9.4 Certainty is not Achieved

The judge is tasked with shaping the procedure in such a way that the interest of finding the truth is addressed to the fullest extent, as this enables the judge to establish the facts as fully and correctly as possible and because it contributes to the procedural interest of finding the truth. As said before, however, this does not guarantee that the facts as established by the judge indeed reflect the true nature of events. Some measure of uncertainty will always remain.

The proposed standard for evaluation — civil judges regard a fact as proven when the available evidence can reasonably result in the conclusion that the fact occurred, and the available evidence cannot reasonably lead to the conclusion that what the other party states with regards to that same fact occurred, and no evidence is missing which can reasonably be expected to be available — already reflects that uncertainty remains. Even when the available evidence only marginally supports the fact in question over the position of the opposition (and no evidence that can reasonably be expected is missing), the judge is obliged to consider the fact in question as proven. This indicates a wide margin of uncertainty in judicial findings of fact.

However, it should be considered that this margin of uncertainty is not significantly larger than it would be when, as is the case in the vast majority of cases, the judge neglects a real decision on the evidence. Finding facts without considering evidence results in even more uncertainty with regards to the established facts. Whether or not the common method of 'insufficiently claimed' or 'claimed and insufficiently contradicted' offers a sound foundation for deciding on the correctness and completeness of facts is doubtful at best. With this argumentative method for establishing fact, judges really are mainly concerned with gauging the quality of work delivered by counsel. Finding the truth takes a back seat.

Various reasons can be given for the uncertainty involved in judicial evidentiary decisions.

Firstly, a certain measure of uncertainty is inherent in all such decisions. Not only in the case of judicial evidentiary decisions, but in other decisions concerning evidence as well, due to the inductive nature of evidentiary reasoning and the specific properties of that reasoning.

Secondly, judicial evidentiary decisions especially often involve doubtful evidence. The facts in the procedure are almost always 'lost facts', which immediately presents problems for supplying evidence. Offering evidence for particular facts can be difficult in other ways as well, for example proving whether or not a verbal agreement exists. Furthermore, even judges who take an active role and who direct the process of finding out the truth to a certain extent are dependent on parties. If a party remains silent or destroys evidence, there is little a judge can do about it. In addition, few guarantees exist for the quality of evidence offered in legal procedures. Coming to an evidence-based decision on the facts is therefore no easy task for judges. One clear example are witness statements, as the judge has no way of establishing whether or not these are truthful. Judges can do no more than try to estimate how truthful statements are. Certainty is not achievable here either.

Thirdly, the fact that finding the truth is embedded in the procedure carries its own set of problems. For example, the whole process will have to be resolved in a limited timeframe, as a decision has to be made. That obligation does not disappear when the judge fails to establish the facts because not enough evidence exists. The remaining uncertainty with regards to the facts works to the disadvantage of the party with the burden of proof in those cases.

Fourthly and lastly, deciding on the evidence is the final act of finding the truth and is therefore definitive: adjusting and fine-tuning hypotheses, as is done in other fields where facts are researched, is impossible, For finding out the truth, this means that no options exist to reduce the margin of uncertainty in evidentiary decisions over time, or to strengthen the foundation of evidentiary decisions.All these factors contribute to the uncertainty involved in establishing facts in a procedure. A certain level of uncertainty in establishing facts is therefore unavoidable. The far-reaching nature of a judicial decision — not only for parties involved, but in a wider sense as well — does require the judge to use all available options for finding out the truth and to remove uncertainty as much as possible. Procedural limits that judges are confronted with should not be regarded as an inherent flaw, but rather as an opportunity to ask oneself how the interest of finding out the truth can be served to the funest extent possible.