9.1 Truth as a Point of Reference for the Judge

Finding the truth is such an important part of a procedure that it can be regarded as one of the principles of procedural law. A proper judicial ruling requires that the judge applies the correct legal rules, but a sound assessment of the facts is the issue all else hinges on. Facts are the foundation for a judicial ruling and such a foundation cannot be allowed to contain flaws or errors. Improper assessment of the facts removes one of the essential premises for a just judicial ruling and diminishes the legitimacy of such a ruling, which is reduced to no more than a hypothetical judgement on a case, based not on facts but on fiction. Administration of justice should be based on reality as that is what lends authority to a judicial ruling. This makes finding the truth or rather: finding the material truth a core value or principle of civil procedural law.

The above constitutes the unifying theme of this dissertation: the overwhelming importance of finding the truth in a procedure. Gathering facts as thoroughly and correctly as possible is one of the primary tasks of a judge.

The phrase 'as possible' implies that full and correct finding of fact will not always be possible. To put it more plainly: a certain degree of uncertainty is inherent in the gathering of facts in a procedure. This does not mean that finding the truth is impossible and should be abandoned as a goal, but rather that achieving certainty is impossible. The truth is a point of reference for the judge, a goal towards which they should strive while investigating the facts. That this truth is not absolute and may be impossible to find does not diminish that. Abandoning the truth as a beacon for a judge would make factfinding — and with it the administration of justice — into an arbitrary matter. Without the truth as a point of reference, without a substantial goal, the procedure would exist merely for procedure' s sake.

The importance of finding the truth transcends mere achievement of a result. The procedure of finding that truth is important as well, because it gives parties an opportunity to participate. As Article 6 ECRM states, finding the truth in a procedure must always occur with and by parties. Parties can only become an integral part of the process when they are heard and given the opportunity to offer up evidence. This is the procedural side of finding the truth.

Finding the truth is the guiding principle of procedures for appellate judges as well, which implies that denying parties the chance to offer up new positions or new data on appeal is anathema. An appeal should offer a full resit and appellate judges must ensure that the facts are presented as completely and correctly as pos sible. 'Funnelling' the procedure reduces its ability to find the truth.

The importance of finding the truth is expressed outside of evidential procedures as well. Procedures which do not involve proof because parties do not offer up evidence — which is the case in the vast majority of procedures —, also require that the judge strives to ascertain the facts as correctly and fully as possible. Only active judges can perform that task competently.