Evidence thwarting
Evidence is thwarted if the party to a process culpably prevents or makes it more difficult to raise evidence about a factual circumstance. This can be done, for example, by destroying or redesigning an item to be examined in the process - for example, removing the defect in an allegedly defective structure - or by not giving the name and address of an accident witness. The fault is not aimed at the destruction or reorganization of the evidence , but at the thwarting of the evidence function.
Thwarting evidence in the German civil process
In civil proceedings , a distinction must be made between the burden of presentation and the burden of proof .
Evidence thwarted by the party liable to provide evidence
If the person liable for evidence has prevented the evidence, then nothing changes. This is the consequence of the principle of submission that dominates German civil proceedings. Afterwards everyone has to present and, if necessary, prove the circumstances that are favorable for him. If he is unable to do this, he remains subject to the obligation to provide evidence and, if necessary, is subject. Of course, it is irrelevant here whether he has brought this about himself or not.
Evidence thwarting by the person not subject to evidence
The situation is different if the person not burdened with evidence prevented the possibility of providing evidence. The legislature has indeed seen the problem - for example, Section 444 of the Code of Civil Procedure (ZPO) contains a regulation for withholding documents - but has not made a uniform regulation.
The case law has meanwhile developed general principles for preventing evidence from the individual regulations in the ZPO and in good faith . According to this, evidence is thwarted if a party culpably makes it difficult or impossible for its opponent who is required to provide evidence to provide evidence. The jurisprudence then grants, within the framework of its free assessment of evidence ( § 286 ZPO), easing of the burden of proof up to a reversal of the burden of proof . It rates the facilitation of evidence according to the extent to which the opposing party can be expected to provide evidence , taking into account the degree of fault of the thwarting party. This can lead to a lightening of the burden of proof , to the acceptance of prima facie evidence or, in serious cases, to the reversal of the burden of proof already mentioned.
If the evidence was made more difficult by a party without a breach of duty due to circumstances that are solely in their area, in individual cases it may still violate good faith ( § 242 BGB ) to invoke the burden of proof favorable to them. For example, if an insurance company microfilmed their existing documents and then destroyed them, making it impossible for the opposing party to prove that the signature on an insurance contract is genuine.
According to the case law, there is no obstruction of evidence if someone refuses to consent to the use of unlawfully obtained evidence, and this acquisition of evidence was only possible through a violation of the fundamental right to informational self-determination . This is the case, for example, in the cases of secret paternity tests.
Thwarting evidence in criminal proceedings
Before the criminal courts, the burden of proof lies with the prosecution . A thwarting of evidence by the public prosecutor or the police always leads to the fact that the defendant is likely to be in the more favorable circumstances, regardless of the fault of the police or the public prosecutor's office. Such a case can arise, for example, if witnesses are not named for reasons of tactical investigations .
In criminal who has accused a right to remain silent . He is not obliged to prove incriminating circumstances or to facilitate the corresponding evidence. The accused may not be accused of exercising this right, in this respect there is no room for the principles of preventing evidence that apply in civil proceedings. However, the principle of free assessment of evidence also applies in criminal proceedings . The criminal judge is therefore allowed to draw his or her own conclusions from proven fraudulent acts. He may take proven fraudulent acts as so-called connecting facts in order to infer the guilt of the accused.
If evidence is destroyed by a third party (e.g. acquaintances), the criminal offense may be attempted or completed criminal obstruction or even favoring . However, the possibly existing rights of these third parties to refuse to testify must also be observed - for example, the relatives' right to refuse to testify under Section 52 of the Code of Criminal Procedure . In individual cases, in accordance with the principle of in dubio pro reo , the court must base the accused on favorable circumstances, for example if foreign authorities withhold evidence for reasons of national security .
Evidence thwarting in the administrative process
In the management process , the parties are obliged to cooperate. The court can therefore draw conclusions from evidence that has not been presented or from obstacles to the presentation of evidence in the context of the assessment of evidence.
Of particular importance in the administrative process is the refusal of permission to testify by civil servants and other members of the public service ( Section 376 ZPO). The authorities have the presence of the reasons for a statement permission grant this, a court is not verifiable discretion is not so far. Authorization to testify as a witness may only be refused if the testimony would be detrimental to the welfare of the federal government or a German state or would seriously jeopardize or make the performance of public tasks more difficult. (Section 68 of the Federal Civil Service Act; Section 37, Paragraphs 4, 5 of the Civil Service Status Act). If permission to give evidence is not granted, the court can take this into account in favor of the person who is in need of evidence .
Individual evidence
- ↑ BGH, judgment of November 23, 2005 - VIII ZR 43/05, NJW 2006, 434 (436)
- ↑ BGH NJW 2002, 825 (827); BGH NJW 2004, 222
- ↑ BGH, judgment of June 21, 2000 - IV ZR 157/99, NJW-RR 2000, 1471
- ↑ BGH, judgment of January 12, 2005 - XII ZR 227/03, NJW 2005, 497
literature
- Tobias Krautstrunk: Evidence thwarting de amissione instrumentorum up to the violation of procedural duties to cooperate , Hamburg 2005, ISBN 3-8300-1734-0
Web links
Web links to BGH decisions
