9.5 Judicial Fact-Finding in Theses

Selecting relevant facts cannot be regarded separately from the judicial decision at hand and the choices that the judge makes to reach it (Paragraph 1.4 and 1.6).

Selecting relevant facts and establishing facts are both part of the process of judicial construction (Paragraph 1.7).

The way the judge establishes facts is based on spurious evidentiary decisions in the vast majority of cases: the judge establishes facts bases on an analysis of the theses and evidence presented by parties, without regard for the true nature of the evidence in itself (Paragraph 1.5).

From the perspective of finding out the truth, it would be preferable if the judge first decides on the evidence and finds on the facts only after evidence has been presented (Paragraph 4.5.2).

The obligation towards truth not only relates to presenting the facts as completely and truthfully as possible, but also to present the data supporting the posited facts as completely as possible (Paragraph 2.4.1).

Finding the truth should be regarded as one of the principles of civil procedural law (Paragraph 2.6).

The principle of finding the truth not only serves the results, but the process of finding the truth as well. This gives this principle a material and a procedural aspect (Paragraph 2.5).

Civil law is not 'merely' concerned with formal truth, as the civil judge strives to achieve material truth as well (Paragraph 2.7).

The procedure would lose direction if finding the truth is seen as merely procedural (Paragraph 4.2).

The obligation towards truth not only requires parties to present the facts truthfully, but also as completely as possible (Paragraph 3.4).

The obligation towards truth prohibits parties from presenting facts as they see fit (Paragraph 3.4).

The obligation towards truth does not mean that parties cannot give their own view of the facts, but it does prohibit them from present untruths or from withholding relevant facts. Therefore, the obligation towards truth relates primarily to integrity and precision (Paragraph 3.5).

The most important consequence of the fact that finding the truth in a judicial setting is embedded in procedure, is that the search for truth should always result in a judicial decision, which gives the search for truth within a procedure a definitive and singular nature (Paragraph 4.3).

Pre-procedural acts, such as a preliminary witness interview or expert testimony, serve the interest of finding the truth (Paragraph 4.4).

Procedural autonomy for parties primarily means that parties have freedom to choose whether or not to sue and freedom to choose whom to sue; freedoms which exist primarily for plaintiffs rather than defendants (Paragraph 3.2).

Another aspect of party autonomy is that parties can formulate the dispute, in which the framework for finding the truth is determined (Paragraph 3.2).

Party autonomy largely loses meaning from the moment parties enter the procedure, except for the freedom parties have to end a procedure; party autonomy has no effect within a procedure (Paragraph 3.4).

The rule that judges must assume that an undisputed fact is true should only be used when both parties agree on that fact. If necessary, judges should investigate whether or not this is the case (Paragraph 3.4).

That judges must regard an undisputed fact as true is largely a practical issue and does not diminish the importance of finding the truth (Paragraph 3.4).

Judge should not regard facts presented by parties are true when they are suspected to be false (Paragraph 3.7).

Judges should have more powers to involve third parties in a procedure when the interest of finding the truth requires it (Paragraph 3.3).

The judge is charged with ensuring, within the boundaries of the dispute as defined by parties, that the material legal position of parties and the interest of finding the truth are both served so that an acceptable decision can be found (Paragraph 3.7 and 3.8).

The judge must find the story underneath the statements of parties to ascertain the meaning of the facts they present. Judges should only formulate their own view on events after investigating the stortes as told by parties, as a prelude for the decision they have to take (Paragraph 3.6 and 3.7).

The investigative powers assigned to judges for the benefit of finding the truth, presuppose that the judge has the freedom to complement the facts as stated by parties if necessary (Paragraph 3.7).

When parties fail to present facts or data relevant to the decision, it is the responsibility of the judge to investigate further to ensure that the final decision is made on a complete and correct factual basis (Paragraph 3.7).

Judges should themselves complement the legal facts if necessary to do justice to the material legal positions of parties, provided parties had an opportunity to present their view on those facts and also provided that parties do not both object (Paragraph 3.8).

Judges should more often order a witness examination (Paragraph 4.6).

Judges should compensate for inequality not only in administrative procedural law, but in civil procedural law as well (Paragraph 3.8).

When awarding the costs for a procedure, judges should be more aware of the methods used by parties in that procedure, such as unnecessary appeals, failing to tell the truth or unnecessary delays in presenting data (Paragraph 4.5 and 4.6).

Judges should not strictly adhere to the funnel-shaped process of finding the truth in a procedure (Paragraph 4.5).

When new information of data reveal themselves after the hearing, judges should give parties an opportunity to respond and reply (Paragraph 4.5.2).

Even facts that are presented late in the procedure should be involved in the decision if they are important to finding the truth (Paragraph 4.6).

In principle, appeals should always involve a verbal hearing (Paragraph 2.4.6).

Limiting the resit value of appeals does not benefit finding the truth (Paragraph 4.5.2)

The importance of finding the truth in principle outweighs the interest of a speedy procedure (Paragraph 4.6).

A separate procedure should be created enabling judges to investigate whether or not an appeal based on the confidentiality of information is justified (Paragraph 4.7.2 and 4.7.5).

Judges need to be more aware of data missing from the case and, when asked to or on their own accord, order parties to enter missing data into the procedure (Paragraph 4.7.4).

A disclosure system is unnecessary when judges make broader use of the existing options to gather all relevant data from (third) parties (Paragraph 4.7.4).

An absolute functional right of non-disclosure is at odds with the interest of finding the truth (Paragraph 4.7.7 and 4.7.8).

The interest of finding the truth does not demand that judges use illegally obtained evidence (Paragraph 4.8).

Methods for providing legal evidence are not fundamentally different from providing evidence in other disciplines (Paragraph 5.2).

All decisions on evidence, including those made by a judge, are inherently uncertain (Paragraph 5.3).

A quantified judicial standard for assessing evidence is impossible (Paragraph 5.5).

Judges can come to a sound decision on evidence based on the benchmarks relevance, quality, scope of the evidence, and alternative hypothesis (Paragraph 5.6).

The following standard for assessing evidence can be used by judges:

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 (Paragraph 5.6.5).

Judges may not positively find on the evidence when evidence that can reasonably be expected to be present is missing (Paragraph 5.6.5).

A party is successful in supplying evidence to the contrary when the evidence can be used to support both parties' explanation regarding a fact (Paragraph 5.6.5).

A separate standard for credible facts is unnecessary (Paragraph 5.7).

Judges should not regard the rules for dividing the burden of proof as immutable. Both the weighted obligation to provide evidence and a legal or jurisprudence-based presumption of fact offer instruments to address the interest of finding the truth by supporting a party that lacks evidence through no fault of its own (Paragraph 5.8).

Judicial opinion does not offer a usable standard to evaluate witness testimony (Paragraph 6.3).

Judges should approach witness testimony with caution (Paragraph 6.4).

Judges should always ask witnesses about how they became involved in the procedure and note their answers in the records (Paragraph 6.5).

Furthermore, judges should always ask witnesses to explain where their knowledge regarding the factum probandum comes from (Paragraph 6.6.1).

Judges should not be too quick to regard witness statements or questions counsel asks the witness as irrelevant to the factum probandum (Paragraph 6.6.1).

Judges should always ask clarifying questions when the witness statement leaves inconsistencies, gaps, or obscurities (Paragraph 6.6.2 and 6.6.4).

The records of a witness examination must precisely as possible list the answers of the witness to questions posed by the judge and counsel, rather than be a summary of the witness statement. The questions asked must be recorded as well (Paragraph 6.6.2).

Judges should be assisted by an experienced registrar when hearing witnesses (Paragraph 6.6.2).

Judges should be careful in drawing conclusions based on a lack of narrative coherence in a witness statement (Paragraph 6.6.4).

When the records of a witness statement accurately reflect what the witness said as well as everything notable that occurred during the hearing, there is no reason to apply the provisions of article 155 Rv to the witness testimony (Paragraph 6.6.5).

A judge can ascertain how truthful witness testimony based on the criteria of relevance, consistency, quality, and coherence (Paragraph 6.7).

Judges are free in assigning probative value to evidence and there is no reason to make an exception for witness testimony supplied by either party here (Paragraph 6.8).

Decisions regarding the weighing of witness testimony should be made by a full court (Paragraph 6.9).

From an epistemological standpoint witness and expert testimony are not fundamentally different (Paragraph 7.2).

Witness and expert testimony are not fundamentally different from a procedural standpoint either (Paragraph 7.3).

No justification can be found for the different ways in which judges approach a request for expert testimony and a request for witness testimony (Paragraph 7.4).

Judges should not be completely free in deciding whether or not to acquire expert testimony, the way they are now (Paragraph 7.4).

In principle, the judge should endeavour to gather expert testimony when establishing facts relevant to the decision requires specialist knowledge, except when the judge can gather that knowledge via another method (Paragraph 7.5).

Judges should not require parties to supply their own expert testimony as a precondition for the judge gathering expert testimony themselves (Paragraph 7.5).

Judges should not apply their own specialist knowledge (Paragraph 7.5).

When parties agree on what expert to call on, the judge should call on that expert (Paragraph 7.7.1).

Requiring a disclosure statement from experts gives parties and judges more options to ascertain the independence and expertise of the expert witness (Paragraph 7.7.1 and 7.7.2).

It may be necessary to involve the expert in formulating questions for the hearing to improve their quality (Paragraph 7.8).

In principle, judges can assume the soundness of expert testimony when it meets the criteria of relevance, quality, consistency, and coherence (Paragraph 7.9).

In some cases the judge will have to examine the experts' methods as well (Paragraph 7.10).