before the preliminary hearing starts in ordinary proceedings, or before the hearing in oral proceedings. Notwithstanding this, the parties may ask that a court expert be appointed when submitting the application or reply, in which case the opinion is issued subsequently (usually in the period between the preliminary hearing and the proceedings, but sufficiently in advance so that the parties can study it before the hearing).

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No mention of witnesses need be made in the application or reply since in oral proceedings, each party must appear on the date indicated for the hearing with the persons who are to testify in the proceedings. The parties must ask the court to summons to the proceedings the witnesses they were unable to bring themselves, ordering them to appear within three days following receipt of the summons. In ordinary proceedings, the witnesses who will make a statement on the day of the hearing are identified at the preliminary hearing, when in addition to procedural issues, the disputed facts of the case are determined and the evidence relating to them proposed and admitted. (An exception to this process is the legal requirement of identifying in the application any witnesses whom the plaintiff wishes to be heard during oral proceedings aimed at obtaining possession of assets for heirs in the case of assets not in the possession of anyone in the capacity of owner or usufructuary.)

Witness testimony is always oral and is taken on the day of the proceedings (as are the clarifications deemed necessary to be requested of experts). There is one exception to this rule of hearing witnesses: when it is necessary for corporate persons or public entities to provide information on the material facts of the proceedings, but it is not necessary to hear natural persons individually. In this case, instead of an oral statement, a list of questions which the parties wish to have answered and which the judge deems pertinent is submitted to the entity.

Expert opinions are always given in writing. After having read them, the parties decide whether or not it is necessary for the expert to come to the proceedings to provide any clarification or explanations that might be necessary.

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5.c) Are certain methods of proof stronger than others?

Yes. Public documents provide full proof of the fact, act or state of affairs they are describing, as well as the date on which the documentation was produced and the identity of the notaries and persons involved in producing it. If the authenticity of a public document is challenged, it is verified and compared with the original, wherever it is. Notwithstanding this, the following provide full legal proof without any need to verify or compare, except where there is evidence to the contrary or a comparison of handwriting, where possible: old public documents which do not have a notary’s protocol and any public document for which the original is missing or for which there is no register for the purpose of checking or comparing.

Private documents also provide full proof in proceedings when they are not challenged by the party for whom they are prejudicial. If a private document is challenged, the party who produced it can ask for a comparison of handwriting or any other means of proof that would prove its authenticity. If it is not possible to prove the authenticity of the private document, it will be assessed in accordance with the rules of sound criticism, which are also followed when assessing the rest of the evidence being taken. If, following a challenge, it turns out that the document is authentic, the party who challenged it may even be ordered to pay not only the costs involved, but also a fine.

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

There is no rule in principle indicating which methods of proof must be used to prove certain facts, but it is logical that, for instance, in the case of a claim for an amount of money arising from commercial relations between the parties, the existence or payment of the debt will basically be determined by means of documentary evidence.

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6. Are witnesses obliged by Spanish law to testify?

Witnesses who are summonsed are obliged to appear at the proceedings or hearing indicated. Should they fail to do so, they may be liable for a fine of €180 to €600, subject to a five-day period during which they can be heard. If the witness does not appear when summonsed for the second time, the sanction is no longer simply a fine: the witness is then in contempt of court, something which witnesses are warned about at the outset.

Moreover, witnesses are obliged to reply to the questions put by the parties which have been previously admitted by the court. This general principle does not apply to witnesses who, because of their status or profession, have a duty to keep secret the facts about which they are being questioned, in which case they must state this, giving reasons, and the court, taking into account the grounds for the refusal to reply, will decide what should happen as regards their examination, and may release them from the obligation of replying. If the witness is released from replying, this must be recorded.

If it is alleged by the witness that the facts on which he is being questioned form relate to a matter that has been legally declared or classified as confidential, the court will, in the cases in which it considers this necessary in the interests of administering justice, ask the competent body on its own motion for an official document confirming this. Once the court has checked that the allegation of confidentiality is correct, it will order that this document be placed in the records, with a record of the questions covered by official secrecy.

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Moreover, before his statement the witness must be questioned by the court regarding his personal circumstances (family ties or friendship with or enmity towards the parties, personal interest in the matter, etc.), and in the light of his answers, the parties may make comments to the court on his impartiality.

7. Are there persons from whom evidence cannot be obtained?

Anyone may be a witness, except for those permanently deprived of reason or of the use of their senses (sight, hearing, etc.) with respect to facts which they could only know about by using these senses.

Minors under the age of fourteen may act as witnesses if, in the opinion of the court, they have the necessary level of maturity to know and to speak the truth.

Under Spanish law, the classical concept of witness refers to a natural person, but this does not prevent legal representatives of corporate persons from appearing as witnesses to provide information on facts with which they are familiar because of their positions. In the case of corporate persons and public entities, the possibility of informing the court in writing is expressly envisaged, as already mentioned.

8. What is the role of the judge and the parties in the hearing of a witness?

The questions that have been admitted by the court are put directly by the parties’ lawyers, starting with the party who proposed the witness. Once the questions put by the lawyer of the party who proposed the testimony have been answered, the lawyers of any of the other parties can ask the witness any new questions they consider useful to clarify the facts. The judge may also question the witness to obtain clarifications and additional information.

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On its own motion or at the request of any of the parties, the court may allow a witness who has made a statement that seriously contradicts that of another witness or of any of the parties previously examined to be confronted with that witness or party.

9. What is the value of witnesses’ statements in terms of evidence?

This is a matter that must be decided by the judge, who will assess the witness’ statement in line with experience, logic, the grounds which the witness provided in support of his statements, the personal circumstances of the witness, his relationship with the parties and his potential interest in the matter.

10. Can corporate persons or entities without legal personality be examined?

Yes, through their legal representatives or the person who acted on their behalf in the disputed facts of the proceedings.

In the case of the Central Government, the Autonomous Communities, local authorities and other public bodies, the possibility of replying to questions in writing is expressly envisaged.

11. How are witnesses examined?

The witness must answer orally and directly to the lawyer of the party who asked for this evidence all the questions declared relevant by the judge. Afterwards the lawyers of the other parties may question the witness, with the lawyer of the deponent questioning him last. The judge may also question the witness with a view to obtaining clarification and additional information.

12. What is the value of statements made by the plaintiff and the defendant?

Unless they turn out to contradict the facts confirmed by other means of evidence, the facts recognised by a party which prejudice his interest will be regarded as true, if he was personally involved in them. The same occurs if a party summonsed to give a statement does not appear or if, having appeared, refuses to give a statement or gives evasive answers. In addition, any party who does not appear is liable to a fine of between €180 and €600.

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13. How are the testimonies and replies by the parties during the examination documented?

Oral statements during hearings and appearances are recorded on a suitable medium that can record and reproduce sound and image. The recording is carried out under the authority of the Court Clerk, who is responsible for the custody of the tapes, disks or devices on which the recording is made. In addition, the Court Clerk drafts a succinct report limited to setting down, together with the details of time and place, the petitions and proposals of the parties and the decisions adopted by the court, as well as the circumstances and incidents that could not be recorded on the medium.

Statements may also be made by video conference provided that the witness who is not appearing before the court gives his statement to the Court Clerk of the court in the place where he is giving evidence.

14. Does evidence obtained illegally have any value?

An activity prohibited by law can never be admitted as evidence. Moreover, evidence obtained directly or indirectly by violating fundamental rights or freedoms has no effect. Such evidence will therefore be ignored by the court when deciding the case.

If one of the parties believes that fundamental rights were infringed in obtaining or discovering any evidence that has been admitted, he must state this immediately, notifying the other parties where appropriate. The judge will immediately decide on the legality of this evidence.

If the judge himself believes that a fundamental right has been infringed when obtaining evidence, he will dismiss the evidence ex officio.

This matter, which may also be raised on its own motion by the court, will be settled in the proceedings or, in the case of oral proceedings, at the beginning of the hearing, before starting to take the evidence.

15. Can evidence be taken before the proceedings?

This is expressly envisaged when there is a justified fear that the evidence cannot be taken during the proceedings (for instance because a witness or party is seriously ill, travelling abroad, etc.). In this case, any of the parties can ask the court to take the evidence early, and if the court accepts the request, the evidence is taken in the presence of the parties.

Precautionary measures may also be requested from the judge (preservation of property, for instance) to prevent the destruction or deterioration of material objects or of the state of affairs which must later be used for taking evidence.

16. Where can I obtain further information on legal proceedings?

On the website of the General Council of the Judiciary español

On the website of the Ministry of Justice

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

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Last update: 15-06-2006

 
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