Selvitysvelvollisuus ja todistustaakka – vertailevia näkökohtia hallinto- ja siviiliprosesseista
Avainsanat:
hallintolainkäyttö, siviiliprosessi, aineellinen prosessijohto, asian selvittäminen, todisteluAbstrakti
The burden of proof in administrative and civil procedures
In civil procedure, the doctrine of burden of proof is quite well established. But does it have an effect in administrative judicial procedure as well? In the context of administrative law, the established concepts are the duty to disclose facts and the established facts, whereas in civil procedure the corresponding concepts are the burden of proof and evidence or proof. Do these concepts have anything in common?
In administrative judicial procedure, a failure to meet the burden of proof is not by itself sufficient grounds for a decision. The objective, to reach the material truth, does not depend on which party has presented the relevant facts. The materials before the court are considered as a whole. If the standard of proof is not reached by the evidence adduced by the parties, the administrative court may review the case on its own initiative (ex officio). Even so, in reality the administrative court too is obliged to decide the case, also in a situation where some facts remain unclear in spite of any appropriate measures taken.
The claims and the facts presented by the parties restrict the court’s ability to review the matter ex officio. The parties always bear to some degree the consequential risk of passivity and contributory negligence even if the court has the duty to review the matter ex officio. The court is obliged to decide the case regardless of the potential inadequacy of the factual basis. In administrative judicial procedure, the responsibility to contribute to the full disclosure of the facts remains mainly with the party that is best able to obtain the material. The risk of an unfavourable decision is borne by the party that would have benefited from the facts that were not presented.
Both the standard of proof and the burden of proof (the duty to disclose facts, responsibility for investigation) seem to operate flexibly in administrative judicial procedure. The standard of proof is applied flexibly with regard to the consequences of the decision and the duty to disclose facts is applied in accordance with the real possibilities of adducing evidence. As for civil procedure, the burden of proof is applied strictly but the truth is a procedural concept: The parties have the obligation to claim and adduce evidence based on the facts and they must expressly invoke any evidence they wish to have taken into account during the trial.
