Under Luxembourg law, the basic principle is that persons requesting enforcement of an obligation must prove their case. Similarly, persons who claim to be no longer bound by an obligation must prove that they have made the payment or performed the act which relieved them of their obligation.
In certain cases Luxembourg law provides for presumptions which release a person from having to provide evidence of a fact that would be difficult or impossible to prove. Presumptions are conclusions which the law or a court draws about an unknown fact from a known fact.
The law distinguishes between two kinds of presumption. Firstly, there are legal presumptions, which are attached to certain acts or facts by a specific law. Then there are presumptions which are not established by law and which are left to the discretion of the court, which will accept only presumptions that are serious, precise and consistent.
Generally speaking, it is possible to provide evidence to rebut presumptions. For example, where a child is born to a married couple the mother’s husband is presumed to be the child’s father. An action may nevertheless be brought to contest paternity.
More rarely, presumptions can be irrebuttable, meaning that it is not possible to produce evidence against them.
Appraisal of the facts is left to the court’s discretion, which is absolute. If there is any doubt, the court will ascertain whether there is serious, precise and consistent evidence and will accept or reject the evidence depending on the plausibility of the facts alleged.
The taking of evidence can be ordered by a court at the request of a party. In certain cases, however, courts may also take evidence of their own motion.
The court informs the designated expert of the nature of the task. The parties to the case and any third parties who are required to assist the inquiry are summoned by the expert. In accordance with the adversarial principle, evidence must be taken in the presence of the parties.
The taking of evidence can be ordered whenever a court does not have enough information on which to base a decision.
The taking of evidence in respect of an alleged fact can be ordered only if the party making the allegation does not have sufficient evidence to prove it. In no circumstances may the taking of evidence be ordered in order to compensate for a party’s negligence in assembling the evidence.
Courts must also limit the choice of measure to what is sufficient for resolving the dispute; they must opt for the simplest and least expensive solution.
The different means of proof are documentary evidence, oral evidence, presumptions, admission, and sworn evidence.
When witness evidence is admissible, the court may take evidence from third parties who, because of their personal knowledge of the facts at issue, may be able to shed light on them. This evidence may take the form of statements or be gathered by investigative methods, depending on whether it is written or oral.
The court may ask for clarification to be provided by anyone it chooses, in the form of statements, consultations, or an expert opinion on a matter of fact that requires elucidation by an expert. If the opinion does not need to be in writing, the court may allow expert witnesses to give their opinion orally at a hearing; a record of this opinion is drawn up and is signed by the judge and the clerk of the court.
A party relying on a document is obliged to make it available to any other party to the case. It is made available against receipt or by lodging with the court registry (greffe). Documents must be made available without prompting.
Experts’ written reports or opinions:
Experts lodge their reports with the court registry. A single report is drawn up, even if there are several experts; if they disagree, each expert gives his or her opinion. If the expert has asked for an opinion from another expert in a specialisation differing from his or her own, that opinion is annexed to the record of the hearing or to the file, depending on the case.
Some methods of proof are stronger than others:
Written proof is necessary to substantiate a legal transaction (contract) the value of which exceeds €2 500. Proof of a fact (e.g. an accident), however, may take any form.
The law requires witnesses to cooperate in legal proceedings with a view to discovering the truth.
People who can prove that they have good cause may be exempted from giving evidence. Parents or other direct relatives of one of the parties may refuse to give evidence, as may a party’s spouse, even if they are divorced.
Defaulting witnesses may be summoned to appear, at their own expense, if their testimony is felt to be required. Defaulting witnesses and persons who, without good cause, refuse to give evidence or to take an oath may be subject to a civil penalty (amende civile) of between €50 and €2 500.
The penalty and any costs may be waived if the person concerned can prove that he or she was unable to attend on the day stipulated.
Anyone can be called to testify as a witness except persons who are judged unfit to do so.
People who are unable to testify may nevertheless be heard under the same conditions, but without taking an oath. However, children and other descendants may never give evidence regarding the facts relied on by spouses in an application for divorce or separation.
Courts hear evidence from witnesses separately, in the order decided by the court, when the parties are present or have been called. Witnesses may not read from a script.
The court may hear evidence from or question witnesses on any matter on which evidence may be taken by law, even if such matters are not mentioned in the decision ordering the taking of evidence. They may recall witnesses, confront them with each other or with the parties, and, if necessary, hear their evidence in the presence of a technical expert.
The parties may not interrupt, question or attempt to influence witnesses who are giving evidence, or address them directly, under pain of exclusion. After the judge has finished questioning a witness the judge may, if he or she considers it necessary, put further questions to the witness that have been submitted to the judge by the parties.
Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters is intended to improve, simplify and accelerate cooperation between the courts of the Member States in the taking of evidence. There is no specific provision for videoconferencing in Luxembourg law. Videoconferencing is subject to the ordinary rules of the New Code of Civil Procedure on the hearing of witnesses, personal appraisal by the court, and appearance in person. Courts are equipped with the necessary technical equipment. On the date set for a videoconference, a judge, a registrar, an interpreter and a technician are present.
The court may have an audio or video recording made of all or part of the preparatory inquiries. The recording is kept at the court registry. Either party may ask for a copy or a transcription at their own expense.
The court will not accept evidence obtained by unlawful means, such as a hidden camera or a telephone tap of which the person was unaware.
Generally speaking, statements made by a party to the case have no evidential value.
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