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ON THE ROLE OF COURT IN THE PROCESS OF PROVING

Автор Доклада: 
T. Yurkevich
Награда: 
ON THE ROLE OF COURT IN THE PROCESS OF PROVING

ON THE ROLE OF COURT IN THE PROCESS OF PROVING

Tatyana Yurkevich, student
the Doctoral Law Programme School of Business Administration “Turiba”

One of the central issues demanding consideration is the question about the role of court in the process of proving: should the court play an active role here, if yes, then how far should it go (without violating the adversary characteristics of the process) or should total passiveness be more preferable. The question about the role of court was brought to the surface quite a long time ago; it is exactly nowadays due to the reforms happening in the procedural civil law of Latvia that this subject became especially urgent, which is explained by the development of the adversary principle and its implementation in practice.
Key words: theory of evidence (proof theory), court evidence, notion of proving, the procedural court activities of investigation, verification and assessment of evidence.

In legal literature and jural practice, as applied to procedural civil law, the two viewpoints with regard to the notion of judicial proving became clearly manifest in their time; these viewpoints demonstrate differing approaches to the scope, elements of proving and the subjects thereof. These viewpoints were formed during the period of domination of the socialist law system; however their influence makes itself felt until now, besides, many postulates of these two approaches have not yet lost their urgency.
In order to demonstrate these approaches it would be useful to focus on the two authors, who seem to be most clear about the viewpoints they maintain.
Thus, according to A.F. Kleiman, proving in the civil procedure is a procedural activity only of the parties involved, which is based on the aggregate of appropriate procedural rights and comprised of the assertions in respect of the actual circumstances of the case, presentation of evidence, refutation of the opponent’s evidence, etc. Therefore, in A.F. Kleiman’s view judicial proving does not provide space for any court activities in the same sphere. The author believes that the whole of proving in court is just an attempt to convince the court of the truth of the matter asserted by the parties and in its scope is reduced to activities of the parties only. Hence, the subjects engaged in proving according to A.F. Kleiman are only the parties seeking for their argument of the right to be resolved in court, which, in his opinion, also correlates with the burden of proof that the parties should meet during proceedings.
K.S. Yudelson provided another definition of judicial proving. In his opinion proving is the activity, which purpose is to establish with the help of appropriate procedural means and methods an objective truth of existence or nonexistence of the facts necessary for resolution of the dispute between the parties, that is, the facts lying at the basis of claims and pleas of the parties.
To reveal the essence of proving K.S. Yudelson proceeded from the doctrine of an active role of the court in establishing the truth in the course of collection and examination of evidence, from the court’s right to take notice of and discuss the facts that were not referred to by the parties on the provision that the court does not go beyond the basis of claim and objections thereto, and finally, in the court’s obligation to take all legal measures to ensure comprehensive, full and objective inquest into the real circumstances of the case.
In this way, K.S. Yudelson treated all case participants as the subjects who bear the burden of proof and which activity is aimed at establishment of the really existing facts. Hence, the group of the subjects engaged in proving, according to him, is supposed to include not only the litigants but the court, third parties, representatives and the prosecutor as well.
At present, in the light of the reform of the civil procedure legislation, especially given the changes in the essence of the adversary principle, the principal of establishment of truth, neither the first not the second viewpoint can be accepted without criticism. Thus, one of the central issues demanding consideration is the question about the role of court in the process of proving: should the court play an active role here, if yes, then how far should it go (without violating the adversary characteristics of the process) or should total passiveness be more preferable.
If we agree to the opinion shaped in his time by A.F. Kleiman and exclude from the notion of proving the procedural court activities of investigation, verification and assessment of evidence, such exclusion would water down the whole content of proving and bring such activity to a sudden end by making it stop halfway to the goal. Here we really do observe an attempt to define proving as mere procedural activity.
The goal of proving according to Kleiman is to persuade the court that certain juridical facts did or did not happen in reality; to create inner conviction of the court. Therefore the court, in his opinion, is not a subject bearing the burden of proof since it is the litigants who need to persuade the court by means of evidence.
‘Court does not prove; it rather passes a decision. Its obligation is to resolve the dispute,’ believed Professor Kleiman.
It is not the purpose of proving, however, to ensure presentation of evidence by the parties, etc., but rather to ensure that the court uses evidence to draw the right conclusions to substantiate its decision. That is why the position of A.F. Kleiman is not acceptable.
On the other hand, A.F. Kleiman had enough reasons to criticise K.S. Yudelson’s approach. The latter was right when referred the court to the subjects of proving although he erroneously assumed that the court is the subject taking on the burden of proving the facts that lie at the basis of decision. This however is not enough. Further on the author treats the court as the subject that is required to meet the burden of proof as well since the court is supposed to motivate and substantiate its decision. Nevertheless neither the stated responsibility of the court to do this, nor its obligation to specify in the motivational part of the decision which of the facts have been recognised as established facts and which norms of the law of substance has been applied to arrive at the decision, justify the conclusions made by K.S. Yudelson. Motives of the court decision are important only for verification of legitimacy and substantiation of the decision as such.
The question about the role of court was brought to the surface quite a long time ago; this is clearly seen from the dates on which the above mentioned works were published although it is exactly nowadays due to the reforms happening in the procedural civil law of Latvia that this subject became especially urgent, which is explained by the development of the adversary principle and its implementation in practice.
Proceeding from the analysis of the situation when the court was forfeited its right to take the initiative in ‘taking the process forward’ one can arrive at the conclusion that the role of the court is reduced to that of a spectator and listener, that is a passive observer in order to ensure litigants with equal rights at trial. However, the procedural civil law maintains a completely different view on the role of court during trial, which is confirmed by the corresponding articles of the Law of Civil Procedure. Thus, for example articles 97 and 165 to 182 of the Law of Civil Procedure provide for direct participation of court in examination and assessment of evidence.
Let us make it clear at the outset that, in our opinion, the court quite naturally and unconditionally is the subject engaged in proving. Formerly, as we see from above, the theory of the soviet civil procedure taught that the court is the key subject engaged in proving. Such statement corresponded to the law that was in force at the time and that committed the court to active participation in proof activity.
After transition of the Latvian law system to the Roman-German law family, reforms in Latvian legislation and, in particular, reforms introduced in Latvian procedural civil law in 1998 it became obvious that along with reinstatement of classical concept of the adversary trial the legislator treats the litigants and other parties involved in litigation as key subjects required to meet the burden of proof thus releasing the court from the imperative obligation ‘to take all necessary measures provided for by the law to ensure comprehensive, full and objective clarification of the real circumstances of the case’. Nobody, however, released the court from the obligation to carry out examination and assessment of evidence. And these two elements are mandatory components of the content of the process of proving. Precisely that position, that view on the role of court is considered by us as most correct. Thus, within the framework of proving the subjects engaged in collection, presentation and examination of evidence are parties to the case and other persons participating in the trial , at the same time, as to examination and assessment, the court becomes the subject engaged in proving, which evaluates evidence according to its internal conviction (Article 97 of the Law of Civil Procedure).
Coming back to the questions of activity and passivity of court it should be also noted that the law provides for a number of specific measures that the court may choose to take, for example, postponement or suspension of trial, etc., which contradicts to the concept of the passive role of court, which is meant to ensure that the litigants take advantage of the adversary principle.
We see obvious contradiction here, and solving of this contradiction is linked to the wrong and incomplete understanding of the principal of equality of parties rather than to elimination of contradictions in the law. The contradiction lies in the fact that it is necessary to combine the notions of activity and passivity of the court in such a way for them to comply with the principles and tasks of the civil procedure. In the author’s opinion, these tasks are: correct, timely and efficient consideration and resolution of civil cases with the purpose to protect violated or disputed rights and legitimate interests of individuals. As to principles, the adversary principle needs to be singled out in the first place.
The adversary principle as good practice principle was secured by the Law of Civil Procedure of 1964 that preceded the Civil Procedure Law. However that proved to be quite formal action since the application of that principle was fully neutralised by other principles: the fully active role of the court in clarification of the circumstances of the case and an absolute obligation to ascertain the objective truth. As a result, the parties may stay totally passive in offering and examining evidence without the apprehension of the potential unfavourable outcome for themselves – the court was supposed to do everything in their place. Contemporary understanding and realisation of the adversary principle in the civil procedure however have acquired new content. The adversary principle in the first place is realised in the process of proving, that is, during establishment of existence or nonexistence of circumstances substantiating claims and pleas of the litigants as well as other circumstances significant for proper consideration and resolution of the case (Part 2, Article 10 of Civil Procedure Law), i.e., it is related to the factual side of the case (resolution of the issues related to the facts significant for the case). The adversary principle is also realised in the process of substantiation of jural positions held by litigants (their claims and pleas), in other words, it is linked to the legal side of the case (resolution of law issues) as well. Surely, most complicated and significant traits of the adversary principle are revealed in the process of proving, that’s why this most important aspect of operation of the adversary principle requires most comprehensive regulation by the Civil Procedure Law. In much broader terms operation of contemporary interpretation of the adversary principle in the process of proving in claims litigation lies in the fact that the court itself does not collect evidence but rather creates circumstances to ensure participation of the parties in the adversary trial and provides for presentation of evidence, resolves questions concerning the circumstances subject to proving, decides on the relevance and admissibility of evidence, examines evidence during session, makes assessment of presented evidence according to the procedure set by the law and on their basis establishes the circumstances significant for the case; second, the litigants themselves are supposed to prove the circumstances to which they refer as to the basis of their claims and pleas (Part 1, Article 93 of the Civil Procedure Law), and given certain difficulties in offering evidence, they are vested with the right to solicit the court and demand such evidence to be produced (Part 2, Article 93 of the Civil Procedure Law); besides, it is up to litigants to choose whether they wish to participate in adversary trial or not (whether the plaintiff should support the brought claim, whether the defendant should raise objections to the claim or accept it, whether to offer evidence in substantiation of the claims or pleas or in refutation of the circumstances, which existence is implied according to the law, whether make personal appearance in court or assign a representative to attend court sittings, whether to appeal against the court decision, etc.); evasion from participation in such procedure may cause unfavourable consequences for the party that shuns from proving.
What is the role and responsibility of the court in the adversary process? The most important thing for the court is to organise the process, which would offer all necessary facilities for the individuals involved in the case to exercise their procedural rights and fulfil procedural obligations conferred upon them: to file statement of claim, provide one’s objections to claim, bring counterclaim, file solicitations and get them resolved, substantiate one’s position in the case in general and in separate issues arising in the course of trial, present evidence, participate in examination of evidence, etc. One major condition that makes it possible for the court to play this role is court independence and impartial treatment of the parties involved in the case through ensuring their procedural equality during the case trial. For the purpose of organising the adversary trial the court manages the process; explains to the persons involved in the case their rights and responsibilities, warns about the consequences of involvement or non-involvement in the procedural activities; provides assistance to case participants in execution of their rights; creates conditions for establishment of actual circumstances and proper application of legislation in civil trial.
Certainly, it would be most easy to secure the active role for the parties in the process and reserve for the court the right to determine whether the parties’ grievances are well grounded by making no effort to fill in the blanks of proving and evidence, left by the litigants. It is exactly the concept that corresponds to literal interpretation of the adversary principle that is currently represented both in the Civil Procedure Law itself and in the practice of civil proceedings in Latvian courts. It is superficial treatment of the adversary and party equality concept in the civil procedure that leads to debarring the court from process coordination. Court’s self-withdrawal from the active role in the process could make some sense if the parties would be granted really absolute equality of rights and obligations, which they would be able to fulfil. In practice though we come across such phenomenon when the parties even fail to imagine by what means and how they would substantiate and support their position. It is impossible to be sure that this or that party has taken full advantage of all the possibilities in collecting and presenting evidence to defend their interests for a number of various reasons. How are we supposed to understand the equality of parties in combination of passivity and activity of the court? It is exactly the court’s obligation during the court sitting to decide whether the interests of both parties are properly observed, after which it has the full right or sometimes even an obligation (however not yet bound by legislation) to take certain measures for establishment of equality. The court is obligated to provide assistance, make corrections, and show initiative. The court therefore not only has the right but also an obligation to take every effort to ensure that the circumstances of the case are clarified to the fullest possible extent and the decision coming on a case is passed not only in full compliance with the law but also follows the requirements of justice and truth . Here the Civil Procedure Law is asking for certain amendments since that aspect in the author’s opinion has not been properly considered.
Thus, it is not possible to exclude the court from the list of subjects engaged in proving as the subject listening to and examining evidence, although such activity should not be excessive. Active role of the court cannot not go as far as altering the rules and terms of the court sitting, changing the claims and pleas of the litigants as well as any other important issues of the procedure that are regulated by the law and relate purely to the parties’ will. Actually the court should play a passive role except for the cases when the law prescribes otherwise or it is implied by the ‘spirit’ of the law, and such activity should be put into use to ensure equal opportunities for the parties where it is deemed necessary as well as for establishment of the issue.
The principle of objective truth lies in the requirement for the court to provide the judgment that is in full compliance with the real circumstances of the case. Earlier this principle was imposed upon the court as its duty, the court was supposed, without limiting itself to offered materials and explanations, to take every measure provided for by the law to ensure comprehensive, full and objective ascertainment of the real circumstances of the case. Undoubtedly, ascertainment of truth by the court in the civil procedure in the first place can be ensured by the objective position occupied by the court itself.
However, the principle of truth does not necessarily imply that it is the court’s duty to establish absolutely all possible circumstances of the case down to every minute detail since it is hardly ever possible to achieve, besides, it may appear to be unnecessary . In the best case, we may talk about relative truth only, that is, about relatively true decision .
Thus, the adversary form of protection and enforcement of private rights is quite effective since each party is offered an opportunity to throw light on their point of view and support it by evidence, which enables the court, in consideration of the arguments of the parties with contesting legal interests arrive at the true decision on the issue. Moreover, equal opportunities of the litigants are ensured thanks to operation of the court’s active role principal as well as that of objective truth.
There is one more thing that should be kept in mind. Undoubtedly, Professor Kleiman was right to assert that the court must settle the dispute in the first place and one cannot disagree with the statement that the court should exert every effort to achieve this goal. However the court should be provided with that one opportunity – to make its decisions. The opportunity to give comprehensive and full consideration to the matter. The opportunity to pass objectively true decisions is granted by the procedural rights and opportunities given to the court by the law. In practice, regretfully, the judges quite often try to ‘squeeze’ the decision out of something they have at hand, that is, out of that ‘something’ the litigants have provided for trial. The court should investigate and examine the circumstances of the case before it passes a decision on the merits of the case. Therefore we agree to the opinion that such situation when, proceeding from the idea of pure adversary principal, the court is even unable to demand examination on its own initiative may be called nothing but some scientific extremity.
Therefore it becomes obvious that despite certain distinctive expansion of the adversary principle in the civil procedure due to changes in the legal system and transition to Roman-German legal tradition the court remains the subject engaged in proving, the subject that is engaged in examination and assessment of evidence as well as the one that arrives at the final resolution based on such evidence. At the same time court operation may be characterized as moderately active with the activity focused exactly on the proper observation of the adversary principle.

References:

  • 1. Bukovskis, V. (1933). Civ?lprocesa m?c?bas gr?mata. R., [Bukovskis, V. (1933). Textbook of the Civil Procedure. R.]
  • 2. Civilprocesa likuma koment?ri. (2006). Tre?ais papildin?tais izdevums. Autoru kolekt?vs. Prof. K.Torg?na visp?r?g? zin?tniskaj? redakcij?. R. [Comments to the Civil Procedure Law. (2006). Third supplemented edition. Assorted authors. Under general scientific editorship of Prof. K.Torgans. R.]
  • 3. L?cis, A. (2003). Pras?bas tiesved?ba un pier?d?jumi. Prof. K. Torg?na zin?tniskaj? redakcij?. R., [Licis A. (2003). Claim Proceedings and Evidence. Under scientific editorship of Prof. K.Torgans. R.]
  • 4. Liede, A. (2010). Latvijas PSR Krimin?lprocess (visp?r?g? da?a) un tiesu pier?d?jumi. 2.izd. (faksimilizd). R. [Liede, A. (2010). Criminal Procedure in Latvian SSR (General Part) and Court Evidence. 2nd edition. (facsimile ed.). R.]
  • 5. Rozenbergs, J., Bri?is, I. (2010). Padomju civilprocesu?l?s ties?bas. 2.izd. (faksimilizd). R. [Rozenbergs, J., Brigis, I. (2010) Soviet Procedural Civil Law. 2nd edition. (facsimile ed.). R.]
  • 6. Клейман, А.Ф. (1967). Новейшие течения в советской науке процессуального права. М. [Kleiman, A.F. (1967) The Latest Trends in the Soviet Science of Procedural Law. M.]
  • 7. Юдельсон, Ю.К. (1951). Проблема доказывания в советском гражданском процессе. М. [Yudelson, K.S. (1951). The Problem of Proving in the Soviet Civil Procedure. M.]
  • 8. LR likums: 14.10.1998. likums "Civilprocesa likums" ("LV", 326/330 (1387/1391), 03.11.1998.) [st?jas sp?k? 01.03.1999.] redakcij? 01.04.2010. [Law of the Republic of Latvia: 14.10.1998 Law on Civil Procedure ("LV", 326/330 (1387/1391), 03.11.1998) [came into force on 01.03.1999] wording as of 01.04.2010].
     
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