The Dutch Code of Civil Proceedings provides for, in addition to the basic rules on how court proceedings are conducted, the rules on (civil) evidence. These rules stipulate how evidence is to be assessed, and how evidence by way of hearing witnesses is to be obtained.
The rules of evidence in the Code of Civil Proceedings apply as a basic rule to all civil proceedings, whether initiated by a writ of summons – as most claims – or an application or petition. For some specific civil law proceedings, the nature of the matter prevents the applicability of the Dutch rules of evidence. These proceedings include summary proceedings, where the preliminary relief judge only issues a provisional judgment which is not binding on the merits, and the second phase of inquiry proceedings before the Enterprise Chamber of the Amsterdam Court of Appeal. The Dutch 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 (testimonium de auditu), or forensic reports can all be used as evidence. Evidence that was stolen, or that was otherwise acquired wrongfully, is in many cases admissible as evidence, despite how the evidence was acquired, but may result in a criminal offence. Parties to civil proceedings are held to provide all relevant facts and name all relevant evidence. In practice, however, this rule, introduced in 2002, is not always strictly enforced.
In Dutch civil proceedings, the court may base its judgment only on facts that were clearly stated as such by a party, and that have not been disputed by the other parties, or on facts that have been substantiated in conformity with the rules of evidence during the proceedings. The court does not take an active role: the court may not base its judgment on facts that have not been brought forward by the parties. The court is free in its assessment of all evidence provided; however, some evidence is conclusive, such as a deed executed and signed before a Dutch civil law notary.
A party to the proceedings relying on the legal consequences of facts or rights it asserts bears the burden of proof, unless the law specifically provides otherwise, or unless the burden of proof would be contrary to the principles of reasonableness and fairness. In most cases, the burden of proof rests on the plaintiff. As a basic rule, the party making a claim, on the basis of an imputable shortcoming of the other party in fulfilling a contract, has the burden of proof regarding (1) the breach of contract, and all facts stated in relation to the breach in so far as they are relevant for the court’s decision, and (2) the relationship between the purported breach and the damages claimed. If, however, a party, as a defence, claims to have made a certain payment, the burden of proof of this payment will rest on this party. Parties are, generally, free to deviate from the main rule by contract. The risk of not providing (sufficient) evidence, therefore also rests on the party that has the 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 still rests on the party that had the burden of proof; the burden will not shift. All the other party will have to do is to provide counter-evidence that sufficiently contradicts the evidence put forward by other party. This is generally easier than providing full evidence.
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