Burden of proof
Dr. P.J.M. Bongaarts
Vice-president Court of Appeal ‘s-Hertogenbosch,
in the Netherlands
contribution to discussion at EATLP congress
held 3 June 2011 at the University of Uppsala, Sweden
Significance burden depends on
• Personality of the judge
• Legal culture
• Main values
nature
nurture
society
• Burden of proof
• Standard of proof
legislature
judiciary
• What would you prefer?
Personality of the judge (1)
Nature
Active judge
Brings up new facts to add
to the file
Passive Judge
The file is the responsibility of
the parties
Brings up new legal issues
Does not discuss legal issues
Also uses intuition to weigh
evidence
Only uses judicial rules of
proof
Seeks proof to justify the
finding of a fact
Seeks proof to the balance of
probabilities
Personality of judge (2)
Nature
Active judge
Seeks witness and expert
opinion on facts
Passive judge
Leaves fact finding to
parties
Trusts and accepts oral
statements of witness
and experts
Only accepts written and
duly signed statements of
witness and third parties
Has experience and a
personal interest in the
case,
Has no experience and only
a general interest in the
case.
Seeks consensus.
Decides the case, in writing.
Legal culture (1).
History
• Common law type
• Civil law type
• No specialised tax judges
in Higher Courts
• Oral culture.
• No preliminary hearing,
small file, everything
happens during session.
• Oral statements of parties
and their witness allowed
• Specialised tax judges,
also in Higher Courts
• Bureaucratic culture
• Preliminary investigation,
large file, everything
recorded in writing
• Only written statements
of witness allowed
Legal culture (2)
History
Common law type
Civil law Type
Decisions:
Decisions:
Three separate decisions
Each extensively rendering
facts, minority opinion(s),
and the various grounds
One brief collegiate decision
(solution), rendering the
one bearing ground
agreed by all judges , No
additional arguments.
Main values
Society
All facts begin in the
State has extensive
hands of the taxpayer.
powers. Truth can
always be construed
or found.
Taxpayer has collective
duty
His obligation to reveal
the truth is unlimited
Taxpayers privacy
should be protected.
His obligation to reveal
is limited legally.
Burden of proof
Legislature
Burden
Tax assessment stands good
unless proven wrong by
facts
Presumption of correctness
Burden
Tax assessment stands wrong
unless proven right by facts
Burden stays with taxpayer
all the way, no shift of the
burden
Shift of the burden possible on
grounds of reasonability
Presumption of ‘wrongness’
Standard of proof
Judiciairy
To the balance of
probabilities
Sufficient to justify the
finding of a fact
An analytical project
using percentages of
probabilities
An intuitive process
towards inner
conviction
What do you prefer?
Lets take an example.
‘Brady versus Lotus Group Car Companies (1987) STC 184
Did Lotus receive more payments from Delorean through Panama
than it had declared?
You choose:
What would you prefer?
•
Type of judge,
– active specialist? Or passive generalist?
•
Legal environment
– Tax court, bureaucratic culture? Or general court, oral culture?
•
Main values
– Focus on collective duty? Or on privacy protection?
•
Burden of proof
– Presumption of correctness or of wrongness. Shift of burden?
•
Standard of proof
– To the balance of probabilities. Or to justify the finding of a fact.
•
Format and extent of decisions,
– Grounds of each of the judges? Or one brief collegiate solution.