What are the Rules of Evidence in Germany?

In a German civil lawsuit, a relevant fact must be proven by the claimant, or more precisely by the party bearing the burden of proof, if the defendant disputes the alleged fact to be true. For details on who bears the burden of proof and what needs to be done to convince the court see the post: Standard of Proof in German Civil Litigation.

Types of Evidence admissible in German Civil Courts

In sections 355 to 370, the German Code of Civil Procedure (Zivilprozessordnung, ZPO) lays out some general rules on how a German civil court takes evidence. The court (be it a single judge or a judiciary panel (see here: GERMAN COURT SYSTEM) determines:

  1. which alleged facts are still remaining in dispute after the parties have exchanged their briefs (“verbleibende streitige Tatsachen”, also called “Streitstand”);
  2. who must produce the evidence on these disputed facts; and 
  3. how much time is this party granted to submit sufficient evidence. 

With regard to all this, the German civil court issues a so called Beweisbeschluss, i.e. a court order on the concrete evidence to be taken, section 358 German Code on Civil Procedure. The content of this Beweisbeschluss can, for instance, be an order to hear a witness or the decision by the court to instruct an independent expert (Sachverständiger) to provide the court with an expert opinion (Sachverständigengutachten).

How is Evidence taken in Practice?

The German Code on Civil Procedure lists these specific types of evidence:

(1) Augenschein, i.e. visual inspection by the judge(s) according to section 371 ZPO.

This can be the inspection of certain documents or real objects. Sometimes, on rare occasions, the judge may even leave the courtroom and visit a certain location which is relevant for the lawsuit, for instance a construction site to inspect the condition of a building or a plant. However, in real live, this is in most cases delegated by the court to experts who then provide a written report (see below).

(2) Zeugenbeweis, i.e. the hearing of witnesses by the judge(s) according to section 373 ZPO.

If you are a litigation lawyer coming from the U.S. legal system, you need to bear in mind that the method of hearing a witness under German civil procedure rules is entirely different. In a German court room, there is no examination, much less a cross-examination of the witness by the parties directly. Instead, the judge asks the witness the questions which the court deems relevant. Also, under German civil litigation rules, a witness shall not be bombarded with dozens of very specific questions. Instead, the witness is asked, rather generically, what he or she can remember about the incident in question. After the witness has told his or her story, ideally without being interrupted, the judge will ask follow up questions. 

Only at the very end of the witness hearing, both parties’ lawyers are permitted to ask additional questions if they think the judge has not covered certain relevant aspects. First, the party’s legal counsel (Rechtsanwalt) who has named that specific witness may ask questions, then it is the other party’s counsel’s turn. If a lawyer gets too aggressive, attempts to pressure the witness into making certain statements or asks leading or redundant questions, the judge will most likely step in and end the witness hearing.

Another significant difference between U.S. rules of taking evidence and the German approach of hearing a witness is that under German civil procedure rules, a witness is not automatically asked to swear an oath at the beginning of his or her testimony. While German civil courts can demand the witness to swear such an oath (section 478 ZPO), in practice this is rarely done. However, making false statements in a court hearing is a criminal offense under German law even if the witness is not sworn in. Also, a witness who gives a false statement in court to help one of the parties is personally liable for damages if the other party loses the case and it later comes out that the witness had actually lied.

(3) Beweis durch Sachverständige, i.e. evidence provided by expert witnesses according to section 402 ZPO.

Such expert is selected and appointed by the court, but the parties may make suggestions or may object to the appointment of certain experts if they can demonstrate that a specific expert may be biased (section 406 ZPO). Depending on what the case is about, the expert will then either produce a written expert opinion (Gutachten) and/or will be heard in court as an expert witness. The parties may challenge the expert report if it is flawed, e.g. if they can demonstrate that it does not live up to scientific standards. 

(4) Urkundenbeweis, i.e. evidence by providing public records, deeds or other documents according to section 415 ZPO.

The Code of Civil Procedure contains very specific rules on when, how and by whom documents must be submitted, how the court determines whether the documents are genuine and whether the content of the document must be regarded as binding evidence or whether it can be challenged.

(5) Beweis durch Parteivernehmung, i.e. taking evidence by hearing a party directly according to section 445 ZPO.

Since the parties to a lawsuit are obviously biased, this approach is only taken as a means of last resort, i.e. if there are no other ways to prove a certain fact. Then, a German civil court judge has the opportunity to hear the parties themselves with regard to an alleged fact. The details are complicated and the judge must always bear in mind that a party may be untruthful. More on this in the post: A German Claimant can’t be his or her own witness

Post-Evidence Oral Hearing

After all relevant evidence has been taken, the court then discusses the results with the parties in an oral hearing (section 285 ZPO) and will in most cases ask the parties whether they are, in the light of the results of the evidence stage of the lawsuit, now willing to discuss a settlement agreement (for details see post “How to settle a Lawsuit in Germany”). 

If such settlement discussions fail, the court will adjourn, may grant the parties another few weeks to submit a written statement (Schriftsatzfrist) and then hand down a judgement. While the court does set a specific calendar date for the pronouncement of a decision, the so called Verkündungstermin, the actual judgment is simply sent to the parties’ lawyers by mail, i.e. nobody physically shows up for the “Urteilsverkündung” and the judgement is thus not actually read out aloud in court. If you (or your client) must absolutely know on that same day, you can either collect a copy of the judgment at the courthouse or ask the clerk to fax or email the ruling to you.

More information on litigation and legal fees in Germany is available in these posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

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