The Dutch Code of Civil Proceedings contains, apart from the basic rules on how the proceedings are conducted, the rules on civil evidence (including the rules on how evidence should be assessed and how evidence should be obtained). The rules of evidence in the Code of Civil Proceedings apply (as a basic rule) to all civil proceedings (either proceedings that start with a writ of summons – as most normal claims – or request (petition) proceedings. To some specific civil law proceedings, the nature of the matter prevents the applicability of the rules of evidence. This is, for instance, in summary proceedings (in which proceedings the President of the court will only give a provisional judgment, that is not binding on the merits), and the second phase of the enquiry proceedings before the Enterprise Chamber of the Court of Appeal in Amsterdam. The rules of evidence do not apply in arbitration proceedings.
As a basic rule, all evidence can be used as such. There are no restrictions: tape recordings, de-autidu witness hearings, or forensic reports can all be used as evidence. Even evidence that was stolen, or that was otherwise acquired wrongfully, is in most cases (not always) allowed as evidence (notwithstanding the fact that the way the evidence was acquired, may result in a criminal offense). Parties to civil proceedings are held to provide all relevant facts and name all relevant evidence. In practice, however, this rule (that was introduced in 2002) is not always strictly enforced.
In Dutch Civil Proceedings, the court can only ground its judgment on facts that were clearly stated as such by either party, and that have not been disputed by the other parties, or on facts that have been evidenced (proven) in conformity with the rules of evidence during the proceedings. The court is passive: the court is not allowed to base the judgment on facts that have not been brought forward by any of the parties. The court is free in the assessment of all evidence provided; however, some evidence is conclusive, such as deed signed before a Dutch Civil Law Notary (notarial deed).
The party in the proceedings relying on the legal consequences of facts or rights asserted by it, will bear the burden of proof, unless the law specifically provides otherwise, or unless such burden of proof would be contrary to the principles of reasonableness and fairness. Therefore, in most cases, the burden of proof will rely on the plaintiff. As a basic rule, the party claiming on the basis of (f.i.) an imputable shortcoming of the other party in fulfilling a contract, will have the burden of proof regarding (1) the shortcoming (the breach of contract), and all facts stated in relation thereto in so far the are relevant for the decision, and (2) the relation between the purported breach and the damages claimed. If, however, a party, as a defense, claims to have made a certain payment, the burden of proof of this payment will be upon this party. Parties are, generally, free to deviate from the main rule by contract. The risk of not providing (sufficient) evidence, therefore also is on the party that has burden of proof; this is called the “evidence risk”. The other party (the party not having the burden of proof) is always allowed to provide counter-evidence. In this situation, however, the burden of proof is still on the party that had the burden of proof; the burden will not shift. All the other party will have to do to provide counter evidence, is provide evidence that (sufficiently) which contradicts the evidence put forward by other party. This is generally easier than providing full evidence.
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