9.2 An Active Judge

The principle of finding the truth requires an active judge. Civil judges are not passive and constantly ensure that the importance of finding the truth is placed front and centre in the procedure. This makes the judge responsible for a proper finding of the facts: judges are required to apply procedural law in such a way that fact-finding is done as completely and fully as possible.

The comparitie na antwoord, as the hearing is known in Dutch civil procedure, is an important tool for the judge in that regard. Judges not only listen to parties, but ask their own follow-up questions as well. The judge investigates whether the claim put forth by the plaintiff fits the goal they are trying to achieve with the procedure. The judge verifies which facts parties agree on and which are disputed. The judge only assumes certain facts are true when both parties obviously agree on them. Finding of fact merely because they are 'not disputed' is more than just mechanically crossing off items on a list.

An active judge ensures that parties cannot get away with half truths or full lies. The obligation of truth as set out in article 21 Rv (Dutch Code of Civil Procedure) requires parties to present the facts and their accompanying information or data completely and honestly. When either party takes up an unclear or incredible position, or neglects to present documents, the onus is on the judge to ask for clarification or to order that those documents are entered into the procedure. This is all the more true when the opposing party is aware that facts or data are being withheld from the procedure.

An active judge also tries to bring the narrative to light, which is often buried underneath the paperwork, so that an understanding can be formed of what is really at stake for parties. The judge investigates uncertainties or holes in the stortes told by parties. If necessary, the judge takes the initiative to acquire more factual information from parties, so that their material legal positions can be properly addressed. This means that, if necessary, judges can supplement the facts.

That judges must take an active role in finding the truth also means that judges need to make room for finding the truth in a procedure. Judges should strive to rise above the mere argumentative finding of fact ('insufficiently claimed' or 'claimed and insufficiently contradicted') and really involve themselves in factfinding This requires that the judge talk to parties, as that reduces the risk of important facts falling by the wayside, that incorrect facts are assumed to be true, or that the judge misunderstands the nature of the dispute between parties.

Furthermore, judges should provide ample opportunity to present evidence. Not merely when either party asks for it, but at their own initiative as well. When facts are unclear or disputed, judges need to ensure that additional evidence such as witness statements, clarifying documentation or expert testimony is presented. Even verbal clarification from one of the parties can be enough to make the facts clean Judges have a leading role here: they should invite parties to participate in finding the truth and ensure that fact-finding is done as completely and correctly as possible. Because even thoughpresenting facts is mostly on parties, finding those facts is the obligation of judges, which is why the judge is responsible for finding of fact. The law offers them a broad range of instruments to that end, so judges have all they need to acquit themselves of their responsibility.

The judge ensuring that the procedure offers enough scope for finding the truth implies that when deciding on various procedural aspects — whether or not to allow pleas, whether or not to hear witnesses, whether or not to ask for a piece of evidence — more weight is given to finding the truth than to other interests involved in the case. Finding the truth is an important interest and should therefore prevail over others, especially that of a speedy procedure. A ruling which is based on thorough fact-finding is to be preferred over a speedy ruling in which the facts remain murky or even are incorrect.