Free evaluation by the judge of the testimony of a witness in a civil procedure for which no grounds have been provided.
RULING Nº 248/2009
12 of May of 2009
When interpreted in such a way as to grant the judge the freedom to continue to attach value to testimony for which the witness has not provided any grounds, the Code of Civil Procedure rule that gives the judge the power to freely evaluate evidence, according to his own conviction about each fact, is not unconstitutional. This rule does not undermine the constitutional requirement for fair procedure, or any other constitutional parameter.
The petitioner asked the Constitutional Court to pronounce itself on the constitutionality of the principle of the freedom to evaluate evidence in civil cases, when interpreted in such a way as to allow value to be attached to the evidence given by a witness when the latter does not concretely indicate the grounds for it.
Under the terms of the applicable provision of the Civil Code, and based on the general principle of the freedom to evaluate evidence set out in the Code of Civil Procedure, evidence provided by witnesses is currently a form of evidence to which the judge is free to attach value or not. The judge must weigh up such evidence in the light of the impressions he gains from listening to or reading it, and of the resulting conviction in his mind, all in accordance with the rules of experience.
The adoption of the Roman system of “free evidence” means that emphasis is placed on obtaining the material truth of the facts, to the detriment of the certainty of the result of the evidence that governs the “legal evidence” system. However, freedom to evaluate evidence is not the same thing as arbitrarily taking that evidence into consideration, inasmuch as the inherent duty on the part of the judge to provide grounds for the end result precludes “despotic” judgements. When the evidence given by a witness is weighed up, the source of the knowledge of the facts described by the witness is a particularly important element when the judge comes to gauge the credibility of the account.
Due process is a process in which the procedural rules comply with the material principles of justice, which the Constitutional Court has been rendering more precise on a case-by-case basis. In doing so the Court has often resorted to setting out sub-principles, with particular attention to the jurisprudence of the European Court of Human Rights.
Where the list of situations in which it is prohibited to attach value to evidence in civil cases is concerned, it has been argued that the constitutional provision which lays down the guarantees applicable to criminal procedure and which makes evidence liable to be deemed null and void whenever it has been obtained by means that violate fundamental rights, should be applied by analogy. The present case concerns the breach of a procedural rule governing the presentation of a means of evidence in a civil case – a rule which is designed to make it easier to determine the truth. The fact is that if a witness indicates the source of his knowledge about the facts he reports, the judge can more easily gauge the credibility of his account.
However, the need to protect the process of determining the truth of the facts does not necessarily imply that the breach of a procedural rule governing the presentation of evidence, which is designed to make it easier to gauge the value of that evidence, should be sanctioned by making it impossible to present the evidence in question. Even in the presence of such a breach, and even if the evidence is presented in an improper manner, the evidence itself can still be of some use to discovering the material truth, and the difficulties do not prevent the judge from wholly fulfilling the duty to provide the grounds for his decision on factual matters.
Whatever the judgement as to the constitutionality of the legislative solution in situations in which the judge is not aware of the grounds for a witness’s testimony, the mere fact that a witness does not include in his statement an indication of the sources of his knowledge of the facts he tells the court does not inevitably make it impossible for the judge to understand the grounds for the testimony. Not only is it possible (as the decision against which the present appeal was lodged said) that those grounds may be deduced from other elements in the case file, but they may also be implicit from the facts presented in the testimony, or may be deduced from the nature of the relationship between the parties to the case and the witness.
This means that one cannot say that a breach of the procedural rule in question necessarily prejudices the determination of the truth and the fulfilment of the duty to give full grounds for court decisions.