Since the New Civil Procedure Code (“NCPC”) entered into force on 15 February 2013, the legislator has chosen to consolidate the evidences regime, both in terms of admissibility, although this is primarily a matter of substantial civil law, as well as in terms of administration.
As a general rule, when the claimant submits its claim to court, it must also propose evidences supporting its claim. So, usually, the claimant has the “burden of proof”. Nevertheless, there are exceptions to this rule, when the claimant is exempt by the law to propose evidences supporting its claim, or the defendant has that burden. The exceptions are, inter alia, that:
- the claimant is not bound to prove something that the court must take into account ex officio. Article 246 of NCPC shows that “the court must take into account ex officio the laws in force in Romania…”, with some exceptions (such as the customary international law, texts not published in the Official Gazette or in any other manner provided by law, etc);
- in employment law, the employer always has the burden of proof, regardless of who actually commenced the trial; and
- in criminal cases, the judicial police bodies or the prosecutor must carry out the collection of evidences. The prosecutor is in charge of proposing the manner of administrating such evidences. Thus, the injured party shall never have the burden of proof.
The NCPC regulates the following as means of evidence: documents, witnesses, presumptions, one of the party’s confession (either made at its own initiative, or obtained through interrogation), expert reports, material means of evidence, on-site investigation or any other means provided for by the law.
For any evidence to be admitted in court, such evidence must be legal, conclusive and effective, meaning that it must be able to solve the dispute at trial. Whenever a fact is in the public domain or uncontested, the court may rule, taking into account the specific circumstances of the case, that this fact no longer needs to be proved.
Evidences may be proposed by the parties up until a certain procedural moment, i.e. within the initial phase, through the claim, the statement of defense, counterclaim, etc. As a rule, if evidences have not been requested in these procedural instruments, they can no longer be proposed. There are nevertheless exceptions, where notwithstanding a failure to propose evidences before mandatory procedural deadlines, they can still be requested and administered throughout the trial. For example, the court shall admit such request on evidences when all parties agree, or when administrating the evidence does not lead to delaying the trial, etc.
The evidences are administered before the beginning of the debates on the merits of the case. Whenever possible a proof and a counter-proof must be administered in the same session.
In terms of documents, the following are considered acceptable evidences: authentic documents, documents under private signature, electronic documents, excerpts, partial copies, copies made on microfilms or on electronic supports, contracts concluded on standard or standardized forms, plans, blueprints, photographs, papers, or any other documents attached to a certain file.
Witnesses may be summoned to court for evidencing certain facts against a written document whenever the object comprised within this document amounts to less than Lei 250. However, witness statements are admissible against a company’s documents, regardless of the amount of its object, if the documents were concluded in the course of the company’s business.
The following persons may not act as witnesses in a trial: a party’s husband or wife, as well as ex-husband or ex-wife, fiancé, or concubine, the persons placed under guardianship or trusteeship, those declared by law as unable to testify, or those convicted for perjury.
“Presumptions” are defined as the consequences that the law or the judge draws out of a known fact to an unknown one.
If an expert report is ordered by the court it has to be submitted to the file at the latest 10 days prior to the date of the hearing. The judges may assess the report and give it whatever value they choose, as evidence.
“Material means of evidence” are defined as objects that through their attributes, their aspect or their signs or marks may serve to establish the existence or inexistence of a fact, which in turn may lead to solving the case.
With regard to the on-site investigation, this concludes with the court’s minutes on the facts observed throughout the investigation, which also comprises the parties’ mentions or objections.
Confessions are also admissible, either as a result of one (or both) of the parties will, or through interrogation. Each judge, as well as the other party (with the judge’s consent), may directly ask questions to the party being interrogated. If a party refuses without reasonable grounds to answer to the interrogation, the court may consider such refusal as either a full confession or merely partial evidence advantageous to the other party (i.e. the one that proposed the interrogation).
In conclusion, the evidences regime has not been substantially modified since the NCPC entered into force. Nevertheless, in view of the significant changes that have been made to other procedural maters, it is important to closely observe the implementation of the evidences regime within the context of future civil claims.